The Palestinian people and leadership were quite confused and
disappointed by the negative American official response to the
International Court of Justice (ICJ) decision, simply because there are
only two ways for Palestinians to achieve their objectives. One way is the
approach that is promoted by the extremists: fighting by any possible means
to defeat the occupation and the Israelis--regardless of any political,
legal, or human consideration. The other path is based on pursuing legal
methods and using international law.
The Palestinian peace camp bases its demands and political program on the
relevant UN Security Council resolutions and international law. Members of
this camp have always tried to convince their fellow Palestinians that law
is the language that the civilized world, especially the West, understands.
We have argued that if we Palestinians want to attract the support of the
international community, especially Europe and the United States, we have to
pursue legal methods and procedures and to base our objectives on the
parameters of international law and the relevant Security Council
resolutions. Taking the issue of the wall to the ICJ in The Hague is an
illustration of the approach the Palestinian peace camp promotes.
Unfortunately, the dismissive and negative reception in Washington to this
opinion has a very destructive effect on the ongoing debate between these
two tendencies within the Palestinian society.
In any case, the Palestinian people were encouraged by The Hague's
decision and are determined to try to benefit from it on all possible
levels. The way we read this legal finding goes beyond the issue of the
wall. The decision, which came from the highest legal body in the world, has
ended the debate over whether these territories--i.e., the West Bank,
including East Jerusalem, and the Gaza Strip--are disputed or occupied. In
addition, this resolution ended any possibility of Israel claiming East
Jerusalem as the capital of Israel. It consolidated the Palestinian
political and negotiating position that East Jerusalem and the rest of the
occupied Palestinian territories, including settlements, are under illegal
belligerent military occupation. The decision also reinforced the
applicability of the Fourth Geneva Convention to the occupied territories.
The pathetic way in which Israeli officials reacted to this decision
tried to link the idea of building the wall with the insecure situation
inside Israel. They were helped in these arguments by the unfortunate
explosion in Tel Aviv. However, these protestations neglected the fact that
neither the Palestinians nor the ICJ has a problem with Israel building a
security wall on Israeli territory or the border, rather than inside the
occupied Palestinian territories. -Published 12/7/2004©bitterlemons.org
Ghassan Khatib is coeditor of bitterlemons.org and
bitterlemons-international.org. He is the Palestinian Authority minister of
labor and has been a political analyst and media contact for many years.
Two courts ruled on Israel's security fence project within a period of
ten days. The difference between the two rulings is no less than cosmic,
thereby demonstrating just how relative justice can be.
Israel High Court of Justice ruled on June 30 that Israel is entitled to
build a security barrier on West Bank territory in order to defend itself
against Palestinian suicide bombers. It has the right to employ security
criteria in building the fence, but it is also responsible for the welfare
of the Palestinian civilian population that is affected by the fence. Hence
the need for proportionality, which dictates that in some areas the fence
must be moved to accommodate Palestinian needs, even at the cost of Israeli
International Court of Justice (ICJ) at The Hague ruled on July 9 that
an Israeli "separation wall" built on occupied territory is illegal and must
be dismantled. Those harmed by it must be compensated. The rest of the world
must ensure that Israel complies.
One can find fault with the Israel High Court for intervening so little
and so late with regard to Israeli activities in the territories: for
example, essentially ignoring the broader legal ramifications of the
settlement movement. But its current ruling, which is binding upon the
government, is an impressive exercise in judicial review regarding Israeli
security considerations. The three High Court judges, led by Chief Justice
Aharon Barak, were clearly cognizant of the delicate nature of their role:
"We are aware that in the short term, this judgment will not make the
state's struggle against those rising up against it easier. But . . . at the
end of the day, a struggle according to the law will strengthen [Israel's]
power and her spirit."
