In general, the Department concurred with most of the Committee’s findings and its recommendations. ¹⁰ DFID acknowledged Israel’s right to take legitimate measures to protect its citizens, and concurred with the Committee that the construction of the barrier on occupied territory was unlawful, as was the confiscation of  the land required for its route. In the Department’s opinion, the barrier it would not  provide lasting security in that it creates a physical obstacle to the two state solution.

This critique will now attempt to respond to some of the findings, conclusions and recommendations set out above, particularly in relation to the Terrorist Security Barrier(“TSB”). Other points raised above will be dealt with incidentally and tangentially to the main thrust of this paper. 

For those readers who have already concluded that Israel’s presence in the West Bank and Gaza is legitimate and its continued occupation is justified, the discussion and argument of the legitimacy of the fence and its construction is continued at page 11, paragraph B below 

For those who claim that Israel has no place being on the West Bank and agree that the construction, if at all, of any fence should be on the Green Line, I would remind readers that the major issue of the legality of the TSB must be viewed within a much broader context than that normally presented by government and the media. Paragraph 2 following, attempts to provide this perspective.
 

2.  Construction of the TSB on “Palestinian” Land

Contrary to this Agreement, Jordan unilaterally annexed the West Bank including East Jerusalem in 1950; an act which failed to obtain any international recognition apart from Britain and Pakistan.  Such claims to sovereignty over the West Bank as Jordan made, were ceded to the PLO, as the Palestinians’ representative in July 1988.^[11]

The Green Line was also rejected as international border following the Six Day War, when the UN General Assembly failed to pass four draft resolutions (before passing Resolution 242) two of  which called for Israel withdrawal to the 1967 cease fire lines.^[12] Lord Carrington,^[13] in subsequent statements regarding the future borders of Israel within the context of  UN Resolution 242, rejected the argument that the language of the Resolution required Israel to withdraw to the 1948-1967 ceasefire line as an international border.^[14]

 “It [the line] is where troops had to stop, just where they happened to be that night.  That is not a permanent boundary.”

Successive British Foreign Secretaries, Michael Stewart, on November 17, 1969, and George Brown, on January 19, 1970, both confirmed the same position to Parliament.

Britain’s recognition of Jordan’s annexation of the territory in 1950, has of itself  been a contributing factor to the common understanding that the cease-fire line has significance as an international boundary, and indeed DFID is following the traditional policy.^[15]
 

b.      Historical and Factual Context of Israeli West Bank “Occupation”

Before analysing Israel’s legal position in the West Bank, including its right to requisition private land and utilise public land for military purposes, it is important to review briefly the historical factual context within which Israel finds itself in the West Bank.
 

(i)  Six Day War

Israel’s initial presence in the West Bank and Gaza is the result of her being compelled to act in self defence against armed attack in accordance with the Article 51 of the UN Charter.^[16]
In 1967, Israel took pre-emptive defensive military action against Egypt on June 5, 1967 following (1) Egyptian closure of the Suez Canal to Israeli shipping; (2) unilateral removal by the UN of its peace-keeping forces in Sinai; (3) Russian disinformation passed to and accepted by Egypt that Israel was amassing troops on its northern border ready to attack Syria and (4) the massing of  Arab armies in offensive rather than defensive positions on the Lebanese, Syrian, Jordanian and Egyptian borders with Israel.

Again following political pressure and military disinformation, this time from Egyptian President Nasser, to the effect that Israel’s air force had been  destroyed by Egypt, Jordan unfortunately joined in the war, ignoring an Israeli appeal transmitted through the U.S. State Department, the British Foreign Office and Gen. Odd Bull, UN Commander, at 08.00 hrs. on June 6, that:

 
“Israel will not, repeat not attack Jordan if Jordan remains quiet. But if Jordan opens hostilities, Israel will respond with all its might.”^[17]

Although during the previous evening of  June 5, small arms fire occasionally burst from Jordanian positions, Israeli troops were under strict orders to ignore them, Israel being unwilling and unable to open a second  front. However, on at 10.00 hrs on June 6, Jordanian troops commenced shelling Israeli military outposts and civilian neighbourhoods around Jerusalem, even reaching the suburbs of Tel Aviv. Three Israeli coastal towns were attacked by Jordanian aircraft. Jordanian troops also advanced over the Armistice lines in Jerusalem and occupied the UN compound.

