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Two recent decisions on Israel's security barrier

Noah Leavitt, FindLaw Columnist
Special to CNN.com


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(FindLaw) -- During the past two weeks, both the highest court in Israel and the highest court in the international legal system have issued rulings condemning Israel's controversial security barrier.

The decision by the Israeli Supreme Court shows why a democratic society that is attempting to prevent terrorism has a critical need for an independent judiciary. Like the U.S. Supreme Court's recent "war on terrorism" decisions, the Israeli Court's ruling vindicated individual rights, while at the same time taking security concerns into account.

The decision by the International Court of Justice, however, was more troubling. It showed how international human rights bodies -- and international legal tribunals more generally -- can be used for highly political, rather than legal, purposes.

Courts are supposed to be an independent third branch, insulated from popular pressures as well as overreaching executive power. That is how the Israeli Supreme Court acted -- but the ICJ fell far short of this standard, caving in to anti-Israel political pressures.

The debate over Israel's controversial security barrier

In 2002, Israel began constructing an extensive network of fences and walls to prevent suicide bombers from reaching its civilians. Roughly one quarter of the 420-mile barrier has been completed. While the large majority of the structure will be barbed wire and trenches, approximately 5 percent will consist of 20-foot high concrete walls.

The path of the barrier generally travels along Israel's pre-1967 border, but at certain points, it dips into the West Bank. For this reason, Palestinians claim that Israel is using the barrier to annex land that they say will be theirs when a future state is established.

According to government studies, in areas where the fence has been completed, the rate of terrorist and criminal incursions into Israel has gone from 600 per year to 0. In addition, Israel's government has repeatedly claimed that the fence will remain up only as long as suicide bombers continue to attack Israel from their hideouts behind the structure.

The wall has caused great hardship for thousands of Palestinians, who are prevented by the security barrier from accessing their farms, as well as from traveling to schools and markets. These hardships have led to about twenty cases challenging the barrier's route to be brought before the Israeli Supreme Court. The recent ruling is the first to be issued, and is seen as a test case.

Israel's Supreme Court rules against the barrier

On June 30, in a landmark decision, a three-judge panel of Israel's Supreme Court, including President of the Court Aharon Barak, ruled that a significant section of the barrier must be taken down.

The case was brought by a group of Palestinian farmers, who argued that the wall's route, along a 25-mile section, causes unjustifiable suffering, infringing on the rights of more than 35,000 Palestinians. A group of suburban Israelis joined them in claiming that the barrier increases local hostilities and makes the neighborhood more, rather than less, of a security risk.

In deciding in favor of the plaintiffs, the Court recognized Israel's legitimate security interest in building the barrier.

The Court also recognized that Israel, if need be, can expropriate land in the West Bank for this purpose if it provides adequate compensation. But it noted that such compensation, earlier promised by the Sharon administration, had not yet been granted, and ordered that it must be. In addition, the Court stressed that when Israel's barrier intrudes into the West Bank -- holding the land in "belligerent occupation" -- international law applies.

Moving on, then, to the international law question, the Court held that the barrier's current route "injures the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law." Accordingly, it ordered that roughly 20 miles of the barrier be rerouted -- even if that eventually results in compromising a degree of security for Israel.

The Court's willingness to order compensation to those whose land was taken, and order that the barrier be rerouted, illustrates the independence of Israel's judiciary. Even more striking, as a show of independence, were President Barak's remarks that he would like to consider, as well, the legality of the entire security barrier.

Israel's judges resoundingly declared that "there is no security without law" and that "only a separation barrier built on a base of law will grant security to the state and its citizens."

After the ruling, the Israeli Defense Ministry immediately stated that it would comply with the Supreme Court. Several days later, Prime Minister Sharon affirmed that his government would obey the ruling. Indeed, since then, the Defense Ministry has carried out the changes on its map identifying the path of the route based on the ruling.

In addition, a week later, the Supreme Court froze construction of another part of the barrier. And, just this past Sunday, the Court called for a temporary halt to the building of another section of the fence in the West Bank, near Tel Aviv.

These rulings are admirable: Removed from Israel's political fray, the Supreme Court ruled against the powerful Prime Minister and the entire national security apparatus in favor of poor Palestinian farmers, at a cost of what will be tens of millions of dollars. The Court demonstrated how a judicial system could uphold treasured rights during periods of national stress.

Just afterward, however, the International Court of Justice -- also known as the ICJ or World Court -- issued its own advisory opinion on this question. And that opinion, unfortunately, was far from admirable.

The International Court of Justice and its role

The ICJ, the United Nations' highest tribunal, consists of 15 judges who are nominated by national governments and then chosen by the General Assembly and Security Council. Its main role is to decide disputes between countries, based upon mutual consent of the parties. It interprets treaties, answers questions of international law and addresses breaches of international obligations.

Generally, compliance with ICJ rulings is voluntary. Powerless to issue its own sanctions, the most the ICJ can do is request that the U.N. Security Council impose sanctions. It is for this reason that Mohammed Dahleh, the victorious lawyer for the Palestinian farmers in the Israeli Supreme Court case, declared that, "this decision [by the Israeli Supreme Court] will be more important than the one at The Hague because this one will be followed."

