Black Baron, you'll just LOVE this article:
http://www.cnn.com/2004/LAW/07/13/le...ier/index.html
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[SNIP -- A good discussion of the Israel court holding]
The ICJ opinion and the Israeli court opinion
Unlike the Israeli Supreme Court, the ICJ denounced the chosen path for a very large portion of the entire wall -- not just the 25-mile subsection. Yet, the two rulings resembled each other in several fundamental ways. And on these common points, the ICJ was near unanimous, with only one of the 15 judges dissenting.
Both found that construction of the barrier on the specific route chosen was not the only means to safeguard Israelis. Both found that that the wall, along the route chosen, infringes a number of rights of Palestinians, and the infringement cannot be justified on the grounds of national security. Both found, accordingly, that the barrier therefore violates certain international and humanitarian laws. And both concluded that Israel must compensate Palestinians who lost land or property as a result of the barrier.
Nonetheless, the ICJ opinion was troubling in a number of respects -- because it evidenced a politically driven, unfair hostility to Israel.
First, the ICJ chose not to consider the Israeli Supreme Court's earlier decision -- though it had the right and the ability to do so.
Second, it dismissed Israel's claim to a right to self-defense under Article 51 of the U.N. Charter despite numerous armed attacks -- and seemed to even consider the defensive role of the barrier irrelevant.
Third, it ignored the fact that Israeli citizens who are killed by suicide bombers are also having a right violated: their fundamental right to life.
Fourth, it gratuitously ruled against the legality of the Israeli settlers on the West Bank, whose status was not relevant to the dispute.
For these reasons, one of the concurring judge's separate opinion criticized the ICJ for not presenting a balanced assessment of the "immensely complex" law, history and politics of the Israel-Palestine question. She also expressed the view that the Court should have taken the opportunity to say "in the clearest terms" that protecting civilians remains an obligation of humanitarian law "not only for the occupier but equally for those seeking to liberate themselves" from occupation.
As that judge indicated, it is wrong for an international legal body to ignore blatant violations of international law such as those terrorists wreak.
The ICJ enters the political and abandons the legal
After making these findings, the ICJ moved into a more political realm. Among other points, it called on all States to see to it that any impediment to the Palestinians' right of self determination is brought to an end.
The ICJ also called on the U.N. General Assembly and Security Council to consider what further action is required to bring an end to the existence of the barrier, which it deemed illegal. As a result, a number of Arab states promised that this week they will ask the General Assembly to urge the destruction of the barrier and impose other sanctions against Israel -- which although not yet specified would likely be similar to those against apartheid-era South Africa.
But Israel is no South Africa. Again, it is important to remember Israel's own Supreme Court has reached essentially the same legal ruling that the ICJ has rendered and has demanded compliance in no uncertain terms. Moreover, there is every sign that the Sharon Administration will indeed comply, and there are also signs that the Court may take up the larger question of the legality of the wall as a whole -- a question in which its President is intensely interested. In this context, the ICJ's pushing for further U.N. sanctions is not a legal remedy, but a political attack.
The American judge, along with his counterpart from the Netherlands, were the only two who rejected these additional, political ICJ charges. They did the right thing: This additional, intensely-political posturing, and this call for far-reaching action by the General Assembly and Security Council, were inappropriate for a court that is supposed to be an independent tribunal.
World opinion is generally critical of Israel's efforts to defend itself from suicide bomber attacks. Whether that opinion is right is a matter of political debate. But that is not a debate into which the ICJ -- supposedly a legal body -- should have entered. The ICJ's opinion improperly and harmfully converted a political hostility into a purportedly legal precedent.