Israel then reacted in self defence and captured the West Bank including Jerusalem from Jordan within 36 hours.

Under contemporary international law, while it is no longer legitimate to acquire territory by military conquest, the law of belligerent occupation,  particularly following an action of self defence, does not compel the victor to retreat to its former boundaries until the conflict is settled in a peace agreement or otherwise.^[18]  Israel’s attempt to negotiate a peace in return for its withdrawal from the West Bank was unfortunately rejected by the Arab leadership at the Khartoum Conference^[19] during which the three ”noes” resolution was passed -no negotiation with Israel; no recognition and no peace with Israel.

 

(ii)   UNSC Resolution 242

After the Six Day War, efforts by the UN Security Council to resolve the conflict between Israel and her neighbours resulted in the passage of Resolution 242 on December 31, 1968.  A careful reading of the text does not support DFID’s conclusion that Israel need construct the TSB on the Cease Fire Line. In fact the reverse is the case.

Careful drafting, after extended negotiation, piloted by the British delegation at the UN, produced a Resolution which, inter alia, called for both the termination of all claims or states of belligerency and withdrawal of Israel armed forces “from territories” occupied in the recent [June 1967] conflict.^[20]

The Resolution intentionally omitted the words “all the”  between “from” and  “territories” with the obvious implication that Israel is not required to retreat to the boundaries in effect before 1967, namely the Armistice lines determined in 1948,  and that territorial adjustments have to be made

It is therefore clear that the temporary location of a fence or other construction within the West Bank, for security purposes and placed other than on the Green Line, is not inconsistent with Resolution 242, particularly since Israel asserts the route of the TSB is not intended to be the permanent boundary.

(iii)  Oslo Accords and the Breakdown of Final Negotiations

Following Gulf War I (1990-1) and the collapse of the Soviet Union (1991), the US saw an opportunity to bring peace to the Middle East by sponsoring, jointly with the Soviet Union, the Madrid Conference on October 30, 1991, to which Israel, Syria, Lebanon, Jordan and the Palestinians were invited.  For the first time, Israel entered into direct, face-to-face negotiations with Syria, Lebanon, Jordan. Discussions between Israel and the Palestinians were held indirectly through Jordan since Israel refused to negotiate with the terrorist PLO. After two years of negotiation, the talks resulted in the signing of a peace treaty on October 26, 1994 between Jordan and Israel.

Madrid was also the catalyst for the series of secret talks held in Norway between Israel and the Palestinian Arabs that launched the peace process which culminated in the 1993 Oslo Accords,^[21] the most detailed of which, is the Israel-Palestinian Interim Agreement on Self Government in the West  Bank and Gaza Strip (Oslo II).^[22]

Critical to the Oslo Accords was the PLO undertaking to resolve all disputes by negotiation and that violence was to be eschewed. In support of this aim,
a major objective of the Interim Agreement was to broaden Palestinian self-government in the West Bank by means of an elected self-governing authority -- the Palestinian Legislative Council-- and to allow the Palestinians to conduct their own internal affairs, to reduce points of friction between Israelis and Palestinians, and to open a new era of cooperation and co-existence based on common interest, dignity and mutual respect.^[23]

Following the elections and the establishment of the Council, the Israeli military government withdrew  and its Civil Administration was dissolved. The Council assumed responsibility for all rights, liabilities, and obligations in over forty spheres of civilian activity which were transferred to it. At the same time Israel retained certain powers and responsibilities not transferred to the Council, particularly in respect of external security. 

Israel gradually “redeployed”, withdrawing its troops from the Arab populated areas of the West Bank: Jenin, Nablus, Tulkarem, Kalkilya, Ramallah, Bethlehem, Hebron (where special arrangements applied) and 450 towns and villages. Except for a small number of isolated outposts located at main road junctions, particularly those adjacent to Israeli settlements and in Area “C” (defined below), there was almost no IDF presence in Palestinian population centres until the Palestinian initiated their series of armed attacks in September 2000.^[24]

Under Oslo II, the responsibility for ensuring security and maintaining public order in the West Bank is divided  between Israel and the Palestinians, according to the  type of  security threat and the location of its source.

