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Peace Now's Yossi Alpher on the Israeli Court's Fence Ruling |
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by APN via gehrig
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07 Jul 2004
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Long but interesting peace by one of the founders of bitterlemons.org on (a) the implications of the Israeli Supreme Court's order that the path of the security fence must be moved closer to the Green Line ("The route that the military commander established for the security fence... harms the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law," the Court found) and (b) on Israeli and Palestinian culpability over malnutrition and international aid in Gaza. |
Yossi Alpher is an independent security analyst, co-founder and co-editor of the Israeli-Palestinian internet dialogue bitterlemons.org and of bitterlemons-international.org, a Middle East roundtable, the former director of the Jaffee Center for Strategic Studies, and a former official with the Mossad. His views do not necessarily reflect the views of Americans for Peace Now or Peace Now.
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Q. -- Last Week's Israel High Court decision regarding the fence has the obvious immediate effect of causing the IDF to move the security barrier in the area of the northwest of Jerusalem away from Palestinian lands and toward the green line. What other important developments or consequences does it reflect?
A. -- The most important additional development reflected in the High Court's decision is the involvement of concerned Israeli Jewish citizens in opposing security establishment decisions regarding the fence before the court. Uniquely, retired senior IDF officers from the Council for Peace and Security (which numbers some 1200 former senior officers and security officials) appeared as friends of the court on the side of the Palestinian plaintiffs, alongside Israeli Arab lawyers and sympathetic Jewish residents of towns like Mevasseret Zion that border on Palestinian lands. The retired officers argued that the path of the fence under question, stretching along some 30 km., did not well serve Israeli security needs by any acceptable criteria, and could only be explained as an attempt to make life so miserable for Palestinians that they would abandon their homes and villages.
For example, the retired officers pointed out that portions of the fence placed adjacent to Palestinian villages, thereby separating the village farmers from their lands, would inevitably engender the anger and humiliation of the villagers, and generate terrorism from areas that have been relatively quiet thus far. It would also expose IDF patrols to attack from the outlying houses of the village that lie along the fence; the IDF would respond by demolishing the houses, thereby escalating tensions yet further. In contrast, the Council for Peace and Security witnesses suggested, by moving the fence closer to the green line and leaving the villages' fields on the Palestinian side, security would be served in both the broad sense (not inciting new Palestinian terrorism) and the narrow senseaffording IDF patrols a less dangerous mission.
The decision by the council (in the interests of full disclosure, I serve on the council's executive) to join the court action was not taken lightly. Three years ago it was this very same council that first proposed a West Bank security fence, albeit one that follows the green line. Moreover, retired IDF generals do not readily decide to challenge their successors in court. But in recent months council members were increasingly dismayed by the inclination of the Ministry of Defense (and indirectly the prime minister, who reportedly is involved in the minutiae of planning the fence's location) to locate the fence in ways that seemed to inflict maximum humanitarian deprivation on large numbers of Palestinians, and to ignore the resultant protests. While in the final analysis the High Court pointedly gave preference to the security arguments of serving rather than retired officers, the council's depiction of the injustices of the fence clearly carried a lot of weight in reinforcing the picture painted by the Palestinian plaintiffs. Last week's court decision is almost certainly not the last in which Council for Peace and Security members intend to weigh in regarding the location of the fence.
In fairness to the Ministry of Defense, it should be noted that several months ago it appointed a kind of ombudsman to deal with the humanitarian suffering inflicted by the fence on Palestinian farmers, schoolchildren, etc. That official, Brig. Gen. (res.) Baruch Speigel, who is prominently associated in civilian life with the dovish left, has been successful in a few cases in moving the fence back toward the green line. The High Court decision should strengthen his hand in internal Israel government bureaucratic battles.
A second significant aspect of the High Court decision is that it implicitly reaffirmed Israel 's right to build a fence for security -- but not political -- reasons. But within reason: the key test established by the court is proportionality between the satisfaction of Israel 's security needs and the state's obligations to the welfare of the occupied population in accordance with international conventions. "The route that the military commander established for the security fence... harms the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law," the court said. "This route has created such hardship for the local population that the state must find an alternative that may give less security but would harm the local population less. These alternative routes do exist."
The court did not rule regarding the sensitive issue of Israel 's right to seize Palestinian private land for the purpose of building the fence, indicating that this decision would be left for a future case.
The High Court ruling has already encouraged additional Palestinian towns and Jerusalem neighborhoods to challenge the route of the fence along similar grounds of proportionality. Moreover, the Ministry of Defense will now undertake on its own to reroute the fence in other areas in accordance with the spirit of the High Court's ruling. The timing of that ruling, less than two weeks before the anticipated decision (on July 9) regarding the fence by the International Court of Justice at the Hague , may or may not affect that court's decision. But as the lawyer for the plaintiffs pointed out, the State of Israel is not bound by the Hague decision, but it has to obey the ruling of its own High Court of Justice.
This was a landmark decision in which the three justices, led by Chief Justice Aharon Barak, were clearly torn between considerations of security and the need for justice under the law. "Our task is difficult", they noted in an epilogue. "We are members of Israeli society. . . . We are aware that in the short term, this judgment will not make the state's struggle against those rising up against it easier. But we are judges . . . we are convinced that at the end of the day, a struggle according to the law will strengthen [the state's] power and her spirit."
