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Separation Barrier, Closures and Checkpoints

in “Occupied Palestinian Territories” and

Postscript to the International Court of Justice Decision on the Barrier

PART II

 Gerald M. Adler *

 

To Part I

 

3.   The Nature of the TSB and the Factors in Determining its Location

 

a.  General Extent, Nature and Purpose of the TSB

The decision by the Israeli Government to establish the Security Fence Area was reluctantly approved
[73] in July 2001 after other methods to save Israeli citizens from imminent threats to life, personal injury and property damage caused by West Bank Palestinian terrorism had been tried and failed.[74] After taking the initial decision in principle,[75] it later became clear that partial sections of fence were unable to contain the terrorist activity and that a contiguous fence was necessary. In June 2002 a further decision was taken to extend the TSB from Beit She’an in northern Israel to Arad in the south.[76]   

The construction of the TSB is neither ideologically nor politically motivated; it neither annexes territory nor is it intended to establish a border.  Neither does it change the status of the land or its ownership, nor the legal status of the residents of the areas affected.

It is a temporary measure against an immediate threat to Israel’s citizens until such time as they and the Palestinians can move towards a peaceful settlement in which an international border can be agreed through negotiations.

Israel's Supreme Court
[77] has already determined that as a means of  self-defence, the State is entitled to employ a variety of measures in order to prevent and deter acts of terrorism. The TSB is one such preventive measure. The Court has, however, exercised its judicial review powers over governmental and IDF activity to ensure that the Israeli security requirements are balanced against Palestinian humanitarian needs. [78] These will be discussed below.

 

b.      Character of the TSB

Considerable public rhetoric has been levelled at
Israel for its decision to construct the fence. The national and  international media has grossly misled the public perception of the nature of the TSB. The pictures which  have appeared on the television show it as a high concrete wall and its appellation “the wall” by news commentators and reporters is tendentious.  In fact only 5% of its length is made of concrete, resembling highway sound barriers used in the US and Europe. It has been constructed in those areas where Palestinian snipers can, and have, shot at Israeli civilians on roads or in nearby towns.[79] It is therefore erroneous and misleading to term the barrier as a “wall".

The media  and other public figures have compared the TSB to the “Berlin Wall”.[80] Any such comparison is false and malicious.

Unlike the Berlin Wall, the TSB is not intended to be a permanent structure. It is neither electrified
[81] nor is there any automatic machine gunfire if attempts are made to cross it. It neither seeks to create and maintain the division of single people or to curtail their freedoms. On the contrary, the fence is intended to separate two peoples, differing in culture, political outlook and values, allowing each to go about its normal business without the threat of terrorism until the parties are able to negotiate a settlement.
 
The vast majority of the TSB in fact consists of  chain link fencing. Depending on the topography, engineering and other factors, the fence area covers a 40-60 meters wide strip of land.
[82] At its centre runs a technologically advanced electronic intrusion detection fence, which is designed to indicate if the fence has been penetrated. A dirt tracking path has been laid on the western side to indicate if the fence has been crossed  as has asphalt paths on both sides for vehicular access. Observation systems supply additional warning, while military and border police personnel will patrol along its length to counter any unauthorized attempt to cross into Israel. In a number of places, high ground is chosen as the preferred route in order to prevent sniper fire on population or transportation arteries located lower down. Significantly many of the lower areas where the 1948-67 Armistice line was located were rejected as unsuitable both on engineering grounds and from a security perspective.[83]

      While the factors which determine the route of the TSB are multiple: topography, engineering difficulties, population density, and threat assessments, they also take into account humanitarian, archaeological and environmental concerns. The overriding concern, however, is security balanced by humanitarian considerations

At the cost of some of its security,  Israel has tried to avoid including Palestinian village agricultural land on the Israeli side of the fence. Attempts have been made to avoid separating landowners from their lands. Where this is unavoidable, some 40 agricultural gates are to be built, manned and operated by the IDF so as to allow farmers to gain access to their lands. The functionality of the gates and the times of their operation are co-ordinated with the local population in each area.

In order to alleviate difficulties imposed on many residents of the OPT who are employed in Israel and to minimize obstruction to trade, the planning and construction of the TSB includes 11 checkpoints allowing two-way pedestrian and vehicular passage.  These checkpoints will facilitate inspections of people and goods across the fence, like those present at many international borders. In particular, five commercial checkpoints for the transfer of goods are to be built similar to the Karni check point close to the city of Gaza. Such inspections are necessary for security purposes as experience has shown.

Upon completion of the fence, the present barriers existing between Israel and the West Bank will either be removed or integrated into the TSB. Barriers erected within the Palestine Occupied Territory will be removed with the exception of two.
[84] Consequently, there should be less ground for Palestinian complaint. The elimination of the barriers will permit the free movement of  population and goods within the territory and the real GDP of the Palestinians should increase accordingly.

c.       Check Points: Transfers of Goods in “Back to Back” Operations

In connection with the commercial checkpoints, the Committee asserted that the “back to back” transfer of goods which are operated at such check points were not always justified by security considerations.

While for those Committee members who observed one check point at Awarta[85]
the back to back transfer may not have appeared to have  been security oriented, the alternatives to such a procedure have been considered by security sources. Apart from the option presently in operation,  there are three other possibilities: two pose a significant security risk while the third is politically and economically unacceptable: (i) no inspection, (ii) sample inspection or (iii) complete prohibition on import and export of goods. In the circumstances, “back to back” transfer is the only feasible solution at present- and even this has its security risks.

Since the issue of the Committee’s report,  Israel has captured the Hamas terrorist dispatcher of two suicide bombers who succeeded in penetrating Ashdod Port on March, 14, 2004, in which 10 civilians were murdered and 12 others were injured. The dispatcher was planning to mount another attack into Israel by smuggling two suicide bombers who were to be hidden under a double floor within a container. Furthermore the Hamas operative was also intending to purchase trucks and establish a company for transporting containers from the Gaza Strip into Israel as cover for smuggling terrorists into Israel.
[86] Consequently the transfer of goods “back to back” from Palestinian to Israel containers and trucks would seem more than justified given the risks, particularly where the potential target is Ashdod Port. Located there, are not only fuel but gas and chemical tanks, which had they exploded, would have caused devastating damage to the whole city of Ashdod as well as to its port facilities.

d.      Humanitarian Treatment of Civilian Passage at Check Points

The Committee referred briefly to
Israel’s efforts to make the treatment of Palestinians more humane at the check points and noted that cases of harassment and delays continue to be reported.

Before levelling criticism in this direction, the Committee should be aware of the difficulty in finding the balance between security and humane treatment at times when the civilian population movement is high. The writer spent a full day at the Kalandia checkpoint (near Jerusalem) and noted the following points, which while not presenting the full picture,  expands and responds to the Committee’s criticism and comments:
 

a.       The responsibility for the security of the checkpoint is in the hands of young IDF soldiers.[87]  They are assisted by a number of veteran volunteer reservists who check the Palestinians’ credentials and who pay particular attention to family groups, women and children.[88] The reservists stand at the checkpoints in a non-aggressive posture with their weapons slung over the shoulder and frequently without steel helmets. The volumes of civilians passing the checkpoints are neither small nor steady. At Kalandia, for example, approximately 20,000 people pass daily.[89] They do not move in a steady stream but come in waves, such that at times, effective control becomes difficult, if not impossible. On such occasions, it is extremely difficult for volunteers to determine whether a group of pedestrians approaching the check-point are reaching into their pockets for identity cards or for weapons. If unfortunately the latter transpires, there is almost no time in which to react. This inability creates special tension which is heightened when those passing the check point behave in an unruly fashion or act in an intentionally provocative manner.

 

b.      Palestinian youths often attempt to avoid the check points or to obtain passage without documents. In two cases witnessed by the writer, Palestinian behaviour was intentionally provoking, such as to cause the IDF security personnel to react. Without having first perceived the immediate cause which prompted the IDF response, one might have concluded that the youths were being unjustifiably delayed and harassed.

 

c.       Journalists and humans rights activists are often to be found present at the checkpoints as observers. This, of itself, is not problematic. Their very presence is a manifestation of the openness with which the IDF performs its functions and is a positive feature of which Israel can be proud. However, the situation often becomes stressful, adding to the burden of the IDF, when volunteer groups, such as Women’s for Human Rights “Machsome Watch,” become participants and attempt to interfere with soldiers acting in the course of their duty.[90]

 

d.      A serious problem confronting those who man the checkpoints is identifying and preventing the entry into the West Bank of “agent provocateurs” intent on disrupting Israeli efforts to maintain law and order while acting in a humane manner.  Foreign “visitors”, under the auspices of NGO’s such as the International Solidarity Movement (ISM), purport to assist and support Palestinian opposition to the West Bank occupation in a non-violent fashion. In fact they directly assist terrorists to evade IDF pursuit and intentionally harass Israeli forces preventing them from maintaining peace and order.[91]  

 

4.   “Human Rights” Distinguished from “Humanitarian” Rights:
       Not “Policing” but “Armed Conflict”

The nature and extent of the attacks on Israeli citizens set out above demonstrates that Israel is not involved in an excessive or illegal “policing” operation, causing breaches of  “human rights.” On the contrary, the extent of the terrorism described above clearly demonstrates that Israel is currently engaged in an “armed conflict short of war” [92] and is acting in self defence within the terms of the UN Charter Article 51.[93]

It is important to distinguish between illegal violence and intentional or negligent killing during a “policing” action which results in an infringement of human rights from what is apparently similar conduct which occurs as an act of belligerency (warfare) in the course of pursuing a legitimate military objective.

“Human Rights” in the maintenance of law and order (“policing”) are not coextensive with the  “humanitarian principles” set out in the 4th Geneva Convention under which a war is being fought. The difference is seen, for example in the legal process and its consequences arising out of the killing of civilians.

In a policing operation, the details of every killing or injury should be examined in the light of the legislation in force, and the guilt or innocence of the perpetrator is decided in a court of law by due process. This entails:(i) a finding of the facts which constitute the offence, (ii) whether the accused had the necessary intention to commit the offence (iii) a judicial decision with the outcome in either acquittal or conviction, and (iv) release or punishment/sentence.
 
