High Court rules against fence
Extended nine-judge panel unanimously rules to dismantle section of West Bank security fence near settlement of Alfei Menashe, after five Palestinian villages submit petition; judges slam international court ruling on matter
The High Court of justice instructed the government Thursday morning to reroute the West Bank security fence near the settlement of Alfei Menashe, in effect calling for a dismantlement of the fence already built in the area.
However, the Court also ruled that a previous decision on the fence by the International Court of Justice is non-binding.
The extended nine-judge panel made the decision unanimously. The Court said the decision was based on the harm done to Palestinian villages and not on the ICJ ruling on the matter.
However, the judges ruled that the ICJ decision was flawed and one-sided, and failed to discuss Israel’s security needs. The High Court said the fence should not be examined as a whole, but rather, attention should be given to each section.
The petition was submitted several days after the ICJ made its decision, saying the fence was illegal, last year. A short time before the Hague decision, the High Court on June 2004 rejected about 30 kilometers (approximately 20 miles) of the fence route in the northern Jerusalem area. That ruling was the first to deal with the principled question of the fence’ validity, with the judges ruling the fence was legal because it was being set up for security considerations rather than political motives.
However, the petitioners in the current case based their case on the Hague ruling and said Israel has no right to build its fence across the Green Line. The petitioners say the fence comes to serve a political purpose, namely annex West Bank land, and is therefore illegal and does not meet the requirements set by international law.
'Ruling undermines national security'
Deputy Defense Minister Zeev Boim slammed Thursday’s ruling and said it undermines national security.
“The ruling is unfortunate, and any delay in the building of the fence undermines security. The fence has proven to be life-saving and drastically diminishes terrorist attacks, and demanding its dismantling is stupid and endangers human life,” he said.
However, other politicians chose to praise the High Court’s decision.
The High Court of Justice has again shown itself to be an island of sanity in the face of a confused, irresponsible government, Meretz-Yachad Chairman Yossi Beilin said following the court’s latest ruling on the West Bank security fence.
“The only fence that can be built between Israel and the Palestinians, as long as there is no agreement, is on the Green Line border,” he said.
Knesset Member Etti Livni (Shinui) also praised the court’s decision.
"Attempts by international jurists to intervene (in domestic Israeli affairs) are unwarranted and despicable," she said.
‘Ruling has many positive aspects for Israel’
Following the ICJ’s ruling, officials in Israel initially dismissed the decision and said the international court has no influence on Israel or its decision to build the fence. Notably, 14 of the 15 Hague judges ruled against the security fence, with only one judge, from the United States, saying the court did not seriously examine the nature of attacks on Israel and its citizens.
However, the initial attitude to the ICJ ruling quickly changed after High Court President Aharon Barak required the State in August 2004 to address the international court’s ruling, saying “we don’t live on a desert Island.”
Later, Barak said: “We constantly criticize the International Court of Justice’s ruling, but there are many positive things in it for the State of Israel…I certainly predict the possibility that in the coming years the State would base many of its arguments on this ruling.”
Ruling expected to arouse global interest
The State has worked diligently on its response to the High Court of Justice. In a document formulated by attorney Osnat Mandel, head of the High Court Petitions Section of the State Attorney’s Office, and by attorney Avi Licht, the State claimed that the Hague ruling was given without authorization and was tendentious.
The State maintained in its response that the Hague ruling does not bind Israel because Israel from the beginning had opposed to raising the issue of the fence’s legality at an international court forum.
The state also claimed that the factual foundation facing the international court had been dictated by the U.N. secretary-general and was inadequate, while the security necessity to build the fence following the attacks on Israel was not mentioned in the ruling at all.
The ruling is expected to arouse interest all over the world, where Chief Justice Aharon Barak and Israel’s Supreme Court enjoy much appreciation and legal prestige.
Approximately 40 petitions regarding the separation fence are pending in the High Court of Justice, and after the ruling is given - these cases are expected to be finalized as fast as possible.
