Ruling on barrier divides US and Europe as Arafat hails triumph

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The Independent Online

If nothing else, the comprehensive ruling yesterday by the International Court of Justice against Israel for building its separation barrier within occupied Palestinian territory poses Western democracies - including those in Europe - with an awkward dilemma they would almost certainly rather avoid.

If nothing else, the comprehensive ruling yesterday by the International Court of Justice against Israel for building its separation barrier within occupied Palestinian territory poses Western democracies - including those in Europe - with an awkward dilemma they would almost certainly rather avoid.

That was becoming clear yesterday amid a welter of predictable reaction from both sides in the conflict here, with Yasser Arafat, the Palestinian Authority President, hailing the decision as a triumph, and Israel making it clear that it did not see itself bound by an advisory decision which it declared the court had only been asked to take because of a "politically motivated maneouvre".

The dilemma could be especially pointed for Britain and Germany because Israeli officials are indicating in private they still hope both countries may decide to join the US in trying to block the attempt the Palestinian leadership will certainly make to give the recommendation the full force of a United Nations resolution, ideally, backed by sanctions.

Britain did not want the issue of the barrier referred to the IJC; but its policy is also to oppose the barrier, as the court did, because it did not keep inside the "green line" between Israel and the territories it occupied in 1967. The UK, like the European Union, regards the present route as contrary to international law.

On the one hand, all the members of the EU are anxious to uphold the authority of the world court; on the other, several will be unhappy about setting themselves in a direct confrontation with an Israeli government which continues to insist the barrier is essential for security. "If there were no terror, there would be no fence," the Israeli Foreign Ministry said yesterday.

While the White House repeated that the court had been the wrong forum to consider the issue of the barrier, the European Commission yesterday clearly reaffirmed its opposition - like that of the Court - to the barrier's route. But the EU's member states insisted, in a carefully co-ordinated response, that they would need to study the judgment in depth before pronouncing on any further steps.

If anything, the task of finding a middle way will be made all the harder by the unequivocal terms in which the court delivered its decision.

Besides finding that Israel was in breach of a series of international conventions because of the hardship inflicted on Palestinians by the barrier, the court responded sharply to Israel's insistence that the barrier was temporary, and not creating a new political border. It declared it "cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine and the fear that Israel may integrate the [Jewish] settlements [in the West Bank] and their means of access."

The judgment also points to official UN reports that the planned route includes 16 per cent of the West Bank between the wall and the green line. With 320,000 settlers included in that belt, as well as 237,000 Palestinians, it goes on to say that, as a result of the barrier, about 160,000 Palestinians will live "in almost completely encircled communities".

It cites official UN warnings that "with the fence/wall cutting communities off from their land and water without other means of subsistence" some people are bound to leave. The court used, as an example, the West Bank town of Qalqilya, where between 6,000 and 8,000 people have already left the region and 600 shops or business have been closed.

As a result, it finds, the construction of the wall is depriving "a significant number of Palestinians of the "freedom to choose [their] residence" and "is tending to alter the demographic composition of the Occupied Palestinian Territory". It adds: "And while accepting Israel's right to defend its citizens against attack, the court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall."

On the Israeli side, officials insist their decision not to go to the Hague was vindicated by the ruling, and, if they had made their case to the court it would have given the ruling greater legitimacy in public opinion. On the Palestinian side, the leadership was focusing on trying to give the decision greater political force by taking the argument to New York.

Nabil Abu Rdainah, a senior adviser to Mr Arafat said: "The next step is to approach the UN General Assembly and Security Council to adopt resolutions that will isolate and punish Israel. As of today, Israel should be viewed as an outlaw state."

The decision may encourage further demonstrations against the barrier but there was little sign so far that the Palestinian leadership would respond to their big diplomatic and propaganda victory by officially championing the many individual references to the Israeli courts on the routing of barrier sections. They could, for example challenge the Israeli security argument by calling explicitly for an end to violent attacks on targets inside the Israeli side of the green line.

COURT OF LAST RESORT

Since it was set up amid the euphoria that accompanied the end of the Second World War, the International Court of Justice has had mixed success in its judgments.

Although the rulings of the World Court are non-binding, they are final and without appeal. It is the only court which rules on disputes between states, and does not prosecute individuals.

It is separate from the International Criminal Court which was set up to prosecute war crimes when states are unable to do so. It has issued 79 judgments and 24 advisory opinions since 1946. These include:

Namibia

A landmark decision in 1971 that the occupation of Namibia by South Africa was illegal led to the introduction of sanctions against Pretoria. The court rejected South Africa's argument that it did not have jurisdiction.

Nicaragua

In 1984 it was disclosed that the CIA had mined Nicaragua's harbours in a clandestine operation. The Sandinista government sued the US in the World Court which found the US guilty of violating international law andordered it to cease its destabilisation of the country. The US ignored the ruling.

Mexico

In March, the World Court found against the US when it ruled that the US had violated the rights of 47 Mexicans on death row and ordered their cases to be reviewed. A man scheduled for execution in May had his sentence commuted to life imprisonment.

Beagle Channel

Argentina rejected a World Court decision which gave Chile possession of islands in the Beagle Channel in 1997. Only the intervention of the Pope prevented war.

Kosovo

On some occasions, the court's 15 judges have decided that the tribunal does not have the jurisdiction to hear a case. This happened when Yugoslavia approached the World Court to seek damages for the 1999 Nato bombing of Kosovo, on the ground that it flouted the genocide convention. The court declined to take on the case because it said that the Nato bombing did not constitute genocide.

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