No. 513 23 Shevat 5764 / 15 February 2004
ISRAEL'S ANTI-TERROR FENCE:
THE WORLD COURT CASE
Laurence E. Rothenberg and Abraham Bell
- 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 twentieth 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. 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
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 Palestinian 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.
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.
Legal Status of the West Bank and Inapplicability of the Fourth Geneva Convention
Both the GA resolution and the question accepted by the court for advisory adjudication make tendentious reference to the West Bank as "occupied Palestinian territory." On this basis, the Palestinians claim that the Fourth Geneva Convention's rules of occupation forbid Israel to erect the security fence, and, further, that erecting it constitutes an illegal annexation of Palestinians' territorial sovereignty. In fact, however, neither the General Assembly's characterization nor the Palestinian assertions have any basis in international law.
Israel Has the Strongest Claim of Sovereign Rights in the West Bank
Sovereignty over the West Bank must be traced from the Ottoman Empire, which controlled the area encompassing territory now governed by Israel, the Palestinian Authority, Lebanon, Jordan, Syria, and Iraq, as well as parts of the Arabian peninsula until the end of the First World War. The Ottoman Empire and its successor, the Republic of Turkey, yielded these territories to League of Nations mandates supervised by Britain and France. The Mandate of Palestine, under British trusteeship, was a single territorial unit encompassing the territory now held by Israel and Jordan, including the West Bank and Gaza. The Mandate explicitly recognized that Palestine was to be the "national home" of the Jewish people and did not recognize political or sovereign rights of any other peoples in the territory.17 The Mandate permitted abridgement of Jewish rights only in parts of Palestine east of the Jordan River, and, indeed, in 1922, Britain set up this eastern territory under separate administration as the Transjordan and cooperated with the Hashemite tribe of the Arabian peninsula in setting up Hashemite rule.
After the Second World War, Britain sought to terminate the Mandate, which, by terms of the Mandate itself, would lead to the sovereignty of the now-established Jewish homeland in the territory west of the Jordan River. Given strenuous Arab objections to the creation of any Jewish state, however, Britain asked the GA to resolve the situation. In GA Resolution 181 of November 29, 1947, the GA recommended that Britain and other states adopt and implement a partition plan, under which the western territory of the Mandate would be further divided into two states - one Jewish and one Arab - as well as a small international zone.18 Jewish authorities in Palestine announced their acceptance of the plan and sought to implement it. Palestinian Arabs, however, rejected the plan and began attacks on Jewish civilian and military targets in mandatory territory.
Rather than implementing the partition, Britain simply withdrew its forces on May 15, 1948. Jewish authorities declared the creation of the new State of Israel, but no similar declaration of a state of Palestinian Arabs was announced. A coalition of Egyptian, Syrian, Lebanese, Transjordanian, and Iraqi troops invaded the territory of the former British Mandate with the declared intent of eliminating the Jewish state. At the war's conclusion in 1949, Syria remained in occupation of a small strip of territory of the former Mandate of Palestine on the eastern shore of the Sea of Galilee. Egypt occupied Gaza. Transjordan seized most of the Judean Desert, Samaria, and parts of Jerusalem, renaming these territories the "West Bank," annexed them (an act recognized only by Britain and Pakistan), and finally renamed itself the Hashemite Kingdom of Jordan.
