The International Court of Justice in The Hague (ICJ or UN Court) issued an opinion on July 9, 2004 on the legality of Israel's Security Fence.  The ICJ ruling is advisory and not legally binding. 

 

The court decided that it has jurisdiction to issue a ruling and ruled that Israel's construction of the fence is illegal and must be halted.  The court based its decision on an outdated route of the fence and did not take into consideration the threat that Palestinian terrorism poses to Israeli security.  The ICJ has never issued a ruling that condemns terrorist attacks against Israeli citizens.

 

Judge Thomas Buergenthal, the American representative to the court, issued a dissenting opinion arguing that the court's ruling cannot be justified as a matter of law.  The American judge criticized the decision for failing to take into account the "repeated deadly terrorist attacks in and upon Israel...to which Israel has been and continues to be subjected."  

 

The American judge argued that the decision did not deal sufficiently with information "bearing directly on Israel's legitimate right of self-defence, military necessity and security needs" which would be required to make an educated ruling on the legality of the fence.  He criticized the decision for not seriously examining these terrorist attacks and Israel's security needs - instead relying on a dossier provided by the UN which "barely touches on that subject.".  Judge Kooijmans of the Netherlands also agreed that the court did not sufficiently weigh the security concerns to Israel caused by Palestinian terrorism.

 

The White House stated that it was "inappropriate" for the ICJ to issue a ruling.

 

The European Union collectively and 30 individual countries, including the United States, Australia, Canada, France, Germany, Russia and Great Britain have objected to the ICJ's claim of jurisdiction.  The International Court is only empowered to resolve disputes between sovereign states -- and only when requested by the states who are parties to the dispute. Neither condition has been met in this case.

 

Israeli President Moshe Katsav also has stated that Israel does not recognize the jurisdiction of the ICJ in this matter, and will therefore reject its decision.

 

The PLO mission to the United Nations, which arranged to have this matter referred by the UN General Assembly to the International Court predetermined the outcome: It assumed that the  ICJ would rule against Israel's right to self defense, and has already initiated a diplomatic effort to produce a General Assembly resolution demanding that Israel comply with the ICJ decision.

 

The fence, along with other Israeli counterterrorism strategies, has successfully reduced the number of terrorist attacks against Israelis.

 

 

 The first stage of the fence became operational in July 2003. A quarter of the fence has been built so far. It has proved to be an effective obstacle to terrorism.  In the north of Israel, where a section of the fence has been completed, there has not had a suicide attack in more than eight months.

 

Before the first stage of the fence became operational in July 2003, the average number of terrorist attacks was 8.6 per month.  In the past 11 months, the number has dropped dramatically to an average of 3.2 attacks per month.

 

The Israeli city of Afula, formerly a frequent target of terrorist attacks emanating from the West Bank, has not suffered from a single suicide attack since the completion of the section of the fence to the north of the West Bank city of Jenin.  Before the construction of the fence, half a dozen deadly suicide attacks were perpetrated by Palestinian terrorists against civilians in Afula.

 

As a result of increased security, the number of Israeli troops in Palestinian communities has been reduced.  According to the Israeli Defense Force (IDF), the security fence "relieves the army of the necessity to regularly patrol the city [of Jenin.]"  The presence of Israeli troops in Palestinian areas caused tension and hardship to the Palestinians.  The removal of IDF troops, a direct result of the success of the fence, has allowed these Palestinian areas to begin to re-build social and economic structures damaged by four years of terrorist and counter-terrorist conflict.

 

The fence has had a positive impact on Israeli Arab communities.  Many Israeli Arab communities are located near West Bank Palestinian communities. These Israeli Arab communities often have been the victims of vandalism, theft, and violence at the hands of Palestinians from the West Bank.  The fence has served to keep out such criminals elements, providing Arab villages with increased security and an economic boom. 

 

The fence has disrupted the lives of those Palestinians living along its path, but Israel has taken this into account when planning the route, and made changes to planned construction when needed.  A recent decision by the Israeli Supreme Court affirmed Israel's right to build a security fence to protect its citizens from terrorism, but ruled that the route of the fence had to be changed, as certain stretches caused undo hardship to the Palestinians.  As a result of the ruling, Israeli Prime Minister Ariel Sharon ordered the rerouting of a 30-kilometer stretch of the separation fence that the High Court declared illegal.

 

Under international norms, the Israeli Supreme Court, not the court in The Hague, has sole jurisdiction over this matter. The Israeli Supreme Court is  the independent judiciary of a sovereign, democratic country. Its rulings on the Israeli security fence have struck a fair balance between the rights of Israelis to lives free from suicide bombings and the rights of Palestinians to their economic well-being. There is no basis for the Court in The Hague to usurp its authority.

