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The United States and the Law

Palestine Center Annual Conference 2004
Implementing the ICJ Ruling on the Wall

September 24th, 2004

Paper presented by Josh Ruebner, Grassroots Advocacy Coordinator, US Campaign to End the Israeli Occupation

Click here to download a Power Point presentation of this paper.
ABSTRACT: This paper will 1) explore the obligations of the United States under the ICJ advisory opinion on Israel’s wall; 2) examine official U.S. policy toward the ICJ advisory opinion; 3) contrast existing U.S. policy toward Israel and Palestine with the requirements of the ICJ advisory opinion; and 4) consider strategies for U.S. civil society to bring the United States into compliance with the ICJ advisory opinion.

Obligations of States in ICJ Advisory Opinion

The International Court of Justice (ICJ) advisory opinion of July 9, 2004, which concluded that Israel’s wall in the West Bank is illegal and must be dismantled, was a huge legal and moral victory for U.S. organizations advocating for the United States to pursue a policy toward Israel and Palestine that is based on human rights and international law. 
The breakthrough represented by the ICJ advisory opinions lies not only in its clear expression that the wall is illegal and must be dismantled.  Perhaps even more important than this finding, for the purposes of changing how the United States relates to Israel and Palestine, is the Court’s clear delineation of obligations that all States have to ensure that Israel adheres to its opinion.
The Court enumerates two obligations that all States have in this regard.  These requirements, found in paragraph 163(D) of the advisory opinion, are:
1)      Not to recognize the illegal situation resulting from the construction of the wall, and;
2)      Not to render aid or assistance in maintaining the situation created by such construction.
The Court also specifies that all States that are signatories to the Fourth Geneva Convention must act to ensure compliance by Israel with international humanitarian law as embodied in that Convention.  The United States ratified the Fourth Geneva Convention in 1955.  The ICJ advisory opinion therefore also calls upon the United States to ensure Israel’s compliance with the Fourth Geneva Convention, which lays the legal and political groundwork necessary to challenge not only U.S. support for Israel’s illegal wall in particular but its support for Israel’s military occupation in general.

U.S. Attempts to Undermine the ICJ Advisory Opinion

Prior to the ICJ advisory opinion, the United States mounted an intensive diplomatic, legal and political campaign to exert pressure on the Court and other international institutions not to examine the illegality of Israel’s wall.
This campaign began in earnest when the matter was taken up by the United Nations General Assembly on October 27, 2003.  The United States voted against UN General Assembly Resolution ES-10/13, which was worded in a moderate and balanced way that took into account Israel’s security concerns.  In this resolution, the GA demanded that Israel stop and reverse construction of the wall and declared the wall to be “in contradiction to relevant provisions of international law.”  The United States joined with Israel and two other heavy hitters of the international community—Micronesia and the Marshall Islands—in voting against it.
General Assembly Resolution ES-10/14, adopted on December 3, 2003 built on the previous resolution by requesting that the ICJ issue an advisory opinion on the legal consequences of Israel’s wall.  The United States joined seven other countries in opposing this resolution.
Powerless to stop the ICJ from examining the legal consequences of Israel’s wall, the United States submitted a detailed written statement to the Court on January 30, 2004 in which the United States claimed that the case “risks undermining the peace process and politicizing the Court”.  In its written statement, the United States expressed reservations that the ICJ ruling could supplant the “road map” despite the fact that this warmed over peace process plan had been dead in the water for several months.  As to the charge that the case risked “politicizing” the Court, the ICJ addressed this issue in the advisory opinion, noting that it has jurisdiction over legal questions even if they had political import and citing many previous “political cases” that it had examined.
Members of Congress belatedly jumped into the fray to complement Executive Branch efforts to undermine the ICJ.  Many die-hard supporters of Israel’s occupation issued statements that attacked the General Assembly and the ICJ and provided justifications for Israel’s construction of the wall.  Most importantly, Representative Mike Pence (R-IN), one of the most extreme Christian Zionist Members of Congress, introduced House Concurrent Resolution 371 on February 26.  His resolution supported “the construction by Israel of a security fence to prevent Palestinian terrorist attacks”, defying the consensus of the international community, and rebuked the UN for requesting ICJ assistance on this matter.  The resolution quickly gained 164 co-sponsors by mid-July but languished in committee until it was superceded by another resolution in favor of the wall passed by the House after the ICJ issued its advisory opinion.
On April 1, 2004, 79 Senators sent a sharply worded letter to UN Secretary General Kofi Annan asking him to subvert the workings of the very international institutions that he has the responsibility to promote.  In their letter, which was addressed in an extremely demeaning fashion that made it seem as if Annan were a low-level bureaucrat of the U.S. government, the Senators demanded that Annan “act so that the ICJ does not take up the issue.”
It is interesting to note that both these Congressional efforts to subvert the working of the ICJ had absolutely no bearing on the case because they were introduced only after the court proceedings had begun.  In this sense, these Congressional initiatives were more showmanship than a serious attempt to prevent the ICJ from taking up the case.

