Will the Gaza Flotilla Dispute Go to the ICJ?

by Julian Ku

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.

http://opiniojuris.org/2010/06/10/will-the-gaza-flotilla-dispute-go-to-the-icj/

17 Responses

  1. 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.

  2. “….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.

  3. 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.

  4. 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.

  5. 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.

  6. 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…

  7. 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

  8. 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

  9. 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.

  10. 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.

  11. 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…

  12. 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.

  13. 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.

  14. 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

  15. 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.

  16. 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 bias that he asked for.

    Firstly, lets start with the UN resolution asking for it. It was voted for by 25 member States of the UN – Argentina, Bahrain, Bangladesh, Bolivia, Brazil, Chile, China, Cuba, Djbouti, Egypt, Ghana, India, Indonesia, Jordan, Mauritius, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russia, Saudi Arabia, Senegal, South Africa, Zambia.
    See any countries there with a good record for rule of law and human rights? Democratic countries questioned jurisdiction of the ICJ on the matter from reasons ranging from the narrow, biased mandate of the request to the interference of the opinion on negotiations between the parties that were going on after the barrier was erected.

    Then there’s the wording of the Request for Advisory Opinion. Using the word “Wall” is inaccurate, as only about 1/15th of the barrier is a wall – the rest is fence and electronic surveillance
    The Request only asks about what Israel has done in a vacuum of context. In the analogy, it would be asking about the legal consequences of speeding down main street, without the context of the KKK lynch mob.
    In the words of Judge Higgins who sat on the panel of judges in the case: “…Yet the formulation of the question precludes consideration of that context…. in my view much, much more was required to avoid the huge imbalance that necessarily flows from being invited to look at only “part of a greater whole””

    In response to the Court claiming that it will look into the circumstances of the greater conflict, she writes: “…In fact, it never does so. There is nothing in the remainder of the Opinion that can be said to cover this point. Further, I find the “history” as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory….”

    Just like the African American who seems to lose the right to defend himself, and his attackers do not seem to be subject to the law, Judge Higgins writes:” I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory…” and: “…Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable. This is formalism of an unevenhanded sort….

    And that isn’t even from the dissenting opinion!

    Judge Buergenthal discusses the importance of seeing each section of the barrier and judging it individually rather than make a blanket opinion. : “…to reach a conclusion either way, one has to examine the facts bearing on that issue with regard to the specific segments of the wall, their defensive needs and related topographical considerations…”

    A few more excerpts from Judge Buergenthal’s dissenting declaration: “…The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case

    “…the Court fails to address any facts or evidence specifically rebutting Israel‘s claim of military exigencies or requirements of national security. …that the Court barely addresses the summaries of Israel’s position on this subject that are attached to the Secretary-General’s report and which contradict or cast doubt on the material the Court claims to rely on….

    “….Lacking is an examination of the facts that might show why the alleged defences of military exigencies, national security or public order are not applicable to the wall as a whole or to the individual segments of its route. The Court says that it “is not convinced” but it fails to demonstrate why it is not convinced, and that is why these conclusions are not convincing.”

    Another judge should have been excused from the proceedings given his previous public speech showing a bias that would affect the case. Judge Buergenthal said that Judge Elaraby expressed views bearing on the credibility and validity of arguments likely to be presented by the interested parties to this case and likely to affect its outcome.

    Finally, the opinio juris (the subjective element in IL, not this website) in the case was in part informed by resolutions of the UN and its organs. The UN makes its decisions based on the political machinations of the individual, largely non-democratic, member states – not on any legal or democratic values. The UN’s bias against Israel is almost legendary – the reaction to the recent libellous outburst by the Syrian representative, compared to the reaction to Canada’s description of Burma as a regime only being the most recent.

    As Hudson Institute scholar Anne Bayefsky noted: “The Council has adopted more resolutions and decisions condemning Israel than all the other 191 U.N. member states combined…. The more time the Council spends demonizing Israel, the less likely it becomes that it will ever get around to condemning genocide in Sudan, female slavery in Saudi Arabia, or torture in Egypt.”

    Using opinion from the UN members would be like taking a poll of the ‘rednecks’ to see what they think about African Americans speeding.

    To Benjamin Davis. As the lawyers on this site know, it doesn’t matter how true or good your case is, there’s always a chance you will lose. How much more so, if your judge and jury have a history of unfair bias against cases like yours.

    Israel is right – and has a right – to decline involvement with a court that has shown any bias.

    It would be like shooting craps with loaded dice.

  17. 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 to Israeli civilians, and the topography is such that nothing else would protect the civilians.

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