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February 13, 2004/Shevat 21 5764, Vol. 56, No. 21
Israel girds for The Hague
LESLIE SUSSER
Jewish Telegraphic Agency
JERUSALEM - Israel claims that the International Court of Justice has no jurisdiction to rule on the West Bank security barrier - but at the same time the government is preparing detailed legal, security and diplomatic arguments and an intensive public-re-lations campaign.
The government also announced this week that it may well make significant changes in the fence's route ahead of the Feb. 23 proceedings at The Hague.
In the run up to the hearing, two major de-cisions will be taken that could have a bearing on the case: whether it's better to dispatch an Israeli legal team to appear at the ICJ or to rely on a written affidavit, and whether to alter the fence's route for humanitarian reasons.
Most top Israeli officials are against sending a legal team on the grounds that it would imply the very recognition of the ICJ proceedings that Israel is at such pains to deny.
As for the route of the fence, there could be changes before the issue reaches The Hague. In an address Feb. 8 to the 40th Munich Conference on Security Policy, Israel's new national security adviser, Giora Eiland - who has been given a free hand by Prime Minister Ariel Sharon to draft a new route for the fence - declared that Israel had not fully taken into account the way the barrier could disrupt Palestinian lives.
Israel will do what it can to avoid causing un-necessary suffering, Eiland said.
Following Palestinian claims that the fence, being built in places on West Bank territory, is illegal, the U.N. General Assembly passed a resolution in December asking the ICJ for an "advisory opinion."
The United Nations followed that up with a 600-page affidavit that, ac-cording to Israel's U.N. ambassador, Dan Giller-man, ignores the basic reason for building the fence: Palestinian ter-rorism.
Israel responded by questioning the competence of the court, the wisdom of a court action and the neutrality of one of the 15 judges, an Egyptian who previously has expressed anti-Israel views.
The legal-diplomatic brief, drafted by British-based international law expert Daniel Bethlehem, rejects the court's authority as well as "the propriety of the process."
In a 131-page affidavit, Bethlehem maintains that the court has no right to rule on what is basically a political dispute, and that doing so will undermine political efforts to resolve the Israeli-Palestinian conflict.
A court ruling most likely will drive the parties to adopt more radical postions and thus will make political negotiations less likely, the argument goes. It will undermine diplomatic initiatives like the in-ternationally approved "road map" peace plan and cause more suffering and hardship, Israel will argue.
In other words, Israel says, the court is an inappropriate forum for dealing with a political conflict.
This argument already has struck a receptive chord. Several dozen countries, including the United States, Russia, Canada, Australia, South Africa, all 15 European Union members and the 10 waiting to join, have submitted affidavits re-jecting the court's juris-diction on the grounds that a hearing would do more harm than good.
To back up the legal-diplomatic argument, Israel also is preparing a detailed security brief. A three-part document de-scribes the terrorist onslaught that led Israel to build the fence, explains the thinking behind the route and outlines its effectiveness at preventing terrorism.
The document invokes Israel's inherent right to self-defense according to Article 51 of the U.N. charter. It also defines the Palestinian intifada as a "hostile confrontation" that entitles Israel to take forceful measures.
Leslie Susser is the diplomatic correspondent for the Jerusalem Report.
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