Beinin Guest Editorial: The US Congress Defies the World Court
Our second guest editorial on the issue of the Wall is by the distinguished academic Joel Beinin of Stanford University.
The US Congress Defies the World Court on Israel’s Separation Barrier
by Joel Beinin
Today the United Nations General Assembly is likely to vote to insist that Israel comply with the ruling of the International Court of Justice and dismantle the separation barrier it is constructing largely inside the West Bank. The ICJ, or World Court, is the judicial arm of the UN and the highest court in the world. On July 9 the court, by a 14-1 vote, delivered an Advisory Opinion declaring that the trajectory of the separation barrier is illegal and that it must be removed. Palestinians whose lands have been confiscated to construct the barrier or who have suffered other damages must receive compensation.
The court recognized that Israel “has a right, and indeed the duty” to defend its civilian citizens against acts of violence and acknowledged that it faces a serious security problem. It did not say that the barrier cannot be built at all, only that it must be built on Israel’s own territory, not on Palestinian territory occupied in the 1967 war.
Although advisory opinions are not binding, they are the most authoritative statement of international law on a given issue. This is all the more so in this case because a large and diverse group of judges agreed on the legal questions at stake. The single negative vote, cast by the American judge, Thomas Buergenthal, was based on his opinion that the court did not have sufficient evidence to justify its sweeping conclusion, not on the view that the barrier is legal. Moreover, Judge Buergenthal concurred with the other members of the court that Israel is obliged to uphold the Fourth Geneva Convention, which regulates the conduct of occupying powers. Israel has always rejected the notion that it is occupying the West Bank and the Gaza Strip.
The ICJ’s overwhelming opinion on the illegality of the separation barrier has been accepted as an authoritative legal decision everywhere but in Israel and the United States. Both governments denounced the Advisory Opinion. Israeli Prime Minister, Ariel Sharon, announced that although he rejected the ICJ ruling, Israel would abide by the decision of its own Supreme Court, which ruled on June 30 that a twenty-five mile segment of the barrier must be relocated nearer to the internationally recognized border between Israel and the West Bank, known as the Green Line, to avoid imposing undue hardship on the Palestinians.
The Israeli court accepted the government’s rationale for building the wall and did not challenge the principal that it may be built on Palestinian land if Israeli security authorities deem it necessary. This decision avoids reaching the conclusion that the ICJ reached: that the trajectory of the barrier is designed to protect Israel’s settlements in the West Bank and to effectively annex them, along with large swaths of additional territory, to Israel proper. Since the settlements are illegal according to the Fourth Geneva Convention, any barrier erected to defend them is also illegal.
On July 15 the House of Representatives adopted HRES 713 by a vote of 361-45 (with 13 present, 14 not voting), a resolution that “deplores” the ICJ decision. Such lopsided votes on matters relating to Israel and Palestine are commonplace in Congress. They are largely symbolic and have little or no operative force.
On this occasion several members spoke out clearly and forcefully on the question, delineating the issues involved with unusual clarity. Jim McDermott (D-WA), a self-proclaimed “true friend of Israel,” said, “We can hurt the cause for peace by passing a resolution that would seem to place the world on one side, and Israel and the United States on the other. A political wall divides just as much as a stonewall or an iron fence.” In other words, condemning the opinion of the World Court exacerbates the international political isolation of the United States as a consequence of our Middle East policy.
Many Democrats with generally liberal voting records voted for HRES 713. Most of them – for example Anna Eshoo, Mike Honda, Tom Lantos, Nancy Pelosi, and Lynn Woolsey, all of the San Francisco Bay Area – criticized the Bush administration for abandoning the Kyoto Protocol on global warming or the renouncing its signature on the Rome Statute establishing the International Criminal Court. Apparently, it is bad for the United States to be internationally isolated on those issues. But it is fine if the United States is isolated because of our Middle East policy. That isn’t likely to have any consequences for our national security or personal safety.
Professor of Middle East History