With a resolution calling on Israel to tear down portions of the security fence before it, the UN General Assembly on Friday 16 July 2004 debated implementing a recent International Court of Justice (ICJ) opinion that deemed the fence illegal under international law.
The Palestinian observer to the UN, Nasser al-Kidwa, called on the international community to support a draft resolution affirming "the illegality of any territorial acquisition resulting from the threat or use of force," and demanding that Israel "comply with its legal obligations as determined in the advisory opinion." He also urged member states to endorse sanctions against Israel should it refuse to abide by the court's July 9 ruling, which is non-binding.
The following is the full text of Israel's response, as delivered by UN Ambassador Dan Gillerman.
For years, if not decades, this Assembly has entertained the Palestinian representative's attempts to manufacture a virtual reality. An alternate world in which there is but one victim and one villain, in which there are Palestinian rights but no Palestinian responsibilities, in which there are Israeli responsibilities but no Israeli rights.
This persistent campaign has contributed little to the credibility of the United Nations, and nothing to the cause of peace. It has pushed the parties further apart. With each successive partisan initiative we are left to wonder how can the United Nations contribute to the welfare of both peoples, if it sees the suffering of only one?
Last December, despite the reservations of many States, including the members of the Quartet, the International Court of Justice was dragged into that virtual reality. To add the ICJ to the list of United Nations organs harnessed to this one-sided agenda, a grotesquely distorted question was devised that placed the response to terrorism on trial, but ignored the terrorism itself. The hope was to create so perverted a process that the Court would be compelled to ignore the suffering of innocent Israelis from terrorism, and the obligations of the Palestinian side to prevent it. Last Friday, sadly, that hope was realized.
The Israeli and Palestinian peoples do not live in that reality. While states are engaged in studying the Advisory Opinion, Israel is burdened with the heavy responsibility of saving the lives of its citizens from the most brutal of terrorist campaigns. We live in the reality in which, just two days after the opinion was issued, terrorists belonging to Yasser Arafat's Fatah faction attacked a commuter bus in Tel Aviv, killing one woman and injuring 34 others. In a reality where after such a horrific attack, Arafat can make the sickening accusation that Israel orchestrated the murder of its own citizens, and have it pass without comment. This is the reality in which we are seeking out partners in peace, and trying - despite all the difficulties - to create conditions in which both sides can live up to their responsibilities and realize their rights. The path to peace does not lie in The Hague or in New York, it lies in Ramallah and Gaza, from where the terrorism is directed.
We can all agree that our goal must be a situation in which no fences between Israelis and Palestinians are necessary. But delegates are deceived if they think, even for a second, that that goal can be attained by considering the obligations of only one side.
As you will recall, Israel together with a large number of States did not support the request for this advisory opinion. Like the members of the Quartet and countries such as the United Kingdom, Cameroon, Italy, Canada, Australia, Germany, the Netherlands, and others, we submitted a detailed document to the Court noting that the request was inappropriate, a misuse of the advisory opinion procedure and damaging to the Road Map. For its part, Israel could not grant legitimacy to this tainted procedure, or be a fully engaged party in what we knew to be a counterproductive and harmful initiative. We continue to believe that it was wrong for the General Assembly to put the Court in this position.
Simply put, the Assembly put the wrong question before the wrong body, and in so doing made it more difficult for the Court, even with the best will in the world, to reach a fair, balanced and helpful response. As noted by Judge Kooijmans of the Netherlands, by politicizing the Court, the Assembly turned this judicial organ into an actor on the political stage. By being drawn into a partisan procedure, the Court has become the latest victim of the Palestinian political campaign, and it is the worse for it.
All those States that expressed concern about this misuse of the advisory process should now be wary of allowing this process to dictate the international agenda. There are already worrying indications that the request last December was a test case, a precedent for further abuse of the Court. It would be a grave mistake to allow this essentially political maneuver to undermine the prospects for progress on the ground. And it would be equally dangerous for the Assembly's actions to be viewed as rewarding such a misguided and politically motivated recourse to the Court.
