The International Court of Justice ignored not only its own Statute but also the writings of eminent jurists and academic scholars of international law, members of its own Bench, including a past president of the ICJ, all of whom are uniquely qualified and experienced on the subject at hand. Among them: Professor and Judge Stephen M. Schwebel, past president of the ICJ; Sir Gerald Fitzmaurice, former ICJ judge; Judge Sir Hersch Lauterpacht, a former member judge of the International Court; Judge Sir Elihu Lauterpacht, judge ad hoc of the International Court of Justice; former British Ambassador to the UN, Lord Caradon, principal author of draft Resolution 242; Professor Julius Stone, one of the twentieth century’s leading authorities on the Law of Nations; Professor Eugene V. Rostow, dean of the Yale Law School, U.S. Under-Secretary of State for Political Affairs, and a key draftee of UN Resolution 242; Professor and Jurist Arthur J. Goldberg, member of the U.S. Supreme Court, and U.S. Ambassador to the UN in 1967 and a key draftee of Resolution 242; and Professor George P. Fletcher, faculty member of the Columbia University School of Law, who wrote recently that Kofi Annan’s use of the phrase “‘illegal occupation’ is a perilous threat to the diplomatic search for peace.”1
In contradiction to international law, scholarly judgment, and common sense, the International Court of Justice handed down an ‘Advisory Opinion’ that is:
So sloppy that it wants the reader to believe that the League of Nations document – the 1922 “Mandate for Palestine” that laid down the Jewish legal right to settle anywhere in the area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law and valid to this day – was the founding document for Palestinian self-determination. It seems that the members of the Court didn’t even bother to read the six-page legally-binding Mandate for Palestine document.
So biased that it found terrorist activities to be irrelevant to its judicial investigation. The ICJ that cites the Secretary-General’s Report as a key document and a major source of information for its opinion, skips the part of the same UN Report that labeled the Palestinian actions “terror,” clearly stating the cause for building a security barrier.
So incompetent that it demonstrates a total disregard of the UN’s own legal machinery by arbitrarily treating numerous General Assembly Resolutions and Declarations as a source of law, contradicting the UN Charter and the Court’s Statute.2
So devious that it erases all Arab aggression during the British Mandate period (1922-1948), the 1948, 1956, 1967 and 1973 wars, and Israel’s continuing fight of self-defence against Palestinian terrorism.
So manipulative that it denied Israel’s rights to battle terrorism as directed by Security Council Resolution 1373 that was adopted under Chapter VII of the UN Charter and required all nations to comply with the terms set forth in Resolutions 1373, 1368, and 1269. The ICJ does not have the authority or the power over the Security Council to alter the resolution or wrongly and illegally exclude Israel, a Member State of the UN, from its rights and obligations under such Security Council Resolutions.
ICJ – Challenging the power of UN Security Council.
In another odd conclusion, the ICJ ‘found’ in this case a “failure of the Security Council to discharge its responsibilities”3 [E.H., without any reference to law] then in defiance of the limited powers delegated to it by the UN Charter, by-passed the Security Council’s powers and responsibilities.
Bypassing the Security Council is part of a broader campaign that should alarm all members of the Security Council, and the United States in particular. Nabil Elaraby, the Egyptian member of the ICJ Bench, openly advocated two main vehicles for institutionalizing it:
“The United Nations membership should, in my view, address ways and means to render the Security Council (a) accountable to the General Assembly, and (b) subject to the possibility, however remote, of a judicial review process.”4
And according to Gregory Khalil, the PLO legal advisor in the security barrier case, the ICJ consciously sought to engage the United States in a:
“… tango of mutual deterrence” and “chart a path for the international community to counter the United States’ veto power.” The significance of the ruling cannot be overstated, he underscores: It challenges the power of the veto and the Security Council’s management of “threats to world peace,” using the International Court of Justice’s interpretations of the rule of international law in matters of ‘threats to world peace’ coupled with claims that the international community is obliged to support its rulings and calling for sanctions – decisions that under Chapter VII of the UN Charter is the sole prerogative of the Security Council. Khalil calls this strategy “vetoing the veto.”5
The ‘Advisory Opinion’ signed by the Court’s president, Shi Jiuyong,6 constitutes “a profound corruption of its mission and one with seismic implications for the future of international law.”7 It threatens the security of America and its allies on three levels: first, in its groundbreaking attack on the ‘right to self-defence,’ proscribing an almost blanket prohibition of use of lawful force. Second, it erroneously adopts the exclusive powers granted to the Security Council by the United Nations Charter, a move that will render the Security Council ineffective, and third, in the willingness of the Bench to allow its chambers to become a political instrument and to abandon all semblance of fairness or professionalism, all for political gain.
The threats to the free and democratic states, consequently demand a far more serious, systematic and frank response, including a willingness to challenge the competence of this Court. Attempts to shield the International Court of Justice from this disgrace out of concern for its perceived reputation and effectiveness are short-sighted. At all too many junctures it appears that the ICJ’s conclusions are based solely on ‘gut feelings’ and unsubstantiated assumptions – almost taking a leap of faith based on a mixture of personal and collective prejudice and popular opinion.
The free and democratic world needs to ‘rein in’ the appetite of the General Assembly and to demand of the International Court of Justice to step beyond its mandate, and respect and obey international laws as set forth in the United Nations Charter.
- Professor George Fletcher, an expert in international law at Columbia University School of Law and author of “Romantics at War: Glory and Guilt in the Age of Terrorism.” See “Annan’s Careless Language,” The New York Times, March 21 2002. (10327) ↑
- “… at the 1492d meeting of the General Assembly’s Sixth Committee, on November 5 1974.” See footnote 9 on page 147. ↑
- The Court cites UN GA Resolution 377 of November 3 1950 as its license to assume the Security Council Power. [E.H., The UN Charter vests no such power in GA Resolutions.] (11399) ↑
- Nabil Elaraby, “Some Reflections on The Role of the Security Council and the Prohibition of the Use of Force in International Relations: Article 2(4) Revisited in Light of Recent Developments,” ‑2003, at http://edoc.mpil.de/fs/2003/eitel/41_elaraby.pdf. (11449) Not a lone voice, the same sentiments are echoed in Ahmad Faiz bin Abdul Rahman, “The ICJ on Trial” at: http://www.iol.ie/~afifi/BICNews/Afaiz/afaiz21.htm, (11448) who in 1998 took the ICJ to task for not “practice[ing] its powers of judicial review to the fullest extent” in the case brought by Libya against the UK and the United States regarding jurisdiction in the Lockerbie case. ↑
- See Gregory Khalil, “Just Say No to Vetoes,” The New York Times, July 19 2004, at http://www.pngo.net/publications/articles/gregory_khalil190704en.htm. (11450) ↑
- “The court president, Shi Jiuyong, hails from China, one of the more dictatorial regimes in the world … continues to deny basic political and religious rights, with large numbers of dissidents held in ‑prisons and labor camps for ‘crimes’ such as advocating free elections or practicing the Falun Gong religion. Israel, needless to say, has complete freedom of speech and religion. And, while Israel wants to annex only a small sliver of the West Bank, China has grabbed all of Tibet. But, with its veto power at the U.N. Security Council, Beijing is able to shield itself from well-deserved international obloquy.” See: Andrew McCarthy, “The End of the Right of Self-Defense: Israel, the World Court, and the War on Terror,” Commentary, November 1 2004 at: http://www.defenddemocracy.org/in_the_media/in_the_media_show.htm?doc_id=245738. (10447) ↑
- Ibid. ↑