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Middle East Roundtable / Edition 4 Volume 1

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What did you do today, to promote peace?

The courts and the fence/wall
  • Pathetic reactions by US, Israel
    by Ghassan Khatib
    Washington's dismissive reception of this opinion has a destructive effect on the ongoing Palestinian debate.
  • A bitter lesson
    by Yossi Alpher
    In more than 50 pages of learned deliberations, Palestinian suicide bombings are not mentioned.
  • On kangaroos and courts
    by Diana Buttu
    Will the international community apply the power of law or the law of power?
  • The Hague ignored the security aspect
    a conversation with Michael Eitan
    The fence has saved hundreds of Israeli lives and the same number of Palestinian lives.
Pathetic reactions by US, Israel
by Ghassan Khatib

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.

A bitter lesson
by Yossi Alpher

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.

The 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 security.

The 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 Israelis?

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 12/7/2004©bitterlemons.org

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.

On kangaroos and courts
by Diana Buttu

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 for."

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 Palestinians.

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 Israel.

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 of power?

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.

The Hague ignored the security aspect
a conversation with Michael Eitan

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 problem.

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 current situation?

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 12/7/2004©bitterlemons.org

Member of Knesset (Likud) Michael Eitan is chairman of the Knesset Constitution, Law, and Justice Committee.

Bitterlemons-international.org aspires to engender greater understanding about the Middle East region and open a new common space for world thinkers and political leaders to present their viewpoints and initiatives on the region. Editors Ghassan Khatib and Yossi Alpher can be reached at ghassan@bitterlemons-international.org and yossi@bitterlemons-international.org, respectively.

hagalil.com 27-02-2004



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