The Fence goes to the Hague / Refugees

Update from AIJAC

The Fence goes to the Hague / Refugees

January 16, 2004
Number 01/04 #06

In Israel, there is currently much discussion of the upcoming advisory case at the International Court of Justice in the Hague about Israel's Fence, sent there by the UN General Assembly. Now, the court is proposing to allow the Arab states also to offer submissions opposing the fence, and Israelis are debating how Israel should handle its own presentation.

Shlomo Slonim, an Australian-born Israeli professor specialising in international legal measures explains the case Israel should put to the court. He says they should argue both a legal right to be in the territories and the danger of the court deciding a clearly political case like this one. For Prof. Slonim's full argument, CLICK HERE

Meanwhile , Jeremy Rapkin, a distinguished American academic expert on international law says Israel should not take the proceedings too seriously, as they are essentially legally meaningless. For his view, CLICK HERE

On a different subject, here is an important article about the way Palestinian refugees are routinely abused by their hosts in Arab countries that claim to care so much about them. For all the details,
CLICK HERE.

Lay off the fence

By SHLOMO SLONIM

Jerusalem Post, Jan. 12, 2004

Justice Minister Yosef Lapid warned several weeks ago that building a security fence beyond the Green Line risked having Israel condemned by the International Court of Justice as violating international law. Lapid did not say that placing the fence beyond the Green Line violated international law, only that it was likely to be viewed as such by a majority of the court.

In fact, Israel's legal claim to the entire area of the former British Mandate has been consistently in accordance with international law.

The Israeli argument can be summarized as follows: The General Assembly partition resolution of November 29, 1947 envisioned the creation of three separate entities when the British Mandate terminated: a Jewish state, an Arab state, and an internationalized Jerusalem.

When that mandate ended on May 15, 1948, only one of the three projected entities – Israel – emerged. On that date, in clear violation of the assembly resolution and of general international law, five Arab countries invaded Israel in an attempt to destroy the nascent Jewish state. At war's end, Israel survived, the Gaza Strip came under Egyptian control, and the West Bank, including east Jerusalem, came under Jordanian control.

Neither Egypt nor Jordan gained any legal title to the areas they conquered since, as the then US ambassador to the UN stated, they were engaged in "aggression." Consequently, at most, both these Arab states were throughout the period 1948-1967 "belligerent occupants," which gave them no title under international law.

Only Britain and Pakistan recognized Jordan's title to the West Bank.

When war erupted on June 5, 1967, Israel expelled the belligerent occupants from the lands they had illegally conquered and thus was in a position to claim title to the whole area vacated by the two aggressor states. Israel clearly had a superior title to that of any other claimant, since it was the only entity legitimately to survive from the 1947-48 era.

This is the basis of Israeli administration of the entire Jerusalem area as confirmed by Knesset laws. Israel never surrendered title over the territory it occupied in 1967 to anyone else and contends that the entire area is a matter for negotiation in a possible permanent settlement of the Arab-Israeli dispute.

Until that point is reached the area occupied in 1967 is under exclusive Israeli aegis. In sum, the official Israeli position is that its actions in relation to this area are fully in accordance with international law.

ARAB TACTICS in bringing the issue of the security fence before the International Court of Justice for an advisory opinion is merely one more step in a long campaign of Arab aggression to delegitimize the State of Israel. Their efforts now, as Lapid correctly pointed out, are modelled on the campaign that was employed to delegitimize South Africa.

But Lapid is mistaken if he thinks that by moving the fence back several hundred meters he will remove the basis of the Palestine charge against Israel. For the Arab applicants to the Court, Israel's presence in east Jerusalem pre-eminently constitutes invasion of alien territory and no small withdrawal will appease them.

For these inveterate aggressors, Israel's very existence constitutes occupation and illegality. Every suburb of Jerusalem established since 1967 – Gilo, Ramot, east Talpiot etc., not to speak of Ma'aleh Adumim – represents fair game to be declared illegal, to be evacuated and "restored to its rightful owners."

