Saturday, July 10, 2004

Feature: Another Brick in the Wall - Kerry Condemns ICJ Ruling on Israeli Wall

John Kerry released an official statement on the Wall. Other liberal politicians have also condemned the ruling along with the Bush Administration and Israel. I'm of the opinion that Kerry and the others are completely wrong on this topic. It won't keep me from supporting Kerry for President, but I whole-heartedly oppose him on this subject, and I encourage not to swallow their objections, either. One does not have to support every policy of one's Presidential choice, nor abandon the convictions of one's conscience or one's right to advocate for a moral foreign policy in order to defeat Bush.

Kerry proclaims, as do Israel and Bush, that the International Court of Justice hasn't any jurisdiction over this matter. This is an attempt to muddy the waters and a legal absurdity. The Court's jurisdiction is not like that of a domestic court. Unlike domestic courts, the ICJ may issue advisory opinions when requested by the General Assembly or the Security Council. As requested by the UN General Assembly in 2003, and as provided for in Article 96 of the UN Charter, and Article 65 of the Statute of the Court, the ICJ has issued such an advisory opinion. To say the ICJ hasn't jurisdiction over this matter is absurd; it is like saying that our Supreme Court hasn't jurisdiction over cases and controversies arising under our Constitution.

While it is simply untrue and textually inaccurate to claim that the Court lacks jurisdiction, Kerry, Bush, and the Israeli government all do so. They do this solely to exploit people's expectations as to the coercive power of domestic courts, attempting to impugn the underlying legal ruling of the Court. Few wish to see Israel pushed around or deprived of legitimate security measures, but this prospect is a red herring. The ICJ cannot force any action on their rulings, compliance is voluntary. In the UN system, only the Security Council has the ability to back up an ICJ ruling with enforcement. The ICJ's ruling doesn't lack jurisdiction, it lacks force. The ICJ has simply ruled on how international law fits to the facts of the case. What is to be done about it is up to others to decide; what will almost certainly be done is nothing at all. The United States will almost surely block any implementation of the ruling in the Security Council.

So why is the ICJ ruling so important if it won’t be enforced? The Bush Administration’s spin on the jurisdictional issue is that the ICJ is not the appropriate forum for resolution of the conflict. They claim that the ‘Roadmap’ is the appropriate mechanism by which to settle all matters regarding security in the region. Yet the ‘Roadmap’ is only a confidence building negotiation process that does not require any resultant settlement to conform to any particular international legal standards. In essence, Bush is arguing that international law is irrelevant to the Palestinian issue, and to the Wall in particular; not a terribly surprising position from the Bush Administration, actually. What the ICJ ruling does, which discomfits the Bush Administration and others who uncritically support Israeli government’s aims, is to lay down a baseline by which to judge the legitimacy and justice of any political solution regarding the Wall. The ICJ does not, as Bush implies, attempt to preempt or displace any political effort to achieve a solution.

The Bush Administration’s insistence upon the ‘Roadmap’ as the only legitimate process is disingenuous because it recognizes no agreed standard against which to measure the fairness and legality of this aspect of an ultimate Arab-Israeli settlement. Bush’s position presumes that whatever emerges from a negotiation between two inherently unequal bargaining partners, brokered by extremely biased sponsors, will somehow be fair and legal. The community of nations is signaling by the Court’s ruling its disagreement with that assertion. The world is tiring of an Arab-Israeli peace process dominated by the very country which is the biggest barrier to peace in the region: the United States. This ruling demonstrates the international community’s desired standard of justice in this matter is positive international law, not the exigencies of Israeli or American politics. This ruling seeks to limit Israel’s and America’s ability to force an unjust settlement regarding the Wall. This is why the current extreme right wing U.S. and Israeli governments are so vehement in their attempts to discredit the ruling; the ICJ has sufficient moral authority to de-legitimize any settlement which does not substantially conform to its requirements. That makes achieving certain goals in the region, a de facto Greater Israel in the West Bank, for instance, much more difficult. It is shameful and sad that Senator Kerry has decided that America’s interests lie with a defiant and radical minority within Israel. All Israelis rightly, and understandably, want security and peace, but those who wish to dispossess and destroy the Palestinian people to achieve it are a minority. I am disappointed that Senator Kerry has consistently failed to lend his support to those in Israel who truly want peace on terms that are both equitable and legally sound. He seems intent to steer his incipient Administration’s course on Palestine down the same disastrous and unproductive road of every President since Carter.

