The Washington dilemma
By Nathan Guttman
Haaretz, January 26, 2004
WASHINGTON - In the coming days the United States is expected to decide what to do about the suit against the Israeli separation fence at the International Court of Justice in The Hague. The approaching deliberations are putting Washington in a delicate situation - the United States is not a big fan of expanding the authority of the International Court and the transfer of disputes between nations for adjudication there, but it is also far from liking the separation fence that Israel is erecting in the territories.
Along this narrow path the administration will have to act during the coming weeks: How to prevent the International Court of Justice in The Hague from becoming a permanent factor in international affairs, without thereby causing Israel to see this as America's agreement to the continued construction of the separation fence.
Ever since the United Nations decision to send the issue of the separation fence to the International Court of Justice, Israel has been making a concerted effort to convince the American administration to stand by it in this matter. The subject was brought up last week in the discussion between the director of the Prime Minister's Bureau, Dov Weisglass, and National Security Adviser Condoleezza Rice and in talks that the legal adviser to the Foreign Ministry, Alan Baker, held with his opposite number at the State Department, William Taft. It was also brought up by Foreign Ministry Director-General Yoav Biran in his meetings with senior State Department and National Security Council officials.
The message that Israel is sending to the U.S. is that the issue to be discussed at The Hague is not the question of whether the separation fence is good or bad, but rather whether the International Court is becoming the supreme forum for settling questions of international affairs. The United States is perhaps the only power in the world, but if it is the International Court of Justice that makes the decisions, then America's diplomatic strength as a power is getting eroded.
In recent days the United States has embarked on consultations with its allies around the world on the question of how to proceed during the deliberations in The Hague. In talks with representatives of Israel, the administration people made it clear that they are opposed to the deliberations, but are considering what the best tactics might be for dealing with the matter. One possibility is that the United States will submit a deposition to the court in which it expresses its opposition to a decision against Israel in the matter of the fence. The submission of a deposition (or, for that matter, the sending of a representative who will appear in person before the court) alone, without other countries, will of course strengthen the impression on the part of U.S. opponents that the American administration is isolated in its declared pro-Israeli position, but it also has an advantage: If the U.S. goes to the court alone, it can submit an energetic and consistent defense brief for Israel's right to build a fence in principle and of the need to discuss the route of the fence in some other forum - that is, in direct negotiations between Israel and the Palestinians or in a forum mediated by the United States and the Quartet (the U.S., the UN, the European Union and Russia).
A wishy-washy danger
The second possibility under consideration is to submit a group deposition along with additional countries, such as Canada, Australia and EU members. The advantage of this alternative is clear: such a deposition would carry a lot of weight because it represents the entire Western world and reflects a consensus regarding the need to avoid bringing issues of international relations to the International Court of Justice. But it also has a disadvantage: if the United States wants the European states to sign its deposition, it will have to enter into negotiations with them over the precise formulation. The Europeans' positions differ from those of the United States, their opposition to the fence is more intense, their sympathy for the Palestinians is greater and they are more decisive about their desire to maintain the status of the International Court. The danger in going jointly to the court, from Washington's perspective, is that in return for enlisting the maximum number of signatories, the deposition will turn into a tepid and wishy-washy document.
America's relations with the International Court of Justice in The Hague are, anyway, not spectacular. The U.S. is currently in the midst of a dispute with the legal institution on the question of the death penalty that exists in the United States. This is in the wake of the Mexican government's application to the court to prevent the execution of 52 Mexican citizens who are waiting on death row in American prisons - These are Mexican citizens who had been living in the United States, most of them illegally, and who have been convicted of murder there. As far as the United States is concerned, they are convicted murderers who have been sentenced to death and therefore the sentence must be carried out, but the government of Mexico, in its application to the court, has argued that the United States is violating the decisions of the Vienna Convention in that it is not allowing the Mexican prisoners aid from Mexican consular representatives.
