Judges Without Borders

The International Court of Justice is set to weigh in on Israel’s security barrier.

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The International Court of Justice at The Hague is preparing to hear a case involving Israel’s controversial separation barrier. The Bush administration finds itself caught between a desire to oppose the barrier and a reluctance to validate the international body’s jurisdiction over the matter.

The case, which will be heard in February, comes after the United Nations General Assembly voted for an inquiry into Israel’s construction of the barrier. On Monday the I.C.J. ordered Israel to submit arguments defending its placement of the barrier on land that extends past the internationally recognized 1967 border of Israel — land that is expected to constitute a future Palestinian state. The court’s opinion will not be binding, and a U.N. Security Council ruling sanctioning Israel is extremely unlikely, so the Hague’s decision is likely to do little more than embarrass Israel. But the larger question of the relevance of international institutions like the court is very much in play.

The United States is likely to stay out of the hearing. While the I.C.J. generally rules on border issues, this case crosses the line into the legalities of occupation. A new negative ruling on occupying powers doesn’t bode well for the U.S., as its own occupation of Iraq grows more complex.

Israel has been trying to coax bring the U.S. round to its side, arguing that the barrier is necessary to protect Israelis from terrorist attacks.

As Nathan Guttman writes in Ha’aretz, Israel sees the I.C.J inquiry as an inappropriate forum for settling international affairs, a view likely to find takers on the American side.

“The message that Israel is sending to the U.S. is that the issue to be discussed at The Hague is not the question of whether the separation fence is good or bad, but rather whether the International Court is becoming the supreme forum for settling questions of international affairs. The United States is perhaps the only power in the world, but if it is the International Court of Justice that makes the decisions, then America’s diplomatic strength as a power is getting eroded.”

Washington has a few choices. As Guttman puts it, the U.S. could offer a deposition stating in favor of the Israeli position, or it could rally a coalition against bringing such cases in front of the I.C.J.. The case will certainly heat up as Israel’s prime minister Ariel Sharon plans a trip to make his case to Bush next month.

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