The Palestinian presentation at The International Court of Justice in The Hague is the first move in a tense game of international chess. With the battle being fought in the court itself and on the playing field of public opinion, it is imperative that we keep a focus on a few things. When the United Nations General Assembly asked the court to provide an advisory opinion on the legality of the route of Israel’s wall, it clearly marked the beginning of the vindication of the Palestinian position which is in step with international legitimacy and law. The Israeli refusal to accept the jurisdiction of the court reinforces what the Palestinians have been saying all along. In order to understand that the hearings in The Hague, we must put the whole discussion in perspective.
>From the Palestinian point of view, the separation wall is very clearly seen as part and parcel of the Israeli policy of settlement expansion. The path in which the wall is being built is not dictated by Israel’s security needs, but the needs of the settlements in the occupied Palestinian territories. The other purpose is to squeeze the maximum number of Palestinians into crowded cantons or enclaves in order to create a “green field” for the expansion of the settlements, hence, the expansion of Israel in the occupied territories.
Second of all, the separation wall project is a blatant attempt by the Israeli government to prejudice the outcome of any meaningful negotiations between Israel and the Palestinians in the future. It is designed to preempt the vital need to create a viable, contiguous, and democratic Palestinian state in the occupied territories based on international legality (the June 1967 borders).
Thirdly, it is also aimed at destroying the already-limping Palestinian economy. By suffocating any movement of people and goods, the Israelis are finishing off any rays of economic hope. Looking at the 2003 fourth quarter statistics (the last available from the Palestinian Bureau of Statistics), it becomes clear that the economic situation in the Jenin, Tulkarem, and Qalqilia areas has deteriorated dramatically since the completion of the wall in those regions. The wall has eaten up large swaths of land designated for agriculture and prevented people from farming or tending their lands. It has also had a drastic negative effect on employment in an area which already has suffered a great deal over the past three years due to Israeli-imposed restrictions. Just when we thought the occupation authority’s draconian measures couldn’t get worse, the wall came up. Poverty in these areas has worsened to a great extent, providing ample fodder for extremist elements in Palestinian society.
The paean that the separation wall provides security for Israel and Israelis is completely false. Real security can only be achieved through the peaceful relations of neighbors. By insisting on erecting a wall which severely adds to the suffering of the Palestinian civilian population, Israel is actively creating desperation and despair among the Palestinians. Israel’s security would have been better served if it had invested those hundreds of millions of dollars into building bridges of cooperation instead of walls of separation.
We look at the proceedings in The Hague anxiously, hoping that an advisory opinion based on international law will be the first step towards bringing down this monstrosity. If the international community’s member states adhere to the findings of the court, we can only hope that they will take the side of legality and implement the court’s advice. It will be a sunny day when the US president or the leader of a European country takes the example of the Berlin Wall and paraphrases former US President Ronald Reagan shouting, “Mr. Sharon, tear this wall down!”
- Published 23/2/2004 © bitterlemons.org
Ghassan Khatib is minister of labor in the Palestinian Authority cabinet. He has served for many years as a political analyst and media contact.
AN ISRAELI VIEW
Of fences, boycotts and international courts
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by Yossi Alpher
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As an anti-terrorist, anti-infiltration barrier, the fence is a good idea. Sunday's bus-bombing in Jerusalem demonstrated once again why we need a fence. But why is it so hard for us to get it right?
The fence should have been built more or less on the green line. Had this been the case, the issue would never have gotten to the International Court of Justice at The Hague. Now, when it is too late, we seem to be arriving at this conclusion, but in the clumsiest of ways.
It is important that we are moving sections of the fence back to the green line, and announcing that certain planned enclaves will not be fenced in. But by doing this in perfect timing with the opening of the court's proceedings, we appear to be affirming that we recognize the justice of the Palestinian/UN case and the legal and humanitarian argument against the fence in its original, intrusive path; and that we fear the court's authority, with key planners of the fence seemingly afraid of being charged with war crimes.
Still, there is in these moves at least an element of damage control—which cannot be said about the extremely visible eight meter high wall that is being built in the Abu Dis neighborhood in Jerusalem. It is as if we consciously sought to provide the world with a photogenic section of the barrier in the world's most controversial city to focus on during The Hague deliberations.
Nor are we dealing intelligently with the court's proceedings. We submitted a deposition to explain why the court does not, or should not, have jurisdiction over this issue—and I agree with the position of Israel and most of the world's leading democracies that it should not. Then why boycott the court hearings by arguing that the judges will read our deposition anyway and we have nothing to add? Since when can anyone be certain that 15 judges will indeed read and fully absorb a deposition? And who will point out to the judges the distortions in the Palestinian presentation?
We have allowed the court hearings to become a major media and information arena for the Israeli-Palestinian dispute. But instead of the government of Israel being represented at the court, it is financing and briefing a variety of non-governmental bodies who will argue its case in the streets of The Hague. We are asking the Jewish Agency, student groups, organizations of victims of terrorism, and Dutch evangelical Christians to argue the case instead of us. Their presence and contribution are important and welcome. But why have we gone underground on this issue and ceased to behave like a sovereign state? It is the State of Israel that should be pointing out again and again, in the court and to the media, that in every statement made by Palestinian spokespersons they conveniently ignore the fact that their suicide bombers brought about this fence—that they bear legal and moral responsibility for what has happened.
There are weighty claims to be judged here: the validity of Israel's ongoing occupation of the West Bank and Gaza; its right to defend itself against suicide bombers; the legality of the settlements (some of which are protected by the fence); Israel's right to requisition land for the fence; the validity of security constraints on Palestinian freedom of movement; the need for the dispute to be resolved at the negotiating table and not in court.
