Analysis / This is not how you judge a wall

The advisory opinion laid by the UN's International Court of Justice in The Hague on the doorstep of the UN, dealing with "the legal consequents of building a wall in the territory of occupied Palestine" is not a real legalistic analysis of the parties' arguments. While the ruling makes mention of Israel's arguments, which were presented to the court and UN institutions, the court's opinion appears to have been decided in advance.

Building the separation fence, which the court calls a "wall," following the term coined by the UN assembly, is illegal, the court said, in that it creates a political precedent for the future border between Israel and the future State of Palestine. Building the wall creates a "fait accompli" constituting a "de facto annexation." The court rejected Israel's claims that the fence is temporary and its citing of the right to self defense, which is recognized in the UN charter.

In the courts' opinion, Israel cannot claim this right when it is building a wall outside the state's territory. The court, which avoided any direct reference to Palestinian terror in the opinion handed down, does not accept the argument that building the wall is a security necessity recognized by international law. In the judges' opinion, building the wall in general, and on the route it was built on in particular, was not carried out because of this necessity. The court states quite vaguely that Israel should and is even obligated to protect its citizens from fatal hostile acts, but negates the wall's very construction, because it contravenes international law. The court does not distinguish clearly between the issue of the authority to building the separation fence and the issue of its chosen route, as the High Court of Justice ruling did.

As for the route, the court emphasizes that it infringes on numerous rights of Palestinians in the territories - freedom of movement, freedom of occupation and the right to work, health, education and use of water sources. The court stresses that the question referred by the UN Assembly is a legal one, and its political aspects do not undermine that. However, the opinion itself does not refrain from a survey that is not merely legal on the territories' status. Complex legal questions that should be raised in this context - like the question of Jordan's sovereignty in the pre-1967 West Bank - are not addressed in the ruling. The opinion's phrasing in the sections referring to the moves Israel must make are political, not merely legal. The court calls on Israel to take the wall down, to stop the construction in the region, to restore the lands it confiscated for building the wall and to pay compensation fees to all those who were damaged by its construtction.

The court's opinion is remarkable for its totality. It urges the dismantling of all the fence without trying to deal with the possibility that at least certain sections are necessary for security. In this the court's opinion is patently different from the Israeli High Court's June 30 ruling on the fence. The High Court verdict, which also referred to international law, ruled in principle that the military commander has the legal authority to build the separation barrier on military grounds, and that these grounds indeed exist.

Even before the High Court's ruling it was impossible to build a fence for political reasons, with the intention of setting state borders and to "annex" territories. The Hague Court's opinion is in keeping, in principle, with the High Court's ruling regarding the specific route, but not about the actual authority to build a fence. The opinion does does not refer to a specific route and deals with the entire fence. The High Court addressed a specific route, ruling that part of it requires reexamination because of its disproportional injury to the local residents. The High Court intervened on a specific matter, once it established that the injury to the residents at a certain route was severe and acute, and no real attempt was made to provide the injured parties with alternative land. Only such a severe blow to the right of property, freedom of occupation and freedom of movement moved the High Court to intervene. It examines specific circumstances on the assumption that the security fence must be proportional, so that the local residents' way of life is not injured unduly. The court's opinion rules out building a fence in territory considered occupied by international law. The opinion totally ignores the duty of a military commander to protect the safety of the residents of his state, in addition to the required concern for the local residents.

Israel, which feels obligated to act according to the High Court's verdict, can state that in everything regarding the prevention of injury to the rights of the local residents, will act in the spirit of The Hague Court.

The court's opinion, given by 14 out of 15 judges, does not refer to the High Court ruling about the fence. The Hague Court only mentions the High Court ruling of May 30, which dealt with the duty of a military commander to uphold humanitarian laws and look after the local population while carrying out IDF activities in Raffah. The International Court mentions the High Court ruling to show that Israel itself accepts the obligation to act according to the humanitarian rules laid out in the Hague Convention of 1907 and the fourth Geneva Convention of 1949. The court's opinion indicates that in the main points the majority of judges disagreed with the American Judge Thomas Buergenthal.

In his opinion, the court should not have given an advisory opinion on the issue, despite the fact that building the separation fence raises hard questions vis-a-vis international law. The judge feels it incumbent upon him to vote against the court's position since the court did not have sufficient evidence for its sweeping conclusions. He said the lack of complete information damages the court's findings. He stressed that the absence of factual information regarding the security imperative in building the fence and about the terror attacks against Israel, do not enable the forming of an appropriate opinion. Buerghenthal believes that the court's opinion will therefore not be able to win the public's confidence. He points out that the court did not address Israel's position properly and the information it gave the UN institutions.

In any case, the court's opinion is of a non-binding declarative nature; it is supposed to provide UN institutions with the legal basis for their future acts and guide their debates on the issue. Only the Security Council is authorized to impose sanctions on Israel, if it adopts the opinion. It may be assumed that in this case the U.S. will use its veto right in the Security Council. Clearly the American judge's position was not dictated by his state. However, it may be assumed that his position will affect the formulation of U.S.'s opinion in case an attempt is made to impose sanctions on Israel.