The International Court of Justice ruling shifts the entire Israeli-Arab conflict away from power politics and towards legality, writes Hassan Nafaa* From the beginning of the Zionist project to the ruling of the International Court of Justice (ICJ) on 9 July the Palestinian issue remained trapped in the political jungle, circumscribed by calculations of relative might rather than subject to the rule of law and its attendant moral foundations in concepts of justice and fairness. It was considerations of balances of power, not of justice, that inspired British Foreign Minister Lord Balfour to issue, in 1917, his famous declaration pledging to assist in the creation of a "national homeland" for Jews in Palestine. It made no difference that Britain had no legitimate right to dispose of Palestinian land in such a manner, rendering the Balfour declaration the most infamous instance of "a party without title pledging property to a party not entitled to receive it". With the establishment of the League of Nations the British pledge became a collective international commitment, backed by the mandate given to Britain over Palestine. However, no one at the time thought to define the concept of "homeland" in legal terms. In addition, although the mandate stipulated the need to preserve the rights of the indigenous inhabitants, no one took the trouble to delineate those rights or the means to safeguard them. Moreover, the powers that dominated the international order took active measures to ensure that the League's judicial authority had no supervisory or regulatory over the mandate power. Following the collapse of the League and the establishment of the UN the thorny thickets of politics rather than the more clearly demarcated avenues of law continued to dominate international handling of the Palestinian question. Instead of promoting an international agreement that might place Palestine under international trusteeship -- which would have been in keeping with the UN Charter -- Britain preferred to submit the Palestinian question to the General Assembly which, in turn, issued resolution 181 of 1948 for the partition of Palestine. When the Arabs began to question the legal validity of this resolution, Western powers -- the US in particular -- exerted enormous pressure to prevent the General Assembly from adopting an Arab proposal demanding an ICJ ruling on the right of the General Assembly to determine the fate of a people without first soliciting the opinion of that people. At that time no one spoke of an "automatic majority" in the General Assembly, in spite of the fact that that UN body was almost totally dominated by the Western camp, which was completely biased in favour of Israel. Furthermore, when Britain unilaterally ended its mandate over Palestine, leaving the field open to Ben Gurion to declare, also unilaterally, the creation of the state of Israel, no one was in a position to effectively object to these British and Israeli acts or to question their legality. Soon, however, the structure of the international order began to change, and with it the General Assembly, which became more understanding of and sensitive to the rights of the Palestinian people. With this development, Israel turned against the UN body that had been so instrumental in its creation, describing it as little more than a forum in which non- democratic Third World nations subject to the Soviet Union enjoyed an "automatic majority". Israel took this as licence to violate every principle of international law and legitimacy as it lashed out at the Palestinians however and whenever it wanted, secure in the knowledge that it had the US veto in the Security Council forever at its disposal. Washington's ever- ready justification for its unconditional protection of Israel was that Israel has the right to defend itself. That it was virtually impossible to bring Israeli actions and behaviour before an impartial judicial body only encouraged Israel to greater arrogance, culminating in the racist separating wall. Unprecedented in the history of colonialism, this barrier is intended to enable Israel to gobble up another large tract of Palestinian land and to transform the lives of Palestinians behind it into a huge, hellish prison. However, the wall that snakes deep within the occupied Palestinian territories and that Zionists imagined would be one of the best ways to impose their conditions for a settlement has begun to rear its head at its creators. The snake has pointed to a way to extricate the Palestinian cause from the tortuous morass of power politics and expose it to the light of law and justice. After attempts to compel Israel to halt construction of the wall ran aground on the American veto, the General Assembly was forced to hold an emergency session. On 8 December the assembly voted to demand a ruling from the ICJ on the legal ramification of the construction, by Israel, an occupying power, of a separating wall inside Palestinian occupied territories including inside and around East Jerusalem. On 9 July the court issued its ruling. I believe that this ruling marks a major turning point in the Arab-Israeli conflict, in general, and in the Palestinian cause in particular. The verdict was as explicit as it was comprehensive. The court did not merely declare the wall illegal, it called for an immediate halt to its construction and the elimination of all its traces and effects, including compensating Palestinians for damages. It appealed to the international community, as embodied in the UN General Assembly and Security Council and signatories to the Fourth Geneva Convention to refuse to accord any legal status to the wall, to refrain from offering any form of assistance to maintain it and to take all necessary measures to enjoin Israel to meet its humanitarian obligations. Furthermore, the court's verdict explicitly and implicitly affirms that all the Palestinian territories under Israeli control since 1967, including East Jerusalem, are occupied territories rather than territories under dispute. That the court thus pronounced an authoritative interpretation of Security Council Resolution 242 greatly strengthens the possibility of regaining every last inch of occupied Palestinian territory and creating a Palestinian state within these borders. That this verdict passed with near unanimity, which is a rare occurrence, is of major significance. It suggests above all that international jurists have had more than their fill of Israel's flagrant contempt for international law and legitimacy. The only dissenting vote was the American Judge Buergenthal, who allowed his political and ideological convictions to override the impartiality and integrity incumbent upon him in his capacity as a member of the International Court panel. But Buergenthal was the anomaly even before the ruling; although he recognised the jurisdiction of the court over the question of the wall he maintained that the court did not have the right to pronounce judgement on it! It should be added that the other 14 members of the court, representing a great diversity of nationalities and legal backgrounds, voted in favour of all paragraphs of the ruling, with the exception of the Dutch Judge Kooijmans who dissented only on that paragraph enjoining signatories to the Fourth Geneva Convention to take all necessary measures to compel Israel to respect international humanitarian law. This unprecedented unanimity on the verdict, in my opinion, confers upon its demands the status of compelling rules of law. It is regretful that the commentaries in the Arab media, and Arab satellite stations in particular, have tended to belittle the court's ruling as no more than an "advisory opinion" with no force. This grave misperception I believe results from the confusion between two powers of the ICJ, the first to issue a legal opinion to those with a legitimate claim and the second to rule on disputes that fall under the court's jurisdiction. In both cases the court does not possess the power to enforce its opinions or rulings because it is a judicial rather than an executive authority. When the court is asked to issue a judgement on a controversial political matter its function is not to arbitrate the dispute but to clarify the position of international law with respect to the dispute. As this court is the only competent authority empowered to issue a judgement on international law, its word is final. There is no higher authority to reverse that judgement. It follows that when the ICJ says that the separating wall is illegal, that Israel should dismantle it and pay compensation for the damages it caused, that parties that contribute to the perpetuation of the wall are in violation of the law, and that those who work to halt construction of the wall and the damages it wreaks are acting in defence of international legitimacy, all this, quite simply, is the law. As for the implementation or enforcement of the law, that responsibility falls on other political agencies. While it is true that the ICJ has no authority over those agencies, this does not relieve those agencies of the task of implementing the court's rulings, because their foremost responsibility is to enforce respect for international law and legitimacy. Of course the US will always have its veto at hand to prevent the Security Council from undertaking its job in enforcing international law on this issue. However, there is a big difference between the exercise of its veto before the court's pronouncement and afterwards. Before the use of the veto could be feasibly interpreted as an exercise of the discretionary authority on the part of the state empowered to use it. Now the use of the veto on this matter can only be interpreted as a blatant obstruction of the implementation of international law and, consequently, an attempt to disrupt or abet the disruption of international peace and security. * The writer is professor of political science at Cairo University.
