ICJ Ruling - 07.09.2004

International Court of Justice Rules Israeli Security Barrier Is Illegal

ICJ streaming video
ICJ written opinion

U.S. State Department Response
Sen. John Kerry Response
Israeli Foreign Ministry Statement
EU Joint Ministers' Statement

Ha'aretz coverage
JTA Coverage
American Jews Respond on ICJ
American Jewish Congress Response
ADL Response
  ADL Summary of ICJ Submissions
B'nai B'rith Response

---

Ha'aretz 


White House brushes aside ruling on separation fence

By Reuters and Haaretz Service

The White House brushed aside a ruling by the International Court of Justice on the West Bank separation fence on Friday, saying it didn't think it was the right forum for addressing the issue.

"We do not believe that that's the appropriate forum to resolve what is a political issue. This is an issue that should be resolved through the process that has been put in place, specifically the road map," White House spokesman Scott McClellan said aboard Air Force One as President George W. Bush was en route to a campaign tour in Pennsylvania.

"We certainly recognize the need for Israel to defend itself and protect the people of Israel. It's also important that they allow the Palestinian people to move freely within that region," McClellan told reporters.

New York senators Hillary Clinton and Charles Schumer announced that they will deliver statements against the International Court's decision in front of the United Nations building in New York City.

The European Commission said that the court appeared to have confirmed the European Union's view that the fence is illegal and urged the Israelis to remove it from occupied territory.

"...the European Union continues to call on Israel to remove 
the barrier from inside the occupied Palestinian territories, 
including in and around East Jerusalem," European Commission Spokesman Jean Christophe Filori said.

The National Director of the Anti-Defamation League, Abe Foxman, said, "We though for a moment the court would rise above prejudice, but as it turns out, it didn't."

The ruling was meant to be a critical moment not only for Israel but also for the court's legitimacy, Foxman added.

return to top

---

World court says security fence is illegal, but Israel rejects opinion 

By Leslie Susser 

JERUSALEM, July 11 (JTA) — The Jews were outraged, perhaps, but not surprised.

For months, Israel had been bracing for a negative ruling on its West Bank security barrier from the International Court of Justice at The Hague, and last Friday it came — with no criticism of the Palestinian terrorist onslaught that prompted Israel to build the fence.

Israeli officials rejected the ruling that the barrier is illegal and said they had no intention of dismantling it. Though it’s only partially complete, the fence already has saved thousands of lives, they say, pointing to statistics that show a dramatic decrease in Israeli casualties since construction of the fence began.

American Jewish officials were outraged by the ruling on the fence.

The struggle now moves from The Hague to the U.N. General Assembly and the Security Council in New York. 

Palestinian Authority officials, who hailed last Friday’s ruling as “historic,” said they were determined to bring the matter to the United Nations, where they will seek sanctions against Israel. Any such move is almost certain to encounter an American veto in the Security Council. 

Prime Minister Ariel Sharon met Sunday with his Cabinet and top advisers to discuss Israel’s next moves. 

The main focus for Israel now will be limiting damage in the General Assembly and preventing any operative steps by the Security Council. The challenge will be to get as many Western countries as possible to oppose a sharply worded anti-Israel resolution in the General Assembly, or action in the Security Council. 

Foreign Minister Silvan Shalom discussed the issue with U.S. Secretary of State Colin Powell during a recent visit to Washington, and Shalom reportedly was reassured. 

In White House comments after the court ruling, spokesman Jim McLelland hinted that the United States did not consider the United Nations an appropriate forum for resolving the fence issue. It was, he said, a political problem that should be resolved in an Israeli-Palestinian political process that already exists. 

In its non-binding advisory opinion, the International Court of Justice, a U.N. body, ruled that the barrier contravenes international law, that parts of it built on Palestinian land must be dismantled and that Palestinians whose land was confiscated must be compensated. 

The court said that the barrier could impede the Palestinians’ right to self-rule.

“The Court considers that the construction of the wall and its associate regime creates a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization by Israel, it would be tantamount to de facto annexation,” the court said.

But Israel argues that the fence is a legitimate means of self-defense and that the court had no jurisdiction to rule on what is essentially a political conflict. 

The court acknowledged that Israel has a right to self-defense, but ruled that it doesn’t include building parts of the fence beyond the Green Line — the armistice line that served as a boundary between Israel and the West Bank from the 1948 War of Independence to the 1967 Six-Day War — or causing the Palestinians humanitarian hardship. 

In a statement made last Friday afternoon while the court president was still reading the ruling — the gist of which had been leaked earlier — Israeli Foreign Ministry spokesman Yonatan Peled noted that more than 1,000 Israelis have been killed in more than 20,000 Palestinian terror attacks since the intifada began in September 2000.

