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The World Court Case on Israel's Security Fence: Legal and Policy Implications

(Access/Middle East) Ruth Wedgwood - One concern is whether this is a misuse of the so-called advisory jurisdiction of the Court, which is not meant to be a substitute for so-called "contentious jurisdiction" - for fights between states. If the General Assembly becomes too licentious in its use of the referral mechanism for advisory questions, it could easily drain away the careful limitations, the consent-based nature of most of the Court's jurisdiction. The fact is that the question posed to the Court only looks at the Israeli seam-zone, and not at the instigating or provoking behaviors on the other side. It is Israel's position that the Fourth Geneva Convention does not apply to the West Bank. Nonetheless, Article 49 says that an occupying power can evacuate an area if the security of the population or imperative military reasons so demand. Israel's argument would be that they're using the seam-zone because an imperative military necessity demands it. Most constitutional questions in life involve balancing and weighing. The Israeli argument would be that they have an affirmative duty to prevent interference with the right to life, both of their own citizens of Arab and Jewish descent, and others who may be harmed in suicide bombings. Article 18 of the UN Charter says that decisions of the General Assembly on important questions must be made by a two-thirds majority of the members present and voting. Important questions include recommendations with respect to the maintenance of international peace and security. Here, the vote was 90 in favor, 8 against, 74 abstentions. If the Court appears to strip Israel of any ability to take proportionate measures to protect itself, I think it's going to hurt the UN, it's going to hurt the Court, it's going to hurt Israel; it's not going to advance the peace process. Professor Ruth Wedgwood, an expert on international law, the UN, human rights, and the law of military conflict, is Professor of International Law and Diplomacy at the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University, on leave from Yale Law School.
2004-02-02 00:00:00
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