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World Court Says Security Fence is Illegal, but Israel Rejects Opinion

July 12, 2004
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The Jews were outraged, perhaps, but not surprised. For months, Israel had been bracing for a negative ruling on its West Bank security barrier from the International Court of Justice at The Hague, and last Friday it came — with no criticism of the Palestinian terrorist onslaught that prompted Israel to build the fence.

Israeli officials rejected the ruling that the barrier is illegal and said they had no intention of dismantling it. Though it’s only partially complete, the fence already has saved thousands of lives, they say, pointing to statistics that show a dramatic decrease in Israeli casualties since construction of the fence began.

American Jewish officials were outraged by the ruling on the fence.

The struggle now moves from The Hague to the U.N. General Assembly and the Security Council in New York.

Palestinian Authority officials, who hailed last Friday’s ruling as “historic,” said they were determined to bring! the matter to the United Nations, where they will seek sanctions against Israel. Any such move is almost certain to encounter an American veto in the Security Council.

Prime Minister Ariel Sharon met Sunday with his Cabinet and top advisers to discuss Israel’s next moves.

The main focus for Israel now will be limiting damage in the General Assembly and preventing any operative steps by the Security Council. The challenge will be to get as many Western countries as possible to oppose a sharply worded anti-Israel resolution in the General Assembly, or action in the Security Council.

Foreign Minister Silvan Shalom discussed the issue with U.S. Secretary of State Colin Powell during a recent visit to Washington, and Shalom reportedly was reassured.

In White House comments after the court ruling, spokesman Jim McLelland hinted that the United States did not consider the United Nations an appropriate forum for resolving the fence issue. It was, he said, a politic! al problem that should be resolved in an Israeli-Palestinian political process that already exists.

In its non-binding advisory opinion, the International Court of Justice, a U.N. body, ruled that the barrier contravenes international law, that parts of it built on Palestinian land must be dismantled and that Palestinians whose land was confiscated must be compensated.

The court said that the barrier could impede the Palestinians’ right to self-rule.

“The Court considers that the construction of the wall and its associate regime creates a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization by Israel, it would be tantamount to de facto annexation,” the court said.

But Israel argues that the fence is a legitimate means of self-defense and that the court had no jurisdiction to rule on what is essentially a political conflict.

The court acknowledged that Israel has a right to self-defense, but ruled that it doesn’t include building parts of the fence beyon! d the Green Line — the armistice line that served as a boundary between Israel and the West Bank from the 1948 War of Independence to the 1967 Six-Day War — or causing the Palestinians humanitarian hardship.

In a statement made last Friday afternoon while the court president was still reading the ruling — the gist of which had been leaked earlier — Israeli Foreign Ministry spokesman Yonatan Peled noted that more than 1,000 Israelis have been killed in more than 20,000 Palestinian terror attacks since the intifada began in September 2000.

“No other country would have acted differently in the face of such a criminal campaign,” he said, adding that since the portions of the fence have been built, the number of victims has dropped sharply. “The fence works,” Peled said. “It is a temporary, non-violent security measure and it saves lives.”

The General Assembly sent the issue of the separation fence to the court last December, asking it to prepare an advisory opini! on on the “legal consequences arising from the construction of the wal l in the Occupied Palestinian territory.”

Israeli officials say the language of the request essentially prejudged its outcome: The Palestinians call the barrier a wall though over 90 percent of it actually is a fence and could be moved. Israel also does not consider the West Bank “Occupied Palestinian territory” but rather “disputed territory” whose status must be determined in negotiations, as per Security Council Resolution 242, which has guided Israeli-Arab peace talks for the past 25 years.

Considering the way the General Assembly presented the issue to the court, Peled said, it was no surprise that the court ignored the heart of the problem and the very reason for the fence: Palestinian terrorism.

“Without terror there would be no fence,” he said.

The issue of moving or dismantling the fence is political and can be resolved in direct negotiations between the parties once terrorist attacks end, Peled said.

On Sunday, the Palestinian terrorist group Al-! Aksa Brigade bombed a bus stop in Tel Aviv, killing a female Israeli soldier. Elsewhere, construction on the fence continued.

Peled said there was no need for outside interference on the issue of the fence since Israel’s own Supreme Court ruled recently that parts of the fence should be rerouted to better balance Palestinian humanitarian considerations with Israeli security needs.

Dore Gold, a former Israeli envoy to the United Nations and now an adviser to Sharon, told JTA that while Israel respects international law, it opposes the politicization of international bodies such as the International Court of Justice.

“The terms of reference that the court was given by the U.N. could only result in a decision that was tantamount to the outlawing of the shield, while condoning the continued use of the sword,” he said.

Gold pointed out that more than 30 countries, most of them Western democracies, were opposed to having the court deal with the issue. For its part,! Israel refused to appear before the court when it held oral hearings on the issue in February.

“There is broad opposition among Western allies to the corruption of the ICJ and using it as a political weapon in lieu of political negotiations,” he said.

But that could be wishful thinking: The European Union seemed to endorse the court’s ruling, urging Israel to remove those parts of the fence built beyond the Green Line.

Palestinian leaders were overjoyed at the ruling. Palestinian Authority President Yasser Arafat called it a “victory for justice,” while P.A. Prime Minister Ahmed Qurei described the ruling as “historic.”

The Israeli political spectrum was divided.

Opposition legislator Yossi Sarid, of the left-wing Meretz-Yahad Party, accused the government of making every conceivable mistake in building the fence.

“It should have been built along the Green Line, and it never would have got to The Hague,” he said.

But remarks by Justice Minister Yosef “Tommy” Lapid, of the centrist Shinui Party, seemed to capture the! national mood in Israel more accurately.

“It’s absurd that when we build a fence to protect our civilians, the people accused in the international court are not the terrorists, not the murderers, not the aggressors — but the victims,” he said.

The International Court of Justice Opinion can be read here:

Leslie Susser is the diplomatic correspondent for The Jerusalem Report.

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