On July 9, 2004, the International Court of Justice (ICJ) ruled that Israel's security barrier was a violation of international humanitarian law and human rights law. Eleven days later, the United Nations General Assembly voted 150-6 to condemn Israel

On July 9, 2004, the International Court of Justice (ICJ) ruled that Israel's security barrier was a violation of international humanitarian law and human rights law. Eleven days later, the United Nations General Assembly voted 150-6 to condemn Israel and demand removal of the barrier. All twenty-five members of the European Union supported the motion.[1] The EU position would not have been so offensive had it not then undertaken an act of stunning hypocrisy. In August 2004, the EU put out tenders for companies to construct a European separation fence to prevent migration into the EU from countries excluded from it.[2] European officials undertook to build a wall less than one month after condemning Israel's barrier at the United Nations.

EU countries are not the only ones to display hypocrisy. Several states voting to condemn Israel themselves have built barriers on disputed land, often as a response to terrorism. Israel's decisions rest on firm precedent. India, for example, has built a barrier along its line-of-control with Pakistan. Following a number of violent confrontations with Yemeni soldiers and tribesmen, the Saudi Arabian government unilaterally began constructing a barrier on land disputed by its southern neighbor. Morocco has built a barrier against Algerian infiltration in the disputed territory of Western Sahara. Ironically, while both British foreign minister Jack Straw and Turkish foreign minister Abdullah Gül condemned Israel's security fence, both their countries have built their own barriers to combat terrorism. In Cyprus, it is the U.N. itself that, at significant hardship to the local populace, sponsored a security fence reinforcing the island's de facto partition.

The idea of physical separation between Israelis and Palestinians predates the current Palestinian intifada. A brutal 1992 terrorist murder of a teenage girl in Bat Yam helped motivate Israeli prime minister Yitzhak Rabin to negotiate the Oslo accords. Physical separation was not yet on the table. But in 1994, in response to a suicide attack in Tel Aviv, Rabin declared, "We have to decide on separation as a philosophy."[3]

While Rabin's assassination sidetracked the barrier plan, Prime Minister Ehud Barak revived the idea. Shortly before the collapse of the July 2000 Camp David summit, Barak gave a speech arguing that separation would both guarantee security and preserve the Jewish identity of the state. Barak continued to state that "a physical separation" would be "essential to the Palestinian nation in order to foster its national identity and independence, without being dependent on the state of Israel."[4] However, it would be a Likud government that would actually bring the goal to fruition. On February 21, 2002, following a rash of suicide bombings, Prime Minister Ariel Sharon declared his support for the barrier. Whatever resistance there was in his government was swept aside the next month after Palestinian terrorists killed 80 Israelis and wounded 600 in twelve different suicide attacks. On April 14, 2002, Sharon's security cabinet approved a plan to build three "buffer zones" in areas where terrorists had frequently infiltrated Israel;[5] construction began two months later.[6] While the West Bank security fence is long by Israeli standards at about 500 miles when complete,[7] it is, nevertheless, small in comparison to other barriers in existence.

India and Pakistan

A case in point is the separation barrier between India and Pakistan. Upon their independence in 1947, a massive exchange of populations took place. Millions of Muslims streamed from India into Pakistan while millions of Hindus fled in the opposite direction. The two countries fiercely disputed possession of the provinces of Jammu and Kashmir, fighting three wars in subsequent decades. In 1989, the Indian government, frustrated at the continued infiltration of terrorists from Pakistan, constructed a security barrier along the frontier in the states of Punjab and Rajasthan. The barrier worked and infiltration subsided.[8] Five years later, India sought to extend the barrier 620 miles through Jammu and Kashmir. More than 80 percent of the barrier's planned route was on disputed land.[9]

The Pakistani government's reaction to India's barrier-building was harsh. Islamabad accused India of violating both the U.N. charter and the two countries' cease fire agreement. In July 2003, Pakistani military spokesman, Shaukat Sultan, declared,

the border in Jammu and Kashmir remains un-demarcated … any measure to alter the status of these and any attempt to erect a new impediment is a direct violation of international commitments, and Pakistan opposes it. Border fencing is not allowed.[10]

