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Back to context

When the dynamics of power politics divert the public sphere, in the case of the state, and international public opinion, in the case of nations, from the plight of the victim then it is time that the dry language of the court comes to the rescue. The reason is that this language is not subject to the constraints of the balance of power, or to the demands of diplomatic niceties, but serves to interpret law and pronounce judgement. Of course the politics of power, in the case of the state, and the diplomacy of international balances of power, in the case of nations, assert themselves again when the court ruling needs someone to execute it.

A judicial ruling does not implement itself. In the case of individual states a court is a court because there is a recognised executive authority one of whose jobs is to execute the court’s rulings. The executive executes these rulings because these are based on laws promulgated by a legislative authority that expresses the sovereign will of the people.

There is no doubt that the dry language of the International Court of Justice (ICJ), which drew its opinions directly from international instruments of law and conventions, aids the Palestinian people in their ordeal with the separating wall. However, the General Assembly is a far remove from a sovereign legislative authority, the Security Council is not an executive authority and the ICJ ruling is less enforceable than the rulings of some preliminary court in a remote town in a sovereign state. Nevertheless, there is no overstating the importance of the ruling of the ICJ on the Israeli wall in the occupied territories. Nor is there any reason why this ruling should not acquire the force of a ruling from the highest judicial authority in a state.

The ICJ answered the question put to it by the General Assembly on the legal ramifications and repercussions of the wall directly and to the point, delivering a stunning blow to all Israel’s pretexts and justifications. The court declared that the wall must be dismantled, that conditions in the area be restored to their earlier state and that where this is impossible compensation should be paid to the victims of the wall, and that the UN should take all necessary measures to ensure the implementation of these demands. The court further stressed the responsibility incumbent upon all nations of the world with regard to Israeli behaviour in the occupied territories. It made it clear that this is not a bilateral issue between the Palestinians and Israelis, but rather a humanitarian matter of grave concern to the entire international community.

That the court based its advisory ruling on the Geneva Conventions, international humanitarian law and international human rights law, and that it invoked and affirmed the continued efficacy of all relevant General Assembly resolutions is probably no less important than the ruling itself. Perhaps equally important is the court’s scathing criticism of the Security Council for allowing “the negative vote of a certain member of the Security Council” to keep it from performing its duty to uphold UN resolutions on such matters as preventing the construction of the wall and the expansion of Israeli settlements. Nor could one help but to appreciate the court’s refutation of US and Israeli arguments to the effect that the wall problem would be solved through negotiations between the Israelis and Palestinians sponsored by the Quartet within the framework of the roadmap and that the court had no business meddling in political matters of this nature.

The ICJ has ruled that Israel is in breach of international law and has violated its duties as an occupying power. To the members of the court the plea of self defence against terrorism originating in another nation held no water. The West Bank and Gaza did not constitute another state; they were under Israel’s direct control and Israel therefore was bound by obligations towards the inhabitants of these territories in its capacity as an occupying power, regardless of what the Oslo agreements might say. In other words, the court drew a clear distinction between terrorism and occupation. In the language of the law the welfare of a people under occupation is the responsibility of the occupying power. If that power resorts to war and aggression against that people it is in breach of this responsibility. The only way for an occupying power to hold a people under occupation accountable as a sovereign state and to plea self defence from terrorism from that state is to withdraw from the occupied territories and establish a sovereign state. Israel can’t have it both ways.

The court’s ruling, its justifications of its ruling and its justification of its competency to issue this ruling have given the Palestinian people and their representatives and friends abroad some powerful ammunition. They are now equipped to press their case against the wall with the stamp of the highest judicial authority in the world.

All this is extremely important. However, it is even more crucial that we realise the fuller import of the ruling before we move to have it adopted and put into effect by the relevant international bodies. The fuller import is that the court brought the language of the Palestinian cause back on course. It has restored this language to its proper context, after more than a decade of wandering the maze of diplomatic corridors. Balances of power and their translation into diplomatese gave rise to such expressions as “the two parties,” “mutual violence” and “the vicious cycle of violence”. The ICJ has cut through all that chaos. With its dispassionate language it dismantled those expressions as though they were alien settlements and revived the language of “occupation” and the “illegality” of the occupation, including the occupation in Jerusalem. Had some Arab commentator offered an opinion in the language of the court he would have been accused, even by some Arab regimes, of extremism and lack of realism.

The judges in the ICJ are not freedom fighters or ideologues. They are judges who divide the practices and actions of international parties into legal and illegal. They did not lay down international law. International law was a given and they used it as their criterion. They are not revolutionaries or even politicians, but they brought language back to its senses. For having done so they are more admirable than those erstwhile freedom fighters who use their freedom fighting laurels to justify twisting language to accommodate it to present-day realities, and the new vested interests of the present-day realists.

Perhaps the judges at the court are all courageous in their personal lives; perhaps they are not. Maybe they are opportunists or maybe men of principle. We have no way of knowing. But when they took their seats as judges in The Hague they used the language of law, which reduces personal traits and self-interest to a minimum, unlike the language of politics.

The Arabs now have the opportunity to recapture this language from the best possible source available, and to bear it like a standard in their drive to bring the court’s ruling into effect. This is the language to which they must adhere when they knuckle down to defeat the American position in the Security Council on two levels. The first entails generating an international consensus against the Israeli wall, whereby wall comes to connote “illegal”, “occupation,” “inhumane” and the like. The second is to confront American public opinion with the following questions: Is their government committed to Israel or to the Israeli occupation? If the latter, should their government go so far in its defence of the Israeli occupation as to use its veto in the Security Council in defiance of a ruling issued by the highest judicial authority in the world?

Bringing that wall down will require from us the greatest perseverance. We will also need to work with a broader spectrum of opinion and a greater diversity of groups than those that have supported the Palestinian struggle until now. The court’s decision was not the action of some leftwing organisation friendly to the Palestinians. This was an impartial legal decision, and as such it can serve to build an international consensus. An international consensus here is as crucial to the Palestinians as it was in the case of South African apartheid. As in the latter case, there is not going to be some international power, such as the US, sending in its army to uphold international legal rulings by force. An international consensus will be needed to ensure that “separating wall” becomes and stays a dirty word, as well as to develop the dynamics for isolating Israel.

Sharon, too, is preparing for the upcoming confrontation in the international arena, and his foreign minister, Shimon Peres, will be one of his main instruments. The first step towards undermining the efficacy of that instrument is to understand its function as Sharon’s tool for preventing the Palestinians from creating an international consensus against the wall.