Fearing the Worst, Israel Prepares Case on Fence for International Court

Israel’s controversial West Bank security barrier may drag the country into one of its most difficult legal challenges ever.

The International Court of Justice will convene at The Hague on Feb. 23 to discuss a question posed to it by U.N. Secretary-General Kofi Annan: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory?”

The question may sound like a harmless academic issue. But the possible answer has resulted in sleepless nights for policy makers and legal experts in Jerusalem.

The fear is that the court will issue an advisory opinion that the fence violates international law by establishing unilateral facts in “militarily occupied territories,” thus breaching basic human rights.

“This will put Israel on the defendant’s bench as a sinful country,” Bar-Ilan University law professor Yael Zilbershats told JTA. “It will have terrible consequences.”

The International Court of Justice is the principal judicial organ of the United Nations. The court comprises 15 judges elected to nine-year terms of office.

Though the judges are independent magistrates and do not represent their countries, no one in Israel expects judges like Awn Shawkat al-Kawassmeh, a Palestinian from Jordan, and Egyptian Nabil Elaraby to show sympathy for the Israeli cause.

For the past two weeks, a team of Israeli jurists has been engaged in intensive consultations ahead of the unprecedented legal challenge. Never before has Israel been forced to defend before an international tribunal a specific project in the territories it captured in the 1967 Six-Day War.

The court won’t deal only with the fence. Arab countries may try to seize the opportunity to put Israel’s entire occupation of the West Bank and Gaza Strip on trial.

Among the experts preparing the Israeli response are Alan Baker, the Foreign Ministry’s legal advisor; Meir Rosen, former legal advisor and an Israeli ambassador to the United States and France; Irit Kahan, director of the Justice Ministry’s international pacts division; and Daniel Bethlehem of Cambridge University.

Bethlehem advised Israel on how to deal with the authors of the Mitchell Report on the causes of the intifada and helped block plans to set up an international inquiry into the April 2002 battle at the Jenin refugee camp, in the West Bank.

But Israeli policy makers face a dilemma. Should Israel argue its case to the court, or should it declare that the court has no authority to rule on a political conflict?

“Chances that the court will disqualify itself are close to nil,” said Eyal Gross, an expert on international law at Tel Aviv University and a board member of the Citizens Rights Movement. “Therefore, Israel should do its best to prepare itself for a serious debate which may have far-reaching consequences.”

The proceedings could trigger more than debate on the borders of Israel, which have never been defined legally. If the opinion goes against Israel, it could lead to international sanctions.

That’s why Justice Minister Yosef “Tommy” Lapid warned against the dire consequences of the development at this week’s Cabinet session.

“We may turn into present-day South Africa,” Lapid said. Israel could be exposed to the kind of “international boycott which was in place until the fall of the apartheid regime in South Africa,” he said.

The fact that the fence deviates in some places from the Green Line — the armistice line between the Israeli and Jordanian armies at the end of Israel’s 1948 War of Independence — has turned the fence into an international issue. It’s not too late to pull the fence line back closer to the Green Line, Lapid suggested.

The Green Line never was an internationally recognized border. However, since the adoption of U.N. Security Council Resolutions 242 and 338, which called for Israeli withdrawal from conquered territories “to secure and recognized boundaries,” Arab states have pushed for the Green Line to be accepted as the border.

Israel’s defense before the court will be based on two levels. The team first will argue that a loaded political issue such as the Israeli-Palestinian conflict cannot be dealt with in a judicial way and will demand that the court disqualify itself from the issue.

The court most likely will reject that demand. Israel then will argue that construction of the fence is a legitimate act of self-defense that does not create an unalterable political reality in the disputed territories — especially as Israel and the Palestinians are trying to revive peace talks.

The court’s intervention may create unnecessary obstacles to the peace process, Israel will argue, according to government sources.

“One difficulty that Israel will face will be the argument that the fence was rerouted into the territories to defend the settlements,” Gross said. “In international eyes, the settlements are illegal, so why defend them?”

Some argue that a negative opinion from the court could have dire consequences for Israeli policy makers.

“One of the consequences of the court’s ruling may be putting Israeli generals and policy makers on the bench as war criminals,” Zilbershats said.

One way to soften the blow would be for the government to follow Lapid’s advice and reroute the fence closer to the Green Line.

But that would be difficult, since time is running short. Israel is required to submit its documents to the court by Jan. 30. It also would mean a startling about-face by Prime Minister Ariel Sharon, a change he is unlikely to make without lengthy deliberations.

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