Israel will be present at the discussion about the separation fence in the International Court of Justice in The Hague mainly in order to lose honorably. Nobody in Jerusalem has any illusions that Israel can come out ahead in the decision by the 15 learned judges who were asked to express their opinion regarding "the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory."
Israel is chronically isolated in international organizations, and always wavers between its desire for recognition and legitimacy, and its tendency to dismiss the "UM-Shmum" [a derogatory reference to the UN by Israel's first prime minister, David Ben-Gurion; UM is the Hebrew acronym for UN].
The same holds true in the case of the fence: The prime minister decided to respond to the claims of the Palestinians, and to present a detailed Israeli position to the court, with the help of a team of legal scholars and a very famous British attorney. At the same time, senior officials dismiss the move as "a joke," and say that at most, it will provide another argument for opponents of the fence.
But we are only consoling ourselves. In the absence of a political process, the trial in The Hague will lie at the heart of diplomatic activity, and it shouldn't be discounted. A similar opinion rendered in 1971 by the international court, which rejected the legality of the South African occupation of Namibia, was an important step along the road to sanctions and the toppling of the apartheid regime. There is no doubt that this is the goal of the Palestinians, who initiated the request to the court and won the backing of the UN General Assembly.
The real battle in The Hague will be conducted on two levels - the legal and the practical. The legal process is designed to strengthen the Palestinian demand to see the Green Line as a recognized international border, with every Israeli penetration beyond it constituting a violation of the law. Israel rejects this, claiming that the West Bank and Gaza Strip are "disputed territories," which were never under the control of another sovereign, and that the occupation is legal for reasons of self-defense.
International borders are not sacred; they express a balance of powers. The Green Line was drawn in 1949 as a temporary solution in the cease-fire agreements that ended the War of Independence. The agreements state that the line is not a precedent for a final political solution, and will not dictate the borders in the future. Several years later, when it confronted demands for concessions in the Galilee and the Negev, Israel claimed that the cease-fire lines "are the permanent borders, with both political and moral validity," and that they can be changed only in peace agreements.
After the Six-Day War in 1967, Israel went back to the limited interpretation, and considered the previous lines as nothing more than marks on a map. The anticipated decision in The Hague will severely undermine the Israeli claim.
On the practical level, Israel is having a hard time convincing anyone with its argument that the fence is "another means of fighting terrorism" and will not determine political borders - especially when Prime Minister Sharon speaks of "physical disengagement" from the Palestinians.
Officials in Jerusalem assess that the U.S. administration has come to terms with the present route of the fence, adjacent to the Green Line, and understands its necessity for security purposes. Criticism from Washington is shaky, and the cutback in loan guarantees was a minor punishment for Israel.
The problem as far as the Americans are concerned lies elsewhere: They vehemently reject Sharon's idea of an "eastern fence," and consider it an aggressive move to annex the Jordan Valley and the ridges that dominate it, while closing the Palestinians into a large holding pen. They have difficulty seeing why the project is necessary for security.
The trial in The Hague is providing the U.S. administration with an opportunity to influence Sharon. After the ruling, the case will return to UN headquarters in New York; and there, Israel will be in need of American assistance in order to bury the conclusions and to guarantee that they won't be translated into a hostile resolution in the UN Security Council.
Sharon's office believes that the United States will answer the call. It was opposed to the discussion in The Hague, and in any case is not enthusiastic about strengthening international institutions. But in diplomacy there are no free lunches - and we can assume that in exchange for removing the legal nuisance, Washington will demand that Israel give up the idea of the eastern fence.
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