Fearing the worst, Israel prepares case on fence for international court

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jerusalem | 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 policymakers 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 said. “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 adviser; Meir Rosen, former legal adviser 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.

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.