Feb. 22, 2004 The ICJ should stay away By STEPHANIE GIRY On February 23, the International Court of Justice is expected to begin hearings on whether the fence Israel is building around Jerusalem and in the West Bank is legal. Arab and Muslim states convinced the UN General Assembly to ask for a non-binding opinion on the "legal consequences" of the fence’s construction, hoping the court would decide that the barrier is unfair to Palestinians. Israel, the United States, the European Union, and a dozen other states do not want the court to get involved. They say the issue is too political for adjudication and best left to Israel and the Palestinians to hash out. They are right, regardless of their motivations for keeping the court away. The ICJ should not take the case because it is against its best interest. Should it issue an ambivalent ruling open to conflicting interpretations, it would expose itself to charges of imprudence and incompetence. And given the complexity of the fence issue — and the court’s sketchy record on handling controversial matters — the ICJ is, unfortunately, likely to equivocate. The ICJ will be tempted to take the case. It has a small docket of mostly technical boundary disputes and few opportunities to be seen or heard. The fence’s relevance to prospects for peace in the Middle East makes it a particularly enticing issue, especially at a time when the UN (of which the court is an appendage) is reeling from having been sidelined in Iraq. Although the organization has recently been asked to help Iraq with the transition from US occupation to self-rule, it feels under-appreciated. The ICJ may see the fence controversy as a chance to show that the UN still matters. But the case raises questions that the court cannot answer to its advantage. The first, whether Israel’s fence conforms to international law, calls up decades of fraught negotiations. There is not one, but many proposals for where the fence, or Israel’s ultimate border, should be. The Israeli government’s approach differs from that implied by the parameters proposed by President Bill Clinton in 2000, from the maverick Israeli-Palestinian accords recently reached in Geneva , and of course from the 1949 cease-fire lines (the Green Line). Just as sensitive is the broader question of whether prophylactic barriers can ever be appropriate security measures. Such separations were built — and left to stand — in Northern Ireland in the 1960s and 1970s and more recently in Iraq; the court would thus be hard-pressed to rule that there is a blanket prohibition against them. By the same token, however, it would achieve little by stating the obvious and deciding that such barriers are sometimes justified. The ICJ should also remember that seizing a thorny case to assert its authority is a risky strategy. It barely recovered the last time it tried, when in 1996 it issued an advisory opinion on the legality of nuclear weapons. The Non-Aligned Movement in the General Assembly had raised the issue, confident that the court would identify a general trend toward non-proliferation and call for disarmament. The five permanent members of the Security Council, meanwhile, hoped for a decision stating that nuclear deterrence had helped keep world peace and confirming their monopoly over the weapons. Instead, the ICJ gave a dangerously inconclusive answer. It said that all states had an obligation to disarm, but refused to decide whether nuclear weapons could be used "in an extreme circumstance of self-defense." Within two years, India and Pakistan were openly running underground nuclear tests and boasting about them. Given that record, the ICJ’s best strategy in the case concerning Israel’s fence is to stay out of it altogether. Although the current court has never done so, it can refuse to issue an advisory opinion. It also has the discretion to turn down any matter that is more "political‘ than ’legal" and would be best handled through diplomacy. In this case, the most judicious way for the ICJ to boost its authority — and help the UN’s recovery — is to refrain from exercising it. The writer is an associate editor at the magazine Foreign Affairs. News Police, protesters clash at Abu-Dis fence Feb 23, 2004 Israelis at Hague: 'ICJ: Justice or Politics?' Feb 23, 2004 Palestinians declare another 'day of rage' Feb 22, 2004 Anti-fence rallies close Palestinian schools Feb 22, 2004 Mofaz: Fence is potent deterrent to attacks Feb 22, 2004 Others building fences in disputed areas Feb 22, 2004 PA hires 'world's best' counsel for fence case Feb 8, 2004 Opinion Editorial: Moot court Feb 22, 2004 The good fence - 2004 Feb 22, 2004 The ICJ should stay away Feb 22, 2004