Israel/palestine - The Separation Wall Debate

Description:

Since 1996, the Israeli government has considered different plans to stop the infiltration into Israel of Palestinians from the West Bank in order to avoid terrorist attacks. The Israeli Cabinet approved the wall/fence plan for the first time on July 2001. According to a decision of 14 April 2002, the so called "Security Fence" was supposed to be 80 kilometers length and concerned three separated areas of the West Bank. It was afterwards transformed into a 720 kilometers "continuous fence" plan along the West Bank, which included East- Jerusalem.

The wall is a multi- layered composite obstacle consisting essentially of a fence with electronic sensors, a ditch up to 4 meters deep, a two lane asphalt patrol road, a trace road and a stack of six coils of barbed wire marking the perimeter of the complex. The construction of the wall is planned in 4 phases. Phase A concerns the northern West Bank (from the Salem check point in the north of Jenin to the settlement of Elkana) and has been declared completed on 31 July 2003. Phase B concerns the Eastern part of the West Bank and reaches the Jordanian border (from Salem to Tirat-tsvi). Phase C should link the north- western "security fence" built around Jerusalem with the southern point of phase A construction at Elkana; the construction of this section has begun in the central West Bank. Finally, the construction of phase D, planned for the southern part of the West Bank (from the Har Gilo settlement near Jerusalem to the Carmel settlement south east of Hebron), hadn't begun yet in January 2004. As at 25 January 2004, according to a written statement of the Secretary General, about 190 kilometers have been built. The wall's estimated building cost is NIS 7 billion and the cost of each kilometer is NIS 10 billion.

Click here for a 2004 update of the construction of the Wall (phase C)

On the basis of the separation wall plan, approximately 16.6% of the West Bank would lie between the Green Line (the armistice demarcation line between Israeli and Arab forces fixed by an agreement signed in 1949 between Israel and Jordan) and the wall. In addition, approximately 397 000 Palestinians and 320 000 settlers would be living in that area.

It is important to note that the Israeli government has defined this area as a "closed area" in October 2003 and has created a new administrative regime for it. This regime states that residents of this area may not remain in it unless they have a permit or an identity card issued by the Israeli authorities. However, this rule does not apply to Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel according to the Law of Return; only Palestinians would accordingly have to leave.

Map of the Wall in the West Bank

What is the issue?

This fence/wall plan amplifies the areas of conflict between both Israel and the Palestinians.

Palestinians and opponents to the plan think it is mainly a political and not a security fence. They think that it is meant to illegally annex territory from the West Bank to Israel and to consequently deprive the future Palestinian State from its territorial sovereignty. This goes against the right of the Palestinians to self- determination and "constitutes a violation of the legal principle prohibiting the acquisition of territory by the use of force"(Palestine Liberation Organization (PLO)'s legal position before the ICJ, 9-7-2004).

The PLO furthermore thinks this wall will interfere in the demographic occupation of the Occupied Palestinian Territory by parceling out the territory and by reinforcing the illegal Israeli settlement in the area. In practice, basic human rights would be violated such as the right to property, the right to education, the right to health and the right to an adequate standard of living.

On the other hand, for Israel, the Wall is a "security fence" aiming only at combating terrorist attacks launched from the West Bank and defending its civilians too often subject to these atrocities. To legally justify this measure, Israel representatives said on different occasions that it was a temporary measure which "does not annex territories to the state of Israel". Furthermore, "the fence is not a border, it has no political significance" and "it does not change the legal status of the territory in any way"(see ICJ advisory opinion, July 2004).

The effects of the wall on Palestinian livelihood.

The wall in a broader context: The impact of closures on Palestinian productive activities

Israeli High court decision on the fence/wall, "Beit Sourik Village Council vs. the Government of Israel and Commander of the Israel Defence Forces in the West Bank," June 30, 2004:

The Israeli High Court of Justice gave a ruling on June 30, 2004 on a 40 kilometer strip of the wall in which it held that the "security barrier" on West Bank territory was legal. However, the Court applied the proportionality principle. Israel has the right to employ security criteria in building the fence in order to defend itself against Palestinian suicide bombers, but Israel was also responsible for the welfare of the Palestinians that are affected by the fence.

See the full judgment

See different point of views

Advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, 9 July 2004:

The Court's (ICJ) advisory opinion was requested by the General Assembly of the United Nations, on the basis of article 65 paragraph 1 of its Statute and article 96 paragraph 1 of the Charter. After a long procedure and long discussions the ICJ judged the construction of the wall illegal according to international humanitarian law and international human rights law. As legal consequences to the violation by Israel of its obligations, Israel has to cease the works of construction of the wall, to dismantle it forthwith and to make "reparation for the damage caused to all natural or legal persons affected by construction of the wall".

The Court notes that Israeli settlements in the West Bank violate Article 49, paragraph 6, of the Fourth Geneva Convention:

120. "As regards these settlements, the Court notes that provides: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory".

134. "[...] The Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above".

137. "[...] The Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments".

141. "The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law".

Israel didn't participate in the ICJ deliberations and has announced that it will not comply with the advisory opinion. However, it remains important to note that from a legal point of view, ICJ's advisory opinions, although legally important have no enforceable effect. Israel is therefore not obliged to comply with it. Israel said it will comply with the ruling of its own High Court of Justice.