A series of armistice agreements between Israel and the invading Arab states in 1949 then created ceasefire lines that left the Arab aggressors with their territorial gains intact. The agreements did not, however, grant sovereignty to the Arab states. Quite the contrary, at the insistence of Syria, Egypt, and Jordan, each of the armistice agreements specified that the ceasefire lines were not borders and that neither side relinquished its territorial claims.19
No new Arab state arose in Palestine, and the Palestinian Arab leadership continued to reject both the partition proposal embodied in Resolution 181 and the very existence of the new Jewish state. When the PLO was eventually formed in 1964, its charter called for the destruction of Israel and its replacement with an Arab state of Palestine, while specifically disavowing "any territorial sovereignty over the West-Bank (region) of the Hashemite Kingdom of Jordan, the Gaza Strip, or the Himmah area."20
Israel took control of the West Bank in June 1967 as a result of the Six-Day War, which had been prompted by Egypt's expulsion of UN peacekeepers, mobilization of troops for an invasion of Israel, blockade of Israeli ports, and threats to destroy Israel by force of arms. During the war, Israeli counter-offensives placed the entirety of the West Bank in Israeli hands, as well as Gaza, Sinai, and the Golan. No new formal armistice agreement emerged; however, a new ceasefire line along the old administrative Palestine-Transjordan boundary replaced the 1949 armistice line. In 1994, a peace treaty between Jordan and Israel established the international border between Israel and Jordan, in relevant part, along the Jordan River, thus restoring the administrative boundary of the British mandatory era, and leaving the ultimate fate of the West Bank to Israeli-Palestinian negotiations. While the treaty specified that the new boundary was "without prejudice to the status of any territories that came under Israeli military government control in 1967,"21 Jordan separately disavowed any claim of sovereignty over the West Bank.
Security Council Resolutions 242 and 338, adopted in the wake of the 1967 and 1973 Arab-Israeli wars, respectively, do not purport to change this situation. While 242 asserts the "inadmissibility of the acquisition of territory by war," it makes no statement about how this principle applies to the West Bank or any other specific territory.22 It neither affirms nor denies Israeli or Jordanian sovereignty. It does call for a negotiated peace that would include "withdrawal of Israel armed forces from territories occupied in the recent conflict" and respect for the right of concerned states to "live in peace within secure and recognized boundaries," but it defines neither which boundaries nor which territories. This is particularly significant since some of the territories captured in 1967 were clearly outside the mandatory boundaries (such as Sinai) and therefore beyond an Israeli claim of sovereignty, while others (such as the West Bank) were within the boundaries of the Mandate and therefore within the scope of Israel's claimed sovereign rights. Indeed, the only definite implication of the resolution is a Security Council endorsement of Israel's right to remain in possession of territories occupied in 1967 until the achievement of a negotiated peace.
The 1993-2000 Oslo Accords between Israel and the PLO, though creating a self-governing Palestinian Authority in the West Bank and Gaza, did not recognize any Palestinian sovereignty and specifically preserved the claimed rights of each of the parties.23
Thus, no international agreement has ever granted the "green line" (the 1949 armistice line demarcating the boundary of the West Bank) the status of an international border between sovereigns. Indeed, every Israeli peace treaty with a neighboring state, while basing itself on Resolution 242, has adopted the mandatory boundaries as the boundaries of Israel, rather than the 1949 armistice lines.24 The "green line" bounding the West Bank is solely a defunct military line demarcating the extent of the Transjordanian invasion of Israel in 1948.
Additionally, Israel has the strongest claim to sovereignty over the West Bank of all possible claimants. Other than Jordan, Israel is the only existing successor to the British Mandate of Palestine established to facilitate the creation of a Jewish homeland, and Jordan, as an aggressor, never legally possessed the West Bank. Additionally, Jordan relinquished its claim of sovereignty. Israel, by contrast, came into possession of the West Bank in a war of defense, making its possession legal, and it has never waived its claim of sovereignty. Indeed, other than Israel, no recognized state claims sovereignty in the West Bank.
The Fourth Geneva Convention Does Not Apply to the West Bank
As the state with the strongest claim to sovereignty in the West Bank, Israel cannot be held to be an occupying power obliged to follow the terms of the Fourth Geneva Convention. It would be a logical absurdity, and without textual foundation, to call a state an occupying power when it has taken territory over which no other state had recognized sovereign rights.25 Moreover, even if Israel were not considered sovereign of the West Bank, the West Bank is not automatically to be considered occupied territory within the terms of the Fourth Geneva Convention. Article 2 of the Convention specifies that it applies in the cases of armed conflict between High Contracting Parties, or in the case of occupation of the territory of a High Contracting Party. While Israel is a party to the Fourth Geneva Convention, the nonexistent state of Palestine is not. In fact, in 1989, when the Palestine Liberation Organization informed the Swiss Federal Council (official registrar of the Convention) that it would adhere to the provisions of the four Geneva Conventions and their protocols, the Council refused to recognize the act as an accession to the treaty "due to the uncertainty...as to the existence or non-existence of a State of Palestine."26 This conclusion is further amplified by Article 43 of the Fourth Hague Convention, which is the basis for the modern law of occupation. The article recognizes an occupation when "authority of the legitimate power" passes in fact "into the hands of the occupant." Thus, an occupation only arises where a legitimate power is dispossessed. Since Jordan was not the "legitimate power" in the West Bank, Israel cannot be considered an occupant.
