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THE WEST BANK WALL
Professor Anthony D'Amato
Northwestern University School of Law
JURIST Guest Columnist

PART II: THE MERITS

In Part I of this essay, I looked at the question of whether the International Court of Justice has jurisdiction over the 斗egal consequences of the construction of a wall in the Occupied Palestinian Territory. At the time of this writing, all the governmental submissions have been made and the Court is deliberating the case.

Since the Court is asked to render an advisory opinion, it is difficult to see how it could not have jurisdiction. Nevertheless, the parties asserting a lack of jurisdiction rely primarily on the contention that the question is so thoroughly political that it cannot be resolved by a court. Justice Frankfurter once referred to the 菟olitical thicket involved in gerrymandering cases as a decisive reason for the Supreme Court to decline jurisdiction. For many years the Supreme Court stayed away from such cases. Nevertheless, when the Justices finally decided that abstaining was counterproductive, their foray into the political thicket was carefully circumscribed. The Court simply and wisely, decided only one question among all the intertwined political issues, namely, whether deliberate political redistricting that deprives citizens of 登ne man, one vote is constitutionally permissible. Its answer was 哲o.

The ICJ faces a similar political thicket in its consideration of the legal consequences of the construction of the West Bank wall. The 49 written statements and the 15 oral arguments presented by various governments and to the Court are themselves compromises between governmental lawyers and officials with the latter having final authority. Indeed, the arguments are so firmly grounded in political considerations as to invite a political decision by the Court. If such a decision is forthcoming, it will contribute nothing toward a solution of the Palestine problem. A judicial decision based upon governmentally proffered arguments will probably be rejected by the international legal community on the grounds of ambiguity and internal incoherence.

If the Court in its deliberations were to consider only the legal issues and eschew all political posturing, it should discard at the outset the terms 登ccupied Palestinian territory, 努ar, and 鍍erritorial acquisition by conquest. Not only do these terms beg the ultimate question of whether the line created by the wall is an illegal demarcation, but the legal meanings of the terms grow out of a long history of international conflicts that are legally irrelevant to the Palestinian situation. Take the term 登ccupying power. This term did apply to Israel痴 occupation of southern Lebanon up to the time of Israel痴 withdrawal in 2000. But it does not apply to Israeli presence in the West Bank and Gaza Strip because Palestine is a mandated territory in which both Arabs and Jews have rights until the Mandate is terminated. For the same reason, there has been no 努ar between Israel and Palestine. The wars that did occur since 1948, and which are argued at length in the written statements before the ICJ, were international wars involving states such as Syria, Egypt, Jordan, and Israel that were fought in large part on Palestinian territory. But there was no war with Palestine itself because Palestine was not a state.

The reader will have noted that I used the term 杜andated territory in the preceding paragraph without justifying it. Indeed, to me the present existence of the Palestinian mandate is so clear that it stands out as perhaps the only legal constant in the entire complex galaxy of the Arab-Israeli dispute. Many people miss its significance because they are unaware of the concept of a trust, which was invented by the equity courts in early English history. A 杜andate, as the League of Nations meant it to be, was precisely an international trust. It is not a term familiar to lawyers from civil law societies.

The area known as Palestine was part of the Ottoman Empire. In the aftermath of the Peace Treaty of Versailles ending World War I, the Palestine area was given over to Great Britain to administer as a Class A Mandate. The Preamble to the Mandate provided for 鍍he establishment in Palestine of a national home for the Jewish people. This national home was to be without 菟rejudice the civil and religious rights of existing non-Jewish communities in Palestine. This farsighted provision meant that Jews from all over Europe could move to Palestine and settle there, subject of course to their purchase of the land upon which they would build their new homes. If they could not afford to buy land, they could apply for land to be allotted from public lands and waste lands not required for public purposes.

The Mandate instrument, just quoted, stems from the Class A mandate provision of Article 22 of the Covenant of the League of Nations, which requires the Mandatory (Great Britain in this case) to give 殿dministrative advice and assistance . . . until such time as they [the inhabitants of the territory] are able to stand alone. The Palestine Mandate continued without legal change through the end of the second World War.

In 1945, when the United Nations Charter was adopted, its Trusteeship Council was unable to negotiate a new trusteeship agreement with Great Britain over the Palestine mandate. Thus, in 1946 when the League of Nations was formally dissolved, the old Palestine Mandate devolved upon the United Nations General Assembly. Just as an ordinary trust survives the death or abandonment of a trustee, the Mandate continued its legal existence. The only way that the Palestine Mandate could be terminated would be for its population to be adjudged by the International Court of Justice to be able to 都tand alone within the meaning of Article 22 of the Covenant of the League of Nations.

