E.u. Tries to Straddle the Fence in Presenting Affidavit to the Hague

It’s always been clear that the European Union is no supporter of Israel’s security fence.

But E.U. leaders are drawing the line at what they see as the United Nations’ politicization of the International Court of Justice.

On Feb. 2, the European Union joined more than 40 countries in sending an affidavit to the court on behalf of the bloc’s 15 members and 10 candidate countries.

Details of affidavits to the court officially are kept under wraps in advance of the Feb. 23 hearing on the fence, but E.U. spokesmen have made plain that they consider it “inappropriate” for the U.N. General Assembly to have sent the issue to the court.

The E.U. move follows similar positions taken by leading members of the bloc — most notably Britain, France and Germany — who also sent their own submissions to the court in The Hague.

However, while the E.U. has criticized what it sees as the transformation of a political issue into a legal one, it has not changed its official position that the fence — or at least its currently proposed route — contravenes international law because it deviates from the Green Line, the armistice line at the end of Israel’s 1948 War of Independence.

E.U. leaders also have not refrained from criticizing the security fence itself.

Speaking to reporters in Brussels last week, the E.U.’s foreign policy chief, Javier Solana, said that “the wall will not contribute to peace,” while E.U. Commissioner Chris Patten said there is “no doubt between the member states about the damage of the security fence based on a solution of two states.”

Both men, though, refused to comment on the legal challenge to the fence at the international court.

Israel is expected to argue that the court has no legal grounds for hearing the case. The European submissions do not necessarily accept that line of argument, JTA has learned.

According to Israeli diplomatic sources in Europe, some countries accept the Israeli position, while others have approached the issue in political rather than legal terms.

As one official said, if countries such as Britain and Germany have strongly opposed the use of the international court to score political points for the Palestinians, others such as France primarily are concerned with the possible effects such a move would have on the Israeli-Palestinian peace process.

It is believed that the E.U. position, presented by its Irish presidency, represents a compromise between the two opinions.

Such a view appeared to be confirmed by a French Foreign Ministry spokesman, who said recently that “we believe that it is up to the court to determine its competence” to pass judgment on the security fence.

The Irish presidency was similarly reticent to offer an opinion, with a spokesman telling JTA only that “our position is well known over the security fence.”

Moreover, the ability to agree on an E.U. statement to the court has led many European states to steer away from criticism of the court’s competence to hear the issue.

Nevertheless, Israeli officials say they are “surprised” that so many countries ended up backing Israel’s forceful propaganda effort in Europe in recent weeks.

“I wouldn’t use the word happy, but we are pleasantly surprised,” one diplomatic source said on condition of anonymity. “There is a certain taking of the moral high ground in that we’ve been able to bring all the democratic countries on board against this effort.”

He pointed out, however, that this did not change the overall European position about the fence.

“Officially, they say they’re against it because it doesn’t follow the Green Line, but the real reason is their view that its very existence is not wise and doesn’t promote peace,” the source said.

That position was expressed by the French Foreign Ministry spokesman, Herve Ladsous.

“We believe that the route of the wall is contrary to international law and we expressed that by voting, like all the members of the European Union, in favor of the E.U.-sponsored resolution presented to the General Assembly on Oct. 20, which states that very clearly,” Ladsous said.

All of which eventually could present severe problems for Israel, when — as even Israeli officials admit — the court likely will reject the argument that it is not competent to proceed with a hearing.

In that case, the issue then will hinge on the substantive point of whether the fence contravenes international law — and on that, Israel and the European Union remain poles apart.

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