13. The International Court of Justice’s Mandate
Article 38 of the ICJ’s own Statute instructs the Bench what input is to be applied in adjudicating cases in its Docket.1 Article 38 clarifies:
“1. ‑The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
“a. ‑international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
“b. ‑international custom, as evidence of a general practice accepted as law;
“c. ‑the general principles of law recognized by civilized nations;
“d. ‑subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
Throughout this critique of the ICJ’s performance of its duties, the Bench has been found time after time to be biased in its application of the above-mentioned foundations of international law.
1(a) International Conventions: The Bench applies international conventions that are applicable and inapplicable, while ignoring others that are highly relevant, demonstrating a total disregard of the UN’s own legal machinery by treating General Assembly resolutions as if they were legally valid and/or legally binding documents.
It is not even clear whether international conventions are admissible as evidence in an Advisory Opinion. The wording of Article 38 views as admissible only “international conventions, whether general or particular … expressly recognized by the contesting states.” This seems to indicate that in terms of fair use, the ICJ is mandated to use only general conventions such as the Hague and Geneva Conventions and the human rights conventions cited by the ICJ (as well as equally relevant ones the ICJ chose not to cite) only in cases where the ICJ is sitting in the capacity of an arbitrator between two sides where both sides have accepted its jurisdiction. Therefore, use of general conventions might not apply when the ICJ has been asked for an advisory opinion – all the more so because Israel, the only “state” in the case, clarified in its brief to the ICJ that it did not accept the court’s jurisdiction.
1(b) International Custom: The Bench often perverts the general principles of law – the core elements which include reasonableness, good faith and the principle of proportionality, components that are highly relevant to the case at hand, which pits Palestinian rights against Israeli rights.
Furthermore, the rules of war enshrined in the Hague (1907) and Geneva Conventions (1949) did not envision terrorism as a major form of warfare.2 Until a comprehensive use of convention or protocol on terrorism is established and takes force, countries like America that respect the rule of law have taken the lead to fill the void by defining a new category for such terrorists – ‘illegal combatants.’ This category, the United States argues, recognizes that one cannot abridge all the rules of warfare by targeting civilians and then expect to enjoy the privileges of POWs under the same conventions. The ICJ prefers to adhere rigidly to outdated definitions that hardly reflect current realities about terrorism.
Security barriers in other disputed territories.
Moreover, Israel is not the only country in the world with a security barrier in disputed territory. If the ICJ has been requested to examine the legality and the ramifications of the Israeli barrier and if realities in South West Africa (Namibia) are considered by the ICJ to be relevant to the case at hand, then logically the legality and ramifications of a barrier just up the coast in Western Sahara and also built inside disputed territory would be relevant to the case. Israel is not only singled out in the General Assembly request, but also by the ICJ, which exhibits no interest in even noting the existence of precedents or using them as a yardstick of proportionality.
The two most outstanding cases are Morocco (in the disputed territory of the Western Sahara) and India (in the disputed territory of Kashmir). In 1982, Morocco began building a 1,500 kilometer-long defensive wall to protect its settlers and military personnel against Polisario guerrillas – members of the Saharawi tribes who claimed title to the Western Sahara and demanded self-determination. Morocco claims the Western Sahara is an integral part of pre-colonial Morocco. The barrier consists of a series of berms (3 meter high sand walls) deep inside the disputed territory – each between 300 – 670 kilometers in length, seeded with an estimated 200,000 to one million3 anti-personnel and anti-vehicle mines planted in a 100 meter-wide strip on the ‘enemy’ side of Morocco’s security barrier.4
In the late 1980s, India began building a security fence to protect itself from Sikh separatists supported by Pakistan; the barrier runs the full length of India’s Rajasthan and Punjab states. In 2003, in the wake of cross-border attacks into the Indian sector of the disputed territory of Kashmir by Islamic terrorists, India began extending the existing 8-foot high mud wall with a 3-tier maze of barbed-wire5 into the disputed territory, along a route that runs deep inside Kashmir. The planned 1,800 mile security fence, like Israel’s, is non-lethal – comprised of steel posts set into concrete blocks and strung up with concertina wire.
