A Critical Take on Israel and the ICJ

My former colleague and friend Wadie Said has a rather different take on the recent Israeli Supreme Court decision refusing to follow the ICJ’s advisory opinion on the legality of the “security fence” Israel has erected. My original post observed that the Israeli Supreme Court was quite deferential toward international law, but not the toward the ICJ’s interpretation of international law. I quoted more or less approvingly from the concurring opinion of the Court’s Vice-President Chesin and I think the Israeli court’s opinion was pretty reasonable. Wadie’s more critical comments follow:

Essentially, my most immediate reaction to Chesin’s remarks that were quoted from the opinion was that they were a little bit much and I’ll tell you why. Israel had a chance to appear at the ICJ and plead its case, but chose not to. Complaining now that the ICJ did not take into account adequately the security situation Israel faces is a bit rich, especially when it made a conscious decision not to appear and represent itself. The ICJ decision itself also came with several other concurring opinions, and, taken in toto, the judges definitely went to great lengths to discuss Israel’s security situation. In the United States, we would not give too much thought or consideration to a litigant that complained about the contents of a judicial opinion in a case where that litigant did not appear and was subject to a default judgment.

The second point I would make is that Israel enjoys a well-developed and quite well-regarded legal system based on the common law tradition. Additionally, its Supreme Court prides itself on being quite an enlightened and liberal body that takes very seriously notions of international and human rights law ib issuing its decisions. Where that all goes off the rails in my view is when the Supreme Court is asked to step in what are referred to as “security matters,” which are virtually everything related to the West Bank and Gaza Strip. In those case, the Israeli Supreme Court will defer almost inevitably to what the security services want and the occupied Palestinians themselves will be the losers. This is most plainly evident on the issue of torture, for example, where the court finally outlawed the use of torture against Palestinians by the security services in 1999. Of course, the decision itself was deeply flawed because it allowed for the possiblility that torture might be alright in the much-ballyhooed and semi-mythical “ticking bomb” case, but it was widely hailed as a sign that Israel was beginning to break free from the security excesses of the past. Unfortunately, the use of torture re-emerged in a widespread manner shortly after this latest intifada broke out in September 2000.

Torture came back as the norm – if it ever really disappeared at all – with a vengeance (it is applied exclusively to Palestinians and never to Israeli Jews), well before the first suicide bombing of this intifada. Therefore, the key question in my mind would be – how effective have the harsh interrogation methods in use on Palestinians since 1967 been, in light of the fact that the conflict is as violent and unresolved as ever? Alas, this question is never asked by the Israeli authorities of themselves. So, in essence, while there is much more I could write on these issues, I will stop a) because I don’t want to bore you anymore and b) because more commentary would necessarily implicate getting into the inner workings of the conflict. I have tried to avoid b) and just focus on a critique of the legal aspects of this issue, since I am normally dismissed as hopelessly biased on this point.