But the Indian government disagreed, citing its right to defend itself against terrorism. After all, since 1989 more than 40,000 people have perished in Jammu and Kashmir in terrorism and insurgency-related violence.[11] And, just as Israel has found its barrier to be a successful deterrent, so, too, has India. According to the chief-of-staff of the Indian army, Nirmal Chand Vij, the number of terrorists inside Jammu and Kashmir plummeted almost 50 percent in the year after the barrier's construction. The fence stopped almost 90 percent of infiltration attempts.[12] India's vote against Israel's West Bank barrier[13] may have undermined its own position, a fact that was not lost on at least one Pakistani senator. In a July debate in the Pakistani senate, Ishaq Dar suggested that Islamabad parlay the ICJ ruling into a move to condemn India's fence construction along its line-of-control.[14]

Saudi Arabia and Yemen

The kingdom of Saudi Arabia, one of Israel's most vociferous critics in the Middle East and a staunch financial supporter of groups such as Hamas, has also constructed a border fence on disputed land.[15] Saudi Arabia and Yemen have disputed their border for more than seventy years. Both countries dispute the demarcation laid out in the 1934 Taif treaty, and today, almost 1,000 miles of desert and mountains remain undefined. While both countries may initially have been content to live with the status quo, that changed with the 1990 discovery of oil in the disputed zone. The Saudi government moved to build a "military city" near the disputed border. Violence occasionally flared. In November 1997, for example, after a Yemeni soldier lowered a Saudi flag in the disputed area of Qarqa'i, several Saudi and Yemeni soldiers died in an exchange of fire.[16] Another bloody clash took place in January 2000 when Saudi troops occupied Jabal Jahfan, a mountain long controlled by Yemen.[17] A June 2000 attempt to resolve the dispute failed. While both Saudi and Yemeni leaders signed the resulting Jeddah treaty, the text left unresolved large tracts of the border.[18]

Violence erupted in 2002. In the Saudi border town of Jizan, Saudi border guards confronted Islamists smuggling weapons from Yemen. Thirty-six Saudi soldiers died in the ensuing firefight.[19] Following additional violence along the border, the kingdom decided unilaterally to build a security barrier along their border with Yemen. Saudi officials claimed that this barrier would stem the weapons flow and almost daily attempts at infiltration by Islamist insurgents from Yemen.[20] Talal Anqawi, the head of Saudi Arabia's border guards, dismissed any parallels to Israel's security barrier, telling the Arabic daily Asharq al-Awsat,

What is being constructed inside our borders with Yemen is a sort of a screen … which aims to prevent infiltration and smuggling … it does not resemble a wall in any way.[21]

If Anqawi sought to create a litmus test for the permissibility of barriers, he failed. While the ICJ referred to Israel's security fence as a "wall" throughout its decision, less than 5 percent of the barrier is actually concrete slab. The rest is a network of fence and sensors. While the Saudi government presses the U.N. to sanction Israel to force compliance with the ICJ decision, the kingdom, through its own actions and statements, has actually created a precedent for Israel. Saudi statements labeling Israel's security barrier an "internationally wrongful act" and demanding its "destruction,"[22] illustrate the hypocrisy of both the Saudi and ICJ positions.

Turkey, Syria, and Cyprus

While Pakistani and Saudi criticism may not be anything new to Israel, some of the most vociferous criticism has come from an unexpected quarter. For much of the last decade, the strategic partnership between Turkey and Israel has grown although it recently has taken some hits at the hands of Turkey's ruling Justice and Development Party (AKP). Their bilateral relations were based not only on their common interests as the region's only democracies but also on the common threat posed to both by terrorists. Therefore, it came as a surprise when the Turkish prime minister so harshly condemned Israel's barrier.[23]

The Turkish stance is more surprising given its own positions vis-à-vis two other barriers, both of which are built on disputed land. In 1939, Turkey annexed Hatay, a province populated primarily by Turks but claimed by Syria. Syrian maps still depict Hatay as part of Syria.[24] Throughout the 1980s and through most of the 1990s, Syria supported the Kurdistan Workers Party (Partiya Karkaren Kurdistan, PKK) in their terrorist campaign for a Kurdish state in Turkey. The Turkish government responded by fortifying their frontier—including those portions around Hatay still hotly disputed by the Syrian government—and by constructing a high fence along the length of the border and laying over 500 miles of minefields.[25] While no serious international lawyer questions the status of Hatay—a 1937 League of Nations referendum recommended separation from Syria—the Turkish government's condemnation of Israel's barrier may provide the Syrian government with unwanted ammunition should they decide to pursue more seriously their complaint against Turkey.