While Israel retains overall responsibility throughout the West Bank and Gaza for external security and for the security of  Israelis and Israeli settlements, it shares with the Palestinian Authority responsibility for internal security and public order. The degree of Israeli involvement in West Bank security matters depends on the Area in which the incident occurs.

The Agreement establishes different arrangements for three types of area:

Area “A” comprises the major Arab cities named earlier, constituting approximately 26% of the  Palestinian population. In these areas the Palestinian Council has full responsibility for internal security, public order and civil affairs. The City of Hebron is subject to special arrangements set out in the Interim Agreement and in a special protocol

Area “B” comprises the other Palestinian towns and villages in the West Bank which contain some 70% of the Arab population. Here, the Palestinians have assumed the responsibility for maintaining public order, while Israel retained overriding security responsibility for safeguarding its citizens and to combat terrorism. The Palestinians assumed the full civil authority as they have in Area “A”; and

 Area “C” comprises the mainly unpopulated areas of the West Bank, areas of strategic importance to Israel, and the Israeli settlements. In these areas, Israel retains full responsibility for security and public order, and civil responsibility for matters relating to territory (land use planning and zoning, archaeology etc.). The Palestinian Council assumed civil responsibility over all other civilian spheres of activity.

 

The net effect of Oslo II was to place approximately 95% of the Palestinian population under the jurisdiction of the Palestinian Authority headed by Yassir Arafat,  and to transfer to their territorial control just under 50% of the West Bank and Gaza Strip. 

Had the Palestinians not walked away from the final status negotiations at Camp David in 2000, and abandoned subsequent negotiations regarding the rights of Palestinian refugees to return to within Israel,^[25] they could have gained control of approximately 97% of the West Bank territory. The 3% balance could have been resolved subsequently by an equivalent exchange of Israeli territory.

The breakdown of the Camp David talks gave Arafat the impetus to resume the conflict with Israel militarily. The outbreak of the Intifada which followed in September 2000, and the upsurge of suicide bombings in March 2002, compelled Israeli troops to re-enter parts of Areas A and B on a temporary basis in order to prevent terrorist attacks directed at Israeli military personnel and civilians, occurring both in the West Bank and in Israel itself.

Although the United Nations Charter contemplates pacific rather than military means as the preferable method for the settlement of  international disputes, the Charter also provides for the retention by member sovereign states of their inherent right of self defence against “armed attack.”

Such is Israel’s situation. In light of the number of terrorist attacks which have taken place since September 2000, there seems little doubt that Israel is entitled to take measures of self defence both under Article 51 of the Charter and under the security provisions of  Oslo II
Two separate issues arise at this juncture (A) Israel’s legal right to re-enter West Bank Territory; and (B) having entered, Israel’s entitlement to construct the TSB.

 

c.       Legal  Basis for IDF Re-Entry into West Bank after September 2000

(i)    Interim Agreement (Oslo II) West Bank Re-Entry
 
Until the commencement of the violence in September 2000, Israel military presence in Palestinian populated West Bank territory was minimal. However, as a result of the failure of the Palestinian Authority’s to fulfil its obligations under Oslo II , Israel has under the Agreement, been compelled to re-enter parts of the West Bank which it had  previously vacated and to take affirmative and effective action against terrorism

Under the Agreement,  Israel retained overall external security responsibility throughout the West Bank and the Gaza Strip, and for the security of Israelis and settlements. The prominent security arrangements set out in the body of Oslo II and supplemented by the Security Appendix are of crucial importance in determining Israel’s right to construct the TSB.

The Agreement provided for the establishment of a “strong police force,” 12,000 in number, and stipulated that that such body was to constitute the only Palestinian security force.^[26] The Security Annex specifies the deployment of that force, its approved equipment and modes of operation. 