Israel has declared itself willing to be bound to humanitarian provisions of the Fourth Geneva Convention in the West Bank and Gaza as a matter of good will, as part of a larger Israeli willingness to withhold application of its full sovereign rights in order to hold the territory open for a negotiated peaceful solution to the Arab-Israeli conflict. However, this merely underscores the inapplicability of any provisions of the Fourth Geneva Convention that are designed to protect the sovereign rights of the true sovereign party whose territory is being occupied. Since "Palestine" is not sovereign, it has no sovereignty to defend, and it cannot claim the benefit of such provisions of the Fourth Geneva Convention that are designed to benefit the party whose sovereign territory is occupied.
Consistency of Israeli Actions with the Fourth Geneva Convention
Building Security Barriers Does Not Violate the Convention
Even if the Fourth Geneva Convention were applicable to the West Bank, nothing in Israel's actions would violate it. Other than the reiteration of the familiar prohibition upon "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" in Article 147, no provision in the Convention limits the occupying power's ability to create barriers, requisition property for security purposes, or take other necessary security measures. Indeed, Article 27 of the Convention explicitly permits occupying powers to "take such measures of control and security in regard to protected persons as may be necessary as a result of the war." As noted previously, the security fence is fully justified by the military necessity of reducing the exposure of Israeli civilians to the Palestinian terrorist campaign.
Building Security Barriers Does Not Constitute Annexation
Annexation under international law requires that the annexing state extend its power over the territory to be annexed with the intent of extending its sovereignty over that territory. As noted previously, Israel is the state with the best claim of sovereignty to the West Bank; as such, it cannot be held to be illegally annexing territory.
However, even if Israel is considered a mere occupier unable to annex the disputed territory, building a security barrier does not constitute annexation of any territory on the "Israeli side." First, Israel has repeatedly stated that it has no intention to alter the legal or political status of any territory with the barrier. Thus, Israel plainly lacks the intention necessary for an annexation to take place. Second, construction of a barrier does not in and of itself extend Israeli rule over any of the territory to a greater extent than Israel already controls those territories. Israel is not undertaking any other actions to manifest its power, such as implementing Israeli law in those territories. Thus, there is no new manifestation of power to constitute an annexation.
Palestinian Terrorism Should Not Be Rewarded
One of the foremost principles of international law is ex inuria ius non oritur - one may not profit from one's lawbreaking. The Palestinian Authority, an instrument of the PLO, has violated its obligations under international law by collaborating with terrorist crimes against humanity. Both Israel and independent foreign media have reported that Yassir Arafat, chairman of the Palestinian Authority (as well as of the PLO and Fatah), has used Palestinian Authority funds to pay for terrorists' acquisition of materiel used in terror attacks, as well as to pay bounties for terror attacks. The Palestinian Authority has openly paid salaries to militants in the terrorist organizations and joined them to Palestinian police forces, while steadfastly refusing to prosecute Palestinians, including Palestinian police, for terror attacks on Israelis. Officials of the Palestinian Authority, and official Palestinian Authority media, including television and press, have called upon Palestinians to carry out terrorist attacks on Israelis. A number of the component organizations of the PLO, including Fatah, have carried out terrorist attacks and proudly taken responsibility for terror attacks. Fatah terrorists have acknowledged to foreign and domestic media that they respond to the commands of Yassir Arafat.