Israeli policy must be premised on its long-standing claim in relation to the entire area of the former mandate. The charge before the court is merely one more form of Arab aggression against the Jewish state which began in 1948 and has not ceased 55 years later.

Any attempt to appease by means of a modest withdrawal is doomed to failure.

Israel must insist that the political question of the fence is not one for the court to decide since it is essentially a security issue involving the very existence of a state. No other state would countenance continuous aggression by means of terrorist suicide bombers, and Israel is fully entitled to ward off such attacks by every means possible.

The fence, if it is to serve its true purpose, must be built where it will most fulfill a security function, and this is what Israel is doing. Lapid must insist that the Palestinians cannot launch a campaign of terror and then expect that anything Israel does to protect itself against it be judged illegal.

The only sound course for Israel to adopt before the International Court of Justice is to stress the political nature of the assembly's request and contend that the court must not demean itself by becoming involved in what is a never-ending political issue.

Lapid might also take it upon himself to alert his counterparts in the European states that once the court is thrown a political football there is no shortage of political footballs it may seek to catch. This would include Russia over Chechnya, France over Muslim headgear, and so on.

If Europe finally joins the US in recognizing the implications of judicial meandering in political streams, it will serve to erect an effective dam against partisan politicking.

The writer, a professor at the Hebrew University of Jerusalem, is author of South West Africa and the United Nations.

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Why does it matter what they think in The Hague?'

By Yuval Yoaz

Ha'aretz

"After World War II, British prime minister Winston Churchill published his memoirs," said Prof. Jeremy Rabkin, illustrating his worldview of international diplomacy via a historical anecdote. "When the book was published in 1950, the United Nations was still a new institution. `We hoped that it would turn out better,' wrote Churchill, `but in the end it was a tower of Babel with lobbyists.' If Israel views the UN or the International Criminal Court at The Hague as a gathering of diplomats and nothing else, there is no reason not to go to the party that everyone is attending. Even so, one must remember that this is not a world government, and its votes are not world law."

Rabkin, 51, a Jewish Republican from New York, has a doctorate in political science from Harvard University and is a lecturer on governance at Cornell University. He is a world-renowned researcher of the idea of national sovereignty, international law and political thought. Among the books he has published are "Judicial Compulsions," "Why Sovereignty Matters" and "Law Without Nations," which will be coming out in the summer of 2004.

Rabkin is also a member of the academic committee of the American Enterprise Institute, and he also appeared before the American Congress as an expert on issues such as war crimes courts.
As an expert on international law, he has an unequivocal opinion of the whole system and of the International Court of Justice (not to be confused with the International Criminal Court) at The Hague. He does not think much of the international justice system and would be quite happy if decision-makers in Israel would adopt this position.

A conversation with him leaves the impression that the international conventions, the proliferating judicial tribunals and the growing binding power of customary international law are nothing but diplomatic vanity: relating to them seriously would be a bit of an exaggeration. Last week Rabkin came to Israel to lecture to academic researchers on "The Jewish Heritage and the Modern Idea of National Sovereignty" at the annual conference of the Shalem Center in Jerusalem.

Complicating matters

The UN's decision to ask the IJC to rule on the separation fence that Israel is building in the territories, and furthermore, Israel's intention to send representation to the hearing set for February 23, 2004, in order to challenge the courts jurisdiction on the one hand and to explain Israel position on the other, will, in Rabkin's opinion, only further complicate matters rather than bring a solution any closer.
"This court is actually an international arbitration institute," says Rabkin. "It was set up on the idea that if there is an international dispute and both sides are willing to have it arbitrated by the court, then such an institution is a good thing. But Israel did not authorize the transfer of the debate on the fence to arbitration by the court, and despite this, the UN General Assembly decided to ask the court's opinion."

If you could advise Prime Minister Ariel Sharon, would you tell him not to send a representation at all?

"If Israel accepts the [court's] decision, it will actually be allowing its security matters to be decided by a bunch of bureaucrats at The Hague, which is illogical. I think Israel is facing an uncomfortable situation. If you present your claims, it will look as if you recognize the authority of the tribunal before which you are presenting the claim, and if you say that you totally reject the very holding of the hearing and do not even want to participate in it, this will increase the risk that the ruling handed down will be to your detriment."

