The Security Barrier (Fence)

Table of contents
Definition

 

The Security Fence, a temporary defensive measure, was constructed by the Israeli government in response to unceasing terror with the object of preventing the entry of Palestinian terrorists from the West Bank into Israeli population centers.


Summary

 

Since September 2000, the State of Israel has been confronted by a massive and seemingly incessant wave of Palestinian terror. After hundreds of suicide bombings and terrorist attacks, in 2003 the Israeli government began the construction of a security fence near the northern part of the West Bank in an effort to prevent Palestinian terrorist infiltration. The route of the fence has been determined solely on the basis of security needs and topographical considerations. Since the construction of the fence, the frequency of terrorist attacks against Israelis has significantly decreased and the fence has been undoubtedly instrumental in this regard.

As mentioned above, the fence is a temporary security measure to protect Israeli civilians from Palestinian terrorism and is not intended to create a border or other political facts on the ground. To the greatest possible degree, the Security Fence is constructed on unused land to avoid harming agriculture, while dozens of crossing points have been set up to enable the movement of people and goods. Palestinians adversely affected by the fence are entitled to petition the Israeli High Court of Justice. While the Court has in principle upheld the construction of the fence, several such petitions have resulted in the fence being rerouted so as to better accommodate Palestinian humanitarian and economic needs.


Background

 

In September 2000, a massive wave of terrorism directed at Israeli civilians was launched by Palestinian terrorist organizations. Almost daily, the State of Israel was confronted with the reality of suicide bombings and terrorist attacks, striking at the very heart of its cities. At the time, there was no border or natural obstacle between Israel and the Palestinian-controlled areas of the West Bank, such that the infiltration of terrorists into Israel went largely unhindered.

The decision to construct a security fence in and around the West Bank in order to protect Israelis from suicide bombers was taken in March 2002 – a month in which there were 32 separate Palestinian terrorist attacks, including 8 separate suicide bombings, as a result of which 135 innocent Israelis were murdered, and a further 721 were injured. The Palestinian Authority was unwilling to act to counter the threat which had assumed strategic proportions for the State of Israel. Notably, no Palestinian suicide bombers had managed to launch attacks into Israel from Gaza, which is surrounded by a security fence, thus the logical conclusion was that a physical barrier would contribute considerably to the necessary security. Therefore, the State of Israel decided to begin construction on the "Security Fence", and to this day is used as a central component in Israel's continued defense against Palestinian terrorists.

Frequently, misleadingly referred to as "The Wall", 97% of the barrier is in fact a fence; a mere 3% was constructed as a wall, solely for security purposes in areas where a fence would be insufficient to prevent infiltrations and/or direct gunfire at Israelis. The construction of the fence has led to a drastic reduction in the number of Palestinian terrorist attacks against Israelis.


Legal analysis

 

Every planned segment of the fence has been first examined and approved by legal advisors prior to its construction. As a matter of policy, wherever possible, the fence is built on state-owned, rather than private lands, in an effort to minimize land seizures. Additionally, great efforts are made to avoid separating landowners from their lands; in circumstances where such separation is unavoidable, agricultural gates allowing for farmers to cross into their land have been built. Moreover, in cases where the fence causes residents economic harm, those affected are entitled to compensation. In addition, residents can petition Israel’s High Court of Justice with objections to the route of the fence. As of May 2008, approximately 140 petitions have been submitted against the route of the fence to the High Court of Justice. In several cases, the court decided that particular sections of the fence cause disproportionate harm to Palestinian residents and ordered the fence to be rerouted.

In its decision rendered in Beit Sourik Village Council v. The Government of Israel (HCJ 2056/04), the Court accepted the State's contention that the fence was built for security purposes which could justify utilizing tracts of land in the West Bank; even so, the Court held that the IDF Commander is under a legal duty to strike a balance between humanitarian and security considerations, in order to uphold the proportionality requirement mandated by international law. The requirement of proportionality dictates that the military advantage to be gained from the use of force must outweigh any expected harm caused to civilians and civilian objects. In assessing whether the construction of the fence in Beit Sourik did indeed strike this balance, the Court held that, while the IDF Commander did take into account security concerns in the routing of the fence, he did not adequately take into account the fence's effect on the lives of the inhabitants in the area. Therefore, the Court ordered the re-routing of the fence in an effort to mitigate its effect upon the local inhabitants, even if not entirely removing it, so as to achieve a more proportional result.

