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The International Court of Justice (ICJ) is formulating its decision on a request from the General Assembly of the United Nations for an advisory opinion on Israel’s security fence. While the request appears to present a legal question, as is required by the U.N.’s charter, the ICJ has in fact been presented with a political conundrum that the court should not allow itself to be lured into. The language of the request is revealing. While it purports to ask the “legal consequences arising from” the construction by Israel of the security fence, the resolution begins, “Illegal Israeli actions . . . ” thus branding the action as illegal from the outset and assuming-against Israel-the central inquiry of the request itself. The legal consequences of the fence’s construction are, indeed, must be, fundamentally different if the fence is illegal in the first place. The request adopts the term “wall” to describe the structure being built, even though the secretary general’s report on the subject (commissioned by the Security Council) uses the term “barrier” and describes it as “a system of fences, walls, ditches and barriers in the West Bank.” As the report notes, the Palestinians have taken to calling it the “separation wall.” Why not use the neutral term-which carries the imprimatur of the secretary general-rather than the one favored by the Palestinians? The choice is one of imagery. Unlike fence, ditch and barrier, wall conjures up mental pictures of massive structures and permanent or quasi-permanent borders, similar to the Berlin Wall-with all of its historical baggage. However, of the nearly 120 miles of the barrier thus far constructed, less than 5% is made of concrete. The request goes on to characterize Israel as the “occupying power” in the West Bank, misusing a term of art under the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Drafted in the aftermath of World War II, the convention was aimed at situations where territory of a sovereign government became occupied in the course of hostilities. In the present case, however, there was no sovereign government in the West Bank when, in the Six Day War of 1967, Israel took control of it from Jordan. Jordan was not there as a lawful sovereign; it had acquired the West Bank in the course of an unlawful war of aggression when it joined in the armed attacks against Israel, in Israel’s War of Independence of 1948 to 1949. And an unlawful act, says international law, cannot give rise to lawful rights. The applicability of this convention is at the very least debatable. However, the way the request assumes away this issue suggests much about the request’s pernicious nature. The same applies to the use of the phrase “occupied Palestinian territory,” in the request, plainly suggesting Palestinian sovereignty. But no one has exercised sovereign control over the West Bank since the Ottomans. (The victorious allies in World War I, the League of Nations, Britain (as a trustee) and later Jordan took turns at the helm but were not sovereigns.) By using the phrase, the request to the ICJ suggests a state of affairs that is contrary to history. Compounding the point is one of the preambular paragraphs of the resolution containing the request; the troubling passage recalls General Assembly Resolution 181 (II) of Nov. 29, 1947, and asserts that the U.N. had “partitioned mandated Palestine into two States, one Arab and one Jewish.” This gives the impression that the 1947 resolution had the effect of dividing the British mandate territory and actually creating two states. But this is an impossibility, for if one examines the U.N. Charter, is it clear that the most the General Assembly can ever do is make recommendations that by their very nature cannot be binding; it is left to the U.N.’s members to accept or reject them. Yet the Arab states resoundingly rejected the 1947 recommendation for partition and invaded Israel in 1948. Politics by other means The ugly motivation of the request is clear. It issues from the same General Assembly that has unleashed a torrent of resolutions vilifying Israel without a word of criticism of the Palestinians; that has refused to condemn Palestinian terrorism, including the suicide bombings directed incessantly against Israel, and that, after passing a resolution urging protection of Palestinian children, refused to pass a similar one urging the protection of Israeli children who live under the daily threat of terror in shopping malls, pizza parlors and on buses. The ICJ has the discretion to decline to rule on this matter. How it handles this attempt to gain its imprimatur for incorrect or debatable assumptions, and to entangle it in a political morass, will say much about its integrity-or lack thereof. Harry Reicher teaches international law at the University of Pennsylvania Law School.

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