In reality, even before the outbreak of the violence in 2000, the number of police has far exceeded this figure to the extent of over 30,000. Instead of there being one police force, under the control of the Palestinian Authority, the Palestinian leadership divided the security responsibility into at least seven different operating forces in gross violation of Article XIV. This provision unambiguously forbids any armed forces in the West Bank and Gaza other than the IDF and the Palestinian Police Force.

Contrary to their undertakings given in the Security Annex, the Palestinians have encouraged the spread of illegal weapons rather than prohibiting them.^[27] The above Article XIV stipulates:

 

Except for the arms, ammunition and equipment of the Palestinian Police Force described in Annex 1, and those of the Israeli Military Forces, no organisation, group, or individual in the West bank or Gaza Strip shall manufacture, sell, acquire, possess, import or otherwise introduce into the West Bank and the Gaza Strip any firearms, ammunition, weapons, explosives, gunpowder or any related equipment, unless otherwise provided for in Annex 1

While security and police accountability and co-ordination became blurred, there is little doubt that Chairman Arafat exercised effective control to a considerable extent over the Palestinian security forces and militants operating in the West Bank and Gaza, and still does today,^[28] notwithstanding recent pressure from the US to share power with others.

From an obligatory perspective, the Security Annex to Oslo II also specified the commitment of Israel and the Palestinian Council to cooperate in the fight against terrorism and to prevent its incitement.^[29] However, instead of opposing terrorism, the Palestinian leadership has encouraged it, through its official media, its mosques and its schools. Indeed the so called “summer camps” intended for Palestinian children and youth have become military training grounds aimed at gaining skills appropriate for terrorist activity.^[30] The Interim Agreement specifically declares:^[31]
 

that both the Palestinian Authority and Israel shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other's authority and against their property and shall take legal measures against offenders.

It is difficult to find a more blatant breach of the Palestinians obligation to take steps suppress terrorism and to take action to prevent terrorist attacks.^[32]. Instead there is ample evidence to support the claim that the police force has with the knowledge and approval of the Palestinian leadership cooperated with terrorists and even formed part of their number.^[33]

To ensure Palestinian compliance with their obligations, the Interim  Agreement provided in Article XIII that Israel should  have the overriding responsibility for internal security [in Areas B and C] for the purpose of protecting Israelis and confronting the threat of terrorism.^[34] The Article also provides for its implementation by setting out special provisions in the Security Annex to the Interim Agreement, Annex 1. Thus, for example, Israel is entitled, for security and safety considerations, to close the crossing points to Israel and to prohibit or limit entry into Israel of persons and of vehicles from the West Bank and the Gaza Strip^[35]

 

Moreover Article XI of Annex I states that the Israeli military may take “engagement” steps (“immediate response to an act constituting a danger to life or property that is aimed at preventing or terminating such act or apprehending its perpetrators”) even if this occurs "within the territory under the security responsibility of the [Palestinian] Council.”

 

Whether such engagement steps contemplated the construction of the TSB or even anticipated such a project is open to debate, but it should be noted that nowhere in  Oslo II is there any limitation or prohibition regarding the construction of buildings or installations on land within the West Bank and Gaza; neither Israeli nor Arab. What Oslo II  does prohibit is any change in the status of such territory which is to be determined in final negotiations.

Until the commencement of the violence in September 2000, Israel military presence in Palestinian populated West Bank territory was minimal. As a result of the failure of the Palestinian Authority’s to fulfil its obligations under Oslo II to take affirmative and effective action against terrorism, Israel has been compelled to re-enter parts of the West Bank which it had  previously vacated

 

Although Israel has extensive powers to take action against security threats,^[36]  it has always recognised the limitations on such action set out in the Hague Regulations and the humanitarian provisions in the Geneva Conventions.  IDF compliance with these standards is ensured, in part, both by the IDF’s own code of conduct^[37] and the supervisory role played by the Israel’s Supreme Court in applying these rules generally to any questionable IDF action, and specific application of the rule of  proportionality.^[38]
 

Oslo was premised solely upon the PLO relinquishing its resort to violence as a means of attaining self-determination.  On that basis, Yassir Arafat, accompanied by his militants, was permitted to enter the West Bank and Gaza. The Palestinian Authority, as successor to the PLO, failed to take any steps to suppress terrorism. Israel, having relied on the PLO’s undertakings and changed her position detrimentally, is therefore fully entitled to rely upon those terms of the Interim Agreement which enable her to protect herself against the very harm which Oslo was intended to eliminate.