On the docket is the case of Oswaldo Torres, a Mexican citizen who has been convicted in the state of Oklahoma of a double murder, and is awaiting execution. At the request of the Mexican government, the court in The Hague ruled that the execution must be stayed until the extent to which the United States is in compliance with the Vienna Convention - to which it is a signatory - is clarified. The U.S. admits it did not inform the Mexican legation of Torres' arrest as required, but it is arguing that the matter is not relevant to the investigation and that its results would not have been any different even if he had been allowed to talk to a representative of his government.
The lawyers who represented Mexico at the International Court of Justice say that had Torres been given the opportunity to talk with someone from the Mexican Consulate, it is possible that his investigation and his entire trial would have been conducted differently. In the meantime, the state of Oklahoma is obeying the decision of the International Court of Justice and is not executing Torres, but the United States as a country does not take kindly to the international intervention and is arguing that it is not the job of the judges in The Hague to determine how the United States must abide by its commitments to the Vienna Convention.
Despite the dissatisfaction of the United States with the court's ruling on the debate over the death sentence and its reservations about the court dealing with the separation fence that Israel is erecting ("the wall," in the terminology of the court itself), the United States does take the institution in The Hague very seriously. America sends representatives to the court's deliberations, invests effort in persuading the judges and sees it as an important and legitimate international body, even if it does not always obey its decisions.
Only two months ago the court ruled in favor of the United States, in a suit filed against it by Iran, which claimed that the American bombardments of Iran's offshore oil rigs in the Persian Gulf in 1987 were not in violation of the trade agreement between the two countries that had been signed three decades earlier. The court did rule that the bombardments were an unjustified use of military force, but on the question under discussion - the Iranians' rights under the trade agreement - it found that the United States had acted properly.
It is precisely the decision on the Iranian matter that reinforces to a large extent the argument of those who oppose the court and hold that its decisions are taken on a political basis. The ruling that determined that the United States had not infringed on Iran's trade rights was supported by the majority of the judges on the bench and only the two representatives of Arab states preferred the Iranian side. The opponents to sending the discussion of the fence to The Hague explain that this is exactly what could happen at the end of the process: Those who in any case object to Israel's policy in the territories will vote against Israel and therefore the procedure is a political one and not a legal one.
America's fear
In contrast to the respect it shows for the veteran institution in The Hague, the United States has a truly hostile attitude toward its younger brother, the International Criminal Court (ICC). This court, which was established a year ago to deal with war criminals and which has the authority to adjudicate not only in disputes between states but also in the matter of individuals who are charged with crimes, earned harsh criticism from the administration of President George W. Bush and from Congress, which has also refused to ratify the convention regarding the membership of the United States in this court.
The Americans, who have found themselves in a dispute with the United Nations over the question of the court and who have even threatened to withdraw their soldiers from the peacekeeping forces that are operating in various places in the world, fear that it will serve as political stage for trying American soldiers and statesmen for actions they have carried out overseas. In belligerent statements by leading members of Congress, it has been argued that every American soldier is liable to find himself, once he returns from the battle arena, on trial in an international court for having obeyed the orders of his superior officers.
This fear also plays a key role in the attitude of the United States toward the deliberations in The Hague on the matter of the separation fence. If the opponents of the fence succeed in getting a binding decision against Israel at the court, this will pave the way for a series of possible complaints to the court against the United States. If the disputed separation fence between the Israelis and the Palestinians is a matter for deliberation at the International Court of Justice, it is clear the American presence in Iraq could come up for deliberation, as could the holding of the foreign detainees without legal rights at the United States' prison installation in Guantanamo Bay.
The American fear is based on the "Belgium precedent" - the Belgian law that allowed the bringing to trial of foreign leaders in its territory. At first, Israeli Prime Minister Ariel Sharon was targeted, but immediately afterward there were people who were ready to act to try senior members of the American administration. In this case, the government of Belgium found itself facing massive American pressure that led to the amendment of the law and to the elimination of the possibility of putting foreign leaders on trial. In the case of the International Court of Justice in The Hague, the United States is interested in setting the limit even before American policy finds itself in the defendant's dock.
