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Israel Attorneys Issue Reply To ICJ Fence Opinion

Israel’s Supreme Court instructed the government to prepare a response to the July 9, 2004, ruling on the security fence by the International Court of Justice (ICJ). On February 23, 2005, Osnat Mandel, head of the High Court Section of the State Attorney’s Office, released a 177-page statement that called the ICJ opinion “incomplete, unspecific, inaccurate and unbalanced.” It also noted that the Hague court’s ruling was an advisory opinion that is not legally binding.

The government maintained that the question the court was asked to review was biased because it referred to the fence as a “wall,” even though only 5 percent of the barrier that had been built to that point was a concrete wall.

Mandel rejected the ICJ analysis and application of the 1907 Hague Convention and the 1949 Geneva Convention. The report also criticized the ICJ for relying primarily on information provided by UN Secretary-General Kofi Annan and one-sided documents submitted by two UN Commission on Human Rights rapporteurs, John Dugard and Jean Ziegler.

“In the factual sections of the advisory opinion, the judges did not address Israel's arguments,” according to the government's statement. “There is no detailed discussion of the terror assault or any serious consideration of Israel's military needs except for one sentence recognizing Israel's right to protect itself against terrorism. But even this sentence is not part of the central legal analysis and sounds more like lip service.”

The state’s report also noted the Court had made factual errors, including the claim that Israel had seized 25,000 acres of Palestinian farmland for the fence. Mandel reported the actual figure was 2,075 acres, only 1,750 of which were privately owned.

Mandel concluded that “lacking a substantial and detailed consideration of Israel's military needs and the terrorist assault that the fence was meant to thwart, and lacking detailed information to assess the balance between military necessity and the harm caused Palestinians in the various sections of the fence, the ICJ could not reach well-founded legal conclusions.”

The response noted also that the facts on the ground had changed dramatically since the ICJ ruling. At the time, the judges wrote that the fence would place 16.6 percent of West Bank land on the Israeli side of the fence; however ,the new route approved by the government on February 20, 2005, will incorporate only 7 percent.

Jerusalem PostHaaretz