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On Fence Case at the Hague, U.S. Likely Will Not Back Israel

January 21, 2004
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The Bush administration does not like the International Court of Justice at The Hague, but it likes the route of Israel’s West Bank security barrier even less.

That’s why the administration plans to stay out of a case at The Hague over the security fence, unless Israel demonstrates beforehand that the fence will hew to the West Bank boundary line.

U.S. officials initially had balked when the international court announced last year that it would consider the legality of the security fence in February. The court had been prodded by the U.N. General Assembly, which usually votes overwhelmingly against Israel.

Israel maintains that the court does not have the authority to rule on the fence, and that in any case the fence does not violate international law.

Experts say it will be the first time that the court, which usually deals with border disputes, has considered an issue of occupation. Any ruling could set a precedent for the court to consider the U.S. occupation of Iraq.

That makes it all the more remarkable that the United States likely will stay silent on the court’s authority in the case.

Israeli, U.S. and Jewish officials all confirmed the Bush administration’s strategy on the court case.

Israeli Prime Minister Ariel Sharon’s top adviser, Dov Weisglass, is in Washington this week to try to persuade the White House to change its mind and come down on Israel’s side in opposing the court’s jurisdiction in the case. Israel says the fence has proven successful at stemming the tide of Palestinian suicide bombers.

The hallmark of President Bush’s foreign policy has been to emphasize the natural lead the world’s only remaining superpower has in determining the course of peace and security. Bush has downplayed the importance of the United Nations, NATO and other international organizations in decisions ranging from the war in Iraq to climate control.

Two factors are driving the administration’s decision to stay out of the dispute over the hearing next month at the International Court of Justice, analysts say.

One is lingering suspicions that Sharon plans to use the fence to determine unilaterally the contours of a potential Palestinian state. The second is a softening in U.S. foreign policy toward international institutions, evinced by Bush’s new international outreach effort for assistance in the transition to civilian rule in Iraq.

“We’re seeing a kind of return to a more pragmatic U.S. policy in some regards,” said David Mack, vice president of the Middle East Institute and a former assistant deputy secretary of state for Near East affairs.

“There are some things that ideologically have been opposed by this administration that are nonetheless features of this world that we are not likely to change,” he said. “In Iraq, for instance, we cannot confer legitimacy on a government, but the U.N. may be able to.”

Additionally, the United States does not want to have to defend the barrier along its current lines, which cuts off much of Jerusalem’s Palestinian population from Palestinians in the West Bank.

“The State Department would not argue in favor of the fence along its current lines,” said Edward Abington, now a Washington consultant to the Palestinian Authority and formerly a U.S. consul in Jerusalem.

Bush was furious with Sharon last summer when Palestinians presented him with evidence that Israel was plotting the fence along lines that would cut off a future Palestinian state from Jordan. That would improve Israel’s ability to prevent the flow of weapons into the Palestinian state, but also would make the Palestinian state’s economy dependent on Israel’s.

The fence is likely to appear in the State Department’s annual report on human rights, also due out next month. Israel has been pleading with the United States not to address the barrier.

That’s not going to happen, Mack said.

“They can’t have a credible section about the West Bank without the fence,” he said.

Israel plans to argue initially that the court has no jurisdiction, but the court’s decision to hear the case — and its invitation to the Arab League to submit briefs — means that argument likely will fall flat.

Any court ruling in such a case would be only advisory and not binding. But a negative decision would ratchet up pressure on Israel to alter the course of the fence.

The prospect clearly worries Israel’s government. Senior government ministers, including Justice Minister Yosef “Tommy” Lapid, have suggested altering the route to adhere to the Israel-Jordan border before the 1967 Six-Day War as a means of heading off the court.

That would be exactly the measure that would rouse U.S. interest in lending Israel its considerable weight at the court.

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