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THE WEST BANK WALL
Professor Anthony D'Amato
Northwestern University School of Law
JURIST Guest Columnist

PART I: JURISDICTION

The International Court of Justice (ICJ) has opened hearings on the legality of the wall being constructed by Israel on Palestinian territory. The ICJ meets at the request of the United Nations General Assembly for an advisory opinion on 鍍he legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem The Court has received to date 48 responses from governments including Israel, the United States, the Russian Federation, the major European and Arab states, Japan, and even Cuba, although not China. After much internal debate, Israel submitted a written statement objecting to the Court痴 jurisdiction but explicitly refusing to address the merits of the case. The United States also objected to the Court痴 jurisdiction. But William H. Taft IV, Legal adviser to the State Department, never mentions in his statement whether or not the United States will participate in hearings on the merits of the case in the event that the Court decides to hold hearings on the merits. Apparently the United States has decided to keep its options open.

The first question we should ask is the most obvious, namely, how can the United States and Israel object to the ICJ痴 consideration of whether to issue an advisory opinion? Such an opinion has no binding effect. It is simply a request made by the General Assembly for help on the complex legal issues involved in Israel痴 construction of a wall which, at present, is approximately 120 miles in length. To be sure, the General Assembly痴 motives are hardly neutral; it is visibly upset by Israel痴 acts and wants an authoritative statement as to their legality. However, everyone knows that the General Assembly and the Security Council are political bodies. That political considerations would motivate their resolutions is neither shocking nor legally disabling.

Although the United States couches its arguments in polite terms, various relatively unsubtle threats are included. It cautions the ICJ not to upset the ongoing politically sensitive and delicate negotiation process (the 迭oad Map). The Court is urged especially to stay away from 菟ermanent status issues (translation: who owns what territory?) because addressing them would place 都ubstantial, new constraints on the ability of Israel and Palestine to negotiate with one another. Indeed, the United States goes on, if the Court deals with territorial issues, the Court itself would be creating 渡ew obstacles to peace-making efforts. And if the Court does not heed the United States advice on these matters, it 田ould further reduce the prospects for ending violence. Is the United States actually threatening to hold the judges of the ICJ morally responsible for lives that may be lost to suicide bombers if the Court dares to issue an advisory opinion that interferes with the negotiation process? If so, is this any different from the general position of the Bush Administration on matters of international law-an attitude most recently exemplified by its attempt to deny the prisoners in Guantanomo their right to legal counsel and their right of habeas corpus, and in the Administration痴 unrelenting campaign to eviscerate the jurisdiction of the newly established International Criminal Court?

I think the United States is correct in saying that an advisory opinion by the ICJ on the explosive issue of the legal consequences of the wall being erected by Israel will have a noticeable impact upon the negotiation process. After all, the substance of much of the negotiations is devoted to lawyers arguments about the rights of the parties under international law. An opinion by the ICJ on this legal issue will obviously improve the negotiating position of one of the parties and dminish the negotiating position of the other party. A legal opinion cannot help but impact the negotiation process. How much weight the opinion carries will depend on its own legal persuasiveness. If both sides fervently believe that their own legal position is correct, they should expect that the ICJ will vindicate their stance. To withdraw from arguing the case (as Israel has) implies that it believes its own legal position may be weak.

The United States makes a somewhat better argument that territorial issues concern only Israel and Palestine and that the ICJ should not use the apparatus of an advisory opinion to render what could be taken as a definitive legal decision on the demarcation of the border between Israel and Palestine. However, this argument assumes that the General Assembly itself has no stake in this bilateral controversy. In my view, the controversy does not solely concern Israel and Palestine. Palestine, it will be recalled, was a Mandate under the League of Nations. Unlike the League痴 other mandated territories, it was not transferred to the UN Trusteeship Council when the League dissolved in 1946. But the lack of transfer does not mean that the mandate expired, any more than the death of a trustee would terminate a trust. The 殿dministration of the Palestine Mandate legally devolved upon the General Assembly. In 1947, the General Assembly passed a resolution partitioning the Mandate into two areas, one to be governed by a new Jewish state and the other to be governed by a new Arab state. Although Israel became a state in 1948, Palestine did not become a state. In my reading of this (admittedly complex) history, the Palestine Mandate has therefore never legally been terminated. Until it is terminated-that is, until a new Arab state is created-the General Assembly retains its supervisory powers over the Palestine territory. While the extent of that supervisory power is disputable given all the events that have occurred since 1947, at the very minimum it entitles the General Assembly to retain a legal interest in the proper disposition of the mandated territory. Hence its request for an advisory opinion in this case-unlike the various precedents cited by the United States on the issue of refraining from dealing with territorial questions in advisory opinions-stems from a present legal interest actually residing in the General Assembly.

