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Arbitration requires consent 

Evelyn Gordon 
I used to think that Israel's Supreme Court was second to none in its ability to disregard both the law and the facts. That was before I read last week's International Court of Justice ruling on the separation fence.

The ICJ has two functions: arbitrating disputes between states and providing advisory opinions to the UN. But since its charter expressly conditions arbitration on the parties' consent, it hitherto refused to issue advisory opinions on bilateral disputes where such opinions, in its words, "would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent."

Since the fence is clearly a bilateral dispute between Israel and the Palestinians, and Israel refused to accept the ICJ's arbitration, this principle would seem to apply.

But in a remarkable sleight of hand the court decided that the fence is not "only" a bilateral dispute because the UN has asserted "a permanent responsibility towards the question of Palestine," passed numerous resolutions on this question, and created "several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people."

In other words, the principle that arbitration requires consent can be circumvented whenever the UN wishes, because the UN can turn any bilateral conflict into one that is not "only" bilateral simply by passing resolutions and creating subsidiary bodies that favor one side.

This ruling thus eliminates a cardinal protection expressly guaranteed by the ICJ's charter, and one without which most nations would probably have refused to sign it namely, that arbitration requires consent.

The court treated historical facts with equal contempt.

It reasonably began its brief overview of the Israeli-Arab conflict with the 1922 League of Nations Mandate for Palestine. Incredibly, however, it neglected to mention that the mandate's explicit purpose was the establishment of a "Jewish national home" thus sparing itself the need to further note that said national home was explicitly slated to comprise all of what is today Israel and the West Bank (Britain was given discretion over the remaining territory, which is now Jordan).

This omission is crucial to its finding that the West Bank is "Occupied Palestinian Territory" rather than disputed territory to which Israel has a legitimate claim.

The same technique of lying by omission is used to describe successive wars. In 1948, for instance, "armed conflict" simply "broke out." Not a word about the fact that five Arab armies invaded the newborn state of Israel.

The 1967 war also has no cause: Not a word about the Egyptian acts that began it, such as the closure of the Straits of Tiran or the expulsion of UN troops from Sinai.

Again, these omissions are essential to the desired conclusion: that Israel conquered the West Bank through an inadmissible use of force rather than in a legitimate, defensive war.

INDEED, THE court did not even make a pretense of eschewing politics: It urged the UN to achieve, "as soon as possible a negotiated solution to the outstanding problems and the establishment of a Palestinian State." It is hard to imagine anything farther outside a court's proper jurisdiction than not only demanding political negotiations but dictating their outcome: a Palestinian state.
Most astonishing of all, however, was the court's blanket rejection of Israel's right to defend itself against Palestinian terror which, of course, is the reason for the fence.

Israel based this right on Article 51 of the UN Charter, which states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations."

The court rejected Israel's argument on two grounds. First, it said, the charter only recognizes a right of self-defense "in the case of armed attack by one State against another State," and Israel is not under attack by a state.

As Justice Thomas Buergenthal aptly noted in his dissent, this is ludicrous: Not only does Article 51 include no such limitation, but subsequent UN resolutions cited by the court itself including one passed the day after the September 11, 2001 attacks explicitly recognize the right of self-defense against terrorism.

Second, the court said, the attacks originate from the West Bank, which Israel controls, so they cannot be considered external attacks against which there is a right of self-defense.

This, as Buergenthal again noted, it equally ludicrous: Since the court objects to the fence primarily because the West Bank is not sovereign Israeli territory, it cannot suddenly decide that the West Bank is part of Israel for the purpose of determining whether Palestinian terror is an internal or external threat.

But this dismissal of Israel's right to self-defense is vital to the court's sweeping conclusion that the entire fence harms Palestinian rights and is therefore illegal: If self-defense applies, then the hardship that the fence causes to Palestinians must be weighed against the magnitude of the terror threat and the military rationale for the fence's route. Moreover, this balancing act must be performed on a kilometer-by-kilometer basis, since at every point both the amount of hardship and the military exigencies are likely to differ.

Instead, as Buergenthal wrote, "the nature of
these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court, and the dossier provided the Court by the United Nations, on which the Court to a large extent bases its findings, barely touches on that subject All we have from the Court is a description of the harm the wall is causing and a discussion of various provisions of international humanitarian law."

Incredibly, the court never even acknowledges that the attacks' perpetrators are Palestinians.

But why should we expect otherwise? For a court with the breadth of vision to junk the right to consensual arbitration, the right to self-defense and almost 100 years of history in a single ruling, mere terror attacks are clearly too insignificant to notice.

The writer is a veteran journalist and commentator.

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