Last week, upon a request from the U.N. General Assembly, the International Court of Justice in the Hague, the Netherlands, issued its advisory opinion that the 140km long barrier under construction by Israel is illegal, and that "all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction." The court also called on the U.N. General Assembly, and especially the security council, to take necessary actions to "end the illegal situation resulting from the construction of the wall and the associated règime."
In this posting, I shall present my personal perspective on the question of whether or not Israel has the right to build the barrier.
It has been customary for Israel to engage in cycles of incursion and withdrawal along with systematic destruction of Paletinian houses, every time it was attacked by suicide bombers. However, a little less than a year ago, Israel gradually started shifting its policy in dealing with Palestinians from launching grand-scale retaliatory responses to taking defensive preventive measures, and at times taking preemptive offensive strikes with surgical accuracy. The elimination of two of Hamas leaders was part of this shift in policy, and so was the decision to build a 140km long barrier that separated Palestenian residential areas from Israeli territories. The wall in certain parts even ran through Paletinian owned lands and deviated from the so-called "green line" established under the 1949 Armistice.
The construction of the barrier created a lot of controversy, and even Isreal's closest ally, i.e. the U.S., expressed concerns that the construction of the barrier would undermine "the road map" - the peace initiative backed by the so called Quartet comprising the U.N., U.S., E.U., and Russia. On October 20, 2003 the League of Arab States requested an emergency meeting of the U.N. General Assembly to dicuss the wall. On October 21, the assembly passed a resolution, the draft of which was proposed by Italy on behalf of the European Union, demanding the cessation of the wall's construction. On December 8, 2003, the General Assembly requested an advisory opinion from the International Court of Justice on "the legal consequences arising from the construction by Israel of a wall in the Occupied Palestinian Territory."
Israel, of course, questioned the legality and jurisdiction of this court before the court even started its deliberations, and refused to take part in the hearings. After the court issued its opnion, Israel called it "one-sided", and politically motivated. The U.S. and the U.K. also suggested that the court should abstain from making any ruling regarding the wall, which they claimed would complicate the road-map negotiations.
About ten days before the ICJ issued its opinion, on June 30, 2004 Israel's high court had ruled that the barrier infringes on the lives of some 35,000 Palestinians, and that the government should therfore reroute a 30km segment of the wall.
Israel's Point of View
The Israeli government claims that the wall is a defensive measure aimed at stopping suicide bombers to enter Israeli towns and killing innocent civilians. They have long been arguing that the Palestinian security forces are unable or unwilling to take measures to stop suicide operations against innocent civilians launched by millitants belonging to all sorts of factions many of which are out of the control of the Palestinian authority, and supported by States such as Syria and Iran.
That, in fact, has always been cited as the main reason why Israel had to make repeated incursions into Palestinian towns; to do the job Arafat's security forces failed to do, and to destroy houses that Israel claimed sheltered the suicidal terrorists. The wall, they say, is a non-violent alternative to such incursions, that would spare the lives of many innocent Israeli citizens, as well as the lives of those Palestinians who were part of the collateral damage caused by Israeli air and ground assaults against the terrorists.
The Counter-Israeli Point of View
From a legal standpoint, Israel and Palestine are still officially in a state of territorial dispute. An internationally recongnized border for the State of Israel has not yet officially been determined and agreed upon. Building a wall, no matter where it is built, is seen as a unilateral move that sets an unfair pretext for any further negotiations. Furthermore, the route of the wall even violates the "green-line" that signifies a de facto border between Israel and Palestine. The Palestinian politicians say, the construction of the wall is nothing but an outrageous land grab.
The construction of the barrier will also have devestating implications for the Palestinian people. Many people will be denied access to public places such as hospitals and schools. Many families will be separated on the two sides of the wall, much like what happened after the construction of the infamous wall in Berlin. Some farmers have been, or soon will be, out of business simply because the wall denies them access to their own gardens and farming lands.
To build or not to build
The issue is clearly controversial, and although the international community seems to be generally against the construction of the wall, even those who oppose it do not quite agree on practicalities. This even applies to the panel of fifteen judges that presided over the ICJ court. Two of the judges (including Pieter Kooijmans from the Netherlands) did not vote for the article that mandated all states to not recognize and support the construction of the barrier.
However, I personally think the issue isn't really about the existence of such a barrier. My personal opinion on this matter is based on three assumptions:
I believe Israel does in fact have the right to build the wall to protect its citizens. As the Dutch judge has also stated in his separate opinion, the court has indeed failed to address the security concerns of the Israeli government. However, I think Israel has chosen the wrong policy in defending its right to self defense. Instead of refusing to take part in the hearings, they could have made a strong case for the construction of the wall. They could have used the Israel's high court's ruling to demonstrate that they do not intend to grab land and that they are willing to make further compromises in the route of the wall or the passage regime.
Also, they have to realize that although the wall might ultimately lessen the suicide bombing rates, it will not stop the Palestinians - with the help of others - from comming up with alternative ways of inflicting harm on Israelis. If Israel really wants to make peace, then they first have to learn to put aside unilateralism; a habit they seem to have picked from their American friends. At the moment, Israel heavily relies on the adamant support from the United States. They have to understand that America's fanatic support for them aggrevates more hatred towards Israel as well as the United States itself. If you look at the results of individual votes of the fifteen ICJ judges, you will see that except for the question of jurisdiction, the American judge has consistently voted against all the rulings of the court. It is ironic that the ICJ has cited the reason for its unanimous vote on the jurisdiction matter as the U.N. security council's failure to deal with the issue due to America's vetoing of security council resolutions against Israel.
I believe Israel should adopt a more open and affirmative policy in dealing and interacting with the international community. As long as it ">clings to the U.S. to put itself beyond and above any international law, neither them nor the Americans can expect the international community to deal with issues like this wall reasonbaly, as well as issues such as Iran's nuclear capabilities, or its support for groups like Hizbollah in a decisive manner. The real war on terror, I believe, should begin with the cessation of political bigotry and unilateralism.