UMM, BUT OF COURSE WE MUSTN’T PRE-JUDGE THE VERDICT:

Ruling on the Barrier (Claire Cavanaugh, Radio Netherlands, 13/02/04)

At the urging of the Palestinians, the UN General Assembly has asked the International Court of Justice (ICJ) at The Hague to rule on Israel's construction of the controversial security barrier through Palestinian territory.

While Israel's announcement that it will boycott the ICJ hearing has surprised few, there's been more attention for the level of international criticism about the case being heard at all. The United States and European Union have both questioned the international court's jurisdiction to rule on the issue.

In this interview with Radio Netherlands, International Law expert André Nollkaemper of the University of Amsterdam explains why some parties feel the ICJ is not the right venue for this kind of case.

"...The states concerned have advanced two arguments basically. One is the strictly legal one - and I believe that is the argument of Israel - that this is an internal conflict in Israel, and by [giving] an advisory opinion the court would in essence determine a specific legal conflict."

"The other, more political background of the position of the US and the European Union, I believe, is that these states see a danger for the General Assembly to ask very general politically laden questions to the court, and then the court would become a political actor, which it was not designed to be."

RN: "Are you saying the court can never rule on politically sensitive issues?"

"Well, a particularly good precedent is the advice by the International Court of Justice in 1996 on the legality of nuclear weapons, when the General Assembly asked the court to give advice on whether the possession and use of nuclear weapons is legal. At the time, the US and the EU also took the position that this was not a question for the court to answer."

"And, of course, in the present timeframe one could think of the possibility that the Assembly would ask a question about the legality of the use of force in Iraq, for instance. And clearly that's something which both Europe and the United States would not wish to see."

RN: "What do you make of this kind of face-off between international law and politics?"

"[...] the fact that a legal conflict may have political ramifications does not mean that the court could not rule on the narrow legal issue. The court is very well able to distinguish between the legal aspects of the case and the political aspects of the case. The General Assembly has in October already adopted the position stating clearly that the building of the wall was in violation of international law."

"Personally, I can see only benefits from the court's giving a well-argued advice that supports that argument by the General Assembly, finding that the building of the wall is illegal, and then that could be a useful argument for a further political resolution of the conflict. Of course, it would not solve the conflict, but it could be one stepping stone on which the parties could find common ground for a further political resolution."

RN: "The International Court of Justice's decisions are non-binding. So Israel wouldn't have to remove one centimetre of this wall if the court ruled against it."

"That's very true, and we should not overestimate the legal impact of an opinion by the court. Nonetheless, it would confirm the widely held belief that the way the wall has been built now is illegal. Again, that would be one point on which the parties could find each other, and then use that as a basis for further political negotiations."

As Israel mourns yet more victims of barbarity, the cognoscenti continue to wage their abstract, corrupt war on behalf of darkness. The US, Europe and Canada are all opposed to this hearing and are expected to express their opposition by shunning it. Can victories in the war on terrorism ultimately prevail over the losses civilization is taking in the war of ideas?