ACRI: Separation fence clear violation of int'l law

[lindsayg]

http://www.haaretz.com/hasen/spages/572990.html

The route of the West Bank separation fence is a clear violation of international law as laid down by the International Court of Justice at The Hague and it must thus be moved from the West Bank to inside Israel, the Association for Civil Rights in Israel said Thursday.

[simcha_6]

1. Now all it has to do is make that relevent to Israeli law

[Violet_Crumble]

2. Not sure what you mean...

Are you saying that you think Israeli law trumps international law?

Violet....

[simcha_6]

5. I'm cynical about international law

If international law is only followed when it's convenient, it doesn't really matter what international law says about the fence- it won't affect what Israel does. It's pointless to parade international law when all it does is make internationalists feel morally superior- it doesn't help the Palestinians any.

And about international law in general- its an illusion (I'm a social constructionist, I think.) We observe it's convenient. The whole idea of international law is paradoxical, anyway. It's conceived and enshrined in international institutions like the United Nations, which are grounded on the idea of state sovereignty, which, in turn, places state law above international law. (That's a catch-22, isn't it?)

I went to Azerbaijan this December and saw for myself how the institutions that supposedly believe in international law handle themselves. You might know how Azerbaijan and Armenian separatists, backed by Armenia, fought over Nagorno-Karabakh, an Armenian enclave with a population 70% Armenian. By the end of the war, the Armenians had one most of Nagorno-Karabakh and more territory besides, and over a million people exiled from their homes- 800,000 Azerbaijanis and 353,000 Armenians (Thomas De Waal, "Black Garden"). The Azerbaijanis, whose territorial integrity/sovereignty had been violated, was helped out by the UN. Eleven years later, the 800,000 Azerbaijanis are still in camps, some with nice houses provided by the Asian Bank, but mostly without jobs, reliant on food from the food hand-outs which the UN provided until last December, when they decided they didn't have enough money. The people identify themselves as Internally Displaced People, and have little ambition other than kicking the Armenians out and going back home, mostly because the Azerbaijani government uses the IDP's as pawns in the negotiations with Armenia and to gain international sympathy. The Armenians, on the other hand, have been resettled by the Armenian/Nagorno-Karabakh Republic governments, and have had the ability to move on with their lives. Regardless of who is wrong or right, the UN has placed the good of the sovereign state above the good of people, which is enshrined in their own declaration of human rights.

The same thing happened with the Palestinians. They got put in camps in the late forties, and because it suited the interests of the sovereign Middle East nations in which they ran to, the UN encouraged them to keep living in those camps, instead of finding places to resettle them so they could move on with their lives. I'm sure, if they didn't get so much attention, the Palestinians would have eventually stopped receiving aid just like the Azerbaijanis were. It does this because the little power the UN has comes from it being recognized by sovereign states, so it places state sovereignty above the good of people so that it may keep on existing.

The point is, the international community's "international law" can't exist in practice until the UN decides to enforce these laws, which would end up destroying the UN. Thus, its the sad truth that, in practice, Israeli law does trump international law, and if you want to help the Palestinians, international law is not going to be the path you take. You have to go on using Israeli law, since they're the ones in charge. (That's the conflict theory they taught me first quarter at the university- the world is divided into haves and have-nots. So long as Israel has all the power, we're going to need to play by their rules. Fortunately they do have democratic institutions, so it just might be possible.)

Frankly, I don't think this situation will change until a new world organization is created that derives its power from people, rather than states.

[eyl]

3. I'll repeat what I posted

regarding the legal flaws in the ICJ decision last time this came up (with a few modifications for clarity, as well as a result of the exchange Violet and I had on that thread):

First of all, procedural elements and elements of appearance:

A) The Court created the appearance of bias (at the very least), by its refusal to recuse Judge Elaraby (and his refusal to recuse himself). The fact that one of the presiding judges in a court session to determine the legality of a certain issue had declared it to be illegal (or the equivalent in a criminal trial, that the judge had declared the defendant guilty) beforehand would have likely been enough to void the trial in most Western domestic law systems.