“No other country would have acted differently in the face of such a criminal campaign,” he said, adding that since the portions of the fence have been built, the number of victims has dropped sharply. “The fence works,” Peled said. “It is a temporary, non-violent security measure and it saves lives.” 

The General Assembly sent the issue of the separation fence to the court last December, asking it to prepare an advisory opinion on the “legal consequences arising from the construction of the wall in the Occupied Palestinian territory.” 

Israeli officials say the language of the request essentially prejudged its outcome: The Palestinians call the barrier a wall though over 90 percent of it actually is a fence and could be moved. Israel also does not consider the West Bank “Occupied Palestinian territory” but rather “disputed territory” whose status must be determined in negotiations, as per Security Council Resolution 242, which has guided Israeli-Arab peace talks for the past 25 years. 

Considering the way the General Assembly presented the issue to the court, Peled said, it was no surprise that the court ignored the heart of the problem and the very reason for the fence: Palestinian terrorism. 

“Without terror there would be no fence,” he said.

The issue of moving or dismantling the fence is political and can be resolved in direct negotiations between the parties once terrorist attacks end, Peled said. 

On Sunday, the Palestinian terrorist group Al-Aksa Brigade bombed a bus stop in Tel Aviv, killing a female Israeli soldier. Elsewhere, construction on the fence continued.

Peled said there was no need for outside interference on the issue of the fence since Israel’s own Supreme Court ruled recently that parts of the fence should be rerouted to better balance Palestinian humanitarian considerations with Israeli security needs. 

Dore Gold, a former Israeli envoy to the United Nations and now an adviser to Sharon, told JTA that while Israel respects international law, it opposes the politicization of international bodies such as the International Court of Justice. 

“The terms of reference that the court was given by the U.N. could only result in a decision that was tantamount to the outlawing of the shield, while condoning the continued use of the sword,” he said. 

Gold pointed out that more than 30 countries, most of them Western democracies, were opposed to having the court deal with the issue. For its part, Israel refused to appear before the court when it held oral hearings on the issue in February.

“There is broad opposition among Western allies to the corruption of the ICJ and using it as a political weapon in lieu of political negotiations,” he said. 

But that could be wishful thinking: The European Union seemed to endorse the court’s ruling, urging Israel to remove those parts of the fence built beyond the Green Line. 

Palestinian leaders were overjoyed at the ruling. Palestinian Authority President Yasser Arafat called it a “victory for justice,” while P.A. Prime Minister Ahmed Qurei described the ruling as “historic.” 

The Israeli political spectrum was divided. 

Opposition legislator Yossi Sarid, of the left-wing Meretz-Yahad Party, accused the government of making every conceivable mistake in building the fence. 

“It should have been built along the Green Line, and it never would have got to The Hague,” he said. 

But remarks by Justice Minister Yosef “Tommy” Lapid, of the centrist Shinui Party, seemed to capture the national mood in Israel more accurately.

“It’s absurd that when we build a fence to protect our civilians, the people accused in the international court are not the terrorists, not the murderers, not the aggressors — but the victims,” he said.

The International Court of Justice Opinion can be read here: 

http://www.icj-cij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_20040709.htm

Leslie Susser is the diplomatic correspondent for The Jerusalem Report.


return to top

---

Fearing fallout from fence ruling, Israel supporters go on offensive 


By Rachel Pomerance 

NEW YORK, July 11 (JTA) — American Jewish officials are launching a media and diplomatic offensive to limit damage from the International Court of Justice opinion that Israel’s West Bank security barrier is illegal.

Seven months after the U.N. General Assembly called on the U.N. court to judge the legal consequences of Israel’s “wall,” the International Court of Justice issued a non-binding advisory opinion last Friday that Israel must tear down the barrier and pay reparations to Palestinians affected by its construction.

The only dissenter in the court’s 14-1 ruling was the American judge, a Holocaust survivor. 

The opinion asks “all states not to recognize the illegal situation resulting from construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.”

Israeli officials were especially chagrined that the court issued no criticism of the thousands of Palestinian terrorist attacks that prompted Israel to build the fence.

The opinion, which is non-binding, can’t sanction Israel, but its power lies in the use Israel’s enemies can make of it — and that’s what Jewish officials want to combat.

The Palestinians have said they will call for a special emergency session of the U.N. General Assembly to demand that Israel comply with the court’s opinion. That could lead to a vote in the U.N. Security Council, which has the power to impose and enforce sanctions.

Because the Arab-backed resolution that asked for the court opinion got only lukewarm backing — it passed the General Assembly by a 90-8 vote, with 74 abstentions — Israel supporters plan to target countries that had reservations about the hearing.

