Creating facts

Will the International Court of Justice ruling against the separation wall mean anything in practice, asks Graham Usher in Jerusalem

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Former British Foreign Secretary Robin Cook signs his name on a mock reconstruction of Israel's apartheid wall set up in Whitehall, London after the International Court of Justice ruled that the barrier is illegal

Ariel Sharon was incandescent with rage, and not only because a Palestinian planted bomb had just killed one Israeli and wounded 33 in Tel Aviv. "The murderous act ... is the first that occurred under the auspices of the world court of The Hague," he thundered on Sunday, 36 hours after the International Court of Justice (ICJ) had ruled Israel's West Bank wall illegal under every tenet of international humanitarian law.

"This is a one-sided decision behind which there are only political considerations. The opinion entirely ignores the circumstances for the building of the security fence, which is murderous Palestinian terror."

Needless to say, he reaffirmed that construction of the "terrorism prevention fence" would continue.

It is easy to understand Sharon's fury. The ICJ ruling not only declared the wall illegal, but it also called for those sections already built to be razed and reparations to be made to the 200,000 or so Palestinians whose lives, lands and livelihoods have already been damaged by its construction. It drove a cart and a horse through every argument he and Israel has marshaled to defend its 37-year old conquest of the West Bank and Gaza.

For example, it ruled that these territories are not "disputed" but occupied; that the 200 or so settlements and outposts implanted within them are not "issues for the final status negotiations" but illegal, including the 12 within occupied East Jerusalem; and that any wall (or barrier or fence) built to defend them is also illegal. Finally, it demonstrated with facts as well as reasoning why the wall's existing and projected route could not be justified under international law in terms of military necessity or an occupier's security needs.

"The planned route would incorporate in the area between the Green Line and the wall more than 16 per cent of the West Bank. Around 80 per cent of the settlers living in the occupied Palestinian territories, that is 320,000 persons, would reside in that area, as well as 237,000 Palestinians. Moreover, as a result of the construction of the wall around 160,000 other Palestinians would reside in almost completely encircled communities." In other words, "the construction of the wall and its associated regime create a 'fait accompli' on the ground that could well become permanent, in which case... it would be tantamount to de facto annexation," said the ruling.

Israel's reactions will not be confined to outrage. Diplomatically it intends to rally support for a vote against, or at least abstention, on any Palestinian inspired resolution at the UN Security Council and General Assembly calling for Israeli compliance with the ruling.

This stance has already been coordinated with Washington, though the only US response so far is that the ICJ was not an "appropriate" forum to adjudicate on a "political" issue. It has reportedly assured Israel that it will veto any UN resolution calling for compliance.

Israel may have more difficulty in Europe. It may be true that the ruling is non- binding, says PLO legal adviser, Diana Buttu, "but the decision is based on law that is binding: UN resolutions and international humanitarian law". And the ICJ explicitly states that countries are obliged "not to recognise the illegal situation caused by the wall in the occupied Palestinian territories" and that, through the UN General Assembly and Security Council, "should consider what further action is required to bring to an end the illegal situation caused by the wall".

By abstaining on a new UN resolution demanding compliance the European states may be doing many things, but "ending the illegal situation caused by the wall" is not one of them.

Domestically, Israel will use its own Supreme Court's decision to trump the ICJ. This has yet to decide a route for the wall and may translate into building the as yet u-constructed segments closer to the Green Line. According to a report carried in Tuesday's Yediot Aharonot Israel's wall planners are now trying to chart a route that will not create encircled Palestinian enclaves or separate farmers from their pasture. The wall should be "at least one kilometre" from the nearest Palestinian home, it said.

But Israel's main tack is likely to be to try and reduce the national and legal front opened by the ICJ ruling into a local and humanitarian issue on the ground.

Az-Zawiya is a Palestinian village south of Qalqiliya. Under the wall's present route it stands to lose 90 per cent of its agricultural hinterland. In recent weeks it has become the site of clashes between Palestinians and Israeli peace activists and army protected bulldozers. It has also been a ground for old/new Israeli overtures.

According to sources, Ministry of Defence officials have met with local leaders to strike a deal: end the legal appeals and popular protests, say the Israelis, and we will re-route the wall and you will save 50 per cent of your land. Publicly the local leadership is refusing the trade; privately some landowners may be tempted.

It is easy to see why. Palestinians in villages like Az-Zawiya are utterly sceptical that the Israeli Supreme Court and ICJ rulings will mean anything in practice. Their plight has also been largely ignored by the PA leadership, apart from the occasional directive telling them to refrain from meeting with Israeli officials. But in the absence of a national policy and grassroots campaign to defend them they will be isolated politically as well as geographically. The result is that "villages are now negotiating final status issues with the Israelis on a local basis," admits one Palestinian official.

Few can deny that the ICJ ruling amounts to a monumental legal and political victory in the Palestinian struggle against the wall. But the Palestinian leadership in the past has been successful in marshalling morality and international law in support of its cause. It has been strikingly unsuccessful in wresting back land taken from its people.

Will that be the fate of the ICJ ruling? Last week a protest tent was pitched alongside the wall in East Jerusalem, staffed by hunger strikers and heralding a new phase in "popular, peaceful and civil resistance" against the wall. After The Hague the tent was taken down. "Our job is done," said one protester. Nothing could be more mistaken. In the struggle to turn the ICJ ruling into a Palestinian fact the job has hardly begun. (see p.6)