In a situation of armed conflict, military action which results in killing, bodily injury or other outcome in the prosecution of the war is legitimate; belligerents may respond with force and shoot to kill if attacked. Such conduct is legitimate provided the military action does not contravene the humanitarian principles forming part of the Laws of War expressed in the Hague Regulations and 3rd  and 4th  Geneva Conventions and extend beyond what is proportional. While the Regulations are primarily concerned with the manner in which war is waged and the rights of non-combatant civilians take a secondary place, in the  4th Geneva Convention, however, humanitarian right are central.

In determining the legality of the conduct of the occupying forces in prosecuting the war and, while so engaged, their relationship with the civilian non-combatant population, three major principles emerge: (a) occupying forces are required to distinguish between combatants and civilians; (b) their action must be grounded on military necessity and (c) the incidental damage caused to non- combatants by the military operation must not be out of proportion to the military advantage which is gained by that operation.
 
The application of these three criteria to the TSB will now be examined.

5.  Legitimate Military Responses in Armed Conflict
 

a.   Distinguishing between Combatants and Civilian Non-Combatants

 

In a situation of armed conflict, non-combatants are specially protected. Neither their persons or property may be intentionally injured by an occupying power except in the case of military necessity, nor can they be subject to collective punishment or reprisal. Unfortunately, the distinction between a civilian and combatant in the present conflict is intentionally blurred by the Palestinians. Their militants do not comply with the Hague Regulations.[94] They lack a defined and responsible command structure. They do not wear uniform or insignia so as to enable themselves to be distinguished from non-combatants. Those involved in suicide bombings do not carry their weapons openly. Furthermore, the manner in which the Palestinians conduct the present conflict is contrary to the laws and customs of war, in that their military opposition to Israel has in the past- even before the occupation- and still is at present, directed to causing terror among Israeli civilian population and utilising weapons designed to cause as much death and personal injury as possible.[95]

Contrary to the Geneva Convention, Palestinian terrorist organisations attempt to use the presence and movements of the civilian population to render themselves and their places of operation immune from Israeli military operations.
[96] Weapons are prepared and manufactured in civilian workshops and garages, while residential buildings are used as vantage points for sniper fire. In Gaza, residential buildings conceal tunnels[97] in which Palestinian militants smuggle illegal weapons and explosives from Egypt.[98] Civilians, both women and children, are often used as human shields to accompany the movement of terrorists from place to place thus protecting them from IDF attack or capture.[99] Women and children are also manipulated by the Palestinian Authority[100] and used to confront Israeli troops in so called civilian disobedience demonstrations[101] or are “employed” by Palestinian terrorists as unknowing and unwilling potential suicide bombers.[102]  Ambulances together with their drivers[103] exploit their immunity by conveying terrorist suicide bombers towards their destination and to transporting combatants, their weapons and explosives. The immunity of hospitals[104] and places of worship are also exploited  (sometimes with the co-operation of their lawful occupants) to conceal and protect terrorists evading capture. [105]

 

In preventing and suppressing terrorism, Israeli forces are often confronted by what appears to be a “peaceful” non violent demonstration in which crowd control should be maintained by normal policing methods. Unfortunately in such demonstrations, armed Palestinian are often secreted among non-combatants indistinguishable in their dress. What may have commenced as an apparent non-violent protest suddenly becomes an armed confrontation in which policing measures to restore law and order are inappropriate, and military action is demanded. Any resultant Palestinian deaths –civilian or combatant- are improperly condemned as disproportionate Israeli action in response to combatants who themselves have acted contrary to the rules of war.

The result of the intentional blurring of the distinction between non-combatants and what might be termed “unlawful” combatants certainly deprives the latter of any claim to POW status. Such combatants may be killed or injured on sight without liability on the part of
Israel. If captured whether they retain any rights of protection apart from trial is unclear. Whether killed or captured, however military action against terrorists may also result in the unintentional killing of genuine non-combatants - a consequence which the terrorists try to bring about for propaganda purposes. The lack of distinction also places Israel in the difficult position of taking preventative action in the form of the TSB, without it being viewed as collective punishment.
 
The difficulty of distinguishing between combatants and non combatants becomes more complicated if one considers and attempts to apply the provisions of  the 1977 Protocols to the 4th Geneva Convention, which Israel and many other nations who have experienced terrorism have not accepted.
[106]
Indeed Protocol 1, Article 44 now re-defines a “combatant” in a more limited manner while Article 52 expands the protection to which the civilian population is entitled, have substantially changed the Geneva Convention. These provisions in effect exclude from the range of illegal activity the establishing, financing  and maintaining a terror group, including the recruitment of new members, their  training, and the planning of an operation; in fact all the activities short of directly dispatching the suicide bomber to his/her target. Protocol 1 advances the interests of those intent on establishing their self determination by violence and makes a travesty of the Convention and its objective of safeguarding non-combatant civilians.
[107]
One scholar of international law
[108] has suggested that in the current situation where terrorism is employed as a means of attaining self determination the distinction as set out in the Conventions is not realistic:

”…[T]he law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.
[emphasis gma]

At present, international law does not recognise the suggested continuum of “civilian-ness” and therefore, in order to maintain the balance between military necessity and the humanitarian aspects of the laws of war, it is submitted that there is a complementary obligation which must be maintained. If, contrary to the customary laws of war embodied in the Hague Rules and the Geneva Conventions,  Palestinian militants, with the tacit consent, support and co-operation of “non-combatants” and of the Palestinian Authority, prevent Israel from being able to distinguish between combatants and non-combatants, then Israel must be excused from its responsibility for damage caused to non-combatant Palestinians by Israeli military action in general,  and the negative impact of the TSB in particular. Any actual injury to genuine non combatants caused by the TSB can be taken into account when applying the rule of proportionality. This considers the collateral damage caused to the civilian population and the extent of their involvement in the conflict when military necessity dictates taking action against combatants, both lawful and unlawful; (the latter being combatants in civilian guise).

 

b.      Military Necessity

 

Early military conventions concerned themselves with maintaining a balance between the manner in which war was to be waged and the humanitarian considerations of the combatants. The rights of non-combatant and their concerns, if recognised, were marginal. However, contemporary conventions place the protection of human rights of non-combatants as their central objective. To the extent that military necessity is recognised, it is expressed as an exception to general rules.[109]

Belligerents do not have the unfettered right to overcome the enemy by any means.
[110] In order to realise a justified and essential military objective, military necessity implies the right to apply

only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of  the enemy with the minimum expenditure of time, life and physical resources.[111]

 

Reference to the United States Army Manuals indicate that until 1956,[112] military necessity justified a resort to all measures which are indispensable for securing the submission of the enemy which are not forbidden by the modem laws and customs of war. This admits of


all direct destruction of life or limb of armed enemies and of other persons whose destruction is incidentally unavoidable in the armed contests of war; it allows of the capturing of every armed enemy, and of every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever the enemy's country affords that is necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith, either positively pledged, regarding agreements entered into during the war, or supposed by the modem law of war to exist[113] [verbatim from General Orders lOO, art. 151].”

 

Subsequent to 1956, the definition "military necessity" has been simplified in the form of a general principle as “that which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible[114]

 

What military necessity does not permit is the infliction of suffering for the sake of suffering or for revenge nor of the wanton devastation of a district. [115]

A review of the Regulations and the Conventions discloses that some actions are completely prohibited and do not fall within the ambit of military necessity. Actions such as the treacherous killing or wounding of individuals belonging to the hostile nation or army
[116] or the intentional causing of violence to life and to persons taking no active part in hostilities[117] form no part of the IDF philosophy.  In contrast, other actions, normally considered illegal, such as the destruction or seizure of enemy property, are permitted if demanded by the necessities of war.[118]

In respect of Israel’s action to erect the barrier, the issue should be viewed from four perspectives: (i) the authority in the Occupying Power to regulate the movement of population; (ii) the use or destruction of property on the grounds of military necessity; (iii) in the circumstances now faced by Israel, whether military necessity dictates use of property for erection of a  terrorist security barrier; and (iv) due process in determining the route of the Fence so as to maintain a balance between military necessity in constructing the barrier and the collateral damage to non-combatants caused by the construction.


(i) Regulation of Population Movement for Security Purposes

International law gives a limited right to an occupying power to regulate the movement of population within the territory.
Upon taking control of captured territory, the occupying power is obliged to take all measures to restore and ensure, as far as possible, public order and safety,
while respecting unless absolutely prevented, the laws in force in the country.[119] One such law still in force in the OPT which authorise measures against terrorist action is to be found in the Defence (Emergency) Regulations 1945.[120] These were promulgated by the British Mandatory Government were neither repealed by Jordan during its occupation of the West Bank nor subsequently by Israel.

Although these Regulations have not been employed by Israel as the legal basis for the construction of the fence, they do provide authority for regulation of  population within the “Seam Zone” (i.e. the area between the fence and the 1967 Armistice Lines).

 

Part XV of the Defence Regulations authorizes its application to any area or areas specified in the Order which is declared by the Military Authorities to be a “Controlled Area.” [121]  The area of the Seam Zone has so been declared. The legislation authorises the military authorities to control the entry into or exit from a Controlled Area,  or to remove from the Area, any person, vehicle, vessel, animal or other thing except with permission granted by or on behalf of the Military Commander.[122]  Since a general prohibition on all persons entering or exiting from a Controlled Area might be unjustifiable in particular circumstances, the Military Commander is authorised to mitigate the severity of the regulation and to make provision for preventing, removing or mitigating hardship which has arisen or may arise as a result of  restrictions imposed in the Controlled Area.[123]  From a legal perspective, therefore, in reliance on existing legislation in force within the OPT before Israeli occupation, the IDF Authorities have power to declare the area between the fence and “Green Line” as a Controlled Area and to prevent all persons from entering there other than local inhabitants, thereby enabling them to carry on their agricultural, business or social activities.