Key States also warned that isolating one issue out of a complex conflict reserved for political negotiations could only lead to a distorted result. They warned of the lack of legitimacy inherent in a process that placed the victims of terrorism on trial, but spared the murderers of any judicial scrutiny. And they warned that any opinion reached as a result of such a skewed process could only lead to politicization and the misrepresentation and misuse of the law with ramifications well beyond the confines of our conflict. These warnings were all too real, but they were not heeded.
Israel has respect for the institution of the International Court of Justice and we believe in its ideals. We represent a people that knows all too well the cost of living in a society in which individuals are not protected by the balanced application of the rule of law. That is perhaps why we are especially disappointed by the exploitation of the Court in this case. We will not be the first State, and certainly not the last, to have differences with the positions expressed in an opinion of the Court, its historical and factual analysis or central aspects of its reasoning. We note that other States too, as well as several judges on the Court, have serious disagreements with key portions of this opinion. This is not the time or the place to explain those differences in detail. But we are compelled to address a number of aspects of this process that bear directly on the deliberations of the Assembly.
Israel is dismayed that in the 60 plus pages of the opinion, it was deemed inappropriate to seriously address the brutal terrorism that innocent Israeli civilians are facing, or the ongoing refusal of the Palestinian leadership to bring that terrorism to an end. Those crimes are the very reason that the fence is being erected, and the Court's silence in this regard is deafening. While realizing the constraints placed on the Court by the distorted question and the partial dossier placed before it, we find this glaring omission legally inexplicable and morally inexcusable.
We note the deep concerns expressed by Judge Higgins of the United Kingdom, Judge Owada of Japan and others, about the failure to declare in the clearest terms that Palestinian terrorism directed at Israeli civilians is a violation of the basic tenets of international humanitarian and human rights law. We agree that this failure fundamentally undermines the balance and credibility of the opinion.
We also share the concerns of some of the Judges on the Court regarding the selective reliance on facts and secondary materials, and a historical presentation which, to quote Judge Higgins of the United Kingdom, was "neither balanced nor satisfactory". A presentation that addresses the League of Nations Mandate but ignores the Mandate's express recognition of the Jewish peoples right to self-determination in their ancient homeland. A presentation that addresses the wars between Israel and its neighbors as if they materialized out of thin air, rather than as a result of deliberate acts of aggression designed to wipe Israel off the map.
We share too the deep reservations about a narrow statement in the opinion that could read as though it questions the right of States to self-defense against terrorism, despite all the evidence in law, Security Council resolutions and State practice to the contrary. There is no justice and no law in such an interpretation. It is not a rule that States can live by. Israel is occasionally urged to put more faith in international institutions and actors, to trust in their objectivity and their fairness. We are told to have faith that the political manipulation of their noble goals will not be tolerated. What will we tell our citizens now?
Israel recognizes that, like every measure that tries to prevent acts of terrorism emanating from civilian areas, the security fence raises complex legal and humanitarian issues. Accordingly, the fence and its route are under a process of constant review and change. This process includes giving every affected individual, Palestinian or Israeli, the right to petition Israel's Supreme Court, and numerous such petitions are pending. Indeed, Israel's Supreme Court is one of the few courts in the world, and certainly the only one in the region, that vigorously applies international law to examine the domestic actions of its own government.
It is a fiercely independent judicial institution that has earned the respect of jurists and lay people around the world. And it is probably the only Court in the entire Middle East in which any Arab can challenge his own government's actions and be assured of justice, rather than jail.
On June 30th, in response to one such petition, Israel's Supreme Court issued a landmark ruling on the security fence. Relying on specific provisions of international humanitarian law, the Israeli Supreme Court recognized Israel's authority to erect a fence as a defensive measure against terrorist attacks. It affirmed also that had the fence been built along the so-called Green line - an arbitrary line that has never served as an international border - that itself would have been evidence that the route was being determined by inappropriate political considerations rather than justifiable security ones.
