There is much more to the recent High Court decision on the fence than meets the eye.
In essence, it held that Israel has the right to build the fence, but in locating it, it must make sure that it meets the test of proportionality. In this case, it held that part of the fence didn't. It also held that since it was for security purposes, and only that, there was no need to follow the Green Line.
On the first issue the Court held:
"We accept that the military commander cannot order the construction of the Separation Fence if his reasons are political. The Separation Fence cannot be motivated by a desire to 'annex' territories to the state of Israel.
"[?]Indeed, the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other. In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state."
The Court held that the fence is motivated by security concerns and is therefore legal because, inter alia, "[?]the government has emphasized, numerous times, that 'the Fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.'"
On the issue of whether the route is acceptable, it applied the principal of proportionality and found that the route didn't meet the test.
The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and her citizens. However, it imposes conditions on the use of this authority. This authority must be properly balanced against the rights, needs, and interests of the local population. The law of war usually creates a delicate balance between two poles: military necessity on the one hand and humanitarian considerations on the other.
It is based on this principle that the world says Israel has the right to defend itself, but subject to humanitarian law. That's correct, but the world goes further and claims that what Israel does doesn't meet the test of proportionality or is excessive. Israel says otherwise, but the world refuses to give it the benefit of the doubt.
After holding that "the approach of this Court is well anchored in the humanitarian law of public international law," the Court went on to discuss "proportionality" as it applies to the rules of war or the rules of belligerent occupation.
The challenge to decide on the proportionate balance would cross a rabbi's eyes, as can be seen from this statement:
"Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy."
In other words, you can destroy the enemy, but don't harm him. Huh?
The court continues, "[?]According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize its governmental objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is attempted, and the means used to achieve it. This principle is a general one. It requires application.
"[?]does it pass the test of proportionality in the narrow sense? The question is whether the Separation Fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the Fence. According to the 'relative' examination of this test, the Separation Fence will be found disproportionate if an alternate route for the Fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route."
In the application of this test, if the benefit of one route over another is small yet the damage differential to residents is large, it fails the test of proportionality. In this case, the Court so held and required another route with less damage.
In doing so, the Court, though it was satisfied that the Military Commander of Yesha took all relevant things into consideration, took the position that it has a duty to substitute its decision for the Commander's when it comes to determining proportionality. This surprised me, as I thought that under judicial review the court simply determines if the right things were considered, in which case the decision is upheld and does not decide the issue itself.
What can I say? The law of proportionality is sound and has long been the law in Israel. But in holding that parts of the fence route didn't meet the test, it neglected to quantify the relative security benefits between two alternate routes. It did, though, determine that there was a drastic difference in harm between the two routes. In order to apply the test of proportionality, the court must quantify both and then decide if the alternate route would reduce the harm significantly while only reducing the security a little. This it failed to do. One might think it was on a mission to reduce the harm regardless. To my mind, it overemphasized the rights of the inhabitants and undervalued the harm to Israel's security.
But what does a "smaller security advantage " mean? It does not mean more expensive to do. It means less security. Now, less security has got to mean more deaths.
The Court, in effect, says Israel must accept more deaths rather than unduly harm the inhabitants. That is the incredible result of this thinking. I always thought that you are entitled to use as much force as is necessary to achieve your objective, but no more, and that was the meaning of proportionality. The court seems to be saying that Israel can't defend itself by all means if that would create disproportionate harm; Israeli lives versus Arab inconvenience. This is unacceptable.
As part of its reasoning the Court held:
"The purpose of the Separation Fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative. The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:
"'The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology. However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations. It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.'"
And therein lies another problem. The Court held that the question of security must be viewed narrowly - i.e., what will it take to reduce the terrorism - rather than broadly - i.e., what would it take to produce defensible borders.
The Landau decision above quoted determined that the State can not seize the land of individuals in order to settle it. But much of the land in Judea, Samaria and Gaza was owned originally by the Ottoman Empire, then by Britain as it replaced the Ottomans and then by Israel as it replaced Britain as the governing authority. Thus, Israel should be able to legally settle on state-owned land in Judea, Samaria and Gaza.
Part of the problem with this decision is that it proceeds from the point of view that Israel is a belligerent occupier. If Judea, Samaria and Gaza were the lands of another state, then it certainly would be. Since it is not, the Geneva Convention does not apply and therefore Israel can not be considered an occupier. Unfortunately, Israel accepted that the Geneva Convention applies and that it is a belligerent occupier. This, to my mind, was a big mistake. Previously, it had always denied that the Convention applies and asserted that it would nevertheless be guided by the Convention's principles.
Had Israel maintained that these territories were disputed lands and not occupied lands, different considerations may have applied.