This legal interest-expressed in the question the General Assembly asked regarding the 斗egal consequences arising from the construction of the wall-necessarily includes the issue of who owns the land upon which the wall is being constructed. It痴 hard to see how the question put to the Court could be answered if it took seriously the United States argument that it should stay away from the territorial issue.

Israel痴 Legal Adviser, Alan Baker, submitted a written statement to the ICJ that is almost four times as long as the statement of the United States. Baker also argues that the advisory opinion would interfere with the Road Map process. However, in addition he attacks the legal right of the General Assembly to request the advisory opinion, contending that the Security Council is seised of the matter and therefore the General Assembly has no right to encroach upon the powers of the Security Council. Although the argument is well-researched, it is hard to see how it could have any persuasive power when it is raised by Israel. If the Security Council raised the matter and asked the ICJ for a ruling that the General Assembly has no power to ask for an advisory opinion on the Palestine issue, that would raise interesting constitutional issues of the proper interpretation of the Charter of the United Nations. But in the absence of a complaint by the Security Council, I do not see how Israel has standing to raise such an objection.

Israel makes some terminological objections which I think are well-taken. It argues that the term 努all is prejudicial since it connotes a kind of imprisonment of the Palestinian people. However, Israel痴 own term-都ecurity fence-would also have prejudicial connotations. Even if Israel argues that the wall was erected solely for security reasons, the Palestinians argue that it is a land-grab scheme. Perhaps the Secretary-General痴 term for the wall in a short statement filed with the Court-鍍he Barrier-should have been used by the General Assembly in framing its question.

Israel also objects to the terms 登ccupying Power and 徹ccupied Palestinian Territory in the General Assembly痴 question to the Court. The territorial issue seems to be subsumed within the term 登ccupied, for if Israel is occupying the land upon which the Barrier is being erected, then ownership of that land belongs to Palestine. I am a great believer in the power of words. Israel ought to participate in the merits of the case and rise to object every time the words 努all or 登ccupied are uttered during the course of oral argument. (Because the concepts represented by these words need to be articulated, Israeli counsel could insist that the phrases should be 鍍he alleged wall and 鍍he alleged Occupied Territory.)

Instead Israel has submitted its statement objecting to jurisdiction and promptly walked away. Perhaps it refused to participate out of fear that participation in the ICJ痴 hearings would lend legitimacy to them. Two decades ago the United States refused to participate in the case of Nicaragua v. United States; the result was a resounding defeat. The defeat was not due to the American boycott of the proceedings, but active argument by the United States could have changed the result and at least would have produced a written opinion that was more sensitive to the American position. Yet the United States refused to participate in the Nicaragua case out of fear of lending legitimacy to the ICJ.

PART II: THE MERITS


Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law. He was lead counsel for Milan Kovacevic, the first person charged with the crime of genocide by the International Criminal Tribunal for the Former Yugoslavia at The Hague.

February 24, 2004

GUEST COLUMNIST

JURIST Guest Columnist Anthony D'Amato is Judd and Mary Morris Leighton Professor of Law at Northwestern University School of Law. He writes in the areas of international law and jurisprudence, focusing upon their underlying analytic structure. His most recent books include The Alien Tort Claims Statute: An Analytical Anthology, European Union Law Anthology, International Law: Process and Prospect (2nd ed.), Analytic Jurisprudence Anthology, International Intellectual Property Law, and volume 2 of his collected papers, published by Kluwer Law International. His first book, The Concept of Custom in International Law, published in 1971, is generally regarded as a classic and is one of the most widely cited works in international law.

Professor D'Amato has taught courses in constitutional law, environmental law, international law, international intellectual property law, jurisprudence, justice, legal ethics, and torts, and since 1976 has lectured on professional ethics at Northwestern University Medical School. He has on occasion taught courses on the Evanston campus in the departments of Philosophy and Political Science. He is founder and chair of the Human Rights Interest Group of the American Society of International Law, and past president of the International Law Section and the Jurisprudence Section of the Association of American Law Schools. He has been active in the American Bar Association, serving as a member of the council of the Section of International Law and Practice, as chair of the Committee on International Courts and the Committee on Independence of Lawyers and Judges. He has served as a member of the board of editors of the American Journal of International Law and is advisory editor of the Journal of International Legal Studies.

Professor D'Amato has stated his belief that the occasional practice of law helps make more realistic his teaching and writing. Notable among the cases he has litigated are the only court of appeals victory against the government in a military service case during the Vietnam era, the only court of appeals victory against a foreign sovereign for a governmental tort committed against an American citizen, and the only case litigated (and won) by an American attorney in the European Court of Human Rights.