ישראל נאמן | Lectures, Articles, Tours: Israel | Mideast onTarget | Elliot Chodoff & Yisrael Ne'eman | International Legal Battle Over the Fence 20.1.04

International Legal Battle Over the Fence

20 January 2004

By Yisrael Ne'eman

Israel is under pressure to halt construction of the security-separation fence that runs along the 1967 border and just east of it. The Arabs and especially the Palestinians have always objected to the barrier, and not only because much of it runs across the border into the West Bank (Judea and Samaria) but, because where it exits terror attacks have decreased greatly. (Even if EC claims “we” are against the fence, this writer sees it as a necessary part of an integrated pre-emptive defense and not just as a static line.) Turning to the International Court in The Hague, the Arab/Moslem world and their allies are hoping for a condemnation of the fence and economic sanctions as punishment, should Israel not tear it down.

Mush of the Arab/Moslem world would be no happier should the fence be on the 1949-67 Armistice Lines since this too would curtail Palestinian terror incursions into Israel, and take the pressure off Jerusalem to make concessions on security, refugees and overall responsibility for the conflict.

The question of the Israeli line of legal defense is of interest. First of all, it is far from sure Israel will show up for a trial where many of the judges are already pre-disposed to the Palestinian side. Assuming a delegation is sent, the 1949 Armistice Agreement itself explains the legal context of the demarcation between Israel and Jordan (then) as “without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.” (Article IV, Clause 9 - Israel-Jordan Armistice: April 3, 1949.) Furthermore the entire spirit of the armistice agreement itself is its temporary nature, with the hope of reaching a permanent status arrangement. This never happened and Jordan relinquished all claims to the West Bank in 1988.

The Armistice Line was never recognized as an international marking and certainly not so when the Jordanians crossed that frontier when they launched their attack on Israel in June 1967. Only Israel’s capture of the West Bank seems to have turned the same Line into a sacrosanct international border. At The Hague, Israel will claim the West Bank is a “disputed territory” as opposed to “occupied”. The government will argue that the fence is a defensive structure against terror attacks on Israeli civilians and disclaim its demarcation as a political boundary. Willingness to change its course will be expressed, provided the Palestinians end their terror attacks and negotiate an end to the conflict. The Armistice and the fence demarcations will both be classified as “temporary”.

There are sticky problems. The Palestinians did not sign the 1949 Armistice and the question will arise as to their need to adhere to its statutes. Furthermore, there is a question of the Palestinian Authority legal status, since the PA is not a state. It is possible, however, that Jordan will do the PA bidding, fearing fence construction (wherever) will lead many to move across the Jordan River in search of work in the Hashemite Kingdom. Amman has enough problems without more Palestinians.

It should be understood that whatever legal position is taken by Israel will not help in the final verdict. Also, The Hague decision is only a “recommendation,” one Israel hopes will be ignored.