 

Unlike the Hague Regulations and the Geneva Convention, the application of these Defence Regulations are not constrained by having to demonstrate “military necessity.” However, Israel has always declared that the humanitarian provisions of the Convention are applied in the territories. Israel may, therefore, as a matter of policy, although not required by law, apply the humanitarian constraints on military action found in the Convention to the Defence Regulations. In this regard  Article 27 of the Convention declares that while protected persons are entitled to respect for their persons, honour, their family rights, manners and customs, the parties to the conflict may, however, take such measures of control and security in regard to protected persons as may be necessary as a result of war.[124]

Until the commencement of the violence in 2000,  no border or natural obstacles existed between Israel and the areas controlled by the Palestinian Authority. This absence of  control enabled  the unhindered entry of  potential terrorists into Israel. Experience has shown, however, that a security fence is effective against terrorist incursion. The fence constructed along the Gaza Strip has proven its defensive robustness and the vast majority of infiltration attempts through it have been discovered and thwarted
.[125]    
In these circumstances, and in order to safeguard both Israeli and Palestinian protected persons against terrorist action, there appears to be no legal impediment preventing Israel from regulating population movements in and around the Seam Zone. In the absence of regulation, unlawful combatants, secreted among or disguised as non- combatants, would
be are able to move about freely in and around the area of the TSB, with the potential of becoming a destabilising factor in the area. In the absence of regulation, Palestinian militants would be in a position initiate gunfire and conduct other military activity in a manner similar to that which Islamic terrorists used the Christian Arab village of Beit Jalla in November 2000, as a vantage point from which to fire upon the civilians residents of Jerusalem suburb of Gilo.[126]
 

(ii) Military Necessity in Use of Land 

A review of the provisions of  Hague Regulations, the 4th Geneva Convention and the Defence (Emergency) Regulations give explicit authorisation for the use of land in occupied territory and for the requisition of private property in cases of military necessity. The provisions also extend to the destruction of such property is such be necessary.
 

·        Use of Private Land
From the international legal perspective, while Article 46 of the Hague Regulations states that private property must be respected and cannot be confiscated, Article 52 qualifies this blanket restriction, in that “requisitions in kind… shall not be demanded from… inhabitants except for the needs of the army of occupation…”  

In addition, the local Palestine Defence (Emergency) Regulations in force since 1945,  give broad powers to the competent authority, namely, the Military Commander, to take possession of
any land (whether private or public), if it appears to him “necessary or expedient so to do in the interests of the public safety, the defence of Palestine, or the maintenance of public order,” [127] and to use it for such purposes and in such manner as he thinks expedient.[128] It is submitted that suppression of terrorism and prevention of “armed attack” both within the West Bank and beyond it, would fall within the ambit of maintaining public order and reduces the need for control barriers within the West Bank. Even if the argument based on public safety and public order is not sustainable, the Military Commander can resort to and apply other provisions contained in the Defence Regulations which authorise him to use any requisitioned land for military purposes, and to permit any [129]persons previously entitled to use the land to continue to use it in such manner as he may specify. In such event persons adversely affected by the requisition are entitled to compensation.[130] Where private property is required for the building of the fence or restrictions are imposed on access to land, compensation is paid both for its present value and future loss of use estimated for a five-year period.

Use of Public and Waste Land

The use of public land by the Occupying Power is specifically authorized by Article 55 of the Hague Regulations and its use is not dependent on military necessity. The Regulations merely state the Occupier acts as the administrator of the property and is required to safeguard the capital of the property and administer it in accordance with the rules of usufruct

Although these rules are not defined
, [131] “usufruct” is the right to enjoy property owned by another, and to derive from it all the profit, utility and advantage which it may produce, provided the substance of the thing remains unaltered.
 
Unlike the extraction of oil by the Occupying Powers in Iraq (which affects the extent and value of a non renewable natural resource) the use of any waste or agricultural land for the purpose of the TSB is an appropriate exercise of the right of usufruct. When the threat of terrorist incursions has been removed, the TSB can be removed and the lands revert to its previous use; crops can be sown again without serious detrimental effect.
[132]

As noted earlier the Defence Regulations also permit the use of public land for the purposes of public safety and order and for military purposes.  

 

·        Destruction of Property
In general, it is expressly forbidden “to destroy or seize the enemy’s property.” However Article
23(g) of the Regulations permits such destruction or seizure if it “be imperatively demanded by the necessities of war.”  Article 53 of  the  4th  Geneva Convention extends this principle to include the permitted destruction of real or personal property belonging individually or collectively to private persons, to the State or other public authorities if such destruction is rendered absolutely necessary by military operations.

The issue as to whether, without the agreement of the owner, private property may be destroyed for the purpose of constructing the TSB has not been judicially examined tested  to the best of the authors knowledge. There has been only case in which destruction of a residence became necessary for this purpose and the matter was settled amicably. However there is no doubt that where property, such as buildings or trees have been used as cover for sniper fire, the making and storing of explosives or other terrorist activity, the Defence Regulations authorise the destruction of the property.
[133]


(iii) Military Necessity in the Erection of the Barrier
 
In the current situation, the question is whether the construction of the fence on what is claimed to be Palestinian territory is necessary, militarily, and for what purpose.

Israel’s declared and clear purpose is not just to weaken the opposing military forces, while an uninvolved non-combatant population looks on
(as was the objective in nineteenth century wars).[134] Israeli reaction is prompted by two objectives (i) to prevent the direct and intentional killing and bodily attacks directed at its own civilian population and damage to their property (ii) to pursue and eliminate “unlawful combatants,” who perpetrate such acts and who, in the process, commit grave breaches of the Conventions and  do not comply with the laws of war.

Many other methods of preventing terrorism have been tried and have failed. The proposed means of preventing continuing terror by the construction of the TSB on both private and public land, together with some destruction of crops and trees, has been military assessed as being crucial to achieving that end
.[135] 

The decision by Israeli military authorities that particular land or buildings are required for military purposes can be challenged before Israel’s Supreme Court acting as the High Court of Justice.  As will be demonstrated below in the discussion of the recent Supreme Court decision given in
Beit Sourik,[136] the judicial arm of the Israeli government has not given carte blanc approval to, and automatically rubber stamps, all actions of  the IDF as being covered by military necessity.
 
In response to the allegations that the construction of the fence was motivated by political considerations and should be erected on the “Green Line” – the armistice line agreed between Israel and Jordan after the War of Independence, the Court stated:
[137]
 

We accept that the military commander cannot order the construction of the Separation Fence if his reasons are political. The Separation Fence cannot be motivated by a desire to “annex” territories to the State of Israel. The purpose of the Separation Fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire Land of Israel. This question was answered by this Court in the negative.
 

In a similar vein, the Court reiterated its position that a military commander is not permitted to take the national, economic, or social interests of his own country into account. Chief Justice Barak referred to one of his earlier decisions regarding the taking of land to expand a road, in which he stated[138]:

 

The military administration is not permitted to plan and execute a system of roads in an area held in belligerent occupation, if the objective is only to construct a ”service road” for his own country.  The planning and execution of a system of roads in an occupied territory can be done for military reasons . . . the planning and execution of a system of roads can be done for reasons of the welfare of the local population.  This planning and execution cannot be done in order to serve the occupying country.

 

The court emphasised that the authority of the military commander is inherently temporary, just as belligerent occupation is inherently temporary, even though the occupation may have continued for many years. The passage of time cannot extend the authority of the military commander so as to allow him to take into account permanent arrangements beyond the proper administration of the area under belligerent occupation.
 
After considering the Israel Cabinet decisions,
[139]and the extent of  damage caused to Israel by terrorist activity,  the Court concluded that the Fence did not express a political border, or any other border, “but was motivated by security concerns alone, designed to contend with the threat of Palestinian terror.” 

Specifically, the Court found that the Fence is intended to prevent the unchecked passage of inhabitants of the area into Israel and their infiltration into Israeli towns. In locating its route and determining its position, the Court accepted the military assessment that it was necessary for the fence to pass through territory that topographically controls its surroundings, and in order to allow effective surveillance, its route also had to be as flat as possible. In addition, the Court accepted that a “security zone” would have to be established which would delay any terrorist infiltration into Israel.

In respect of the depth of the security zone, the Court was presented with two competing military assessments. Those responsible for security in the IDF considered that the fence should be located reasonably close to Palestinian lands so as to give enough time and strategic depth to enable IDF patrols to apprehend terrorists who did succeed in infiltrating into Israel before they reached their targets. Expert evidence on behalf of the Petitioners disagreed, arguing that Israeli forces would be more vulnerable to attack if they were required to patrol close to Palestinian land; more passages and tunnels would be required for Palestinians to reach their fields; and the close proximity of the inhabitants to IDF patrols would cause unnecessary friction. Therefore, in the opinion of the Petitioners’ military experts, the fence should be located closer to Israeli settlement.

Although the Court avoided accepting either expert opinion, it decided that more weight should be given to the evidence presented by those persons officially responsible for Israel’s military defence, unless there were overwhelming reasons for rejecting it as not having been made either on the basis of military considerations or in good faith. Chief Justice Barak reasoned that although the Court  was not entitled to substitute its opinion for that of the military experts, it was entitled to consider the effect on the humanitarian interests of the civilian population by the military decision. The balance of these competing interests is expressed in the Rule of  Proportionality .

c.  The Rule of Proportionality

 

i.  The Balancing Process 
In the process of waging war, the killing or injuring of innocent civilians is to be avoided- although not prohibited. Military action against a legitimate target must comply with the rule of “proportionality”.
[140] In the case of the TSB it must be asked whether the military advantage accruing to Israel by the erection of the fence and the closures outweigh the incidental damage and inconvenience to the civilian population, or, in DFID’s terms, has Israel used “excessive force”?
 

It is not denied that the barrier causes harm and inconvenience, economic and social, to many Palestinians which is difficult to avoid. However, in looking at the harm, DFID must also weigh the benefit to Israel- the effective prevention of deaths to its civilian population and the social and economic dislocation caused by terrorist action. 

