By David B. Rivkin and Darin R. Bartram. The writers are partners in the
Washington law firm Baker Hostetler. David B. Rivkin served in the White House
and Justice Department in the administrations of Presidents Ronald Reagan and
George H.W. Bush, the current president’s father.
January 19, 2004.
The UN General Assembly threw the International Court of Justice a red-hot
issue when it asked last month for an advisory opinion on the legality of Israel’s
so-called security fence. Because the United Nations Charter permits this
request, the court cannot easily dodge this one, and it clearly understands the
The court has asked for submissions by the end of January from UN members.
The United States, Britain and other key powers should accept the opportunity.
From the Anglo-American perspective, Israel’s barrier is neither unique nor,
whatever one thinks of its policy merits, legally objectionable.
In the 1960’s and 1970’s, the British government constructed “peace lines”
between some Protestant and Catholic communities in Northern Ireland, and
most remain in place. In Iraq, the U.S.-led coalition has fenced in certain
villages and established two square miles of Baghdad, including dozens of
houses and a hospital, as a heavily fortified Green Zone.
Maintaining a position that such barriers are legal – and seeking to have
them vindicated in court – is very much in the interest of America and its allies.
Given the stakes involved, neutrality is not an option.
On the contrary, a declaration by the court that Israel’s barrier was illegal would
impair the ability of democratic nations to deal with the difficult security
challenges they now face.
According to Israel, its barrier is being built solely to lessen the number
of Palestinian suicide attacks against its civilian population and will reduce the
need for such unpopular measures as roadside military checkpoints and curfews
throughout the West Bank.
While Israel has not asserted ownership of any land encompassed within the
barrier, and has not declared the new barrier to be any sort of boundary, the
Palestinians (and Israel’s critics elsewhere) consider it a blatant land grab. Even
the Bush administration has called the fence a “problem.”
In fact, only a small fraction of the barrier (eight kilometers, or about five
miles, out of 180 kilometers so far) is solid concrete, largely in areas where
Palestinian populations abut Israel and where gunfire has been directed into
Israel. The rest is fencing, ditches and a patrol road – easy to build, easy to take
Nevertheless, many critics, including Secretary General Kofi Annan of the
United Nations, say the barrier could permanently derail the Middle East peace
process. The opposite argument – that the barrier, by reducing suicide
bombings, would make Palestinians more accommodating and Israelis more
willing to take risks – has been advanced with considerable vigor by others,
including Henry Kissinger, who is no stranger to Middle East diplomacy.
But these are, at bottom, policy judgments. Treating such a dispute as a fit
subject for resolution by the international court is bad policy and bad law.
Fundamentally, arguing that a state that is facing daily threats from suicide
bombers cannot legally erect even passive defenses suggests that the critics’
real problem is Israel’s existence.
The principal legal claim before the international court will be that the
fence violates the 1949 Geneva Convention on protection of civilians in times
of war. This treaty, which Israel has agreed to apply in spirit, although not in
form, requires that civilian populations in occupied territories be treated
humanely and that private property not be confiscated unnecessarily. Israel has
established a compensation process for Palestinians who have lost access to
The convention does not compel Israel to make it easier for its people, whether
soldiers or civilians, to be killed. Rather, it grants Israel, through its Article 27,
the right to take such measures of “control and security” as may be “necessary
as a result of the war.”
In any case, how the fence may treat the Palestinians “inhumanely” is not
immediately apparent. If it reduces the need for Israeli troops in the West Bank,
with their roadblocks and curfews, it may make Palestinians’ lives easier.
Overall, an International Court of Justice declaration that the Israeli barrier was
illegal would warp existing norms of international law. It would also hamper
democratic countries in keeping their people secure, a task which today
includes the need for protracted military occupations.
Britain, the United States and other nations should strongly support the legality
of Israel’s fence, even if they disagree with the policy of erecting it.