The state prosecution plans to inform the High Court of Justice next week that the opinion of the International Court of Justice at the Hague on the separation fence is irrelevant.
The prosecution will say it is based on partial, outdated information and should therefore be disregarded. The international court examined a very different fence route than the one currently planned, and even more changes are being submitted for cabinet approval next week, according to the response.
A prosecution team completed the 170-page response for the court two weeks ago. Senior government officials in legal, security and diplomacy have approved the document in recent weeks. High Court justices asked for the state's response to the Hague opinion in August 2004 while hearing a detailed petition regarding the villages of Shukba and Boudrous, a petition that has become a fundamental examination of the separation fence.
The state's position is that the Hague opinion has no relevance to the High Court hearing for a number of reasons: First, when the Hague heard the matter, it was already looking at the wrong route. As Israel did not attend the hearings, the Palestinian side presented a route it claimed to have downloaded from the fence administration's Web site.
Secondly, since the Hague published its opinion, there have been several substantial changes to the route, in part due to decisions by the High Court itself.
The state's third argument is based on an expected cabinet decision changing the route of several sections of the fence that have not yet been constructed. That discussion will not include the fence route in the Gush Etzion area, which will be discussed separately. The expected decision will change the route and bring it closer to the Green Line.
"Such an argument from the state is like first murdering one's parents and then asking for mercy for being orphaned," says Michael Sefarad, the attorney representing several Palestinians who have petitioned the High Court regarding the fence. "First, Israel didn't cooperate with the Hague, and now it complains in front of our court that the international court didn't have all the facts. The entire first stage has already been constructed and won't change and the Hague judges looked at that. Other changes to the route are not relevant as long as it continues to encroach past the Green Line."
In July 2004, 14 of the 15 Hague judges ruled that construction of the separation fence in the West Bank violated international law and "constituted illegal annexation." The court said Israel could not justify the fence by claiming self-defense and should stop construction immediately, dismantle existing sections and compensate Palestinians harmed by its construction. An Israeli legal team found at the time that the ruling created a new legal reality for Israel and could accelerate international forums' actions against Israel.
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