1(c) General Principles of Law of Civilized Nations: It is hard to justify the ICJ’s failing to even discuss crimes against humanity, such as systematic targeting of civilians by suicide bombers, or the Court’s failure to consider the human rights conventions it quotes as being equally applicable to Jews and Arabs.
The instructions to the ICJ that it apply the “general principles of law of civilized nations” raises a far more fundamental question, a matter of propriety. Common decency should have led this ICJ Bench to at least bar those with blood on their hands from participating in such a procedure. Legal scholar Professor Stone, writing about Palestinian attempts to resurrect the “Partition Plan” (discussed in Chapter 4), wrote:
“… there are also certain other legal grounds, rooted in basic notions of justice and equity, on which the Arab states (and the Palestinians whom they represented in these matters) should not, in any case, be permitted, after so lawless a resort to violence against the plan, to turn around decades later, and claim legal entitlements under it. More than one of ‘the general principles of law’ acknowledged in Article 38(1)(c) of the Statute of the International Court of Justice seem to forbid it. Such claimants do not come with ‘clean hands’ to seek equity; their hands indeed are mired by their lawlessly violent bid to destroy the very resolution and plan from which they now seek equity …”6
If this is so, it is hard to ignore the relevance of “clean hands” in the eligibility of Palestine to seek redress from the ICJ, or at least for bodies such as the PLO, Fateh, the Arab League and the Conference of Islamic States who champion and sanction violence, to aid the ICJ by “furnishing it with information.” If this doesn’t violate “basic notions of justice and equity,” then barring Israeli victims from testifying surely does.
The ICJ did not consider it fitting and proper to invite the Organization of Casualties of Terror Acts in Israel (Almagor) to present evidence under the ‘catch-all’ Article 66 Clause 2 of its Charter invoked to listen to the Arab League. The request on the part of Israeli terror victims’ families to participate in oral hearings was rejected by the ICJ on the grounds that the families do not represent a country and therefore should not take part in the hearings.7
1(d) Judicial decisions: “Judicial decisions and the teachings of the most highly qualified publicists of the various nations,” … [to] determine rules of law.
The Bench not only ignores the relevant rulings of the Supreme Court of the State of Israel that could contribute to its own investigation of legality and proportionality, but also ignores the writings of the former president of the Court, Judge Schwebel, who wrote specifically to this issue:
“International law is largely the creation of Governments. In that creative process, those who render legal advice to Governments play a critical part (in present case the Supreme Court of the State of Israel). The forces which shape international law, like the forces which shape international affairs, are many and complex. But what is singular and clear is that those who advise Governments on what international law is and should be exert a particular, perhaps at times a paramount, influence on the formation of international law.”8
The ICJ cannot consider declarations and resolutions of the UN General Assembly as customary international law.
To understand what the ICJ cannot do, it is instructive to review the language used during the debate of the defeated draft resolution that attempted to allow the ICJ to consider declarations and resolutions of the UN General Assembly as if they were customary international law:
“Complete imbalance” is what Professor Stone describes as “arising from the entry of scores of new states into the United Nations who promote resolutions in the General Assembly reflecting political, economic, or sociological aspirations rather than a responsible assessment of the relevant legal issues and considerations. It would greatly enhance the dangers inherent in this imbalance in the United Nations if the above illusion were thoughtlessly indulged.”
Professor Stone continues to describe the 1974 rejected attempt to over- empower the ICJ:
“At the 1492d meeting of the General Assembly’s Sixth Committee, on November 5, 1974. … The Committee had before it a draft resolution on the role of the International Court of Justice, the preamble of which referred vaguely in its eighth paragraph to the possibility that the court might take into consideration declarations and resolutions of the General Assembly. A wide spectrum of states, including Third World, Soviet bloc, and Western states, rejected even this indecisive reference. It was, some said, an attempt at ‘indirect amendment’ of Article 38 of the Statute of the International Court, a ‘subversion of the international structure of the United Nations.’”9
The International Court of Justice lacks the authority to issue a directive to Member States, a function reserved solely to the Security Council.
