The World Is
Knocking On
Israels Door
By Sam Bahour
20 July, 2004
Countercurrents.org
When
The Hague speaks, the world listens,
especially when a threat to international peace is involved. At least
this was the case until the International Court of Justice took aim
at Israel. At issue was the Israeli governments building of a
separation wall on occupied Palestinian lands in the West Bank, which,
in essence, has caged Palestinian communities into ghettos reminiscent
of the Jewish ghettos in Europe during World War II. The now infamous
separation wall is center stage of an international campaign aimed to
end the illegal Israeli military occupation of the West Bank, Gaza Strip
and East Jerusalem - all areas occupied by force in 1967 when Israels
military assumed control, the same way the US entered Iraq and assumed
control of everyday life there.
The United Nations
General Assembly was faced with complaints that the separation wall
that Israel is building had nothing to do with Israels security
and everything to do with Israel grabbing more Palestinian lands by
force and creating impossible living conditions for Palestinians. Israels
real intention is to continue the strangulation of the Palestinians
in hopes that this would lead to their subjugation and force Palestinians
to dismiss their international right to statehood, self-determination
and right to return. The separation wall is Israels final solution
for all those Palestinian families that were displaced by Israels
creation in 1948 and subsequent military aggression in 1967 and afterwards.
On 8 December 2003,
the United Nations General Assembly requested what is called an Advisory
Opinion from its legal arm, the International Court of Justice.
Immediately, Israel and the United States claimed that the International
Court of Justice did not have jurisdiction to rule in the case. Israel
and the US lost this argument when the judges unanimously, all 15, including
one American judge, decided that the Court does have the full right
and jurisdiction over the case.
The outcome of hearing
the case against the Israeli separation wall was expected by all. All
involved knew that the wall, in and of itself, could not be discussed
in a vacuum, but rather the entire 37-years of Israeli military occupation
would be put on trail, including the decades long Israeli policy of
illegally building Jewish-only settlements and moving Israeli squatters
to live in these military compounds that are located in the midst of
Palestinian population centers and spread throughout the West Bank,
Gaza Strip and East Jerusalem. On 9 July 2004, the International Court
of Justice issued its Advisory Opinion, as requested by the UN General
Assembly. The Courts opinion stated the following, with American
Justice Thomas Buergenthal being the constant dissenting vote,
By fourteen votes
to one,
The construction
of the wall being built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, and its
associated régime, are contrary to international law
By fourteen votes
to one,
Israel is
under an obligation to terminate its breaches of international law;
it is under an obligation to cease forthwith the works of construction
of the wall being built in the Occupied Palestinian Territory, including
in and around East Jerusalem, to dismantle forthwith the structure therein
situated, and to repeal or render ineffective forthwith all legislative
and regulatory acts relating thereto.
By fourteen votes
to one,
Israel is
under an obligation to make reparation for all damage caused by the
construction of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem
By thirteen votes
to two,
All States
are under an obligation not to recognize the illegal situation resulting
from the construction of the wall and not to render aid or assistance
in maintaining the situation created by such construction; all States
parties to the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 have in Addition the
obligation, while respecting the United Nations Charter and international
law, to ensure compliance by Israel with international humanitarian
law as embodied in that Convention
By fourteen votes
to one,
The United
Nations, and especially the General Assembly and the Security Council,
should consider what further action is required to bring to an end the
illegal situation resulting from the construction of the wall and the
associated régime, taking due account of the present Advisory
Opinion.
These decisions
are part of the 59-page Advisory Opinion that has now been submitted
to the requesting party, the United Nations General Assembly. Israel
has already stated, even prior to the Advisory Opinion being issued,
that it will not abide by the Courts findings. The US is towing
the same Israeli line. This being the case, the question that begs an
answer is what can an entire community of nations do if the violating
party, Israel in this case, and the worlds sole superpower shun
an International Court opinion? Also, what can the UN General Assembly
do given that usually its decisions are non-binding, unlike the UN Security
Council where any of its members can use their veto power to stop any
action? When Israel is involved, the parallelization of any Security
Council action is real since the US historically and systematically
exercises its veto power to safeguard Israel from international actions
which aim to force it to an end its illegal occupation.
The next steps in
this landmark Advisory Opinion are currently high on the agenda of the
Palestinians as well as many countries of the world all seeking
to find a non- violent way to end the military occupation that has drained
the region and the world, let alone taken tens of thousands of lives,
both Palestinian and Israeli.
Under a United Nations
procedure called "Uniting for Peace," the UN General Assembly
can demand an immediate ceasefire and withdrawal of Israel from the
Occupied Palestinians lands. The General Assembly may also call for
a United Nations Peacekeeping Force to be sent to Palestine to protect
the Palestinians from the occupying power. The "Uniting for Peace"
procedure has been used before, by none other than the United States.
As explained by historian and author Jeremy Brecher,
When Egypt
nationalized the Suez Canal in 1956, Britain, France, and Israel invaded
Egypt and began advancing on the Suez Canal. U.S. President Dwight D.
Eisenhower demanded that the invasion stop. Resolutions in the UN Security
Council called for a cease-fire--but Britain and France vetoed them.
Then the United States appealed to the General Assembly and proposed
a resolution calling for a cease-fire and a withdrawal of forces. The
General Assembly held an emergency session and passed the resolution.