What of the substantive claims of the ruling’s opponents? They are exclusively couched in terms of combating Palestinian terrorism. Kerry’s leading argument against the substance of the ruling is that he believes that the Wall is a 'legitimate response' to terror, that the Wall 'only exists in response' to terrorism, and that the Wall is a 'tool in Israel's fight against terrorism'. This is an incomplete and misleading analysis of the purpose and effects of the Wall. It cynically taps into the untouchable political status of anti-terror measures in current American politics to justify the unjustifiable. It will, unfortunately, be largely representative of the positions of both the Democrats and the Republicans in days to come for reasons ranging from ideological and religious conviction, to craven political pandering.

Mr. Kerry statement reads as if he, a lawyer, does not understand the meaning of the word ‘legitimate’. Legitimate means "Accordant with law or with established legal forms and requirements." This Wall is not legitimate, it violates a broad swath of international laws. The ICJ’s ruling (full documentation here) holds that the Wall violates the Hague Regulations of 1907 and the Fourth Geneva Convention by denying freedom of movement to the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights. The Wall also impairs the Palestinians' right to work, to healthcare, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child. Lastly, the Court finds that the Wall, coupled with the establishment of Israeli settlements, is altering the demographic composition of the Occupied Palestinian Territory in violation of the Fourth Geneva Convention and relevant Security Council resolutions. No, Mr. Kerry, this Wall is not ‘legitimate’. It represents such an injustice that in years to come, an American President will stand before it and call upon the Israeli Prime Minister to "tear down this Wall!"

The Wall, ripping though occupied territory and cutting communities inside the territories apart, is designed to control the movement of civilian populations within the occupied territories, as well as into Israel. It certainly provides a measure of self-defense for the people of Israel, and terrorist attacks have slowed since construction began, but it does not 'only' exist in response to terrorism. Rather, its existence is also intended to weaken and divide the Palestinian Arabs as a society, and to facilitate the permanent, de facto colonization of portions of the West Bank against international law and universal standards of morality.

Nor is the Wall just a tool in a righteous fight against terrorism. It is also a tool in furtherance of Israel’s apartheid policies. It is a tool for the economic and cultural destruction of the Palestinian Arabs, for dictating their daily movement, their welfare, and their destiny as a people. It is a tool for divesting them of their agricultural lands, their primary water supplies and their freedom. The Wall is a tool for collective punishment of an innocent civilian population. The Wall is a prison for a Nation. If the Wall were entirely on Israeli territory, the ICJ’s ruling would be irrelevant, the Wall would be legal under international law and it could be fairly characterized as being primarily for the purpose of defending against terrorism. The fact that it is not on Israeli territory, given that such a barrier could provide the substantially the same protection of Israel’s legitimate security interests is a profound indictment of the Wall’s intent.

Kerry emphasizes his record in opposition to the Court’s cognizance of this matter by referring to a letter sent to UN Secretary General Kofi Anan (PDF) on 4/1/04 along with 77 other Senators. The letter urges Anan to reverse his support of General Assembly resolution S10/14, which asks the Court for an advisory opinion. However, the Court had already taken up the case on 2/23/04. The letter was beside the point by the time it was transmitted; it was nothing but political grandstanding. What is significant about this letter is that 78 Senators were willing to sign a letter having no practical significance and which make them look like fools. Their signatures are testimony of how difficult it is for any American politician to take a position critical of the Israeli government, even its actions are egregious or immoral. Those 78 Senators all should wear a scarlet P, for Panderer.

Kerry notes that the U.S. is discussing the exact route of the fence so as to minimize the hardship on the Palestinians. It’s generally recognized that Israel will do whatever it deems necessary to ensure its security, despite anything the U.S. may do or say. Partly because our politicians are so craven that they cannot even speak out against even the most extreme abuses of human rights by the IDF and the Israeli government. To expect the U.S. government to act as an effective protector and advocate for the interests of the Palestinian people in this matter is beyond naive; it is an insult. Besides, the Israeli courts are now in a much better position than we to protect that limited range of interests because of a recent ruling in the Israeli Supreme Court.

