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Fact Sheets: The International Court of Justice & Israel’s Security Fence

(Updated July 2004)

The most important issue at stake in the conflict between Israelis and Palestinians is how to bring about a two-state solution that offers peace and security to both parties. The International Court of Justice (ICJ) has nothing to contribute to resolving this issue and its decision actually subverts the prospects for peace by undermining direct negotiations, diverting attention from the Palestinians’ failure to fulfill their road map obligation to stop the violence, and singling Israel out for opprobrium while ignoring the Palestinian terrorism that necessitated the construction of the security fence.

As Secretary of State Colin Powell observed, as long as the Palestinians believe they can win in the court of world opinion, they will have no incentive to pursue peace.

Israel only built this fence to defend its citizens after three years of unrelenting Palestinian violence that has taken the lives of nearly 1,000 Israelis. And the fence has served its purpose. Wherever the fence has been completed, the terrorist organizations have not succeeded in crossing it. No outside court or international organization has the authority to determine how Israel should protect its citizens.

The United States shares this view and that is why it objected to the Court’s involvement. After all, if the Court can tell Israel that it can’t build a fence to defend itself from terrorists, why can’t the justices tell the United States that it is illegal to build a barrier to keep Mexicans from entering the United States, or that its war in Iraq was not justified? In fact, the ICJ held that the right of self-defense applies only “in the case of an armed attack by one state against another state,” which not only excludes the right of Israel to defend itself against Palestinian terrorists, but apparently means the United States cannot legally exercise its right of self-defense against Al-Qaeda.

Israel’s Supreme Court took up the grievances of Palestinians and ruled that the construction of the security fence is consistent with international law and was based on Israel’s security requirements rather than political considerations. It also required the government to move the fence in some places to make things easier for the Palestinians. Though the Court’s decision made the government’s job of securing the population from terrorist threats more difficult, costly, and time-consuming, the Prime Minister immediately accepted the decision and began to reroute the fence and to factor the Court’s ruling into the planning of the rest of the barrier.

The security fence does create some inconvenience to Palestinians, but it also saves lives. The deaths of Israelis caused by terror are permanent and irreversible whereas the hardships faced by the Palestinians are temporary and reversible.

What is the basis for challenging the fence in the first place? Contrary to the language of the General Assembly resolution, the fence does not stand on “occupied Palestinian” land. The fence does not affect the final status of the territories. Israel has not annexed any territory around the fence; the land itself is a matter of dispute and, should a peace settlement be reached, the fence can be moved or torn down. Israel has already said it would reroute the fence to minimize the impact on the Palestinians.

The ICJ's opinion is only an advisory one on “the legal implications of building a wall” and does not have the force of law. The ruling was largely a foregone conclusion given that the UN General Assembly adopted a position on the matter and prejudged it. The court is a political body and Israel has no representation on the court. The 15 judge panel does, however, include a Palestinian from Jordan and an Egyptian.

The politicization of the proceedings was clear from the Court’s decision to allow 56 countries from the Organization of the Islamic Conference, along with the 22 members of the Arab League, to testify against Israel. While Palestinians may legitimately criticize the fence, none of these other parties are in any way affected by Israel’s efforts to defend itself. Is it any wonder the “trial” resembled the Israeli-bashing forum that occurred in Durban and the one-sided debates in the General Assembly?

The decision to submit the issue of the fence to the court ignored Article 36 of the Court’s Statute which stipulates that contentious issues can only be brought before the Court with the consent of all sides. In this case, the issue is clearly contentious, Israel did not consent to arbitration before the court, and the parties already have mechanisms in place for resolving such issues.

Israel was put in a no-win situation. By virtue of being “taken to court,” Israel was put on the defensive. Israel ultimately decided it would not participate in the trial and was joined in this decision by the United States, Russia, and the EU. This left the hearings to Israel's critics who, predictably, used them as a propaganda forum to castigate Israel.

Counting the countries that did not vote, as well as those that voted against the Arab proposal, 101 member-states — a majority of UN members — did not support referring the fence issue to the court, and at least 30 countries, including the United States, Great Britain, Russia, and 15 members of the European Union submitted affidavits to the ICJ saying that the issue did not belong in the Court.

And why should the Court single out Israel’s actions? Has it ever ruled on the dispute between India and Pakistan over Kashmir or the conflict between Greece and Turkey over Cyprus or any of the dozens of other international border disputes?

India, Saudi Arabia, and Turkey voted to refer the Israeli fence to the ICJ even though each has built their own barriers. India is just completing a 460-mile barrier in Kashmir to halt infiltrations supported by Pakistan; Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to halt smuggling of weaponry; and Turkey built a barrier in the southern province of Alexandretta, which was formerly in Syria and is an area that Syria claims as its own. Ironically, after condemning Israel's barrier, the UN itself announced plans to build a fence to improve security around its New York headquarters.