Many countries, including much of Europe, argued against tainting the court with a political issue and diverting the Israeli-Palestinian peace process.

“To have the Palestinians once again hijack the system” is “deja vu all over again,” said Dan Mariaschin, executive vice president of B’nai B’rith International. “I think we have to go back to those countries who felt this should not have gone to the court in the first place.”

Mariaschin hopes those nations will tell the United Nations “that this is an issue that belongs in negotiations and is not to be determined in New York City, not to be determined in The Hague, but to be determined in the Middle East between Israelis and Palestinians.”

B’nai B’rith International has mobilized chapters around the world to urge government leaders to oppose any U.N. resolution on the court opinion.

The Conference of Presidents of Major American Jewish Organizations called the campaign its “biggest mobilization” since the fight against a 1975 U.N. resolution that denigrated Zionism as racism. 

With broad response from its member groups, the Presidents Conference is reaching out to Caribbean and Latin American nations that it doesn’t usually think it can sway.

The Presidents Conference also urged Russia, the United Kingdom and France — Security Council members with veto power who had opposed the court hearings — to stick to their positions. 

Israel also is targeting those countries that didn’t want the court to consider the issue.

An Israeli delegation met last Friday with Ben Bot, foreign minister for the Netherlands, which took over the rotating E.U. presidency July 1. 

Because Europe sways scores of votes at the United Nations, “we asked the European Union to stick to its position” in the upcoming debates and votes on the fence, said Arye Mekel, Israel’s deputy permanent representative at the United Nations.

Last Friday, however, Bot said “that the European Union, while recognizing Israel’s right to protect its citizens from terrorist attacks, has demanded that Israel stop and reverse the construction of the barrier inside the occupied Palestinian territory, including in and around East Jerusalem.”

A meeting of European foreign ministers on Monday is expected to issue an E.U. statement on the matter, a likely indicator of voting behavior at the United Nations.

European abstentions would be something of a symbolic victory for Israel, mirroring the outcome of the December vote that sent the issue to The Hague — when Arab and African countries voted in favor of the resolution but major democracies abstained.

In the meantime, the United States has opposed the court’s opinion, but hasn’t said explicitly that it would veto a Security Council resolution demanding Israeli compliance.

“It remains our view that this referral to the court was inappropriate and that in fact it could impede efforts to achieve progress toward a negotiated settlement between Israelis and Palestinians,” U.S. State Department spokesman Richard Boucher said last Friday.

The White House also said the international court was the wrong venue to debate the fence.

Even Sen. John Kerry (D-Mass.), the presumptive Democratic candidate for president, entered the fray.

“Israel’s fence is a legitimate response to terror that only exists in response to the wave of terror attacks against Israel,” Kerry said in a press release last Friday. “It is not a matter for the ICJ.”

Jewish groups are gearing up with pro-fence talking points they can use with government leaders and newspaper editors.

In a conference call last Friday for Jewish community relations councils across North America, activists were told that if they are asked for media comment, they should stress how much the fence already has reduced terrorism.

Many U.S. Jewish organizations issued press releases last Friday blasting the court’s decision.

The court was taken over by “narrow political extremist goals,” said James Tisch, chairman of the Conference of Presidents of Major American Jewish Organizations. “The ruling contradicts the fundamental right of all states to defend their citizens. No other country is judged like Israel –– not to higher standards, but double standards.”

A slew of U.S. representatives also issued statements rejecting the court opinion. Rep. Ileana Ros-Lehtinen (R-Fla.) has begun a lobbying campaign urging Latin American countries to oppose a U.N. resolution.

Rep. Gary Ackerman (D-N.Y.) sponsored a congressional resolution condemning the court’s opinion.

At a press conference last Friday across from the United Nations attended by New York’s two Democratic senators — Charles Schumer and Hillary Clinton — Jewish groups said terrorist attacks had fallen by 90 percent since parts of the fence went up. 

“It makes no sense for the United Nations to vehemently oppose a fence which is a non-violent response to terrorism rather than opposing terrorism itself,” Clinton told the crowd.

Also speaking at the press conference, Israel’s U.N. ambassador, Dan Gillerman, called last Friday a “tragic day.” 

“The U.N. has been hijacked and abused,” Gillerman said. The opinion “totally disregards why that fence was put up there.”

“This is the Arafat fence. This is the fence that Arafat built,” he said, referring to Palestinian Authority President Yasser Arafat. “This fence will remain and protect Israeli lives. It will remain as long as Arafat’s reign of terror remains.”

JTA staff writers Ron Kampeas and Matthew E. Berger in Washington and Joe Berkofsky in New York contributed to this story.


return to top