At the same time, the Israeli Supreme Court stressed that the fence must be carefully balanced against the rights of those affected by it. The court, in a thorough and rigorous judgment, laid out a detailed proportionality test by which such a balance could be reached. It went on to find, by reference to that test, that sections of the fence required rerouting.
There are, of course, important differences between the ruling of the Israeli Supreme Court and the ICJ's Advisory Opinion. The Supreme Court was petitioned by Palestinians and Israelis who wanted practical solutions on the ground; the ICJ was asked a question as part of a political and manipulative campaign. The Israeli Supreme Court sought to find a balance between competing rights; the ICJ was asked only about the rights of one side. Perhaps most important, the Israeli Supreme Court had before it detailed and specific evidence, including witness testimony, on all aspects of routing, its security rationale and associated humanitarian effects; the ICJ was supplied only with partial, outdated and often misleading information. Finally, of course, while the opinion of the International Court is advisory only, the Supreme Court ruling is binding upon Israel.
As always, Israel as a country that respects the rule of law, will fully comply with decisions of its Courts. Following the judgment of the Israeli Supreme Court, the Government announced that it would not only re-route those parts of the fence that were the subject of the petition, but re-examine the entire routing of the fence so as to ensure that it complies with all the requirements of international law. That re-examination has already led to decisions to reroute large portions of the fence. As Israel's Court declared, and as the Government of Israel fully accepts: "Only a Separation Fence built on a base of law will grant security to the State and its citizens. Only a separation route built on the path of law will lead the state to the security so yearned for".
And yet, in the virtual reality created by the General Assembly's request none of these facts were taken into account. Despite Israel's official objections, there was extensive reliance on a dossier that not only contained inaccuracies and critical omissions but misrepresented Israel's legal position. The Palestinians and certain other parties appearing before the Court grossly distorted the nature of the fence, its purpose and its actual route.
No account was taken of the terrorist threat, no account was taken of the significant changes that continue to be made to the route of the fence; no account was taken of the binding decisions of Israel's Supreme Court, no account was taken of the fact that humanitarian arrangements have been vastly enhanced and continue to be improved.
The views expressed by the ICJ do not relate to the legal authority to erect the fence in principle, but to a "specific course" which the Court has presumed to exist by relying primarily on the selective and one-sided information with which it was supplied. The Court has reached its opinion on this specific question "on the material before it" - but the material before it refers, in large measure, to a fence that does not exist. Indeed, even if the information before the Court had been accurate when presented, it does not reflect the actual route of the fence that is under consideration today.
Examining the legality of the route demands a detailed proportionality assessment. It requires specific knowledge of topographical, security, environmental and humanitarian considerations at each section of the fence. It requires a thorough appreciation of the precise scope of terrorist attacks that Israelis face and the manner in which the specific route chosen has proven an effective means for thwarting those attacks. Such analysis cannot be based solely on reports about the alleged humanitarian impact of the fence - which are themselves outdated and alarmingly inaccurate. As Judge Buergenthal notes, in the absence of such a detailed and serious examination, it is simply impossible to reach definitive legal conclusions.
We do not believe so complex an issue can be addressed with so little opportunity for forensic examination. We do not believe that definitive conclusions can be reached on so obviously inadequate an evidentiary record. The opinion of the Court does not rule out the authority to erect a fence in the West Bank. Indeed, it recognizes that military exigencies and security imperatives could justify the erection of such a fence. But it fails to properly examine those exigencies. And its opinion relates only to a phantom route that bears little resemblance to the route actually under review. It should be considered accordingly.
We are not impressed by lectures from Palestinian spokesmen about respect for the rule of law. We have all witnessed first hand the extent of the Palestinian leadership's respect for law in its support for a brutal campaign of terrorism that violates every basic legal norm. We have learned of their concern for human rights and humanitarian law, when rejoicing over the murder of innocent citizens in terrorist attacks, not only in Israel but around the world, or when plundering international donor money intended to benefit their own people.