In Rabkin's opinion, the idea that it is possible to rule whether a certain act, such as the construction of a separation fence in the middle of the West Bank, contravenes international law or constitutes a war crime, is a ridiculous idea.

"To say such a thing means to think that there are clear laws and that all one has to do is check the answer," says Rabkin. "We do not live in such a world. After all, no serious man would believe that if people would only obey international law then there would be peace and security for all.

"The most important goal is to achieve peace and security, and these are not achieved by pretending that there is a reliable law in the world that applies to everyone. It is stupid to think that we will achieve this via The Hague. What does it matter what they think at The Hague? They will not ensure peace and security for Israel. People want to believe that there is someone there who will tell us what to do and then we will be protected. I'm sorry, but there is no such person.

"One must understand that neither the ICJ nor the UN is a world government, and the simple fact that there is a majority of nations that think a certain way does not make it the law. What does it matter what Guatemala or Latvia or Sweden think about the construction of the fence? Is there some sort of common interest here? Of course not. There is no country in the world that is subject to continuous terror attacks as Israel is. There is no fair trial at the ICJ - only a vote."

No world consensus

Even the fear that Israel Defense Forces soldiers serving in the territories will have to one day stand trial at the International Criminal Court, also at The Hague, which will decide whether they committed war crimes, is not a relevant fear in Rabkin's view.

"It does not seem reasonable to me that in the foreseeable future Israelis will be judged by an international court, because that would be highly damaging to the ICC. In such a situation the United States, which like Israel is not a member of the court, would be able to say that all the suspicions that it has always had regarding the court have been verified. "It is important to view this, however, as a political challenge and not as a legal challenge. The only reason Israel has to fear such a procedure is that it would cause it negative headlines for in the international press."

Not surprisingly, Rabkin was one of the prominent objectors to the convention that established the ICC in 1998, and supported the American decision not to sign it.

"The idea behind the establishment of the ICC is that the world is sufficiently united to accept the definitions of justice of some bureaucrat at The Hague. This is clearly not the situation. He is just a clerk, one person from Argentina, for example, and there is no reason to believe he knows more than we do when it is worth trying someone."

That clerk from Argentina is a jurist who represents the idea of the rule of international law, the idea that there is an agreed code of behavior.

"There are people who believe in this, but I think it is absurd. We are not even close to it. There is no global consensus on anything. For example, how much force exerted by a country during a war is excessive force? It would be ridiculous to state that there is consensus on that. The U.S. is not prepared for other countries to judge American war measures, period. We do not think there is broad enough joint agreement for us to trust their judgment, and there is no reason we should trust it. Everyone in the U.S. knows we will surely go to war again sometime, and when we do, we do not want anyone in The Hague telling us what to do.

"It is actually a simple fact that everyone in Israel must take to heart: Are you ready for your security considerations to be determined by a vote in The Hague or the UN? If the answer is yes, I view it as suicide. The most important thing is for a country to be able to defend itself, and to this end it is worth reaching and agreement with your enemies. You must not, however, give up the most important thing, which is that you must be able to defend yourselves. You do not want to be in a situation in which your security forces' activities are being judged by someone from Argentina. When we fought in real wars, we did not ask for advice from Argentina or Switzerland."

Debates in academic forums in which Rabkin participates examined America's policy toward international institutions, headed by the UN. The conclusion was that the American diplomatic effort is not enough.

"We do not have a large enough team in New York," says Rabkin. "We do not devote enough attention to this matter, do not chase after the delegations of other countries and do not lobby enough. Therefore many votes at the UN obtain results such as 160 versus 3, with the 3 being the U.S., Israel and Micronesia. It is better to lose with 40 votes on your side rather than 3.

"It is definitely helps that there is diplomacy, and good that there is a forum where people can speak, but that forum is different than a government. A government is an institute in which the majority decides and the minority has to agree. It would not be good if, in 100 years, the world would be in a situation in which the majority countries decide for the minority countries.

