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The Israeli Security Barrier (Fence,Wall) and the ICJ


The advisory opinion of the International Court of Justice about the Israeli Security Barrier (aka Fence, Wall) has generated a lot of verbiage, generally in support of the ICJ rulling, because the fence is bad, or in support of the fence, because the ICJ ruling is bad and the barrier saves lives. The commentators generally line up on one side or the other of the question, depending on their Zionist or anti-Zionist orientation, with more or less total disregard of the facts. Consumers of analysis can take their pick of which opinion suits them best. The truth appears to be much more complex - the barrier is bad but necessary, and the ICJ ruling is bad but inevitable. Since the General Assembly will meet to discuss the question on Friday, and since the UN Security council will meet in November, and since the fence/barrier/wall is not going away, this debate will be with us for a while.

The fence/wall/barrier is bad because it arbitarily divides up neighborhoods and villages, running down the main street of Abu Dis, trapping people away from their fields and livelihoods, erecting cement barriers directly in front of the houses of some of them, so they cannot get out their front doors. The Israeli High Court has taken note of some of these defects and has ordered changes in the route of the barrier in A-Ram and elsewhere. The Israeli government is now embarking on extensive replanning of the barrier. It is doubtful that the final outcome of the replanning will very much more satisfactory, given the pressures of settlers to keep settlements within the Israeli side of the fence, and the general disregard of contractors who are implementing the route for the lives of the humans affected.

The only effective means to change the route of the fence lie within Israel - through the Israeli High Court and Israeli public opinion. Therefore, it is vital to rally the maximum possible support of the Israeli public and politicians for changing the route of the barrier. The actions of the Palestinian Authority in taking the matter to the UN, the ICJ decision regarding the fence, and the inevitable UN resolutions that will follow, are dooming Israeli efforts to change the route of the fence. The Palestinian Authority did not initiate these actions out of concern for the Palestinian people. The Palestinian Authority has long since demonstrated a reckless disregard for the welfare of the Palestinian people. It involved them in a suicidal struggle to destroy Israel through terror; it stole their money, squandering it on fancy automobiles and suicide bombings and Kassam rockets and squirreling it away in Swiss bank accounts. The ICJ ruling is just another propaganda weapon, part of the self-destructive war being waged by the Palestinian leadership.

The ruling is bad because, like the 1975 Zionism is Racism resolution of the UN General Assembly, the ICJ ruling and the UN resolutions that will inevitably follow, will unite all of Israel against the UN, because the ICJ has attacked Israel on an issue that is a matter of national consensus. Over 80% of Israelis support the security barrier. Even Israeli Arabs support it. The barrier alone will not stop terror and theft and infiltration, and it cannot stop Kassam missiles of course, but the barrier is part of a general strategy that has proven effective in reducing the number of successful terror attacks.

The General Assembly of the UN asked the International Court of Justice for an advisory opinion regarding the legality of the Israeli security barrier. In doing so, it had already implied its own opinion by singling out a specific conflict, since the General Assembly did not, for example, ask for an opinion about whether or not support for terrorist groups like the Islamic Jihad is against international law, or whether or not the rapes and murders and enslavement in Sudan constitutes genocide, or whether or not Chinese policy in Tibet constitutes a violation of international law. Since the opinion of the General Assembly was clear, the outcome of the ICJ ruling was bound to follow that opinion. The ruling is a clear victory for the Palestinians, and they have announced their intention to exploit the ruling in order to pressure Israel regarding the wall. In fact, the ICJ opinion went beyond an advisory regarding the fence/wall/barrier, ruling that the West Bank and Gaza Strip are occupied territory, and that Israeli settlements are illegal under international law. It will be recalled, that officially, Israel refuses to call the territories "occupied" and that a description of the territories as "occupied" by Prime Minister Sharon resulted in a furor among right-wing Zionists. Thus far, there are really no surprises though, since the court was only expressing views that reflect the weight of world opinion.

The ICJ ruling is bad because it strips Israel and other states of the right to defend themselves against terror using any sort of force. The ICJ ruled that because Palestinian terror attacks are not carried out by a foreign power or foreign nationals, they are not covered by UN Charter provisions for self-defence or UN resolutions against terrorism. However, any terrorist action is potentially not due to the action of foreign states or even foreign nationals. The attacks in Saudi Arabia are carried out by Saudis, and the attacks in Turkey were carried out by Turks. The 9-11 attacks could have been carried out by American Muslim extremists as well as by Saudis. The attacks of the Hamas and Islamic Jihad and Fatah Al-Aqsa brigades are no doubt financed by foreign powers including Iran, but the ICJ chose to ignore

