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Last Updated: Monday, 23 February, 2004, 16:49 GMT
Israel's barrier and the world court

By Paul Reynolds
BBC News Online world affairs correspondent

The case at the International Court of Justice (ICJ) over the barrier Israel is constructing in the West Bank opened with mutual accusations between Israelis and Palestinians and a sense among many countries linked to the peace process that a ruling from the court would not help their task.

The security barrier being built by Israel
Israel is boycotting the oral hearings concerning the West Bank barrier
It is shaping up to be every bit as contentious as the General Assembly resolution of 1975, which declared Zionism a form of racism. That resolution was revoked in 1991 for the opening of peace talks in Madrid.

Public hearings opened on 23 February. Forty-four governments sent in written opinions, along with the UN itself, the Arab League and the Organisation of the Islamic Conference.

Israel has also sent a submission but it is boycotting the oral sessions on the grounds that it is all a propaganda exercise. Palestine, with observer status at the UN, sent a written argument and opened the oral hearings.

Broadly, western countries opposed a role for the ICJ while and Muslim states argued for it.

Role of ICJ:
The ICJ is the court of the United Nations and is based in The Hague. It has two functions. It makes rulings in disputes, although its effectiveness depends on countries accepting its jurisdiction, which is not that often. It also gives non-binding advisory opinions when asked to do so by relevant UN organisations.

In this case, the ICJ was asked to give its advisory opinion by a vote in the General Assembly last December. The resolution was proposed by a bloc of mainly Arab and Muslim countries. Out of the Assembly's 191 members, 90 supported it, eight opposed it (Australia, Ethiopia, Israel, Marshall Islands, Micronesia, Nauru, Palau, United States) and 74 abstained. A number of countries did not turn up for the vote.

The resolution asks the ICJ "to urgently render an advisory opinion on the following question":

"What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?"

Three-way argument:
There is basically a three-way argument. The Palestinians want a ruling that the "wall" (and what you call it defines your position) is illegal where it crosses into occupied land in the West Bank.

The Israelis say that the "fence" is a vital measure of self-defence. The Europeans and Americans argue that, whatever the arguments about the line of the "barrier" itself, the ICJ should not get involved in such a contentious political issue.

  • Palestinians: The Palestinians argue that all the land captured by Israel in the 1967 war is occupied territory which cannot be annexed under the terms of the 1907 Hague regulations on the Laws and Customs of War. The population must also be protected under the Fourth Geneva Convention. Palestinians say that the withdrawal of a claim to the land by Jordan is not relevant and that the Palestinians should be considered the rightful owners.

    A Palestinian woman beckons to her son after scaling the barrier
    Palestinians say the barrier violates their day-to-day rights
    Accordingly, to build the barrier anywhere inside this territory, especially around East Jerusalem, which the Palestinians want as their capital, implies eventual annexation and also violates the day-to-day rights of the population whose lives are affected.

    The Palestinian Prime Minister Ahmed Qurei has described the barrier as an "apartheid wall" that would "put the Palestinians in cantons". He says that it endangers "the two-state solution and the creation of an independent Palestinian state".

    At the very least, the Palestinians hope that pressure will force Israel to change the route of the barrier in places. They also hope that a ruling favourable to them might help the case for sanctions against Israel.

  • Israel: Israel rejects the claim that the land it captured in 1967 is occupied territory. It argues that in 1967, Jordan controlled the West Bank and with very limited international recognition. Jordan has since given up its claim and, therefore, the status of the territory is undetermined. Israel says that The Hague and Geneva agreements do not strictly apply, therefore, though it implements them in many ways.

    As for the barrier itself, it says that it is a fence in all but short sections open to sniper fire. Israel accepts that the fence crosses the 1967 "green line" in places but that is for topographical and local reasons. It is a self-defence device, which has no political significance because it could be moved in the event of a political settlement. Israel summed up its position with a statement from its foreign ministry:

    "Regrettably, the Palestinians have embarked upon a cynical political manoeuvre against Israel in the international arena rather than trying to resolve the issues through direct negotiations," the statement read.

  • Europe and the US: The EU voted in favour of a General Assembly resolution last October condemning the line of the barrier into the West Bank but feels that it is wrong and divisive to take the issue to the ICJ.

    The British Foreign Secretary Jack Straw made a parliamentary statement about the position.

    "Despite our view on the illegalities of the fence, we argued against this question being referred to the International Court of Justice.

    "This approach is one shared by all members of the European Union including all accession states... The UK has also submitted a detailed written statement to the court arguing that the court ought to exercise its discretion to decline to give an opinion.

    "We believe that it is inappropriate to embroil the court in a heavily political bilateral dispute. We also believe the court should not be engaged where the consent of both parties has not been given."

    The United States takes an even firmer view that the ICJ has no place in this issue. It says that the road map, the plan for a Middle East settlement, is the way forward.

    History of the ICJ:
    The ICJ has a chequered history. It was set up in the optimistic days after World War II but has failed to develop into what its founders envisaged - a forum for solving international disputes.

    This is largely because governments have not entrusted it with decision-making in their own disputes.

    In 1984, the United States walked out of a case brought by the Sandinista government of Nicaragua. The Sandinistas had complained about the activities of the US-supported Contra rebels but the Reagan administration was angered by the court's insistence that it had jurisdiction and refused to take any further part in the proceedings.

    In 1977, Argentina refused to accept a ruling, which gave Chile possession of islands in the Beagle Channel. Only the intervention of the Pope prevented war.

    On the plus side, the court did rule in 1971 that South African occupation of South West Africa, later Nambia, was illegal. This was seen as helpful by opponents of apartheid.

    Hopes for a settlement of the barrier issue are not high.




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