The following are the main points of this article:
The UN General Assembly (GA) resolution asking the International Court of Justice (ICJ) for an advisory opinion is actually a request for an endorsement of an already-stated political opinion of the GA. The ICJ lacks jurisdiction over the case because the GA has dictated the desired result. The court is not authorized to make endorsements of the GA's political opinions dressed in legal garb.
The security fence is a necessary and proportional response to a campaign of genocide, crimes against humanity, and war crimes by Palestinians. If the fence were built along the 1949 armistice line (the "green line"), it would not achieve Israel's legitimate security goal of protecting its citizens.
The "green line" from 1949 bounding the West Bank is solely a defunct military line demarcating the extent of the Transjordanian invasion of Israel in 1948. Indeed, at the insistence of Syria, Egypt, and Jordan, each of the armistice agreements of 1949 specified that the ceasefire lines were not borders and that neither side relinquishes its territorial claims.
The fence does not violate the Fourth Geneva Convention because the convention does not apply to the West Bank, a territory of disputed sovereignty to which Israel has the strongest claim, and which was not previously possessed by a legitimate sovereign.
Even if the convention applied, a fence that controls movement of civilians does not violate it; the convention permits occupying states to take necessary and proportional steps for security purposes.
The resort to the International Court of Justice by the PLO is itself a violation of the Oslo Accords. Under Oslo, any disputes must be resolved by negotiation between Israel and the Palestinians, by agreed-upon conciliation, or agreed-upon arbitration.
The International Court of Justice (ICJ, or World Court) is currently considering the legality of the Israeli security fence under construction to prevent terrorists from crossing into Israel and into Israeli towns from Arab areas in the West Bank.1 The case was initiated by a request to the court from the United Nations (UN) General Assembly (GA), the political body that includes all the member-states of the UN.2
The GA asked the court to address the following question:
What are the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem...considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?
The court ordered legal briefs to be submitted by January 30, 2004, and scheduled oral arguments for February 23, 2004. It did not set a date for a decision, but the GA requested an answer to the question "urgently," so a decision can be expected by the second quarter of 2004.
Although the ICJ proceeding is, in reality, a political attack on Israel's right to self-defense, this essay addresses the legal issues involved. As will be demonstrated below, the security fence comports with international law because it is a necessary and proportional response to a campaign of terror against Israeli civilians, does not violate any provisions of the Fourth Geneva Convention of 1949 (if the convention can even be said to apply to the situation) or relevant UN resolutions, and is in accord with signed agreements between Israel and the Palestinians.
Why Israel is Building the Security Fence
Since the early 20th century, the Jewish community in what is now Israel has been subjected to terrorist attacks by Palestinian Arabs, attacks that continued after the founding of the State of Israel in 1948. Terrorist attacks increased markedly in 1994, upon the entry of armed forces of the Palestine Liberation Organization (PLO) into the West Bank and Gaza, as part of the Israeli-Palestinian peace process. Palestinian terrorism then surged in 2000 with the outbreak of the current armed conflict, labeled the "al-Aksa intifada" by the Palestinians. The violence began in the aftermath of Yassir Arafat's rejection of an offer for a settlement of the Israeli-Palestinian conflict at Camp David in the summer of 2000. After a subsequent trip through Europe and Russia to rally support for a declaration of a Palestinian state failed, Arafat used the pretext of Ariel Sharon's visit to the Temple Mount in September 2000 to launch a sustained campaign of terror against Israelis.
Since September 2000, Israel has suffered 19,000 terrorist attacks, with 900 Israeli citizens killed and thousands wounded.
Since September 2000, Israel has suffered 19,000 terrorist attacks, with 900 Israeli citizens killed and thousands wounded. Terrorist groups responsible for these attacks include the Fatah organization and its Al-Aksa Martyrs Brigade, the Popular Front for the Liberation of Palestine (PFLP), Palestine Islamic Jihad (PIJ), and Hamas. Throughout the West Bank and Gaza, as well as Israel proper, these organizations have sent suicide bombers to murder Israeli civilians in buses, cafes, and places of worship; they have used snipers to shoot at Israeli civilians in their homes and vehicles and even in baby carriages; and they have invaded homes and seminaries in order to carry out shooting sprees. These attacks have been fomented through propaganda disseminated in the Palestinian media, including in speeches by religious leaders broadcast on official Palestinian television.