But the ICJ has never made such a ruling, and under the facts, it could not have done so. The inhabitants of Palestine were sharply divided along religious lines. In consequences, the Mandate still exists and continues to exert its legal power over the territory of Palestine-a territory that of course includes the State of Israel, the West Bank, and the Gaza Strip.

Many people who are unfamiliar with the trust concept think that the Palestine Mandate, if it hadn稚 ended with the dissolution of the League of Nations, surely ended when Great Britain in February 1947 withdrew its administration of the Mandate and referred the entire question to the United Nations. But a trust (or mandate) is a very special situation in the law: it continues its existence as a legal entity even if the grantor of the trust and the trustee and the beneficiaries are all dead. Let us take each of these three actors in turn.

(1) The grantor sets up the trust; from then on, his presence is irrelevant to the administration of the trust (unless the trust instrument itself provides to the contrary). In the case of Palestine, the grantor was the Ottoman Empire that relinquished its sovereignty over the Palestine area in the Versailles Peace Treaty. It agreed to transfer this sovereignty to the League of Nations which thereupon resided the sovereignty in a Mandate for Palestine.

(2) There are many cases in which trustees voluntarily or involuntarily relinquish administration of a trust; when that happens, the court having jurisdiction over the trust simply appoints a new trustee. When Great Britain withdrew from the Mandate in 1947 (to be effective in 1949), the Mandate simply devolved as a matter of law upon the United Nations and its two relevant specialized organs, namely, the General Assembly and the International Court of Justice. No new Mandatory was ever appointed.

(3) The death of beneficiaries does not terminate a trust; the trust property either passes to the heirs or devisees of the beneficiaries, or in the case of some trusts (for example, a trust establishing a public park for the use and enjoyment of the people of a community) continues indefinitely.

A reader might concede the foregoing and yet argue that the Palestine Mandate came to an end when the United Nations General Assembly passed the Partition Resolution of November 29, 1947. This resolution, if implemented, would have amounted to a legal resolution of the 都tand alone requirement of the Covenant of the League of Nations. It divided Palestine into a Jewish State and an Arab State, and provided that Jerusalem become an international city. It also set out exact boundaries for each of these three major allocations. This was enough, in principle, to assure that all the inhabitants, as citizens of their respective states, could 都tand alone within the meaning of Article 22.

However, as everyone knows, the resolution was only one-third implemented: only the State of Israel was established in 1948. The ensuing armed hostilities and the great shifts in territory and in displaced persons made it clear that the Mandate was not in fact terminated. Consider the analogous case of a trust where a trustee allocates the trust property among a group of beneficiaries. Immediately the beneficiaries dispute the allocation and start fighting. As a logical matter it would be possible to conclude that the trustee was right and the beneficiaries were wrong-that their fighting made no difference. But as a matter of the equitable law of trusts, a court would more likely conclude that the trustee made a mistake since his allocation was in fact so badly received by the people who really count (the beneficiaries). A court might thereupon replace the trustee with one who is more sympathetic with the aggregate wishes of the beneficiaries, or take it upon itself to supervise (through the appointment of a magistrate) a new allocation.

The General Assembly痴 allocation in 1947 was denounced by Arab states (purportedly speaking on behalf of the politically silent Palestinian people) as overly generous to Israel. In the present hearings before the ICJ, those same Arab states would clearly welcome a return to the 1947 Partition Plan, inasmuch as they even accept the 堵reen line of 1949 which is less generous to Palestine than the Partition boundaries. The current Arab position ratifies my argument that, despite Israel痴 acceptance of the Partition boundaries of 1947, the Arab world痴 rejection of those boundaries at that time estops it now to contend that the 1947 demarcation should be given legal effect.

Of course we must not lose sight of the fact that the people of Palestine have been victimized by these political machinations and by Yassir Arafat痴 opportunistic lust for power. Many Israelis have also been victimized by the lust for power of their own leaders. The Mandate for Palestine focuses our attention upon the inhabitants of the territory and not their political leaders. The people of the territory are the true legal beneficiaries, and all external events that have been taken in their name does not detract from their legal standing as wards of the world community. They are legally designated wards under the terms of a Mandate established by the League of Nations and continued in force by the United Nations. Their interests are paramount. This is another reason why I believe that the ICJ is being led astray by the political statements and oral arguments of self-interested states.