Since the sole purpose of the security fence is to protect Israelis from Palestinian terrorists, the construction of the fence demanded the maximal inclusion of Israelis "inside" the fence. Thus, while the route of the fence by and large follows the "Green Line", which in any case does not constitute a legally recognized international boundary, there are some deviations from such so as to include and protect Israeli civilians living "outside" of the "Green Line." In fact, the Israeli High Court of Justice ruled unanimously that Israel has the right to build the security fence beyond the "Green Line" in order to protect Israeli settlements and civilians. Indeed, this is still in accordance with the object of the fence, since a fence which did not encompass Israelis to the maximum possible extent would not serve the fence's intended purpose of protecting them from Palestinian terror.


The ICJ Ruling

 

In its advisory opinion on the legality of the security fence, the International Court of Justice rejected any justification for the fence based on the right of self-defense under Article 51 of the UN Charter. The ICJ held that Article 51 recognizes the inherent right of self-defense only when one state attacks another state; since Israel is not claiming that the source of the attack is a foreign state, the Court opined that Article 51 does not apply. Furthermore, the Court noted, that since Israel exercises control in the occupied territories, terrorism originating from that area is not international terrorism in the sense referred to by recent Security Council resolutions.

With due respect, Article 51 contains no requirement that an attack on a state be launched by another state in order to invoke the right of self defense. Furthermore, the ICJ provided no reasoning for its conclusion. In addition, state practice (particularly since 9/11), confirms that the inherent right of self-defense arises also in relation to attacks mounted by terrorists. Indeed, it seems wholly illogical to base a state's inherent right and duty to defend itself on whether an attack is mounted from inside or outside its territory. Surely the question must focus on the proportionality and necessity of any particular measure of self-defense, and not solely on the location of the source of the attack.

In reviewing the many petitions submitted before it regarding the fence, the Israel High Court of Justice held that while the Court granted full weight to the rules of international law, the ICJ’s Advisory opinion, relying as it did on a different factual basis, is not res judicata, and therefore does not obligate the Israeli High Court to determine that all segments of the fence violate international law. Indeed, the ICJ's decision on the security fence was a non-binding opinion which was flawed for various reasons. First, the opinion reviewed the fence as a whole, rather than reviewing the fence section by section as does the Israeli High Court of Justice. Second, in ruling the fence's objectives to be political and therefore illegal, the ICJ erred in its judgment by relying on an inaccurate, incomplete and unbalanced factual picture. Third, the advisory opinion failed to give adequate consideration, if at all, to the terrorist threat faced by Israel; thus, the purpose for which the fence was erected, defending Israelis from Palestinian terrorism, was essentially overlooked by the Court. Therefore, the ICJ's Advisory Opinion has no bearing on determining the legality of the security fence.


The Fence's Effectiveness

 

True to its purpose, the fence has proven to be an extremely effective means for combating terrorism. A comparison of the number of attacks within Israel carried out by Palestinian terrorists from the Samaria (Northern) region of the West Bank since the fence’s construction, with the number of attacks carried out by the same terrorist groups prior to the fence's construction, reveals a significant decline of approximately 90%. The effectiveness of the Samaria portion of the fence is also demonstrated by the fact that the latest Palestinian terror attacks have been launched from the Judea (Southern) region of the West bank, exploiting areas where the construction of the fence was not yet complete.

In fact, in 2006 the Islamic Jihad leader Ramadan Shalah publicly admitted that the fence is a significant obstacle to Palestinian terrorist organizations, stating in an interview with Al-Manar TV, that "if it weren't there, the situation would be entirely different". The inescapable conclusion is that the security fence has played a major role in bringing about a dramatic reduction in Palestinian terror.