We have heard similar self-righteous rhetoric from some other regimes in our region. Those enraged when Israel seeks to protect itself under extremely difficult conditions, but unable to muster a word of condemnation for the systematic and shocking ethnic cleansing underway in the Sudan, or the violations of basic rights and freedoms in their own countries. This rage and concern, this spirited defense of the rule of law, would carry a little more conviction if it were a little less self-serving. For too many regimes in the region this declared adherence to the rule of law is advanced only when politically expedient. The cause of peace and the lives of people in the region would be far better served if these States actually held themselves to the standard to which they demand Israel alone to adhere.
For all those that speak so hypocritically of "compliance", "the rule of law" and "outlaw states", let me say this. Are there laws for Israel, and different laws for everybody else? We await to see a supreme court in any of these regimes call on its authorities to alter their security plans, let alone see the authorities abide by such a ruling. We await an advisory opinion or even a single UN resolution that addresses the legal obligations of these regimes to end terrorism, stop hate-filled incitement, and respect the human rights of their own citizens, let alone those of other States.
These regimes have the gall to speak of sanctions for a measure that saves lives, we await sanctions for the terrorism they sponsor that takes lives. If these regimes, or the Palestinian Authority - where only this morning armed militants kidnapped the head of their own police force - are entitled to lecture anyone about the rule of law or accuse others of being outlaws we have reached a point where the inmates are running the asylum.
Israel recognizes that it has responsibilities. But it is not alone. The Palestinian side calls on Israel to comply with a non-binding opinion. We call on them to comply with their binding legal obligations. There is after all, one straightforward measure that would lead to the removal of the fence - and it is not more resolutions adopted in UN halls. It is, simply put, for the Palestinian side to abandon terror as a strategic choice and comply once and for all with its obligations to fight terrorism and incitement. As controversial as the fence may be, one issue is beyond controversy: the terrorism that made the fence necessary is not only a grave violation of international law, it is the enemy of the Israeli and Palestinian peoples, and its eradication is an indispensable step to lasting peace.
Throughout this process, there have been excited attempts to present the advisory opinion as something that it is not - a binding verdict that must be complied with and that necessarily dictates the action of the political organs of the United Nations. This assertion is simply inconsistent with the actual legal status of such opinions as non-binding under international law and runs counter to the history of their subsequent treatment by UN organs. The record of United Nations bodies is replete with examples of States, from every continent and regional group, that have taken serious issue with aspects of an advisory opinion.
Many states have voted against resolutions that, like the draft resolution before us today, take the advisory opinion out of their political context. In some cases, the Assembly has chosen merely to take note of, rather than expressly endorse, the opinion. And in most cases, the UN membership has recognized that its political organs are compelled to take broader political and strategic considerations into account, and should not be limited in their consideration to the narrow treatment of isolated legal issues.
Given the controversy surrounding the request for this advisory opinion, every one of these considerations apply in this case. If the number of States objecting to this abuse is not enough, if the serious criticism of the opinion by numerous Judges on the Court and by a growing number of legal experts around the world is not enough, if the obviously self-serving nature of the present draft resolution is not enough - then surely the imperative of advancing the Road Map should itself allow for no other conclusion.
In the months since the opinion was requested one thing has become abundantly clear: the fence works. In those places where the fence has been erected it has succeeded in making it far more difficult for terrorists to take innocent life and sabotage the peace process. Scores of suicide attacks have been thwarted the latest just two days ago. Hundreds of lives have been saved. There has been a dramatic reduction of over 90% in successful terrorist attacks, a 70% reduction in citizens killed, and an 85% reduction in the number of wounded - all of which can be attributed directly to the security fence.
Listen to Tawfiq Karaman, City Manager in Umm el Fahm who said "God be blessed, the fence ended the parade of terrorists through this city".