B) Reading the witness list for the Palestinian side, you'll see a lengthy list of countries, most of which have nothing to do with the issue (e.g., Madagascar). However, the Court allowed their testimony (in my opinion, at least, anyone other than Israel, the Palestinians, Jordan, and possibly Egypt should have been limited to affidavits, if that, especially regarding substantive matters rather than procedural matters such as the Court’s jurisdiction). It should be noted that in other cases, the Court also heard a long list of witnesses of countries which seemingly had nothing to do with the matter at hand, so I view this as more of a systemic flaw than one relating to this particular issue. However, the Court also allowed the Palestinians to testify, but refused to hear testimony from Israeli terror victims, which are surely at least as relevant. It should be noted that it seems unclear whether the Court (in particular when executing its advisory function) can receive testimony from bodies other than the 189 member states of the UN (plus Switzerland) and 16 of the UN’s sub-organizations. However, since the Court already made an exception to this by allowing the Palestinians to present testimony, as well as League of Arab States and the Organization of Islamic Conferences, so I feel confident it could have found justification to hear the testimony of at least some of the victims, or at least a representative thereof, if it had so desired.

C) The issue of jurisdiction has been mentioned above. The ICJ supposedly has jurisdiction only when two states consent to appear before it. Technically, this wasn't irrelevant in this case, since the Court was purportedly giving an advisory opinion on a point of international law (its second function). However, looking at the reactions before, during, and after the trial, including the Court's opinion and the judges' separate opinions, it seems obvious this was a successful attempt to effectively pass a "resolution" against Israel in an end-run around the Security Council - and that the Court was aware of this (see, for example, paragraphs 12-13 of Judge Higgins’ separate opinion).

D) The status of Palestine - throughout the ruling, as well as in various procedural matters, the Palestinians' status was inconsistent. The Court basically considered them as having the rights of a country, but not the obligations (for example, by allowing them to testify, or indeed by even hearing the case in the first place - see also below).

E) The ruling was a bit misleading in paragraph 84, where it stated that approximately 237,000 Palestinians would end up west of the barrier without bothering to mention that the vast majority of them were concentrated in Jerusalem.

F) The term barrier – the Court deliberated between describing the barrier as a “barrier”, as a “fence”, or as a “wall”. In the end, they chose the latter – the term most prejudicial against the Israeli case – despite the availability of the far more inclusive term “barrier”, and the fact that “wall” describes roughly 3% of the route (again, this relates to appearance).


On to the ruling itself (in no particular order):

1) Most seriously, in paragraph 139, the Court determined that Israel could not invoke the right of self-defense under Article 51 of the UN Charter, on the grounds that the Palestinians do not form a state. This is absurd on several levels. First of all, Article 51 (which paragraph 139 quotes) reads

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security".

Nothing in that requires the attacker to be a state (or a member of the UN, for that matter). Second of all, as I noted above, the Court did consider the Palestinians to be sufficiently a state to hear the case as well as their testimony. Third, by ruling this, they undercut the applicability of any element of military necessity to the barrier (see below also). Fourth, nothing in their ruling limits the nonapplicability of Article 51 to the issue of the barrier – the ruling effectively states Article 51 has no applicability to the situation of the Israeli-Palestinian conflict. In other words, this disallows any Israeli military actions beyond the Green Line (and possibly within the Green Line as well), for whatever reason. This ruling also has much wider implications – it means that no state has a right to self defense against attacks carried out from the territory of a second state which denies supporting the attackers. In such a situation, should diplomatic measures prove ineffective, then unless the UNSC intervenes (which it may not, for various reasons, and even if it does it may not be in a timely or satisfactory manner), that first state has no recourse. See also paragraph 34 of Judge Higgins’ and paragraph 6 of Judge Buergenthal’s separate opinions.

2) Some provisions of international law can be suspended in the case of military necessity. This is addressed in paragraph 140. The Court stated Israel could not invoke that necessity in justification, because “In the light of the material before it, the Court is not convinced that the construction of the barrier along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction”. However, nowhere does the Court explain why the Israeli argument is not convincing.

3) In addition, the Court ruled on the barrier without taking into account developments since the passing of UNGAR ES-10/14. Namely, the reduction in successful terrorist attacks due to the barrier, and the fact that the route of the barrier was significantly changed in the interim. Both of these fact bear directly on paragraph 140.

