It is possible to build a legal fence
The ICJ stated the obvious. The barrier should be built on the Green Line.
Jessica Montell
http://maarivintl.com/index.cfm?fuseaction=article&articleID=9672

The decision of the International Court of Justice in the Hague (ICJ)
regarding the separation barrier was superfluous. Israel had no reason to
wait for the issue to be brought before the judges. We could have saved
ourselves the damage that has been done and we can still prevent further
damage.

Most sections of the barrier were built within occupied territory. The ICJ
recognized the serious damage done to Palestinians and decided that those
sections must be dismantled. However, that did not require 15 judges. Any
person who visits the Palestinian villages along the barrier route cannot
avoid reaching a similar conclusion. Anyone who looks at the map of the
barrier will understand that the route is political, as if during
construction, the barrier's security purpose was forgotten.

The decision of the ICJ was predictable. The court explicitly decided that
construction of the barrier violates international law and human rights,
including freedom of movement, the right to work and have access to
education and health. As an Israeli, it is difficult for me to accept the
court's minimal comments on the terrorist attacks that led to the decision
to build the barrier. However, it is important to remember that the court
did not forbid the construction of a barrier but stated that it cannot be
built within occupied territory.

Nine days before the ICJ decision, Israel's High Court of Justice
disqualified a small section of the barrier's route. It is very important
that the High Court made its decision before the Hague ruling was
published. In their ruling, the Supreme Court justices stated that even
though the barrier itself is a legitimate security means, the specific
section under consideration did disproportional harm to the residents of
Beit Sourik and other Palestinian villages along its planned route. The
High Court emphasized the obligation to balance security considerations and
humanitarian considerations.

While the decision of the ICJ is, at this stage, only an advisory opinion,
the High Court decision is obligatory and its results are likely to be very
extensive and significant. Its importance goes far beyond the handful of
villages that petitioned to have the barrier moved away from their land.
The High Court justices explicitly stated that their decision is precedent
setting and that there are currently many additional petitions, concerning
similar cases, under consideration. The situations of the residents of
other villages who petitioned the court are similar to the situation of
Beit Sourik and some are even more difficult. Therefore, there is no reason
to assume that the High Court will not continue to apply the principle of
proportionality and disqualify additional sections of the barrier route.

The fact that the barrier's route does not meet the criteria of
proportionality is especially obvious in the Jerusalem area where its
destructive influence on resident of the villages along its route is very
destructive. Israel routed most of the barrier along the municipal
boundaries that it arbitrarily drew in 1967. Not infrequently, the boundary
goes down the center of a busy street. Now a concrete wall that is six to
eight meters high is being built along that line, dividing thousands of
Palestinian residents from their jobs, schools, families and health
services.

More than anywhere else, the route in the Jerusalem area demonstrates the
political motivations that stand behind its selection. The barrier in
Jerusalem does not separate between Israelis and Palestinians. It divides
Palestinians from Palestinians. More than 200,000 Palestinian citizens will
remain west of the barrier. More than once, IDF officers have admitted, in
private conversations, what is clear from studying the map of the barrier
route: even though the idea of the barrier was conceived to serve security
needs, the entire route was dictated by political considerations.

In the decision regarding the Beit Sourik petition, Chief Justice Aharon
Barak wrote, "Only a separation fence built on a foundation of law will
give the country the security it desires". This weekend the ICJ added
another clear ruling, that the barrier can meet the requirements of
international law only if it is built within the Sate of Israel.

There is still time to do justice at home. If the government of Israel
believes that the barrier is essential for its security, it must now re-map
its route, in accordance with its security purpose and the principle of
proportionality. This will only be possible if the government abandons its
desire to use the barrier to appropriate lands in the West Bank. A barrier
built along the Green Line or within the boundaries of the State of Israel
can meet these requirements. If the Government of Israel is not careful in
this regard, the High Court will need to continue applying its precedent on
proportionality along the entire route. If Israel continues to turn its
back on its obligations, it should not be surprised of the international
community is not content with giving an advisory opinion.


The writer is Executive Director of B'tselem: The Israeli Information
Center for Human Rights in the Occupied Territories.


(2004-07-12 10:52:12.0)