Israel and the “Separation” Fence

Israel and the “Separation” Fence

Simha Nyr, adv.
24.07.2009 18:02

Some issues concerning the Israeli West-Bank barrier, not all of them have been brought to public discussion, even in Israel itself


Israel and the Palestinians are, as known, in a state of war. The biggest danger to Israel in this war is the “suicide bombers” – those who infiltrate into Israel from the West Bank or from Gaza Strip and explode themselves in buses or in crowded places. Some of them, undoubtedly, are motivated by the will to serve their national struggle for a state of their own, but there are other incentives: pensions to their poor families, a status of Shaheed, and 72 virgins each, in Heaven. For my single self I am very skeptical as to the existence of so many virgins, either in Heaven or elsewhere, and, as far as I know, their leaders, who send them to mission, don’t offer those benefits to their own sons, but these remarks are just obiter dicta.

In order to prevent – or minimize – this danger, the Israeli government had decided to build the “separation fence” – a concrete (in both meanings) wall, up to 8 meters high, as a barrier between Israel and the Palestinians.

The most interesting fact in this issue is that both extreme left an extreme right oppose that barrier: The former for it deprives Arabs of their lands (or free access thereto), and free movement in general, and the latter for it, de facto, detaches from the state of Israel a crucial part of Greater Israel.

Moreover, even security experts are divided on the efficiency and the very necessity of this fancy “fence”.

Let us check some issues concerning that matter, not all of them are brought to public discussion even in Israel itself.

A. The Fence and Israel’s Domestic Law

The Supreme Court of Israel sits either as an appellate instance above the other courts, or as an administrative court that reviews the legality, or lawfulness, of the state authorities’ actions. As an administrative court it sits as a first-and-last instance, and is called BAGATS, Hebrew abbreviation for High Court of Justice. As to the “willingness” of Bagats to give justice we can learn from the pure statistical fact that only one or two percent of the petitioners to Bagats are granted their relief (or a part thereof) plus few others who are satisfied “under the table”. Justice under the table, in an under-the-table state.

Another important fact is that the Supreme Court is regarded by many as politically left-oriented, but both wings of the political map cry havoc on the integrity of the judges (mostly not without grounds) when they lose their respective cases, but to my friends, on both sides of the political map, I always say that the judges are the same judges, and he who praises the Israeli justice when others lose, must not cry when he himself is unfairly trodden upon.

The unwillingness of Bagats to grant relief is even more conspicuous when it comes to security of the state – a mantra that in general automatically blocks the judges’ ears, and therefore most of the petitions against the fence are almost automatically rejected. Most of them, but not all of them.

The most frequent grounds of legal attack on the fence are “irrelevant consideration” (e.g. political considerations in disguise of security ones), and “extreme lack of reasonableness” (e.g. lack of proportionality between the damage caused to the petitioners and the real needs of security.

Until now almost all the petitions against the fence were rejected, but in few cases Bagats ordered the state to move some portions of the wall from one place to another, an operation that costs more money which doesn’t grow on the trees.

In one case the state, pushed to the wall, admitted that political consideration had, in fact, been implemented.

B. The Fence and the International Law

In 2004 the State of Israel was sued in the International Court of Justice, who ruled that the construction by Israel of a wall in the Occupied Palestinian Territory is contrary to international law, and stated the legal consequences arising from that illegality.

Following that ruling Israel had given two answers: first – the ruling is, legally, but an “advisory opinion”, and second – we shall appoint a “committee to learn the implications” of that ruling.

Sure: if that committee will “supply the goods” – i.e. give the expected conclusions – we shall apply them; otherwise – we shall appoint another committee, “to decide how to implement” the conclusions of the first committee.

Today, five years after – nothing has happened, neither in Israel’s internal level, nor in the international one, and as far as I know, the UN Security Council has not yet declared war against Israel, in order to force it to respect the ruling of the International Court. Much ado about nothing.

C. Israel and Intellectual Integrity of Judges

When the ruling of the International Court was held, all Israel’s spokesmen, officials and non-officials, had criticized the court’s decision for not relating to Israel’s arguments, for not mentioning, “even once” the word “terror”, for being biased, for playing a “sold game” etc., etc…

I most profoundly share the grief, sorrow and agony of my beloved country. For almost five years I haven’t slept even one night, as it said in the Bible: I am weary with my moaning; every night I flood my bed with tears; I drench my couch with my weeping (Psalms, 6, 6)

The Israeli judges are not better. They ignore any argument or evidence which stands on their way to the conclusion they have marked beforehand. They say shamelessly that they don’t have to relate to what they don’t want to relate. Thus, If you are charged for murder, and you bring the “victim”, the “deceased”, to court as an evidence showing that he is still alive, the Israeli court has the right to ignore this evidence, and find you guilty of that murder.

By official statistics of the Israeli Bureau of Statistics 99.8% of the defendants in criminal cases are found guilty

These are but “samples of the goods” of the Israeli “justice”. I don’t know how it works in other countries, but before you blame others, you must remember that charity begins at home.

D. The Billions “Invested” in the Fence

The separation fence was supposed to cost about 10 billion NIS (new Israeli shekels) as stated by Ministry of Defense in 2003. I don’t know the total up-to-date cost, while the project is not yet completed, but in Israel the cost of any project may multiply several times until it is completed.

After the failures of Lebanon War II (July-August, 2006) the Israeli defense system had accused the government for cutting half a billion NIS from the defense budget, half a year before the war.

In that war, the Arab David (Hizbollah, some 3000 soldiers plus ground-to-ground missiles) stood against the Israeli Goliath, the strongest army in the Middle East, with hundreds of jet fighters, armory (few thousands tanks), navy, artillery and so on – and a concrete skirt, up to 8 meters high.

David’s missiles have reached Nahariya and Haifa – the latter is some 100 Km away. There was no separation wall between Israel and Hizbollah, but even if there were such a wall, the missiles would have skipped over it very easily.

E. The Homework Israel Had Not Done

While going to invest billions of dollars in projects like this – one needs to think seventy and seven times of all the aspects: compliance with both domestic and international law, the political implications on the state’s foreign relations, other alternatives of better cost/efficiency for the security of the state, and other alternatives to put the money in other national aims – not less important – like education, health, weak populations, etc.

Even in terms of life-saving investment, it seem that putting those billions in the road infrastructure would have done much more for the safety of the people of Israel, but who does such calculations before opening the national checkbook.

Building the separation fence, Israel had done very poor homework: nobody had thought about the implication of domestic and international law, foreign relations, proper use of the state’s budget limits – very typical to the people that said naasse ve-nishma – doing first, listening after.

F. Just Suppose …

Suppose – just suppose – that Israeli-Arab peace breaks out shortly … unlike Maginot Line that was used, after retirement, for growing mushrooms, the Israeli Maginot Line will remain for generations to come as a useless colossal monument to the Israeli costly dilettantism.



על פסק-דינו של ביה”ד הבינלאומי בהאג בעניין גדר המחלוקת: לא שמחה לאיד, אבל – מגיע לנו!!!

עשרת המיליארדים שהשקעתם בגדר ההפרדה חסרו לכם עכשיו: אידיוטים, נמאסתם!!!


The author is an Israeli lawyer and publicist

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