 

Israel has stated it is prepared to conduct a full review of "every kilometer" of the 310-mile stretch of West Bank barrier not yet built in order to ensure that neither Palestinian rights nor international laws are violated.  It has also stated that the fence is a temporary measure, not a permanent border, and can be changed or removed if and when the terrorism is halted. 

 

Israeli officials stated on July 6th 2004 that within two weeks, the Israel Defense Forces and the Defense Ministry will present a new proposed route for the security fence which will run closer to the Green Line (pre-'67 border).

 

 The security fence is only one aspect of Israeli counterterrorism and its successes cannot be isolated from the overall Israeli strategy.  The Israelis have continued to use tactics such as the targeted killing of terrorists and terrorist planners, destruction of smuggling tunnels, arrests of terrorists, border closures, demolition of terrorist safe houses, ongoing and targeted military operations, and diplomatic pressure in order to disrupt terrorist activities.

 

Israel's counter terrorism policies have nearly eradicated the entire leadership of the main Palestinian terrorist groups and depleted the ranks of the most experienced Palestinian planners, resulting in less sophisticated attacks.

 

Military operations, such as Operation Defensive Shield of March 2002, and Determined Path of June 2002, were targeted at the overall infrastructure of the terrorists.  More recently, on May 17th 2004, Israel launched Operation Rainbow, to dismantle Palestinian smuggling tunnels at Rafah.  Palestinian terrorists groups are continuously armed and replenished via underground tunnels that stretch across Egypt's border with the Gaza Strip.

 

Since September 2000 IDF forces uncovered approximately 80 weapon smuggling tunnels on the Israeli Egyptian border.  In 2004 alone, the IDF has uncovered and demolished 11 tunnels as well as a number of houses and buildings from which the tunnels emerged.

 

 

The overall success of Israeli counterterrorism policies is clearly demonstrated by the decrease in terrorist attacks taking place in Israel in recent months.  Significantly, in the last three months, no terrorist attacks have occurred within Israel.  This is the longest pause in terrorist attacks in Israel since the outbreak of violence almost four years ago.

 

Studies show attacks against Israel have decreased by over 90% since the first section of the security fence became operational. 

 

In 2003, there were 23 suicide bombings in Israel, killing 104 people. In 2004, there have thus far been three suicide attacks, claiming the lives of 29 victims. According to Israel's chief of military intelligence, Maj. Gen. Aharon Zeevi-Farkash, numerous terrorist attacks have been foiled recently. 

 

Since the outbreak of violence in September 2000, the five most violent months of terrorist attacks against Israel were December 2001, March, April and June of 2002 and November 2002.  Of these most violent five months, only the attacks of November 2002 occurred after the beginning of the construction of the security fence, and these attacks occurred in the very early stages of fence construction.

 

August 2003 through October 2003 saw a rise in terrorist attacks, and consequently led to faster construction of the security fence.  The number of attacks against Israel dropped dramatically from November 2003 through April 2004, apparently in direct response to this construction.

Israel's construction of the security fence has proven to be a successful non-violent way to protect its citizens from the threats posed by Palestinian terrorists.

 

The success of the fence has contributed to Prime Minister Sharon's willingness to propose a unilateral withdrawal from Gaza and parts of the West Bank, allowing Palestinians to regain political control over their towns.

 

The fence provides benefits to Israel Arab communities and West Bank Palestinian communities.

 

The recent Israeli Supreme Court decision recognizes the balance between security for Israel and the rights of Palestinians.

 

The Israeli Supreme Court, through its evenhanded handling of the case demonstrates Israel's ability to protect its citizens in a way consistent with international law.

 

The Court in The Hague is violating international norms by attempting to usurp the authority of the Israeli Supreme Court and by taking a case over which it has no jurisdiction.

 

"Defining the Barrier", Washington Post interactive feature.

 

"The Right to Live", IDF, July 8, 2004.

 

"The International Court of Justice and the Israeli "Fence"", Ruth Wedgwood, Foundation for the Defense of Democracies, February 23, 2004.

 

"Security Fences Around the World", Jonathan L. Snow, Foundation for the Defense of Democracies, February 23, 2004.

 

"The Case for Israel's Security Fence", Jonathan L. Snow, Foundation for the Defense of Democracies, February 19, 2004.

 

"ICJ Ruling on Israel's Security Fence", Jonathan L. Snow, Foundation for the Defense of Democracies, February 18, 2004.