U.S. Reactions to the ICJ Advisory Opinion

Considering the extent to which both the Bush Administration and Members of Congress exerted themselves to try to prevent the ICJ from taking up this case, it should come as no surprise that the official U.S. reaction to the ICJ advisory opinion was extremely hostile.
Commenting on the ICJ advisory opinion on July 9, 2004, State Department spokesperson Richard Boucher considered the ruling to be “one that we didn't think was appropriate under international law”, without providing any accompanying reasoning.  Boucher also maintained, in words echoing the U.S. written statement to the ICJ, that the Court opinion could “impede efforts to achieve progress towards a negotiated settlement”.
However, the State Department’s response to the advisory opinion was positively diplomatic in comparison to the reaction on Capitol Hill where the same die-hard supporters of Israel’s occupation hurled invectives at the ICJ for daring to state that a policy of the Israeli government is illegal.  Representative Mike Pence, who introduced the pro-wall House resolution in February, responded to the advisory opinion by introducing House Resolution
 713 on July 13.  The resolution deplored the “misuse” of the ICJ for the “narrow political purpose of advancing the Palestinian position”.  The ICJ opinion also “seeks to infringe upon Israel's right to self-defense”, Pence contended, conveniently neglecting the fact that the ICJ advisory opinion stated that Israel “has the right, and indeed the duty, to respond in order to protect the life of its citizens.” (Paragraph 142.)
The text of the resolution, which was made public on July 14, was rushed to the floor of the House “under suspension”, meaning that the leadership agreed to bypass normal legislative procedures and not send the resolution to the appropriate committee with jurisdiction over it.  Instead, the House quickly approved the measure the next day.
Despite the fact that this resolution passed and that grassroots organizations like the US Campaign to End the Israeli Occupation did not have time to seriously mobilize their supporters to oppose the resolution, the passage of the resolutions was, in certain respects, a victory for organizations working to change U.S. policy toward Israel and Palestine.  First, the fact that the leadership of the House felt the need to try to sneak this resolution under the radar screen by bringing it up “under suspension” showed a degree of reticence in actually having this issue aired and debated in the House.  Second, a surprisingly large number of Members of Congress either voted against or abstained on this resolution.  These 58 brave Representatives are the largest bloc of Members of Congress to not vote for a knee-jerk “pro-Israel” resolution in at least five years.  The US Campaign organized a letter of thanks to these Members of Congress, which was signed by more than 100 organizations from around the country.  In meetings with these offices, Congressional staff expressed much appreciation for this outpouring of grassroots support and urged more of it.  Third, from these meetings, it was possible to detect the beginnings of a resentment of and backlash against these types of knee-jerk “pro-Israel” resolutions. 
Not to be outdone by his colleague in the House, Senator Gordon Smith (R-OR), another prominent Christian Zionist, introduced a similar resolution in the Senate.  Senate Resolution 408, introduced on July 20, adopted a much more strident tone than the House resolution passed a few days earlier.  This resolution “condemns” the ICJ for its advisory opinion and fully supports Israel’s construction of the wall.  It also refers to the West Bank as “disputed territory” despite the fact that even Israel’s Supreme Court acknowledged in June 2004 that Israel is holding the territory in “belligerent occupation”.  The resolution currently has 40 cosponsors but promisingly a Senator has placed an anonymous “block” on the legislation, preventing it from coming to the floor of the Senate.  The resolution is still very much in play though and it is extremely important for supporters of human rights and international law to contact their Senators and urge them to vote against or abstain on this resolution if it is brought to a vote.  On September 9, the US Campaign delivered to each Senator a letter signed by more than 135 organizations nation-wide urging him or her to vote against or abstain on this resolution if it is voted on.  Hopefully this letter will provide Senators with some of the political cover they need to avoid voting for this horrendous resolution.

