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MIDEAST: West Bank Wall Goes Before Court
By Fitzroy Nation
THE HAGUE, Feb 20, 2004 (IPS) - In eagerly awaited hearings set to begin here
Monday, the International Court of Justice will be asked to decide on the legality
of the barrier being built by Israel through the occupied West Bank.
The court cannot enforce its judgments. But observers say its findings will be
viewed as an authoritative statement of international law.
The court is the principal judicial organ of the United Nations. It initiated the
proceedings at the request of the UN General Assembly.
At issue is a structure snaking its way over 700 kilometres (440 miles) in the
occupied territories. Israel calls it a "security barrier".
For most of its length it consists of a concrete base with a superstructure of
wire and mesh buttressed by rolls of razor wire. Elsewhere it is solid concrete
eight metres high, with watchtowers.
The government of Israeli Prime Minister Ariel Sharon says it is needed to
prevent Palestinian suicide bombers from entering Israel.
Palestinians say it is a wall designed to place a permanent border around
land that belongs to them. They say the structure is responsible for dislocating
hundreds of thousands of families.
The Israeli government has declined to give oral evidence at the hearings,
fearing its participation would lend legitimacy to any final decision of the court.
The government filed an affidavit in January questioning the authority of the
court to deal with the issue. That position has been supported by its main ally,
the United States.
A Dutch expert in international law, André Nollkaemper from the University of
Amsterdam says these objections are based on a fear that the court could
become a political actor, and decide on politically laden questions.
"In the present time frame one could think of the possibility that the Assembly
would ask a question about the legality of the use of force in Iraq, for instance,"
he told IPS. "And clearly that's something which both Europe and the United
States would not wish to see."
But Nollkaemper says the fact that a legal conflict may have political
ramifications "does not mean that the court could not rule on the narrow legal
issue. The court is very well able to distinguish between the legal aspects of the
case and the political aspects of the case."
Well-argued advice from the court "could be a useful argument for a further
political resolution of the conflict," he says. "Of course, it would not solve the
conflict, but it could be one stepping stone on which the parties could find
common ground for a further political resolution."
The countervailing positions will be contested not only inside the austere halls
of the court, but on the streets of this Dutch city.
Israeli groups plan a major presence outside the court. They have been given
permission to bring over the shell of a bus damaged by a suicide bomb that
killed 11 people, and put it on display.
This battle for hearts and minds will be joined by Stop the Wall, a coalition of
opponents of the project. Leaders of this group expect protestors from the
Middle
East and various European countries.
Inside the court, oral statements will be heard from Monday to Wednesday.
Countries lined up include Palestine, South Africa, Algeria, Saudi Arabia,
Bangladesh, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Senegal,
Sudan and Turkey. The League of Arab States and the Organisation of Islamic
Conference will also present their views.
In all, 44 countries have filed their opinions with the international court.
Late last year the UN General Assembly voted by a margin of 144-4, with 12
abstentions, against construction of the wall. It called on Israel to remove
barriers already erected.
The world body subsequently approved a resolution asking for the judgment
of the international court on "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?"
A similar process is under way in Israel. The Hamoked Centre for the Defence
of the Individual, and the Association for Civil Rights petitioned the Supreme
Court this month to rule on the principle of building the barrier on occupied land
and the restrictions it imposes on Palestinians in the West Bank.
Since ground was broken on the project in June 2002, international opposition
to the wall has grown.
This week the International Committee of the Red Cross said the building of
the barrier was contrary to international law. It said the route cut into Palestinian
territory, and went "far beyond what is permissible for an occupying power."
The Red Cross said thousands of Palestinians have been deprived of access
to water, health care and education. Additionally, the barrier damaged
Palestinian property, it said.
While affirming its respect for Israel's right to protect itself, the Geneva-based
organisation called upon the Sharon government "not to plan, construct or
maintain this barrier within occupied territory."
A report issued last September by a human rights investigator for the United
Nations said the barrier was "illegal". John Dugard, a South African law
professor, said the wall amounted to "an unlawful act of annexation" and should
be condemned by the international community.
He said 210,000 Palestinians living in the area between Israel and the wall
would be cut off from social services, including schools and places of work.
Israel said this report was "one-sided" and "biased".
Similar condemnation of the wall came from Amnesty International, which
called for construction to be halted immediately.
The issue has been fully aired in the court of world opinion. Next week, the
legal luminaries will have their turn. (END)
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