International Court of Justice fence ruling may lead to sanctions against Israel

Yuval Yoaz


August 20, 2004

Attorney General Menachem Mazuz on Thursday warned that the decision on the separation fence by the International Court of Justice in The Hague could lead to anti-Israel actions in international forums that could include sanctions.

The warning accompanied a report delivered Thursday by Mazuz to Prime Minister Ariel Sharon, who requested a month ago that the attorney general set up a committee to look into the ICJ's decision.

In an advisory opinion to the UN General Assembly last month, the ICJ said that Israel's fence is illegal and must be torn down.

"It is difficult to overestimate the negative ramifications that the ICJ's decision will have on the State of Israel in various spheres, even on issues beyond the separation fence," Mazuz wrote in an accompanying note to Sharon.

"The decision could gradually have an effect on rulings by Israeli courts about the administration of military authority in the territories and about the building of the fence."

Mazuz added: "The decision creates a political reality for Israel on the international level, that may be used to expedite actions against Israel in international forums, to the point where they may result in sanctions."

Mazuz recommends that, at the earliest possible opportunity, Sharon make changes to bring the separation fence's route and arrangements in the seam-line areas in line with the principles fixed by the Israeli High Court of Justice in its June decision about the fence in the Beit Suriq area (where 30 kilometers of the current route were disqualified). This, Mazuz says, could lessen tensions in the international legal arena.

Mazuz also recommends that the corrected route of the fence be anchored in a new cabinet decision that would send a message to the world that Israel is upholding international law according to the decisions of its own courts.

The attorney general also recommends setting up an interministerial team to study international developments that will affect Israel, and a legal team that will follow legal processes abroad and make recommendations.

He proposes that Israeli spokespeople stress that Israel upholds international law and accepts the ICJ's opinion, even though it was based on partial, and partly obsolete, data.

The committee that drew up the 84-page report consisted of legal experts from the Justice Ministry, the defense establishment, the Israel Defense Forces and the Foreign Ministry.

Meanwhile, the High Court of Justice on Thursday gave the state 30 days to explain the implications of the decision by the ICJ, concerning the separation fence, on Israel's policy with regard to the fence.

The prosecution will also have to report to the high court whether it will refrain from putting up the separation fence beyond the Green Line.

Thursday's decision was handed down by Supreme Court President Aharon Barak, and Justices Eliahu Mazza and Mishael Cheshin during the discussion of seven petitions concerning the building of the fence in the vicinity of Palestinian villages in the territories and certain parts of East Jerusalem, including Budrus, Beit Jala and A-Ram.

During the debate on the fence planned to be built on lands belonging to the village of Shukba, near Ben-Gurion International Airport, Barak remarked: "At some stage, we will have to deal with the ruling of the ICJ at The Hague. Perhaps not in this case, although it appears this is an appropriate one."

Barak said that his opinion was that it was necessary to deal with only those parts of the ruling that are relevant in Israel's eyes.

"The ICJ regards East Jerusalem as occupied territory," Barak said, "while we do not. The relevant approach should be toward the villages and not Jerusalem. But we will have to say something on the subject... and to announce whether or not we accept the opinion of the ICJ."

Yuval Roitman of the prosecution then pointed out that the ICJ had handed down an "advisory opinion" and not a "ruling," as Barak had called it.

The justices decided to issue an order nisi concerning all the petitions except the one about setting up the fence in the A-Ram area, which lies inside Jerusalem's municipal boundaries, and gave the state a month to respond.

Since the hearings are expected to take several months, the court gave the state permission to continue building the fence on condition that, if the ruling is against the present route, the state will remove the fence and compensate the Palestinian residents.