The court ruling calls the West Bank fortification a 'de facto annexation' of land that violates the rights of Palestinians.

By Jeffrey Fleishman and Laura King

Los Angeles Times Staff Writers

July 10, 2004

THE HAGUE — The International Court of Justice ruled here Friday that Israel's separation barrier in the occupied West Bank violated freedom of movement and should be demolished because it threatened a "de facto annexation" of Palestinian lands for Jewish settlements.

The court's nonbinding decision — issued after hearings requested by the United Nations — harshly criticized the massive barrier of trenches, fences and concrete that Israel said was necessary to stop suicide bombers and others from launching attacks. Israel's security concerns, the world court found, do not condone seizing land that restricts the ability of Palestinians to move about and "severely impedes" progress toward their self-determination.

The government of Prime Minister Ariel Sharon has repeatedly stated that it did not recognize the world court's jurisdiction and vowed Friday to ignore the advisory opinion and continue building the planned 437-mile barrier. Palestinians hailed the ruling — a more sweeping condemnation than Israel had expected — as a vindication, and planned to use the victory to press their cause before the U.N.

"The fence works," the Israeli government said in a statement. "It is a temporary, nonviolent security means, and it saves lives. So long as terror continues, Israel will continue to defend its citizens." The statement added: "The solution won't be found in The Hague or Manhattan, but in Ramallah and Gaza, from where the terror originates."

Palestinians pledged to immediately mount a campaign in the U.N. General Assembly and the Security Council that they hoped would result in international sanctions against Israel.

"It's a historic day and a historic decision," said Palestinian Authority Prime Minister Ahmed Korei. "To tell the world, the Israelis and the Americans that this wall is illegal, because it is built on someone else's land."

In Washington, State Department spokesman Richard Boucher said the ruling would be studied, but he emphasized that it "is not legally binding."

"Along with a number of other states, we did not support the General Assembly resolution that referred the matter to the court," Boucher said. .

"It remains our view that this referral to the court was inappropriate and that in fact it could impede efforts to achieve progress towards a negotiated settlement between Israelis and Palestinians," he added.

The sole U.S. judge on the 15-member international panel, Thomas Buergenthal, was the lone dissenter on much of the court's opinion. Buergenthal argued that the court did not closely examine Israel's right to self-defense in light of years of attacks.

The international court's finding in part echoed a decision by the Israeli Supreme Court last month that stretches of the barrier that went beyond the boundaries of the so-called Green Line — Israel's pre-1967 de facto frontier — violated Palestinian rights. The Israeli court, however, basically supported the idea of a barrier — a view that widely differs from an international court urging the United Nations to "bring an end to the illegal situation" that is damaging prospects for Middle East peace.

The path of the barrier, according to the court opinion read by Judge Shi Jiuyong of China, "gravely" violates Palestinian rights, "and the infringements from that route cannot be justified by military exigencies or by the requirements of national security or public order."

In some of the strongest language against Israel, the judge added: "The wall's sinuous route has been traced in such a way as to include a great majority of the Israeli settlements in the occupied Palestinian territory."

There is a danger that the "route of the wall will prejudge the future frontier between Israel and Palestine," the court ruled. U.N. documents filed with the court suggest that the barrier would expropriate about 14% of the West Bank.

The court stressed that Israel should ease construction — about one-third of the barrier is complete — and compensate Palestinians who have lost orchards and other property. The barrier, the court noted, would result in human rights violations because about 160,000 Palestinians would be forced to live in "almost completely encircled communities." Such restrictions, the court said, would lead to "increasing difficulties" for Palestinians to access hospitals, schools and water.

In Israel, which has endured more than 150 suicide attacks during the Palestinian uprising of the last 45 months, there is overwhelming public support for a barrier to keep out bombers. Attacks inside Israel by Palestinians have fallen by 80% this year, and the Israeli security establishment says that dramatic drop-off is almost entirely because of the presence of the partly built barrier.

The Sharon government refused to make any argument before the international court, although Israelis did ship part of a bus to The Hague that had been destroyed in a terrorist attack. Palestinians delivered their own images, including pictures of children shot by Israeli soldiers.

Israel has long complained that Europe is pro-Palestinian. The Israeli government called the court's decision-making "politicized, biased and faulty."

Even among dovish critics of the barrier's route, there was a strong sense that Israel had been dealt with unfairly. "Unlike a court in which all citizens are equal before the law, not all countries share equal circumstances," Labor Party leader Shimon Peres said. "How can a country that knows no terror judge a country that lives under constant terror?"

The complexities of protection versus fear have led to considerable Israeli domestic debate since the project's inception in 2002. Prominent leftist politicians said Sharon's government had invited condemnation by mapping a path that strayed so far into the West Bank.

"Building the wall on Palestinian land contradicts the Israeli national interest, regardless of the international decision," said lawmaker Yossi Beilin. "Damaging Israel's international standing, together with attracting this ruling from The Hague, is a destructive combination that only a government like Sharon's could have visited on us."

While rejecting the court's call to dismantle the barrier, Israel stressed its readiness to make any changes to the route ordered by its own Supreme Court. The high court has declared one 20-mile stretch of the barrier illegal because of the hardship imposed on Palestinians, and more than half a dozen similar challenges are pending.

"Israel is committed to continuing the fence as it sees fit," said Justice Minister Tommy Lapid. "We will abide by the decisions issued by our own court, and not that of the international panel."

Palestinians living in and near the barrier's path were pleased by the international court's ruling, but hardly euphoric. Many said they doubted the advisory ruling would force Israel to tear down the barrier.

"It's a good decision, but I do not expect it to change anything," said Ahmed abu Farha, a shopkeeper in the West Bank village of Abu Dis, on Jerusalem's outskirts. He added that his sweet shop, in the shadow of the concrete barrier, would soon close because customers could no longer reach him.

"In spite of my objection in principle to the fence, if Israel really wanted one, it could have built it on its own territory and no one would have made a peep in the entire world, because it wouldn't have made Palestinians' lives a misery," said Ahmed Tibi, an Israeli Arab who serves in Israel's parliament. "It wouldn't have created cages keeping a boy from school or a woman from giving birth in a hospital. There is a certain balance that even the international court is aware of."

The public relations war continued Friday at the Peace Palace, where the court meets.

"I am here to cry out — this comes from my heart," Ron Kerman, a leading campaigner for the barrier, told Israel Radio from The Hague. Kerman's daughter, Tal, was killed in a bus bombing in Haifa in March 2003. "I try to explain as a father that my daughter has the basic right to return home safely, and the minimum anyone can do to protect his children from suicide bombers is to build a fence."

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Fleishman reported from The Hague and King from Jerusalem.