Some believe that Israel could meet the objections of the court simply by building the barrier within the 1949 armistice line ("Green Line"). It is debatable whether or not this is true. If the barrier were built along the 1967 borders, it would mean that the Palestinians could once again close the road to Jerusalem as they did in 1948, since the Latrun monastery and other key areas that dominate the road would be in their hands. It would also mean that the Hebrew University campus on Mount Scopus, as well as the Jewish quarter of the Old city are at the mercy of suicide bombers. Does anyone believe Israel will agree to this? But the advisory opinion does not say that building the barrier along the Green line would satisfy the court. It only says that the current course of the barrier is illegal. According to numerous UN resolutions, no part of Jerusalem belongs to Israel. Jerusalem is meant to be a corpus separatum under international supervision. Even before 1967, UN resolutions condemned Israeli actions in West Jerusalem. Military parades were condemned as provocations. It is scarcely to be thought that the ICJ would tolerate a barrier if the Palestinians objected, and they would certainly object.

The ICJ ruling is bad because it is, in general, a part of Yasser Arafat's attempt to avoid the negotiating table and force a solution on Israel instead, through international pressure. It is of a piece with demands for an International Conference and an international peace keeping force that were made in the past by the Palestinian Authority. Of course, the Sharon government has given much aid to this strategy by refusing to negotiate even when it was possible. The two "partners in peace" certainly deserve each other.

The ICJ ruling is bad because it will not be enforced, which makes a mockery of "international law." It would be much worse if it was enforced, since it is a unilateral and biased judgement, driven by obvious political motivations, which ignores the context of the conflict and exacerbates an already complex and violent situation. The bias is evident in every aspect of the court's reasoning. For example, in a wry bit of irony, the court cites freedom of access to holy places as part of its reasoning, noting, in paragraph 129, that this freedom of access has been guaranteed since Turkish times, and was guaranteed under Jordanian rule. The majority opinion includes the following:

Subsequently, in the aftermath of the armed conflict of 1948, the 1949 General Armistice Agreement between Jordan and Israel provided in Article VIII for the establishment of a special committee for "the formulation of agreed plans and arrangements for such matters as either Party may submit to it" for the purpose of enlarging the scope of the Agreement and of effecting improvement in its application. Such matters, on which an agreement of principle had already been concluded, included "free access to the Holy Places".

However, as everyone knows, there was no access for Israeli Jews to holy places in East Jerusalem under Jordanian rule. Moreover, there is no reason to expect that the wall will block access to holy places much more than the current checkpoints do, so the entire argument is irrelevant, except to underline the futility of UN decisions in the Middle East.

In an irrelevant discussion of history, the court goes out of its way to note:

70. Palestine was part of the Ottoman Empire. At the end of the First World War, a class "A" Mandate for Palestine was entrusted to Great Britain by the League of Nations, pursuant to paragraph 4 of Article 22 of the Covenant, which provided that:

"Certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone."

The Court recalls that in its Advisory Opinion on the International Status of South West Africa, speaking of mandates in general, it observed that "The Mandate was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an
international object - a sacred trust of civilization." (I.C.J. Reports 1950, p. 132.) The Court also held in this regard that "two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of . . . peoples [not yet able to govern themselves] form[ed] 'a sacred trust of civilization'"(ibid., p. 131).

The territorial boundaries of the Mandate for Palestine were laid down by various instruments, in particular on the eastern border by a British memorandum of 16 September 1922 and an Anglo-Transjordanian Treaty of 20 February 1928.

It is unclear why we needed this lesson in history, but if it was provided, it is nothing short of amazing that the court did not mention, that the League of Nations Mandate for Palestine was entrusted to Great Britain for the purpose of creating a national home for the Jews. Even more amazingly, rather than dicsussing the Palestine Mandate, the court refers to the Mandate for South West Africa, going far afield to find a quotation of tangential relevance.

Continuing its historical fantasy, in paragraph 71 the ICJ opinion states:

...on 14 May 1948, Israel proclaimed its independence on the strength of the General Assembly resolution; armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented.

In fact, the Arab countries invaded Israel, in violation of UN Resolution 181, and of the UN Charter. Invading other countries is not allowed under the UN charter, but the learned judges erased this fact from history by a stroke of their pen.

These and other extravagances mark the ICJ document as a shoddy bit of anti-Zionist propaganda rather than a considered legal opinion. It is designed to form the basis of a propaganda campaign, rather than being intended to promote justice and human rights. What else can we expect from an opinion about international and humanitarian law that was requested, by among others, the representative of Sudan, whose government was even then busy committing genocide in Darfur and in the south?

How can the Israeli peace movement, or Israeli politicians, generate sympathy for the needless suffering caused by the barrier, when the ICJ ruling has already in effect, declared that the issue is a cause celebre of enemies of Israel, and a political lever to be used in the PNA's war against Israel?

Ami Isseroff

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Replies: 7 comments

Here is the magic formula to make the fence go away:
for the palestinians to cease their war against Israel, to turn over illegal weapons, to destroy terrorist organizations and infrastructure, to destroy weapons tunnels in Gaza.
when they do this there will no longer be need for a fence, just as there was none prior to the intifadas.