Listen to Sami Masrawa, an Israeli Arab injured in Sunday's bus bombing: "A month ago I went to protest the fence, now I believe it can only strengthen us". And as Israel is able to protect its citizens by more passive means, it has also been possible to remove road blocks and withdraw troops from Palestinian areas, improving security, humanitarian and economic conditions for thousands of Palestinian residents.
By closing the avenues to terror, we can open the path to peace. As the Quartet and many other States have recognized, there is now a genuine chance to restart the Road Map peace process as a result of the disengagement plan. That opportunity has been created by the security benefits of the fence. It must not be squandered.
The fence, and its actual rather than imagined route poses no threat to the emergence of a viable and democratic Palestinian State as part of the Road Map process. Indeed, by helping take terrorism out of the equation, a negotiated two-State solution becomes possible. As Israel has repeatedly declared, the fence does not affect the legal status of the territory, and as has been done in the past it can be moved or removed to accord with any political settlement. As Prime Minister Sharon has pledged, "the fence is a security rather than political barrier, temporary rather than permanent, and therefore will not prejudice any final status issues including final borders". Above all, the fence is reversible. Lives taken by terrorism are not.
Rather than accepting every facile allegation as fact, we would urge delegates to see not just the response to terrorism but the terrorism itself. The Assembly has already expressed itself on the issue of the security fence, but it has yet to address the terrorism that necessitated it. It is time for the Assembly to ask some different questions. And it is time to ask yourselves - seriously - what steps can now be taken to bring the parties closer together, not push them even further apart.
The General Assembly has a choice today - to correct the error made last December or to compound it. The Palestinian side hopes that you will preserve the comic strip narrative of victim and villain that they have labored so intensively to create. That is why they were so angered 4 days ago when the Special Representative of the Secretary General had the audacity to suggest that both sides had to live up to their obligations. But that comic strip story can produce only paper, it cannot produce progress and it cannot produce peace. By ignoring Palestinian obligations, the Assembly only sets back the Palestinian cause. By reinforcing a sense of privilege without a sense of responsibility, the Assembly adopts a patronizing agenda that undermines the creation of a democratic Palestinian State at peace with its neighbors in the context of permanent settlement.
Only the political process laid out in the Road Map - that sets out mutual rights and mutual obligations - can achieve real results. And this Assembly must decide whether it lives in the virtual world created by Palestinian draft resolutions, or in the real world. It cannot live in both.
The advisory opinion of the ICJ took place in a virtual reality but it did not take place in a vacuum. On the ground, the launching of a bold and serious initiative of disengagement from Gaza and parts of the West Bank carries the potential to re-energize the peace process. That is where our attention must be focused. We are currently engaged in consultations with States in the region and with Quartet members in order to create conditions in which the disengagement plan can help facilitate genuine progress and the realization of a viable two-state solution in the context of the Road Map.
Surely we can agree that this is the goal: an end to violence, terrorism and incitement, as required by the very first clauses of the Road Map. An end to suffering on both sides. A commitment to peace, dignity, and prosperity for both peoples based on mutual recognition and mutual compromise. All this can come only by a fulfillment of the obligations agreed to by both sides, so that temporary fences of security can quickly be replaced by permanent bridges of peace.
If the General Assembly wishes to make a relevant and constructive contribution to this noble endeavor we must keep our eye on this prize. We must avoid adopting one-sided, diversionary and divisive resolutions, inspired by the partisan interests of one party to the conflict and thus, of necessity, deficient in their impact and their claim to legitimacy.
The barrier between Israelis and Palestinians is not the security fence, but the terrorism that made it necessary. Were it not for that terrorism, a viable two State solution would have emerged long ago. Palestinian terrorism seeks not the end of occupation but the end of Israel. The events of recent years and the hate-filled rhetoric of the terrorist ring-leaders tells us as much. As long as the Assembly averts its gaze from that stark reality, it does the cause of peace a great disservice. The people in the region deserve, and in fact, demand better. We urge you to heed their call.