To the highest Israeli court first

On Sunday, the High Court of Justice was asked to speed up the hearing in the principal petition submitted to the court against the construction of the separation fence, so that the hearing in the High Court will precede the hearing on this matter in the International Court of Justice at The Hague.
Most of the petitions submitted to the High Court regarding the fence deal with the procedures for opening the gates in the fence or with expropriation of Palestinian lands for the construction of the fence, to the detriment of the lives of the Palestinian farmers who will be separated from their lands.
The petition by HaMoked: Center for the Defense of the Individual, however, via attorneys Michael Sfard and Avigdor Feldman, deals with the very construction of parts of the fence not along there Green Line (pre-1967 border).

Since no date has yet been set for a hearing on the petition, on Sunday the petitioners requested that a hearing be set for before February 23, the date of the planned hearing in the ICJ at The Hague.
"We feel," wrote the petitioners, "that before an international court debates the legality of the separation fence, as to whether it violates the war laws or not, whether or not this violation constitutes a war crime or a crime against humanity, it is fitting that the highest Israeli court address this matter and if something needs to be rectified - let it be done by order of our sovereign legal institutions."

The petitioners contend that the holding of a preliminary hearing in the Israeli court before the hearing at The Hague is certainly in the interests of the petition's respondents - the Israeli government, the prime minister, defense minister and others, "who are certainly interested in a legal decision from an Israeli court before having to face a foreign court on a position that may not meet our own judicial review."

Palestinian refugees: championed by Arab world yet treated like outcasts

PAUL GARWOOD and MAGGIE MICHAEL, Associated Press Writer

San Francisco Chronicle, Saturday, January 3, 2004

(01-03) 10:18 PST CAIRO, Egypt (AP) --As the foreign minister of Egypt, the largest Arab country, Ahmed Maher might have expected a warmer welcome from Palestinians when he joined their worshippers in Jerusalem.

But the scuffles that erupted at Al Aqsa Mosque last month, with Islamic extremists yelling "You are collaborating with the killers of Muslims," underscored a strong current of discontent among many Palestinians toward Arab states.

The anger is focused chiefly on Egypt and Jordan for having signed peace treaties with Israel, but it goes further, to the frustration of having lived as second-class citizens in neighboring Middle Eastern states for 55 years since fleeing their homes when Israel became a state.

Arab states, which have fought four wars against Israel in the name of Palestine, maintain that to grant them citizenship would be to give up on their dream of returning to the homes they lost when the Jewish state was created.

But to the Palestinians, the wars were fought as much out of self-interest as concern for the Palestinians, that the verbal championing of their cause is rhetoric to rally the Arab states' own masses, and that it isn't matched by decent treatment of the refugees.

"There is always a political motive behind the Arab states' positions toward the refugees in their countries," says Tayseer Nasrallah, who heads the Palestinian Refugee Rights Committee in the West Bank, home to 650,000 refugees. "They consider us an unstable element so they always oppress the refugees and try to get rid of them."

Hundreds of thousands of 1948 refugees and their descendants are crammed into impoverished and often violent camps, some of which have grown into urban slums.

UNRWA, the U.N. Relief and Works Agency set up in 1948, has 4 million refugees on its books in Syria, Lebanon, Jordan, the West Bank and Gaza Strip, and many more are scattered farther afield in the Arab world -- 70,000 in Egypt, for instance.

Palestinians in Egypt suffer restrictions on employment, education and owning property. When Egypt announced in September it would grant nationality to children of Egyptian mothers married to foreigners, it did not include Palestinians.

In Lebanon, nearly 400,000 Palestinians live in 12 refugee camps, where crime is rife and clashes between rival Palestinian factions are common. Palestinians cannot own property or get state health care.

According to Nasrallah, Lebanon bans refugees from 72 areas of employment, including medicine and engineering.