There is clear evidence that from the commencement of the intifada until the erection of the barrier closest to Palestinian urban centres, the number of homicide bombings was on the increase. From the erection of the barrier until the present, the statistics show a significant decrease in the number of infiltrations into Israeli territory- and those that do succeed encounter greater difficulty than previously.
[141]

In making the evaluation, the assessment must take into account the prevention of irreversible and irrecoverable deaths of close to 1000 innocent Israeli civilians as against the reversible and recoverable economic damage and inconvenience suffered by the Palestinians directly affected by the TSB.

 

Throughout this discussion, it must be borne in mind that after the failure of the Camp David talks in June 2000, this phase of the Israel-Palestine conflict (Intifada II) was initiated, planned, and executed by the Palestinian Authority with the participation of  Hamas and Fatah. They cannot now complain if Israel takes reasonable steps to frustrate terrorist activity which falls far below any accepted and civilised norm of human behaviour.

ii. Objectives and Function of the Response
In applying the Rule of Proportionality, Enzo Cannizzaro has suggested that one must also consider the function which the response plays in bringing the conflict to an end.[142]  Proportionality requires not only employing the means appropriate to the aim chosen, but implies, above all, an assessment of the appropriateness of the aim. Such aims conceivably encompass, reciprocity (e.g. if you terrorise my population, I will terrorise yours- an aim which Israel neither pursues nor condones as witnessed by its immediate and unconditional condemnation of  the killings perpetrated by Baruch Goldstein) coercion, punishment, compliance, suspension of performance by the aggrieved state (as Israel suspended the redeployment in the 90’s in the wake of terrorist bombing) and prevention (such as Israel intends with the construction of the TSB).[143] Of the four standards suggested by Cannizzaro, the “executive” is consistent with Israel’s objectives. This standard is intended to eliminate the adverse effect caused by the breach of the Palestinian Oslo undertakings to prevent terrorism, and to produce unilaterally, the benefits which Israel expected from the fulfilment of  those obligations.

 

iii.  Due Process in Determining Route of the TSB

 

Israel's Supreme Court has already dealt with a number of appeals regarding the TSB and has evaluated whether Israel's security authorities have acted reasonably in balancing the conflicting security and humanitarian interests. In making that initial assessment, Israeli administrative bodies are subject to the rules of natural justice and generally comply with the obligation of giving the affected party an opportunity to be heard before making a decision. As regards the issuing of  a Requisition Order for land required for the TSB, the security authorities have created a two level administrative process.

 

At the planning level, a coordinated military position is determined on the location of each segment of the TSB. In each and every case before a requisition of property is ordered, the necessity of the order is examined by a coordinating committee consisting of senior representatives of the military authorities, the Israeli Ministry of Justice and the civilian Liaison and Co-ordination Administration in the Territories. A financial assessment is made of the amount of compensation payable, based on an appraised value of land which is then negotiated with the landowner. The evaluation includes both land value as well as estimated value of future crops lost for a five year period.

The process of  planning the route, (before implementation which is commenced by the issuing a Requisition Order), is presently undergoing a change on an experimental basis. Members of the committee visit the site on a fact finding mission, prior to issuing an Order. They initiate discussions with the village headman, other elders and others who are likely to be affected by the potential requisition. After listening to their initial concerns these are taken into account when determining which specific parcels of land are to be acquired.

 

The process of implementation is then commenced with the issuance of a  Requisition Order. A further field visit is then undertaken by members of the Liaison Co-ordination Administration who, together with local inhabitants directly affected by the Order, attempt to solve individual problems.[144] Following such visit, those inhabitants who are still dissatisfied with the outcome, have seven days to submit objections to the military or civil authorities who examine the matter further. If the appeal is rejected, an additional seven days is given to allow the submission of  a Petition to Israel's High Court of Justice. No work in the field is initiated while the appeal and Petition process is proceeding.

 

Incidentally, this process also enables the Palestinian Authority, the local head of a village and others to participate officially in the determination of the location of the fence even where the grounds are weak; with the unarticulated objective of slowing down the construction of the TSB.

 

Over 50 objections have been filed to appeal committees and 15 appeals have been filed with Israel's High Court of Justice since construction of the fence began.  In many cases, both before and after the filing of an appeal, the authorities and the complainants reach agreement regarding alterations to the path of the fence as well as other local factors. 

Thus, even before a Requisition Order is challenged in Court, a full fact finding process has already be undertaken in which the inhabitants’ interests have been  taken into consideration.  

iv. The Beit Sourik Rules of Proportionality

Recently Israel’s Supreme Court has given concrete interpretation to its concepts of proportionality in Beit Sourik Village Council vs. The Government of Israel and the Commander of the IDF Forces in the West Bank.
[145]
In this case, the Supreme Court consolidated the appeals against eight requisition orders issued by the competent military authorities. These covered a number of plots of land in Judea and Samaria, the acquisition of which would enable the construction of a 40 km. stretch of the TSB.

After first reviewing the motivation behind the Government’s decision to build the fence and the conflicting expert military evidence, the Court went on to discuss generally the legal normative framework within which the fence might be constructed, and in particular the question of proportionality. 

Chief Justice Barak asserted
[146] that it was insufficient that the route of the fence be motivated solely by security matters, in contrast to political considerations, but as a military commander, who is not the sovereign in occupied territory; his authority must be properly balanced against the rights, needs and interests of the local population.[147]

 

The law of war usually creates a delicate balance between two poles: military necessity on the one hand and humanitarian considerations on the other”[148]

 

In searching for the balance, the liberty of the local inhabitants under belligerent occupation can be limited on the condition that the restriction is proportionate. According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize its governmental objective is of proper proportion.

In the opinion of Barak C.J the general principle of proportionality focuses on the relationship between the objective whose achievement is attempted, (the suppression of terror) and the means used to achieve it (the construction of the fence). The principle, however, requires application which is expressed in three subtests, all of which have to be satisfied simultaneously:
[149] (i) the objective must be rationally related to the means; (ii) the means used must cause the least injury to the inhabitants as possible; and (iii) the damage caused to the individual by the IDF’s choice of means in order to achieve its objectives, must be of proper proportion to the benefit to be achieved by that means.

The Court considered that the third test could be expressed in a “relativist” manner by considering whether the damage likely to be caused to the inhabitants could be substantially reduced by a modification to the original IDF proposed route even though the result would provide a somewhat smaller security benefit than before. The Court held: 

The original administrative act is disproportionate … if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act. 

 

Since there may be a number of ways of satisfying the rule, the Court reasoned that just as there was a zone of “reasonableness” in an administrative decision, so “a zone of proportionality” must be recognized. Any means chosen by the administrative body that is within that zone would be considered as proportionate. 

The Court then proceeded to apply each of these tests to those parts of the route of the fence to which objection had been raised, focussing its attention
to the extent of the severity of the injury caused to the local inhabitants by the Military Commander’s preferred route. At this point, for the Court, the issue was no longer a  military one, but one which had to be evaluated in humanitarian terms.


“The question is the proportionality between the military consideration and the humanitarian consideration… [I]s the injury to local inhabitants by the Separation Fence proportionate, or is it possible to satisfy the main security concerns while establishing a Fence route whose injury to the local inhabitants is lesser and, as such, proportionate?

 

Inasmuch as the petitions dealt with a forty kilometer stretch of fence, the proportionality of  the “benefit” of the fence as compared to the humanitarian “cost” varied according to local conditions. The Court therefore applied its concepts of  proportionality to seven different segments of the fence affected by the military requisition orders.

In analyzing in each instance the effect of the relevant order, the Court took into consideration humanitarian factors such as: the number of farmers involved, the damage caused by their being separated from their lands, the amount of land area involved and the manner of its division, the difficulties, inconvenience and restriction on gaining access to the land; the number of trees  to be uprooted or replanted; the impact of the fence on the general life of the village affected and the difficulties of children getting to school. In each case, the damage was measured in proportion to the military benefit gained by the location of the fence at one point and the loss to security by repositioning the fence where less damage to the inhabitants would be caused.

Of note, during the extended hearing of the applications, the military authorities introduced a considerable number of changes in the designated route of the fence in the light of specific objections submitted by the inhabitants. Also of interest was the judicial criticism leveled at the State for failing to consider the possibility of a land exchange where land had been requisitioned for the fence. Whether in fact appropriate land was available and acceptable was not investigated.[150]

In sum, the court considered the impact of the fence on the lives of some 35,000 local inhabitants, living in eight villages, the requisition of 4000 dunams of land (1 dunam = ¼ acre) taken for the fence itself and its injurious effect on some other 30,000 dunams.. The Court’s investigation resulted in the acceptance of seven out of  the eight petitions submitted against the military requisition orders. These were  nullified as causing disproportionate harm to the local inhabitants. In so doing, the Court admitted that the job of the military commander was not easy. It commended him for his willingness to change the original plan in order to reach a more proportionate solution and required him to renew his examination of the route in accordance with the standards laid down by the Court.

6.   Conclusion

In the light of the decisions of Israel’s Supreme Court and their implementation by the State of Israel, there is no justification for the claims made by some of the NGO’s[151] and supported by the opinion of DFID’s Negotiating Unit,[152] that the construction of the TSB is intended as a political and punitive step with the objective of grabbing more territory and bringing the Palestinians “to heel” in doglike subjugation.

Israeli action in building the fence has been motivated solely by security concerns. The action of the IDF has not been permitted to go unchallenged. The independent judicial arm of the Israeli government has rigorously examined, in accordance with the prevailing norms of international law, both the legal process and justification for the decision by the Executive arm of Government to erect a terrorist security barrier, and the manner in which that decision has been implemented by the IDF, taking into consideration the humanitarian needs of the affected Palestinian population.

 

The failure of the Parliamentary Committee and the Department to examine and then subsequently to accept, reject or comment specifically the assertions of the NGO’s and DFID’s Negotiating Team undermines the integrity of the Committee’s findings. By merely looking to the consequences to the Palestinians flowing from the erection of the TSB, the Committee and the Department impliedly adopt and accept that Israel’s true objective is political and punitive. Neither the Committee itself nor the Department expressly consider the main objective of the TSB and the motivation for its construction. It is submitted that the political and punitive motives imputed to Israel are unjustifiable, fallacious and unsupported by the evidence.