 

The British Government’s position that the Green Line should serve as the route for a TSB only rewards the instigators of violence for their action  and encourages the Palestinian Authority to disregard its international legal and political undertakings.

 

Even in the absence of the provisions of Oslo II, it is submitted that the scope of Palestinian terrorism is more than just an occasional breach of the peace or a series of unorchestrated offences against the criminal law. Having obtained a foothold in the West Bank, the scope of operation conducted by Palestinian militant-terrorist groups, tolerated, if not actively supported by the Palestinian leadership constitutes a concerted “armed attack” aimed not just at compelling Israel to withdraw from its occupation of the West Bank but has, as its ultimate objective, the replacing of the Jewish State of Israel with a single unitary Palestinian state.^[39]

(ii)     Inherent Right of Self Defence Against “Armed Attack”

(1) Generally
Article 51 of the United Nations Charter preserves the right of an individual or collective right to act in self defence “if an armed attack occurs against a member state”^[40]A number of questions arise at this point. (a) Must the perpetrator of the attack be a state? (b) How much damage or injury must be caused to the victim before the harm caused constitutes an armed attacks? (c) If some body or institution less than a State, such as pirates or terrorists to what extent do the characteristics of the perpetrator influence or affect the nature and extent of the defensive response? (d) To what extent do the answers to these questions bear on the application of the 4^th Geneva Convention?  

 a. The Perpetrator of the Attack

The language of Article 51 seems is quite open as against whom the right of self defense may be asserted.

 ”Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs^[41] against a Member of the United Nations…”

The Article is quite non specific in its requirement that a State, claiming the right to act in self defense, must be attacked by another State. However, until 9/11, it was generally assumed that for Article 51 to apply, the aggressor had to be a State, which according to the ICJ in the case of Nicaragua v. United States, ^[42] must be understood as including

 

“not merely regular armed forces across an international border, but also the sending by or on behalf of a State, of armed bands groups, irregulars mercenaries which carry out acts of armed force of such gravity as to amount to an actual armed attack conducted by regular forces or its substantial involvement therein.”

 

In effect, the ICJ adopted the General Assembly definition of  “Aggression”^[43] passed in UNGA Resolution 3314 in December 14, 1974.
 

Conceptually, the sovereign State is seen as having the exclusive control and jurisdiction over its armed forces, police and other security institution and therefore responsible for their actions. In the event of an any person or group of persons attacking the territorial integrity of another state or its citizens, the perpetrators would be dealt with under the criminal jurisdiction of the State from whence they emanated. If they were not so constrained, and there was evidence of complicity or concurrence by the State with those persons or groups perpetrating, that State would be deemed to be responsible for the aggression emanating from its territory- that is until September 12, 2001.

The international legal understanding of Article 51 was clearly affected by 9/11 if not before^[44]. In response to  the terrorist attack on the World Trade The UN Security Council passed Resolutions 1368 and 1373. The former condemned the event and the latter provided the international response in a demand for concerted action of UN member states to cut off the stream of finance to the terrorist operatives.

However the language of Resolution 1368 is ambiguous in that the operative clause of the Resolution neither refers the Article 51 of the Charter nor to the inherent right of self defence, nor indeed did it characterise 9/11 as an “armed attack.”  In the Preamble to the Resolution, the Security Council  “Recogniz[ed] the inherent right of individual or collective self-defence in accordance with the Charter” but in the operative paragraph, the Council condemned the terrorist attack and
 “regards such acts, like any act of international terrorism, as a threat to international peace and security.”

 

Strangely, the Council named neither the Compliant nor the Perpetrator. This may be explained by the fact that at the time, the Council did not have sufficient information at its disposal regarding the identity of the perpetrators or the extent of their connection with the responsible State.