And the judges concluded: "Satisfying the provision of the law is an aspect of national security."
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Q. -- You pointed out three weeks ago that one key aspect of Israel's decision to disengage from the Gaza Strip is its desire to cease being responsible under international law for the approximately 1.5 million Palestinians who live in the Strip, and that the international aid community has in any case assumed de facto responsibility for the basic food and welfare needs of the Gazan population. How bad is the poverty picture there, and what can be done to defuse what is generally considered to be a menacing demographic time bomb?
A. -- I had the opportunity recently to participate in a discussion of the international donor community's future role in Gaza after disengagement. The picture painted by the aid experts is both complex and frightening.
First, and most daunting, demographers are now speculating (there is no way to count) that the Gazan population, which was thought to be doubling every 16 years, may actually be doubling in numbers in as little as half that time. One American academic expert on public health assesses that Gazans will need another 500,000 jobs in the next five years merely to remain at a level of 60% unemployment, and that an equivalent number, half a million Gazan Palestinians or 30% of the population, must be removed and resettled elsewhere in the course of the next five years in order for any peace plan to have a chance to work. One Palestinian NGO official agreed, suggesting that the Palestinians most pressing demographic problem was redistributing Gaza 's overcrowded population elsewhere, rather than reducing population growth.
This led to a brief discussion of birth control issues. For political reasons, according to an UNRWA expert, family planning programs -- which in any case clashed with the demands of Palestinian nationalism and were therefore never "politically correct" with the Palestinian public -- have been discontinued during the past three and a half years of intifada. But the experts agreed that unbridled population growth in Gaza is mainly a function of misery rather than the absence of family planning. Moreover, they pointed out, there is no correlation between success in reducing Palestinians' poverty rate and their support for peace. During the Oslo boom years of 1994-2000 incomes rose steadily -- while support for the process dropped constantly. (UNRWA, the United Nations Relief Works Administration, deals with the welfare and education needs of Palestinian refugees throughout the Middle East .)
The aid experts and officials were devastating in their criticism of the performance of both Israel and the Palestinian Authority -- and occasionally themselves -- with regard to Palestinians' economic welfare during the Oslo years. A World Bank official explained that the Oslo economic model that integrated Palestinian and Israeli labor and production, VAT rates, etc., could only have worked had there been no conflict and no settlement expansion. Ultimately it undermined Palestinian efforts at statebuilding, which in any case were meager, and led the donor community to connive in the establishment of a Palestinian patronage state. The rest, said the official, "is detail".
A Palestinian minister confirmed the ineptitude of Palestinians and the indifference of donors, but added "Israeli malice" as a factor in the Palestinian failure, alleging that Israel 's "veteran strategy" had been to dry up PLO resources from the early Oslo days and to hamper the functioning of the Palestinian Authority, using security as an excuse. The PA had ended up trying to "be resourceful without resources", he claimed, thereby giving it a bad image.
Yet another aid official, from UNRWA, contradicted this claim, showing that since Oslo the PA had virtually monopolized international aid funds at the expense of UNRWA, absorbing roughly double the donor commitments made to UNRWA yet failing to undertake UNRWA's task of feeding and educating the refugee population.
With so many accusations and counter-claims, small wonder that the Palestinian street is skeptical about aid. Survey data indicate that only half of Palestinians believe international assistance has lessened human suffering, while 45% believe that it has worked against the rights of Palestinian refugees. Fully 62% believe the donor countries and funding agencies have a hidden political agenda (e.g., supporting an oppressive Palestinian police force, perpetuating the Israeli occupation), and 78% believe that in any case they have never benefited from international aid.
Against this backdrop of futility, one official noted that only 20% of economic input to the Gazan economy comes from foreign assistance, and that even if donor assistance in Gaza were to be doubled for the next five years, it would only serve to reduce unemployment from 60% to 55%. Yet if the aid were to stop, he argued, the PA would cease to exist, Israel would not make up the aid differential, and ordinary Palestinians would be penalized without any new political dynamic emerging.
Still, the idea of ceasing aid activities as a means of obliging Israel to end all vestiges of occupation and open Gaza 's land, sea and air borders came up repeatedly. The purpose of aid, several officials noted, was to help usher in a viable two state solution. Yet such a solution is becoming increasingly unlikely due to Palestinian anarchy and violence, Israel 's settlement policies in the West Bank , and its intention of continuing to control Gaza from its perimeter after withdrawal. So why -- asked the aid officials -- prolong an aid project that most Palestinians do not respect, that Israel takes for granted despite its specific obligations toward the Palestinians under international law, and that has no chance at all of producing results in view of Palestinian population expansion and the lack of a peaceful atmosphere that might encourage investment?
The only answer offered was that a decision by the donor community to cut off aid would -- certainly in the short term -- make a lot of Gazans more miserable.
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Copyright © 2004 Americans for Peace Now
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See also:
http://www.peacenow.org/nia/briefs/QA070604.html
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This work is in the public domain |