Turkey's experience with barriers extends beyond the Syrian frontier. When Cyprus became independent in 1960, its constitution was intended to balance the interests of the Turkish minority with the Greek majority. In 1974, the Greek government supported a coup that installed an ardent Greek nationalist who promised to unite the island nation with Greece. Turkish troops intervened, enforcing a division of the island. In 1983, the Turkish sector formally proclaimed itself the Turkish Republic of Northern Cyprus but was recognized only by Turkey. The green line separating the two sides stretched 120 miles. The U.N.-monitored buffer zone varies in width from less than 20 meters to more than 4 miles. Five villages lie in the buffer zone, and approximately 8,000 people live or work in a no-man's land. Hardest hit was Nicosia, the capital, where some streets remain divided by cement partitions. Ironically, while the U.N. has condemned Israel's wall for inconveniencing Palestinians, in Cyprus, it was the U.N. itself that constructed the barrier in order to preserve peace and security.[26]

Morocco and the Western Sahara

The Israeli government chose not to argue its case before the ICJ, maintaining that the court did not have jurisdiction. The court's ruling was political; it blatantly ignored numerous precedents. However, while in the case of India and Pakistan, Saudi Arabia and Yemen, and Turkey with both Syria and Cyprus, disputes occurred between recognized states, in the case of Israel and the West Bank, an exact parallel does not exist. While the Palestinians claim the West Bank and Gaza, those territories are in fact disputed rather than formally occupied, for the Palestinians have never been independent nor do they have a precedent for their claim. Prior to the 1967 Six-Day War, Jordan controlled the West Bank, and Egypt managed Gaza. Before World War I, they were Ottoman territory.

A somewhat analogous case exists on the periphery of the Arab world. Until November 1975, Spain controlled a 100,000-square-mile stretch of desert on the northwest coast of Africa. Upon the Spanish withdrawal, both the governments of Morocco and Mauritania, as well as the indigenous (but Algerian-supported) Polisario Front (Popular Front for the Liberation of the Saguia el Hamra and Rio de Oro) laid claim to what became known as the Western Sahara. On October 16, 1975, the ICJ pushed aside Moroccan claims to the contrary and ruled that the local Sahrawi tribes had the right to self-determination without regard to Moroccan claims of traditional suzerainty.[27] The subsequent low-intensity conflict has been long and bitter. The Spanish government initially sought to supervise a joint Moroccan-Mauritanian administration but withdrew from the arrangement the next year. Mauritanian forces, bloodied by the Algerian-backed Polisario Front, gave up the fight in 1979, allowing Morocco to take almost complete control of the region. The Polisario Front launched attacks on both Moroccans and Sahrawis, causing a refugee exodus into Algeria.[28]

Amid the shadow of continued Polisario terrorism, in 1983, the Moroccan government began construction of a massive 1,500-mile, 3-meter high barrier of sand and stone. The Moroccan army laid more than one million land mines along the barrier, all of which was constructed on territory claimed by a non-state liberation movement. Approximately 120,000 Moroccan soldiers guard the line. The barrier has been remarkably effective at providing security for Moroccans once harried by Polisario terrorists.[29] Some Sahrawis have not been as fortunate. The barrier divides communities; Sahrawi accessibility and mobility is severely constrained. While the Israeli supreme court ruled on June 30, 2004, that Israeli planners needed to take not only security concerns but also Palestinian hardship into account when constructing the barrier, the Moroccan government has labored under no such constraints.

