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Gary Fitleberg is a political analyst specializing in International Relations with an emphasis on Middle East affairs.
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By Gary Fitleberg
February 9, 2004
"Guilty until proven innocent" is the standard applied in the forthcoming case involving Israel's right to protect its citizens from harm and maintain security against terrorism, if the International Court of Justice (ICJ) will have its way.
An Egyptian justice at the ICJ has revealed his anti-Israel bias, with a conclusion prior to the case being heard that Israel is guilty. Before proceedings have even begun, Dr. Nabil Al-Arabi, the Egyptian justice at the International Court of Justice, told the Egyptian newspaper Al-Ahram that he has already decided to convict Israel for the building of its anti-terror fence and to recommend sanctions, the Israeli daily Yediot Aharonot reported.
"There is historical and international evidence that demonstrates that this action of Israel is illegitimate," Al-Arabi said in an interview. "I believe that Israel's arguments in this suit will be groundless, and that Israel will be in a position where it will be possible to impose sanctions upon it for the first time, if the International Court of Justice decides to convict it."
The Arab "Palestinians" and their supporters are seeking to convince the ICJ to take up the issue of Israel's security fence; however, more than 40 nations, including the United States, the European Union and Australia, have joined Israel in protesting the court's consideration of this matter. And despite Israel's request to recuse the clearly biased Egyptian justice, the International Court of Justice at the Hague will not disqualify Justice Nabil Al-Arabi from the tribunal that will render an advisory opinion on Israel's security fence.
Israel contended that Al-Arabi, both in his prior professional capacity and in an August 2001 newspaper interview, had been "actively engaged in opposition to Israel" and in matters relating to the fence. By a vote of 13-1, the court ruled earlier this month that Al-Arabi would remain on the bench. The dissenting vote was cast by an American Justice.
"We are extremely surprised," said Israel's Foreign Ministry legal adviser Alan Baker. "We feel that [Al-Arabi's] statements and the fact that he has been so active in the United Nations in aspects that are directly connected to the subject matter, was sufficient to have been grounds for his recusal."
In contrast, Israel raised no objection to the Jordanian justice on the panel, Awn Shawkat Al-Khasawneh, even though Jordan was expected to take the lead in arguing against the security barrier.
Israel argued that Al-Arabi instigated anti-Israeli measures at the UN while serving as an Egyptian representative there. And an Egyptian newspaper printed an interview in which Al-Arabi spoke against Israel.
"Israel is occupying Palestinian territory, and the occupation itself is against international law," Al-Ahram quoted Al-Arabi as saying.
The court ruled that Al-Arabi 's previous activities "were performed in his capacity as a diplomatic representative of his country years before" the current case arose, and that Al-Arabi said nothing in the newspaper interview concerning the barrier. Al-Arabi was elected to the 15-member world court in October 2001 for a nine-year term.
The American Justice, Thomas Buergenthal, disagreed with the 13 other justices. He said that when Al-Arabi expressed his views, "he was no longer speaking for his government."
The security fence case is being heard at the request of the UN General Assembly. Countries have until February 13 to decide if they want to participate in the hearing. The court is set to hear the case beginning February 23.
What's fair is fair. When a judge is clearly biased and has convicted the accused even before the case has been heard, that judge must recuse himself according to accepted legal and moral principles. Anything less is completely unacceptable.
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