See the full ICJ text

Reactions to the ICJ advisory opinion:

- A Palestinian view: "The Palestinian people were encouraged by The Hague's decision [...]. The way we read this legal finding goes beyond the issue of the wall. The decision, which came from the highest legal body in the world, has ended the debate over whether these territories--i.e., the West Bank, including East Jerusalem, and the Gaza Strip--are disputed or occupied. In addition, this resolution ended any possibility of Israel claiming East Jerusalem as the capital of Israel. It consolidated the Palestinian political and negotiating position that East Jerusalem and the rest of the occupied Palestinian territories, including settlements, are under illegal belligerent military occupation. The decision also reinforced the applicability of the Fourth Geneva Convention to the occupied territories"(Ghassan Khatib, Published 12/7/2004©bitterlemons.org).

- An Israeli view: "In contrast, the ICJ's recommendation [...] appears to most Israelis as a parody of justice. Even the ICJ's insistence on calling the fence a "wall," when only about six percent of the structure built so far is wall and 94% fence, reflects the court's apparent disregard for the objective truth [...]. In other words, in case we forgot, the ICJ was acting as an arm of that most politicized of international bodies, the UN General Assembly, where the Arab bloc can command a majority on nearly any issue. Nor does the ICJ in any way even attempt to discuss Israel's security rationale for building a fence [...]. To a major extent, the mess Israel finds itself in is a result of Prime Minister Ariel Sharon's misbegotten settlement and fence-building policies. In retrospect it might also have benefited Israel to participate in the ICJ deliberations rather than boycott them: the result would probably have been the same, but at least we could have laid out the security rationale of the fence, rather than relying on the justices' total lack of understanding of the security issue" (Yossi Alpher, Published 12/7/2004©bitterlemons.org).

See the complete articles

United Nations' reactions to the non compliance by Israel to the ICJ advisory opinion:

- Note by the Secretary General as to the "Question of the violation of Human Rights in the occupied Arab territories, including Palestine", report submitted by John Dugard, Special Rapporteur, pursuant to Commission on Human Rights resolutions 1993/2/A and 2004/10, 12 August 2004, 59th session, A/59/256:

Some quotations from this document concerning the Wall:

"Israel claims that the purpose of the Wall is to secure Israel from terrorist attacks and claims that terrorist attacks inside Israel have dropped by over 80 per cent as a result of the construction of the Wall. Two comments may be made on Israel's claims. First, there is no compelling evidence that suicide bombers could not have been as effectively prevented from entering Israel if the Wall had been built along the Green Line (the accepted border between Israel and Palestine) or within the Israeli side of the Green Line. Second, the evidence suggests that the following are more convincing explanations for the construction of the Wall:

o The incorporation of settlers within Israel;
o The confiscation of Palestinian land;
o The encouragement to Palestinians to leave their lands and homes by making life intolerable for them.

The course of the Wall indicates clearly that its purpose is to incorporate as many settlers as possible into Israel. This is borne out by the fact that some 80 per cent of settlers in the West Bank will be included on the Israeli side of the Wall.

Furthermore, Benjamin Netanyahu, Minister of Finance of Israel and a former Prime Minister, openly acknowledged in the International Herald Tribune on 14 July 2004 that the purpose of the Wall was to include "as many Jews as possible".

"A further purpose of the Wall is to expand Israel's territory. Rich agricultural land and water resources have been seized along the Green Line and incorporated into Israel".

"The Wall is currently being built around an expanded East Jerusalem to incorporate some 247,000 settlers in 12 settlements and some 249,000 Palestinians within the Wall. It must be recalled that Israel's 1980 annexation of East Jerusalem is unlawful and has been declared "of no legal validity" by a resolution of the Security Council".

"A third purpose of the Wall is to compel Palestinian residents living between the Wall and the Green Line and adjacent to the Wall, but separated from their land by the Wall, to leave their homes and start a new life elsewhere in the West Bank by making life intolerable for them".

See the full text

General Assembly, 59th session, statements of representatives of both parties about the Wall:

ISRAEL:

Silvan shalom, Deputy Prime Minister of Foreign Affairs of Israel said:

"On the security front, Israel was building a security fence to stop the unchecked wave of Palestinian attacks".

"The fence does not take lives. It saves them. Where there is a fence, there is no terror. Where there is no fence, there is terror. The modified route of the fence reflects the necessary balance between the security of our citizens and the welfare of the Palestinian population, as called for by Israel's Supreme Court. Most importantly, the fence is reversible. The lives taken by terror are irreversible. By helping take terrorism out of the equation, the fence contributes to the prospect of a return to negotiations and the realization of the Roadmap's vision of peace".

See the full statement

PALESTINE:

Assaad Kaddoumi, Head of the Political Department of the Palestine Liberation Organization (PLO) said:

"Israel did not heed to the request by the UN General Assembly which fact did, by necessity, call for an Advisory Opinion by the International Court of Justice on "what are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions". The General Assembly by an overwhelming majority of 150 votes acknowledged the Court's Advisory Opinion of 9 July 2004. The representatives of the Governments of the USA and Israel were among the 6 others who voted in the negative".

See the full statement