Notwithstanding the absence of a specific reference to Article 51, in the aftermath of 9/11, many states^[45] have regarded an attack by a terrorist organisation as entitling the victim state to resort to self-defense^[46] At this juncture, the difficulty facing the victim state is to determine against whom to exercise its inherent right of self defense and in what manner.
 

International recognition of the victim State’s right to act in self defence against terrorist action is unjustifiably restrictive if applicable only in circumstances where it can be shown the terrorism is State supported or condoned. When the UN was established and its Charter drafted over 50 years ago, it was never contemplated that terrorists might possess weapons of mass destruction or be capable of operating on a global scale.^[47] In today’s world, to restrict a victim State from acting against terrorist action emanating from outside of its territory gives virtual immunity to any such organisation and encourages covert support for its activities by States inimical to the victim.

While it may be difficult in some cases to determine whether terrorist action is or is not state supported, a victim State whose citizens are wantonly killed or injured or whose property is destroyed must be in a position to take self defensive measures against any “armed attack” regardless of who is behind it, otherwise “self-defence” has no meaning.

                       
However, for the sake of argument, if one assumers that Article 51 is restricted only to repelling attacks instigated by another State, is it logical or reasonable to apply this to Palestinian instigated terror? While Palestine may not yet be a fully recognised internationally as a  State, it is certainly in the process of becoming one.
 

·        The Palestine Council proclaimed a State of Palestine in December 1988 with UN acknowledgement^[48] (although not recognition); it derives benefit from its current observer membership in the UN, including the right to initiate legal action against Israel in the International Court of Justice;^[49]

·        The General Assembly, in defining “Aggression” in UNGA Resolution 3314,^[50] “as the use of armed force by a State against the sovereignty… of another State…” noted that  “ the term "State":…”[i]s used without prejudice to questions of recognition or to whether a State is a member of the United Nations

·        The Palestinian Authority has assumed  the responsibilities which a State is expected to undertake, including  its adherence to the 4^th Geneva Convention and the two Additional Protocols.^[51]

·        Under Oslo II, the Palestinian Authority wields extensive civilian authority over 95% of the Palestinian population, maintains a “strong police force” and undertook to take measures to control terrorism and the spread of illegal weapons.

·        In its relationship with Israel, Palestinan territory, population and activities are considered sufficiently “transnational” for its to be considered an international dispute.
 

In assuming these obligations, the Palestinian Authority cannot disclaim responsibility for the consequences of terrorist action under the guise of not being a State. Neither can its leadership claim to be incapable of asserting its authority and exercise responsibility in controlling terrorism. The Authority in facts supports the terrorist activities of the various organisations sheltering within the OPT.^[52] It encourages Combatants to become indistinguishable from Non-Combatants contrary to the Geneva Convention; it finances and supports terrorist militants under their jurisdiction to commit “Grave Breaches” of the Convention in the intentional killing and injury to non-combatant Israeli civilians. Indeed it is arguable that until the Palestinians do in fact take such responsibility, they should be denied international recognition and status of a fully sovereign State.^[53]

 

The implications of the intentional blurring by the Palestinians of the distinction between Combatants and Non-Combatants has direct impact on the modality by which Israel seeks its means of defence. While this is discussed in detail below in paragraph 5 a. it should be noted that combatants who do not distinguish themselves from non-combatants lose their special status as prisoners of war. Combatants who commit Grave Breaches are also in theory, supposed to be arrested and brought before the courts having jurisdiction over them, and tried in accordance with penal legislation which a State adhering to the Convention is required to have enacted to cover such offence.

Needless to say, that almost without exception, the Palestinians have ignored Israeli demands that known terrorists be apprehended, tried and incarcerated. In those rare cases where terrorists have been tried by the Palestinian Authority, their “imprisonment” has been of very short duration employing the “revolving door”^[54] and they have been permitted to continue to communicate freely with others of their group. It  might be said that such terrorists were taken into protective custody to prevent their being killed or captured by the IDF. What is clear, however, is that there has been complicity between the  Palestinian Authority and the terrorist movements. 

