10 Jun Will the Gaza Flotilla Dispute Go to the ICJ?
The Jerusalem Post reports that the Turkish government, in collaboration with Hamas, is considering applying to the International Court of Justice over the Gaza Flotilla incident.
The agreement to work together against Israel reportedly came in a Thursday telephone conversation between Turkey’s justice minister, Sadullah Ergin and his Hamas counterpart, Muhammad Faraj Al-Ghoul.
As the article points out, it is far from clear how the ICJ could get a case involving Israel and Turkey because neither state has accepted the compulsory jurisdiction of the ICJ. (For that matter, neither state has accepted the jurisdiction of the ICC either). The only way this case gets to the ICJ is as an advisory opinion referral. This could happen. I wonder if Israel would put up a defense. They have some pretty strong legal arguments. But is the ICJ biased against Israel? The 2004 Wall judgment doesn’t inspire confidence from Israel’s point of view, but the membership of the Court has changed. And I think that Israel would have a better chance at the ICJ than in the court of world media opinion.
Thanks for this post, Julian. I would add one potentially-significant factor re: the ICJ – the lone dissenting voice in the 2004 Wall Judgment, Judge Buergenthal, has resigned effective September. Who knows whether his replacement, who would be a rookie at the Court by any measure, would toe a similar line, particularly given growing displeasure in Washington with the Gaza blockade (and the siege more generally). Still, I agree that Israel has a better shot in the ICJ than the court of world media opinion.
“….the court of world media opinion.” That’s a strange expression. A kangaroo court, I’d say, which pays almost no attention to the facts, has no visible principles except the generation of good-guy-bad-guy contrasts, and renders decisions with unprecedented speed.
Then again, if the question posed to the ICJ is like in the Wall case, the result will be no better. The ICJ should not have issued an opinion in what essentially was a contentious case, as this will also be.
Response…
I should point out that Israel’s media and public opinion reach is far and wide. Israel is getting away with almost everything, in this “court” . It kicks the Palestinians out of their homes in Jerusalem, it takes Palestinians lands, it lays a siege against a 1.5 million Palestinians in Gaza, and still builds settlements all over occupied Palestinian territories. I would say that Israel is not a victim here and its accomplishments,( violations) on the ground, and in the courts, and in the public opinion are quite impressive. Thanks, of course, to its apologists around the World.
2 ArielM
I would not call Judge Burgenthal “the lone dissenting voice” in Wall case. Actually in his declaration he agrees with a lot of substantive findings of the majority opinion.
The ICJ Opinion in the Wall case is indeed very kind to Israel on the basis of the law as understood (though maybe not applied) by the majority of States. Various passages in decisions and opinions on South Africa, for instance, were much more contentious in terms of law…
In confirmation of what I said in an earlier post here, THIS IS S.S. LOTUS REDUX!
Of course this would be a joint submission of a question formulated by the two countries like:
“Did each state comply with its international law obligations with regard to the event and, if one or both did not, what are the remedies?”
Given Israel’s relatively strong ties with Turkey and the lack of interest of anyone here to “go to nuclear weapons” on this – it is a perfect solution for the countries to have a third party work through the issues and make a decision.
Excellent way to diffuse the situation. IL process at work.
Best,
Ben
When you try to run a blockade you are no longer a civilian. When you try to bash in my skull with a pipe you are no longer unarmed
As an organ of the UN, Israel has good reason to be suspect of it.
Again a couple of week’s ago the Syrian representative was given free rein to spout the most vile blood libels against UN member state Israel, including obscene claims that Israeli children are taught to sing “`With my teeth I will rip your flesh, with my mouth I will suck your blood.” The Council president saw no need to stop her.
On the other hand, when the Canadian representative dared to use the word “regime” to describe Burma, the council president interjected and told council members “not to use such language” when referring to UN member states.”
Can we really assume that the UN’s ICJ won’t reflect the wishes of its member states?
to Guy: “law as understood (though maybe not applied) by the majority of States”
Rule of law means that laws are applied equally to all parties.