This Palestinian terror, in which the PLO is intimately involved, has created the necessity for a security barrier to block Palestinian terrorist infiltrations. In claiming that Israel may only build such a barrier outside of the West Bank, the PLO is essentially arguing that Israel must de facto cede all disputed territory to the PLO before it may combat terror. Thus, the PLO seeks to make territorial gains as a result of its campaign of genocide, crimes against humanity, and war crimes.
Consistency of Israeli Actions with Israeli-Palestinian Agreements
From 1993 to 2000, Israel and the PLO signed a series of peace agreements known collectively as the Oslo Accords, under which Israel agreed to a partial and staged withdrawal from the West Bank and Gaza, the establishment of a Palestinian Authority with some forms of jurisdiction over the Palestinian population of these territories, and an undertaking to engage in further negotiations in order to determine the final status of these territories. For its part, the PLO agreed to end terror and all other forms of violence, to recognize the legitimacy of the State of Israel, and to resolve all further disagreements with Israel through peaceful negotiations. The security fence does not breach Israel's responsibilities in the Oslo Accords and, in fact, helps implement them.
First, as noted above, none of the Oslo Accords yielded any Israeli claim of sovereignty to, nor established any Palestinian sovereignty over, the West Bank. Rather, the Oslo Accords explicitly make Israel responsible for the security of Israelis, and acknowledge that Israel has "all the powers to take the steps necessary to meet this responsibility."27 Importantly, Oslo makes explicit that Israel's security responsibilities include West Bank and Gaza settlements as well as Israelis in Israel proper.28 Thus, the agreements solemnize Palestinian acknowledgment of the Israeli right to undertake security measures in the West Bank and Gaza. Second, while Israel is required to preserve smooth movement of people, vehicles, and goods within the West Bank, this obligation is specifically subject to Israel's "security powers and responsibilities."29 Third, even if Israel had yielded its authority to defend itself using barriers on the West Bank, it is not clear that the PLO could invoke such provisions of the peace agreements in light of its gross violations of nearly all its fundamental obligations under the Oslo Accords. Finally, the resort to the ICJ by the PLO is itself a violation of the Oslo Accords. Under Oslo, any disputes arising out of application or interpretation of the agreements must be resolved by negotiation between Israel and the Palestinians, by agreed-upon conciliation, or agreed-upon arbitration.30 There is no provision for unilateral resort to the General Assembly, the ICJ, or other parties.
Despite the fact that Israel has the better arguments regarding both the jurisdiction and merits, the World Court will most likely accept jurisdiction and declare that the fence - at least in its current route - is a violation of international law. The arguments outlined above will likely have little impact on the court, especially since it has previously stated that the political context or implications of an opinion would not affect its decision-making.31
All signs point in the direction that the court is as politicized and as hostile to Israel as the GA itself. For example, in a departure from all other previous practice, the court has allowed "Palestine," a state that does not exist and that is not a UN member-state but only an observer,32 to submit comments to the court. Furthermore, two of the judges on the court have repeatedly demonstrated their anti-Israel bias. The Egyptian, Nabil Elaraby, has called for Arab states to sue Israel for genocide, and the Jordanian was a special rapporteur for the UN Human Rights Commission who concluded that the settlements are illegal. They have already decided key issues in the case and cannot be expected to examine impartially the evidence presented to the court and to apply the law fairly.
Unless it reverses course and declines jurisdiction or, indeed, affirmatively upholds Israel's right to self-defense against genocide, crimes against humanity, and war crimes, the court will undermine its legitimacy and become yet another international institution that has sacrificed its commitment to international law to an anti-Israel agenda.
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1. See "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory" (Request for Advisory Opinion).
2. Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, UNGA Res. A/ES-10/L.16.
3. Advisory jurisdiction is virtually unknown in Anglo-American common law systems, but is often granted to constitutional or supreme courts in continental European legal systems.
4. Charter of the United Nations, Art. 96 (1945); Statute of the International Court of Justice, Art. 65 (1946).
5. Resolution A/RES/ES-10/14 (A.ES-10/L.16) of December 8, 2003, affirming Resolution A/RES/ES-10/13 of October 27, 2003.
6. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of July 8, 1996, p. 16.
