FM legal adviser: UN abused its power

By Tovah Lazaroff, 
February 3, 2004
The Jerusalem Post
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The United Nations abused its power in asking the International Court of Justice at The Hague to rule on the legality of Israel's construction of a security barrier, Foreign Ministry legal adviser Alan Baker told The Jerusalem Post on Monday. 
Foreign Minister Silvan Shalom has said he is hopeful that 33 objections — including those of the European Union, the United States, and Russia — filed with The Hague on Friday against the proceedings will move the court to drop the case. 
Nearly 50 countries submitted depositions to the court by Friday's deadline, diplomats said. It will be one of the most widely followed cases ever handled by the 57-year-old court.
There are more opponents and countries abstaining than supporters, Shalom told the Knesset Foreign Affairs and Defense Committee on Monday. 
Still Baker told the Post he remains a voice of caution along with the Foreign Ministry, explaining that it is unlikely the court will drop the case. I'm not party to all the rejoicing, said Baker. 
He said he believes the case will go forward.
According to the Associated Press, in 24 previous requests for advisory opinions, the court only once found the case did not meet its criteria. A court official confirmed Israeli news reports that Jerusalem sought the removal of an Egyptian judge from the 15-member bench. The court has taken a decision on that, said the official, declining to elaborate. 
The judge, Nabil Elaraby, is a former legal adviser to the Egyptian Foreign Ministry who has been deeply involved with the Mideast conflict for three decades. 
He was part of the Egyptian delegation that negotiated the 1978 Camp David peace accords. 
Most of the judges come from countries which have submitted representations on the security fence. Under court rules, the judges, who are elected for nine-year terms, have the right to remain on the bench even when they are nationals of a country directly involved in a dispute before the court. 
Countries wishing to state their case before the 15 judges must sign up by February 13. 
Israel has yet to decide if it will participate in the oral proceedings. In its written arguments urging the judges not to hear the case, it argued that the decision-making process that led to the UN vote regarding giving the case to The Hague was faulty. It was an abuse of the role of the General Assembly and an abuse of power of the Security Council, Baker said. 
The Road Map and not the court is the proper way to deal with the issue of the fence, said Baker. 
Passing the question to the court is an attempt by the UN and the Palestinians to bypass the Road Map, he added. 
Baker said that Israel is also questioning the request by the court to hear from Palestinians, since typically the court listens to testimony only from states or international organizations.
Israel is distinctly telling the court it doesn't have jurisdiction to deal with this case, said Baker. Should the court fail to agree with that argument, Israel is asking that it use its discretion not to hear the case. 
Still, Baker said, he believes the ball is rolling, the court is due to open all proceedings on February 23, however long it will take. 
He said it is too early to assume the outcome or bias by the court either in Israel's favor or against. 
We have no interest in accusing the court of bias, he said. The court has heard only one case regarding Israel in the past, he added.
The Foreign Ministry has embarked on a public-relations campaign against the case, explaining that the fence is the best defense against terror. To underscore that point, it posted a bloody and graphic video on its Web site of the latest suicide bombing in Jerusalem on Thursday, which killed 11. 
But Baker said that when the Foreign Ministry sent its 124 legal opinions to the court last Friday, it stayed away from bloody photographs and gimmicks. 
Our presentation is very professional and dignified, a very scholarly legal presentation. It is 124 pages of legal reasoning plus an index containing documentation, said Baker.
In advance of the case before The Hague, Israel's High Court of Justice is set to hear a case against the fence. 
The government, according to Shalom, is examining ways to ease the hardships to Palestinians caused by the fence, including the possibility of underground passages and larger security gates to enable Palestinian farmers to have easier access to land cut off by fence. 
Shalom also said that a fence built along anything but the 1967 border would not win international support. 
Javier Solana, the EU's foreign policy representative, told reporters, You very well know our position on the wall, it does not contribute to peace. 
Still, the EU argued against bringing it to The Hague Friday, in a written argument to the court. 
Although the EU repeated its criticism of the barrier, the 15-nation bloc believes the problem needs a political rather than a legal solution, and fears the court case could further harm peace efforts. 
In accordance with court rules, the EU's letter was not made public, diplomats said.
Despite the move, EU officials repeated their criticism of the barrier. 
There is, I think, no doubt between the [EU] member states about the damage which the security fence is doing to the prospects for a solution, added EU External Relations Commissioner Chris Patten. 
Palestinian Authority Chairman Yasser Arafat criticized nations that supported Israel's position. 
They don't respect international law ... but rather follow in this mentality, the mentality of racist actions, Arafat said after a meeting with Christian leaders from Jerusalem. 
Although the court's decision will be nonbinding, Israel and the Palestinians see the case as an important battleground for determining the project's fate. Israel says the 710 kilometers of fences, walls, and trenches are needed to protect against suicide bombers. The Palestinians say the structure amounts to seizure of their land as parts of it cut into the West Bank. 
Nina Gilbert and AP contributed to this report