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On Kangaroos and Courts

Diana Buttu

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Even prior to its ruling on the illegality of the wall, the International Court of Justice (ICJ) was denounced by Israeli government pundits as a “kangaroo court.” After the ruling, one commentator opined, “The court is biased,” while another proudly proclaimed that the ICJ decision would “find its place in the garbage can of history.” The same stance was not, however, taken with respect to the Israel High Court decison. Justice Minister Yosef Lapid aptly summarized Israel’s position on these two decisions: “We will comply with our High Court decisions, and not with the International Court, whose decision is in any case a legal opinion for the United Nations.” Herein lies the fundamental problem: Israel reserves the right to act both as defendant and judge of any suit against it and will not accede to independent adjudication of its crimes.

Dividing humanity in any form at all is an unnatural act. When it excludes people from homes, farms, schools, and water, it is genocide.

Dividing humanity in any form at all is an unnatural act. When it excludes people from homes, farms, schools, and water, it is genocide.

It would be easy to dismiss the decisions of the Israel High Court on the basis of its track record. This is the same court that has failed to outlaw completely the use of torture against Palestinians; legitimized the presence of Jewish-only colonies built on stolen Palestinian land (now a war crime under international law); and legitimized the demolition of homes of suspected offenders and their families as a form of punishment (a tactic also used by Saddam Hussein in Iraq).

Yet this decision of the Israel High Court should not be dismissed outright. The court rightfully acknowledges that Israel is in “belligerent occupation” of the West Bank and Gaza Strip and correctly demands that Palestinians be compensated for Israel’s illegal actions. In an eloquent statement, the court noted, “Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for.”

Remarkably, despite this statement, the High Court failed to do the very thing that it was asked to do--determine a wall route based on the law. Why? Not because of malice on the part of the court but due to the fact that the court is, in essence, adjudicating the very crime that its authorizing state claims is for its benefit. “Our task is difficult,” Justice Barak writes, “We are members of Israeli society.” This statement speaks volumes.

In determining what impact Israel’s actions have on Palestinians, the High Court examines only what is best for Israel (a country that was not only built on the dispossession of others but has, for 37 years, tried to expand its territory) and not the rights of the people subjugated by Israel. In other words, the application of international law (with its inherent principles of justice and equality) is optional, not obligatory.

Because the Israel High Court views international law as optional, it fails to contest the military establishment’s pronouncement that the wall is necessary. More importantly, the High Court fails to adjudicate the most important questions: Why has Israel not built the wall on its pre-occupation border (the green line)--a shorter and more easily defended line? What is the link between the wall and the colonies? If the wall is truly about security, why will the proposed path of the wall leave more than 200,000 Palestinians trapped between the wall and the green line? It is therefore not surprising that the High Court only confined itself to calling for moving (not removing) a mere 30 km of the wall (less than 5% of the total length of the wall) because of the “disproportionate injury” caused to the Palestinians.

Juxtaposing the ICJ’s decision with that of the Israel High Court, one can clearly see the far-reaching power of an independent ruling based on international law versus one based on domestic politics. The world court correctly pronounced on the most basic (yet disputed) issues faced by Palestinians: that Israel is, indeed, in occupation of the West Bank and Gaza Strip (which Israeli government officials cannot even acknowledge); that the colonies are illegal, irrespective of whether they are in Jerusalem or otherwise; and that Israel has flagrantly violated the law for decades.

The world court went further than simply restating the law--it applied it.. By examining the current and proposed path of the wall, the 14-1 decision noted the following salient facts. The wall has been routed around not only the colonies but also their planned expansion, in an attempt to leave 80 percent of the settlers (320,000 Israelis) living in the West Bank colonies. More than 200,000 Palestinians would remain trapped between the wall and the green line. Of the more than 650-kilometer wall, only six percent (39 km) would be within 100 meters of the green line. Over 16% of the western side of the Occupied West Bank would be “de facto” annexed into Israel.

With these staggering facts, the ICJ could only conclude that the wall built in occupied Palestinian territory is not there for military necessity; it is there to consolidate Israel’s hold on the colonies. Though “security” is the proffered excuse, coveting Palestinian land (and water) is the real reason behind the wall. Because the colonies are illegal, so too is the very structure that is designed to ensure Israel’s hold on them--the wall.

Unlike the Israel High Court, the world court did not confine itself to a mere 30 km stretch of wall. It demanded that Israel demolish the entire wall built in occupied Palestinian territory; return the land, orchards, and olive groves it seized to build the wall; and pay compensation to Palestinians for all damages and losses.

The victory of the World Court decision lies not in the decision itself but in the reframing of the conflict. No longer is this an issue of two equal parties who cannot get along; it is about Israel’s 37-year military occupation and the inherent power imbalance. Many will dismiss the case as “non-binding,” and indeed, the decision is non-binding. However, the decision is based on law that is binding: UN resolutions and international humanitarian law. Accordingly, the World Court’s ruling affects not only Israel but also the international community.

Israel has, for 56 years, viewed itself as above the law and the Palestinians beneath it. That will not change. Israel will continue to trample on the Palestinians’ rights. It will continue to build Jewish-only colonies on Palestinian land, and it will continue to build the wall--unless it is stopped. The real test will be not what Israel does but what the international community will do: will it apply the power of law or the law of power?

I recently relayed to a friend Israel’s labeling of the World Court as a “kangaroo court.” “If it is,” he responded, “it is only because even a kangaroo would recognize that the wall is illegal.” It is a pity that the Israel High Court did not.


Published Tuesday, July 13th, 2004 - 05:24pm GMT

Diana Buttu is a legal advisor in the Negotiations Affairs Department of the Palestinian Liberation Organization.

Article courtesy of Bitter Lemons

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