In contrast, the ICJ's recommendation, entitled "Legal consequences of
the construction of a wall in the occupied territories," appears to most
Israelis as a parody of justice. Even the ICJ's insistence on calling the
fence a "wall," when only about six percent of the structure built so far is
wall and 94% fence, reflects the court's apparent disregard for the
objective truth. Notably, the 15 justices at The Hague explain this semantic
choice by citing the language of the United Nations General Assembly
resolution that empowered it to discuss the "wall". (Even Secretary General
Kofi Annan uses the term "barrier", not wall.) In other words, in case we
forgot, the ICJ was acting as an arm of that most politicized of
international bodies, the UN General Assembly, where the Arab bloc can
command a majority on nearly any issue.
Nor does the ICJ in any way even attempt to discuss Israel's security
rationale for building a fence. In more than 50 pages of learned
deliberation, Palestinian suicide bombings are not mentioned. Israel is told
that it may not take measures to defend itself in the West Bank.
At ground level, the net effect of the two rulings will be to move the
fence back toward the green line. That is a welcome outcome; it should be
applied in Jerusalem as well. To a major extent, the mess Israel finds
itself in is a result of Prime Minister Ariel Sharon's misbegotten
settlement and fence-building policies. In retrospect it might also have
benefited Israel to participate in the ICJ deliberations rather than boycott
them: the result would probably have been the same, but at least we could
have laid out the security rationale of the fence, rather than relying on
the justices' total lack of understanding of the security issue.
At the international political level, it is not at all clear whether or
not the ICJ's recommendation will have practical consequences for Israel and
Israelis. Will the approaching discussion of the court's recommendations in
the General Assembly and possibly the UN Security Council succeed in casting
Israel as a pariah state? Will Israeli fence-builders and fence-planners now
be subject to prosecution abroad? Clearly the Palestinian Liberation
Organization has won a political victory--but will the ICJ's condemnation of
the fence also encourage suicide bombers to redouble their efforts to kill
Both court decisions find that Israel has abused the fence. The Israel
High Court of Justice framed its balanced findings within the admirable
determination that "satisfying the provision of the law is an aspect of
national security." The ICJ effectively ignored Israel's national security.
That is a bitter lesson for Israelis.-Published
Yossi Alpher is coeditor of bitterlemons.org and
bitterlemons-international.org. He is a former director of the Jaffee Center
for Strategic Studies at Tel Aviv University and a former senior adviser to
PM Ehud Barak.
Even prior to its ruling on the illegality of the wall, the International
Court of Justice (ICJ) was denounced by Israeli government pundits as a
"kangaroo court." After the ruling, one commentator opined, "The court is
biased," while another proudly proclaimed that the
ICJ decision would "find its place in the garbage can of history." The
same stance was not, however, taken with respect to the
Israel High Court decison. Justice Minister Yosef Lapid aptly summarized
Israel's position on these two decisions: "We will comply with our High
Court decisions, and not with the International Court, whose decision is in
any case a legal opinion for the United Nations." Herein lies the
fundamental problem: Israel reserves the right to act both as defendant and
judge of any suit against it and will not accede to independent adjudication
of its crimes.
It would be easy to dismiss the decisions of the Israel High Court on the
basis of its track record. This is the same court that has failed to outlaw
completely the use of torture against Palestinians; legitimized the presence
of Jewish-only colonies built on stolen Palestinian land (now a war crime
under international law); and legitimized the demolition of homes of
suspected offenders and their families as a form of punishment (a tactic
also used by Saddam Hussein in Iraq).
Yet this decision of the Israel High Court should not be dismissed
outright. The court rightfully acknowledges that Israel is in "belligerent
occupation" of the West Bank and Gaza Strip and correctly demands that
Palestinians be compensated for Israel's illegal actions. In an eloquent
statement, the court noted, "Only a separation fence built on a base of law
will grant security to the state and its citizens. Only a separation route
based on the path of law will lead the state to the security so yearned
Remarkably, despite this statement, the High Court failed to do the very
thing that it was asked to do--determine a wall route based on the law. Why?
Not because of malice on the part of the court but due to the fact that the
court is, in essence, adjudicating the very crime that its authorizing state
claims is for its benefit. "Our task is difficult," Justice Barak writes,
"We are members of Israeli society." This statement speaks volumes.