I couldn’t find anything substantive/not Krauthammer regarding the ICJ’s bias in the 2004 case (aside from the tiny detail of no jurisdiction and why they even bothered), could anyone point me in the right direction? I agree with Benjamin, it would be fantastic if the ICJ could be put to use but a history of bias would not be favorable.
Dear Brian,
That is the sad truth. No powerful state wants the law to apply equally to itself. The US would never accept another country to kill people within its borders because they are defined terrorists; Russia would never accept an international criminal tribunal to deal with crimes of both sides committed in Chechnya; China would never accept peacekeepers in the event of clashes with Taiwan. It is only the small Yugoslavias or Rwandas or Lebanons that are obliged to accept interferences of this kind. Some might be better than none, but it surely is not rule of law…
If that’s the case then I’m guessing they will have to issue an opinion on wether Gaza is still occupied as well? Considering that the 2004 judgement was before the disengagement.
Is this a damn joke? Bunch of goons get their butts kicked and cry to ICJ I hpe the Isrealis continue to engage these anti-western civilization types.
Sigh!
One country’s goons are another country’s heroes.
Goons have a nationality and the state of which they are nationals can assert diplomatic protection for them and espouse claims on their behalf if the state wants to. Turkey considers the Israeli response an overreaction. Israel does not consider it an overreaction and considers it was proper. There is a dispute between two states. As an alternative to invective and the rest of it Turkey and Israel might very reasonably consider putting the very real dispute between them to the ICJ. The advantages for both are enormous – domestically and internationally their constituencies can be urged to allow the process to go forward. The process takes some time which can help cool tempers and, either side faced with an unfavorable result has the cover of their respective obligations to comply with the ICJ decisions – even when they do not like them.
So I think this is a great way to address this problem.
Best,
Ben
I started writing a reply, but it came out quite long. To make it easier for the readers, I’ll post a summary here, and the longer version (for those who are interested) in a separate post.
The ICJ has shown bias against Israel by ways including, but not restricted to:
(in no particular order)
1) Judging a “Wall” as a whole, where the barrier is only a wall for 1/15th of its length.
2) Disregarding Israel’s right to self-defence which would give context to the need for a barrier against terrorism
3) Having a Judge who has previously demonstrated bias in relevant issues
4) Using politically (not legally or democratically) motivated decisions by the UN member States to influence the legal opinion.
As to the humanitarian effects of the barrier, the decrease in terror that it afforded has allowed ties between Israel and the PA to improve. The reality on the ground is an improvement in the economy of the territory and the lives of its inhabitants.
I’m going to combine my replies to Fels, Guy and Benjamin here as there is a lot of overlap between them. On the topic of law not being applied equally to all parties, Guy wrote: “Some might be better than none, but it surely is not rule of law…” To give an example of some not being better than none, I’m going to use an analogical example. Where there is a law against exceeding the speed limit, but only African Americans who speed are charged but the sheriff turns a blind eye to caucasians who transgress the same law, it is questionable if that some is better than none. If an African American is speeding to get away from a violent KKK lynch mob shooting at him and the African American is charged, while the KKK shooters are not, that is definitely a case where some application of the law is not better than none. So we get to the question of whether there is bias against Israel in the ICJ. I’ll take you through a few aspects of the 2004 case that shows that there is, which I trust will give Fels the direction for substantive things showing the… Read more »
I came back to see if there were any replies before this thread closes, and on re-reading my already long post, realised that I haven’t elaborated on the problem of the wording in the request to the court. As there are no other replies, I’ll do that now. Judge Higgins describes the use of the word “wall” as an attempt to connect it with previous, irrelevant precedent that would favour the desired outcome of those who wrote the request. “…It is apparent (not least from the wording of the request to the Court) that an attempt has been made by those seeking the Opinion to assimilate the Opinion on the wall to that obtained from the Court regarding Namibia… I believe this to be incorrect for several reasons.” Judge Buergenthal wrote of the need to look at each section of the barrier “with regard to the specific segments of the wall, their defensive needs and related topographical considerations…” Devoid of the acceptance of Israel’s right to self-defence, the Court did not do this. Had they done it, they would have found that the sections of the barrier which were actually a wall are in areas where sniper bullets came across… Read more »