It is submitted that under these conditions, Israel is entitled to take defensive measures against attacks directed at its civilian population within the framework of Article 51. Not only is there UN Security council precedent for such action against a non-State, but Israel justification for taking direct self -defensive action against the Palestinian Authority and the terrorist groups operating under its auspices, with its knowledge and consent  is even  stronger than that taken by the United States against al-Queda.

Consider the parallels between the two situations

.

·        9/11 was a single attack committed by a terrorist organisation against a member of the United Nations and directed at a purely civilian target within its jurisdiction.
The same conditions apply when Palestinian suicide bombers attack Israeli civilians within Israel except that Israel has absorbed over 20,000 attacks since September 2000, details of which are set out in section b. below

 

·        The objective of US action appeared to be retributive or punitive and operates retroactively. It did not appear to take into account the “rule of proportionality”, namely that the defeat of the terrorists and their supporters by carpet bombing areas of Afghanistan outweighed the collateral damage caused to innocent non-combatants.

In Israel’s case, the objective in constructing the TSB is prospective and preventative in its operation, and takes into account the proportionality of the benefit to be derived by Israel as against the injurious “cost” to non-combatants affected by the TSB.

 

·        In 9/11, the terrorist attack was perpetrated by a group not claiming to adhere to the Geneva Convention and having  a religious rather than nationalistic motivation and support.

In Israel’s situation, the suicide bombers are directly supported and encouraged not by a "non-state",  but by a “State-in-the-Making,” purporting to adhere to the Geneva Convention, but nevertheless intent upon recovering territory not by negotiation, but by aggression contrary to the whole spirit of the UN Charter and by Grave Breaches of the Convention.

b.      “Armed Attack” The Scope of Palestinian Terrorism 

Terrorist incursions into Israel have not been occasional or sporadic such as to require Israel to absorb the threat to her population without response.^[55] Neither has Israel’s response in constructing the TSB been a “pre-emptive” act of self defence. On the contrary. Since September 2000 Israel has been involved in what is termed “armed conflict short of war”^[56] in a multitude of attacks initiated and directed by Palestinian unlawful combatants^[57] against Israeli Army outposts and more particularly at Israeli non combatant civilians. As has been shown above, the Palestinian Authority has been supportive of and involved with the terrorist leadership, which has been directly involved in the recruitment, training and dispatching of “homicide bombers. ^[58]  While their ultimate political objectives remain unclear,( either replacing Israel with a Palestinian State having jurisdiction over the whole of the West Bank or a two State Solution, including the return of all Palestinian  refugees to within Israel- which amounts to the same thing as the “replacement” objective) their method of attainment is to create fear among the Israeli civilian population, and in the process to cause as much physical^[59] and psychological injury as possible to their victims.^[60]

The question which confronts Israel and the international community is whether the nature and scope of the terrorist incursions into Israel constitute “armed attack” taking into consideration (i) the magnitude and scope of the operations;^[61] (ii) their commission by persons acting contrary the Hague Regulations^[62] constituting “Grave Breaches” of  the 4^th Geneva Convention (iii) employing means which result in the indiscriminate and “wilful killing” of innocent civilians, wilfully causing them “great suffering” or “serious injury”.^[63]  

Although generally the media and government state that they recognise Israel’s right to defend itself, neither, however, acknowledges the scope of the terror which confronts Israel nor accepts, as being legitimate, the steps which Israel has taken to prevent the terrorist incursions. The scale of these attacks impacts directly on the manner in which Israel is entitled to respond while complying with the rules of combatant-civilian distinction, military necessity and proportionality imposed by international law.^[64] These latter factors bear directly on the validity and veracity of the conclusions contained in the UK Parliamentary and Governmental reports.

It is submitted that no fair and balanced conclusion can be made as to whether Israel is conducting itself properly or otherwise without considering the scale, scope and extent of the danger with which Israel is confronted and the manner in which it is combated.