Despite having taken far more aggressive actions in response to a terrorist threat that is considerably less severe, the Moroccan government, nevertheless, filed a written statement to the ICJ objecting to Israel's security barrier. The Moroccans accused Israel of "annexation of Palestinian territory" and demanded the barrier's dismantling.[30]

Northern Ireland

Outside the Islamic world, one of the security barrier's fiercest critics has been Great Britain. British foreign secretary Jack Straw joined other European Union leaders calling for Israel to dismantle the barrier. According to Straw, "Whatever the claimed short-term advantages of the barrier, actions such as this are unlikely in the long term to deliver the peace and security Israel seeks."

Straw's statement ignores not only the success of the Indian, Turkish, and Moroccan barriers, but also the United Kingdom's own experience.[31]

The British government partitioned Ireland in 1921, largely along sectarian lines. While twenty-six counties gained independence as the Republic of Ireland, six other counties remained in Great Britain. Beginning in the late 1960s, the Provisional Irish Republican Army initiated a terrorist campaign to reunite Ireland, in the course of which more than 3,500 died and 30,000 were wounded.

The British government's response to the terrorist campaign was the creation of a "peace line" dividing Catholic and Protestant neighborhoods in Belfast. In some places, barriers traverse backyards and separate houses. Some of the barriers are more than thirty feet high. Exposing Straw's hypocrisy, Belfast's barriers have actually proliferated during Prime Minister Tony Blair's administration. In 1994, there were 15 of them; a decade later there are 37.[32] But, the "peace line" has been effective from a counterterrorism perspective. Prior to the barriers' construction, it might take a dozen policemen to secure any given neighborhood. After the British government erected the barriers, two policemen could do the same job.[33] The Daily Telegraph, generally the British broadsheet most sympathetic toward Israel, pointed out the hypocrisy of the British government's position toward Israel in a February 24, 2004 editorial:

Israel's fence exists to prevent suicide bombings. The Belfast peace lines exist to prevent large-scale intercommunal disorders … but a barrier is a barrier, whatever its name … their [British and Israeli] policies towards the nationalist areas of Belfast and the Palestinian areas of the Holy Land have one thing in common … to provide security."[34]

Good Fences Make Good Neighbors

When the ICJ ruled on July 9 that Israel's security barrier was illegal, it based its decisions exclusively on interpretation of international humanitarian law. Fourteen of the fifteen judges ruled that Israel should raze its barrier. The one dissenting justice, Thomas Buergenthal, was American. He argued that the court failed to consider all relevant facts. He wrote, "The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the court." While the ICJ claimed that Israel could not invoke "the right of legitimate or inherent self-defense," Buergenthal disagreed. After all, in resolutions 1368 and 1373, the U.N. Security Council reaffirmed the right to combat terrorism without limitation to "state actors only."[35]

And there is little doubt that the security barriers work. Suicide attacks in Israel declined 75 percent in the first six months of 2004 compared to an equivalent period in 2003.[36] The Israeli government is not alone in this conclusion. Many of the most vocal critics of Israel's security barrier have employed the same defense. Their immunity from ICJ and U.N. criticism illustrates both the politicization of the International Court of Justice and the inherent bias of the United Nations. U.N. secretary general Kofi Annan's criticism of Israel's security barrier,[37] especially when juxtaposed with his silence regarding the region's other security barriers, illustrates the double standard.[38]

Perhaps the greatest tragedy of the ICJ decision, however, is that it creates a precedent that allows terrorism to trump security. Israel will not be the only victim. The Turkish government, which vociferously condemned Israel, unwittingly undermined its own security with regard to Syria. Some Pakistani politicians already seek to use the ICJ's decision on Israel to undermine India's self-defense. While separate peace processes proceed in Cyprus, Western Sahara, and Northern Ireland, it was the dampening of terrorism made possible by the security barriers that allowed the space for diplomats to resume negotiations. On a number of levels, the ICJ decision was a ruling against peace and security, not only in Israel but also across the region and elsewhere.

Ben Thein, a student in international relations, economics, and business management at Clark University, was an intern at the Washington Institute for Near East Policy.

