19 February 2004 Edition

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Israel's Apartheid Wall challenged in International Court

On Monday 23 February, the International Court of Justice at The Hague is holding a hearing into the legality of the Wall that Israel is building on Palestinian territory to cut off the West Bank. It impedes the Palestinian people's access to land, water resources, education and medical care and violates their most basic economic and social rights. So far, Israel's government, leaded by ultra-conservative Ariel Sharon, is refusing to attend the Court hearing.

Last December, the United Nations' General Assembly adopted a resolution requesting the International Court of Justice to render an advisory opinion on "the legal consequences arising from the construction of the wall being built by Israel". States were given until the end of January to file petitions to the court supporting or opposing the case to be heard. While so far these petitions remain secret, it has been disclosed that the European Union and the United States are against the case being heard by the ICJ, claiming that it is outside the remit of the court.

This is the same argument put forward by Israel's government, which argues that The Hague has no jurisdiction because the query before the court is too vague and uncertain to be a "legal question" and adding that, even if it does have jurisdiction, it should decline to hear the request for an opinion. Sharon's cabinet is trying to force the court to back off, counting on Britain and the US to put forward the view that the court does not give advisory opinions when one of the parties to a dispute refuses to take part in the proceedings.

The legal basis for the case is Israel's appropriation of Palestinian land and resources and the ongoing massive destruction of Palestinian crops and property, which are being bulldozed away to make room for a barrier that is impinging as far as six kilometres into Palestinian land, when taking as reference the 1967 borders. The route of the Wall, which is about one quarter built, dips into the West Bank and encircles several Palestinian towns and villages. It has cut tens of thousands of Palestinians off from farmland, schools and social services.

If Israel loses the case, the fence issue will go back to the UN General Assembly, which will then likely send it to the Security Council seeking sanctions against Israel. In this case Israel could, as it has done in many other occasions with active diplomacy and help from the US, very well collect the six votes or abstentions needed to block the resolution on the 15-nation Security Council. Should the resolution be passed, Sharon may just ignore it, as many other Israeli administrations have done on previous occasions.

What is evident is that the wall is in breach of the Geneva Convention and other International Human Rights Instruments. Article 147 of the Fourth Geneva Convention defines extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully as a "grave breach". Israel disputes this and claims that the route of the wall has been determined by "military and operational" considerations, as the government insists that the barrier is necessary to keep out Palestinian suicide bombers. Palestinians say it is a land grab aimed at preventing them from creating a state.

But, despite their refusal to appear at The Hague, Sharon's government has to face the music at home, as two Israeli human rights groups — the Centre for the Defence of the Individual and the Association for Civil Rights in Israel - brought a similar case before Israel's Supreme Court on Monday 9 February. The heart of their argument is that though Israel has the right to defend itself against attacks and build a barrier, the fence's route should stay as closely as possible to the 1967 borders and not so far into Palestinian land. The groups ns are the possibility that parts of the fence that have been approved but not yet built will move westward towards the Green Line. And, according to the state's submission to the court, there will be specific changes in the route of the already built wall. With these changes, Israel also hopes to make the project more palatable to its US allies, who have objected to its route through land the Palestinians claim for a future state. This will also soften possible US critics when Sharon travels to Washington in coming weeks to meet with President George Bush.

Palestinians say that if Israel wants a barrier, it should be built on territory that Israel held before seizing the West Bank in the Six-Day War of 1967. Senior Palestinian officials have suggested that Yasser Arafat's government is considering declaring an independent state if Israel tries to impose a boundary on the Palestinians. The state would include the West Bank, Gaza and east Jerusalem.

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