The ICJ did not support these conclusions-which, by second-guessing military decisions, go beyond anything even the most activist U.S. court would dream asserting-by reference to some extensive expert testimony or overwhelming prima facie evidence. Rather, by its own admission, the Court relied almost exclusively on the written "factual summaries" prepared by UN Secretary-General Kofi Annan; this was the sum total of the "material available to it." The ICJ pronounced itself "not convinced" by Israeli arguments of military necessity and national security, but gave no reason why the Israeli explanations, contained in a detailed 110-page submission, were judged inadequate.

In short, a juridical body whose members have no real democratic accountability-in fact, some of them represent regimes hardly noted for their own respect for the rule of law, a datum that vitiates against the Court's legitimacy-twisted legal reasoning to arrive at a sweeping political decision: "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 and the associated regime, taking due note of the present Advisory Opinion" (Legal Consequences, para. 163). While normally the ICJ's statutory writ only extends to countries that accept its jurisdiction (art. 36)-something Israel as a sovereign state is under no legal obligation to do and which, in fact, it explicitly repudiated in the present case- by remanding the matter to the UN to take "further action" to implement the ruling, the Court effectively penalized a sovereign state for exercising its inherent right to be bound only by its own consent. This is a sleight of hand that the U.S., a non-signatory to the Rome Statute of the ICC, would do well to take notice of. And while Israel, tragically used to living amid near-universal hostility, is in a good position to consign the ICJ's opinion to "its place in garbage can of history" (in the succinct phrase of Raanan Gissin, a senior advisor to Prime Minister Ariel Sharon), many other countries-whether because of their small size or extreme poverty-will not be able to afford to remain truly independent players on a world stage managed by the "consensus" of international tribunals.

Consequently, while in the grand scheme of things the ICJ's ruling may only be temporary political setback for the Israeli government in its quest to fulfill its ultimate responsibility of providing security for its people, it is nonetheless a timely reminder to the United States and every other sovereign nation that the age-old verities of national political life are also applicable to the global societas.  Hence, in the absence of a common legal framework of reference and a democratic "world government" in which a truly global tribunal might be imbedded, submission to any "world court" is not only indenture to judicial tyranny, but, in the dangerous real world of today, a potential suicide pact.    

 

Dr. J. Peter Pham is an international lawyer and former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press). His monographic study of the legal philosophy of the United Nations appears in the current volume of the Indiana International and Comparative Law Review.