The negative decision of the International Court of Justice at The Hague on the separation fence being constructed by Israel was expected. The nature of the mandate the court received from the United Nations General Assembly, and the makeup of the panel of judges, were early hints at the expected results. The court totally rejected Israel's argument that the building of the fence is a justified act on grounds of self-defense against Palestinian terrorism, and ruled that its construction beyond the Green Line is a violation of international law.
In its response to the court's decision the government rejected the call of the judges at The Hague for an immediate halt to the construction of the fence and the razing of segments already completed. But even if Israel succeeds, with the help of the United States, in preventing the conversion of the court's decision into an abiding ruling by the Security Council, the decision is harmful to the international standing of the country. It constitutes another challenge to the legitimacy of Israel's actions in the territories it conquered in 1967, and especially in the building of settlements and the annexation of east Jerusalem. The ICJ at The Hague views the construction of the "barrier" as another attempt by Israel to establish facts on the ground and annex the territories.
The absolute rejection of Israel's arguments is infuriating. It is difficult to accept the omission of Palestinian terrorism by the court and the murky reference to "violence" against Israelis, whose perpetrators appear to be anonymous. In its fervor to present the Palestinians as innocent victims of the occupation the court ignores the suicide attacks and other terrorist activities. Herein lies the main difference between the decision at The Hague and the ruling of the High Court of Justice on the fence. The latter recognized the security necessity of the fence and accepted the government's approach that its construction was meant to protect the citizens and not annex territory.
However, over the main issue there is agreement between Jerusalem and The Hague: Israel's security needs cannot ignore the rights of the Palestinians, and a fence that harms their right of movement, employment and education cannot be built. Israel is obligated and responsible also for the welfare of the residents of the territories, and not only the security of the Israelis. In the eyes of the High Court of Justice, as in the eyes of the International Court of Justice, humanitarian suffering justifies stopping the project and planning the fence's route anew.
The government may target the conclusions of the court at The Hague, but it is responsible for bringing unto itself the twin legal blows it has suffered as a result of the fence. Responsibility for this is the mistaken planning of the route, which penetrated deep into the West Bank in an effort to "widen the narrow waist" of the country and include in its protected zone as many settlers and settlements as possible. This aggressive planning created unnecessary and damaging separations between Palestinian villages and their fields, orchards and schools. The Palestinian leadership embarked on a political public relations campaign against the fence, shaped international public opinion and achieved an impressive victory at The Hague.
The idea of the fence was justified, both as a tool for security that prevents attackers and also as a means of appropriate separation between Israelis and Palestinians. But the flawed planning locked Israel into an unnecessary and damaging diplomatic conundrum, which undermines international support for the war against terrorism and presents it as a war against occupation. It also has harmful security implications because of the unnecessary delay and the need to plan the fence's route anew as a result of the High Court's ruling.