 

(2)  Scale of the Terror
Between the beginning of the current Intifada which started on September 30, 2000, and May 9, 2004 the following incidents of armed attack have    occurred:

a.       21,575 Palestinian militant /terrorist attacks have been directed against Israel and her citizens;

b.      950 Israelis have been killed of which 672 were civilians.

c.       402 of these deaths were caused by suicide bombers; and

d.       6,355 people have been injured, of which 4,475 were civilians.^[65]

 

(3)   Distortions in Statistics

 

Significantly, the usual fatality count quoted in news articles presents an inaccurate and distorted picture of the al-Aqsa conflict, exaggerating Israel’s responsibility for the death of Palestinian non- combatant civilians. For example, the database compiled by International Policy Institute for Counter-Terrorism^[66] shows, that between September 27, 2000 and May, 2004, a total of 921 Israelis killed, compared to 2806 Palestinians – numbers in general agreement with media reports.
But such numbers hide more  than they reveal: They lump (a) combatants in with non- combatants, (b) suicide bombers with innocent civilians, and (c) report Palestinian “collaborators” murdered by their own compatriots as if they had been killed by Israel

While Israelis account for 32% percent of the total fatalities as generally reported, they represent 42% of non-combatant victims. If one then analyses the characteristics of the non-combatants, it emerges that

1.      in respect of  female non combatants killed by the other side, 75.4 % were Israeli (280) in contrast to Palestinian women (91);

2.      of non-combatants below the age of 12 years and over the ages 45 years,  70.6%  were Israeli; and

3.      of  “non-combatant” males falling of more or less within the

operative combatant age range (12-29 years) and killed  by the other side, 75% were Palestinian.(535)

 The above analysis shows a clearer picture of the conflict than the “raw data,” and demonstrates that Israeli female civilians and males outside the “combatant” ages are the main victims of the terrorist war, while Palestinian “non-combatants” of combatant age and sex are, contrary to their appellation, very actively involved.^[67] The statistical analysis is likely to become more complicated and indeterminate if Palestinian “non-combatant” women,  children and elderly heed the call by the Palestinian Authority to confront Israeli forces in areas where armed battles are being waged with Palestinian terrorists.^[68]   

 

(4)  Statistical Extrapolation to UK

To appreciate the scale of these attacks even further and the number of fatalities and injuries, one should bear in mind that Israel is the size of Wales and that her population is 1/10^th of that of the UK. Therefore, Israel has had to absorb the equivalent, in UK terms, of some 215,000 attacks in the last 3 ½ years, 9,500 deaths and 63,000 injured.

(5)  Israeli Reaction to Terrorist Armed Attacks

After having absorbed extensive attacks initiated by Palestinian terrorists with the support of the Palestinian Authority from the inception of the Intifada in September, 2000 and as a consequence of  both the Dolphinarium^[69] and Park Hotel Passover massacres,^[70] Israel has been the object of armed attack and is, as the both the Committee and the Department admit entitled to act in self defence.
Israel has elected to respond in two directions. Offensively, it  launched a direct military attack Operation Defensive Shield (“Homat Magen”) against terrorists and their places of refuge in the major Palestinian cities in the West Bank and Gaza. Defensively, it has began the construction of a Terrorist Security Barrier (“TSB”), the route of which lies mainly over the “Green Line.”

Between June 29, 2003 and June 3, 2004,  during which period Operation “Homat Magen” was executed, and the completion of  construction of the initial sections of the TSB,  the number of  “successful” attacks has dropped dramatically, as have the corresponding number of those killed and injured. According to figures released by the IDF:

·        161 suicide bombings have been thwarted, while 27 have succeeded;

·        150 Israelis have been killed, of which 102 were civilians; and

·        782 persons have been injured, of which 535 were civilians.^[71]

 

The fact that the media has not reported many “incidents” recently does not mean that the wave of terrorism has subsided: the existence of the TSB and the occasional IDF operations directed towards capturing known terrorists has made it very much harder for them to penetrate Israel.^[72]
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       The location of the fence beyond the “Green Line” does however raises questions as to whether it unjustifiably affects Palestinian human rights and whether its very location is “illegal” as the UK Government asserts.      
Before examining these issues, however, it is appropriate at this stage to examine the nature of the TSB, the manner in which its general route has been determined and the humanitarian and other considerations which the Israel authorities have taken into account before or during its actual construction.