Thu, Mar 04, 2004 page9

• The solid but regrettable argument for Israel's security fence

  • By George Fletcher
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  The International Court of Justice has completed its hearings on the legality of the barrier Israel is building in the occupied West Bank. This is an isolated question among many larger issues that await a negotiated peace agreement.

  Who has the right to what land? Do Palestinian refugees and their descendants have a right to go back to what is now Israel? Do Jews have a right to settle in the West Bank?

  Basic issues of justice -- such as the right of each side to live with dignity and security -- are, of course, important in any peace agreement. But most of them are interrelated, and it is unlikely that the court can resolve them when they are truncated into technical arguments about where a defensive wall can or cannot go.

  Even so, now that the issue has been put before the court, it must be discussed. Although the world expects a negative decision, Israel can muster a sound legal case.

  If the fence followed the 1967 boundary there would be few objections. But, because it runs partly through the West Bank and protects not only people living in Israel, but also the settlers in the occupied territories, Israel stands accused of an illegal "land grab."

  The argument against the fence on the West Bank assumes that the settlers are there illegally and therefore are not entitled to the protection of a defensive barrier. As the Jordanians put it in their written submission, "no right of self-defense ... can be invoked in order to defend that which is itself unlawful."

  There is something clearly wrong with that argument. As a political matter, I oppose the settlements. Most, if not all, of them will have to come down in the ultimate compromise that will emerge someday. But the argument about legality is more complicated.

  To be sure, Article 49 of the Fourth Geneva Convention provides that an occupying government "shall not deport or transfer parts of its own civilian population into the territory it occupies." But as the parallel language of "deport or transfer" suggests, the more plausible reading is that the letter of Article 49 applies only to forcible transfers, not to settlements that are voluntary.

  At least until recently, the international community assumed this to be the likely reading of Article 49 because, in drafting the crimes subject to prosecution in the International Criminal Court, the concept of transfer was expanded to include the occupying power's "direct and indirect transfer" of its population into occupied territories.

  This language, in force since July 2002, arguably applies to official Israeli policies that promote "indirect transfer" by providing financial incentives to voluntary settlers.

  Suppose that in this limited sense the settlements are unlawful. Does that mean that the settlers are sitting ducks who can be attacked with impunity and have no right to defend themselves? To say yes is to subscribe to a curious concept of collective responsibility. Even if some Israeli officials are guilty of a crime in encouraging settlements, does that mean that the settlers must be viewed as complicit?

  True, some made an ideological choice to colonize "Judea and Samaria," as they call it, but others are ordinary people seeking a better life for their families. Their motives are too diverse to be reduced to any single stereotype. Indeed, some settlements are more than 25 years old and many settlers are a second or third generation of people living in the region.

  Are they, as well as children brought there by their parents, collectively guilty just because some officials might have violated the Rome Statute since July 2002?

  Further, even if the conduct of Israeli officials is judged to be illegal, and even if some settlers are willing tools of Israeli policy, civilian settlers cannot lose their right of self-defense -- certainly not against terrorists who are violating international law by targeting innocent people both inside of Israel and in the occupied territories.

  The only way in which civilians could ever lose the right of self-defense would be if they, as individuals, were engaged in actions threatening imminent harm to others. Whatever one thinks of the settlers, they, in their daily routine, are not engaged in a pattern of threatening to kill or assault anyone.

  So if the settlers have a right to self-defense, is the fence an acceptable means of realizing that right? Although it imposes hardships on others, the fence is a plausible means of protection against suicide bombers. It is neither disproportionate nor excessive.

  The best argument that the Palestinians could make against the fence is to make it unnecessary by suppressing suicide bombings. Someday, Israel's adversaries will abandon their policy of homicidal self-destruction. When they do, there will be a very good legal and moral case for the fence to come down.

  The legal case for the fence is solid but regrettable. The fence is not only a physical reminder of the divide between the area's peoples, but also a cause of suffering for innocent Palestinians who are cut off from their fields, their jobs, and their families. The fence assumes that they, as a people, are the source of the deadly threats to the settlers.

  Thus reigns the collectivist mentality that drives the unending feud between Jews and Pales-

  tinians. Not all Jews are guilty for the actions of a clique that might have violated international law. Nor should all Palestinians suffer as though they acted as a single entity, posing a collective terrorist threat. Only negotiations, not legal bickering, can put an end to this iniquity.

  George Fletcher is professor of jurisprudence at Columbia Law School. His latest book is American Law in a Global Context: The Basics.

  Copyright: Project Syndicate
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