It could have been different had Prime Minister Ariel Sharon allowed the fence to fulfill its original anti-terrorist purpose and not hijacked it for his own objective of territorial gain. Now he's trying to do the same thing by hijacking another good idea, unilateral redeployment and dismantling of settlements, with the ultimate goal of annexing parts of the West Bank.
At this rate we're liable to end up back in court at The Hague on a second count.
- Published 23/2/2004 © bitterlemons.org
Yossi Alpher is a former senior adviser to Prime Minister Ehud Barak and former Director of the Jaffee Center for Strategic Studies, Tel Aviv University.
bitterlemons: What will be in your presentation?
Tarazi: I don’t believe that it is appropriate to talk about what we will be discussing before the court until it is made public. Nevertheless, generally speaking we will be focusing on the obligations of an occupying power to the occupied people and how Israel violated those obligations.
bitterlemons: Would the Palestinians agree if the wall was built along the green line?
Tarazi: We would prefer not to have a wall at all. Our idea of peace is one without walls and borders. Nevertheless, if Israel wanted to build a wall on the green line, that is certainly within its right. It does not, however, have the right to build it within occupied territory and in such a way that violates the rights of the occupied people whom Israel is obligated to protect and not harm.
bitterlemons: What is the best result that you can hope for from the hearings in The Hague?
Tarazi: Well, the International Court of Justice in The Hague has been asked to provide an advisory opinion for guidance to member states. So the real question is not what The Hague will say but what the member states are going to do to actually implement whatever the court advises. That is where I hope that states would change their policies and actually adopt whatever the court rules.
bitterlemons: Is there a precedent for this action?
Tarazi: It is one of the main mandates of the court to provide advisory opinions when asked by the General Assembly, which it has done. This is certainly within the court’s mandate and within their jurisdiction. They have never turned down a request to give an advisory opinion.
bitterlemons: The Israelis are saying the international court has no right to pass down an opinion. This is murmured by the Americans and the Europeans as well. What do they base that opinion on?
Tarazi: That is not the position of the Europeans and the Americans. You have not seen the European and American submissions. Please don’t believe whatever the Israelis tell you with respect to the US and EU positions. I think you should wait until you see that. I can say that I don't know if there is a single country other than Israel that approves of the wall in the fashion that it is being built.
Israel’s view is that no law applies to it. It has never abided by international law. Israel has taken the view that it can do whatever it wants with impunity. Unfortunately, that is the international community’s fault. It has taught Israel that international legal standards do not apply to it. Hopefully, this will be the beginning of a change in that policy.
bitterlemons: What issue is really at stake here?
Tarazi: I think we should focus on the fact that this is not a question of the wall per se, and Israel’s right to build a wall, but a question of the legal consequences of Israel building the wall in occupied territory in such a way that violates the rights of the occupied people. The importance of this hearing is that is re-injects and reaffirms that this not a conflict between two equal parties who simply have to negotiate. This is an issue between occupier and occupied and we seem to have forgotten that. This is not a conflict between two equal parties with equal negotiating leverage. You should not forget that as an occupier, Israel is subject to international legal standards which it has violated.
- Published 23/2/2004 © bitterlemons.org
Michael Tarazi is the PLO Legal Advisor. A Harvard University law school graduate, he is a leading member of the official Palestinian International Court of Justice delegation.
AN ISRAELI VIEW
If there is no fence, there is terror
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an interview with Yosef (Tommy) Lapid
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bitterlemons: If Israel had built the fence closer to the green line from the start, could it have prevented the current proceedings of the International Court of Justice at The Hague?
Lapid: I think that if we did not put the fence exactly on the green line the Palestinians would have tried anyhow.
bitterlemons: Will the Palestinian suicide bus bombing of February 22, 2004 in Jerusalem affect The Hague proceedings?
Lapid: That terrorist act has put the proceedings in The Hague into the proper context from the Israeli point of view. What we want is to prevent terrorism and what happened in Jerusalem proves that if there is no fence, there is terror.
bitterlemons: Israel is moving the fence toward the green line precisely when the court is meeting. Doesn't this signal that Israel somehow recognizes the court's jurisdiction?
Lapid: There was a lively discussion in the government on this subject. The minister of defense said that the timing was coincidental and not connected to The Hague. But this doesn't tell the entire story. When the proceedings at The Hague have concluded, I may voice some opinions differing from those of the government with regard to the path of the fence, in order to reduce disturbance to civilian life. But in principle we have the right to put the fence wherever our lives are in danger.
bitterlemons: Do you believe the cases currently pending before the Israel High Court of Justice regarding the fence could affect The Hague court decision?
Lapid: They certainly will affect the decisions of the Israeli government. We reject the jurisdiction of The Hague court but accept what our own court says.
bitterlemons: Israel decided not to appear at the hearing in The Hague. Yet the government of Israel has encouraged the Jewish Agency and various NGOs to demonstrate.
Lapid: I believe we should reject the jurisdiction of the court, but that if it doesn't accept our view we should appear. But the Cabinet decided against my view. As for the demonstrations in The Hague, we learned the lessons of [the anti-racism conference in] Durban, where the pro-Palestinian forces took over the street.
bitterlemons: What is Israel's best-case outcome at The Hague? Worst-case outcome?
Lapid: The best case would be that the court says it has no jurisdiction on such a political subject. The worst case is a negative opinion to the United Nations
- Published 23/2/2004 ©bitterlemons.org
Yosef (Tommy) Lapid is deputy prime minister and minister of justice in the government of Israel and head of the Shinui Party.
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