ISRAEL: As court hearings open in The Hague today, Nuala Haughey answers some key questions about the structure Palestinians call an apartheid wall, but which Israel insists is a vital anti-terror measure
What is the Hague case about?
The International Court of Justice, as the main judicial body of the United Nations, has been asked by the UN General Assembly to give its advisory opinion on the legality of the planned 728 km long barrier (437 miles) which Israel began constructing in summer 2002. To date, about 180 km (108 miles) of the network of razor wire topped electronic fences, patrol roads, trenches, concrete walls and lookout posts have been completed.
The General Assembly on December 8th, 2003 requested from the ICJ, also known as the World Court, an urgent advisory opinion on the following question: "What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?"
This request was based on an Arab-backed resolution which 90 of the General Assembly's 191 members supported. Eight opposed it, including Australia and the United States. A total of 74 abstained, including the European Union, while others did not turn up for the vote.
The court referral followed an earlier non-binding General Assembly resolution demanding that Israel halt construction of the barrier and remove what had already been built. This was passed by 144-4 votes on 21st October, 2003.
The ICJ was set up in 1946 to resolve disputes between states and give advisory opinions on questions of international law referred to it by UN bodies. Its advisory opinions are non-binding. The hearings on the barrier will run for two and a half days and will be broadcast live on the ICJ's website.
Forty-seven written submissions have been made to the court, 44 from states and three from non-states - the Palestinians (listed in the court's schedule as "Palestine"), the Organisation of Islamic Conference and the League of Arab States.
Only 15 oral submissions will be made before the court, with the Palestinian case the first to be heard this morning.
Israel has boycotted the oral hearings so as not to confer legitimacy on the court, although it has made a 130-page written submission.
The Palestinian written submission runs to 300 pages. America and the EU, as well as individual European states including Ireland, have made written submissions, but will not make oral presentations.
What are the main arguments in the case?
There are basically three arguments: The Palestinians say the "apartheid wall" is illegally built largely on occupied land and is a de facto land grab of territory they want for a future state. Israel says the "anti-terrorist fence" is a temporary and reversible defensive barrier to protect its citizens from suicide bombers, and the dispute over it is one which the court has no jurisdiction to rule on. The European Union and America, while opposed to the route of the barrier, argue that fundamentally the ICJ is not the proper forum in which to settle the issue.
Palestinians: The Palestinians say the wall is more than a mere barrier, but a regime of de facto annexation of Palestinian territory in the West Bank. If constructed as currently planned, the structure would ultimately leave more than 43 per cent of the West Bank on the Israeli side.
Palestinian sources say their legal team will tell the court that only 6 per cent of the wall as currently planned will be located within 100 metres of the Green Line - the frontier between Israel and the West Bank before the Jewish state occupied East Jerusalem, the West Bank and Gaza Strip following the 1967 Six Day War.
By constructing the bulk of the wall in occupied land, Israel violates its obligations under both international humanitarian law and international human rights law, the Palestinians will argue.
A total of 865,000 Palestinians - more than a third of the population of the West Bank - would be left on the "wrong" side of the wall or will have lost their land to the other side. The wall encircles entire towns and cities, confining residents to walled Bantustan-like enclaves and causing deep suffering and economic hardship by depriving Palestinians of access to their relatives, farmland, education and health facilities.
The Palestinians will also submit that the wall regime makes the viability of a future Palestinian state in accordance with the proposed "two state" solution practically impossible. The wall will eventually incorporate 80 per cent of Israel's West Bank settler population to the Israeli side. These settlements have been declared illegal by UN resolutions which are binding on Israel.
The Palestinians will acknowledge that Israel has a right to build a security wall in its own territory, but exclusively along the Green Line.
They want Israel to remove all parts of the barrier built within the territories and indemnify those affected by its construction.
Israel: Israel is boycotting the oral hearings and its strategy is clearly to fight more in the court of public opinion than in the court of law.
The mangled skeleton of a bus in which 11 people were killed in a suicide bomb last month in Jerusalem will be on display in the Hague, while Jewish and Israeli activists will parade more than 900 photographs of Israeli civilians and soldiers who have been killed during the three and a half years of the current Palestinian Intifada or uprising. Israelis willing to take part in this procession have been offered a discount airfare from Tel Aviv to the Dutch capital.
Yesterday's suicide bomb in Jerusalem city which claimed seven lives only reinforces Israel's position that the fence is vital to prevent the infiltration of Palestinian terrorists into Israel.
In its written submission to the court, Israel expresses concern that the General Assembly's request for an advisory opinion wilfully ignores the campaign of terrorism aimed at its citizens.
The Jewish state submits that for various procedural and legal reasons the court does not have the jurisdiction to consider the advisory opinion request.
The US and the EU: The European Union has said the barrier is illegal and a "major obstacle" to peace, but shied away from endorsing the court action in its written submission, stating that it is an issue which should be resolved politically. The US, Israel's main ally, has trimmed loan guarantees because of the barrier, but it takes an even firmer view than the EU that the ICJ has no jurisdiction in this issue.
When will the court release its opinion and what are the possible outcomes?
The court's deliberations could take between a month and six months and its opinion could have far reaching implications for the Middle East peace process.
The best outcome for Israel would be if the court agreed that it did not have jurisdiction in this case, but this is not considered likely.
Any opinion the court renders on the legality of the barrier will be non-binding, but Israel fears the UN General Assembly could use the ruling to lobby for measures to be taken against the Jewish state.
If the court decision goes against Israel, it could lead to a General Assembly resolution condemning the barrier's construction and calling for it to be dismantled, with the threat of punitive measures if this does not happen. The decisions of the assembly are not legally binding for governments, but carry the weight of world opinion. Any effort to bring the matter to the more powerful UN Security Council is not thought likely.
Whatever the ramifications at UN level, Israel is concerned that an outcome which goes against it would lead to a further deterioration of its image worldwide.
The Palestinians fear that if the court's opinion goes against them, it would strengthen the hand of violent extremists, who would claim convincingly that the international community has abandoned them.
The frustration and hopelessness which such an outcome would induce could lead to an upsurge in Palestinian violence. If the court finds in favour of the Palestinian position, there remains the issue of enforcement of UN resolutions against Israel, which has a long history of disregarding them.