The route of the separation barrier that has been constructed, the majority of which is located within the West Bank represents a clear violation of international law, as determined by the International Court of Justice in The Hague (ICJ), and therefore the route must be amended – as required – to adhere to the country’s borders. This was the explicit position voiced by ACRI in its statement of opinion that was submitted today (05/05/05) to the Supreme Court. ACRI submitted the statement to the court in response to the state’s stated official position on the issue, and in relation to the upcoming hearing of the petition regarding the barrier that is due to be heard on Monday before an expanded panel of nine Supreme Court Justices.
The petitions refer to the route of the barrier surrounding the villages of Budrus and Shuqba. In response to the petitions, the court ordered the parties to prepare a written position on the significance and relevance of the ICJ ruling in the context of these two cases. ACRI’s written response was prepared by ACRI Attorney Limor Yehuda, and includes sections which relate specifically to the cases of the two villages: part of the response was prepared by Attorney Ronit Robinson, who is representing the residents of Budrus on behalf of ACRI, and another section was prepared by Attorney Muhammad Dahleh, who is representing the residents of the village of Shuqba.
ACRI made clear, in the submitted document that the international court is the most senior judicial tribunal that is authorized to interpret and determine what constitutes international law, and therefore the contents of the advisory opinion are binding. The aforementioned contravenes the states’ claims that the ICJ ruling is non-binding.
ACRI further emphasizes that, even after the changes that have been introduced to the route of the barrier after the ICJ ruling, the overwhelming majority of the barrier is still situated beyond the sovereign borders of the State of Israel, in territory that is held in a state of belligerent occupation.
The status and powers of Israel in this territory, ACRI’s response adds, is drawn from international law and is dependent upon it. Therefore, the normative framework, upon which the actions of the state in these areas should be examined, is first and foremost by this judicial system. Thus, when one considers the fact that the construction of the separation barrier, which Israel is currently carrying out in the occupied territories, represents a violation of international law, it can in practice be considered to be an illegal act.
The encroachment of the route into West Bank territory is the result of a number of motivations. The first and principle motivation, to which the state has fully admitted to in its response to the Supreme Court, was and remains – the desire to relocate the barrier to surround Israeli settlements in the West Bank, and to ensure that the majority of the Jewish settlers are located on the “Israeli” side of the barrier. On this issue, the international court’s absolute ruling that was endorsed by all 15 justices is still relevant.
The ruling stated that the route of the barrier, as it relates to the creation of territorial contiguity between the Jewish settlements and territory belonging to the State of Israel, with its effective annexation of land, represents a clear violation of international law that cannot be justified under any circumstances.
The stated necessity to protect Jewish settlements can also be achieved by the construction of a barrier around settlements themselves. Thus there would be not need for de-facto annexation of West Bank territory to Israel by pushing the route of the barrier deep into occupied territory. With regard to sections of the barrier that encroach on West Bank territory for other reasons – this will be considered to be illegal unless the state is able to prove that the reasoning does not contravene the provisions of international law, and that the infringements resulting from the chosen route are proportional.
The data provided by the state is not sufficient to remove the clear and heavy onus on the state to show that the chosen route is the only one that can satisfy a military necessity, and that this legitimate goal, namely – the protection of the residents of the State of Israel – cannot also be achieved by changing the route of the barrier to coincide with the pre-1967 border, in a manner that does not violate the Palestinian residents’ human rights and remains within state territory.
Israel, as a country that would like to strictly adhere to honoring international law, and as a state that wishes to continue to be “ a legitimate member” and entitled to rights in the international community, ACRI states, must honor and act in accordance with the court’s published advisory opinions which represent, in fact, a ruling within the context of international law in its current format. In this context one should expect that in light of the ICJ ruling in The Hague, that Israel will amend the route of the barrier in such a way as to comply with its legal obligations as prescribed by international law.
It is also stated that according to the present authorized route of the barrier, approximately 9.5% of the West Bank territory will be cut off from the rest of the West Bank and will find itself to the west of the barrier. The land in question is among the most fertile of the West Bank, and many Palestinian farmers will, as a result, be unable to reach their agricultural land.
Some 24,000 Palestinians will find themselves trapped in the seam zone, the closed military area to the west of the barrier, and some 230,000 others will be forced to reside in residential areas that are surrounded on three sides at least, by the barrier.
Approximately 220,000 Palestinian residents of East Jerusalem will be cut off from the West Bank, with the resultant enforced separation from the society to which they belong. In addition to which, the construction of the barrier results in the severe and sweeping violations of the right to private property, including the expropriation of thousands of dunams of land (1dunam = 4 acres), the destruction of plantations, agricultural land, structures, wells and more.
The route of the barrier has also resulted in severe violations of freedom of movement for many of the residents, limited access to public services, including health and educational services, the isolation of communities and the prevention of the maintenance of family and social ties. All the aforementioned represent a gross violation of international law.