Palestinians get their day in court

Wednesday 3 March 2004, by Mustafa BARGHOUTI

Following a request from the United Nations General Assembly in December last year, the International Court of Justice in The Hague will offer an advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

Through 36 years of occupation the principles of the United Nations have been noticeably absent from the West Bank and Gaza Strip. Under Israeli military authority the Palestinian population has endured the violence of war, displacement, hunger, humiliation, and now finally ghettoization and imprisonment. They have suffered throughout these 36 years under the watchful eyes of the international community yet with no apparent recourse to international justice.

Now, Israel has launched an immense defamation campaign in an attempt to de-legitimize the highest judicial body of the United Nations and deny the Palestinians access to any form of official protest. Up until now Israel has portrayed the Palestinians as conspicuously avoiding diplomatic channels of protest. Having spent years publicly pressurizing for a recourse to diplomacy rather than violence, Israeli derision of the impending case not only suggests an element of panic but leads one to question what authority exactly Israel does recognize other than its own military might.

Although the majority of the World’s nations will support the case against the wall, Israel’s furious diplomatic activity to sabotage the hearing at The Hague, has resulted in 33 countries submitting formal objections contesting the court’s authority to rule on the issue. These include the United States, most of the EU member states, including Britain, France and Germany, as well as Russia, and Australia. Although the majority of these nations, the US included, have in fact expressed disapproval at the wall’s current route, an ICJ ruling against Israel in this case would set a precedent that many governments fear will be followed.

Israel has called for a separate hearing preceding the case against the wall itself to dispute the court’s jurisdiction. Despite Israel’s international support however, court sources have rejected this possibility, and stressed that the court will decide independently whether to take the case. If, as expected, the ICJ judges do deem the issue to lie within its jurisdiction, this in itself could have severe ramifications. The fear within the Sharon government is that Israel could find all her actions in the occupied territories subject to UN oversight.

Not only this, but if the ICJ accepts the case, Israel must expect to find her international support dwindling. The wall has been widely condemned throughout the international community. Despite its suspicion of international tribunals and broad sympathy for Israel’s security concerns, even the Bush administration has described the wall’s present route as detrimental to the peace process. US Secretary of State Colin Powell has suggested that by ignoring the recognized 1967 border and building the wall deep into Palestinian territory, Israel appears to be prejudging subsequent negotiations on the boundaries of a Palestinian state: precisely the argument put forward by the 90 nations supportive of the case.

Despite Colin Powell’s observations the US administration maintains the matter should be dealt with through negotiations, the Wall purportedly falling under the purview of final status issues. Palestinians fear an acceptance of this way of thinking would have disastrous effects on the eventual make-up of an independent state. Not only does it hand the Israeli government a further bargaining chip, in the event that such final talks are ever reached, in the meantime it allows the Sharon government freedom to continue with the construction of the wall along a route, which itself provides sufficient evidence of Sharon’s political motives to establish de facto borders.

In recent months, the Israeli Prime Minister has made insinuations of taking steps towards a unilateral disengagement. These steps include imposing a "temporary" boundary in the West Bank - the boundary being the very permanent concrete Wall Israel is building that redraws the state of Palestine annexing 58% of the West Bank. Leaving just 42% of the land to the Palestinians will simultaneously put an end to any possibility of implementing a viable two state solution. The unilateral disengagement plan, of which this apartheid wall is the fundamental tool, is thus intended to predetermine the outcome of all negotiations, the apartheid Wall constituting a political border defining a Bantustan-state for the Palestinians.

However, the laws of the fourth Geneva Convention governing this issue remain clear cut. Despite all concerted Israeli attempts to sabotage and discredit the trial in The Hague next month, the court is more than likely set to reject Israel’s arguments and rule the Wall a violation of international law. Most observers consider this all but certain. Beyond the fact that the wall is contravening numerous international and humanitarian laws the basic facts clearly establish that the very location of the wall, being built on occupied Palestinian land, is illegal. Indeed, evidence given on Monday at a trial in Israel’s own Supreme Court - an event considered by many to be a "dummy run" for the proceedings at the ICJ - prompted the Sharon government to make a statement that they failed to predict the extent to which the lives of innocent people would be affected conceding that the route of the wall within the West Bank may now need correcting. Behind the scenes the Sharon government is preparing itself for defeat.

But what will happen then? As Israeli Justice Minister Tommy Lapid appears to recall all too clearly it was a similar decision of the same ICJ that led to pressure coming to bear on Apartheid South Africa. The minister has already voiced concerns over the damage this trial could cause Israel’s international reputation as well as the possibility that a judgment could expose the country to a South African apartheid style boycott. Indeed this would not be an unfair punishment, Israel is indeed guilty of imposing a form of apartheid and the precedents set in dismantling the former criminal apartheid regime in South Africa present a usable model which could realistically lead to a real and lasting Israeli/Palestinian peace. Unfortunately, enforcing similar successful international sanctions as those against South Africa that led eventually to Namibia’s independence will be a great deal harder to impose upon Israel.

The advisory opinions of the World Court are not binding. An expected judgment that the barrier violates international law could see the UN move to impose sanctions. The General Assembly however would then have to vote on this issue through another resolution, the sanctions would only be binding if the resolution were to pass the Security Council which of course is unlikely considering the probability of a US veto. Yet, regardless of this, any decision taken by the International Court will mean that a new effort to enforce international law has at least begun.

Israel has a history of flouting international law and creating facts on the ground that constitute serious road blocks to peace. Any judgment from the International Court of Justice must be supported and enforced by the international community and in so doing, shatter Israel’s belief that she stands above the confines of international law. The charter of the United Nations extols a promise to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; as long as countries like Israel are allowed to consider themselves above international law, no person can expect these values to govern the preservation of their own peace and security.

Dr. Mustafa Barghouthi
Secretary General
Palestinian National Initiative

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