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"The Israeli Fence & International Court of Justice"

by Staff Reporter

The following is a letter to the Congress by the American Jewish Congress. The letter was signed by Kenneth Bialkin, Prof. Alan Dershowitz, Charles Moerdler, and Norman Redlich. The cast is again an example of how the U.N. discriminates against Israel, a country that defends itself against murderers and Palestinian terrorists (especially in Jerusalem, Haifa, and Tel Aviv). Dear Member of Congress:

As you no doubt know, next month the International Court of Justice will hear opening oral arguments in a proceeding challenging the legality of Israel's anti-terrorism fence. That fence has been strikingly successful in reducing the number of suicide bombings and terrorist attacks directed at Israelis.

As practicing American lawyers, we call on you to urge the Department of State to file a brief in the ICJ calling upon it to exercise its discretion to avoid being drawn into the political thicket and being used for raw propaganda purposes. There have been conflicting news reports in the last few days about whether the Department plans to file such a brief.

These proceedings were in response to a Palestinian sponsored General Assembly resolution calling on the Court to issue an advisory opinion on the subject. Two issues are before the Court: the legality of the fence as such; and, preliminary to that, whether, as Israel urges, the political nature of the dispute renders it unfit for judicial resolution - what we American lawyers call a political question.

It is no secret that the referral of this question to the Court by the General Assembly was a Palestinian effort to mobilize world opinion against Israel. It was designed to generate show-trial with Israel alone in the dock. The Court, if it is to be a detached and respected arbiter of international law, must not allow itself to be recruited as a participant in a propaganda campaign.

However one views the idea of international justice, no good can come of this reference to the ICJ. First, it is noteworthy that the ICJ, as an instrument of the United Nations (the very organization which not so long ago labeled Zionism as a form of racism), reflects the fundamental anti-Israel biases of that body.

No Israeli national has ever been elected to serve on that Court. Moreover, until recently when Israel was fully admitted to the Western European and Other group (not the Middle East group, where it belongs), Israel was not a member of a regional grouping eligible to nominate candidates to the Court. Further, many of the judges are representatives of undemocratic regimes which are likely to seek to influence their citizens serving as judges.

Second, the question referred to the International Court by the General Assembly was so one-sided as to preclude any credible judicial response. None of the actions which have been part of a patter of terrorism are before the Court. The one-sided nature of the inquiry demonstrates that the reference is not about interpreting International Law, but propaganda masquerading as law. In an ordinary litigation a Court can order all the parties to comply with their respective and reciprocal legal obligations. In the reference to the ICJ, the General Assembly has skewed the dispute as to make a just result impossible. The UN General Assembly did not ask, and did not put before the Court, whether the Palestinian Authority was in breach of its duty under both International Law and the Oslo Accords to suppress terrorism. Any Court decision about the legality of the fence which does not address the acts, which, in the view of the state of Israel, generated the fence would be legally unsatisfactory, morally reprehensive, and an immovable barrier to progress toward Middle East peace.

Third, the decision of the General Assembly to refer the matter of Israel's security fence to the ICJ was far from unanimous. The European countries all abstained-precisely because they were concerned that the reference threatened to convert every diplomatic dispute into a legal one. With the growth of international law, particularly to the extent that it includes the views of the so-called "best writers" on international law, it is difficult to conceive of any pending dispute that could not plausibly be transformed into a legal one.

Lawyers and law have a place in diplomacy, but not a leading one. The creative solutions to the deep seated conflict in the Middle East will come through diplomacy and negotiation, not a procrustean bed of general rules of international law.

Fourth, the same Third World majority which sent the fence issue to the ICJ could do the same for American actions in Iraq taken in defense of our troops arid innocent Iraqi civilians. (We note that it has been widely reported that the United States has modeled many of its anti-terror tactics that Israel has in dealing with Palestinian terrorism).

Fifth, when asked to deliver an advisory opinion-in those jurisdictions which permit this somewhat unusual device-a court always retains the discretion not to comply with the requested opinion for prudential reasons, including the need to avoid the court being seen as a partisan institution. That is the course which we believe most appropriate here. Indeed, it appears as if the International Court of Justice has, by its order of December 19, 2003, invited briefing of this very subject.

Sixth, the pendency of the issue before the ICJ offers the Palestinians a further excuse for not negotiating with the Israelis. They certainly will not make any concession so long as they can harbor the illusion that the ICJ will render a verdict which will hand them a victory. The Palestinians need to negotiate, not litigate, with the Israelis. The United States should say so. We note that the position we urge-that the question before the Court is a non-justifiable political question~-is fully in keeping with American practice. Our courts from the Supreme Court on down uniformly refuse to adjudicate disputes about the proper course of foreign policy-whether the Viet Nam war, the Panama Canal treaty, the status of Taiwan, the status of the West Bank, or the legality of the recent war in Iraq-on the grounds that they are political questions best determined elsewhere in the government. This Administration, like its predecessors, has vigorously opposed efforts to involve the courts in foreign policy. Moreover, the legality of the route of the fence is currently pending before the Supreme Court of Israel, which is a respected judicial institution that often renders decisions against its own government. If any court is appropriate to consider these issues it is that court.

The barrier, and its route, may be a good idea or not. We do not now solicit the United States support for the barrier and the route it follows. We recognize that is a controversial issue, dividing, for example, Israelis themselves. We are ourselves not agreed on this question. There are ample diplomatic fora to consider and debate this barrier. Israel has shown itself willing to consider the views of the United States with regard to the fence's location and its impact on Palestinians. It has asserted repeatedly that the route of the fence has no larger political meaning with regard to an ultimate Israel-Palestine border. It is a movable fence, that has already been moved on several occasions.

The Court will make a far larger contribution to the cause of peace-and the war on terrorism-if it simply abstains from this case, and leaves it to the parties, and interested nations, to reach a settlement in the Middle East. The United States can and must urge that course on the Court.