February 19, 2004
Four days from now, the International Court of Justice will begin hearings on the legality of Israel’s Wall, even though the decision should be a foregone conclusion.
The comments of South African President Thabo Mbeki on Dec. 5 to Agence France Presse might well be taken as the Court’s inevitable judgment:
“The Wall is there to keep Arab and Jew apart. It has nothing to do with security or protection. It should be identified for what it is, an apartheid wall and it should be dismantled like apartheid had to be.”
Israel, on the other hand, would have the world believe the Wall is a political matter, not a judicial one, and so it is boycotting the proceedings. Such behaviour is reminiscent of the Soviet Union when the west challenged it about its mistreatment of dissidents.
In fact, even the Israeli government knows the Wall is indefensible. Irit Kahan, head of the international division in Israel’s attorney general’s office admitted that the planned route was “problematic” and that the government was too slow to react. “If we had changed the route earlier it could have had an effect [on the hearing]. It would have taken the wind out of their [the opponents’] sails.”1
Israel does not deny that it has destroyed Palestinian homes and businesses to build the Wall. On Aug. 21, 2003, the entire commercial centre of Nazlat’Isa in the Occupied West Bank was razed in a daylong orgy of demolition.
Some 15 bulldozers destroyed more than 100 Palestinian businesses and five houses to make way for the Wall. The result left the town and surrounding areas completely isolated. Modifying an illegal act does not remove an act’s inherent illegality.
But the fact that the legality of the Wall is even being debated raises the possibility that coercion and propaganda could pervert the ICJ’s opinion. Already more than 33 servile governments have filed statements in support of Israel’s preposterous position.
In another example, the U.S. last year coerced Belgium into rewriting its Universal Jurisdiction Law so that Ariel Sharon could not be indicted for war crimes related to his involvement in the 1982 Sabra and Shatila massacres. If the law were not changed, Sharon could be tried on Belgian soil, and this meant that Belgium could try anyone for war crimes, including Americans.
Secretary of Defence Donald Rumsfeld told Belgium that unless it rewrote its law, the U.S. would refuse to finance a new NATO headquarters and consider barring its officials from traveling to NATO meetings in Brussels. Belgium capitulated.
The magnitude of Israel’s criminality has been meticulously outlined in a 57-page legal opinion by Oxford Public Interest Lawyers on behalf of the Association for Civil Rights in Israel.2
Here are but three definitive proofs:
• “Where the Barrier is constructed on appropriated public land, it violates Article 55 of the Fourth Geneva Convention, which requires an Occupying Power to deal with public land in trust for the occupied population [the Palestinians].
• The Barrier violates Israel’s international obligations to ensure the general welfare of the civilian population in Occupied Territory (Hague Regulations, Reg. 43), as well as to ensure medical treatment and public health (Arts. 16, 17, 20, 21, 22, 23, 55 and 56), employment (Arts 39 and 52), the care and education of children (Art. 50), food supplies (Art. 55) and relief schemes (Arts. 59-62).
• By deliberately separating Palestinian communities and subjecting them to unprecedented measures of physical control and criminal suspicion, the Barrier exhibits the characteristics of collective punishment, contrary to Regulation 50 of the Hague Regulations and Article 33 of the Fourth Geneva Convention.”
What the lawyers said about the Barrier, or Wall, is applicable to the occupation in general—appropriating public land, violating obligations regarding Palestinians’ health and welfare, cutting off Palestinian communities, etc. Moreover, the Wall exacerbates the theft of Palestinian territory according to UN Security Council Resolution 242, which Israel already refuses to acknowledge.
This raises the question of why the ICJ should be asked to render an opinion on a subject that has already been decided, and which Israel has already conceded. As I wrote last time, Israel’s conduct in the Occupied Territories amounts to genocide according to the Rome Statute of the International Criminal Court, and the Wall is merely a specific instance of this genocide.
The UN General Assembly should have asked the ICJ to declare the Wall illegal based upon humanitarian and legal precedent, specifically the Fourth Geneva Convention, to which Israel is a signatory.
Despite its boycott, Israel is planning an emotional propaganda campaign to coerce the Court into ruling that the Wall is a political necessary for basic self-defence. But as the lawyers wrote: “Israel is entitled to defend its territory, and its military and administrative functions in the Occupied Territories, from militant or terrorist attacks. However, any security measures must be in strict conformity with Israel’s obligations under international law.”
The Court should refuse to entertain any evidence or testimony that places Israel’s political self-interest above international law, thereby ensuring that justice, not jingoism, will prevail.
The failure of international bodies to enforce humanitarian law in defence of Palestine can be summed up in the famous aphorism by the 17th-century British moral philosopher Thomas Hobbes: “Covenants without the sword are but words and of no strength to secure a man at all.”
Until the international community is willing to take on Israel in more than just words, international humanitarian law will be nothing more than polite words that have no power to protect people at all.
Notes:
1. “Chirac slams separation barrier as ‘illegal,’”Daily Star, Feb. 14, 2004.
2. Legal Consequences of Israel’s Construction of a Separation Barrier in the Occupied Territories, (Oxford Public Interest Lawyers (OXPIL): Oxford University, February 2004), “Executive Summary,” Paras. 7-9.
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