Newsgroup: it.politica.internazionale
Titolo: La legalità internazionale ed il muro

http://www.merip.org/newspaper_opeds/oped072004.html
Richard Falk
Miami Herald (7/20)
What is most remarkable about the International Court of Justice decision
on Israel's ''security barrier'' in the West Bank is the strength of the
consensus behind it. By a vote of 14-1, the 15 distinguished jurists who
make up the highest judicial body on the planet found that the barrier is
illegal under international law and that Israel must dismantle it, as well
as compensate Palestinians for damage to their property resulting from the
barrier's construction.
The International Court of Justice has very rarely reached this degree of
unanimity in big cases. The July 9 decision was even supported by the
generally conservative British judge Rosalyn Higgins, whose intellectual
force is widely admired in the United States.
One might expect the government of Ariel Sharon to wave off this notable
consensus as an ''immoral and dangerous opinion.'' But one might expect
the United States -- even as it backed its ally Israel -- at least to take
account of the court's reasoning in its criticisms. Instead, both the Bush
administration and leading Democrats, including Senators John Kerry and
Hillary Clinton, mindlessly rejected the decision.
Even the American justice in The Hague, Thomas Buergenthal, was careful in
his lone dissent. He argued that the court did not fully explore Israel's
contention that the wall-and-fence complex is necessary for its security
before arriving at its sweeping legal conclusions. But Judge Buergenthal
also indicated that Israel was bound to adhere to international
humanitarian law, that the Palestinians were entitled to exercise their
right of self-determination and, insofar as the wall was built to protect
Israeli settlements in the West Bank and East Jerusalem, that he had
``serious doubt that the wall would. . .satisfy the proportionality
requirement to qualify as legitimate self-defense.''
The nuance in Buergenthal's narrow dissent contrasts sharply with, for
instance, Kerry's categorical statement that Israel's barrier ``is not a
matter for the ICJ.''
To the contrary, Israel's construction of the wall in the West Bank has
flagrantly violated clear standards in international law. The clarity of
the violations accounts for the willingness of the U.N. General Assembly
to request an advisory opinion on the wall from the court, a right it has
never previously exercised in relation to the Israeli-Palestinian
conflict. The clarity also helps to explain Israel's refusal to
participate in the ICJ proceedings -- not even to present its claim that
the barrier under construction has already reduced the incidence of
suicide bombing by as much as 90 percent.
Significantly, the court confirms that Israel is entitled to build a wall
to defend itself from threats emanating from the Palestinian territories
if it builds the barrier on its own territory. The justices based their
objection to the wall on its location within occupied Palestinian
territories, as well as the consequent suffering visited upon affected
Palestinians.
If Israel had erected the wall on its side of the boundary of Israel prior
to the 1967 war, then it would not have encroached on Palestinian legal
rights. The court's logic assumes the unconditional applicability of
international humanitarian law, including the Fourth Geneva Convention, to
Israel's administration of the West Bank and Gaza (a principle affirmed by
Judge Buergenthal). That body of law obliges Israel to respect the
property rights of Palestinians without qualification, and to avoid
altering the character of the territory, including by population transfer.
The decision creates a clear mandate. The ICJ decision, by a vote of 13-2,
imposes upon all states an obligation not to recognize ''the illegal
situation'' created by the construction of the wall. This is supplemented
by a 14-1 vote urging the General Assembly and Security Council to
``consider what further action is required to bring an end to the illegal
situation.''
Such a plain-spoken ruling from the characteristically cautious
International Court of Justice will test the respect accorded
international law, including U.S. willingness to support international law
despite a ruling against its ally. The invasion of Iraq and the continuing
scandals have already tarnished the reputation of the United States as a
law-abiding member of the international community. When U.S. officials
dismiss the nearly unanimous ICJ decision without even bothering to engage
its arguments, America's reputation suffers further. In fact, elsewhere in
the world, U.S. repudiation of this decision can only entrench existing
views of America as an international outlaw.

despite a ruling against its ally.
Non c'e' stato nessun "ruling" da parte dell'ICJ.
-Stefano