Book Review: Solon Solomon, The Justiciability of International Disputes – The Advisory Opinion of Israel’s Security Fence as a Case Study

Solon Solomon, The Justiciability of International Disputes – The Advisory Opinion of Israel’s Security Fence as a Case Study (Jerusalem: Wolf Legal Publishers, 2009) ISBN: 978-90-5850-437-1

By Dr. Fozia Nazir Lone

Assistant Professor, City University of Hong Kong, fnlone@cityu.edu.hk

Solon Solomon, in this book presents a comprehensive legal description on the justiciability of international disputes. This book was the author’s LLM thesis that he successfully wrote at the Faculty of Law of the Hebrew University. His book specifically provides a thorough legal analysis on the International Court of Justice’s (hereinafter ICJ) Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep. 136 (July 9, 2004) (hereinafter Advisory Opinion) from the Israeli perspective. Solomon tries to balance the legal arguments by reviewing it both from the security standpoint as well as the justiciability dimension. The author accepts that the present approach to settlement of disputes by the ICJ is to perceive that each case has both legal and political aspect and the Court simply focus on the legal issue/s. Hence presence of political aspect to a dispute does not render an issue non-justiciable (Page180). The author premises his thesis on the fact that there are certain issues that are inherently non-justiciable as justiciability stricto sensu and the Advisory Opinion is examined from this standpoint.

The author, an international practitioner who served in the Knesset Legal Department and was in charge of constitutional and international law issues, argues that it is the clash of two significant international law issues i.e. the legality of settlements and the settler’s right to life that renders it non-justiciable as the Court is unable to uphold one principle over the other without being accused of adopting a biased attitude. The author rightly mentions that the Court’s ruling on the illegality of settlements was not feasible due to a lack of crucial topographical evidence. As such the author includes the Israeli Supreme Court cases on the construction of security fence and provides a reader an opportunity to compare two points of views. This book is divided into three long chapters that deal with the justiciability doctrine its nature and role in the adjudication of issues (Chapter I), the justiciability doctrine and the Advisory Opinion on Israel’s security fence (Chapter II) and the Israeli Supreme Court and the Security Fence (Chapter. III). The book also has a short introduction and an epilogue that is not included as a chapter.

Chapter I systematically provides a theoretical review of the justiciability doctrine that concerns the limits upon legal issues over which a court can exercise its judicial authority. In this chapter the author tries to deal with the very controversial question of justiciability from an objective standpoint (page 9-15) and argues that the civil law countries also observe the non-justiciability doctrine. This chapter considers various aspects of justiciability and distinguishes it into lato sensu and stricto sensu; evaluates legal and political side of justiciability; analyses justiciability in domestic setting (the US, Canada, Germany and Israel); understands it in the international arena; and reviews the doctrine of justiciability in the framework of the institution of arbitration. The author describes justiciability lato sensu as those factors that do not permanently affect the non-justiciable issue. However, in case of justiciability stricto sensu the factors that affect the non-justiciability are rooted within the issue and are not reversible unless there is a change in the very heart of the issue. This chapter also explores practical application of the justiciability doctrine in jurisprudence of the ICJ and the Permanent Court of the International Justice. Citing the Canadian Supreme Court cases of Same Sex Marriages and re Secession as an example, the author argues that the ICJ should have decline to provide the Advisory Opinion on the security fence based on its political nature. Solomon is of the view that using the non-justiciability doctrine could have preserved the Court’s prestige.

Chapter II covers the most challenging aspect of the practical application of the contentious doctrine of non-justiciability by applying it to the Advisory Opinion. The author argues that even though the case had a legal side, ‘yet in the balance between law and politics, the scales tend to tilt towards the later’ (page 75). From the UN GA’s perspective the Advisory Opinion was rendered on the premise that the security fence did not serve just a defensive role but also a political one, as Israel’s border to the east and as a means of annexing de facto the big settlement blocs inside Israel (page 76). Quoting Araujo, the author argues that Court hinted that if the fence was erected along the Green Line and not on occupied territory, the fence could have been considered legal. Solomon is of the view that since the legality of fence was attached to legality of settlements the Court was compelled to align with one of the two narratives i.e. either consider settlement illegal and uphold international humanitarian law and protect Palestinian’s or condon the existence of the fence and protect the right to life of Israeli settlers. The author argues that even if the Court would apply international law in these scenarios the outcome would be substantially political depending on how the Court chooses to view these issues. In the first scenario the conclusion would be that settlements are illegal and should be dismantled, and in the latter situation erection of the security fence would serve to protect the Israeli settlers.

Solomon argues that for the political nature of the issue, the Court should have declined to render an opinion as nature of the subject was ingrained as non-justiciability stricto sensu. He further argues that presence of political nature leads to the non-justiciability lato sensu due to the ultra vires character of the requesting resolution, bias of Judge Elaraby (Israel was against the participation of Justice Elaraby in rending of the Advisory Opinion due to his role as a representative of Egypt in the UN and he played a major role in the context of the Emergency Special Session of the UN GA, which later requested for the Advisory Opinion), the political motives behind the request, its high technical character as well as substantial lack of evidence on the route of the fence. Solomon concludes that the Advisory Opinion provides a practical illustration of how political character of a case is “not premised upon the specific constellation of an individual case, but rather is attached to the issue itself. There could be issues and disputes which, although according to both the objective and the subjective theories of justiciability as well as the ‘out of cage’ approach, can be fully ‘legal’, yet still the Court should declare them as ‘political’ and not adjudicate on them” (page 78).

