Israel's Security Barrier: An International Comparative Analysis and Legal Evaluation

Article excerpt

I. INTRODUCTION

Some call it a fence. Others call it a wall. Some see an outrageous land grab disrupting thousands of lives,1 an "apartheid" scheme2 with intent to expel3 the residents living on one side4 and to imprison residents living on the other.5 Others look upon it as the ultimate passive, non-violent solution that will save lives, that will protect themselves and their children from the ongoing horror of suicide bombings and other deadly terror attacks.6 These are the incongruent perceptions of Palestinians and Israelis to the fence/ wall7 that Israel is constructing between the two populations in the occupied/disputed8 territories of the West Bank.

Whether it is called "terrorism," "an armed struggle against occupation," or "jihad," violent attacks by armed groups aimed at civilian populations and non-military targets constitute a new life-anddeath challenge worldwide. To meet this challenge, states on the front lines in the global war on terrorism are taking defensive measures. These measures, designed to reduce the threat created by sustained waves of terrorism, include minefields, berms, trenches, buffer zones, barbed wire, sensors, sandbags, neutral zones, cement-filled pipelines, fences, and fortifications. Saudi Arabia, for example, is constructing a security barrier that includes cameras and other electronic sensing devices along its disputed border with Yemen that "is part of a larger plan to erect what will be an electronic surveillance system along the entire length of the Kingdom's frontiers . . . involving fencing, cameras and other electronic detection equipment."9 In 1999 Russian forces began digging a sixtyeight mile trench bounded by a barbed-wire fence and reinforced by surveillance towers to protect against attacks by Chechen rebels.10 Similarly, in response to Pakistani-supported terrorist infiltration,11 India has been engaged in the construction of an electrified12 security fence in disputed Kashmir that extends for hundreds of miles.13 Fences and other barriers have also been constructed for other reasons in many other parts of the world. Thus, for example, the United States has built a barrier between it and Mexico as part of the struggle to control illegal immigration and drug trafficking, [s]ome sections [of which] are concrete, others sheet metal. The barrier is three layers deep in parts, fifteen-feet high, and surrounded by razor wire. The area around it is lit by searchlights, monitored by cameras, motion detectors, and magnetic sensors, and patrolled by armed guards with attack dogs.14

For similar reasons, an electrified fence ten15 to twelve16 feet high is currently under construction between Botswana and Zimbabwe,17 and is expected eventually to "snake across 300 miles of desert scrub."18 This Article discusses in detail these as well as many other examples of barriers.

While such barriers are rarely covered or even mentioned in the media, the security barrier under construction today by Israel is currently the focus of much of the world's attention. The United Nations security Council (security Council) not long ago considered a draft resolution19 claiming that Israel's barrier violates international law and that its construction "must be ceased and reversed."20 The draft resolution was defeated.21 Then, on October 21, 2003, the United Nations General Assembly (General Assembly) adopted a resolution that "demanded 'Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory.'"22 Subsequently, in a controversial move, the General Assembly on December 8, 2003, requested the International Court of Justice (ICJ) to render an advisory opinion23 on "the legal consequences arising from the construction of the wall being built by Israel."24 Consequently, the ICJ took up the case to issue a nonbinding advisory opinion, and, in its Order Organizing the Proceedings, specifically stipulated that "it is incumbent upon the Court to take all necessary steps to accelerate the procedure" on the matter. …