U.S. Policy toward Israel and Palestine in Light of the ICJ Advisory Opinion

As mentioned earlier, the United States is obligated not to recognize the wall nor provide Israel with aid or assistance to maintain the wall, and act to ensure that Israel is complying with international humanitarian law.  Let us briefly examine U.S. policy toward Israel and Palestine in light of these requirements.
As the previous discussion of U.S. policy and reaction to the ICJ advisory opinion amply demonstrate, not only has the United States “recognized” the wall but the House passed a resolution supporting it and the Senate is poised to do the same.  So much for the first obligation!
The second obligation enumerated by the ICJ—that states cannot aid or assist Israel in maintaining the wall—provides organizations in the United States with a potent legal weapon with which to challenge continued diplomatic, military, and economic support for Israel’s occupation.  The wall has become such an integral part of Israel’s strategy to maintain its stranglehold on the Palestinian people in the West Bank that aid to the occupation cannot be separated from aid for the wall.
For fiscal year 2005, the United States is likely to provide Israel with $2.2 billion in Foreign Military Financing pending final budgetary negotiations between the House and Senate.  This figure does not include funding for joint projects developed by the Department of Defense and the Israel Defense Forces.  Israel is also set to receive $360 million in Economic Support Funds, plus an additional $50 million earmarked for immigrant resettlement.
Without a doubt, some of this military and economic aid finds it way toward maintaining and expanding the wall.  For example, the export of bulldozers from the United States to Israel mushroomed from an insignificant amount in the years 1996-2001 to $8 million in 2002 and $14 million in 2003.  In a letter to Jewish Voice for Peace dated August 22, 2003, Caterpillar CEO James Owens admitted that these sales “are openly conducted through the U.S. Foreign Military Sales Program”, making them subject to restrictions under the Arms Export Control Act.  These bulldozers are being used not only to clear expropriated land to build the wall but to commit other grave violations of human rights including the destruction of homes and the killing of at least one dozen innocent civilians, according to the Israeli human rights organization B’tselem.  The ICJ advisory opinion, along with Caterpillar’s admission that bulldozer sales to Israel are conducted through governmental channels, provides organizations in the United States with additional resources with which to challenge continued U.S. aid to Israel.

Bringing the United States into Compliance with the ICJ Advisory Opinion

The government of the United States will not end its support for Israel’s wall in particular and for Israel’s occupation in general without the significant mobilization of diverse grassroots constituencies in the United States that demand this change in policy.  The US Campaign is coordinating these types of grassroots efforts in more than 145 Congressional districts around the country.  Changing current U.S. policy toward Israel and Palestine with so many powerful interests arrayed in support of it—the “pro-Israel” lobby, Christian fundamentalism, and the arms industry—will be a difficult, though accomplishable goal.
Working toward bringing the United States into compliance with the obligations articulated by the ICJ is definitely a worthy benchmark towards which U.S. organizations should strive.  In our efforts to do so, fortunately we are aided by domestic legislation that supports the bundling of foreign aid with human rights conditions.  Let us briefly summarize three legislative tools that can be used to pressure the government to end its support for Israel’s wall in particular and its occupation in general.
First, there are clear limitations on the uses of U.S. loan guarantees to Israel.  Congress passed the most recent package of loan guarantees in its first supplemental appropriations bill to fund the war in Iraq in 2003.  The legislation authorizing up to $9 billion in loan guarantees over three years stipulates these loans can be used "only to support activities in the geographic areas which were subject to the administration of the Government of Israel before June 5, 1967.”  Moreover the President is mandated to deduct one dollar for every dollar that Israel spends in the Occupied Palestinian Territories.  Unfortunately the Bush Administration grossly underestimated the amount of Israeli spending in these areas when it deducted only $289.5 million from available loans in November 2003.  Research by Americans for Peace Now puts this amount at about half of all yearly Israeli non-military expenditures in the West Bank and Gaza Strip.  In addition, the construction of the wall itself is proving to be extremely costly.  Human Rights Watch estimates that the wall will cost $1.3 billion; other estimates are even higher.  More research must to be done into how Israel spends money raised through these loan guarantees.  If it can be proven that loan guarantees are funding the construction of the wall, this would present a compelling opportunity to press for larger deductions in the amounts available to Israel.
Second, the use of all military equipment sold or given away by the United States to another country is subject to the provisions of the Arms Export Control Act (Public Law 90-829).  This law limits the use of U.S. military aid to "internal security" and "legitimate self-defense" and prohibits its use against civilians.  There is prima facieintifada  and a few brave souls in Congress have even initiated investigations into these violations.  The political issue at hand is not whether Israel is in breach of this law but how U.S. civil society can be mobilized to demand that Congress and the President apply this law and cut off arms transfers to Israel as it belatedly did to Indonesia in the late 1990s in response to human rights abuses in East Timor committed with U.S. weapons. evidence that Israel has violated this law on many occasions during the last four years of the
Third, according to Section 116 of the Foreign Assistance Act of 1961 (PL 87-195), "No assistance may be provided under this part to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights”.  The ICJ advisory opinion also obligates Israel to comply with the Fourth Geneva Convention, tacitly acknowledging that it is in breach of it.  As mentioned before, the United States is also obligated to ensure Israel’s compliance with this convention.  Invoking the requirements of the Foreign Assistance Act would be an effective means to ensure this compliance.
In closing it is important to reiterate that none of this political change will occur without intensive efforts to educate people in the United States about our country’s policy toward Israel and Palestine and in turn mobilizing these educated, concerned citizens to engage in political action.  This means having a concerted national effort to organize grassroots pressure on Members of Congress through their constituents.  This is the same pattern for political change used successfully by activists to shut of U.S. arms to El Salvador’s terrorist regime in the 1980s.  Over the past two years, the US Campaign has begun this task in earnest.  Although we still have a long way to go to achieve our objective, we have begun to make important inroads with certain Members of Congress.  I urge you to join with us to make U.S. compliance with the ICJ advisory opinion a reality.