EU nations oppose ICJ hearing on fence case

There is a real possibility that the International Court of Justice (ICJ) in The Hague will decide that the question of the separation fence is inadmissible to an international judicial forum, according to sources at UN headquarters in New York.

A UN resolution passed on December 8 asked the ICJ to issue an advisory opinion as to "the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory..." The hearing is to open on February 23.

Diplomats on Friday quoted an opinion said to have been issued by the German foreign ministry that there is a high degree of certainty that the ICJ will not agree to an official hearing on the legality of the separation fence. The sources noted that the high regard in which Germany is held by the UN may have led to the decision by several Western nations to oppose the hearing.

Fifteen members of the European Union and 10 members-in-waiting, as well as the United States, Canada, Australia, Russia, South Africa and Cameroon, joined Israel in submitting affidavits to the ICJ against the authority of the court to rule on the fence. Several EU countries, including Germany, France and the United Kingdom, submitted separate affidavits to the court, with Great Britain submitting the most sharply worded statement rejecting the ICJ's authority in the matter. A total of 40 nations have submitted affidavits to the ICJ.

Israeli officials said it was significant that countries that had abstained from the UN vote on the hearing have now decided to submit affidavits objecting to it, in spite of objections to the routing of the fence.

A senior diplomat told Haaretz on Friday that immediately after the adoption of the UN resolution on December 8, senior German diplomats "calmed down" Israel and their colleagues in the European Union, saying there was "nothing to get excited about" with regard to the resolution to turn the issue of the separation fence over to the ICJ, because they believed the judges would reject it.

The UN submitted a 600-page affidavit to the ICJ, including all the various decisions relating to the Middle East, as well as all items included in the December 8 decision, and mentioning the right of Palestinian return.

In a news conference at the UN on Friday, Israel's UN ambassador, Dan Gillerman, attacked the UN affidavit, calling the content of the documents it included "absurd." Gillerman said the UN affidavit did not relate to the issue of terror against Israel or to the letter Israel had sent to the UN secretary general detailing terror attacks and explaining the need for the fence.

Israel submitted its own affidavit to the ICJ on Friday in which it rejected the court's authority to rule on the fence. The 131-page affidavit, written by international law expert Prof. Daniel Bethlehem, states that the international court has no authority to discuss the fence because the process leading to the UN resolution mandating it to do so was flawed. The affidavit also rejected the "propriety" of the process, noting that the issue of the fence is a political one, not a judicial one, and that discussing it will undermine efforts for a political resolution. It should also reject the case, Israel's affidavit noted, because the Palestinian appeal to the court was politically motivated. Israel presented the threat of Palestinian terror as the factor leading to the decision to build the fence.

U.S. State Department spokesman Richard Baucher stated on Friday that transferring the issue to the ICJ was "inappropriate" and might sabotage efforts to achieve progress on negotiations between the Israelis and the Palestinians. Baucher also said the U.S. was not trying to undermine the authority of the court, but that the issue of the fence was unique because an agreed-upon system already existed for resolution of conflicts and disagreements between the two sides.

The U.S. affidavit, submitted Friday shortly before the deadline for doing so, asked the ICJ not to interpret the UN December 8 resolution as giving authority to a legal body to discuss permanent status issues between Israel and the Palestinians. The U.S. emphasized throughout its affidavit that it disagrees with Israel over the routing of the fence.

The Palestinian Authority also submitted its affidavit on Friday. It includes statements by Palestinians who have been harmed by the fence and states what the Palestinians call the illegality of the fence according to international law.

When asked his reaction to the opposition of many countries to the hearing by the ICJ, Nabil Abu Rudeina, spokesman for Yasser Arafat, said he call upon the countries of the world to protect the rights of the Palestinians and their land against the construction of the fence. The Palestinians have drafted a number of international law experts, working at the Palestinian mission in UN headquarters in New York, to support their contention that the ICJ should deal with the issue of the fence.