The public debate that raged here two years ago in February 2004, ahead of the hearings in the International Court of Justice at the Hague (ICJ) on the separation fence, made Israelis aware, albeit momentarily, of one of the UN’s less familiar institutions. The ICJ, which sits in the Hague, adjudicates in disputes between states. Its voice is seldom heard, however, in volatile conflicts such as those that rage in our part of the world. The exception to the rule, which saw the ICJ rule on the dispute over the separation fence between Israel and the West Bank, was perceived in Israel primarily as an unwarranted provocation on the part of the Palestinians. It constituted an attempt by them to win points by presenting themselves as the underdog, while hiding the legitimacy given by the Palestinian Authority to the terrorist attacks which triggered the need for the building of the fence, critics said.
The same public mood continued to prevail in Israel after the ICJ published its judicial review, in which it held that, in building the fence, Israel had violated international charters on human rights, and had infringed the Palestinians’ rights to property, movement, minimum living standards, employment, education, religious practice and so on, and that its construction should therefore not be allowed. The ICJ did not, incidentally, deal with the legality of the fence as such, but rather with the route on which it was being constructed and the wrongs that Palestinians and human rights groups claim it has caused. The finding against the continuation of the construction of the fence stems from the premise that Israel is using the fence to create facts on the ground and mark borders that have not been agreed.
The Israeli legal establishment, from the State Attorney’s office through to the High Court of Justice, as well as legal affairs commentators in both the media and the universities, expressed profound reservations about the recommendations contained in the ICJ’s judicial review, which is not legally binding, primarily because the Palestinian Authority is not a state.
”In this instance, the dispute was referred to us for our opinion by the UN General Assembly,” says ICJ President Rosalyn Higgins, who was elected on February 6. While unable to comment on this particular case, she agrees to talk about the role and jurisdiction of the ICJ and its international status.
”The ICJ does not take any diplomatic or political position. Verdicts are handed down on the basis of studies and comprehensive reports submitted by observers and experts on behalf of the UN. Occasionally we hear evidence, and on rare occasions, the judges visit the disputed site,” clarifies Higgins in a special interview with “Globes” on her appointment as ICJ President.
Higgins was elected president by her 14 peers. The international panel comprises 15 representatives. Serving alongside the British president are the vice president from Jordan and representatives from Madagascar, China (the outgoing president), Sierra Leone, Venezuela, the US, Japan, Germany, Slovakia, France, New Zealand, Mexico, Morocco, and Russia.
Globes: What force have the decisions handed down by the ICJ?
Higgins: ”The ICJ is an advisory body but is considered to be the court of highest instance for conflicts between states that have been referred to the UN’s institutions. I’ll try and make this clearer: any nation joining the UN may approach the court, but two states that are party to a dispute must both give their consent before the dispute can be heard by the ICJ.
”Referrals to the ICJ can be divided into three categories: The first is an ad-hoc agreement between states for the ICJ to serve as arbitrator in a specific matter. The second category consists of cases in which two states are party to a certain international treaty that requires them to refer disputes to the ICJ. In this instance, admission to the treaty in question is conditional on their commitment to refer disputes to the court.
”The article directing that disputes should be adjudicated by the ICJ is enshrined in many international charters, such as the Treaty on the Non-proliferation of Nuclear Weapons, or treaties considered as fundamental planks of legislation protecting human rights, liberty and welfare, among them the Hague Convention on the Civil Aspects of International Child Abduction and the Geneva Convention relative to the Protection of Civilian Persons in Time of War. States that are signatories to these charters are considered to have given their prior consent to the referral of all disputes to the ICJ.
”The third category arises from the fact that admission to the UN is contingent on the inclusion of a clause in the agreement requiring consent to the referral of disputes to the ICJ for arbitration. This, in fact, constitutes a commitment to the UN which creates, in effect, a network of reciprocal commitments. Consequently, two states can be directed to refer their dispute to the ICJ many years after they made their original commitment.”
Are there ways of enforcing ICJ decisions against rogue states?
”The means of enforcement are obviously limited. A state that chooses either not to join international treaties for any reason, or not to honor the commitment it made at the time of admission to the UN, may reject an invitation to settle a dispute, even at the risk of condemnation or sanctions.
