ICJ: West Bank Fence Is Illegal, Israel Must Tear It Down

Ruling says security needs do not justify barrier; says completed fence could become 'tantamount to annexation' of Palestinian lands.

Aluf Benn
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Aluf Benn

The International Court of Justice ruled Friday in The Hague that the separation fence being built by Israel in the West Bank was in breach of international law, and called on Israel to tear it down and compensate Palestinians harmed by its construction.

"Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated," said the ruling, read by the court president, Judge Shi Jiuyong of China.

The court's non-binding advisory on the legality of the fence called on the United Nations Security Council to consider "further action" to stop the construction of the barrier.

"The court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall," said the court president.

He also urged the UN to "redouble its efforts" to end the conflict between Israelis and Palestinians, which it said posed a threat to international peace.

In the ruling, the court said that Israel's security needs did not merit the construction of the barrier, stating that it "cannot be justified by military exigencies or by the requirements of national security or public order."

At the Palestinians' request, the UN General Assembly asked the World Court last December for its opinion on the legality of the barrier.

In the ruling, the court said that the barrier could become tantamount to annexation of Palestinian land if it is completed and that it impeded the Palestinian's right to self-rule.

"The Court considers that the construction of the wall and its associate regime creates a 'fait accompli' on the ground that could well become permanent, in which case, and notwithstanding the formal characterization by Israel, it would be tantamount to de facto annexation," the court said.

"That construction, along with measures previously taken, thus severely impeded the exercise by the Palestinian people of its right to self-determination."

Shi said the court had the right to give a non-binding advisory opinion requested by the UN General Assembly, despite Israel's claim to the contrary. "The Court cannot accept the view... that it has no jurisdiction because of the 'political' character of the question posed..." he said. "The court accordingly has jurisdiction to give the advisory opinion."

The court also said all countries "are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction."

The only dissenting voice was that of the American justice on the panel, Thomas Buergenthal. He was supported, however, by the Dutch judge, Pieter Kooijmans, in his rejection of the call for all countries to act against the project. The other 13 judges ruled in favor of this call.

The court questioned the route of the fence, saying that it would encompass 80 percent of the settlers in the West Bank, while cutting off more than 230,000 Palestinians from their surrounding areas.

The court said that in building the fence, Israel had violated international humanitarian law by infringing on Palestinians' freedom of movement and freedom to seek employment, education and health.

It also stated that Israel violated international treaties it had signed which deal with these topics: "The construction of such a wall accordingly constitutes breaches by Israel of its various obligations under the applicable international humanitarian law and human rights instruments."

The ruling includes a lengthy analysis of the legal situation and of the history of the Israeli occupation in the West Bank and Gaza Strip. Parts of the fence constructed within the Green Line are not included in the court's decision.

For its part, the Defense Ministry has carried out changes on the official map delineating the route of the fence according to a recent ruling by the High Court of Justice in Jerusalem.

The changes run along the section of the fence northwest of Jerusalem, and in parts near Qalqilyah, Modi'in and southeast of Jerusalem near Gush Etzion.

According to the map made public by the Defense Ministry, there are many changes from the original route of the fence, and all are meant to alleviate the pressure on the Palestinian population in those areas.

However, the new map also shows the intention to build the fence around the Ariel salient, linking the largest settlement in the West Bank with the settlements of Karnei Shomron and Immanuel, and to the Green Line.



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