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Tuesday, February 10, 2004

Israel's Anti-Terror Fence and the World Court Case

By Laurence E. Rothenberg and Abraham Bell of the Jerusalem Center for Public Affairs:

* The UN General Assembly (GA) resolution asking the International Court of Justice (ICJ) for an advisory opinion is actually a request for an endorsement of an already-stated political opinion of the GA. The ICJ lacks jurisdiction over the case because the GA has dictated the desired result. The court is not authorized to make endorsements of the GA's political opinions dressed in legal garb.

* The security fence is a necessary and proportional response to a campaign of genocide, crimes against humanity, and war crimes by Palestinians. If the fence were built along the 1949 armistice line (the "green line"), it would not achieve Israel's legitimate security goal of protecting its citizens.

* The "green line" from 1949 bounding the West Bank is solely a defunct military line demarcating the extent of the Transjordanian invasion of Israel in 1948. Indeed, at the insistence of Syria, Egypt, and Jordan, each of the armistice agreements of 1949 specified that the ceasefire lines were not borders and that neither side relinquishes its territorial claims.

* The fence does not violate the Fourth Geneva Convention because the convention does not apply to the West Bank, a territory of disputed sovereignty to which Israel has the strongest claim, and which was not previously possessed by a legitimate sovereign.
Israel Has the Strongest Claim of Sovereign Rights in the West Bank

Sovereignty over the West Bank must be traced from the Ottoman Empire, which controlled the area encompassing territory now governed by Israel, the Palestinian Authority, Lebanon, Jordan, Syria, and Iraq, as well as parts of the Arabian peninsula until the end of the First World War.

The Ottoman Empire and its successor, the Republic of Turkey, yielded these territories to League of Nations mandates supervised by Britain and France.

The Mandate of Palestine, under British trusteeship, was a single territorial unit encompassing the territory now held by Israel and Jordan, including the West Bank and Gaza.

The Mandate explicitly recognized that Palestine was to be the "national home" of the Jewish people and did not recognize political or sovereign rights of any other peoples in the territory.

The Mandate permitted abridgement of Jewish rights only in parts of Palestine east of the Jordan River, and, indeed, in 1922, Britain set up this eastern territory under separate administration as the Transjordan and cooperated with the Hashemite tribe of the Arabian peninsula in setting up Hashemite rule.
* Even if the convention applied, a fence that controls movement of civilians does not violate it; the convention permits occupying states to take necessary and proportional steps for security purposes.

* The resort to the International Court of Justice by the PLO is itself a violation of the Oslo Accords. Under Oslo, any disputes must be resolved by negotiation between Israel and the Palestinians, by agreed-upon conciliation, or agreed-upon arbitration.
I cast my opinion in favor of assuming sovereignty, annexing the territories, and relocating Palestinian "refugees" to the Arab country of their choice. Finished. End of Intifada.