If the ICJ wants to steer a legal course through the rocks and shoals of the written statements and oral arguments of the governments of the world, what exactly should it do? In my opinion, it must begin by looking at the entire question from the internal perspective of the Mandate. It must resist all the governments who urge it to look at the Mandate from an external perspective, namely, as an instrument that was part of the legal history of Palestine but has little if any present vitality. Instead, the Court should view as the beneficiaries of its advisory opinion the inhabitants of Palestine, including Jews, Arabs, and Christian minorities. They are the ones to whom the entire complex scheme was intended to benefit-from the Balfour Declaration of 1917, through World War I, through the emigration of Jews to Palestine between the wars, to the Partition Plan, and through numerous peace conferences and two intifadas. They, and not the states submitting written statements and oral arguments, are the true parties in interest. The real question is not the legal consequences of the construction of the wall, but rather the legally protected interests of all the Jews, Arabs, and Christians affected by the construction of the wall.

The next and final step, which is subtle and difficult and which I am unequipped to state in any detail, is to address these legally protected interests. The Court must figure out where the parties would be today within the aegis of the governing Mandate and taking into account the changed relationships since 1948 among the beneficiaries. In other words, the legal standard should be: what would a Court today, in its proper role as supervisor of the Mandate, regard as a just demarcation line of the wall being built by Israel. The general answer is: the demarcation line must be reasonable in light of the interests of the inhabitants.

A Mandate, like a trust, is a dynamic instrument; it 電oes equity over time (as perhaps only those who understand the rise and development of equity courts as opposed to law courts in England can fully appreciate). There is no doubt that Israel can build a barrier on its own territory, as Ireland痴 written submission to the ICJ makes abundantly clear. But the mandated territory is neither Israel痴 登wn territory nor Palestine痴 登wn territory. A 途easonable path for the wall is that which maximizes the interests of all the inhabitants. This maximization is not quantitative only; it is not to be measured on a per capita basis (unlike 登ne man, one vote!), but rather on a 砺alues basis. Thus, a portion of the wall that divides an Arab town, or separates an Arab farmer痴 house from his own farm, is extremely costly from an equitable point of view. The wall becomes less costly the closer it approaches the green line. But flexibility has to be given to the need for a continuous wall; a discontinuous barrier is an oxymoron. This is a general problem in cost-effective boundary-drawing. There are many lessons in such expertise that one can derive from the League of Nations redrawing of the boundaries of the Ottoman Empire after the first World War.

Thus, as I see it, the forthcoming advisory opinion could be placed on its firmest legal footing if the Court were to decide provisionally that the interests of the inhabitants of Palestine under the Mandate are paramount, and to appoint various international jurists and experts to consider each segment of the wall in light of that paramount interest. Their decisions-to dismantle a segment, remove it further toward the green line, or leave it in place-woud ideally become incorporated into the final advisory judgment of the ICJ to be forwarded to the United Nations.


Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law. He was lead counsel for Milan Kovacevic, the first person charged with the crime of genocide by the International Criminal Tribunal for the Former Yugoslavia at The Hague.

March 2, 2004

GUEST COLUMNIST

JURIST Guest Columnist Anthony D'Amato is Judd and Mary Morris Leighton Professor of Law at Northwestern University School of Law. He writes in the areas of international law and jurisprudence, focusing upon their underlying analytic structure. His most recent books include The Alien Tort Claims Statute: An Analytical Anthology, European Union Law Anthology, International Law: Process and Prospect (2nd ed.), Analytic Jurisprudence Anthology, International Intellectual Property Law, and volume 2 of his collected papers, published by Kluwer Law International. His first book, The Concept of Custom in International Law, published in 1971, is generally regarded as a classic and is one of the most widely cited works in international law.

Professor D'Amato has taught courses in constitutional law, environmental law, international law, international intellectual property law, jurisprudence, justice, legal ethics, and torts, and since 1976 has lectured on professional ethics at Northwestern University Medical School. He has on occasion taught courses on the Evanston campus in the departments of Philosophy and Political Science. He is founder and chair of the Human Rights Interest Group of the American Society of International Law, and past president of the International Law Section and the Jurisprudence Section of the Association of American Law Schools. He has been active in the American Bar Association, serving as a member of the council of the Section of International Law and Practice, as chair of the Committee on International Courts and the Committee on Independence of Lawyers and Judges. He has served as a member of the board of editors of the American Journal of International Law and is advisory editor of the Journal of International Legal Studies.

Professor D'Amato has stated his belief that the occasional practice of law helps make more realistic his teaching and writing. Notable among the cases he has litigated are the only court of appeals victory against the government in a military service case during the Vietnam era, the only court of appeals victory against a foreign sovereign for a governmental tort committed against an American citizen, and the only case litigated (and won) by an American attorney in the European Court of Human Rights.