Chagrined by the expected condemnation by the International Court of Justice (ICJ) of the separation wall Israel is building on occupied Palestinian land, Tel Aviv on Friday announced it will not appear at the oral hearings at The Hague next week. To Palestinian officials like Nabil Abu Rodayna, advisor to Palestinian Authority (PA) Chairman Yasser Arafat, this is an admission that the “Israelis cannot face the international community and international law and justice.”
Indeed, the soon-to-be 700 kilometre wall cutting across the West Bank is threatening to become a major international embarrassment for Israel. If completed in its entirety, the wall will affect nearly 50 per cent of the West Bank population. Ultimately it will isolate large tracts of land from present owners and create Palestinian cantons and enclaves of varying sizes.
The UN General Assembly voted last December to refer the wall issue to the ICJ for an advisory decision.
Images of the Berlin Wall and South Africa’s deplorable Bantustans fused together have been associated with Israel’s separation wall, much to Tel Aviv’s annoyance, and despite its PR efforts to make the wall more palatable to international public opinion.
Its decision to make do with the 124-page affidavit it filed to the court, stating that the ICJ does not have the authority to hold hearings on the “fence”, was the outcome of the extensive deliberation of a ministerial committee headed by Prime Minister Ariel Sharon. Israel, said one Foreign Ministry lawyer, “does not want to participate in the ‘circus’ that will take place in The Hague”. But Israel is desperately deploying its PR forces anywhere and everywhere outside the Peace Palace.
A delegation of government-appointed Israeli spokespeople from both the Foreign Ministry and the prime minister’s office will go to The Hague. Meanwhile, dozens of Israeli NGOs and organisations are flying to the Netherlands to defend their case. These include the Organisation of Casualties of Terror Acts in Israel and the seemingly irrelevant Holocaust Survivors’ Organisation, which according to Ha’aretz will go to “remind the court what [the wall’s] real purpose is”.
More moving, perhaps, the Israeli rescue group ZAKA (Identification of Victims of Disaster) is sending what is left of Jerusalem bus number 19 — blown up by a suicide bomber from Bethlehem last month — to be displayed across the street from the ICJ. The bus is being divided into two parts and will be flown to The Hague on Monday where it will be reassembled and presented as proof that the “fence” is a security, not a legal issue. To drive the point home, the bus will be paraded around the city on a truck when it’s not on display.
The Israeli government has reportedly offered a $188 four-day package to the Netherlands for Israelis willing to participate in two scheduled demonstrations at The Hague.
A few weeks ago the Israeli Foreign Ministry launched an animated page on its Web site — in English — supporting the security argument. “Why does Israel need a security fence?” reads the red phrase flashing on the computer screen. Against melancholic music, the publicity animation features a sinister Palestinian “terrorist” covering his face with a kuffiyah, with a belt of explosives wrapped around his waist. The Palestinian walks from Qalqiliya to the Israeli city of Kfar Saba and blows himself up in a few seconds. “It’s a 15-minute walk between Qalqiliya and Kfar Saba,” the red text continues ominously. More such facts appear as a map of Israel and the West Bank continues to display the time it takes a Palestinian — “terrorist” by default, according to the animation — to walk from his or her town to kill Israelis on the other side. “How can it be stopped?” it asks, before coming to the conclusion that “Saving lives must come first.”
Since the wall’s route blatantly cuts through Palestinian territories, thus separating Palestinian families, towns and agricultural land, many are wondering how this will protect the Israeli population. Palestinians like legal expert Shawqi Issa believe, however, that in light of Israel’s actions since the start of negotiations with the Palestine Liberation Organisation, which have always revolved around its opposition to withdraw from the occupied territories, the barrier is serving another function. “Much like Israel devoted significant effort and expenditure in creating ‘facts on the ground’ — settlements, bypass roads, military zones — that would serve as bargaining tools in negotiations with the PLO,” Issa argued in an article published by the Palestine Monitor last month, “the barrier is seen as simply another measure to this end or even an Israeli attempt to unilaterally impose borders. Indeed, Sharon has never made much of a secret that he foresees a Palestinian state on less than half the West Bank land while Israel retains most of the settlements.”
Several European and Dutch groups, such as the Palestinian Environmental NGOs Network (PENGON), the Anti-Apartheid Wall Campaign, the Netherlands Stop the Wall Coalition, and United Civilians for Peace, will organise counter-campaign activities at The Hague.
If the Israeli side will sell the security factor to TV crews in the Dutch city next week, Palestinians know they have a strong case to make, and serious violations that amount to war crimes to report. Last week, a 58-page opinion was issued by the Oxford Public Interest Lawyers (OXPIL), a non-profit association affiliated with the faculty of law at the University of Oxford, written at the request of the Israeli human rights organisation, the Association for Civil Rights in Israel, for use in cases currently before the highest Israeli courts. The opinion answers the same legal questions that will be heard by the ICJ.