The Israeli Supreme Court’s recent case, Beit Sourik Village Council v. The Government of Israel, held that a section of the fence near Jerusalem was illegal. Kerry claims the ICJ’s ruling is superfluous because the Israeli Court considered ‘the very same issues’ in that case. This assertion is clearly wrong.

All agree, even the Palestinian petitioners in the case, that were the Wall entirely within Israel’s 1967 armistice boundaries, the Wall would be a wholly legal under international law and exclusively an internal Israeli issue. However, the Wall is located primarily on occupied territory, in what Israelis term ‘the Seam’, and thus the Wall’s existence is subject to the dictates of international law, in addition to Israeli law. The Israeli Supreme Court freely acknowledges that international law applies to the Wall and West Bank, but its ruling does not seriously contemplate the legality of the Wall’s existence. The divergence between the ICJ and the Israeli Supreme Court is that the latter determined that the Wall’s purpose was military in nature, and thus acceptable under international law, not political, making its existence illegal. That determination is a major concession to the Israeli government’s characterization of its own motives; a concession that the arguably more objective ICJ was not willing to make. Indeed, the seeming disconnect between the actual effects of Israeli settlement, transportation, and other infrastructural policies in the West Bank and the formal requirements of Israeli law is often striking. Israeli law provides that the planning and execution of such projects must not contain a Zionist purpose to annex the occupied territories, yet such purposes are arguably manifest in policies which Israeli courts routinely find formally acceptable. The Supreme Court’s decision to ignore the political implications of a barrier more formidable the Berlin Wall ever was is a striking example of ideology hiding behind formalism. When the Soviet Union claimed that the Berlin Wall had no political purpose or effect, and was solely a security measure, people rightly mocked the assertion. Yet the American political establishment accepts the identical assertion from Israel with straight faces, and condemns any who would question that version of reality.

That letter from 78 U.S. Senators, including Kerry, to Kofi Anan, charging that the ICJ is politicizing the Wall becomes richly ironic when one comes to understand that it is the Israeli Supreme Court’s decision that incorporates, unchallenged and unexamined, the highly political assertion of the Israeli Defense Forces and government that the Wall’s purpose is solely military. The Israeli Supreme Court concedes that if the purpose of the Wall were political, that it would be impermissible under international law, exactly as the ICJ finds. They state: "The Separation Fence cannot be motivated by a desire to "annex" territories to the state of Israel. The purpose of the Separation Fence cannot be to draw a political border." The ICJ, analyzing the actual effects of the Wall, simply held that the purpose of the Wall included such impermissible political motives, making the Wall illegal.

The Israeli Supreme Court, having ruled that the existence of the Wall on occupied territory is legal and a legitimate security measure, moved on to consider the exact route of the Wall and the proper compensation of those whose lands were directly taken or adversely affected by its construction. It was these aspects of the Wall’s route and construction upon which the Israeli Supreme Court ruled. In many ways the ruling is closely akin to eminent domain case. The Israeli Court drew from the requirements of the Hague Regulations and the Geneva Conventions regarding the duties imposed on an occupying military power to decide that the Wall project must not constitute an unjustified hardship on the affected Palestinian populations. The Court also created an ad hoc proportionality test to balance military necessity against hardship on the occupied population with the result being a test to see if a particular placement of or taking for the Wall is justifiable. The court states, "[t]he question is whether the Separation Fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the Fence." The result of this ruling might affect the exact course of the Wall when there is a manifest injury which cannot be balanced by military need, but it doesn’t in any way challenge the Wall’s existence in the West Bank. Thus, it categorically does not address the same issues as those addressed by the ICJ’s ruling as Kerry claims, even though it is informed, in part, by the same body of international law.

I support Senator Kerry for President. The shameful sophistry, half-truths, outright lies, and despicable pandering in which he is engaging about this subject are the symptoms of a moral disease that infects much of our political culture: Zionitis. It is characterized by the loss of all critical and moral faculties in otherwise respectable men when the subject of Israel arises. Those who are resistant are to be admired and commended, those who are not are to be despised or pitied depending on whether their infection was voluntary or involuntary. I believe, and I hope, that Senator Kerry’s vector was not self-imposed, and that given time, and the salubrious boost to political immunity the office of Presidency can afford a man, he can shake off this debilitating disease and recover those portions of his obviously fine mind that have been impaired.

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