The ICJ Ruling on Israel's Security Barrier

Update from AIJAC

The ICJ Ruling on Israel's Security Barrier

July 12, 2004
Number 07/04 #05

Today's Update looks at responses to the advisory decision of the International Court of Justice in the Hague on Friday, condemning Israel's Security barrier in the West Bank.

First, this Update features the official Israeli response to the decision. For this official statement, CLICK HERE

Next, Harvard law Professor Alan Dershowitz explains why the decision had nothing to do with Justice, especially in comparison to the examination by the Israeli Supreme Court the previous week. For his full discussion, CLICK HERE

Finally, top Israeli journalist Yossi Klein Halevi makes the point that the worst part of the decision is not what it will do to Israel, but what it will do to the Palestinians. For this important argument, CLICK HERE

ICJ Advisory Opinion on Israel's Security Fence - Israeli Statement

The International Court of Justice was asked to address the question of Israel's security fence as a result of a politically motivated manoeuvre, which Israel and over 30 leading democracies did not support. Israel cannot accept this politicization of the Court.

As expected, and as a result of the one-sided question put before the court, the Advisory Opinion fails to address the essence of the problem and the very reason for building the fence – Palestinian terrorism. If there were no terrorism, there would be no fence.

This Palestinian terrorism has taken the lives of nearly 1,000 Israelis in over 20,000 attacks over the last three and a half years, wounding thousands more, leaving broken families, widows, and orphans. No other country would act differently in the face of such an evil campaign.

Since the fence has been in operation, the number of casualties has decreased significantly. The fence is reversible, whereas the lives taken by terrorism are not. Moreover, the fence works. It is a temporary, non-violent security measure and it saves lives.

As long as the terrorism continues, Israel will have no choice but to defend its citizens. This is our moral and legal obligation.

Israel continues to seek the necessary balance between protecting the lives of its citizens and the humanitarian needs of the Palestinian population. We will continue to do so, in accordance with the rulings of our Supreme Court, which alone has the capacity to fully address all aspects of this matter. The fact that every individual affected by the fence has the right to directly petition Israel's Supreme Court ensures legal recourse without the need for outside involvement.

The only way to resolve the differences between Israel and the Palestinians, including the dispute over the fence, is through direct negotiations, as stipulated by UN Security Council resolutions and the Road Map. An essential condition for such negotiations is the cessation of Palestinian terrorism. The solutions to the problem lie in Ramallah and Gaza, from where the terrorism is directed, not in the Hague or Manhattan.

Israel calls on the Palestinian side to end its campaign of terrorism and to return to the path of negotiations.

Israel calls on the international community not to lend its hand to the ongoing Palestinian attempts to use international forums to avoid fulfilling their own commitment to fight terrorism.

Israel follows its own law, not bigoted Hague decision

ALAN DERSHOWITZ

Jerusalem Post, Jul. 11, 2004

The Israeli government has both a legal and a moral obligation to comply with the Israeli Supreme Court's decision regarding the security fence.

After all, the Supreme Court is a creation of the Knesset and is therefore representative of all of the people - Jews, Muslims, and Christians alike. Moreover, the Supreme Court has a real stake in both sides of the fence dispute. Its job is to balance the security needs of its citizens against the humanitarian concerns of West Bank Palestinians. It tried to strike that balance by upholding the concept of a security fence while insisting that the Israeli military authorities give due weight to the needs of the Palestinians, even if that requires some compromise on the security of Israelis.

Contrast this with the questionable status of the International Court of Justice in The Hague. No Israeli judge may serve on that court as a permanent member, while sworn enemies of Israel serve among its judges, several of whom represent countries that do not abide by the rule of law. Virtually every democracy voted against that court's taking jurisdiction over the fence case, while nearly every country that voted to take jurisdiction was a tyranny. Israel owes the International Court absolutely no deference. It is under neither a moral nor a legal obligation to give any weight to its predetermined decision.

The Supreme Court of Israel recognized the unquestionable reality that the security fence has saved numerous lives and promises to save more, but it also recognized that this benefit must be weighed against the material disadvantages to West Bank Palestinians. The International Court, on the other hand, discounted the saving of lives and focused only on the Palestinian interests. By showing its preference for Palestinian property rights over the lives of Jews, the International Court displayed its bigotry.

The International Court of Justice is much like a Mississippi court in the 1930s. The all-white Mississippi court, which excluded blacks from serving on it, could do justice in disputes between whites, but it was incapable of doing justice in cases between a white and a black. It would always favor white litigants. So, too, the International Court. It is perfectly capable of resolving disputes between Sweden and Norway, but it is incapable of doing justice where Israel is involved, because Israel is the excluded black when it comes to that court - indeed when it comes to most United Nations organs.

A judicial decision can have no legitimacy when rendered against a nation that is willfully excluded from the court's membership by bigotry.

Just as the world should have disregarded any decision against blacks rendered by a Mississippi court in the 1930s, so too should all decent people contemptuously disregard the bigoted decisions of the International Court of Justice when it comes to Israel. To give any credence to the decisions of that court is to legitimize bigotry.

The International Court of Justice should be a court of last resort to which aggrieved litigants can appeal when their own country's domestic courts are closed to them. The Israeli Supreme Court is not only open to all Israeli Arabs, but also to all West Bank and Gaza Arabs. Israel's Supreme Court is the only court in the Middle East where an Arab can actually win a case against his government.

