International law has suffered badly at the hands of imperial arrogance lately, but hope remains for reason and justice to win out, writes Gamil Matar* A battle is raging between international law and its champions and imperial law and its clients. The battle is ferocious and a resolution seems remote, or at least there are as of yet no apparent signs that either party will emerge victorious. Not so long ago, the US thumbed its nose at the principle of majority rule and waged an all-out offensive against the rules of international law and international agreements. It refused, for example, to sign the Kyoto agreement for the protection of the environment, the international agreement on landmines and the agreement to establish an international criminal court, and it campaigned furiously to persuade other countries to follow suit. It flouted a host of international human rights conventions in its refusal to grant terrorist suspects detained in Guantanamo access to lawyers and other fundamental rights, and in its torture of detainees and prisoners in its internment centres in Iraq and Afghanistan. It resorted to various forms of pressure and enticements in order to conclude bilateral agreements that would protect US subjects from prosecution in foreign courts on charges of perpetrating torture and other human rights violations. On numerous occasions over recent years it breached the prohibition against the use of force in international relations, a principle established in the Kellogg-Briand Pact of 1928. If Arabs feel more outraged than others at these American infringements of international law, they have good reason. The US also gave its full backing to Israeli violations of humanitarian law in occupied Arab territories and Palestine in particular. Washington never took a single serious step to prevent Israel from expanding its settlements in the occupied territories or to compel it to withdraw from these territories. Nor did it oppose Tel Aviv's assassination policy against Palestinian leaders. In strictly legal terms, the US may not be an accomplice in these acts, as it is not actively participating in the occupation, construction of settlements or assassinations. However, in its silence, or its obstruction of all international efforts to condemn Israel, or its financing of these acts and other forms of encouragement, the US is definitely complicit. The US is still wavering in its resolve to boycott and decimate international law entirely. As long as the cornerstones of its project of global hegemony are not quite in place, international law and its organs of enforcement may still come in useful, as was the case in some phases of the war on Iraq, the war on Afghanistan and in the run-up to whatever the US intends for Sudan. However, whenever possible in its handling of international affairs it will give priority to imperialist convention. Without doubt, the ruling of the International Court of Justice (ICJ) on the separation wall was a powerful salvo on the side of international law in its battle against imperialist law. True, this was a purely advisory opinion, solicited by and returned to the UN General Assembly. However, its ramifications reached far beyond this context, as it delivered the message to Palestinians and Arabs that their defeat was not final, that the Arab-Israeli conflict is still alive and that the Palestinian cause continues to defy US and Israeli efforts to bury it. It has been suggested that the ICJ exceeded its remit. That may be true, but what few realised is that this nevertheless took place in the name and within the bounds of international law. The ICJ was asked to answer the question as to whether Israel's construction of the separation wall was legal or not. In order to answer that question, ICJ judges had to consider all of the effects of the Israeli occupation on the Palestinians; in order for their answer to be complete and legally sound they had to frame their answer in terms of international law. For example, the court found that since all international resolutions regard the occupation as illegal, any consequences it affects on the ground should also be considered illegal. This applies to the wall, as it does to settlement construction and expansion and to the transfer of populations from the territories under occupation, which in all events is prohibited under international humanitarian and human rights law. At the same time, it appears that many of us failed to fully understand the position of the American judge who, according to some Arab media, adamantly opposed the ruling. This is not entirely accurate. The judge in question did not issue an opposing opinion, which is to say he did not explicitly reject the opinion of his 14 colleagues. Rather, he exonerated himself with a technicality, declaring, whether correctly or not, that he did not have sufficient facts to issue an opinion on the matter. Moreover, what he did say was precisely the following: "If I had sufficient pertinent information I would say that the wall -- or portions of it -- violate international law, especially in view of the fact that Israel has other means to defend itself." It did not escape those who followed events in The Hague that the court's advisory opinion conferred upon all UN General Assembly and Security Council resolutions pertaining to the Palestinian cause a legal authority that had been previously lacking. Before the ruling, it was possible to