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