In paragraph 163 (3)D, the Opinion states:
“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;”
Such a directive goes beyond the authority of the Court on three counts. First, no directive was requested of the Court by the UN General Assembly. The Court decided on its own to ‘rule’ on the legality of Jewish settlements in Section 120 (see Chapter 9). Secondly, the Court’s powers under its own mandate do not include the right to issue directives to enforce its advisory opinion. Just as General Assembly’s resolutions are only recommendations, the Court’s Advisory Opinion is also void of any legislative or coercive power and is no more than counsel or advice. Thirdly, adoption and enforcement of the ICJ’s advice is solely the prerogative of the Security Council, the only UN organ with the power under the UN Charter to ‘direct’ or ‘obligate’ Member States on how to act.
Here again, the Court’s behaviour seems to be a sheer ‘power grab’ reflecting the Bench’s own aspirations to assume prerogatives reserved solely for the Security Council, in order to bring the ICJ’s own powers into parity with those of the Security Council.
- Statute of the International Court of Justice. See http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm. (10485) ↑
- Amnon Straschnov, “Israel’s Commitment to Domestic and International Law in Times of War,” JCPA, October 10 2004, at: http://www.jcpa.org/brief/brief4-5.htm. (11390) ↑
- Estimates vary between 200,000 and one million mines. See “Landmines – A Threat Still Lingering,” at: http://wsahara.net/landmines.html. (11391) ↑
- “Desert Dreams, Saharan Nightmares: Morocco, Polisario and the Struggle for Western Sahara” at: http://www.wibemedia.com/sahara.html (11392) for general information and use of mining as a part of the barrier see: http://www.icbl.org (11393) and http://www.icbl.org/lm/2002/western_sahara/. (11394) ↑
- Rama Lakshmi, “India’s Border Fence Extended to Kashmir,” The Washington Post, July 30 2003 at: http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A64700-2003Jul29¬Found=true. (11464) ↑
- Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The Johns Hopkins University Press, 1981, p. 127. ↑
- “ICJ rejects terror victim’s families participation,” The Jerusalem Post, February 21 2004 at: http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/Printer&cid=1077351468319. (11486) ↑
- Professor, Judge Stephen M. Schwebel, Government Legal Advising in the Field of Foreign Affairs in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of the ICJ. ↑
- (Mr. Sette Camara [Brazil] United Nations General Assembly [U.N.G.A.] A/C6/SR1492, p. 166, with whom U.S. representative Rosenstock agreed on this point). It contradicted the U.N. Charter and the court Statute, so that on a separate vote the Soviet Union would not have supported it (Mr. Fedarov, Union of Soviet Socialist Republics, ibid., p. 167). It was capable of meaning that “General Assembly resolutions could themselves develop international law” (Mr. Steel, for United Kingdom, ibid., p. 167). It was “inappropriate in the light of Article 38” of the Court’s Statute (Mr. Guney, Turkey, ibid., p. 168). It was subject to “serious doubts” (Mrs. Ulyanova, Ukraine, ibid., p. 168). It was an attempt to “issue directives regarding the sources of law,” departing from his delegation’s view that resolutions and declarations of the General Assembly are “essentially recommendations and not legally binding” (Mr. Yokota, Japan, ibid., p. 168). Mr. Rasoloko, Byelorussia, declared roundly (ibid., p. 169) that “declarations and resolutions of the General Assembly could not be sources of international law”; and Mr. Prieto, Chile (ibid., p. 169) added that they could not be so considered “particularly in view of their increasing political content which was often at variance with international law.” The eighth paragraph, it was also objected, attributed to the General Assembly “powers which were not within its competence” (Mr. Foldeak, Hungary, ibid., p. 169). Also, the preambular paragraph in question had already been amended at the instance of Mexico in a sense explained as in no way altering or introducing any new source of international law to those enumerated in Article 38 of the Statute of the International Court of Justice (A/C6/L 989). ↑