The International Court of Justice & Israel’s
Security Fence
(Updated July 2004)
The most important issue at stake in the conflict
between Israelis and Palestinians is how to bring about a two-state solution that offers peace and security
to both parties. The International Court of Justice (ICJ) has nothing
to contribute to resolving this issue and its decision actually subverts
the prospects for peace by undermining direct negotiations, diverting
attention from the Palestinians’ failure to fulfill their road map obligation to stop the violence, and singling Israel out
for opprobrium while ignoring the Palestinian
terrorism that necessitated the construction of the security
fence.
As Secretary of State Colin Powell observed, as long
as the Palestinians believe they can win in the court of world opinion,
they will have no incentive to pursue peace.
Israel only built this fence to defend its citizens
after three years of unrelenting Palestinian violence that has taken
the lives of nearly 1,000 Israelis. And the fence has served its purpose.
Wherever the fence has been completed, the terrorist organizations have
not succeeded in crossing it. No outside court or international organization
has the authority to determine how Israel should protect its citizens.
The United States shares this view and that is why
it objected to the Court’s involvement. After all, if the Court
can tell Israel that it can’t build a fence to defend itself from
terrorists, why can’t the justices tell the United States that
it is illegal to build a barrier to keep Mexicans from entering the
United States, or that its war in Iraq was not justified? In fact, the ICJ held that the right
of self-defense applies only “in the case of an armed attack by
one state against another state,” which not only excludes the
right of Israel to defend itself against Palestinian terrorists, but
apparently means the United States cannot legally exercise its right
of self-defense against Al Qaeda.
Israel’s Supreme
Court took up the grievances of Palestinians and ruled that the construction of the security fence is consistent with international
law and was based on Israel’s security requirements rather than
political considerations. It also required the government to move the
fence in some places to make things easier for the Palestinians. Though
the Court’s decision made the government’s job of securing
the population from terrorist threats more difficult, costly, and time-consuming,
the Prime Minister immediately accepted the decision and began to reroute
the fence and to factor the Court’s ruling into the planning of
the rest of the barrier.
The security fence does create some inconvenience to
Palestinians, but it also saves lives. The deaths of Israelis caused
by terror are permanent and irreversible whereas the hardships faced
by the Palestinians are temporary and reversible.
What is the basis for challenging the fence in the
first place? Contrary to the language of the General
Assembly resolution, the fence does not stand on “occupied
Palestinian” land. The fence does not affect the final status
of the territories. Israel has not annexed any territory around the
fence; the land itself is
a matter of dispute and, should a peace settlement be reached, the fence
can be moved or torn down. Israel has already said it would reroute
the fence to minimize the impact on the Palestinians.
The ICJ's opinion is only
an advisory one on “the legal implications of building a wall”
and does not have the force of law. The ruling was largely a foregone
conclusion given that the UN General
Assembly adopted a position on the matter and prejudged it. The
court is a political body and Israel has no representation on the court.
The 15 judge panel does, however, include a Palestinian from Jordan
and an Egyptian.
The politicization of the proceedings was clear from
the Court’s decision to allow 56 countries from the Organization
of the Islamic Conference, along with the 22 members of the Arab
League, to testify against Israel. While Palestinians may legitimately
criticize the fence, none of these other parties are in any way affected
by Israel’s efforts to defend itself. Is it any wonder the “trial”
resembled the Israeli-bashing forum that occurred in Durban and the
one-sided debates in the General Assembly?
The decision to submit the issue of the fence to the
court ignored Article 36 of the Court’s Statute which stipulates
that contentious issues can only be brought before the Court with the
consent of all sides. In this case, the issue is clearly contentious, Israel did not consent to arbitration
before the court, and the parties already have mechanisms in place for
resolving such issues.
Israel was put in a no-win situation. By virtue of
being “taken to court,” Israel was put on the defensive.
Israel ultimately decided it would not participate in the trial and
was joined in this decision by the United States, Russia, and the EU.
This left the hearings to Israel's critics who, predictably, used them
as a propaganda forum to castigate Israel.
Counting the countries that did not vote, as well as
those that voted against the Arab
proposal, 101 member-states — a majority of UN members — did not support referring the fence issue to the court,
and at least 30 countries, including the United States, Great Britain,
Russia, and 15 members of the European Union submitted affidavits to
the ICJ saying that the issue did not belong in the Court.
And why should the Court single out Israel’s
actions? Has it ever ruled on the dispute between India and Pakistan
over Kashmir or the conflict between Greece and Turkey over Cyprus or
any of the dozens of other international border disputes?
India, Saudi Arabia, and Turkey voted to refer the
Israeli fence to the ICJ even though each has built their own barriers.
India is just completing a 460-mile barrier in Kashmir to halt infiltrations
supported by Pakistan; Saudi Arabia built a 60-mile barrier along an
undefined border zone with Yemen to halt smuggling of weaponry; and
Turkey built a barrier in the southern province of Alexandretta, which
was formerly in Syria and is an area that Syria claims as its own. Ironically,
after condemning Israel's barrier, the UN itself announced plans to
build a fence to improve security around its New York headquarters.
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