Dershowitz Advises Israel on Wall Dispute

Palestinians challenged the legality of Israel’s West Bank separation barrier before an international court yesterday while the Israelis, after consulting with legal experts including Harvard professor Alan M. Dershowitz, refused to participate in the hearings.

The United States and several European countries joined Israel in opposing intervention by the International Court of Justice (ICJ)—the highest legal authority of the United Nations (U.N.)—because they claim the court does not have jurisdiction to hear the case.

“I advised the Israeli government not to become involved in the case at all since it’s an ‘Alice in Wonderland’ legal proceeding,” said Dershowitz, who is Frankfurter professor of law at Harvard Law School.

In December, the U.N. General Assembly asked the ICJ to issue an advisory opinion on the legal consequences of the barrier, which runs about 140 miles in and around the West Bank.

“The General Assembly already declared the fence illegal and they’re just sending it to this court for a rubber stamp,” said Dershowitz, whose advice was solicited by the Israeli government.

Israel maintains that the purpose of the barrier is to prevent Palestinian suicide bombers from entering the Jewish state and therefore conforms to the legal definition of “self-defense.” The Palestinian Authority contends that Israel is trying to exert control over lands occupied by Palestinians and to divide the Arab population currently living in the West Bank.

During opening arguments at The Hague, Netherlands, the chief of the Palestinian delegation defended the court’s authority to render an opinion. Any judgment issued by the court would be nonbinding.

Dershowitz, however, characterized the 15-judge panel of the ICJ as a “kangaroo court,” likening it to a southern United States court during an era of heightened racial tension.

“A Mississippi court in the ’30s could do justice in a case involving a white and a white, but not involving a black and a white,” he said.

“The same is true with this court. This court could do justice in a border dispute between Norway and Sweden,” he said, but not between Israelis and Palestinians.

The ICJ is not fit to handle the case because its judges take orders from their governments and because no Israeli judge is allowed to serve on the panel, according to Dershowitz.

“Virtually every democracy with an independent judiciary has come out against this court having jurisdiction over this case,” he said. “And almost every country that has come out in favor of the court having jurisdiction over this case is a tyranny with no real justice system.”

“This is a lawsuit involving the tyrannies versus the democracies, and since there are more tyrannies than democracies in the world, Israel will lose,” he said.

The easiest way to bring down the barrier, Dershowitz said, “is for the Palestinians to go to the negotiating table.”

But for now, the fence represents Israel’s “last alternative to combating terrorism.”

Dershowitz said Sunday’s terrorist attack, in which a Palestinian bomber killed eight Israelis and wounded dozens on a Jerusalem bus, underscored the need for the barrier.

“If this fence had been up, lives would have been saved,” he said.

Rami R. Sarafa ’07, treasurer of the Palestinian Solidarity Committee and a member of the Society of Arab Students, said the argument that the barrier will prevent terrorist attacks against Israel is not valid because “there’s going to be an angry population of about 300,000 Palestinians that will still be on the Israeli side of the wall and therefore have access to Israel proper.”

“I can’t imagine that this more desperate, anguished and now isolated population will have much incentive to pacify and cease attacks on Israel,” he said.

The barrier—a combination of walls, razor-wire fences and electronic monitors—runs around, and in some places through, the West Bank. If completed, it will extend over 450 miles.

Dershowitz said the barrier is not a static, rigid boundary.

“I’ve examined the fence. A very, very small part of it is wall, most of it is a moveable fence. In fact, yesterday, much of it was moved and it will continue to move all the time,” he said.

When the idea of building a security fence in Israel first arose, Eric R. Trager ’05 was an intern in the Knesset, or Israeli parliament.

Trager, who is secretary of the Harvard Students for Israel, called the barrier an “unfortunate necessary evil” brought on by the Palestinian Authority’s refusal to crack down on Palestinian terrorism.

“If people are going to oppose the Israeli security fence, which is a passive means of Israel defending itself against Palestinian terrorism, they have to come up with an alternative through which it can protect its citizens,” he said.

Suvrat Raju, a second-year graduate student in physics at Harvard and member of the Harvard Initiative for Peace and Justice, agreed that Israel has a right to protect its citizens from terrorist attacks but maintained that “the route of the wall suggests that the [Ariel] Sharon administration is primarily concerned with acquiring Palestinian land.”

The barrier is not a “constructive step,” Raju said in an e-mail.

“It will annex land, violate the human rights of Palestinians and integrate settlements into Israel,” he said. “This reduces the viability of a future Palestinian state and creates a hostile atmosphere that is detrimental to the security of Israeli citizens.”

—Materials from the Associated Press were used in this story.

—Staff writer Andrew C. Esensten can be reached at esenst@fas.harvard.edu.