”The level of compliance by states with rulings issued by us is high. Since 1945, there have been only four or five instances where the ICJ rulings were not carried out. This is very small percentage over 60 years.”
Are there certain states or regimes which are more likely to disregard the ICJ’s rulings and recommendations?
”We must not act out of prejudice and expectation of certain behavior by any particular state. You'd be surprised to learn the extent of cooperation and compliance by states with an isolationist image.”
In addition to arbitrating disputes between nations, the ICJ also serves as an advisory body to the UN and its various agencies. Higgins notes that in the case of the border fence, the dispute between Israel and the Palestinians cannot be adjudicated by the court since the Palestinian Authority is not a state, and also because the fence passes through territory within Israel’s recognized borders along certain sections of its route. The UN General Assembly referred the issue to the ICJ which gave its ruling as an advisory committee. “We submitted our opinion to the UN and it is valid as legal guidance. We hope that they will adopt our recommendations."
The ICJ has 10-24 cases on its agenda at any given time. The court's full panel sits on most of the hearings, but there are also smaller sessions which are heard by a panel of five judges. “You do not stand for appointment to the ICJ,” explains Higgins, “We are all independent judges nominated by our countries at the UN General Assembly. After our names have gone forward we undergo a screening and confirmation process.”
Higgins herself was first elected to the ICJ in 1995 as a replacement for another British judge who died while in office. Her term has since been extended several times, and last month, she was elected court president for a three-year term.
An expert on international law and university professor, Higgins has published many legal books and essays and is the highest ranking woman within the British judicial system. She has been the only woman serving at the ICJ throughout her ten years on the bench.
The UN announcement of her appointment made specific reference to her gender, stating that she was “the first woman to be elected.” Asked whether this caused her any discomfort, she replies with the requisite measure of diplomacy, “This is something that arouses interest naturally, so the response to the news that a woman has been elected is both understandable and predictable. I have been the only woman on the bench for the last 10 years. Nevertheless, the question of my sex was never a matter for discussion, and I never felt I was representing women more than men. Perhaps I have been lucky, but I don’t think I have been treated either better or worse in my professional career because I am a woman.”
The judges sitting on the ICJ are elected by the UN General Assembly, following their nomination by member states. Higgins explains that both the General Assembly and UN Secretary General Koffi Anan ensure that the election process gives fair representation to the different regions of the world, and to the various types of regime and to different legal disciplines. The appointments to the positions of president and vice president are made by the judges themselves.
Higgin’s appointment comes at a time in which a fairly large number of women hold public office around the world. The most notable of these is without doubt German chancellor Angela Merkel, who since her election in September last year has gained even more popularity amongst her electorate. Other women who have won office rcently are the presidents of Chile and Nigeria, elected last month, as well as the incumbent Finnish president Teria Halonen, who was recently elected to a second term.
Does your appointment reflect a global trend?
Higgins agrees that there is indeed a trend of a rising number of appointments of women to influential positions worldwide. She does not, however, see it as a fashion. “The number of women in such positions is on the increase because there are so many capable people. That this is a trend is undeniable, but it has happened thanks to the removal of the barriers that previously prevented women from progressing. Women are being elected on the basis of their capabilities and there can be no doubting the fact that those who have been elected are the right people for the job.”
Nevertheless, every election of a woman is still greeted with incredulity and condescension by both women and men
”It would would be nice to reach a stage where gender didn't matter at all, because it would then become an immaterial item of information. Having said this, I think that women still have a special difficulty in balancing their careers with their home life that doesn't exist for men. When I was professor of international law at the University of London, I saw that women still found the legal profession very demanding, because of the conflict with their responsibilities at home.
”I have been fortunate enough to have a partner who shares domestic responsibilities with me equally, and I also feel that I have been given equal treatment at my work. But there is no doubting the fact that, as a woman, I have to work a bit harder than my male colleagues, since we women have other commitments that were never taken off our shoulders after we embarked on our careers.”
As for the entry by women into such inflexibly demanding posts as hers, Higgins insists that women should definitely be taking up such positions, and that it is only a matter of time before the trend becomes more widespread. “I think that at this point in time, women are on the verge of making the breakthrough. I had luck in my career, but I am confident that more women will follow in my footsteps."
Published by Globes [online], Israel business news - www.globes.co.il - on March 9, 2006