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Brief to the Security Council By: Evelyn Gordon
The Jerusalem Post | Friday, October 17, 2003

International hypocrisy with regard to Israel is nothing new, but it has reached new heights over the separation fence that Israel is building in an effort to protect its citizens from suicide bombers. This fence has drawn universal international condemnation, on three main grounds - all of which are patently false.

The first claim, as the European Union's foreign-policy chief, Javier Solana, said last Thursday, is that the fence, which involves the expropriation of property in the West Bank, is not "consistent with international law."

There is no disagreement within the international community that the particular bit of international law governing the West Bank is the Fourth Geneva Convention (though Israel disputes this, it has voluntarily agreed to apply the convention's humanitarian provisions).

Yet the convention does not ban the expropriation of land in occupied territory completely; it bans only "extensive destruction and appropriation of property, not justified by military necessity" (italics added). In fact, it explicitly permits the occupying power to "subject the population of the occupied territory to provisions which are essential to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them."

It is difficult to argue that protecting one's own civilian population from brutal suicide attacks is not a legitimate military goal. Indeed, the protection of one's own citizens is universally recognized - except, for some reason, when it comes to Israel - as the most legitimate of all military goals. But the argument is even more absurd given that one of the fence's main "bulges" into the West Bank is designed to keep Ben-Gurion Airport, which handles 99 percent of Israel's aerial traffic, out of the reach of terrorists with shoulder-launched missiles. It is hard to imagine any country that would not define defending its only international airport as a vital military necessity.

The second argument, which US Secretary of State Colin Powell in particular has made repeatedly, is that Israel is building the fence on land that belongs to the Palestinian state-to-be. Yet in fact, the only binding international document that has ever assigned sovereignty over this land is the 1922 League of Nations Mandate for Palestine - which assigned the entirety of what is now the West Bank to the future Jewish state. Not a single binding document has ever assigned the land to the Palestinians.

The 1947 Partition Resolution, though it did call for a Palestinian state in this area, was nonbinding on two counts: because it was a General Assembly rather than a Security Council resolution, and because the Palestinians themselves unequivocally rejected the partition plan, thereby making it null and void.

As for Security Council Resolution 242, passed after Israel conquered the West Bank in 1967, this resolution did call for Israel to withdraw "from territories occupied in the recent conflict," but, notably, not "the territories" - a wording that, far from being accidental, was deliberately chosen by the sponsors (the US and Britain) to allow for the possibility of Israel keeping some of this land under a future peace agreement.

FURTHERMORE, the resolution made no mention of who should receive sovereignty over any portion of the West Bank from which Israel did withdraw. In fact, those lands had no recognized sovereign at the time, since prior to the Israeli conquest, they had been occupied by Jordan - and only two countries in the world (Britain and Pakistan) ever recognized Jordan's occupation as legal.

Thus the claim that this land has been recognized as Palestinian territory has no basis whatsoever under international law.

Finally, there is the claim, to quote Powell again, that construction of the fence would "prejudge subsequent negotiations" over the borders of a Palestinian state. That might actually be a valid argument, had the entire world not already prejudged the negotiations by declaring this land to be Palestinian.

Israel has made no secret of the fact that under any deal, it would like to retain a small amount of the West Bank containing the major settlement blocs, of which Ariel - the most hotly disputed part of the fence - is one. Even former prime minister Ehud Barak, who conceded wholesale to Palestinian demands on Jerusalem, insisted on this, and no subsequent prime minister is likely to be more dovish.

Bill Clinton's December 2000 bridging proposal also assigned this land to Israel, and the Palestinians reportedly consented to this (the talks broke down not over borders, but over the Palestinians' demand for a "right of return" for refugees and their refusal to acknowledge a Jewish connection to the Temple Mount in exchange for receiving full control over the site).

Yet now, with not only Europe but even Powell insisting that this is Palestinian territory, for Israel to stop building the fence would be tantamount to acknowledging that it accepts their definition of these areas as part of the future Palestinian state. Building the fence, in contrast, prejudges nothing, since it can always be moved pursuant to a peace agreement - as Israel proved when it dismantled its Sinai settlements following the agreement with Egypt. Thus the world has created a situation in which not building the fence would prejudge the negotiations' outcome far more than its construction would.

When it comes to Israel, the world does not seem to be overly concerned with facts.

The writer is a veteran journalist and commentator.

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