Terror forces Israel to act in self-defense

July 09, 2004|By Barry A. Feinstein

JERUSALEM - The International Court of Justice rules today on the legality of the Israeli security barrier in the West Bank, which would not have been necessary if the Palestinian leadership had continued the peace process instead of initiating and perpetuating violence.

Palestinians and Israelis were negotiating a peaceful settlement to their decades-long dispute between 1993 and 2000. As part of those negotiations, Palestinian leader Yasser Arafat was offered a deal in late 2000 to finally end the conflict that, according to the U.S. peace negotiator, Ambassador Dennis Ross, would have given Mr. Arafat's people a state "with territory in over 97 percent of the West Bank, Gaza and Jerusalem," with Arab East Jerusalem as its capital and with the unlimited right of Palestinian refugees to return to it.

There was widespread support across the Israeli political spectrum for such a solution, assuming the Palestinians would be prepared to abandon violence. Unfortunately, Mr. Arafat's response was to substitute war for negotiations, depriving the Palestinians of a chance for peace, dignity and prosperity while inciting them to become human bombs.

The security barrier, about 100 miles of which has been completed, was not even on the minds of most Israelis until the recent spate of terrorism that literally forced it upon them. But in response to the unprecedented violence, the barrier, 94 percent of which consists of fences and ditches and 6 percent of which is built of concrete, has been embraced extensively throughout Israel as a nonviolent form of defense that reduces terrorism.

The ruling today by the world court in The Hague is an advisory opinion and not binding on Israel, which does not accept its jurisdiction and propriety in the matter. The Palestinians sought a hearing by the court through the U.N. General Assembly.

Under international laws of armed conflict, an occupying power is required in occupied territory to "take all the measures" in its power to "ensure, as far as possible, public order and safety." These rules also recognize that military necessity, however problematic, may justify certain conduct otherwise prohibited, such as seizing and even destroying enemy property.

Israel has emphasized that the barrier is a temporary measure to impede the perpetration of terrorist attacks against innocent Israelis. To be effective, it must take into account topographical, demographic and strategic criteria. At the same time, no effort must be spared to minimize the disruption to both Palestinian and Israeli daily life along the barrier's route.

Israel recognizes that any permanent international border must be determined through direct negotiations with the Palestinians. No territory is annexed to Israel by the barrier, nor does it affect the ownership of private lands held by Palestinians or the legal status of any Palestinians.

Israel's objective is to put up the barrier on public land, but when this is not possible, and private land is thus requisitioned, full compensation is offered for its use. Further, an owner may file an objection to land requisitions with the Israeli Supreme Court. Indeed, the court last week upheld a Palestinian petition and annulled several army land seizure orders.

The ruling determined that the security advantages arising from the planned route of a section of the barrier near Jerusalem were not proportional to the disruption caused to Palestinian daily life in that area, and the route must be altered in some places and re-examined in others to take into account the proper balance between security and humanitarian considerations. In compliance, Israeli Prime Minister Ariel Sharon ordered that a less disruptive route be found for that portion of the barrier.

It's true that the barrier restricts the free movement of Palestinians. But what is the greater tragedy: making it more difficult for some people to cultivate their fields and tend their olive groves, or killing innocent people? Israel has attempted to diminish the inconvenience by allowing passage of goods and people through the large number of crossing points set up for both Israelis and Palestinians.

The barrier, just as other antiterrorism measures in the global war against terrorism, is indeed an inconvenience to people other than those it is intended to deter. Yet inconvenience alone does not make it illegal under the principles of international humanitarian law. Naturally, freedom of movement may be restricted during situations of armed conflict. And, it is hoped, the inconvenience caused by the barrier may also help save the lives of those misguided Palestinian children who are brainwashed to believe that they must blow themselves up amid innocent Israelis.

Israelis want peace, not a barrier. Yet they prefer to live without the incessant threat of terrorism. The barrier, a legitimate means of ensuring their security, does not foreclose peace negotiations regarding the final status of the disputed territories. Inconvenience that may be caused by the barrier is exactly that, an inconvenience, and it, too, is temporary. Death, however, is permanent.

Barry A. Feinstein is a senior lecturer specializing in international law at the Netanya Academic College School of Law and a senior fellow at its Strategic Dialogue Center.

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