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July 25, 2004

Will US give veto over the wall?

Dr. Liaquat Ali Khan

A threat to the rule of law is in the making. Before long, the United Nations Security Council would be moved to force Israel to dismantle the wall. Hoisting its veto, the United States would block the move. And the world would conclude -- once again and rightly so -- that the US cares little about international law and the World Court.

In an unprecedented ruling, the World Court has declared that the separation wall Israel is building in occupied Palestine is contrary to international law, and must be dismantled. The Court further demanded that Israel make reparation to all persons whose homes, businesses, and farms were destroyed and confiscated for building the wall. Most importantly, the Court asked the Security Council "to take action to bring to an end the illegal situation resulting from the construction of the wall."

This explicit entrustment to the Security Council to enforce the ruling of the World Court raises high stakes for the international legal system. For if the Council fails to take action, the Court will lose credibility, even the rationale for its existence. True, the Court's decisions have been ignored before. But before, it was the loser state, and not a UN organ, that refused to comply with the judgment. And most often, the non-compliant state held a veto in the Security Council. The world tolerated this anomaly of non-compliance as a special privilege of permanent members of the Security Council.

This time, far from having a veto, the loser state (Israel) is not even a member of the Security Council. Furthermore, the Court's call for compliance is made directly to the Security Council, the UN organ specially empowered to "give effect to the judgment." And the call is clear. It mandates that the wall be dismantled and victims be compensated. Rarely is such a perfect textbook case deferred to the Security Council, leaving for it no other option but to enforce the Court's judgment.

To pave the way for a US veto, however, the pro-Israel lobby has begun to undermine the Court's credibility. One well-known law academic has called the World Court a 'Kangaroo' and 'bigoted' court, advising Israel to defy its judgment and finish building the wall. Others are trashing the United Nations for referring this case to the Court. Prime Minister Sharon, the unyielding architect of the wall, remains determined, undeterred by the Court's ruling, to fulfill his dream of expanding Israel beyond its lawful borders.

Despite attacks on the Court's authority, the truth remains that its judgment against the wall is founded on a remarkable degree of judicial consensus. Fourteen judges of diverse cultures and nationalities, including the ones from China, Russia, France, and the United Kingdom--the four veto-holding members of the Security Council -- favoured the Court's decision on demolishing the wall. The sole dissenter on key issues, including the one calling the Security Council to enforce the judgment, was the American judge, whose dissent contradicts the very basics of international law that he, as a law professor, has ably taught to generations of law students in the United States.

The dissent will carry little weight in Security Council deliberations. China, France, and Russia, along with most non-permanent members, would support a resolution for enforcement of the judgment. Even the United Kingdom, whose government has ceased to think independently and routinely follows the White House, might not betray the verdict of its own judge on the Court who voted in favor of every issue, with no exception.

Should the US refrain from using its veto, a unanimous Security Council is available to pass a resolution giving effect to the Court's judgment.

But surely, the US would unlikely favour a resolution that compels Israel to comply with the Court's judgment -- not in the election year when both presidential candidates are boogie dancing to please millions of pro-Israel voters. Campaigning on the same side of the wall, both candidates would argue that the Court has decided a "political case" and not a legal case, and that the Court's decision, if implemented, would interfere with the Peace Process that the Security Council had previously endorsed. Few voters would know that the World Court has specifically addressed these arguments, and rejected them all. To win pro-Israel voters, the Bush Administration would veto the resolution, and John Kerry would seal his lips to save any unintended slips of the tongue.

Come what may, international effects of the US veto will be grave. When the wall is completed, Israel would have grabbed more than 16% of West Bank; around 500,000 Palestinians would have lost their homes, businesses, and agricultural holdings; and more than 300,000 Israeli settlers would have dug deeper in the Palestinian territory. With all this, the Muslim world would find more reasons to hate America, and terrorists more reasons to kill. Even many Israelis would detest the perpetuation of injustice, as would the fourteen judges of the World Court . And the peoples of the world would say that the US commitment to international law and human rights is empty.

Dr. Khan is Professor of Law at Washburn University in Kansas.