Israel has taken various measures to deter and prevent such attacks, including full-scale re-deployment into areas previously evacuated as part of peace negotiations. For example, following a wave of Palestinian terror attacks that killed 120 people in March 2002, Israel initiated Operation Defensive Shield, which resulted in counter-terror operations in Nablus, Jenin, Ramallah, Tulkarm, Bethlehem, and Kalkilya. Construction of a security fence began shortly thereafter. The fence currently covers most of the northern and one-third of the western West Bank.
According to figures supplied by the Israeli government, the fence has undoubtedly saved lives. For example, between August 2001 and August 2002, 58 people were killed or wounded in the Israeli towns of Afula and Hadera, near the West Bank Arab towns of Jenin and Tulkarm. Since the fence went up in that area, only three Israelis have been killed. Similarly, there was a drop from 17 successful terror attacks launched from the northern West Bank into Israel from April to December 2002 down to only five attacks from the area during all of 2003, following construction of the fence. Furthermore, a fence has proved its utility in Gaza, where one has existed since 1996, resulting in few Gaza residents participating in terrorist attacks within Israel. The security fence, therefore, plays a crucial role in Israel's fight against the genocidal terror campaign against its citizens.
The Court's Jurisdiction to Address the Question
The security fence has been challenged through the mechanism of the ICJ's advisory jurisdiction, which grants it the authority to issue opinions even though there is no actual case or controversy at hand.3 The court is empowered under its statute and the UN Charter to issue opinions "on any legal question" referred to it by the Security Council, the General Assembly, or various UN agencies.4 Such an opinion of the court is not binding on any states in a strict sense because it does not apply to a particular dispute, but nevertheless carries weight as an authoritative articulation of international law.
However, the advisory jurisdiction in this case has not been properly invoked, since the GA resolution purporting to request an advisory opinion is not really a request for a legal opinion at all, but, rather, a request for an endorsement of an already-stated political opinion of the GA. The very first paragraph of the resolution "reaffirm[s]" a resolution of six weeks earlier which stated that "construction of the wall...is in contradiction to relevant provisions of international law" and demanded that Israel stop and reverse construction.5 While the ICJ is authorized to issue advisory opinions, it is not authorized to make endorsements of the GA's political opinions dressed in legal garb.
Moreover, even if the court has jurisdiction, it can decline to address a case. Under its own understanding of its authority, for example, the court can refuse to take jurisdiction for "compelling reasons."6 A number of factors raise compelling reasons for declining to address the legality of the security fence.
First, and most importantly, the political bodies of the United Nations are already involved with the conflict between the parties to the alleged legal question. The latest plan for peace between the parties, for example, is the Road Map, which was signed by Secretary-General Kofi Annan on behalf of the UN and endorsed by him in public comments.7
Second, even ignoring the resolution in which it is contained, the request to the court is actually a political statement and not a legal request. For example, it refers to the West Bank as "occupied Palestinian territories" and to Israel as "the occupying power," even though the status of the territories is a legal question that the GA is not competent to decide. Likewise, the security fence is referred to as a "wall," although more than 97 percent of the planned length of the security barrier will be made of a chain-link fence.
Third, the request misstates the legal standards applicable to the conflict. For example, the request refers to the armistice lines of 1949 as if they demarcate lines of sovereignty, even though those lines have no status as boundaries in international law (as discussed in detail below). In fact, the request contradicts itself on the law, citing binding Security Council Resolutions 242 and 338, which require a negotiated settlement of the conflict and demarcation of final borders and recognize Israel's right to "recognized and secure boundaries," while also citing non-binding General Assembly resolutions that refer to the West Bank and Gaza as "occupied."
Fourth, the court would undermine its own legitimacy if it were to address the case. As the foregoing analysis demonstrates, this is not a legal question, but rather a political question in legal garb, motivated by political considerations rather than a genuine uncertainly about the law, and is part of a political strategy to delegitimize Israel that has been pursued relentlessly in the GA. Accepting jurisdiction would needlessly and perniciously involve the ICJ in this political dispute.
For all these reasons, the court should find that it lacks jurisdiction and decline to accept jurisdiction even if available.8 Nevertheless, should the court accept jurisdiction, it should find that the fence does not violate international law, for the reasons described below.
