Israel Prepares for Fence Court Case

Israel claims that the International Court of Justice (ICJ) has no jurisdiction to rule on the West Bank security barrier, but at the same time, the government is preparing detailed legal, security and diplomatic arguments and an intensive public relations campaign.

The government also announced this week that it may make significant changes in the fence’s route, ahead of the Feb. 23 proceedings at The Hague.

In the run up to the hearing, two major decisions will be taken that could have a bearing on the case: Whether it’s better to dispatch an Israeli legal team to appear at the ICJ or to rely on a written affidavit, and whether to alter the fence’s route for humanitarian reasons.

Most top Israeli officials are against sending a legal team, on the grounds that it would imply the very recognition of the ICJ proceedings that Israel is at such pains to deny.

As for the route of the fence, there could be changes before the issue reaches The Hague. In an address Feb. 8 to the 40th Munich Conference on Security Policy, Giora Eiland, Israel’s new national security adviser — who has been given a free hand by Prime Minister Ariel Sharon to draft a new route for the fence — declared that Israel had not fully taken into account the way the barrier could disrupt Palestinian lives. Israel will do what it can — possibly even changing the fence’s route — to avoid causing unnecessary suffering, Eiland said.

Following Palestinian claims that the fence, which is being built in places on West Bank territory, is illegal, the U.N. General Assembly passed a resolution in December asking the ICJ for an "advisory opinion." The United Nations followed that up with a 600-page affidavit that, according to Dan Gillerman, Israel’s U.N. ambassador, ignores the basic reason for building the fence: Palestinian terrorism. Israel responded by questioning the competence of the court, the wisdom of a court action and the neutrality of one of the 15 judges, an Egyptian who previously has expressed anti-Israel views.

The legal-diplomatic brief, drafted by British-based international law expert Daniel Bethlehem, rejects the court’s authority, as well as "the propriety of the process." In a 131-page affidavit, Bethlehem maintains that the court has no right to rule on what is basically a political dispute, and that doing so will undermine political efforts to resolve the Israeli-Palestinian conflict.

A court ruling probably would drive the parties to adopt more radical positions and thus would make political negotiations less likely, the argument goes. It will undermine diplomatic initiatives like the internationally approved "road map" peace plan and cause more suffering and hardship, Israel will argue. In other words, Israel says, the court is an inappropriate forum for dealing with a political conflict.

This argument already has struck a receptive chord. Several dozen countries, including the United States, Russia, Canada, Australia, South Africa, all 15 European Union members and the 10 waiting to join have submitted affidavits rejecting the court’s jurisdiction, on the grounds that a hearing would do more harm than good.

To back up the legal-diplomatic argument, Israel also is preparing a detailed security brief. A team under Brig. Gen. Mike Herzog, the defense minister’s adjutant, is putting the finishing touches on a three-part document that describes the terrorist onslaught that led Israel to build the fence, explains the thinking behind the route and outlines its effectiveness at preventing terrorism.

Noting the number and nature of Palestinian suicide bombings, the document invokes Israel’s inherent right to self-defense according to Article 51 of the U.N. Charter. It also defines the Palestinian intifada as a "hostile confrontation" that entitles Israel to take forceful measures, such as building a fence in disputed or occupied territory.

Israelis’ right to life, the document argues, takes precedence over Palestinians’ right to freedom of movement.

In his Munich address, Eiland explained that Israel decided to build the fence in the spring of 2002, after 135 Israelis were killed in 17 suicide attacks in a single month. He underlined how effective it already has proven: In the sector where the fence is complete, only three Israelis were killed last year, compared to 58 the year before.

Even if Israel decides not to dispatch legal experts to appear in court, it will send a public relations team to The Hague. There also will be an exhibit recalling the June 2001 bombing of Tel Aviv’s Dolphinarium disco, in which 23 young Israelis were killed, as well as the gutted hulk of a bombed Jerusalem bus.

The main thrust of the Palestinian case is that the fence is not being built exclusively on Israel’s own territory, and that it causes humanitarian problems for hundreds of thousands of Palestinians.