Things are better for Jordan's 1.7 million Palestinians, who are nearly one-third of the population and enjoy Jordanian citizenship. But relations have a tumultuous history. A Palestinian assassinated Jordan's king in 1951, and two decades later Jordan fought a war against Yasser Arafat and his Palestine Liberation Organization. In recent times the government has steadily moved to "Jordanize" jobs in the army and other sensitive areas like state radio and television and the Interior Ministry.

The result, say Palestinians, is that they are discriminated against in getting such jobs, even though no law officially bans their employment.

Awni Shatarat, who lives in the Baqaa Palestinian refugee camp, said, "some Jordanians think that Jordan is not home for the Palestinians, that we are only guests."

Syria, with a population of 18 million, is a strong verbal supporter of the Palestinian cause, and refuses citizenship to its 410,000 Palestinian refugees.

Hisham Youssef, spokesman for the 22-nation Arab League, acknowledged that Palestinians live "in very bad conditions," but said the policy is meant "to preserve their Palestinian identity."

"If every Palestinian who sought refuge in a certain country was integrated and accommodated into that country, there won't be any reason for them to return to Palestine," he said.

The PLO tends to agree with that line, while adding its voice to demands for better treatment of the refugees.

"Palestine is the national home for the Palestinian people wherever they are now," Cabinet Minister Saeb Erekat, a West Bank Palestinian, told the AP. How they achieve that right is a matter for negotiation with Israel, he said, but added:

"We are against the settlement of the refugees in any country, but the host countries should provide the refugees with a dignified living. ... The host countries should allow the refugees to work, to live and to move in dignity until they achieve their right of return."

In el-Arish, an Egyptian town 25 miles from the Palestinian-controlled Gaza Strip with its 900,000 U.N.-registered refugees, 35-year-old Ahmed Mahmoud Zahar says he considers Egypt his home and has no desire to return to his Palestinian father's birthplace.

Zahar was born in Egypt to an Egyptian mother, married an Egyptian and has 10 children. Yet he and the children are Palestinians under Egyptian law.

"We can't own a house, land or get a loan from the bank, despite the fact that I was born here and have no idea what is Palestine," Zahar told the AP.

"It is an evil hypocrisy," said prominent Palestinian writer Mureed al-Barghouti, who lives in Cairo. "The language of the (Arab) governments and media is in one direction and the real practices on the ground are totally the opposite."

Al-Barghouti is married to an Egyptian but he and his Egyptian-born son can't have Egyptian nationality.

The Arab media, particularly state-run newspapers, constantly denounce Israel's treatment of the Palestinians, but the refugees say it doesn't give them any concrete help.

"All the Arab countries want to keep this problem looking like an open wound" to keep world attention focused on Israel's occupation of Palestinian land, said Ana Liria-Franch, regional representative in Cairo for the U.N. High Commissioner for Refugees.

Some Palestinians in Egypt have endured two bouts of exile.

Libya deported around 30,000 in 1995-96 because its leader, Moammar Gadhafi, opposed peace accords signed between Israel and Arafat. Kuwait expelled hundreds because Arafat sided with Saddam Hussein after the 1990 Iraqi invasion of Kuwait.

"Arab countries deal with Palestinian refugees as a political issue," said Oroub El-Abed, a Palestinian who researched the Kuwait expulsion. "Any humanitarian solutions, in their point of view, will lead to marginalizing the Palestinian cause."

Lebanon holds a grudge against its 10 percent Palestinian minority for taking sides in the country's devastating 1975-90 civil war between Muslims and Christians. Most Palestinians are Muslim, so Palestinians are refused legal status so as not to upset the country's delicate religious balance.

"For 55 years now, Palestinian refugees in Lebanon have been oppressed and robbed of their most basic civil rights," said Ibrahim al-Shayeb, who lives in the Ein el-Hilweh refugee camp -- Lebanon's largest -- and works for the PLO's media office.

He complained that the Palestinians' degrading life in Lebanon "causes extremist and fanatical ideas to grow and take root."
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EDITOR'S NOTE -- Associated Press writers Jamal Halaby in Amman, Zeina Karam in Beirut and Laurie Copans in Jerusalem contributed to this report. ©2004 Associated Press

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