The Security Fence is a Necessary and Proportional Response to Palestinian Terror
The terrorist campaign against Israeli civilians constitutes genocide, crimes against humanity, and war crimes.
All states possess an inherent right to self-defense in international law, as expressly recognized in Article 51 of the UN Charter. Actions taken in self-defense must nevertheless conform to customary international law principles of military necessity; that is, they must be directed at achieving a concrete military advantage over an enemy, and they must be in proportion to the threat.9 Given the nature of the terrorist campaign against Israel, the fence definitely meets these requirements.
The terrorist campaign against Israeli civilians constitutes genocide, crimes against humanity, and war crimes. As stated in the Genocide Convention and in the statute of the International Criminal Court (ICC), genocide consists, in pertinent part, of murder or causing serious bodily or mental harm "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."10 The extensive and on-going suicide bombings and other terrorist acts are committed with the requisite intent, as demonstrated in the exhortations to kill all Israelis and Jews broadcast on Palestinian television, and by public statements by key Palestinian figures. Crimes against humanity are similar acts "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."11 Again, the terrorist acts committed by Palestinians forces are part of a continuous, organized campaign against Israeli non-combatants.12 Finally, the attacks constitute war crimes, defined as intentional attacks against civilians during an armed conflict.13 The legal status of Israel's "occupation" or of Israeli settlements in the West Bank and Gaza does not change this analysis. As Human Rights Watch has stated, "The illegal status [sic] of settlements under international humanitarian law does not negate the rights of the civilians living there. The fact that a person lives in a settlement, whether legal or not, does not make him or her a legitimate military target."14
In the face of the crimes described above, the security fence is clearly a necessary and proportionate use of force. First, the only effect of the fence is to control and, in some cases, limit the movement of the civilian population, both necessary to prevent terrorist attacks. Palestinian terrorists routinely disguise themselves as civilians, including pregnant women, hide bombs in ambulances, feign injuries, and sequence bombs to kill rescue workers responding to an initial attack. The fence and associated checkpoints are therefore crucial to deterring and detecting terrorists among the civilian population.
Second, no less-intrusive construction, such as building the fence along the 1949 armistice line, can achieve Israel's legitimate military goals. A barrier along the armistice line would expose motorists along the main Jerusalem-Tel Aviv highway to Palestinian sniper fire near the Latrun salient and would recreate the division of Jerusalem that existed from 1949 to 1967, when Israeli civilians were repeatedly attacked by snipers from the Jordanian-controlled side of the line. Additionally, this would expose Israeli civilian aircraft landing and taking off from Israel's international airport in Lod to shoulder-launched missile attacks from Palestinian terrorists in the Benjamin region of the West Bank.
Third, the Palestinian claim that military necessity would be better served by expelling 320,000 Israeli civilians from their homes in east Jerusalem and the West Bank is not credible. Even if the Palestinians were correct that it is illegal for Israel to permit Jews to move to the West Bank and Gaza, nothing in international law imposes a death penalty upon settlers or requires evacuation of civilian targets of terrorists in preference to limiting the movement of suspected terrorists themselves.
Fourth, the fence as currently constructed already represents a substantial concession of Israel's security goals. As admitted by the UN Secretary-General, the planned fence places the vast majority - more than 80 percent - of West Bank and east Jerusalem territory on the "Palestinian side" of the fence.15 In fact, numerous Israeli civilian residents of the West Bank, as well as Israeli civilian motorists in transit on West Bank roads, will remain exposed to Palestinian terror attacks. Since 2000, dozens of Israeli civilians have been killed by Palestinian terrorists in these areas on the "Palestinian side" of the line along where the fence is being built.
The fence is the least restrictive way to accomplish Israel's legitimate military goals
Finally, the fence is far less intrusive than security barriers used by other states in disputed and occupied territories. In order to block terrorist infiltrations, India is now building a barrier longer than Israel's security fence along the line of control separating Indian and Pakistani forces within disputed Kashmir. Importantly, this barrier is entirely within the disputed territory.16 Smaller barriers to prevent movement of potential terrorists and irregular combatants have been employed by allied forces occupying Iraq and the former Yugoslavia, often entirely surrounding and cutting off towns and cities from the rest of the occupied territory.
In sum, the fence is the least restrictive way to accomplish Israel's legitimate military goals and is in fact far less intrusive than other measures Israel could legitimately adopt to combat terror.