If
Israel had wanted to grab territory by means of erecting a fence or wall, it could have been done much sooner; the route of the TSB would have been totally different and much cheaper.
Furthermore, the humanitarian concerns for the Palestinian population which Israel takes into consideration in determining the route of the TSB, would have been totally unnecessary and irrelevant if Israel had wanted to subjugate and humiliate the Palestinians. The Negotiating Unit and DFID’s Draft Country Assistance Plan for Palestinians[153] both fail to give any weight to the deterrent and more importantly the “preventative” functions which the barrier serves.

The Israeli Government’s decision to construct the TSB- costly as it is- is intended to reduce, if not prevent entirely, the number of terrorist incursions into Israel and to lessen the degree of confrontation between the IDF and the Palestinian population- an obligation undertaken by the Palestinians under Oslo II. The fence will also ease many of the restrictions which Israel currently imposes with reluctance on the civilian Palestinian population. It will enable the IDF to remove almost all of the internal checkpoints
[154] and improve Palestinian civilian mobility within the Occupied Palestinian Territory. Unfortunately the fence does have a negative impact on the daily life of the local Palestinian inhabitant and on their property rights. However in taking steps to defend the lives and rights of Israel’s own population, Israel has also tried to give effect to the humanitarian concerns of the Palestinians.
 
Israel’s sole objective is the prevention of the horrific killing and maiming of Israeli civilians caused directly by grave breaches of the 4th Geneva Convention by Palestinian terrorists in circumstances where the Palestinian Authority – not being a “High Contracting Party” to the Convention, evades political responsibility and may claim to be absolved from liability.
[155]  In considering how best to render aid to the Palestinians, the Committee’s emphasis on the effect of the closures and of the fence alone, without a positive reference to Israel’s efforts to mitigate the effect of terrorism on both the Israeli and Palestinian populations, results in a biased analysis of only one-side of what is clearly a two or even multi-faceted issue- if one takes into account the role of UNRWA and other NGO’s in the conflict.


Gerald M. Adler, LLM, JSD     
Hove, July 9, 2004

 

13.July 2004

 

Postscript: The International Court of Justice Decision on the Barrier

Since completing this critique, the International Court of Justice has published its advisory opinion on the legal consequences of the “the Wall.”  It is therefore more than appropriate to make a brief comment on some of the major issues raised in that opinion.

 

  1. Israel’s Motivation in Constructing the Fence
    The Court, in its opinion, nowhere referred to the scope and extent of the damage to Israeli citizens and their property caused by terror, which is the motivating factor for the construction of the fence.
    The Court assumed that the primary motivation was annexation of land because the fence encompassed most of the Jewish settlements. This latter fact is also consistent with Israel’s declared motivation that the fence was constructed as a defensive measure against terrorist activity which commenced in 2000. Under Oslo, Settlements are a matter for final status negotiation.

     
  2. Palestinians Intentional Breach of Hague Regulations and 4th Geneva Convention:  Assimilation of Combatants with Non-Combatants

    Of significance was the Court’s failure to refer to the intentional Palestinian blurring of the distinction between combatant-militants and non-combatants- a distinction which is crucial in the laws of war and the humanitarian provisions of the Regulations and the Convention and underlies the military necessity for the fence. The leadership of the Palestinian Authority has encouraged its masses to become involved in the militant struggle against Israel. Its children are being inculcated with hatred and manipulated to become “shahid” martyrs for the cause; its young people, both male and female, are encouraged to participate in terrorist activity against Israel. In so doing, both the Palestinian Authority and the militants themselves fail to maintain the distinction between combatants and non-combatants contrary to the Hague Regulations and the Geneva Convention.  The Court ignores this fact and its implications.

    Israel’s position is exacerbated by the Palestinian commission of “grave breaches” in the Geneva Convention: the wilful killing and maiming of Israeli non combatants by terrorist militants who not only fail to distinguish themselves as combatants, but who also abuse the protected status and inviolability of medical and religious facilities intended the humanitarian purposes. These factors have a direct bearing on Israel’s efforts and responsibility for  protecting both its citizens, and for as long as they are there, its settlements and constitute the military necessity for the construction of the fence.

     
  3. Tendentious Terminology

    In passing, it should be noted that the Court’s continual reference to the construction of the terrorist barrier as a “wall” is of itself tendentious. A chain-linked fence constitutes 95% the construction complained of. The fact that the Court adopted the term because it was used by the General Assembly contrary to factual reality does not excuse the Court from adopting an expression that portrays the true facts. 

     
  4. Palestine Mandate
     
    In its historical review of the context, the Court is very selective in its choice of relevant facts and documents. In referring to the Palestine Mandate for example, it noted that more advanced nations were to provide guidance to a less politically advanced population in its quest for self determination until it was able to assume such responsibility among civilised nations. By implication, the Court was referring to Palestinian self determination- but it forgot, just as the British Administration “forgot” that the main objective of the Palestinian Mandate was as a homeland for the Jewish people who have maintained a centuries old connection with the Land. A major objective in the Mandate was the encouragement of Jewish settlement on public and wasteland. Such rights as were given to the population under a Mandate were preserved when Britain surrendered it back to the United Nations.

     
  5. UN Charter Article 80

    In its historical review of the Israel-Palestinian conflict, the ICJ failed to apply the provisions Article 80 of the UN Charter in its opinion. Article 80 provides in part “….[N]othing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties. When combined with Article 6 of the Palestine Mandate, Israel’s claim to have jurisdiction over the whole of the West Bank is well founded. As a matter of law this carries the right to do what persons normally do - build houses, roads, security walls, drains and any other infrastructure. These conferred proprietary rights undertaken with the approval of the League of Nations and the United Nations, which cannot be altered without Israel's consent.  These rights subsisted and were pursued from 1920 to 1948 before the Jews were driven out from the West Bank and were not resumed again there until after Jordan was ejected in 1967.

    As a matter of policy post 1967, Israel unfortunately argued the applicability of the laws of belligerent occupation and international humanitarian law rather than pre 1948 laws..

    It also has to be acknowledged that, in settling in the West Bank, Israel is required to take into account the civil and religious rights of the Arab inhabitants and issues of proportionality will have to be considered.

    It should also be noted, however, that the rights of the non-Jewish inhabitants  given under the Mandate, were limited to the then existing population- and do not extend to illegal migration of the many Arabs from Syria and Transjordan to Palestine in search of employment opportunities generated by Jewish and British investment. 

     
  6. Resolution 181

    The Court refers to the General Assembly’ Resolution 181 which recommends the division of the Palestine into a Jewish and an Arab State, a recommendation which was accepted by the Jews but rejected by the Arabs who immediately commenced an military invasion. The end result of that invasion was that Jordan retained control but not sovereignty over the West Bank as expressed in the Armistice Agreement. It is strange that the Court did not determine that Jordan’s subsequent annexation of the West Bank in 1950 was both contrary to the Armistice Agreement and principle that territory could not be acquired by conquest. The Court has assumed that Jordan had legitimate sovereignty over the West Bank, notwithstanding that Jordan’s annexation in 1950 was not recognised internationally except by the UK and Pakistan.

     
  7. 1948 Armistice Agreement.

    The Court acknowledged that the armistice line did not constitute a waiver of the respective rights of the parties, and that no military action over such line was permitted. However, notwithstanding that Jordan itself breached the Armistice Agreement by annexing the West Bank in 1950 (which Britain herself condoned by recognising Jordan’s illegal action) the ICJ nevertheless condemned Israel for its breach of the Armistice Agreement during the Six Day War. After ignoring Israel’s appeal not to become involved in the conflict initiated by Egypt and Syria, Jordan commenced shelling Israeli territory while its troops took control of the demilitarised UN headquarters located beyond the Armistice lines.
    The Court ignored that it was Jordan, which was the first to open hostilities against Israel in breach of the Armistice, and that Israel’s occupation of the West Bank is a result of defensive military action.

     
  8. UNSC Resolution 242

    The Court referred only to the first operative clause of Resolution 242, which called for Israel’s withdrawal “from territories” captured in the Six Day War.   It ignored completely the second clause which required withdrawal “to secure and recognized boundaries free from threats or acts of force.” The two provisions were drafted conjunctively, (the word “both” being expressed in the text). UNSC Resolution 338, passed after the 1973 War, confirmed this package deal in calling upon the parties to implement Resolution 242 “in all of its parts.” The two operative clauses in Resolution 242, when read together, clearly do not contemplate that the 1948 lines are the permanent ones.
    The ICJ totally omitted the ultimate goal of UN Resolution 242, expressed in paragraph 3, as the achievement of a "peaceful and accepted settlement." This has to be by way of negotiation, not by way terrorism or even conventional warfare. Accordingly the Court was wrong in implying that Israel to take her defensive measures against terrorism on the “Green” 1948 lines.

     
  9. Oslo Peace Process

    The Court barely mentioned  the Oslo Peace Process and the failure of the Palestinian Authority to fulfil its obligations to fight terrorism given in the Oslo II Agreement (1994), and in the subsequent Wye River (1998) and Sharm el-Sheikh (1999) Memoranda. The obligations included the apprehension and punishment of  all persons involved in acts of violence and terror, collection of all Palestinian illegal weapons and the reduction in the number of  Palestinian “police.”  The breach of these undertakings justified Israel’s right, under Oslo II, to re-enter territory from which she had withdrawn her troops and to take such action as might be necessary. Such action could reasonably include the construction of the fence.

    The Court also ignored the Oslo undertakings by the Palestinians to resolve their dispute with Israel by negotiation and appeared blind to the fact that these commitments were the cornerstone for Israel’s recognition of the PLO as the representative of the Palestine people and for permitting its leadership to enter the West Bank from its exile in Tunisia. Had such not been the case, Israel, as the Occupying Power, would not have had to contend with the degree of militancy and terror against her population such as to cause her to construct the fence in the first place.
    The Court ignored the fact that Israel found no necessity to construct a terrorist barrier between 1967 and 2001, and that it was the planned and calculated decision of the Palestinian leadership to initiate the war of terror which demanded Israeli reaction.

