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Israel Preparing for the ‘day After’ Court’s Fence Ruling — Whenever It is

March 18, 2004
See Original Daily Bulletin From This Date

No one knows exactly when the International Court of Justice will issue its verdict on Israel’s West Bank security barrier, but advocates for the Jewish state already are planning for the “day after.”

Pro-Palestinian groups at the United Nations are likely to act immediately on the court’s advisory opinion — with potentially grave consequences for Israel.

The non-binding court opinion could come anytime between now and July. Most observers anticipate that the majority of the court’s 15 judges will issue an opinion saying Israel’s fence is illegal under international law.

If so, Arab countries could call for a U.N. Security Council meeting to punish Israel with sanctions like those imposed on apartheid-era South Africa. The United States likely would veto any such sanctions.

Failing that, Arab states may try to use the opinion as backing for U.N. General Assembly resolutions barring Israel from international events or curtailing its U.N. credentials.

An opinion against Israel also might set a precedent for solving other international political conflicts through litigation — potentially significant to countless countries around the globe.

With that in mind, Israel and U.S. Jewish groups are trying to make sure U.S. officials and the American public know what’s at stake.

Alan Baker, the legal adviser to Israel’s Foreign Ministry, said his visit to the United States this week is to “prevent this thing from snowballing.” Baker set Israel’s legal strategy for the court hearing at The Hague last month.

Israel presented a written brief to the court arguing that the court had no jurisdiction in the case, and chose not to attend the late-February hearings.

Baker was in Philadelphia, Boston, New York, Washington and Los Angeles this week to promote Israel’s position to reporters and influential lawyers. On Friday, he was slated to meet with members of the U.S. State Department to devise strategy.

Even if Israel can forestall harmful resolutions at the United Nations, an unfavorable opinion from the international court could spell trouble.

“Because the ICJ has been involved, it’s changing the ballgame,” Baker told JTA in an interview in New York. Unlike other U.N. organs that are considered contaminated by politics, the International Court of Justice retains a good reputation, he said.

The court’s gravitas might influence the foreign policy of major European governments, Baker said.

Despite their written briefs objecting to the case because it would politicize the court, European countries might consider the court’s opinion “the law from Sinai,” he said.

While the court’s opinion is only advisory, “it will have the imprimatur of law,” said Marc Stern, legal director for the American Jewish Congress, which paid for Baker’s U.S. tour.

If “Palestinians win this case, you can be sure that there will be a ‘right-of-return’ case and a borders case,” Stern said, rattling off other Palestinian grievances against Israel. “Instead of negotiating peace with Israel, you’re going to litigate.”

In a letter to be sent this week to a U.S. congressional committee to be determined, Stern outlines the dangers of expanded jurisdiction of the ICJ, arguing that the court has shown itself in the past to be biased against self-defense.

Stern calls for a congressional hearing on the jurisdictional arguments in the case, saying the AJCongress is willing to testify.

Several other Jewish groups also are gearing up for the court’s verdict.

The Conference of Presidents of Major American Jewish Organization is coordinating diplomatic meetings with U.N. member states to protest the politicization of U.N. bodies. It also is urging its members to defend Israel’s case in Op-Ed columns wherever possible.

For example, James Tisch, chairman of the Presidents Conference, criticized the ICJ case in Sunday’s edition of the New York Daily News.

“The judges may be unbiased, but the question brought to them by the General Assembly is nothing more than the U.N.’s routine discriminatory treatment of Israel dressed up in lawyers’ robes and wigs,” Tisch wrote.

Calling the question before the court the “diplomatic equivalent of ‘when did you stop beating your wife?’ ” — that is, an unfair question where any answer is damning — Tisch argues that the case is one-sided and lacks the context of terrorism that prompted Israel to build the barrier.

Hadassah also plans to use diplomatic meetings and Op-Eds to communicate its message against terrorism.

“Hadassah knows from its treatment of hundreds of victims of terror that terrorism is the problem, not the security fence,” said Shelley Klein, the group’s director of advocacy.

Meanwhile, Israel is taking pride in its strategy and hopes the Palestinians’ antics will backfire.

European states often influence public opinion at the United Nations. According to Baker, they’re “sick and tired” of the Palestinians repeatedly trying to hijack U.N. meetings and conferences to discuss their plight, to the exclusion of other pressing issues.

Baker also defended Israel’s decision not to participate in the oral arguments at the court. Israel’s 125-page brief was a “learned” document in the company of written briefs from 30 other serious democracies that opposed sending the case to the ICJ, he said.

Ultimately, “the court was very embarrassed by being addressed by the likes of Cuba, Sudan and Saudi Arabia,” he said.

In addition, the Israeli gambit prevented the Palestinians from portraying the Jewish state as “outlaws” defending themselves in court, he said.

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