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Foiled by U.S. in Security Council, Arab States Take Israel to the Hague

December 9, 2003
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The pro-Palestinian diplomatic assault on Israel soon will reach a new venue: The International Court of Justice at The Hague.

Arab states succeeded Monday in winning U.N. General Assembly support to petition the court to rule on the legality of Israel’s West Bank security barrier.

Though The Hague has the power to issue binding decisions, the type of advisory opinion the U.N. resolution requests is not binding. Still, some advocates for Israel have expressed concern that if the International Court of Justice, a U.N. arm, deems the wall a violation of international law, it might expose Israeli officials to prosecution.

One Israeli official expressed outrage at the special General Assembly session called to debate the fence. A similar resolution in October had produced an overwhelming 144-4 vote, with 12 abstentions.

“We have a right to self-defense that cannot be adjudicated,” a senior Israeli official said Monday. “Those who would harm that are in fact devoted to Israel’s destruction.”

The resolution approved Monday made no mention of Israel’s stated rationale for building the security fence: to keep suicide terrorists away from civilians in Israel’s major population centers.

Nasser al-Kidwa, the Palestinian U.N. representative, denounced the fence as “an immense war crime.”

Still, the 90-8 vote this time in the General Assembly — a body historically hostile to Israel, given the influential bloc of 56 Arab and Muslim member states and their allies across the Third World — was not as lopsided as most General Assembly votes on Israel, since 74 countries abstained.

U.S. and Israeli officials had said they would lobby vigorously against what they consider the politicizing of an international court. In any case, there’s no guarantee the court at The Hague will in fact weigh in on the matter. The 15-judge panel has the latitude to decide what cases to consider or disregard.

And while pro-Israel observers suggest this is merely one more attempt to turn global opinion against Israel, Israeli officials say they’ll try to score points of their own.

“We have a voice,” Arye Mekel, Israel’s deputy permanent representative to the United Nations, told JTA. “We can also make our case for the fence.”

Israeli officials said they would argue that the fence is justified by the need for self-defense.

At least one advocate for the Palestinians said the pro-Palestinian camp is taking a calculated risk.

By going to The Hague, said Edward Abington, a former U.S. consul general in Jerusalem who now is a Washington political adviser to the Palestinians, “I’m not sure it would have any practical effect on the ground, but it would be pretty difficult for the Israelis to ignore in the court of public opinion.” However, he noted, “a ruling could also go against the Palestinians.”

While the Palestinian move in the General Assembly ratchets up the pressure on Israel, Abington and others suggest it also reflects Arab frustration with the U.S. roadblock at the more influential U.N. Security Council.

That U.S. obstructionism can be traced to a 16-month-old policy known as “The Negroponte Doctrine,” named for the U.S. ambassador to the United Nations, John Negroponte.

While General Assembly resolutions are primarily symbolic, nonbinding and impossible to veto, the 15-member Security Council has the power to intervene in crisis areas. For example, it can impose sanctions, send peacekeepers or authorize the use of force.

Council resolutions carry the weight of law. The five permanent council members — the United States, Britain, France, Russia and China — enjoy veto power.

Negroponte and his staff say they arrived at their criteria after the Palestinians and their advocates responded to the ongoing bloodshed of the intifada, launched in September 2000, by putting forth resolutions on a near-weekly basis.

Debates consumed countless hours and millions of dollars — a chunk of it courtesy of U.S. taxpayers — yet did nothing to bring the sides together to discuss a peaceful resolution.

Even journalists reportedly complained to the Americans about the late-night debates, one Bush administration official said.

“They’d tell us, ‘Just use the veto word, so we can put it in our stories and go home,’ ” the official said.

The United States then formulated five criteria that had to be part of Security Council resolutions on the Israeli- Palestinian situation for the United States to withhold from exercising its veto power:

Resolutions must contain “robust condemnation of acts of terrorism and all forms of incitement to terrorism”;

contain “explicit condemnation of Hamas, Palestinian Islamic Jihad, Al-Aqsa Martyrs’ Brigades as organizations responsible for acts of terrorism”;

“call for dismantling the infrastructure, which supports these terror operations, wherever located”;

“call upon all parties to make a commitment to pursue a negotiated settlement”; and

recognize that “the issue of Israeli withdrawal to the September 28, 2000, positions is connected to an improvement in the security situation through reciprocal steps by the Palestinians and Israelis.”

Washington enforced the doctrine several times this fall. On Sept. 16, the United States vetoed a resolution demanding that Israel not harm or expel Palestinian Authority President Yasser Arafat. The resolution came after Israel threatened to deport Arafat.

A month later, the United States killed a resolution condemning Israel’s security fence, which led the Palestinians to pursue the matter the first time at the General Assembly.

A third resolution, put forth by Syria, a member of the Security Council, came on the heels of Israel’s October strike against an alleged terrorist training base in Syria.

The resolution omitted reference to the previous day’s suicide bombing in Haifa, which killed 21 people and reportedly was carried out by Islamic Jihad, which is headquartered in Damascus. The United States quashed the resolution before it came to a vote.

“What do they expect when a bomb goes off in Haifa and they don’t mention it?” Negroponte said in an interview. “Some people see the fallacy in that sort of thinking.”

Palestinian supporters say the Negroponte Doctrine is Washington’s means of giving Israeli Prime Minister Ariel Sharon a green light to crack down on the Palestinians.

“You can make the argument with some validity that the fence is for security, has something to do with suicide bombers and so forth, but there’s a broader concern that there is a conscious decision not to put Israel on the spot,” Abington said.

Jewish observers refute that by pointing to the recent deduction of $290 million from the $3 billion in U.S. loan guarantees to Israel. The move was taken because of Washington’s displeasure with the fence and ongoing Israeli settlement construction in the West Bank.

Nevertheless, the Negroponte Doctrine does seem to be having some effect.

The Palestinians returned to the General Assembly on Monday, not the Security Council. And the annual anti-Israel resolutions in the assembly were, for the first time, narrowed from 22 to 20 this year.

“The cause of Middle East peace is not served by these one-sided resolutions,” Negroponte said. “There are enough U.N. resolutions on this issue. Our view is that while outside actors can play a facilitating or supportive role, it will have to be the Palestinians and Israelis themselves that come to closure on this.”

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