The ICJ hearings

Many States, however, sought leave — and were so granted — to argue before the court. It is interesting that Namibia and other States that might be thought to have very little time for the abstract considerations of international law did take part creditably in the hearings. It is also clear, however, that some seized the opportunity to lash out at Israel with sonority and fury but, really, with a palpable lack of substance.

Many of the agents of the different States appearing invoked the Palestinian’s right to self-determination — and the argument is good. There can be no refutation of this point. The Palestinian people have the right to determine their political future, and there is little doubt that they wish to be recognized by the international community as a State and to be accorded all the rights of such a legal characterization. There is likewise no contesting the fact that under prevailing standards of international law — among them the Montevideo Convention on the Rights and Obligations of States — Palestine possesses all of the requisites of statehood. And because the dominant theory is the declaratory theory, Palestine need not await the recognition of its statehood by other States. It must vigorously claim statehood and act as a State. But this is just where things get a little tricky, because the Palestinian Authority, it seems, that has been the internationally recognized representative of the Palestinian people, has had very little to do with the Gaza Strip that was apparently controlled by Hamas.

If it is argued that the Palestinian people have the right to choose Hamas as their representatives, then it should be asked whether Hamas persists in its position that the State of Israel should not exist and in its determination to see to its demise. And if this be the case with Hamas, then the question arises whether a nation can choose as its representative a government or a group for which the elimination of another sovereign state is a matter of policy! I maintain that the rule against aggression is a peremptory norm of international law — jus cogens — and this means that from it, there can be no derogation or attenuation. It is a direct corollary of two fundamental principles of international law: the principle of the sovereign equality of states and the principle of peaceful co-existence, principles without which no international legal order is conceivable.

If, as many observers have commented, Palestinians and Israelis peaceably live together in the so-called settlements in the West Bank, then there should be no problem in continuing to allow them to live as neighbors, provided that, in accordance with a partition plan already reasonably proposed several decades ago, Israel recognizes Palestinian sovereignty over the West Bank. The very least that can be demanded of Israel is that it does nothing to undermine Palestinian sovereignty over the area.

Israel’s argument that it is surrounded by foes intent on seeing to its elimination hardly justifies its continued occupation — and worse, its offensive in the Gaza Strip. If, as the Israeli Defense Forces claim, they have successfully uncovered and destroyed the warren of tunnels under the Gaza Strip allegedly constructed by Hamas, then it is only right to demand that Israel withdraw from Palestinian territory and, more importantly, extend whatever assistance is due Palestine to rebuild an entire region reduced to rubble. Israel, pointing accusing fingers at provocateurs from Hamas, Hezbollah and other anti-Israel cabals, and Palestinians, Syrians and Iranians pointing accusing fingers at the shabby treatment Israel accords Palestine, gives the whole dispute the insoluble character of the hen-and-egg question.

The ICJ is likewise on trial here, for if it renders an advisory opinion that is ambivalent as to where the rights lie, it will only be confirming the belief that some have advanced that, as an institution for the administration of international law, it is effete. On the other hand, if it wades far into the murky waters of international politics, it muddies itself and compromises its neutrality as a judicial organ. It has been asked to return to its position in the Namibia Case (1971) and the Construction of the Wall Case (2004). It might be good to review the reasons for Article 59 of the Statute of the International Court of Justice that, from its terms, prevents a rule of binding precedent from applying to the court. The complexities of international relations as well as the volatile character of conflicts that engender cases that come before the court, make it the wiser position for the court to render a judgement tailor-fit for a concretely given set of facts on the world stage. The salutary injunction prevents jurists from equating the behavior of individuals in organized societies with the behavior of States that recognize no sovereignty over them!

There can hardly be any doubt that this will be the last we hear of an international tribunal called upon to render judgment in relation to the Israel- Palestine conflict. There is talk of investigations being conducted by the prosecutor of the International Criminal Court — but these will be distinct in one very important respect: The ICC must rule on the criminal culpability of each defendant, whether Israeli or Palestinian and will have no competence to determine whether the occupation itself was right or wrong. There is, however, the matter of reparations — and if the ICJ does not make any pronouncement on this issue, as indeed it should not, then there has to be some determinate way of resolving this matter, and one way to do this is through an arbitral tribunal, as past practice in international law attests. But recourse to the International Court of Justice came after the Security Council found itself hamstrung by its own structural infirmities, including the veto power — and this should tell us very strongly in what direction salutary reform, if it is to take place, must go.