     
  10. Inapplicability of  UN Charter Article 51, and Hague Regulations Article 23(g)
     
    The Court denies the applicability of the right of self defence provided under Article 51 of the UN Charter on the grounds that the armed attack is not caused by one state against another. The conclusion of the Court is preposterous. Article 51 declares that nothing in the Charter impairs the right of self defence “if armed attack occurs against a Member state.” There is no requirement in the Article that the aggression must be State instigated. The Courts decision implies that a state may not defend itself against terrorism emanating beyond its jurisdiction. The Court ignores the fact that the Palestinians, although generally not recognised as constituting a State, have taken upon themselves the obligations imposed on States under the Geneva Convention. The implications flowing from the Court’s holding, creates serious ramifications in the application of the Hague Regulations and Geneva Conventions and the general war against terrorism.

    The Court disallowed the applicability Article 23(g) of the Hague Regulations. This article permits the destruction or seizure of the enemy's property, if such be imperatively demanded by the necessities of war. The Court’s refusal to apply this Article was grounded on the argument that Article 23(g) applies only during hostilities and that since hostilities have ceased, the only Regulations which continue to apply, are those relating to the obligation of the Occupying Power to restore, and ensure, as far as possible, public order and safety. This conclusion is fallacious.
     
    The Court blinds itself to the realities on the ground! While formal hostilities may have ceased following the 1967 War and for some time thereafter, since September 2000, hostilities created by wide scale terrorism have resumed, such that Israel was compelled to instigate special military action in self defence (“Operation Defensive Shield”). If one takes to its logical conclusion, the Court’s holding that “Hostilities” section  in the Regulations has ceased to apply, then no restriction is placed on any of the means by which belligerents [Palestinian terrorists] may injure the enemy [Israel]. The terrorists are therefore free, and do in fact, “ kill or wound treacherously individuals belonging to the hostile nation”; “employ arms, projectiles, or material calculated to cause unnecessary suffering”; “make improper use of  ..the military uniform of the enemy and… the distinctive badges of the Geneva Convention,” as well as failing to distinguish themselves as belligerents and identifiable from civilian non-combatants.


     
  11. Israeli Human Rights
    In referring to the various international human rights instruments which accord the Palestinians the freedom of  movement, the rights to work, to health and to a standard of living, the Court completely ignores that those same instruments also accord Israelis the same rights. More importantly those instruments accord the right to life- a right which Palestinians terrorists deny Israeli citizens and which Israel respects in the Palestinians.

     
  12. Conclusion

    The Court in accepting jurisdiction has allowed itself to be drawn into what is clearly a political issue that must be settled by negotiation. Having accepted the reference, the Court clearly failed to give weight to the many counter arguments that justify the construction of security barrier against terrorism. By its decision, the International Court of Justice has done irreparable harm to its reputation as an independent  judicial institution and to the advancement of international law as an acceptable means of conflict resolution.  

    Notes for Part II

 

* LLM. JSD (Yale) Formerly of the Ontario and Israeli Bars and Solicitor, Eng. & Wales; Adjunct Professor, Technion, Israel Institute of Technology Haifa. Now retired, the author is engaged in Hasbara in the UK.

[73] Uzi Landeau, The Security Fence: An Imperative for Israel Jerusalem Issue Brief, 15, January 2004, www.jcpa.org/brief/brief3-15.htm

[74] Unlike the Coalition forces in Afghanistan,  Israel has not  employed carpet bombing to eradicate terrorists. It has tried a variety of less drastic measures for which it has still been condemned, such as  (i) targeted killing of terrorist leaders who are actively involved in both the recruitment of terrorists and of homicide bombers and  in the planning, preparation and execution of the terrorist attacks which are contrary to the Hague Rules and 4th Geneva Convention. (ii) deporting terrorists; (iii) demolishing houses of terrorists and their families who have knowingly participated and assisted in terrorist  objectives;  (iv)  conducting military operations directly in house to house combat with terrorists who operate from civilian centres of population (including centres supposedly under the jurisdiction of UNRWA); and finally (vi) the construction of a terrorist prevention barrier, the legality of which is supposedly being examined by a politically unbiased bench of judges in the International Court of Justice. It should be noted that any and all of  the Israeli responses to terror detailed above, are subject to judicial review proceedings in  the Israeli Supreme Court, acting as the High Court of Justice; such proceedings may be – and are - frequently initiated by any Palestinian who feels aggrieved by the IDF or other Israeli government activity.

[75] The Israeli Cabinet decision of June 23, 2002, specifically provided:
”…(3) In the framework of Stage 1-approval of the security fences and obstacles in the “Seamline Area” and in Greater Jerusalem, for the purpose of preventing the penetration of terrorists from the area of  Judea and  Sumaria into Israel.

(4) The fence, like the other obstacles, is a security measure. Its construction does not mark a national or any other border (gma emphasis)

[76] The first stage of the Anti Terror Fence, 140 km, was completed on July 31st  2003. This included 123 km in the Salem-Elkana area and 17.8 km in the northern and southern sections of Jerusalem. The second stage  from Salem towards Bezeq, a total of 42km, is supposed to have been completed by the end of Apri1 2004 and the third stage (the eastern section) consisting of 34km should be completed by the end of August 2004.

Only 8 km of the total 140 km length of the completed sections involves a solid concrete barrier to prevent direct shooting. Most of this occurs around the Trans Israel Highway. Of the total length of the planned 700km, only 20km. (3% ) will consist of wall sections.  41agricultural gates will be created along the route of the TSB to provide Palestinian farmers with access to their farmland inside the Fence; 11 crossing points for pedestrians and vehicles will substitute many of the existing checkpoints and 5 commercial check points for transfer of goods will be built, similar to the Karni Check Point.

All owners of seized land were offered compensation for land and crops.

[77] Avtasam Mahamd Ibrahim v. Commanding Officer IDF in the West Bank, H.Ct.J. 81702/02

[78] Beit Sourik Village Council vs.  The Government of Israel and  Commander of the IDF Forces in the West Bank  HCJ 2056/04, [February  29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April 16, 2004; April 21, 2004; May 2, 2004] For the full text of the judgment in English see www.court.gov.il. Click on  “English”; then   Decisions of the Supreme Court. In the “Judgments” dialogue box at the bottom of screen, double click on “case number” and  insert  “2056”

[79] See Israel Ministry of Defence,  Israel’s Anti Terror Fence:Defending Innocent Civilians from Terror (undated but containing data during the period between  September 29,2000 and February 18, 2004) www.securityfence.mod.gov.il

[80] Nigel Parry Is it a Fence? Is it a Wall? No, it's a Separation Barrier, The Electronic Intifada, 1 August 2003, electronicintifada.net/v2/article1775.shtml 

 

[81] The fence is not electrified. It does, however, have attached to it electronic sensors which provide patrol headquarters with information that the fence is being penetrated.

[82] The Security Fence is a multi layered composite obstacle comprised of several elements: 1. A ditch and a pyramid shaped stack of six coils of barbed wire on the eastern side of the structure, barbed wire only on the western side. 2. A path enabling the patrol of IDF forces on both sides of the structure. 3.  An intrusion- detection fence, in the center, with sensors to warn of any incursion. 4. Smoothed strip of sand that runs parallel to the fence, to detect footprints. 5. In certain areas (Bat- Hefer and Matan), the structure consists of a solid wall as opposed to a fence, due to present security risks, and shields drivers on the road in the area of Qalquilia, from the threat of sniper gunfire. The total length of these concrete wall sections is 8.5 Km.

Various observation systems are being installed along the fence alerting authorities, beforehand, to attempted intrusions. IDF and Border Police units will be deployed along the Security Fence under the command of the IDF. Their deployment requires coordination and cooperation governed by the mutual wish to discover a terror act in its planning stage and thwart it.

[83] Information derived from security sources which must  remain unidentified.

[84] Military sources state that the barriers will remain between Bethlehem and Hebron and between Ramallah and Nablus.

[85] Supra note 1at page 41

[86] Israel Security Sources Palestinian  security officer who dispatched Ashdod Port suicide bombers arrested at Karni Crossing 22 Jun 2004, Israel Ministry of Foreign Affairs  www.mfa.gov.il/Palestinian+security+officer+arrested+22-June-2004.htm  

[87] IDF commanders and conscripts receive training in balancing the performance of their duties with International Law. See Amos Guiora. Balancing IDF Checkpoints and International Law: Teaching the IDF Code of Conduct, Jerusalem Issue Brief, No.8   20 November 2003 www.jcpa.org/brief/brief3-8.htm

[88]IDF Spoksmans Office,  IDF Readjusts to the Needs of the Palestinian Population  08/07/2004 18:21

www1.idf.il/DOVER/site/mainpage.asp?sl=EN&id=7&docid=32567.EN

All trainees of the Military Police Corp include trainees of the newly established Checkpoint Unit whose mission  is to establish a security mechanism to prevent the passage of terrorists from PA territory into Israel while maintaining both Israeli and Palestinian daily routine and especially adjusting to the needs of the Palestinian population.

[89] Joel Leyden, Israel Sends IDF Humanitarian Officers to Checkpoints April 30, 2004, www.israelnewsagency.com/ israelcheckpointsidfqalandiya126042.html

 

[90]Judy Lash Balint,  Women at War. www.jewishinternetassociation.org/ articles/appelbaum_20may04a.html

[91] Alyssa A. Lappen, Enemy With A Human Face, FrontPageMagazine September 2, 2003,FrontPageMagazine.com

Goran Tomasevic, Peace Protesters in the West Bank,  Atlanta Independent Media Center  17 Jun 2004;
Research Team, Follow up on ISM and the death of Rachel Corrie, NGO Monitor April 10, 2003; ISM Media Office, Activist Dragged from House to be Demolished 17 Aug 2003

 [92] Israel submission to Sharm El Sheikh Fact Finding committee, para 286;  October 2000Avi Machlis, Israeli Commander Describes ‘Complicated’ War, and related article Is Israel using ‘Excessive Force’?  JTA November 28, 2000;Op-Ed,  No Longer Intifada, Not Quite War, Christian Science Monitor, May,11, 2004

[93] see supra notes 45-48 and accompanying text

[94] Hague Regulations, Article1

[95] ibid, Articles 23 (2) and (5)  which expressly forbid the treacherous killing or wounding of individuals belonging to the hostile nation or army; and the employment of arms, projectiles or material calculated to cause unnecessary suffering

[96] 4th Geneva Convention, Article 28

[97] On 6/5/2004 an IDF Spokesman stated that since September 2000, IDF forces uncovered on the Israeli Egyptian border over 80 weapons-smuggling tunnels, all used as a main source for weapons used by the terrorist organizations to carry out attacks against Israeli targets. See also www.idf.il  Background Material: Rafah Weapon Smuggling Tunnels  10/10/2003.   

