Fence dispute is political, not legal it doesnt require a world court opinion

Less than 50 yards from the massive fence surrounding the Peace Palace in The Hague, home of the International Court of Justice, there is a stark, gray stone monument. It commemorates, among other victims, the 16,000 Hague Jews — men, women and children — who were taken from their homes in the city to be transported and later murdered by the Nazis and their collaborators.

We know now that the war crimes, the crimes against humanity and the genocide perpetrated by the Nazis would have claimed fewer victims if the nations of the world had taken action against the extermination camps and the railway lines leading to them as soon as they learned of the existence of these terrible facilities.

Since that time, international law has placed an obligation on all states to take whatever measures are necessary to prevent the commission of the crimes mentioned above, as well as more recently recognized offenses such as terrorism.

The massive Peace Palace fence and its gates, the huge concrete blocks and police guard posts that disfigure the center of The Hague near the foreign embassies, and the frequent road closures caused by credible threats are all examples of the Netherlands taking appropriate action to prevent terrorist crimes.

Israel is now being hauled before the International Court of Justice, accused of being in breach of international law, not for having committed awful crimes, but for having taken appropriate and effective steps to prevent them being committed by others.

Of course, the case has been cast in the form of a request for an advisory opinion. But there should be no doubt in anyone’s mind that the intention is to put Israel on trial before the world court. Will the court have the courage to take this point?

Will it rule that it should not be putting Israel on trial, and that it should not give an opinion on the “Legal consequences of the construction of a wall in the occupied Palestinian territory,” because this is a political and not a legal dispute?

There is reason to believe many of the world court judges would prefer to be rid of this case, without having to express an opinion. There are precedents for this: The court has ruled in the past that it should not entertain a case if, in the view of the court, there is no legal dispute, even if one of the parties insists that a dispute does indeed exist.

Israel has stated clearly that the purpose of the fence is to prevent or at least reduce terrorist attacks, and thus to save both Israeli and Palestinian lives. The fence is working, and its purpose continues to be fulfilled. The route followed by the fence should not be interpreted as a claim to sovereignty over any “enclosed” territory, and Israel is willing to compensate those whose property is damaged by the construction.

Most important, Israel has said that the fence is a temporary structure, one that will be removed when the terrorist threat disappears, thereby acknowledging that the fence, in the absence of a terrorist threat, would be unlawful.

The stock argument advanced by Israeli diplomats since the U.N. General Assembly sent this matter to the world court has been that the construction of the fence is justified on the basis of self-defense. Self-defense is different from crime prevention, and though drawing this distinction may seem arcane, it is of crucial importance: In constructing the fence, Israel is acting upon a public international duty and not merely exercising a right for its own benefit.

In taking this line Israel would be assisting the court rather than confronting it, and at this moment the court needs all the help it can get. Given all these factors, the court would be fully justified in relying upon its “inherent jurisdiction” — the term it used in the earlier cases — to return the request for an advisory opinion to the General Assembly, on the grounds that there is no legal dispute here requiring an world court opinion.

Alan Stephens is a veteran international lawyer based in The Hague and Jerusalem, and former publishing director of Kluwer Law International publishing company. This column previously appeared in The Jerusalem Post.