By David Matas The Globe and Mail (Canada) July 12, 2004
Every time a court gives judgment, justice itself is on trial. The court judges the parties, and the public judges the court.
The United Nations General Assembly request for an advisory opinion to the International Court of Justice on the legality of Israel's West Bank security fence was the most formidable challenge to the international justice system the world has seen. The General Assembly made that request by resolution last December, with 90 votes in favour, less than half of the UN's membership. Eight states voted against, 19 did not vote and 74 abstained; so, on balance, 101 states did not support the request for an advisory opinion.
On Friday, the court replied, finding the fence to be a violation of international law. By doing this, the court failed the test of justice in spectacular fashion.
The General Assembly has become corrupted by an anti-Zionist lobby that happily undermines the UN's ideals to pursue a political agenda. The General Assembly is supposed to be a peace-seeking organization; when it comes to Israel, however, it is a war-mongering organization, passing one politicized anti-Israel resolution after another.
Since the creation of Israel in 1948, the rejection of its very existence by Arab states and the Palestinian leadership has been the main obstacle to peace in the Middle East. In the wars and terrorist attacks against Israel, one-sided UN resolutions have been ammunition, an extension of the fighting by other means. And with each anti-Israel resolution, the prospect of peace recedes.
The cancerous growth of anti-Zionism has spread from one organ of the UN to another, and anti-Israel denunciation has become the principal item of business. That is certainly true of the UN Commission on Human Rights, which has abandoned its human-rights vocation to focus on Israel and ignore real violations by countries with abominable human-rights records.
The General Assembly request for an advisory opinion, though in form a request for a legal opinion, in reality raised the question of whether the ICJ would also be corrupted by this anti-Zionist cancer. The answer, regrettably, is yes.
In principle, the court did not have to answer the question. Canada, though abstaining on the General Assembly resolution requesting the opinion, filed a brief with the court stating that the legal issues surrounding the fence "would be more effectively addressed in a broader negotiation context rather than within the procedural limitations of a judicial hearing." Thirty-two other countries took a similar position. But the court demurred.
The problem is not just that the court answered a question it should not have answered; it's also the answer it gave. As Israel's Supreme Court itself recently noted, there are legitimate criticisms that could be made concerning the fence's route, where disruption to the lives of the people affected outweighs the security value.
But the ICJ's rulingwas a different matter. Without making findings of fact, the court said "it cannot remain indifferent" to a whole series of anti-Israel slanders about occupation, territorial annexation and the settlements, and then proceeded to give them weight.
The image of justice is a blindfolded woman holding scales. In the case of Israel, the UN General Assembly and the court put their thumbs on the scale.
An emergency session of the General Assembly is, no doubt, up next, with a resolution calling on Israel to respect the ICJ's opinion. Canada should act consistently with its own ICJ position, and vote against this resolution.
Israel can survive yet another piece of anti-Zionist propaganda labelling its every effort of self-defence a crime against humanity. What is less certain is whether the cause of international justice and the court itself can survive its politicization. Once the court has become so political, which states -- except the politically popular -- would submit to its judgments?
For Canada, for Israel, for most countries, the International Court gave advice it was not asked to give. Like all unwanted advice, it should be disregarded. For the sake of peace, the advisory opinion should be ignored. But for the sake of justice, it should be mourned.