Britain and France withdrew from Egypt within a week.
The appeal
to the General Assembly was made under a procedure called "Uniting
for Peace." This procedure was adopted by the Security Council
so that the UN can act even if the Security Council is stalemated by
vetoes. Resolution 377 provides that, if there is a "threat to
peace, breach of the peace, or act of aggression" and the permanent
members of the Security Council do not agree on action, the General
Assembly can meet immediately and recommend collective measures to U.N.
members to "maintain or restore international peace and security."
The "Uniting for Peace" mechanism has been used ten times,
most frequently on the initiative of the United States. (CounterPunch,
March 5, 2003)
Dr. Richard Cummings,
an international law professor with degrees from Columbia Law School
and Princeton who has a Ph.D. from Cambridge and taught international
law at the Haile Sellassie I University and formerly was the Attorney-Advisor
with the Office of General Counsel of the Near East South Asia region
of USAID, where he was responsible for the legal work pertaining to
the aid program in Israel, Jordan, Pakistan and Afghanistan has made
similar observations regarding the UN and Israel in his essay, Human
Rights, International Law and Peace in the Middle East (Tikkun, Jan
2004). Dr. Cummings notes,
At this juncture,
we are faced with a choice. Do we lapse back into the primitive balance
of power approach that has always broken down and led to wider wars,
or do we accept the legitimacy of Woodrow Wilsons vision of a
just international order under the rule of international law? I would
suggest that it is time to revive Wilsons legacy and turn to the
International Court of Justice, which was brought into existence at
the birth of the United Nations.
...
Failure by
a United Nations member or entity with observer status to adhere to
the advisory opinion on any matter of law could specifically give rise
to a suspension by the General Assembly of its voting rights
Such an example is when South Africa was in violation of an advisory
opinion of the World Court and lost its voting rights.
...
An opinion
from the Court would be sufficient to override such a [Security Council]
veto, under the provisions of Article 14, which provides that the
General Assembly may recommend measures for the peaceful adjustment
of any situation, regardless of origin, which it deems likely to impair
the general welfare or friendly relations among nations, including situations
resulting from a violation of the provisions of the present Charter
setting forth the Purposes and Principles of the United Nations.
Indeed, the
United States would be hard-pressed to object to this strategy. When,
during the Korean war, the Soviet Union ceased its boycott of the Security
Council and vetoed resolutions that would have continued United Nations
support for the multinational force, the United States successfully
obtained a Uniting for Peace resolution in the General Assembly
to support the force, under Article 14 (UN General Assembly Resolution
377A, November 3, 1950). In this case, because the initial action had
been authorized by the Security Council in the Soviet Unions absence,
the subsequent Uniting for Peace Resolution had sufficient force in
law. As the United States would continue to veto any peace keeping force
in the Security Council, the advisory opinion would remedy the deficiency
of a previous Security Council resolution, which, unlike General Assembly
resolutions, have a quasi- legislative nature.
...
Armed with
an International Court of Justice advisory opinion, the General Assembly
could once and for all move to make its opinions binding on the parties
involved, thus bypassing the Security Council that is perpetually blocked
by the veto of the United States, which it invokes in pursuance of its
own agenda unrelated to the needs of the rest of the world.
International Law
must be defined by the world institutions that were established for
the purpose, and not by the existing superpower or the party to the
conflict that can hire the better public relations firms. The clear
and unequivocal end to Israeli occupation, in all its forms, has the
power to bring justice, security and stability to a region on the verge
of self-destruction.
The International
Court of Justices Advisory Opinion could be the ladder that world
leaders, including Israeli and US, use to climb down the tree of oppression
and occupation. If this opportunity is ignored, the result will only
be more bloodshed and killing. The US and our Israeli neighbors must
come to the realization that military occupation and security can never
peacefully coexist.
Furthermore, time
is past due for the Palestinian leadership to take professional legal
advice and assume responsibility and act legally to channel, not only
last weeks International Court Decision, but also the millions
around the world that stand in unwavering solidarity with the just Palestinian
cause. Atty. Francis A. Boyle, a renowned expert in international law
and author of an indispensable, fact-packed new book titled, Palestine,
Palestinians and International Law (Clarity Press, Inc, 2003), sheds
a glaring light on how the Palestinian leadership has repeatedly ignored
professional legal advice, even when it was commissioned by them. This
includes dismissing the strategy of invoking the UN General Assemblys
Uniting for Peace Resolution from as far back as 1988. The Palestinian
people can no longer accept this incompetence in dealing with ending
the Israeli occupation. The last four years of continuous Israeli aggression,
which left each and every Palestinian living in open air prisons, leaves
no doubt in anyones mind that Israels intentions for over
the last five decades have absolutely nothing to do with peace or coexistence.
Israel, your time
is up -- enough terror, killings, assassinations, bombings, home demolitions,
arbitrary arrests, and violations of Palestinians human rights.
Israel must tear down this illegal Apartheid Wall and bring its military
occupation of Palestine to an end so it may finally join the community
of nations.
Sam Bahour is a Palestinian-American
businessman living in the besieged Palestinian City of Al-Bireh in the
West Bank and can be reached at
[email protected] and runs a mailing list at http://lists.riseup.net/www/info/epalestine
Additional articles may be found at: http://www.amin.org/eng/sam_bahour/index.html
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