7. See "A Performance-Based Roadmap to a Permanent Two-State Solution to the Israel-Palestinian Conflict," April 30, 2003; "Secretary-General's Statement on the Road Map for Middle East Peace," April 30, 2003.
8. The court can also decline jurisdiction if it finds that the question requires a factual investigation that cannot be conducted without consent of the parties involved. In this situation, however, there are no "parties" per se because it is an advisory case and not a dispute between nations in which consent to the court's jurisdiction is an issue.
9. Proportionality also requires that inevitable civilian deaths are not out of proportion to the military advantage gained by an attack. That consideration is not relevant in this case, however. Likewise, a third requirement that attacks distinguish between civilians and military targets is not relevant here.
10. Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2 (1949); Rome Statute of the International Criminal Court, Art. 6 (1998) [hereinafter, Rome Statute].
11. Rome Statute, supra note 9, at Art. 7.
12. See Human Rights Watch, "Erased in a Moment: Suicide Bombing Attacks Against Israeli Civilians" (Oct. 2002).
13. Rome Statute, supra note 9, at Art. 8(2). This principle applies no matter whether the armed conflict is defined as international or non-international in character.
14. Id. at IV.
15. Report of the Secretary General Prepared Pursuant to General Assembly Resolution ES-10/13 of October 21, 2003, A/ES-10/248.
16. For a recent press account, see Ranjit Devraj, "India Pursues Fence Construction in Kashmir," Inter Press Service, Dec. 5, 2003. Pakistan does not consider India to be sovereign over any part of Kashmir, on both sides of the line of control.
17. Mandate for Palestine Confirmed by Council of League of Nations, July 24, 1922, reprinted in Report to the General Assembly of the United Nations Special Committee on Palestine, Vol. II, Annexes, Appendix and Maps 18-22, U.N. Doc. A/364 Add. 1 (Sep. 9, 1947).
18. G.A. Res 181(II), U.N. Doc. A/519 (Jan. 8, 1948).
19. Israel-Egypt Armistice, Articles IV.3, V; Israel-Jordan Armistice, Article II.2; Israel-Syria Armistice, Articles II.2, V.1, V.5.
20. Palestine National Charter of 1964, Art. 24. No reconciliation is offered with Article 2 of the Charter, which asserts that "Palestine, within the boundaries it had during the period of the British Mandate, is an indivisible territorial unit."
21. Israel-Jordan Peace Treaty, Art. 3.3.
22. S/RES/242 of November 22, 1967. Resolution 338, often mentioned together with 242, simply calls upon the parties to implement 242 without adding any new demands. S/RES/338 (1973) of October 22, 1973.
23. Interim Agreement, Art. 31.6.
24. Israel-Egypt Peace Treaty, Article 2; Israel-Jordan Peace Treaty, Article 3.1 and Annex 1.
25. Britain, for example, was not an "occupying power" when it reconquered the Falkland Islands from Argentina in 1982, nor was Kuwait when it and its allies reconquered its territory from Iraq in 1991.
26. Embassy of Switzerland, Note of Information Sent to States Parties to the Convention and Protocol, September 13, 1989.
27. Interim Agreement, Articles 10.4 and 12.1.
28. Interim Agreement, Article 12.1; Annex 1, Article 2.3.a.
29. Interim Agreement, Annex 1, Articles 1.2, 1.7, and 9.2.a.
30. Declaration of Principles, Article 15; Interim Agreement, Article 21.
31. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of July 8, 1996, pp. 16-17.
32. "Palestine" is the name given to the PLO observer delegation at the UN.
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Laurence E. Rothenberg is a fellow at the Center for Strategic and International Studies in Washington, D.C. The former editor-in-chief of the Harvard International Law Journal, he is the author of numerous articles, studies, and book chapters on international law, globalization, and U.S. military strategy.
Abraham Bell is a member of the Faculty of Law at Bar-Ilan University, Ramat Gan, Israel, where he specializes in international, property, and administrative law. He has taught as a visiting professor at Fordham University Law School, and delivered lectures on legal aspects of the Arab-Israeli conflict at Harvard, Columbia, NYU, the University of Chicago, and numerous other universities.
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