maintain that resolutions were political acts with no actual legal foundation. This is no longer the case; with the ruling these resolutions have acquired an indisputable force of legitimacy under international law. Moreover, when the General Assembly adopted the ICJ ruling by a 150 to six majority, it, too, acquired new force. As most are aware, that international body has been in dire need of an injection of new blood and vitality, having long been spurned by the permanent members of the Security Council and the US in particular. In adopting this resolution, the General Assembly demonstrated both its desire to restore dignity and respect to international law and its determination to assert both itself and international law as a whole in the face of American unilateralism. As usual, Arab reactions varied. But then I can understand this confusion and indifference. The ICJ ruling came at a time of perhaps unprecedented depression and frustration in the Arab world, and a time most Arab governments are in a state of near total paranoia. It was not surprising that Arab governments gave no indication of any intent to act collectively at a bilateral or multilateral level to capitalise on what some regarded as a victory for international law unprecedented since the ratification of the UN Charter after World War II. But I did expect that perhaps the UN secretary-general would take some action to mark this occasion. I thought that the ruling gave the UN the perfect opportunity to give a boost to the study of and respect for international law, and to do something to promote the institutions dedicated to these purposes, before interest in the subject faded again. I also believe that the Arab nations which have chosen diplomacy as their sole means for protecting their security and sovereignty have a duty to dedicate some of their savings on military allocations towards promoting the awareness and study of international law. I fear that Arab officials will regard the ICJ ruling as yet another of hundreds of UN resolutions. It is not. As I said above, the ruling gives existing resolutions a legal force they did not have before. It would be useful to bear in mind the example of Namibia. In 1966, the UN General Assembly terminated South Africa's mandate over Namibia. Although the ICJ issued an advisory opinion in support of this country's independence in 1971, South Africa still refused to withdraw. It took another 18 years of struggle on the part of the Namibian people and of diplomatic efforts by African nations and other international parties before Namibia finally won its independence. In 1947 the General Assembly issued a resolution partitioning Palestine into two states and providing for a transitional period for this purpose. Israel was created; Palestine was not. As long as this remains the case, the situation remains as that defined by the resolution -- in transition. It follows that any action undertaken by Israel that is not consistent with the 1947 Resolution is illegal under international law. Officials in the US and Israel, along with champions of "realism" and adversaries of international law, may claim that international law has no teeth. On the other hand, they say, the US administration does have the power to force the Palestinians and their supporters to accept Israeli conditions and it would be wiser for them not to hold their breath in the hope of being able to accomplish anything by clinging to international resolutions. The fact is, however, that the ICJ has issued 76 rulings all of which were put into effect after various time periods. It has also issued more than 25 advisory opinions, which were ultimately respected. It appears that as long as an international order prevails no nation can tolerate for long the consequences of being on the other side of the law. In other words, there is hope in siding with international law. We have seen how the US, itself, will set aside its imperialist laws and return to the fold of international law, if only opportunistically, if it feels this will best serve its objectives. The Palestinian cause is still in a transitional phase as defined by the 1947 General Assembly partition resolution. This phase will only reach completion upon the creation of a second state in Palestine: a Palestinian state in full conformance to the legal prerequisites of statehood, the most important of these being its territorial rights. Until that is accomplished, the foremost priority of the Palestinians should be to sustain the resistance -- resistance against Israeli-US unilaterally imposed laws and resistance against all attempts to deprive the Palestinian cause of the protection and attention of international law. It seems sensible for the Palestinians and Arabs to avoid activities that would give prospective US presidential candidates additional excuse to outdo one another in their demonstrations of support for Israel and hostility for the Palestinians. Nevertheless, there is still much we can do. For example, we can still follow through on the General Assembly resolution on the recent ruling of the ICJ. Specifically, the resolution asks Switzerland, in its capacity as custodian of the Geneva Conventions, to undertake certain tasks. Perhaps the Arab states should put their heads together to see how best to persuade Switzerland to assume its responsibilities. * The writer is director of the Arab Centre for Development and Futuristic Research.
