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Policy and Agenda

The Controversial Fence

The Separation Fence seems one of the key events in the history of the region and its conflict. Even the UN Secretary General recognizes its security importance. But what do the courts and the Israeli right say? Last article in the series
Ziv Maor (4/8/2007)

The previous article explored part of the history of the Separation Fence, and the political, diplomatic, and security questions raised mainly by the left and international circles. This article examines some of the legal controversy surrounding the fence and the questions that have been raised by the Israeli right.

The Court Has its Say

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The matter of the Separation Fence has been discussed on numerous occasions in legal contexts in Israel and internationally. An important debate was held in the International Court of Justice (ICJ) in the Hague in 2004. This followed a resolution by the UN General Assembly (a body in which the Arab bloc has an automatic majority), asking the court to examine the legality of the Separation Fence. In fact, on the accused stand together with the fence are Israeli prime minister Ariel Sharon and the entire State of Israel. The ICJ addressed three main questions: is there a basic justification for the detriment to the Palestinians caused by the fence; does international law permit Israel to build the fence, and does international law apply to the territories?

The court ruled against the fence and against Israel on all three points: it is unjustified to negatively affect the Palestinians, although the court “recorded” Israel’s undertaking that the fence was being built for security purposes only. The venerable forum also ruled that the fence was illegal under international law, which does apply to the territories. This went against Israel’s position that international law does not apply there. In its verdict, the court ordered the Israeli government to stop building the fence, dismantle it wherever its route lay eastwards to the Green Line, and compensate Palestinians who had suffered because of its construction. The court verdict completely ignored the Palestinian terrorism that had lashed Israel at the time.

Despite the verdict, the fence continues to unroll, including in areas to the east of the Green Line. This is because as long as Israel rejects the authority of the court, the latter has no jurisdiction over Israel. The fact that the court ignored Palestinian terrorism attracted much criticism. Its opinion is solely advisory. Nevertheless, the verdict was very effective in pouring more fuel on the fire of controversy surrounding the Separation Fence.

Fence opponents also quote the Israeli courts in their effort to halt its progress. Israel’s Supreme Court has handed down several important rulings on the issue, including some that are regarded as seminal in historical terms, and not only in their relation to the fence. Without doubt, the most important ruling is “Supreme Court: Bait Surik”. In that ruling, the then president of the Supreme Court, Aharon Barak, examined the actual legality of the fence and the legality of its route. The background to this ruling was that the fence’s route, which had government approval, separated the farmers of Bait Surik village from their agricultural holdings on a hill very close to Route 6 highway. The government wanted the hill to be placed on the west side of the fence as it feared that if Palestinians had free access to the hill they might shoot at cars traveling Route 6. As to the legality of the actual fence, the court decided that the fence was legal as long as was solely for security reasons.

Regarding the fence’s route, Aharon Barak went too far and applied the principle of proportionality—a term systematically used by Barak in the verdict. The application of proportionality is complex, but ultimately, the court concluded that the danger of a terrorist entering Israel and the danger of shootings at Route 6 had to be separated. According to the judges, although the fence was right and proper for preventing terrorists infiltrating Israel, the danger of drivers on Route 6 being shot was not sufficiently serious to justify the grave detriment to the lives of the Palestinian farmers. In other words, the court sought to establish a hierarchy of terror threats: the risk of terrorists entering Israel is justification for causing detriment to Palestinians; the risk of Israelis being shot does not justify this.

The government accepted the court’s decision, which it is legally bound to obey, and the route of the fence abandoned the controversial hill in Palestinian hands. However, the very interference of the Supreme Court in this affair, which still continues since large portions of the fence are under debate in the Supreme Court, has attracted much criticism. Theoretically, it is clearly a political matter of the kind any court should treat with particular caution. However under Barak, the Supreme Court was a proponent of judicial activism, which believed that there was nothing the court could not rule upon. Thus, in this case too, the judges didn’t hesitate to interfere in a political and security related government decision.

To the Right of the Fence

The Israeli right has criticized the fence for other reasons. Their first contention is highly reminiscent of the argument put up by decidedly non-right camp, e.g., the Palestinians themselves: outwardly, the fence appears to be establishing facts on the ground. If the fence indeed becomes the future diplomatic border, its current route, which leaves quite a few settlements outside the fence, could lead to evacuations. They see this as a democratic issue because a broad consensus has not been established with regard to evacuating settlements from Judea and Samaria (through, for example, elections or a referendum), and one day the very existence of the fence may create that consensus.

The answer to this argument is the same as the answer to the same argument by the left: the fence is being built primarily for security reasons. At this point at least Israel cannot compromise on this buffer because of the right’s fears concerning the potential diplomatic implications. The fact that large numbers of settlements are in isolated areas, surrounded by Palestinian villages, makes it impossible to route the fence round them.

Another argument is that leaving settlements outside the fence ignores the settlers’ security needs, since those abandoned outside the fence will be left to the Palestinians’ mercy. This argument is incorrect at least for now due to the exhaustive IDF activities in Judea and Samaria. Though the settlers being left outside the fence are discriminated against in terms of passive defense there is far more proactive defense, namely military action precisely in the areas outside the fence.

Rightists present another argument regarding the actual need for the fence. Even though a dramatic reduction has taken place in the number of terrorist attacks inside Israel since work on the fence began, particularly since its completion in the Sharon region, there has also been a dramatic rise in the scale of IDF activities. The decline in number of terror attacks may be due to increased army activity, not to the fence. And if the fence isn’t improving the scale of terror, why must Israel pay the heavy price of building it—the economic, diplomatic, democratic costs and the suffering to the Palestinians might have been avoided.

The answer to this doesn’t really offer anything new: again, Israel can’t allow itself to take chances. Indeed, the fall in number of attacks may be due to increased IDF activity. However, there is no certain, scientific way to measure it. In fact, it is more likely that if the decrease in attacks can be credited to anything it is a combination and balance between the IDF’s activities and the passive defense provided by the fence.

There are those on all side of the political spectrum who argue that the fence won’t affect terrorism from steep trajectory missiles, that is Kassams, if they penetrate Judea and Samaria. This is indeed a serious problem, since the fence isn’t built to solve it apart from enhancing Israel’s ability to prevent such a nightmarish scenario by allowing it better control over the entry and exit points from Gaza (itself surrounded by fences) into Judea and Samaria, with the fence controlling the transit points.

The Separation Fence is highly controversial and there are more or less satisfactory answers to all the argument. However, it is possible to say with a high degree of certainty that Israel enjoys a consensus over the necessity for the fence. Israeli society is experiencing a leadership crisis, one of whose faults is inaction through seeking a broad consensus which in fact neutralizes its action capability. The fence seems to be one of the few issues involving activity where there is also consensus. In other words, it is an asset for Israeli society. In that sense, the fence’s importance goes way beyond its security implications. If Israelis are united around the need for the fence despite all the criticism and if they stand together against criticism from outside there is no question that the result in terms of Israel’s security will be good. Not just because it creates a barrier, but because of the improvement in the country’s robustness.

Click here for Omedia in Hebrew
Ziv Maor (4/8/2007)
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Paul ari2612@aol.com 4/12/2007