On the territorial issue, Israel has developed a two-pronged legal argument. First, Israel argues, the U.N.’s use of the term "occupied Palestinian territory" is questionable, because the West Bank never legally belonged to the Palestinians. Rather, Israel argues, the land should be considered "disputed territory," in which Israel, one of the disputing parties, has rights. Moreover, Israeli officials say, even if the term "occupied territory" is granted, an occupier facing armed hostilities has the right to take defensive measures.

On the humanitarian issue, Israel has another two-pronged claim. The argument in principle is that saving human life takes precedence over nonlethal hardship. But Israel now adds that it intends to do all it can to relieve Palestinian suffering, even if that means building the fence closer to the pre-1967 boundary between Israel and the West Bank, known as the Green Line.

Eiland is working on a new route that will take the fence closer to the Green Line and not snake around some Palestinian villages, cutting them off from both Israel and the West Bank.

The problem of the "ringed villages" is most acute in Jerusalem. Human rights activists contend that it is not only inhumane but self-defeating. The misery it causes will spawn even more suicide bombers, they say.

Eiland and others in Sharon’s circle now say that the rings will not be built, alleviating humanitarian problems and reducing the length of the fence by as much as 125 miles.

The bottom line is that for all its detailed preparations, Israel sees the ICJ more as a public relations battle than a legal one. If the court decides to proceed with the case and ultimately deems the fence illegal, Israel almost certainly would ignore the nonbinding advisory opinion and would go on building it.

The detailed preparations and presentations, then, are mainly intended to build understanding for Israel in the international community if and when the court rules against the fence.

Hopes Dashed for Release of ‘Iran 8’

Another Jewish New Year has come and gone, and eight Iranian Jewish prisoners remain locked up in Iran on charges they spied for Israel.

Some observers had tracked rumors last week that the Islamic regime, with its membership in President Bush’s “axis of evil,” might be rethinking some of its polcies — including a possible pardon for a group of pious Jews believed to have been wrongly jailed in the first place.

For the third straight year, the lone Jewish member of the Iranian Parliament, Maurice Motamed, took to the floor of the legislative body in advance of Rosh Hashana and appealed for freedom for the “Iran 10” — now down to eight, as two were released after serving their sentences. Their release failed to materialize, though the authorities reportedly permitted their families to visit them in prison last Friday night to celebrate a Rosh Hashana service together.

“We’d started seeing some changes with respect to attitudes toward religious minorities in general, and we were hoping this would translate into some actual movement on the ground,” said Sam Kermanian, secretary-general of the Iranian-American Jewish Federation in Los Angeles, a community that boasts some 40,000 Iranian Jews. “As far as we’re concerned, we always felt these people did not belong in prison, that the charges against them were wrong. We would welcome the pardoning of these prisoners as an excellent first step forward in a more equitable treatment of religious minority groups,” he said.

That the holiday passed without the prisoners’ release did not surprise more pessimistic Iran-watchers, who have long maintained that the mullahs in charge are tone deaf to international concerns and never miss an opportunity to miss an opportunity at a goodwill gesture.

“I don’t think they’re smart enough to make these kinds of overtures,” said Pooya Dayanim, spokesman for the L.A.-based Council of Iranian-American Jewish Organizations. “If they understood good PR work, they wouldn’t have put these men in jail to begin with — and they wouldn’t have landed in the ‘axis of evil.'”

Thirteen Iranian Jewish men were first arrested in January and March 1999 and eventually charged with spying for the Mossad, Israel’s foreign intelligence service. Their real offense, said American Jewish observers, was that their increasingly fervent brand of Orthodox Judaism became a source of irritation to the authorities. Most of the men were religious leaders and came from the southern Iranian city of Shiraz, said to be a bastion of religious conservatism in general. The arrests were believed intended to send a signal to the rest of the community.

But the issue was soon sucked into the vortex of the political dynamic at the time — a power struggle between conservative forces, led by Supreme Leader Ayatollah Ali Khamenei, and the reformist faction, led by President Mohammad Khatami, observers said.

The Islamists seized upon the issue to whip up anti-Israel fervor, which is often seen as a galvanizing factor among all Iranians.

After a year-plus in solitary confinement, in May 2000 the Jews were brought before Iran’s Revolutionary Court and delivered “confessions” that they had indeed spied for Mossad.

However, media and foreign observers were barred from the courtroom, the prosecutor served as judge and Israel denied it had any contact with the men. Most foreign diplomats and human-rights activists assailed the process as a sham.

