The Runaway Court

July 14, 2004

By J. Peter Pham

Apart from last year’s decision to go to war against Iraq, perhaps no policy stance adopted by President George W. Bush has provoked more outrage among critics abroad—especially among the Western European intelligentsia—than his administration’s steadfast opposition to the establishment of the International Criminal Court (ICC) and its worldwide campaign to secure bilateral non-surrender (“Article 98”) agreements protecting American citizens from the reach of a tribunal whose jurisdiction the United States does recognize. Critics have cited the U.S. government’s rejection of the ICC as further proof of the sole remaining superpower’s “unilateralism” and disregard for the “consensus” of the “international community,” citing as their evidence the attention that American opponents of the tribunal have focused on its potential consequences for U.S. government officials and military personnel. While the concerns of American opponents of the ICC have legitimately been centered on U.S. national interests, effective statecraft requires that the cost and benefit analysis of proposed international arrangements address the interests of all parties, not just some. Such a global approach involves considerations of universal principle and justice, as well as parochial calculations of interest.

With regard to the ICC, closer scrutiny reveals that this more comprehensive approach actually strengthens the U.S. position: the strongest argument against the court is that in their headlong rush to throw it together, its designers, lacking the practical wisdom of America’s founding fathers who worried about checks and balances, created a utopian body unbounded by the constraints of—and the consequent legitimacy deriving from—democratic politics. Without these elements, the ICC will likely amount to nothing more than yet another example good intentions bending under the weight of political correctness. While proponents of the ICC have been dismissive of such concerns as emblematic of “paranoia,” their maladroit assurances that the court will be independent, impartial and restrained amount to little more than articles of faith not backed by neither statutory authority nor political realities. While the recently-established ICC has yet to try a case, the recent example of the far more constitutionally-circumscribed International Court of Justice (ICJ), the principal judicial organ of the United Nations, is far from reassuring for the future of the Westphalian tradition that has formed the basis of the international system of independent sovereign states.

Last week, ICJ issued an “advisory opinion” that sweepingly declared that the security barrier that Israel has been constructing in the West Bank constituted a breach by the Jewish state “of its obligations under applicable international humanitarian law and human rights instruments” (International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paragraph 137). The Court called upon the Israeli government to tear down the wall and compensate Palestinians whose land it has crossed or whose interests have otherwise been harmed by the construction to date. Aside from the obvious fact that its “decision” will have no effect apart from inflaming passions and otherwise further muddling a Middle Eastern political situation that is already complicated enough—the Israeli government, which had challenged the ICJ’s jurisdiction all along, quickly announced that it would press ahead with the planned 437-mile stretch of electronic fences, watch posts and concrete walls, which it credits with helping to dramatically curb the number of suicide bombings in the country—the Court’s action, by raising serious procedural and substantive issues, vindicates the “hermeneutic of suspicion” of those opposing the creeping jurisdictional ambitions of international tribunals in general.

What would otherwise have been considered a political matter for negotiators was brought to the ICJ for adjudication thanks to a December 8, 2003 resolution of the UN General Assembly co-sponsored by twenty-six states and the Palestine Liberation Organization, only two of which (Senegal and South Africa) are considered “free” according to Freedom House’s “Freedom in the World 2004” report and one of which (Somalia) has a risible claim to being a state at all. The preliminary juridical proceedings took in the written arguments submitted by no fewer than fifty states and other international entities, including both major powers (the U.S., the U.K., the Russian Federation) and micro-states (the Marshall Islands, the Federated States of Micronesia, Palau), democracies (France, Germany, Italy) and despotic regimes (North Korea, Syria, Sudan). The oral arguments were heard on February 23-25, 2004, from both the learned and, if the truth be told, the rather unschooled counsel representing some fifteen states and international organizations.

The case was heard by the fifteen judges of the ICJ, sitting at their seat in the elaborate Peace Palace in The Hague. The fifteen judges are elected for nine year terms by the UN General Assembly and Security Council. Only sovereign states may appear before the Court, a technicality glossed over in the security barrier case when it admitted representatives of the non-existent “State of Palestine” to its proceedings. Since 1946, the Court has delivered seventy-nine judgments and twenty-four advisory opinions (another twenty matters are presently pending). Cases before the ICJ are decided by a majority vote of the judges present. In the present instance, the Court’s opinion was issued with only one dissent, that of the American judge, Thomas Buergenthal, formerly of George Washington University Law School. The other fourteen judges hailed from an assortment of countries, only half of which qualified as “free” on Freedom House’s indices of political rights and civil liberties (the president of the ICJ is Shi Jiuyong, whose résumé includes stints in various ministries of the People’s Republic of China). One judge, Nabil Elaraby of Egypt, was challenged by Israel, but, with the support of all his colleagues save Buergenthal, refused to recuse himself from the case. Elaraby, a former Egyptian diplomat, had been involved in matters touching the substance of the case at hand, despite the stipulation of the ICJ Statute that “no member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties…or in any other capacity” (art. 17, para. 2). Elaraby not only heard the barrier case anyway, but issued his own opinion concurring with his colleagues and arguing that they should have gone even further than they did.

