(Ed Morgan is a law professor at the University of Toronto and a member of SPME. He also founded Canadian Scholars for Peace in the Middle East, a separate organization from SPME)
Having denounced as illegal the building of a security fence between Israeli civilians and the Palestinians on the West Bank, the United Nations General Assembly has now asked the International Court of Justice (ICJ) for its opinion on the legality of the fence. The logic is not just reverse, it’s perverse. The world body is about to jump out of the cauldron of Middle East politics and directly into the fire of the law.
In this procedure for an “advisory opinion,” every UN member state, plus the Palestinians who have been given a special right of appearance, can participate. Written submissions about sovereignty and territory are being worked on by the principle parties to the dispute, and they have all hired their favourite British barristers on the theory that in the glib world of international real estate, it’s locution, locution, locution… Other countries are no doubt mulling over the question of whether they have anything to offer.
Canada, for one, might be wondering whether it is worth standing up to be heard. Given that the Israelis intend to raise a preliminary challenge to the justiciability of the entire question, the answer to that is clear. We not only have a stake in ensuring that UN institutions, of which we are avid devotees, are used appropriately, we actually have some experience that should make others take notice.
Although few other causes could realistically persuade the General Assembly to refer a question to the ICJ, if the Israeli-Palestinian issue can be sent to the judicial body anything can. Indeed, there is remarkably little difference between saying “as the General Assembly has asked the court to do -that “my Israel does not include Palestine,” and seeking an opinion on whether “my Canada includes Quebec.”
The Canadien government tried to judicialize this issue in the Quebec Secession case, and the world could learn a thing or two from the Supreme Court of Canada’s answer. When questions that affect the life of a nation -or, perhaps, two nations locked in a struggle over mutual self-determination -are put before a court, the law itself is in a no-win situation. There is either no legal answer to whether or not Canada/Quebec, Israel/Palestine, China/Tibet, Russia/Chechnya, Ireland/Ulster, etc., should have a border between -or there is a legal answer that someone will forever dispute. Either way, the credibility of the law is undermined.
The Supreme Court’s response was to say that there is a legal duty on the parties to resolve their differences through negotiation. It is an insight whose wisdom Canada should share with the ICJ. There are some doors that the law is not designed to open. After all, why would any Palestinian leader negotiate with Israel, why would the Bosnians ever talk to the Serbs, why should the Tutsis work to fashion a modus vivendi with the Hutus, if an aggrieved party can simply put its point before a sympathetic court knowing that one side will “win” and the other will “lose”?
This is particularly the case in a conflict where everything from water to refugees to all geographic boundaries (not just those demarcated by the present security fence) is in dispute. To attempt a crisp legal answer to each of these issues would be counter-productive. A quick look at Israel’s early history at the UN demonstrates the point.
On Dec. 2, 1948, U.S. Ambassador Phillip C. Jessup delivered a speech analogizing the Middle East to the Wild West. “We all know,” said Jessup, “that, historically, many States have begun their existence with their frontiers unsettled. Let me take as one example my own country, the United States of America. Like the State of Israel in its origin, it had certain territory along the seacoast. It had various indeterminate claims to an extended territory westward.”
Read the ambassador’s map from right to left, as in Hebrew and Arabic, and you will see the analogy. Israel’s neighbours, who shared the indeterminate border, had raised a self-defeating argument. Israel could not be sovereign, the allegation went, because it could not specifically define its territory. It had not, in other words, built a fence.
The UN dismissed the objection because borders themselves are truly important only in light of an even more important principle: No nation can be made subject to another’s attacks. As the ICJ itself has stated, it is people that determine the fate of territory and not the other way around.
Israel’s best argument is therefore the one that it won in 1948. Leaving territories unmarked or fencing them off are two alternative ways to protect the lives of people. And the lives of people locked in a conflict of nations can only truly be protected when the underlying politics of the dispute are resolved. No legal opinion or judicial advice can replace negotiation. Just ask Canada.
