Tuesday, November 27, 2007

Since it IS Apartheid, what should we do? Part 5

As I mentioned in previous posts, recently on the Israel Palestine Forum there have been a number of comments posted on the topic Palestine: Occupation not Apartheid. I have argued that it is apartheid. I am posting excerpts from some of my posts where I suggest that international law be used since it says that apartheid is a crime against humanity.

Quote from X
And who exactly would be that court of justice, if I may ask? And even if they did actually create that miracle and come out with some judgment, who would enforce it?

Here is part 2 of my response - another potential "court of justice" to appeal to about the apartheid policy of the Government of Israel.

(NOTE – the resource I used for much of this is Wikipedia so please feel free to provide interpretations, comments, corrections, etc.)

Established in 1945 by the UN Charter, the Court began work in 1946. The Statute of the International Court of Justice is the main constitutional document constituting and regulating the Court. In this case, unlike the International Criminal Court, all 192 UN members are automatically parties to the Court's statute.

However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.


In contentious cases, the ICJ produces a binding ruling only between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Since the Palestinians do not have a State, the Palestinians cannot be a party. Even if it were or even if another State filed a case over the issue of apartheid, there is no doubt that the Government of Israel would NOT agree to let the International Court of Justice have jurisdiction.

In addition, if a judgment were entered against the Government of Israel in a contentious case and it refused to comply, the matter could be taken before the Security Council for enforcement. However, while Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them, one problem is that if the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua v. United States case, when Nicaragua brought before the Security Council the issue of the U.S.'s non-compliance with the Court's decision that called on the U.S. to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua saying that the United States was "in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war reparations.

Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply.

In addition, although the Government of the United States had previously accepted the Court's compulsory jurisdiction upon its creation in 1946, it withdrew its acceptance following the Court's judgment in the Nicaragua case in 1984

No doubt a judgment against the Government of Israel would at the present time be met by a veto by the Government of the United States.

ADVISORY OPINIONSThe advisory procedure of the court, however, is open solely to international organizations. The only bodies at present authorized to request advisory opinions of the Court are five organs of the United Nations and 16 specialized agencies of the United Nations family.

When deciding cases, the Court applies “international conventions, international custom, and the ‘general principles of law recognized by civilized nations’”.

On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates.

In 2004, the United Nations passed a number of resolutions and the International Court of Justice, following hearings in which Israel did not participate, issued a non-binding advisory opinion 7 July 2004, General List No. 131 (2003-2004) “Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory” calling for the barrier to be removed and the Arab residents to be compensated for any damage done: "The Court finds that the construction by Israel of a wall in the Occupied Palestinian Territory and its associated rĂ©gime are contrary to international law". Israel had submitted a document stating that it did not recognize the jurisdiction of the ICJ and supporting its claim that the issue of the barrier is political and not under the authority of the ICJ.

In principle, the Court's advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

What this means is that there is unlikely to be a contentious issue case involving the Government of Israel’s apartheid policy.

There could be a request for an advisory opinion, however.

While any opinion would not be binding, it could contain massive evidence and a powerful condemnation of the apartheid it found. The United Nations General Assembly's reaction might be (after also taking into account the court's ruling against the wall and the refusal of the Government of Israel over the last forty years to comply with United Nations Security Council Resolutions) to vote to urge and encourage the adoption by human rights organizations worldwide of actions against the Government of Israel such as boycotts, divestment and sanctions (even though the United States would block any attempt by the United Nations to do so by means of a Security Council Resolution.)

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