4) In paragraphs 114-137, the Court discusses at length various violations of international law and hardships for the Palestinians caused by the fence. Nowhere is that section is terrorism mentioned, except for paragraph 116 which mentions it as an Israeli “claim”. For that matter, throughout the ruling, terrorism against Israel is mentioned only in passing (see also paragraphs 3 & 7 of Judge Buergenthal’s separate opinion). This is akin to trying a man for murder, and then failing to even address his claims that it was done in self-defense. Some have argued that the Court should not have addressed terrorism because the issue before it was the legality of the barrier, and terrorism is irrelevant to that. But if that were so, the Court should not have ruled on the settlements’ legality or lack thereof (as it did in paragraph 120), since that is even less relevant to the narrow issue of the barrier.

5) In determining the precise status of the Territories, the legal significance of the Green Line which demarcates them is surely relevant. Article VI, paragraph 9 of the Israel-Jordan Armistice Agreement of 1949, which established the Green Line, states:

“The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.”

In other words, the Green Line is explicitly not a border. But while paragraph 72 of the ICJ ruling mentions this, nowhere does the ruling address its significance.

6) The applicability of the 4th Geneva Convention – Article II of GC4 states:

“In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”.

In paragraph 95, the ruling determines that this means that GC4 applies in any situation where there is a conflict between two signatories and a territory is occupied, regardless of whether the territory in question belongs to one of them. This is, frankly, a considerable stretch of the language of the Article. Also, the Court never addresses Article IV of GC4, which states:

“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. “

In other words, the Court ruling that GC4 applies creates a paradox which can only be resolved in two fashions; either the Jordanian annexation of the West Bank was legitimate, in which case Israel has precedent on its side, or the absurd conclusion that GC4 applies to the territory but not to the people living on it.

7) The Court failed to address Israel’s response that it took measures to avoid various violations of international law the ruling accused it of (see paragraph 8 of Judge Buergenthal's separate opinion).

9) Both Judge Buergenthal's and Judge Owada’s separate opinion state the Court did not have all the information it needed (though the latter states he still agrees with the ruling). It should be noted that, when the Court functions in an advisory capacity, it is more akin to a commission of inquiry. Unlike in a civil trial, where it is up to the advocates for each side to provide the relevant facts, the ultimate responsibility for determining the facts of the matter lies on the Court itself (technically speaking, in an advisory case there aren’t any “sides” at all – the various witnesses are helping the Court reach a decision on the matter). The fact that Israel chose not to participate does not absolve the Court of its responsibilities to that end, and Israel’s representative was not the Court’s sole source of testimony which might help Israel’s case. There are any number of public documents the Court could have perused (such as the Israeli Supreme Court decision on the matter of the barrier). In addition, Article 66 of the Statute of the Court allows it to summon witnesses on its own initiative. And so on. The Court did not do any of this.

1) ICJ decision, separate opinions, and other associated documents
2) Statute of the Court
3) Rules of the Court
4) 4th Geneva Convention
5) UNGAR ES 10-14
6) Israel-Jordan Armistice Agreement
7) UN Charter
8) IDF presentations on the barrier

[Coastie for Truth]

4. Very well written

My international law base is Burdick H. Brittin's "International Law for Seagoing Officers" ("International Law for Dummies, Naval Academy Middies, and Coast Guard Academy Cadets") and foraging around in Louis Henkin's book.

The ICJ decision misapplied basic international law. As eyl points out:

In determining the precise status of the Territories, the legal significance of the Green Line which demarcates them is surely relevant. Article VI, paragraph 9 of the Israel-Jordan Armistice Agreement of 1949, which established the Green Line, states:



The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.



In other words, the Green Line is explicitly not a border. But while paragraph 72 of the ICJ ruling mentions this, nowhere does the ruling address its significance.

This is not some trumping of Israeli law by international law. This is creating new legally incorect but "politically correct" flavors of international law.

This decision is fatally flawed. Activist Political Judges, rewriting Treaties ad hoc, to support a specific political agenda (even worse then Scalia, Thomas, or Boyle).