Israel’s High Court Embraces International Law – But Not the ICJ

Israel has had a long and often unhappy relationship with international institutions, especially the U.N. Moreover, Israel’s struggle with the Palestinians and the Arab states has also given it good reasons to be suspicious of international law, especially the kind of international law used to restrain its military power. So it is not exactly surprising to see this recent decision from the Israeli High Court of Justice largely disagreeing with the conclusions of the ICJ’s 2004 Advisory Opinion, which found the “security fence” dividing Israel and Israeli settlements from Palestinian-controlled areas constituted a violation of international law.

On the other hand, the Israeli High Court decision is also remarkable in its assumption that most forms of international law, especially the customary international law governing armed conflict and international human rights treaties, has been incorporated into Israeli law and may be applied to constrain the activities of the Israeli government.

In fact, the Israeli High Court’s judgment differed from the ICJ’s judgment only in that it applied the law differently, but not because it disagreed that the various forms of international law applied. Both courts agreed that “the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other.” The reason for the difference in conclusions between the Israeli High Court and the ICJ flowed from different factual findings, e.g. that the security needs were greater than the ICJ realized.

In the end, the Israeli High Court did require the Israel government to reconsider the line as it applied to five villages, which the villages’ lawyer immediately declared a huge victory. But for me, the most interesting opinion in the case is the concurring opinion by Vice-President of the Court Chesin, where he expressed grave disappointment with the shoddy and political nature of the ICJ’s advisory opinion in this case.

International law has undergone many welcome revolutionary changes in recent decades. I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course). Public International Law was not seen by us – we the students – as worthy of the title “law”, and the institutions of the international community, including the International Court of Justice, received the same treatment. The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title “law”. That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court. Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts. Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court. For we have no lack of political forums.

. . . the factual basis upon which the ICJ built its opinion is a ramshackle one. Some will say that the judgment has no worthy factual basis whatsoever. The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment. The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment. Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion. I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible. And if all that is not enough, there is the ICJ’s almost complete ignoring of the horrible terrorism and security problems which have plagued Israel – a silence that the reader cannot help noticing – a foreign and strange silence. . . .

. . . I am sorry, but the decision of the ICJ cannot light my path. Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father’s household.