Posted by MIKE LEVINE @ 07/17/2004 04:21 PM CST

Peace in the mideast is a dream it will never happen as long as mankind is attempting peace. It will have to come from a Higher power-God-.
Israel has to protect them selves, I think the wall is an excellant idea. Israel has showed much restraint in not wiping out the Arab counties around them.
the land for peace is a big mistake, Israel is letting the Arab extremests much closer in giving up land for a peace that will never happen.
If the Arab's want peace, they don't have to ask Israel for land just stop attacting Israel, and they will have peace it is that easy, if they do not beleive it just try it.
I say keep the fence up and keep building it. The Arab's will not be happy with the land they will be getting just watch and see you will see the same violence toward Israel.

Posted by Ron Volk @ 07/18/2004 07:48 PM CST

The middle east peace arguement exists as a fantasy. The arguement that Islam is currently going through the 1500 year cycle of phoenix rebirth, for a new and freer Islam, holds the following.

That Arab cultural DNA has as its peace foundation a legend called the phoenix, the benu bird.575 AD plus 1500 years equals NOW. Culture evolves alongside ancestral DNA.The legendary phoenix lives at a place called the blessed Isles, at the East of the earth. The east of the earth is where the sunlight first authorizes life to occur on earth.This is New Zealand. Where at the end of World War one, the people of New Zealand had their sovereignty of law stolen by the now "criminal" New Zealand Government, under "hell in clerk"."Satan". Kiwi culture = phoenix culture as the "law of the land", the legend of both birds is identical. Thereby it is argued, very fiercely, that Arab DNA has had its "peace" power removed, "as the law of the earth", by the NZ criminal government, by the theft of the sovereignty of the phoenix as the "law of the land". That the NZ criminal government should be brought into an international criminal court, to face charges of the attemted murder of Islam. Waitangi, the treaty of NZ = the funeral of the source of all life = the funeral of Islam, since Islam is the source of all life, at this point in time of phoenix rebirth.

Posted by Bob @ 07/19/2004 05:26 AM CST

This article or whatever you call it is a very good one. It is not showing only the Palestinian side of the story. I think that the wall is the second best idea after peace, and the most achiveable right now.

Posted by Raistlin @ 07/23/2004 02:27 AM CST

i beleive that the decision of israel regarding the construction of the security wall is best example that can be cited for freedom and national integrety.israel has defrined freedom in its proper sense .the only country which has earned the respect and not begged for it even from UNCLE SAM.i beleive that israel should continue to do whatever it finds best in favour of its countrymen without turning a hair at the reaction of international community.

Posted by avinash @ 08/22/2004 09:31 PM CST

Secretary General of the United Nations [UN] Kofi Annan and the International Court of Justice [ICJ] have deliberately overlooked international law substantiating the legal right of Israel to build its security barrier in the West Bank.

That law is comprised in the Treaty of Sevres 1920, the Mandate for Palestine 1922 and article 80 of the United Nations Charter. It substantiates the inalienable right of the Jewish people to settle in and reconstitute their national home in the West Bank and prevents both the ICJ and the UN taking any action to alter or withdraw this right without the express consent of Israel.

Mr Annan presented a lengthy dossier to the Court but failed to include any evidence of this claim.

The ICJ said it did not consider it necessary to determine the prior status of the West Bank prior to 1967 but provided no explanation for failing to consider the above body of international law that deals specifically with the West Bank and its legal status.

The Court’s failure to do so has fatally flawed its judgement.

Posted by david singer @ 08/24/2004 03:53 AM CST

I have seen a number of sensible articles by Ami Isseroff, but this one surprises me. As I understand it, the ICJ ruling is not that the wall itself is illegal, but that the location of the wall on occupied land is illegal, as are the settlements it's been routed to protect. Remove the settlements, reroute the wall within the "green line" - no problem.

Rather than bashing the ICJ, surely Mr Isseroff and other Israelis who are genuinely interested in peace should be using the judgement to show their people how out-of-line the Israeli government is and how the wall is making things worse in the long run even if it reduces bomb attacks in the short run.

What the wall really represents is a further annexation of Palestinian territory, and by making a viable Palestinian state impossible it will probably kill any prospect of a 2-state solution.

If they have any sense, the West Bank and Gaza Palestinians will then start to demand democratic rights in Israel as they are effectively ruled from Tel Aviv. This "South-Africanization" of the struggle would be much harder to resist than "terrorism" and the implication (as several senior Israeli figures have realized) would be the end of the Jewish State.

Israelis have to choose between that, outright ethnic cleansing and a proper 2-state solution. The current wall only makes sense in the first two of those contexts.

Posted by Nimrod @ 08/26/2004 08:18 PM CST

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