Last update - 21:11 08/12/2003
UN votes 90-8 to ask Hague court for opinion on fence
By Shlomo Shamir and Aluf Benn, Haaretz Correspondents, Haaretz Service and Agencies
The United Nations General Assembly approved on Monday a Palestinian-initiated resolution asking the International Court of Justice to issue an advisory opinion on the legal consequences of Israel's construction of the separation fence. Ninety nations voted in favor of the draft, eight opposed and 74 countries abstained.
Israel condemned the resolution. Ra'anan Gissin, Prime Minister Ariel Sharon's spokesperson, said, "This is an attempt... to delegitimize the right of the Jewish people to have a Jewish state that they can defend."
Sharon and Foreign Minister Silvan Shalom decided prior to the vote that Israel would cooperate with the international court in the Hague should the resolution pass and that Israel would argue that the decision to build the barrier was based on self-defense.
Sharon and Shalom decided to wait for the outcome of the vote before taking any action, but agreed that Israel would present its position that the barrier is legal and stands up to all standards of judicial scrutiny.
The United States and Israel strongly opposed the resolution, arguing that it would "politicize" the court and undermine efforts to reach a Middle East peace settlement.
Other countries voting against the fence were Micronesia, Australia, Ethiopia, the Pacific islands of Nauru, Marshall Islands and Palau.
Almost all delegations opposed the fence, which juts into the West Bank. But the European Union joined the unusually high number of abstentions, believing that seeking an opinion from the court was legally questionable and would work against a political dialogue.
Meanwhile, Shinui ministers decided Monday to demand at the next cabinet meeting that the government alter the route of the fence, changing it from a "political" fence to a "security" fence, Israel Radio reported. Gissin said Shinui would be permitted to ask the cabinet to re-examine the fence's path.
Justice Minister Yosef (Tommy) Lapid, who heads Shinui, said his plan would leave a greater number of settlements outside the fence than the present route does, Israel Radio reported. "The route that was approved is too long, too expensive, not acceptable to the United States and puts the whole world against us," he said.
Israel insists the fence, which it began building last year, is needed to prevent suicide attacks and says its construction is purely for security.
Arab nations argued that going to the court was the only action available to try to stop construction of the barrier which the Palestinians call a land grab by Israel ahead of possible talks about the borders of a Palestinian state.
Opinion won't be legally binding
Several noted that any opinion would not be legally binding. The Palestinian draft resolution approved by the General Assembly requested "that the International Court of Justice issue an advisory opinion on the legal ramifications arising from the construction of the separation fence by Israel, the occupying force in the occupied Palestinian territories."
Palestinian observer to the UN, Nasser al-Kidwa, started pushing for the
resolution after Secretary-General Kofi Annan issued a November 28 report
declaring that Israel has failed to comply with a General Assembly demand to halt construction of the barrier, which juts into the West Bank.
Al-Kidwa said at the debate Monday that the separation fence destroys all possibility of negotiation, and that Israel must choose between the fence and the U.S.-backed road map, Israel Radio reported. He also said that Israel's "fascist-colonialist occupation" has transformed the Palestinians into a nation of slaves, according to the radio.
Israel's ambassador to the UN Daniel Gillerman said the fence will contribute to negotiations by causing a decrease in the amount of soldiers assigned to the West Bank, Israel Radio reported.
Gillerman also blamed Palestinian Authority Chairman Yasser Arafat for creating the situation that led Israel to consider it necessary to establish what he called the "Arafat fence."
"This is the fence that Arafat built," said Gillerman. "His terrorism initiated it and made its construction inevitable. If there were no Arafat, there would be no need for a fence."
Foreign Ministry: Fence doesn't violate international law
The Foreign Ministry contends that the construction of the separation barrier does not violate international law, even though its path extends beyond the Green Line, into the West Bank. "Every occupying power has the right to build fortifications and fences in the occupied territory when there is a military need for this," a senior ministry source explains. "When there is terror," he continues, "no one can argue that there is no military need for a fence. It might raise humanitarian problems that need to be solved, but there is no question of legality here."
Despite this confident assessment, Israel is not anxious to submit such political issues before international bodies, which are always suspected of favoring the Arab side and harboring hostility toward Israel's case. In his efforts to block this resolution, Foreign Minister Silvan Shalom also warned that transferring the Israeli-Palestinian conflict to international adjudication would eviscerate the road map.
The International Court of Justice in The Hague, established in 1946, serves two roles: adjudicating conflicts between two states that agree to accept its authority, and handing down legal opinions upon request of the UN and other international institutions. The court's rulings have only advisory status; they are not binding upon the groups that request these rulings. In some cases, however, it may be decided in advance to regard the court's ruling as binding.
The court will ask the relevant parties to submit written and oral statements, and then deliberate behind closed doors. The Foreign Ministry says this process would last for at least a year. Meanwhile, the Palestinians would have achieved their goal of embarrassing Israel.
Contrary to some misleading reports published in Israel, the ICJ operates separately from the International Criminal Court (ICC), which was established to judge war crimes. There is no connection between the two international courts - except for the fact that both are located in The Hague.
The UN appoints 15 judges to the ICJ, who each serve a nine-year term. Their mandate is to rule independently, and not represent their particular country. Currently, there are judges from Egypt and Jordan on the ICJ, as well as judges from France, China, Japan, Madagascar, Slovakia, Germany, Sierra Leone, Russian Federation, United Kingdom, Venezuela, Netherlands, Brazil and the United States. The court registrar is from Belgium and his deputy is French.
The court does not have a particularly busy schedule. Since it was founded nearly six decades ago, it has issued just 77 rulings on conflicts between states, plus 24 advisory opinions. It currently has 22 cases in its docket. Some of these cases were brought in the wake of wars in Africa and Yugoslavia. Most of the court's cases deal with territorial disputes (for example, a dispute over territorial waters between Nicaragua and Colombia) and issues of criminal jurisdiction between countries. (Mexico, for example, has appealed to the court in an effort to block the U.S. from carrying out the death penalty against 54 Mexican citizens.)
Israel has little experience with the ICJ. It approached the court in 1957 to pursue a claim against Bulgaria, after an El Al plane was shot down over the Eastern bloc country two years earlier. But the case was dismissed because Bulgaria was not willing to accept the court's authority.