The ICJ can also issue non-binding advisory opinions to any organ of the United Nations and its agencies upon request. That is how it came to hear the barrier case -- as a result of many requests from Palestinian leaders, Arab groups and 44 members of the U.N. General Assembly.

Importantly, because of U.N. procedures, no Israeli jurist is eligible to serve on the ICJ. (Similarly, Israel is also the only U.N. member state denied membership in the UN's five regional groups, which elect U.N. bodies in Geneva. As a result, it is the only U.N. member forced to sit out on important debates on draft resolutions and U.N. Geneva-based work of many types of U.N. work, including selection for high ranking tribunals.)

More than 50 parties submitted lengthy briefs to the ICJ, almost all of them critical of the barrier. That is not surprising -- for the General Assembly has historically proved a hostile forum for Israel.

On the one hand, Israel is the object of more investigative committees, special representatives and rapporteurs than any other state in the entire U.N. system. Yet there has never been a U.N. resolution specifically on anti-Semitism, nor a single report to a U.N. body dedicated to discrimination against Jews. (In contrast, there are annual resolutions and reports focusing on the defamation of Islam and discrimination against Muslims and Arabs.)

Unsurprisingly, Israel did not consent to ICJ jurisdiction, did not argue the merits of the legal issues, and did not attend the hearings on the case at The Hague this February.

The ICJ opinion and the Israeli court opinion

Unlike the Israeli Supreme Court, the ICJ denounced the chosen path for a very large portion of the entire wall -- not just the 25-mile subsection. Yet, the two rulings resembled each other in several fundamental ways. And on these common points, the ICJ was near unanimous, with only one of the 15 judges dissenting.

Both found that construction of the barrier on the specific route chosen was not the only means to safeguard Israelis. Both found that that the wall, along the route chosen, infringes a number of rights of Palestinians, and the infringement cannot be justified on the grounds of national security. Both found, accordingly, that the barrier therefore violates certain international and humanitarian laws. And both concluded that Israel must compensate Palestinians who lost land or property as a result of the barrier.

Nonetheless, the ICJ opinion was troubling in a number of respects -- because it evidenced a politically driven, unfair hostility to Israel.

First, the ICJ chose not to consider the Israeli Supreme Court's earlier decision -- though it had the right and the ability to do so.

Second, it dismissed Israel's claim to a right to self-defense under Article 51 of the U.N. Charter despite numerous armed attacks -- and seemed to even consider the defensive role of the barrier irrelevant.

Third, it ignored the fact that Israeli citizens who are killed by suicide bombers are also having a right violated: their fundamental right to life.

Fourth, it gratuitously ruled against the legality of the Israeli settlers on the West Bank, whose status was not relevant to the dispute.

For these reasons, one of the concurring judge's separate opinion criticized the ICJ for not presenting a balanced assessment of the "immensely complex" law, history and politics of the Israel-Palestine question. She also expressed the view that the Court should have taken the opportunity to say "in the clearest terms" that protecting civilians remains an obligation of humanitarian law "not only for the occupier but equally for those seeking to liberate themselves" from occupation.

As that judge indicated, it is wrong for an international legal body to ignore blatant violations of international law such as those terrorists wreak.

The ICJ enters the political and abandons the legal

After making these findings, the ICJ moved into a more political realm. Among other points, it called on all States to see to it that any impediment to the Palestinians' right of self determination is brought to an end.

The ICJ also called on the U.N. General Assembly and Security Council to consider what further action is required to bring an end to the existence of the barrier, which it deemed illegal. As a result, a number of Arab states promised that this week they will ask the General Assembly to urge the destruction of the barrier and impose other sanctions against Israel -- which although not yet specified would likely be similar to those against apartheid-era South Africa.

But Israel is no South Africa. Again, it is important to remember Israel's own Supreme Court has reached essentially the same legal ruling that the ICJ has rendered and has demanded compliance in no uncertain terms. Moreover, there is every sign that the Sharon Administration will indeed comply, and there are also signs that the Court may take up the larger question of the legality of the wall as a whole -- a question in which its President is intensely interested. In this context, the ICJ's pushing for further U.N. sanctions is not a legal remedy, but a political attack.

The American judge, along with his counterpart from the Netherlands, were the only two who rejected these additional, political ICJ charges. They did the right thing: This additional, intensely-political posturing, and this call for far-reaching action by the General Assembly and Security Council, were inappropriate for a court that is supposed to be an independent tribunal.

World opinion is generally critical of Israel's efforts to defend itself from suicide bomber attacks. Whether that opinion is right is a matter of political debate. But that is not a debate into which the ICJ -- supposedly a legal body -- should have entered. The ICJ's opinion improperly and harmfully converted a political hostility into a purportedly legal precedent.

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Noah Leavitt, a FindLawexternal link columnist, is a human rights lawyer who has worked with various components of the United Nations legal system, including the International Court of Justice. He can be contacted at nsleavitt@hotmail.com.


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