In its advisory opinion—itself an amazing 64-page document that managed, despite the context of the issues involved, to mention “terror” or its derivatives only five times, all of which were within quotation marks and attributed to Israeli representatives—the ICJ not only found the Israeli security barrier illegal, but determined that it “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (Legal Consequences, para. 122). Even conceding to the factious Palestinians who have yet to credibly renounce violence and terrorism the right to an independent state—a right that one might surmise that Court President Shi would not extend so generously to peaceful Tibetans—such a right must, by the traditional rules of jurisprudence, be balanced against Israel’s right to self-defense. In fact, the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts holds that “the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations” (art. 21). However, in its opinion, the ICJ was dismissive of Israel’s right, employing a circular type of logic: "Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State."

The Court also notes that Israel exercises control in the occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defense.

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case. (Legal Consequences, para. 139).  

It does not take much imagination to foresee the perilous consequences of this type of “reasoning,” not only for Israel, but for the U.S. and, in fact, for all nation-states. The ICJ essentially ruled that a sovereign state’s inherent right to self-defense applies only with respect to armed attack by another sovereign state. By this “logic,” America cannot invoke self-defense in its global campaign against terrorism since al-Qaeda and its related groups are not sovereign states. However, unwilling to limit itself to an exercise in specious legal reasoning, the Court proceeded to absurd findings of “fact” and dispensed not just legal, but tactical and political advice:

The Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. (Legal Consequences, para. 137)

The ICJ did not support these conclusions—which, by second-guessing military decisions, go beyond anything even the most activist U.S. court would dream asserting—by reference to some extensive expert testimony or overwhelming prima facie evidence. Rather, by its own admission, the Court relied almost exclusively on the written “factual summaries” prepared by UN Secretary-General Kofi Annan; this was the sum total of the “material available to it.” The ICJ pronounced itself “not convinced” by Israeli arguments of military necessity and national security, but gave no reason why the Israeli explanations, contained in a detailed 110-page submission, were judged inadequate.

In short, a juridical body whose members have no real democratic accountability—in fact, some of them represent regimes hardly noted for their own respect for the rule of law, a datum that vitiates against the Court’s legitimacy—twisted legal reasoning to arrive at a sweeping political decision: “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due note of the present Advisory Opinion” (Legal Consequences, para. 163). While normally the ICJ’s statutory writ only extends to countries that accept its jurisdiction (art. 36)—something Israel as a sovereign state is under no legal obligation to do and which, in fact, it explicitly repudiated in the present case— by remanding the matter to the UN to take “further action” to implement the ruling, the Court effectively penalized a sovereign state for exercising its inherent right to be bound only by its own consent. This is a sleight of hand that the U.S., a non-signatory to the Rome Statute of the ICC, would do well to take notice of. And while Israel, tragically used to living amid near-universal hostility, is in a good position to consign the ICJ’s opinion to “its place in garbage can of history” (in the succinct phrase of Raanan Gissin, a senior advisor to Prime Minister Ariel Sharon), many other countries—whether because of their small size or extreme poverty—will not be able to afford to remain truly independent players on a world stage managed by the “consensus” of international tribunals.

Consequently, while in the grand scheme of things the ICJ’s ruling may only be temporary political setback for the Israeli government in its quest to fulfill its ultimate responsibility of providing security for its people, it is nonetheless a timely reminder to the United States and every other sovereign nation that the age-old verities of national political life are also applicable to the global societas.  Hence, in the absence of a common legal framework of reference and a democratic “world government” in which a truly global tribunal might be imbedded, submission to any “world court” is not only indenture to judicial tyranny, but, in the dangerous real world of today, a potential suicide pact.    

Dr. J. Peter Pham is an international lawyer and former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press). His monographic study of the legal philosophy of the United Nations appears in the current volume of the Indiana International and Comparative Law Review.