A group of rabid anti-Semites proposed a to the dutch government to engage Israel to tear down the protective wall built to keep terrorism out. It’s success is very clear, slaughter of innocent civilians by groups of Cisjordanians practically dropped to zero.
According to the initiators, the construction of the wall is in violation of international law. It relies in that regard on the uncritical non-binding opinion on the matter issued by the International Court on 9 July 2004. The opinion needs some critical comments. The advice does not begin to do justice to the complex historical and legal reality that forms the background of the current situation in Israel and the territories in Judea and Samaria, including eastern Jerusalem (in the media often: West Bank, Cisjordania), which lie east of the “green line “.
The green line in 1949 between Israel and Jordan is an agreed ceasefire line after the War of Independence .The International Court wrongly classifies these areas without reserve as “occupied territories”, with all the legal consequences. The court overlooks, however, the central importance of the Palestine Mandate of 24 July 1922. It was adopted by the League of Nations granted as core obligation to the administration of the British Empire Palestine : the establishment of the Jewish national home (art. 2), at least in the area west of the Jordan. The mandate was further provided in the promotion of Jewish immigration and settlement.
The area east of the Green Line to the Jordan, which since 1948 was occupied by Jordan, became under Israeli control in June 1967 after having defeated an unprovoked act of war from amongst many other Jordan. So it is the disputed territories not occupied territory for the purposes of the Fourth Geneva Convention of 1949 which defines territory occupied by another State .The ICJ ignores this and considers the Jewish settlements in the disputed areas without thought in conflict with the prohibition of an occupying power to move parts of its own population to the “occupied territory”. For voluntary settlement by “settlers” who use the mandate given in the right of establishment this is not the case. It is in view of the history is very bitter that Israel is required to make the disputed territories, including East Jerusalem “Jude Rein”.
Furthermore, it is incomprehensible that the court in its opinion hardly gave serious attention to the considerations which have led Israel to establish the security barrier . Its aim was the protection of Israeli civilians which since the start of the second Intifada (September 2000) were plagued by horrible (suicide) attacks, in which 900 civilians were killed and thousands were injured. The safety barrier is a relatively peaceful and nonviolent means to stop terrorists. This is for the people of the disputed territories many times better than an armed action against terrorists. The absolute nadir of the advice is the way the court has denied Israel’s the right to self-defense under Article 51 of the UN Charter. This would be limited to the case of an armed attack by one State against another State. Because Israel claimed that it was attacking terrorist groups and not other states it could not rely on Article 51.The text of this article limits the right of self-defense but not at all to only an attack by another state. Israel was in other words, denied the right to its most fundamental state task: the defense of its own citizens against violence. The court thus ignored the not only for Israel relevant fact that modern warfare usually does not take place between two or more ‘regular’ states, but nowadays mainly involves conflict between a State and one or more terrorist groups.
(translated from dutch from a piece by an associate professor at the Department of Legal Theory in Utrecht.