Enforcing international law

a conversation with Stephanie Koury

bitterlemons: Palestinian United Nations observer Nasser al Kidwa said that the UN General Assembly resolution on the fence/wall could be "the most important resolution of the General Assembly since the adoption of Resolution 181 of 1947," which split Palestine into Israeli and Arab lands. What did he mean?

Koury: Both the finding by the International Court of Justice and the UNGA resolution, which encapsulated the finding, are extremely significant. The UNGA resolution calls on Israel to abide by the findings of the ICJ decision, which found the wall and settlements illegal, and addressed the legal realities that Israel has been denying since 1967. The court affirmed that the territories are occupied, not disputed, and that the Fourth Geneva Convention is de jure applicable, which Israel has always denied. Even the dissenting judge, American Thomas Buerghenthal, recognized that settlements are illegal and that the portions of the wall built around the settlements are therefore unlawful.

The ICJ showed how both settlement policy and the wall change the demography of the occupied territories and are therefore illegal. The wall is creating conditions that oblige Palestinians to leave by violating their rights to freedom of movement, health, education, work, and an adequate standard of living. The court also found that the wall created de facto annexation, and rejected Israel's argument that it is a temporary measure. It also implicitly rejected Israel's characterization of its relationship with the territories as armed conflict instead of occupation. As an occupier, Israel should maintain security with police measures in accordance with the law applicable to occupation, not shelling, assassinations, and other measures used in war. There is a difference in terms of the scope of force that can be used under armed conflict versus occupation.

bitterlemons: Why didn't Israel's entreaty to address the reason for the fence (purportedly to defend against Palestinian terrorism) convince more delegations to vote no or abstain?

Koury: When you have the judicial organ of the UN giving a decision, it would have been a very difficult step for most countries to go against it, especially since most of these countries have been relying on international law in their policy statements. The court did address Israel's claims of needing to build the wall for security. The decision recognized that Israel has a duty to defend its citizens. Israel can take measures, such as building a wall on its own territory, to ensure its security. Israel can also take other measures inside the occupied territories, as long as they are in compliance with international law. The combination of these factors left Israel without the votes it wanted. In essence, it was a question of whether or not you support international law. International legal obligations are a fundamental issue for many countries. The European Union was formed on the basis of public international law.

bitterlemons: The EU abstained from last December's UNGA resolution requesting a legal opinion from the ICJ. It inserted language into this year's resolution that made it more balanced, taking into account Israeli concerns, and said it disagreed with some elements of the ICJ opinion. Finally, al Kidwa thanked the EU for its efforts to ensure wider acceptance of the resolution. Is the EU trying to play a bridging role, or are we seeing internal differences or the results of US pressure?

Koury: The EU has three interests with regard to these issues: to play a role in the peace process, to have good relations with Israel, and to uphold international law. First, the EU wants to play a larger role in the peace process and to start political dialogue between the two sides. As a member of the Quartet, it has an interest in the implementation of the roadmap. The Quartet is the first time it has had a direct, sustained political role in the peace process, and it wants to maintain it.

Second, the EU wants to expand its relationship with Israel, which it views as being in its neighborhood. Third, the EU position, as noted in policy statements, is to promote and support adherence to international law as a fundamental element of international relations. So inserting language about both parties needing to comply with international law enabled the EU to appear balanced and therefore maintain both its interest in the peace process and support for international law. Also Israel gave EU Secretary-General Javier Solana the cold shoulder because of EU support for the resolution. This is a card that Israel plays. It threatens not to engage with the EU to try to manipulate it when the EU takes a position based on international law.

bitterlemons: Israel is refusing to make any change to its fence/wall plans other than those required by its own High Court. What will be the international community's next moves to force compliance?

Koury: The resolution leaves open the UNGA Emergency Special Session's taking up the issue again, going to the UN Security Council, or the Swiss reconvening the conference of high contracting parties of the Fourth Geneva Convention. In the latter case, like-minded states would consider further steps to get Israel to comply. Bilateral mechanisms like the European Community-Israel Association Agreement also present means of "passive" enforcement to bring to bear the protections of international law. Article two of the association agreement is on human rights. If Israel is in breach because the wall violates several provisions of international human rights law, there are measures the EC can take to bring Israel back into compliance with international law.

The decision also says that UN member states should ensure that their citizens are not engaging in the illegal situation (e.g., providing materials for constructing or maintaining the wall, providing weapons for security at the wall). Member states should ask themselves, are their aid policies contributing to Israel's being able to continue policies associated with the wall, such as closure? How can their aid policies better support their political positions of insisting on adherence to international law and the establishment of two states living side by side in peace? Also member states cannot recognize Israel's treatment of the territory as its own, e.g., by requiring Palestinians working for bilateral aid agencies to have permits to enter Israel when they are in fact between the wall and the green line but still within the West Bank.

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-Published 26/7/2004