In determining what impact Israel's actions have on Palestinians, the
High Court examines only what is best for Israel (a country that was not
only built on the dispossession of others but has, for 37 years, tried to
expand its territory) and not the rights of the people subjugated by Israel.
In other words, the application of international law (with its inherent
principles of justice and equality) is optional, not obligatory.
Because the Israel High Court views international law as optional, it
fails to contest the military establishment's pronouncement that the wall is
necessary. More importantly, the High Court fails to adjudicate the most
important questions: Why has Israel not built the wall on its pre-occupation
border (the green line)--a shorter and more easily defended line? What is
the link between the wall and the colonies? If the wall is truly about
security, why will the proposed path of the wall leave more than 200,000
Palestinians trapped between the wall and the green line? It is therefore
not surprising that the High Court only confined itself to calling for
moving (not removing) a mere 30 km of the wall (less than 5% of the total
length of the wall) because of the "disproportionate injury" caused to the
Juxtaposing the ICJ's decision with that of the Israel High Court, one
can clearly see the far-reaching power of an independent ruling based on
international law versus one based on domestic politics. The world court
correctly pronounced on the most basic (yet disputed) issues faced by
Palestinians: that Israel is, indeed, in occupation of the West Bank and
Gaza Strip (which Israeli government officials cannot even acknowledge);
that the colonies are illegal, irrespective of whether they are in Jerusalem
or otherwise; and that Israel has flagrantly violated the law for decades.
The world court went further than simply restating the law--it applied
it. By examining the current and proposed path of the wall, the 14-1
decision noted the following salient facts. The wall has been routed around
not only the colonies but also their planned expansion, in an attempt to
leave 80 percent of the settlers (320,000 Israelis) living in the West Bank
colonies. More than 200,000 Palestinians would remain trapped between the
wall and the green line. Of the more than 650-kilometer wall, only six
percent (39 km) would be within 100 meters of the green line. Over 16% of
the western side of the Occupied West Bank would be "de facto" annexed into
With these staggering facts, the ICJ could only conclude that the wall
built in occupied Palestinian territory is not there for military necessity;
it is there to consolidate Israel's hold on the colonies. Though "security"
is the proffered excuse, coveting Palestinian land (and water) is the real
reason behind the wall. Because the colonies are illegal, so too is the very
structure that is designed to ensure Israel's hold on them--the wall.
Unlike the Israel High Court, the world court did not confine itself to a
mere 30 km stretch of wall. It demanded that Israel demolish the entire wall
built in occupied Palestinian territory; return the land, orchards, and
olive groves it seized to build the wall; and pay compensation to
Palestinians for all damages and losses.
The victory of the World Court decision lies not in the decision itself
but in the reframing of the conflict. No longer is this an issue of two
equal parties who cannot get along; it is about Israel's 37-year military
occupation and the inherent power imbalance. Many will dismiss the case as
"non-binding," and indeed, the decision is non-binding. However, the
decision is based on law that is binding: UN resolutions and international
humanitarian law. Accordingly, the World Court's ruling affects not only
Israel but also the international community.
Israel has, for 56 years, viewed itself as above the law and the
Palestinians beneath it. That will not change. Israel will continue to
trample on the Palestinians' rights. It will continue to build Jewish-only
colonies on Palestinian land, and it will continue to build the wall--unless
it is stopped. The real test will be not what Israel does but what the
international community will do: will it apply the power of law or the law
I recently relayed to a friend Israel's labeling of the World Court as a
"kangaroo court." "If it is," he responded, "it is only because even a
kangaroo would recognize that the wall is illegal." It is a pity that the
Israel High Court did not.-Published 12/7/04©bitterlemons.org
Diana Buttu is a legal advisor in the Negotiations Affairs Department of the
Palestinian Liberation Organization.
bitterlemons: How do you explain the radical difference between
the fence decisions/recommendations of the
Israel High Court of Justice and
The Hague International Court of Justice?