[98] Illegal armaments included dozens of RPG rockets and launchers, hundreds of kilograms of explosives to be used for bombings attacks, hundreds of rifles (mainly AK- 47 Kalashnikovs); tens of thousands of bullets and other ammunition to be used in shooting attacks, thousands of cartridges.

[99] IDF Spokesperson Brigadier General Ruth Yaron, "The Aim - Capture Palestinian Terrorists Hiding Within the Civilian Population"  Interview Israel RadioIsraeli Television Channel One, 26.01.2003

[100] Khaled Abu Toameh,  Fatah committed to Aksa Martyrs Jerusalem Post, June. 20, 2004  The Palestinian Authority has no plans to dismantle the Aksa Martyrs Brigades, the armed wing of Fatah, Prime Minister Ahmed Qurei announced. He acknowledged that the group is part of Fatah and said its gunmen are entitled to play a political role in the future.

"We have clearly declared that the Aksa Martyrs Brigades are part of Fatah," Qurei said in an interview with the London-based Asharq al-Awsat newspaper. "We are committed to them and Fatah bears full responsibility for the group."

See also Arafat Directly controls Al-Aqsa Brigades Jerusalem News Wire March 2, 2004 www.jnewswire.com

[101]  Itamar Marcus and Barbara Crook, PA called “Women, Children and Elderly” to Wednesday’s Battle Palestinian Media Watch Bulletin, May 20, 2004, http://www.pmw.org.il ; Itamar Marcus & Barbara Crook Engineering civilian casualties, Jerusalem Post Op-Ed, June 2, 2004:

[102]Abu Mazen, Chairman Arafat’s deputy, in an interview published in the Jordanian Newspaper "Al'Rai" (20 June 2002) warned about the terror organizations exploiting the Palestinian children in the Gaza Strip and using them for carrying our terror attacks in Israel. Abu Mazen revealed that the Palestinian terror organizations pay each child five Israeli Shekels (less than £1) for each explosive device they activate against the IDF soldiers.

IDF sources reported that on 17 September 2002, a bomb or grenade exploded about 50 meters from Israeli troops after having been thrown by a child, who was one of a group of 50-80 Palestinian children and teenagers who approached an IDF military installation.

On  March 24, 2004, Reuters reported  Israeli soldiers questioning an intellectually “challenged” boy caught with a bomb belt at a checkpoint, who had been given 100 shekels (about £12) to blow himself up.

Jerusalem Newswire 10 killed as Terrorists use Human Shields, May 19, 2004; Justus Weiner, The Recruitment of Children in Current Palestinian Strategy, Jerusalem Issue Brief, October 2002;  Tsahar Rotem and Amos Harel Two Palestinian children infiltrate Gaza Settlement, Ha’aretz

January 12, 2003;  Nat Hentoff, What kind of Palestinian State? The Washington Times, July 15, 2002

[103] Ibid. Article 20. IDF Spokesperson, Use of Ambulances and Medical Vehicles by Terrorist Organisations, February 14, 2002.; Ellis Shulman, Palestinians Said Continuing to Use Ambulances to Transport Terrorists, Israel Insider,   May 27, 2004
 In October 2001, Nidal Nazal, a Hamas operative in Kalkilya, was arrested by the IDF. As an ambulance driver for the Palestinian Red Crescent, he exploited the unrestricted travel to serve as a messenger between the Hamas headquarters in several West Bank towns; 
In January 2002, Wafa Idris blew herself up on the crowded Jaffa Street in Jerusalem.  She was an ambulance driver for the Palestinian Red Crescent, as was Mohammed Hababa, the Tanzim operative who sent her on her mission. She left the West Bank by way of an ambulance (Washington Post, January 31, 2002).

On March 27, 2002, a Tanzim member who worked as a Red Crescent ambulance driver was captured with explosives in his ambulance. A child disguised as a patient was riding in the ambulance along with the child's family. The explosives were found under the stretcher the "sick" child was laying on (Israeli Foreign Ministry).

On May 17, 2002, in a Red Crescent ambulance at a checkpoint near Ramallah an explosive belt and bomb were found (of  the same type generally used in suicide bombings) hidden under a gurney on which a sick child was lying. The driver, Islam Jibril, already wanted by the IDF, admitted that this was not the first time that an ambulance had been used to transport explosives or terrorists.

The bomb was removed from the ambulance and detonated in the presence of a representative of the International Committee of the Red Cross. In a statement issued the same day, the ICRC said that it “understands the security concerns of the Israeli authorities, and has always acknowledged their right to check ambulances, provided it does not unduly delay medical evacuations.” ("Bomb found in Red Crescent Ambulance," (Ha’aretz, June 12, 2002).

On June 30, 2002, Israeli troops found 10 suspected Palestinian terrorists hiding in two ambulances in Ramallah. They were caught when soldiers stopped the vehicles for routine checks (Jewish Telegraphic Agency, June 30, 2002).

In December 2003, Rashed Tarek al-Nimr, who worked as a chemist in hospitals in Nablus and Bethlehem, supplied chemicals from the hospitals to Hamas for use in making bombs and admitted to using ambulances to transport the chemicals. He also said the Hamas commanders would hide in hospitals to avoid arrest. (Margot Dudkevitch, "Palestinian Transported Bomb Materials in Ambulances," Jerusalem Post, December 11, 2003.

[104] ibid, Article 19

[105] Ariel Cohen, War Crimes in Bethlehem Church of the Nativity, April 24, 02   

www.internationalwallofprayer.org/ A-019-Church-of-The-Nativity-War-Crimes-Ariel-Cohen.html;

Shark Blog: Nativity Church Terrorists: Where are they now? Church Terrorists: Where are they now? Do you ever wonder what happened to the assorted thugs who took hostages at the Church of the Nativity in Bethlehem last ...www.usefulwork.com/shark/archives/000063.html -   

[106] United States, India, Pakistan, Sudan, Turkey, Singapore, East Timor Thailand, Iraq, Iran, Indonesia.
As regards Palestine, on 21 June 1989, the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the United Nations Office at Geneva informing the Swiss Federal Council "that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto".

On 13 September 1989, the Swiss Federal Council informed the States that it was not in a position to decide whether the letter constituted an instrument of accession, "due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine".

[107] Protocol 1, Article 43 provides inter alia. “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates even if that party is represented by a government or authority not recognised by an adverse party…… “

43(3) Whenever a  Party to a conflict incorporates a paramiltary or armed law enforcement agency into its armed forces, it shall so notify the other Parties to the conflict.

Article 44 of Protocol , provides that “… combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack”  The Protocol purports to recognise that there are situations in armed conflicts where owing to the nature of the hostilities an armed combatant cannot so distinguish himself. In such cases the Protocol permits him to retain the status of a lawful combatant provided that he carries his arms openly during each military engagement and during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit rights to be a combatant and a prisoner of war by virtue of his prior activities”

Article 51(3)  states: “Civilians shall enjoy the protection afforded by this section [ i.e. civilians not be the object of attack] unless and for such time as they take a direct part in hostilities”

The fundamental condition for combatants must be that they comply with all the laws of war and other applicable rules of international law under all circumstances. Art. 44 above does not meet those conditions. The need for combatants to distinguish themselves clearly from non-combatants is vital to genuine non-combatants as well as for the protection of combatants themselves who become POWs. By diluting and weakening the requirements for differentiating between combatant and civilian population, Article 44 indirectly, but nevertheless clearly intensifies the danger to life and safety of innocent civilians. Protection given to those who do not fight openly can create an imminent danger to the civilian population as a whole, and achieve adverse results to those intended. This becomes evident when applying Article 51(3) and implies that militants can become combatants for one period of the day and become non-combatants for other periods- changing hats and becoming combatants when actually planning operations and ceasing when they engage in “normal” civilian activities; even then the planning  still continues in the mind. 

Article 44 does not reflect existing international law. It is an innovation, which all  States are free to determine their attitude in accordance with their own interests. The attempt to bring within the scope of the Protocol, non -State elements leads to internal contradiction in the text based on the existence of organised state as subject to international law and  undermines the reciprocity of legal rights and obligations necessary for the satisfactory application of international treaties.

The relative ease with which any group, claiming to fit within the political criteria of Article 44 may consider itself entitled to the privileges and status under the Protocol, would only serve to facilitate, encourage and licence the activities of terrorists whose methods and objectives- ( the indiscriminate violence against innocent victims) - are completely contrary to any notion of humanitarian law and its underlying aims.  Diluting the requirements universally accepted in the 3rd Geneva Convention for the enjoyment of PoW status only serves to enhance the dangers of abuse under this Protocol by using it as a shelter for terrorist activity.

[108] Alan M Dershowitz,  Rules of War Enable Terror, Baltimore Sun, May 28, 2004, www.baltimoresun.com; www.limbicnutrition.com/blog/archives/025178.html . See also Alan Baker, The Evolution of International Law and the War on Terrorism, Jerusalem Issue Brief, Vol2, No.14, 24 December 2002. http://www.jcpa.org/brief/brief2-14.htm

[109] ibid. Dershowitz  argues that the Geneva conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. In Dershowitz’ opinion, these international laws have become part of the problem rather than part of the solution.