One other possibility, is to expropriate the Arab communities that are cut off from their land on the east side of the proposed route. Israel is probably legally entitled to do so given the public purpose or the necessity. But this wasn't argued or offered as a solution. In this way, they would reduce the harm and could keep the proposed route. They could then recover the money expended for the compensation by selling the land to Israelis.
I have often wondered how Israel can forcibly transfer Jews from Gaza, but cannot forcibly transfer Arabs from Judea and Samaria. The proscription in the Geneva Convention against forcible transfer applies to any occupant of the land. If Israel can expropriate homes in Gush Katif, surely it can expropriate lands owned by Arabs living on the west side of the proposed route. If Israel can forcibly transfer Jews from Gaza, they can forcibly transfer Arabs from Judea and Samaria.
International law also holds that you can keep land won in a defensive war, but that includes the population that comes with it. That is why Ariel Sharon wants to disengage. As an occupying power, you must take care of the humanitarian needs of the inhabitants. This is quite a burden and could be bigger if there was no international assistance. Sharon wants to cease being a belligerent occupier, with no permanent military presence, ultimately, in all of Judea, Samaria and Gaza. He prefers to make forays when necessary and then to withdraw.
Israel has accepted Resolution 242, which implied that Israel doesn't have to withdraw except to secure and recognized borders. But what is it to do with the hostile population there in the meantime? The Geneva Convention clearly rules out forced population transfers. I am not aware of any legal means to force such transfers. Israel should be entitled to withdraw to secure borders, even if they are not recognized, regardless of the disproportionate harm such borders engender.
When the construction of the fence was announced, Sharon said over and over again that it was for security reasons only and didn't establish a political border. I now understand that he did this to ensure that the construction of the fence would be legal.
This decision also underscores that no border can be established without agreement with the Palestinian Authority. Perhaps that is why Sharon has never destroyed Oslo or the PA. It also means that Sharon's disengagement plan is creating a situation that will exist for decades, because no agreement is foreseeable.
The so-called right of return is problematic enough, but any defensive border that Israel may want to establish will involve many Arabs on the west side that would create additional problems. That is why Sharon mooted the idea of population exchanges.
Sharon also stressed that he would prefer an agreement with the PA rather than to embark on a unilateral solution. So the unilateral solution is but a temporary one. Ultimately, there must be an agreement.
Clearly, a two-state solution that would involve a separation and transfer of populations is very difficult to negotiate or to achieve. But a one-state solution without voting rights for the Arabs is also difficult to work out, because we will still have to build the fence.
As I said, it is enough to cross a rabbi's eyes.
In essence, it held that Israel has the right to build the fence, but in locating it, it must make sure that it meets the test of proportionality. In this case, it held that part of the fence didn't. It also held that since it was for security purposes, and only that, there was no need to follow the Green Line.
On the first issue the Court held:
"We accept that the military commander cannot order the construction of the Separation Fence if his reasons are political. The Separation Fence cannot be motivated by a desire to 'annex' territories to the state of Israel.
"[?]Indeed, the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other. In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state."
The Court held that the fence is motivated by security concerns and is therefore legal because, inter alia, "[?]the government has emphasized, numerous times, that 'the Fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.'"
On the issue of whether the route is acceptable, it applied the principal of proportionality and found that the route didn't meet the test.
The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and her citizens. However, it imposes conditions on the use of this authority. This authority must be properly balanced against the rights, needs, and interests of the local population. The law of war usually creates a delicate balance between two poles: military necessity on the one hand and humanitarian considerations on the other.
It is based on this principle that the world says Israel has the right to defend itself, but subject to humanitarian law. That's correct, but the world goes further and claims that what Israel does doesn't meet the test of proportionality or is excessive. Israel says otherwise, but the world refuses to give it the benefit of the doubt.
After holding that "the approach of this Court is well anchored in the humanitarian law of public international law," the Court went on to discuss "proportionality" as it applies to the rules of war or the rules of belligerent occupation.
The challenge to decide on the proportionate balance would cross a rabbi's eyes, as can be seen from this statement:
"Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy."
In other words, you can destroy the enemy, but don't harm him. Huh?
The court continues, "[?]According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize its governmental objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is attempted, and the means used to achieve it. This principle is a general one. It requires application.
"[?]does it pass the test of proportionality in the narrow sense? The question is whether the Separation Fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the Fence. According to the 'relative' examination of this test, the Separation Fence will be found disproportionate if an alternate route for the Fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route."
In the application of this test, if the benefit of one route over another is small yet the damage differential to residents is large, it fails the test of proportionality. In this case, the Court so held and required another route with less damage.
In doing so, the Court, though it was satisfied that the Military Commander of Yesha took all relevant things into consideration, took the position that it has a duty to substitute its decision for the Commander's when it comes to determining proportionality. This surprised me, as I thought that under judicial review the court simply determines if the right things were considered, in which case the decision is upheld and does not decide the issue itself.
