TCS Daily

Waging 'Lawfare': Some Good Unintended Consequences

By Michael Rosen - August 25, 2004 12:00 AM

Carl von Clausewitz famously called war "the continuation of politics by other means." But in the nebulous realm of international law, the quest for "justice" is sometimes nothing more than an extension of war by other means. Take the recent advisory opinion by the International Court of Justice (ICJ) condemning Israel's security fence. The 14-1 decision is riddled with inconsistencies, legal mischaracterizations, and outright errors; far from ensuring a speedy resolution to the Israeli-Palestinian conflict, its chief result will surely be to further the international campaign to delegitimize the Jewish state. But at the same time, one month after the ICJ's opinion was issued, it is evident that in several important ways it may actually prove beneficial to Israel.

Begin with the ruling's problems. They are legion, almost so much so as to defy enumeration. They have also been described in great depth and with great frequency elsewhere by international lawyers, scholars, and UN representatives. But it is important to highlight a few key areas where the ICJ committed inexcusable mistakes, namely in the areas of terminology, jurisdiction, and the international law of self-defense.

To begin with, the opinion described the security fence as a "wall" despite the fact that all but 7% of the barrier is actually a chain-link fence. The court also referred, in traditional UN fashion, to the "Occupied Palestinian Territories" and to Palestine even though the relevant Security Council resolutions call on the parties to negotiate the final status of the disputed lands. Finally, and most tellingly, the ICJ refused to employ the word "terrorism" other than when citing Israel's brief. These slanted usages give away the court's decision even in the early pages.

In addition, the ICJ failed to demonstrate how it has jurisdiction over the conflict in the first place. Under relevant UN rules, when the Security Council - where the U.S. wields a veto - is acting on an issue before it, the General Assembly (GA) has no authority to act in its place. But in this situation, despite the fact that the Security Council had in November 2003 considered and approved the Roadmap to Peace - a plan for a comprehensive resolution of the conflict - the Assembly voted to send the security fence dispute to the ICJ in December. The court considered this a proper request because the Council had rejected a proposal regarding the fence in October 2003 and because the Roadmap contained no mention of the fence. Yet simply because the Council failed to resolve the narrow fence issue while actively engaging a broad plan for a complete settlement to the dispute cannot fairly be described as a failure to act that would justify action by the Assembly. Ironically, later in the opinion, the ICJ describes the fence as prejudicial to peace. In fact, by insinuating itself into an inherently political conflict at precisely the wrong moment, the court itself prejudged the outcome and helped prevent the advent of peace.

Finally, and most gravely, the ICJ wreaked havoc on Article 51 of the UN Charter, which preserves the "inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations." According to the court, in an unprecedented interpretation, this article refers only to attacks by one state against another. Such a reading would seem to render illegal any action taken by states against terrorist groups. This approach, according to several scholars as well as the dissenting American judge, is squarely at odds with the Security Council resolution passed on September 12, 2001, invoking Article 51 and reaffirming international support for the United States in its quest to defeat Al Qaeda. The ICJ's new interpretation spells trouble for the war against terror.

Despite these egregious legal miscues, however, Israel may yet stand to gain from the ICJ decision. First, by resolving the issue of the fence's legality once and for all, the advisory ruling has effectively taken this simmering issue off the stove. Without the looming threat of a harsh judicial decision, the anti-Israel forces are deprived of an important rhetorical weapon. To be sure, the opinion can now be wielded as yet another blunt tool with which to browbeat Israel and will likely be taken up by the Security Council after the U.S. election. But in fact the ICJ decision will simply join the heap - or as Israeli Prime Minister Ariel Sharon's aide called it, "the garbage can of history" -- of UN resolutions and pronouncements denigrating the Jewish state.

Second, the resolution of the fence debate has begun to force the Palestinians to turn inward and resolve their own problems. In the wake of the opinion, and probably because of it, the Palestinian Authority (PA) has been thrown into serious turmoil. While the PA and its supporters initially hailed the opinion, and the subsequent GA resolution adopting it that passed 150-6, delight rapidly gave way to tumult. After a July 11 suicide bombing in Tel Aviv underscored the terrorist threat that the ICJ opinion all but ignored, PA Chairman Yasser Arafat accused Israel of being behind the bombing. Then on July 14 Arafat barred Terje Larsen - the U.N.'s Middle East envoy, one of the architects of the Oslo peace process, and certainly no enemy of the Palestinian people - from the Palestinian territories after Larsen publicly criticized Arafat for failing to carry out reforms and to stop terror attacks.

