Global Policy Forum

By Gregory Khalil*

Today the United Nations General Assembly is likely to vote to demand that Israel comply with the ruling of the International Court of Justice and dismantle its wall under construction in the West Bank. The court's opinion marks a milestone in the Palestinian struggle. Yet its greatest impact may not be on Israel or its occupation of Palestinian territory. By calling on nations around the world to enforce international human rights law when enforcement is vetoed by a permanent member of the United Nations Security Council, the court has essentially affirmed a power to "veto the veto."

The significance of this ruling cannot be overstated. The Security Council is generally considered the only United Nations body with the authority to enforce international law. Yet the council is often prevented from taking action by its permanent members, who can veto any council resolution. The result is that the United Nations is often impotent in the face of international crises. The court's opinion, however, has the potential to restore the United Nations to a position of authority and could transform international diplomacy.

In recent years, the international community has criticized the United States for abusing its veto power in the Security Council. The United States has vetoed 79 Security Council resolutions, almost half of them cast on Israel's behalf. Not surprisingly, states have accused the United States of hijacking the United Nations by using, or threatening to use, its veto power: support American policy, the United States seems to be saying, or risk turning the United Nations into a debate club.

This fear materialized with the diplomatic failure leading up to the invasion of Iraq. Because the United States has significantly more political leverage than any other nation, it was able to carry out its campaign against Iraq without real cooperation from the United Nations.

So what does this have to do with the International Court of Justice or Israel's wall? The court said it had jurisdiction in part because the United States had frustrated the Security Council's work. Israel's actions constitute a "threat to international peace and security," according to the court, and in such instances, the Security Council must act. But the Security Council had been prevented from acting, the court said, by American vetoes.

In unanimously holding that it had jurisdiction, the court reasserted a significant power in the General Assembly: when the Security Council fails to act because of a permanent member's abuse of veto power, the General Assembly may do so, including asking the court's advice.

But in determining that all sections of Israel's wall built in occupied Palestinian territory (including East Jerusalem) must be dismantled, the court delivered even stronger pronouncements. First, "the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall." Second, all nations "are under an obligation not to recognize the illegal situation arising from the construction of the wall, and not to render aid or assistance in maintaining that situation." In short, Israel is not above the law — and international law obligates every nation to ensure Israel's compliance with the law.

Taken together, these holdings chart a path for the international community to counter the United States' veto power. Although the opinion was nonbinding (the court cannot compel enforcement), the court emphasized that the law upon which its opinion is based does indeed bind.

This sends a strong message to the United States: either refrain from obstructing the rule of law with your veto, or risk alienation from mainstream global opinions and forums. Once other powers engaged the United States in a tango of mutual deterrence; now, suggests the court, the rule of international law should play that role.

Critics may say that the court abandoned judicial discretion for geopolitical posturing. Quite the contrary. Had it agreed with the American position that it lacked jurisdiction, the court would have risked its own integrity by ruling against the weight of international law. And these broader implications of the judgment should not obscure its primary significance: a just resolution of the Israeli-Palestinian conflict based on the affirmation of fundamental human rights.

Rather, the advisory opinion represents a triumph for Israelis and Palestinians alike. By rejecting Israel's construction of the wall, the court emphasizes the humanity of both peoples. Yes, Israel may build a wall — but only on its own territory. Yes, a just resolution to the broader conflict is possible — but only within the confines of international law.

Nevertheless, in denouncing one wall, the court suggested another: a limit on the unbridled use of American diplomatic power. The world should take advantage of this opportunity to move in a new direction — one in which law, and not the politics of force, prevails.

*About the Author: Gregory Khalil is a legal adviser to the Palestine Liberation Organization.

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