Going to court

Nearly forty nations have submitted briefs to the International Court of Justice (ICJ) in The Hague calling on it to refuse to hear the case of the Israeli "separation fence" on the grounds that "it is a political, not judicial issue," the Israeli daily Harretz says in two separate February 1 reports.

Many of those same nations, which include most of the European Union as well as the US, Canada, Australia, and Russia, among others, have voiced objections to the route of the fence, which in several areas intrudes well into the West Bank - that is, well into Palestinian territory occupied by Israel.

The Court became involved through a December 8 General Assembly resolution asking it for an advisory opinion on the barrier. A decision would thus have no legal standing, but in the court of international public opinion the impact could be significant. Israel and the Palestinians have both invested a good deal of energy in putting together their cases - but Israel has also been putting energy into avoiding a hearing in the first place.

However, it does appear that the Court will go ahead with the hearing but will put considerable weight on the affidavits in considering the case.

An interesting sidebar here is that apparently the German foreign ministry suggested it saw a good possibility that the Court would decline the case - which, Harretz says "may have led to the decision by several Western nations to oppose the hearing," suggesting their opposition may be more opportunistic than principled.

In fact, I do have a little trouble understanding the objections. The very problem these same nations raise with the fence is that it, again, intrudes into the West Bank. How does the intrusion of a physical, not even a political but a physical, boundary into territory which the world regards and not belonging to Israel not involve legal issues? Doesn't this constitute a "further material breach" of Security Council resolutions regarding the "inadmissibility" of territory seized by force?

It would appear that Israel has every legal right, unquestioned by anyone of who I'm aware, to build such a fence so long as it does not go beyond the "Green Line" - the 1967 borders. When Israel claims - as it at least in effect is doing - that it has the right to erect a barrier outside its recognized territory, why isn't that an issue for an international court?

This is especially true since Israel's position is, to say the least, disingenuous.

"We believe that the court should not and cannot deal with this political issue, which has to be dealt with by direct negotiations between Israel and the Palestinians," said an official at the Foreign Ministry in Jerusalem after Israel filed its affidavit.

This despite the fact that, as Harretz's Middle East commentator, Zvi Bar'el, noted on February 1,

[i]n the past three years, Israel has played a double game: on the one hand, it has removed the PA [Palestinian Authority] from any position of power and decision making, destroyed its infrastructure of security and civilian control, reoccupied the West Bank and Gaza Strip, and blocked any attempt to advance a political process. On the other hand, Israel has continued to insist that the PA is exclusively responsible for everything that happens, has depicted it as a terrorist organization and has ruled out every official Palestinian representation.

That is, Israel has gone out of its way to make sure there is no person, group, or organization that can claim to speak for the Palestinians as a whole.

Whether that was the result of stupidity (hoping for the emergence of a more pliable leadership that could be dominated in discussions) or malice (intending to justify continued occupation and eventual annexation of Palestinian territory) is irrelevant. What is relevant here is that it's improper - it's just wrong - to say issues must be resolved by negotiation when you've gone out of your way to undermine the only negotiating partner you had.