Eitan: The subject we are dealing with is not purely judicial. As
a matter of fact, every judicial expert will tell you that you cannot
disconnect the judicial process from its social, human, and economic
environment. This is one of the cases that can demonstrate how two
independent judicial systems come to different conclusions based on the same
set of facts. The international court was constrained from the beginning by
the way the case was presented for its judgment. The international court did
not use the judicial tools that the Israeli court used.
bitterlemons: Let's begin with the Israeli court.
Eitan: The Israeli court used the mechanism of balancing between
two principles and rights. On the one hand, the right of Israel to defend
itself from terrorism, its right of self defense, and its humanitarian
approach that justifies measures in order to save lives--and there is no
doubt the fence has succeeded in saving lives. And on the other, the fact
that the fence caused inconvenience and damage and was a massive intrusive
element in the lives of groups of people. The question the Israeli court
dealt with was the best route to balance these two factors.
bitterlemons: And the international court?
Eitan: The international court decided to concentrate on another
issue and deal with the fence through the question of the rights of an
occupying power. By ruling that Israel should destroy the present fence and
move it to the green line, the international court took a one-sided and
extreme decision that is political because it prefers the political aspect
over the security aspect.
bitterlemons: What could the Sharon government have done to
prevent the decisions?
Eitan: Regarding the Israel High Court of Justice decision, they
could do nothing. Israel is a democracy committed to the rule of law, and
High Court decisions are binding for the government. In The Hague, Israel
had no chance of getting a fair and reasonable comprehensive approach to the
The whole idea of building the fence was a response to barbaric terrorist
acts. Around 1000 Israelis were killed and thousands wounded before Israel
started to build the fence. The court didn't mention this and did not note
the terrorist phenomenon, which was the only reason to build the fence. As
Israelis we can say that in spite of the inconvenience and even humanitarian
suffering that the fence has caused to many Palestinians, it has saved
hundreds of Israeli lives and the same number of Palestinian lives: after,
every suicide bomber succeeds in taking Israeli lives, Israel responds by
launching attacks on Palestinian villages and terrorist centers that also
take a toll in Palestinian deaths.
bitterlemons: What can the Knesset and your committee do in the
Eitan: Our committee deals with many aspects of the Israeli
presence in the West Bank. We try to do our best to maintain human rights
even in the war against terrorism, and are supervising the conduct of the
Israeli security forces in the West Bank and trying to influence this
conduct according to morality and international law. When you are fighting
terrorism you face very complex dilemmas.
Now, after the courts have had their say, the issue becomes a political
one. We have to remember that the Israeli court decision is binding on the
Israeli government, but The Hague court decision is only a recommendation
and doesn't bind Israel. The decision will be transferred to the
international political arena, to the United Nations, presumably by the
Palestinians and their supporters. This is the next arena where Israel will
have to fight against the practical results, if there are any, using
political tools. I hope that the many democracies that opposed or expressed
reservations regarding The Hague judicial process will now make more effort
to block any attempt by the UN to impose sanctions on Israel.
bitterlemons: Will the fence end up on the green line?
Eitan: I don't think it's possible for Israel. The Hague court
didn't take into consideration the fact that there are many Jewish
settlements near the green line that Israel should protect. There are more
than 100,000 Jews living on territory that, according to international and
Israeli law, is beyond the green line but is still under the authority and
jurisprudence of the State of Israel. Taking this position and ignoring the
political dispute is an attempt to isolate the judicial process from real
life on the ground; it risks the lives of more than 100,000 Jews that are
living adjacent to the green line, for whom the fence on its planned route
is their only security guard.
We have to take into consideration that almost everyone in the area and
in the international community that has some involvement in the continuous
dialogue between the Palestinians and the Israelis knows that under any
final status agreement this dense Jewish population will be included within
the sovereignty of Israel. We are talking about territories that constitute
perhaps four or five percent of the West Bank.-Published
Member of Knesset (Likud) Michael Eitan is chairman of the Knesset
Constitution, Law, and Justice Committee.