[1] The New York Times, July 21, 2004.
[2] Israel Business Arena, Aug. 12, 2004.
[3] David Makovsky, "How to Build a Fence," Foreign Affairs, Mar./Apr. 2004, p. 52.
[4] Ehud Barak, "Peace as My Paramount Objective," Mideast Mirror (London), June 28, 2000.
[5] The Jerusalem Post, Apr. 15, 2002.
[6] Ibid., June 12, 2002.
[7] "Concept and Guidelines: A Fence, Not a Wall," Israel Diplomatic Network, at http://securityfence.mfa.gov.il/mfm/web/main/document.asp?SubjectID=45874&MissionID=45187&LanguageID=0&StatusID=0&DocumentID=-1.
[8] Frontline (Chennai, India), Sept. 15-28, 2001, at http://www.flonnet.com/fl1819/18191290.htm.
[9] PakTribune, Mar. 26, 2004, at http://www.paktribune.com/news/index.php?id=59496.
[10] The Washington Post, July 30, 2003.
[11] BBC News, Nov. 25, 2002, at http://news.bbc.co.uk/1/hi/world/353352.stm.
[12] The Peninsula On-line (Doha), May 22, 2004, at http://www.thepeninsulaqatar.com/Display_news.asp?section=world_news&month=may2004&file=world_news20040522749.xml.
[13] "General Assembly Emergency Session Overwhelmingly Demands Israel's Compliance with International Court of Justice Advisory Opinion," U.N. press release, July 20, 2004, at http://www.un.org/News/Press/docs/2004/ga10248.doc.htm.
[14] PakTribune, July 23, 2004.
[15] Dore Gold, Hatred's Kingdom: How Saudi Arabia Supports the New Global Terrorism (Washington, D.C.: Regnery Publishing, Inc., 2003), pp. 126-7.
[16] BBC Summary of World Broadcasts, Dec. 12, 1997.
[17] Ibid., Jan. 27, 2000.
[18] Brian Whitaker, "Commentary on the Border Treaty," Yemen Gateway, July 1, 2000, at http://www.al-bab.com/yemen/pol/border000629.htm.
[19] The Independent (London), Feb. 11, 2004
[20] The Guardian (London), Feb. 19, 2004.
[21] Asharq al-Aswat (London), Feb. 9, 2004, quoted in ibid.
[22] "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories," written statements to the ICJ, Kingdom of Saudi Arabia, Jan. 30, 2004, at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.
[23] The Guardian, June 4, 2004.
[24] E. Melhem, "The Sanjak of Alexandretta: A Forgotten Syrian Territory," Az-Zawba'ah, Nov. 1998, at http://home.iprimus.com.au/fidamelhem/ssnp/.
[25] Interview with Turkish military official, July 2004.
[26] "Facts and Figures," U.N. Peacekeeping Force in Cyprus, at http://www.unficyp.org/Facts+figures/facts+fig.htm.
[27] "Western Sahara, Advisory Opinion of October 16, 1975," ICJ, at http://www.icj-cij.org/icjwww/idecisions/isummaries/isasummary751016.htm.
[28] "Western Sahara," Country Reports on Human Rights Practices, 2001, U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Mar. 4, 2002, at http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8281.htm.
[29] The Guardian, Dec. 19, 2003.
[30] "Legal Consequences," written statements to the ICJ, Kingdom of Morocco, Jan. 30, 2004, at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.
[31] The Birmingham Post, July 22, 2004.
[32] Associated Press, July 11, 2004.
[33] The Irish Times (Dublin), Mar. 5, 2003.
[34] "Our Very Own Berlin Wall," The Daily Telegraph (London), Feb. 24, 2004.
[35] "Legal Consequences," declaration of Judge Buergenthal, ICJ, July 9, 2004, at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.
[36] Ma'ariv (Tel Aviv), June 23, 2004.
[37] Los Angeles Times, Nov. 30, 2003.
[38] Kofi Annan, news release, U.N. headquarters, New York, July 21, 2004, at http://www.un.org/News/Press/docs/2004/sgsm9427.doc.htm.