[110] Military necessity was originally developed to excuse a belligerent from complying with the unwritten customs of conducting warfare. See Openheim’s International LAW- Lauterpacht. Longmans, 7th ed. Vol II, p. 231

[111] United States, Department of the Navy The Commander’s Handbook on the Law of Naval Operations, NWP1-14M, Norfolk, Virginia, October 1995, p.5-1 cited in A. Roberts and R. Guelff, Documents on the Laws of War, 3rd Ed. Oxford University Press. See also M. Greenspan, The Modern Law of Land Warfare, University of California Press, 1059, p 313

[112] Donald A.Wells, The Laws of Land Warfare: A guide to the US Army Manuals, Greenwood Press, Westport, Conn 1992,

[113] ibid at p. 37

[114] ibid at p. 38

[115] The 1956 edition of the new army manual eliminated most of the paragraphs of its predecessors on the subject of military necessity. The matter is now disposed of in a single brief section:

“(a) Prohibitory Effect. The law of war places limits on the exercise of a belligerent's power in the interests mentioned in paragraph 2 and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.”

[116] Hague Regulations Article 23(b)

[117] 4th Geneva Convention, Article 3(1)

[118] Hague Regulations Article 23(g)

[119] ibid, Article 43

[120] Defence (Emergency) Regulations 1945, Palestine Gazette, No.1449, Supplement 2, 27, September 1945. 

[121] Hague Regulation 149

[122] Defence Regulations 155 and 157

[123] ibid Regulation 152

[124] Geneva Convention, Article 27 (4)

[125] Israel Ministry of Foreign Affairs press releases 5 Jul 2004. asserts that the anti-terrorist fence cuts Samaria-based attacks by 90 percent.   In the 11 months between the erection of the first segment at the beginning of August 2003 and the end of June 2004, the Samaria-based terrorist groups have succeeded in carrying out only three atrocities within Israel.  In contrast, during the 34 months from the beginning of the violence in September 2000 until the construction of the first continuous segment of the anti-terrorist fence at the end of July 2003, between Salem and Elkana in Samaria, Samaria-based terrorists carried out 73 atrocities (suicide bombings, shootings, car bombings) within Israel (including Jerusalem) in which 293 Israelis were killed and 1950 wounded.

While the number of attacks dropped sharply, the number of attempted attacks that were foiled in various stages of preparation since the erection of the anti-terrorist fence in August 2003 remained high. During this period, the security forces prevented dozens of attacks by Samaria-based terrorist groups in the final stages of preparation. …The conclusion is inescapable that a major factor in the sharp drop in the number of attacks carried out in Israel by Samaria-based terrorists in the past few months is the effect of the anti-terrorist fence on their operational patterns.

The success of the anti-terrorist fence in Samaria means that the launching point for terrorists has been moved to Judea. In the last few months, Judea  (where there is not yet a continuous fence) has become the main base for dispatching terrorists (including Samaria-based terrorists) into Israel. In more than half of the dozens of attacks-in-planning that were foiled since the erection of the anti-terrorist fence, the terrorists intended to infiltrate Israel by way of Judea, usually via Jerusalem and Ramallah.

Despite their efforts, all of the attempts by Samaria-based terrorists to infiltrate Israel via Judea since the erection

of the anti-terrorist fence have been thwarted by the security forces.

[126] Kent Swigard In the heart of Jerusalem www.aish.com/Israel/articles/ In_the_Heart_of_Jerusalem.asp 

[127] Supra note 120,  Defence (Emergency) Regulations 1945, Part XI, Regulation 114.  

[128] Ibid, Regulation 114(3)

[129] Defence Regulations 118 and 158

[130] ibid, Regulation 117

[131] Bouvier's Law Dictionary

[132] Much of the land upon which the fence has been constructed or designated for construction is stony and unsuitable for agriculture or any other purpose 

[133] Defence Regulation 119

[134] St. Petersberg Declaration 1868 dictated that the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy but this military objective should not be exceeded by the use of arms which uselessly aggravate the suffering of disabled men or render their death inevitable. This approach creates a balance between the military objectives of the state and the humanitarian considerations for the combatants. It ignores the impact of the war on non-combatants, because for the most part, professional armies owing allegiance to a sovereign conducted wars and for whom non-combatants were not involved. Non-combatants, so the theory went, were really indifferent as to which of the armies won; in either case, they would remain subjects of one sovereign or another.

[135] The sole purpose of the Security Fence, as stated in the Israeli Government decision of July 23rd 2001, is to provide security. The Security Fence is a central component in Israel’s response to the horrific wave of terrorism emanating from the West Bank, resulting in suicide bombers who enter into Israel with the sole intention of killing innocent people. Sadly, this abhorrent phenomenon has become common practice since September 2000.

  The “Security Fence” is a manifestation of Israel’s basic commitment to defend its citizens, and once completed, it will improve the ability of the IDF to prevent the infiltration of terrorists and criminal elements into Israel for the purpose of carrying out terrorist attacks or the smuggling of arms and explosives.

    At the time of the initial decision of the Israel Cabinet, the fence was perceived as a means to prevent illegal entry into Israel through the seizure, interrogation and arrest of these elements by the police.

The barrier itself was designated for three separate areas: Um el Fahem,Tulkarem and Jerusalem, a total of 80 km.  In the months that followed it became apparent that the ability of the IDF and the police to stop illegal entry into Israel depended on the existence of a contiguous obstacle. Accordingly, when in April 2002 the responsibility for building the Security Fence was placed with the Ministry of Defence, the original plan underwent modifications based on the principle of continuity. In June 2002 the Defence Cabinet approved, with minor reservations, the plan based on the principle of a contiguous obstacle.

The route from Salem to Elkana and in the northern and southern sections of Jerusalem was finally approved in August 2002.   

[136] Supra note 54

[137] Oara 27, p. 15 (hmtl form)

[138] HCJ 393/82 Jam'iat Ascan Elma’almoon, v Commander of the IDF Forces in the Area of Judea and Samaria., p.795

[139] Decision of June 23, 2002;  “The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the “Seam  Area,” is a security measure for the prevention of terror attacks and does not mark a national border or any other border.” (Decision of October 1, 2003).

[140] See Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by International Law Commission 2001. Article (1) “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Article 51 (1). Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question; Article 53 Countermeasures shall be terminated as soon as the responsible State has complied with its obligations…in relation to the internationally wrongful act. Article 55: These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

[141] Supra note 92

[142] Enzo Cannizzaro, Professor of International Law, University of Macerata,  The Roles of Proportionality in the Law of International Countermeasures  12 European Journal of International Law, 889

[143] ibid.  Cannizzaro suggests four different standards: (1) a normative standard taking into account the equivalence in law between the breach and the response- having the function of re-establishing the normative balances altered by the breach (2) A retributive standard aimed at inflicting on the wronged doer a cost of the injury suffered (3) A coercive standard having the function of inducing the wrongdoer to cease the breach and abide by the obligation and finally (4) the executive standard where the function is to wipe out the adverse effect produced by the breach and to produce unilaterally the benefits expected from the breached rule

[144] Isabel Kershner, The Fence Mender, The Jerusalem Report, April 19, 2004, pp 20-22

[145] supra note 54

[146] p. 18 (hmtl format)

[147] The Court cited extensively from its own precedents in which interests of the military were balanced against the humanitarian interests of the local population.

[148] ibid, quoting Dinstein, Legislative Authority in the Administered Territories, 2 Iyunei Mishpat, 505, 509 (1973)

[149] ibid at p.24,  para.41

[150] In fact all the agricultural land in the area was privately owned and the available state land was rocky and incapable of being worked.

[151] Supra notes 8 and 9 and accompanying text.

[152] In response to a request by the Palestinian Negotiations Affairs Department seeking technical assistance in its preparations for Permanent Status talks with Israel, DFID financed the establishment of  Palestine Negotiation Support Unit (PNSU) in 1998. The declared purpose of the Unit was to provide highly professional legal, policy and communications advice to the Palestinian negotiators. Following the collapse of formal negotiations at the outset of 2001, an additional purpose of the project was to encourage the resumption of Permanent Status negotiations by contributing to a variety of diplomatic initiatives aimed at bringing the two sides together. The Unit comprises of two sections: legal and policy-oriented staffed by some 20 full-time Palestinian specialists, many recruited internationally.

 

Within the Unit there also exists a Communications Section which aims to inform and influence international opinion in support of public Palestinian positions on permanent status issues and interim initiatives, to mobilise local and international civil society organisations to lobby on behalf of those positions, and even to address the Israeli public to influence its perceptions of Palestinian goals and intentions towards Israel. In theory, the Section publicises Western media-oriented Palestinian negotiating positions to create an atmosphere that will enhance the conditions for negotiations.  In practice it performs a different function.

 With the creation of the Communications Section, the role of the Negotiation Support Unit has shifted from providing legal advice supporting negotiations to an effective Palestinian public relations instrument. Notwithstanding that the funding for Communications Section formed an integral part of financing of the NSU, it is questionable whether the allocation and appropriation of funds by DFID supports negotiation between Israel and the Palestinians towards a two state solution.  Rather it appears that the funds are being utilised to create an effective propaganda apparatus, constituted of foreign experts speaking on behalf of the PLO, without improving the living conditions of ordinary Palestinians, and advancing a negotiated permanent status agreement more likely.  

 

[153] Draft for Consultation, issued March 2004, para. C12.

[154]According to IDF sources during the month of June 2004, some 50 internal barriers have been removed so far.

[155] The Geneva Convention imposes obligations on the Governments of all the States involved in the conflict. In particular, Article 146 declares that each High Contracting Party shall be under an obligation to search for persons alleged to have committed, or to have ordered to be committed “Grave Breaches” [as defined later] and to bring such persons before its own courts… or it may hand them over to another High Contracting Party, if the latter has made out a prima face case. “Grave Breaches” if committed against persons or property protected by the Convention are defined in Article 147 and include “wilful killing… wilfully causing great suffering or serious injury to body or health.” A High Contracting Party is not allowed to absolve itself or any other High Contracting Party of any liability incurred by itself in respect of such breaches (Article 148)

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