Unsurprisingly, the opinion found Israel in violation of international and humanitarian law. It argued that the route of the wall, the operation of its gates, and the adjacent closed military zones “are not necessary, proportionate or legitimate measures of control and security under humanitarian law”. By deviating from the 1949 Armistice Line to “protect illegal Israeli settlements in the Occupied Territories, the Barrier seeks to unlawfully misuse the security powers of humanitarian law,” said the report.
It also emphasised that Israel’s requisition of Palestinian property to construct the wall “violates prohibitions on the confiscation of private property in Occupied Territory and its duties of trusteeship over public lands”.
And because the wall amounts to a form of collective punishment of Palestinians, prohibited under international law, OXPIL’s legal experts concluded that this “may result in the unlawful forcible transfer of some Palestinians from their homes”.
“Transfer”, the politically correct word for ethnic cleansing, is a crime against humanity recently codified by Article 7 of the Rome Statute.
The international legal consensus over the illegality of the wall grounds Palestinian hopes that they will win the case at The Hague next week. “If the court is strictly legal and objective — which it will be — its advisory opinion is bound to be in favour of the Palestinians,” Salah Amer, an international law professor at Cairo University, told Al-Ahram Weekly.
But even if the court finds Israel in violation of international law, sceptics are wondering about the implications of such an advisory opinion when Israel has consistently ignored unfavourable UN resolutions throughout its history. Israel will not dismantle the constructed part of the wall, and is very unlikely to divert its route inside the 1967 “Green Line”.
“I think the Arabs are acting too late,” Arab Knesset member Azmi Bishara told the Weekly. “They were warned of the implications of the wall a long time ago and either they didn’t know or didn’t want to do anything about it.” Bishara pointed out that Israel’s publicity campaign has not been met with a competing Palestinian one.
Although the ICJ’s advisory opinions are not directly binding on states, in contrast to cases within the Court’s contentious jurisdiction, OXPIL’s Ben Saul argued that they are regarded as very persuasive statements on questions of international law. “Advisory opinions have significant political and diplomatic effects, since they may embarrass countries, which are usually concerned about their international reputation. Advisory opinions provide opponents of a country committing unlawful acts with political leverage, helping to pressure delinquent states into modifying their behaviour,” he told the Weekly.
Will Israel actually modify its behaviour?
“If it condemns Israel, the Court’s advisory opinion could in fact mean that the UN’s General Assembly will take it up again and refer it to the Security Council. Of course the US will veto any resolution against Israel in that case, but let us not underestimate the impact of all this on Israel,” Amer argued.
“This is the first time in history that the Palestinian-Israeli issue has been taken up on the level of the UN’s highest judicial body. This is of great legal and political value for the Palestinians.”
The Separation Wall Fact Sheet
LAND THEFT AND FORCED EXPULSION: The Wall is not being built on, or in most cases even near the 1967 Green Line, but rather cuts deep into the West Bank, expanding Israel’s theft of Palestinian land and resources.
When completed, the Wall will de facto annex some 50 per cent of the West Bank, isolating communities into cantons, enclaves and “military zones”.
The Palestinian population in the West Bank and Gaza Strip, including almost 1.5 million refugees, will be living on only 12 per cent of historic Palestine.
Nearly 16 per cent of Palestinians in the West Bank will be “outside” the Wall in the de facto annexed areas by Israel and due to unbearable living conditions — the loss of land, markets, movement and livelihoods — pressured to leave. This includes over 200,000 residents of East Jerusalem, who will be totally isolated from the rest of the West Bank.
98 per cent of the settler population will be included in the de facto annexed areas.
The Wall is not a new “idea” — since 1994 the Gaza Strip has been surrounded by a barrier which cuts off the residents from the rest of the world; in the past year Israel has been expanding this barrier as well as building a new “Iron Wall”.
LOCATION AND COSTS: The Wall’s total length will be roughly 730 kilometres.
Currently, the Wall is being built in the districts of Qalqiliya, Tulkarem, Jenin, Ramallah, Jerusalem, and Bethlehem by some 250 bulldozers while measurements in preparation for the Wall are taking place all over the West Bank.
The Wall costs some $3.4 billion, approximately $4.7 million per kilometre.
MULTIPLE STRUCTURES OF THE WALL: The concrete Wall, now present in Qalqiliya, parts of Tulkarem and East Jerusalem is eight metres high — twice the height of the Berlin Wall — with armed watchtowers and a “buffer zone” 30-100 metres wide for electric fences, trenches, cameras, sensors, and military patrol.
In other places, the Wall consists of layers of razor wire, military patrol roads, sand paths to trace footprints, ditches, surveillance cameras and in the middle a three-metre-high electric fence.
The Wall’s “buffer zone” paves the way for large-scale demolitions and the expulsion of nearby residents as in many places the Wall is located just metres away from homes, shops, and schools. In addition to being located by the Wall, some communities in the “first phase” are further closed-off by an “Isolation Barrier”, ensuring they are surrounded on all sides.
The Israeli military has created “gates” in the Wall; however, these do not provide any guarantee for farmers to access their land but instead strengthen Israel’s strangling system of permits and checkpoints where Palestinians are beaten, detained, shot at and humiliated.