The decision of the International Court of Justice against Israel should harm the reputation of that court in the minds of objective observers rather than damage the credibility of Israel. The Israeli government will comply with the rule of law by following the decision of its own Supreme Court.

If the International Court of Justice were itself to apply the rule of law instead of the calculus of politics, it might deserve respect. Now - like the general assembly of which it's a creation and the Mississippi courts of the 1930s of which it's a clone - all it deserves is the contempt of decent people for its bigoted processes and its predetermined partisan result.

Prof. Dershowitz wrote this article the day before the International Court rendered this opinion because he was certain - based on the composition of the court - that its verdict would be against Israel. Following the decision he did not have to change a single word.

Alan Dershowitz is a professor of law at Harvard.

Back to Top
------------------------------------------------------------------------

Essay: The pattern of Palestinian rejectionism

Yossi Klein Halevi

Jerusalem Post, Jul. 8, 2004

The tragedy of the International Court's ruling on the security fence isn't only its depressing predictability, a politicization that undermines the hope for a global system of justice. Nor is the tragedy only that Israel's right to self-defense has been branded illegitimate, while the criminals remain uncensured.

Perhaps the worst consequence of the ruling is that it will reinforce Palestinians' faith in their own innocence and victimization, and preclude a self-examination of their responsibility in maintaining the conflict. That suicidal self-pity has led Palestinians from one historic calamity to another, and is precisely the reason why Israel is now building the fence.

Palestinian political history follows a depressingly predicable pattern. First, a peace offer is presented by the international community, to which the mainstream Zionist leadership says yes, while all factions of the Palestinian leadership say no. Then the Palestinians opt for war and pay a bitter price for their failed attempt at politicide. Finally, the Palestinians protest the injustice of their defeat which, after all, was supposed to be the fate of the Jews.

>From the Palestinian perspective, there have always been compelling reasons for rejecting each of the compromises that could have resolved this conflict in a two-state solution. The UN partition plan, Palestinians still argue, offered the Jews a state on a majority of territory though they were only a minority of the population. The argument ignores the fact that 62 percent of the Jewish state envisioned by partition would have consisted of desert, while the Palestinians were offered the most fertile land. The argument is even more absurd because the Palestinians, and the Arab world generally, would have rejected Jewish statehood in any form.

As for the Camp David offer, Palestinians argue that it would have left them with a series of non-contiguous cantons, not a real state. Yet a few months after Camp David, Palestinians rejected the offer of a contiguous West Bank under the Clinton Proposal and at Taba. The reason for that Palestinian rejection was, and remains, their refusal to waive the demand for refugee return to pre-67 Israel - that is, to accept the Israeli offer to cede the results of the 1967 war in exchange for a Palestinian acceptance of the results of the 1948 war.

The end result of each Palestinian rejection was that history moved on, and the map of potential Palestine that remained to be negotiated invariably shrank. Under the Peel Commission, the Palestinians would have received 80% of the territory between the river and the sea; under the 1947 UN partition plan, 45%; under Camp David, around 20%.

And now, thanks to the latest Palestinian miscalculation, the fence is establishing a new border, in which a future Palestine will lose at least 10% of the West Bank, including east Jerusalem - all territories it could have possessed had the Palestinian leadership negotiated in good faith.

ONLY A people convinced it can do no wrong because all right is on its side can fail to ask itself why it repeatedly brings disaster on itself. Where are the anguished Palestinian voices demanding an accounting from their leadership for the self-imposed wound of the fence? Where is the debate about whether four years of suicide bombings were a wise response to the Israeli offer of Palestinian statehood - let alone a debate about the moral and spiritual consequences of turning Palestinian Islam into a satanic cult?

During the first intifada, Israeli society underwent a profound, and necessary, self-confrontation. For the first time, non-leftist Israelis conceded that the Palestinians have a grievance and a case, and that, by not offering the Palestinians any option besides continued occupation, we shared at least partial responsibility for the conflict.

The result was that a majority of Israelis came to see the conflict as a struggle between two legitimate national movements, and that partition wasn't only politically necessary but morally compelling.

Rather than undergoing a similar process, though, Palestinian society has regressed even further into a culture of denial that rejects the most minimal truths of Jewish history and Jewish rights to this land.

This intifada should have been the Palestinians' moment of self-confrontation. Yet Palestinians still refuse to take the most minimal responsibility for their share of the disaster.

In almost every political conversation I've had with Palestinians who aren't political leaders, I've heard a variation of the following: "You and me, we're little people. We could make peace, but the 'big ones' on both sides don't want it. The leaders only care about their seats."

I used to be charmed by those words, imagining they contained hope for reconciliation. In fact, they explain why reconciliation eludes us. By passing the blame to others, Palestinians absolve themselves of responsibility for change, incapable of challenging those who speak in their name.

If Palestinians continue to replace self-examination with self-pity, it's because their avoidance mechanisms are reinforced by the international community, whose sympathy for Palestinian suffering becomes support for Palestinian intransigence.

I had hoped that the fence would force the Palestinians to finally face some painful truths about the conflict. The fence, after all, confronts Palestinians with a constant, tangible reminder of the consequences of rejectionism. It marks the literal limits of the politics of terror.

Yet in choosing to judge Israel rather than the Palestinian leadership, the International Court legitimizes Palestinian self-pity and sabotages the possibility of change. That is a disaster for the moral health of Palestinian society, and for the possibility of reconciliation in the Middle East.

The writer is an associate fellow at the Shalem Center and a contributing editor to its magazine, Azure, and to the New Republic.

Back to Top