But declaring Larsen persona non grata did nothing to dispel the loud and often violent calls for reform and an end to corruption among Palestinians, protests that culminated in the decision of PA Prime Minister Ahmed Qureia to resign on July 17. Then, on July 20, in a transparent attempt to distract attention from the growing domestic crisis, Arafat reportedly accused Israel of using depleted-uranium bullets to shoot Palestinians. Ultimately, on July 27 Qureia and Arafat patched things up and the turmoil appeared to subside. But the situation in the PA remains highly volatile. On August 3, Jordan's King Abdullah harshly criticized Arafat for his indifference to real reform and his failure to bring his people much of anything after nearly four years of violence. And on August 18, Arafat was forced to admit "making mistakes." All told, the advisory opinion appears to have unleashed pent-up domestic disputes among the Palestinians and within the Arab world.

Third, the opinion has provoked a backlash, particularly in the United States, that has inured to Israel's benefit. The U.S. Ambassador to the UN, John Danforth, excoriated the decision in the harshest of terms, stating that the decision was unbalanced and inappropriately reflected political considerations that have no place in a court of law. A bipartisan House of Representatives passed by 361-45 a resolution condemning the ruling as an infringement upon Israel's right to self-defense. And while Israel did not require the ICJ's opinion to strengthen its already close bond with America, the court's evisceration of the right to self-defense in the face of stateless terrorists has underlined more sharply than ever the commonality of the enemies faced by both Israel and the U.S.

But Israel may also benefit from the opinion in the legal realm in two ways. First, the court recognized that Israel "has the right, and indeed the duty, to respond [to deadly acts of violence against its civilians] in order to protect" their lives while concluding that the hardships imposed on the Palestinians were disproportionate. Yet the ICJ repeatedly qualified its findings of the illegality of Israel's actions as based "on the material before it." This language is an unsubtle reference to the refusal of Israel, which did not consent to the court's jurisdiction, to supply the court with arguments on the merits of the case, including any statistics or facts about how many lives the fence has saved. While Israel's positions on many of the issues were available in other documents that were before the court, the Jewish state did not itself adduce any evidence. Thus, it is at least conceivable that had Israel made a more forceful showing on the case's merits the ICJ might have balanced the arguments differently. To be sure, in this instance, Israel properly refused to present evidence in order to preserve its jurisdictional protest. But in the future, if the Jewish state is compelled to offer its arguments, the court, which at least recognized Israel's security needs, may rule differently.

Second, and more importantly, the court's very reformulation of the international right to self-defense may have provided Israel with a powerful argument for future actions against Palestinian terrorists. The court repeatedly referred to Israel as the sovereign power in control of the territories and therefore found that Israel was not responding to a state party by building the fence because the terrorists came from territory under Israel's own jurisdiction. Leaving aside the implausibility of the premise and the circularity of the conclusion, the ICJ opened the door to legalizing Israel's actions if they are designed to combat a threat emerging from a sovereign Palestinian territory. And given that Israel intends to begin withdrawing unilaterally from the Gaza Strip and areas in the West Bank, it will soon be able, presumably with the court's approval, to attribute the attacks to a sovereign actor. For instance, suicide bombings committed by Al Aqsa Martyrs Brigade can easily be attributed to Fatah, Arafat's faction within the PA; once the PA assumes sovereign jurisdiction over Gaza and portions of the West Bank, attacks originating from those areas will legally be fair game for an Israeli response.

Some scholars have accurately characterized this attempt to demonize Israel through the international courts as "lawfare." But in waging lawfare the General Assembly and the ICJ have primed the battlefield, however slightly, for Israel to prevail.

Michael M. Rosen is a TCS contributor. An attorney in San Diego, he is a recent graduate of Harvard Law School.


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