This week, Israel was summoned to defend its policy regarding the security fence, in an international forum, initiated by the UN. Israel chose to deny the court's authority, thus declining to present its position on the issue of the fence, since it felt that the court is unlikely to hold a fair trial but rather to stage a field court martial, orchestrated by Israel's enemies.
Israel's position was based on a tactical consideration, not on legal grounds. It is highly likely that the court in The Hague would be found to have no authority to deliberate in this matter, as shown in its own charter. For example, only sovereign states may argue their case before the court, but not entities, which are less than states. Since the Palestinian Authority is not a state, it has no right to litigate in this court. In addition, sovereign states may not be compelled to stand trial against their will. Since Israel declined to recognise the court's authority, it cannot be forced to do so. These two procedural points are sufficient for discarding the proceedings, particularly when most enlightened governments support Israel's position.
However, even if Israel's claim about the court's lack of authority is rejected and the court decides to proceed with the case, and even if the court pronounces its sentence, it will have no power to enforce its ruling. At worst, Israel may be publicly reprimanded, as it has been for many years in numerous anti-Israeli resolutions, only this time it will be under a legal guise. It may be unpleasant, but quite tolerable.
However, in the midst of the media commotion around the court in The Hague, little attention has been paid to the novelty of this phenomenon. Our era is probably the first in human history where not only individuals stand trial, but also leaders and nations. We have become so accustomed to hearing about charging heads of states in international tribunals, that we don't feel how strange the idea is. Throughout history, statesmen enjoyed an immunity that made it impossible to sue them for their crimes. Yet in our times, we witness the rise of a new order, where great leaders must revere Justice.
Furthermore, conflicts between nations that were settled in the past by means of military force are now taken to the legal arena. Even though international courts may be politically prejudiced, and despite of the fact that international law is still in its infancy stage - there is every reason to welcome the gradual shift from violent struggles to judicial deliberations. The sound of swords in battle would give way to the sound of voices in debate, and the latter do not spill blood. This may signal a true change in international relations, which could be the greatest revolution in human history. The shift from the battlefield to the legal arena was pronounced by the prophets of Israel as the vision of redemption, when God will judge between all nations, allowing human beings to beat their swords into plowshares and learn no more war.
Israel should have welcomed the transformation of the Israeli-Palestinian armed conflict into a legal case. It could have benefited more from demanding a fair trial instead of rejecting the case itself. Had Israel been given an adequate opportunity to present its case before the international community, it could have shifted the focus from the issue of the fence to the fundamental questions of the conflict. It should have demanded recognition of its right to live in peace and security, without having to pay any price for these essential legal rights. It could have also proven the Jewish people's right to the Holy Land, even if not exclusively. Above all, it should have demanded to detach the Israeli-Palestinian issue from its regional context, thus redefining the conflict as a local dispute between neighbours, which no other Arab or Muslim state may interfere with. Had Israel taken this course of action, it would have fulfilled another aspect of the prophecies, where Zion shall be redeemed with justice, and not through blood and fire.
In my book - 'Zion Shall Be Redeemed With Judgement', I proposed new ways of dealing with the conflict, through incorporating legal strategies with political processes. If Israel wishes to secure its existence in the long run, it must adopt a new policy that would rely on legal and media initiatives, no less than on its military strength. While rejecting the staged trial in The Hague may have been justified, Israel should not disregard the moral and legal message, which this development implies.
Elon Jarden, 26/February/2004
Advocate Elon Jarden has published 5 books on law and policy.
Visit the (Hebrew) site of The Zedec Movement, founded by Elon Jarden.