What can I say? The law of proportionality is sound and has long been the law in Israel. But in holding that parts of the fence route didn't meet the test, it neglected to quantify the relative security benefits between two alternate routes. It did, though, determine that there was a drastic difference in harm between the two routes. In order to apply the test of proportionality, the court must quantify both and then decide if the alternate route would reduce the harm significantly while only reducing the security a little. This it failed to do. One might think it was on a mission to reduce the harm regardless. To my mind, it overemphasized the rights of the inhabitants and undervalued the harm to Israel's security.
But what does a "smaller security advantage " mean? It does not mean more expensive to do. It means less security. Now, less security has got to mean more deaths.
The Court, in effect, says Israel must accept more deaths rather than unduly harm the inhabitants. That is the incredible result of this thinking. I always thought that you are entitled to use as much force as is necessary to achieve your objective, but no more, and that was the meaning of proportionality. The court seems to be saying that Israel can't defend itself by all means if that would create disproportionate harm; Israeli lives versus Arab inconvenience. This is unacceptable.
As part of its reasoning the Court held:
"The purpose of the Separation Fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative. The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:
"'The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology. However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations. It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.'"
And therein lies another problem. The Court held that the question of security must be viewed narrowly - i.e., what will it take to reduce the terrorism - rather than broadly - i.e., what would it take to produce defensible borders.
The Landau decision above quoted determined that the State can not seize the land of individuals in order to settle it. But much of the land in Judea, Samaria and Gaza was owned originally by the Ottoman Empire, then by Britain as it replaced the Ottomans and then by Israel as it replaced Britain as the governing authority. Thus, Israel should be able to legally settle on state-owned land in Judea, Samaria and Gaza.
Part of the problem with this decision is that it proceeds from the point of view that Israel is a belligerent occupier. If Judea, Samaria and Gaza were the lands of another state, then it certainly would be. Since it is not, the Geneva Convention does not apply and therefore Israel can not be considered an occupier. Unfortunately, Israel accepted that the Geneva Convention applies and that it is a belligerent occupier. This, to my mind, was a big mistake. Previously, it had always denied that the Convention applies and asserted that it would nevertheless be guided by the Convention's principles.
Had Israel maintained that these territories were disputed lands and not occupied lands, different considerations may have applied.
One other possibility, is to expropriate the Arab communities that are cut off from their land on the east side of the proposed route. Israel is probably legally entitled to do so given the public purpose or the necessity. But this wasn't argued or offered as a solution. In this way, they would reduce the harm and could keep the proposed route. They could then recover the money expended for the compensation by selling the land to Israelis.
I have often wondered how Israel can forcibly transfer Jews from Gaza, but cannot forcibly transfer Arabs from Judea and Samaria. The proscription in the Geneva Convention against forcible transfer applies to any occupant of the land. If Israel can expropriate homes in Gush Katif, surely it can expropriate lands owned by Arabs living on the west side of the proposed route. If Israel can forcibly transfer Jews from Gaza, they can forcibly transfer Arabs from Judea and Samaria.
International law also holds that you can keep land won in a defensive war, but that includes the population that comes with it. That is why Ariel Sharon wants to disengage. As an occupying power, you must take care of the humanitarian needs of the inhabitants. This is quite a burden and could be bigger if there was no international assistance. Sharon wants to cease being a belligerent occupier, with no permanent military presence, ultimately, in all of Judea, Samaria and Gaza. He prefers to make forays when necessary and then to withdraw.
Israel has accepted Resolution 242, which implied that Israel doesn't have to withdraw except to secure and recognized borders. But what is it to do with the hostile population there in the meantime? The Geneva Convention clearly rules out forced population transfers. I am not aware of any legal means to force such transfers. Israel should be entitled to withdraw to secure borders, even if they are not recognized, regardless of the disproportionate harm such borders engender.
When the construction of the fence was announced, Sharon said over and over again that it was for security reasons only and didn't establish a political border. I now understand that he did this to ensure that the construction of the fence would be legal.
This decision also underscores that no border can be established without agreement with the Palestinian Authority. Perhaps that is why Sharon has never destroyed Oslo or the PA. It also means that Sharon's disengagement plan is creating a situation that will exist for decades, because no agreement is foreseeable.
The so-called right of return is problematic enough, but any defensive border that Israel may want to establish will involve many Arabs on the west side that would create additional problems. That is why Sharon mooted the idea of population exchanges.
Sharon also stressed that he would prefer an agreement with the PA rather than to embark on a unilateral solution. So the unilateral solution is but a temporary one. Ultimately, there must be an agreement.
Clearly, a two-state solution that would involve a separation and transfer of populations is very difficult to negotiate or to achieve. But a one-state solution without voting rights for the Arabs is also difficult to work out, because we will still have to build the fence.
As I said, it is enough to cross a rabbi's eyes.