Chapter III discusses the careful attitude of the Israeli Supreme Court to the ICJ Advisory Opinion and how it allowed penetration of international law into the domestic sphere (page 178). The chapter discusses the two Israeli Supreme Court cases and explains how the Court balanced various legal and political issues. In the first ruling on the security fence, the Supreme Court in the Sourik case set the standards balancing conflicting rights and the remedy of proportionality. These standards were also used by the Supreme Court in the subsequent case to examine the legality of project for the construction of fence (page 145). Solomon while discussing this case explains how the Court tried to find a balance between the military commander’s action on the route, the Israeli security needs and the rights of the local Palestinian population by applying the threesome proportionality test. By applying this test the Court came to the conclusion that certain parts of the fence route did not comply with the proportionality standards and that the security provided outbalanced the harm to Palestinians (page 147). The author is of the view that the Court by its coherent jurisprudence, set the issue on a more realistic basis by disconnecting legality of settlement and their protection and hence avoided expressing a stance on the legality of Israel’s settlement policy and also managed to condone the security fence without condoning the Israeli settlement (page 152). This chapter also considers the criticism of the Supreme Court’s judgment in Beit Sourik. The author also discusses the second major case of Mara’abe where the Israeli Supreme Court related to the three criteria established in Beit Sourik case. The Court determined that Israeli government and military must within a reasonable period, reconsider various alternatives for the fence route. The Supreme Court took a careful stance to relate to the Advisory Opinion thus allowing respect of international legal system but proceeded to examine the relation of international law to the Israeli reality.

This book has various positive attributes. The first strength of this book is its subject matter i.e. the justiciability of the international disputes. This book is perhaps the first of its kind that analysed the justiciability of the Advisory Opinion as lato sensu and stricto sensu by referring to the international disputes that are suitable for adjudication. Secondly, the representative international and domestic cases chosen in various jurisdictions are useful to assist the reader to understand the Israeli point of view. Solomon interplays this dynamics to illustrate that it is possible to bypass critical political questions by the national courts and yet allow penetration of international law into the domestic sphere. Thirdly, the book provides a thorough comparison of Israeli domestic cases with the Advisory Opinion making the book useful to Israeli and international practitioners. Fourthly, this book skillfully forces legal practitioners to think out of box and realize that certain issues cannot be solved by legal means and there is a need to balance the conflicting interests ‘rather their submission to court of law from which one side emerges the victor and the other the vanquished’ (page 181).

Hardly any legal scholarship is ever perfect and this book is no exception. There are a few aspects that I would like to highlight for the author’s consideration in the next edition. Firstly it is not clearly explained as to why the adjudication of the Israeli Supreme Court on the security fence could not be classified as non-justiciable as the Court was essentially dealing with the similar issues as the ICJ, legal v political even though it avoided the question of settlement. In other words why did not the Israeli Supreme Court exercise its discretion to avoid deciding the security fence case as it also involves a political issue, which is regarded as non-justiciable? Further, the author chooses not to explore in-depth why the ICJ is not concerned with justiciability of the disputes and why does the presence of political issue in a case not bar the ICJ from exercising jurisdiction over the matter, even though it may exercise its discretionary power under Article 65 (1) and Article 92. These critical questions could have been evaded if the author had limited its area of research by explaining it in the introductory chapter, which is very short. Since these questions are not tackled at some occasions it seems as if author is providing a legal justification on behalf of Israel for disregarding the ICJ’s Advisory Opinion. Addressing of these issues in the introductory chapter could have made this research more balanced.

In my view this book would have gained significantly by the author including a section on non-judicial resolution of the Middle East dispute and how the Advisory Opinion by ICJ affected the Middle East peace process. The author touches upon this aspect by noting that the Middle East conflict cannot be viewed monolithically from just legal field and the hope that the two peoples will learn from past failures to make use of the guidance that the applicable international law principles provide, refers both to human rights and humanitarian law’ (page 180-81). However, this statement is not explained. It is true that advisory jurisdiction represents a step forward in the development of international law towards the universal jurisdiction of the ICJ, and is a very flexible tool in international adjudication. However, the Advisory Opinion involved many difficult and delicate political issues involving the Middle East, the relations between Arab States, Palestine and Israel that had a direct link with the peace process. The Advisory Opinion upset one party, Israel, without whose cooperation no resolution is possible to the Palestine problem. It is clear that although the Advisory Opinion may clarify law, it cannot permanently resolve the issues that still fuel the tensions in the Middle East pertaining to Israel and Palestine. Therefore, both objective and equitable political action and the rule of law are essential to ensure that Israel and Palestine do not rely on fences to make good neighbours as clearly it has exacerbated the relations between the two communities.

Overall, Solomon’s book remains a valuable contribution not only to understanding the Israeli perspective on the ICJ’s Advisory Opinion on the construction of security fence but also to identify with the concept of justiciability and its relevance to international disputes. Solomon’s book is a work of admirable research and a very good addition to library of practitioners, academics and students in the field of law, social science and security studies.

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