There was initial fear the men might be executed. Since the Islamic Revolution in 1979, 17 Jews had been condemned to death, primarily for being accused spies. But three of the 13 were acquitted, with the 10 others convicted on July 1, 2000, on various national-security charges. They were sentenced to terms ranging from four to 13 years. The men appealed, and under international criticism, Tehran reduced the jail time in 2000 to two to nine years.

In March 2001, merchant Ramin Nemati Zadeh, who had taught religious school, was released after serving out his term. And this past January, a second Jew, Hebrew teacher Faramarz Kashi, completed his term. For the remaining eight, their lone hope seems to be a pardon from Khamenei.

Much of the Iranian Jewish community — both here and there — has become resigned to the fate of the prisoners.

“Iran now has too much to face besides this issue,” Dayanim said. “Unless Iran feels that releasing the prisoners will win them some kind of international brownie points, they will remain in prison and serve out their sentences.”

Indeed Iran’s greatest problem may come from within.

With unemployment said to be 14 percent — particularly hard-hit are the young and educated — and stifling social restrictions, the significant strata of university students are reportedly ever more restive and disappointed with Khatami’s promises of reform.

But it’s not only U.S. Jews who are keeping up the pressure. Foreign dignitaries visiting Tehran continue a steady drumbeat of criticism of Iran’s treatment of its minorities, including the Jews behind bars.

In late July, for example, Javier Solana, the European Union’s foreign policy and security chief, listed the concerns that impede improved relations between Iran and Europe: disregard for human rights, a muzzled media, acquisition of weapons of mass destruction and meddling in the Middle East.

For its part, Washington has become increasingly concerned about Iran’s support for Palestinian terror groups. Iran has long been seen as aiding Islamic Jihad and Hamas in the Palestinian territories, and Hezbollah on Israel’s northern border. And in January, ties between Iran and the Palestinian Authority surfaced with the Israeli interception of the Karine-A, a ship carrying more than 50 tons of weapons from Iran to the Gaza Strip.

Bush’s now-famous “axis of evil” speech followed on Jan. 29.

Some in Washington suggest that Iran poses a much greater threat than Iraq.

If nothing else, Iran’s inclusion in the axis may be playing a part in Tehran’s recent rally to the defense of arch-nemesis Iraq as Iran seeks to form a united front against Israel and the United States. As relations began to thaw, however, some thorny issues of the past have resurfaced.

Iraq, for example, is home to an Iranian dissident group, while Iran shelters an anti-Iraq dissident group of its own. When regimes both asked for the other to boot out the opposition groups, it re-opened old wounds. The insults exchanged focused on which nation is truly in bed with the “Zionists.”

“You will not find a single episode in history when the Persians have cooperation with the Arabs against the Zionists,” said Iraqi Vice President Taha Yassin Ramadan.

To which Foreign Ministry Spokesman Hamid-Reza Asefi replied, in the words of the Iran’s Islamic Republic News Agency: “Baghdad had become the supporter of the Zionist regime by waging a destructive war on Iran, sowing the seeds of discord among Muslim nations.”

Meanwhile, Iran’s intense focus on Israel’s actions against the Palestinians — coupled with the widely publicized arrest of the Shirazi Jews on spying charges — has fomented a hostile climate for the Jews remaining in Iran, Dayanim said.

An estimated 22,000 to 25,000 Jews remain in Iran, down from a peak of 100,000 or so before the 1979 revolution.

Dayanim said he has heard of Jewish children being beaten and harassed at school, with their fathers accused of being “Zionists.” “We’re actively engaged in efforts to increase emigration,” Dayanim said. Those efforts, though, are hindered by the fact Jews face obstacles in trying to liquidate their assets, he said.

Those seeking to immigrate to the United States also face greater scrutiny from American immigration and FBI officials once they get to the immigrant way station in Vienna, given new post-Sept. 11 restrictions.

Kermanian, meanwhile, remains somewhat optimistic about the future of Iran’s Jews. “Jews have lived in Iran for 2,500 years, always lived there as loyal citizens, and they loved their country,” he said. “Even though there were ups and downs, Iranians and Jews found a way to live together in peace and cooperation. I have no doubt that with some good will, those days will return.”