Brief to the Security Council
By EVELYN GORDON
The following is an attempt to summarize Evelyn Gordon's article. Her article can be read in entirety at:
http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1066025344818
According to Evelyn Gordon, there are supposedly 3 aspects of international law that are contravened by the separation fence:
o The fence--which involves the expropriation of property in the West Bank--is not consistent with international law.
o Israel is building the fence on land that belongs to the Palestinian state-to-be
o Construction of the fence would "prejudge subsequent negotiations" over the borders of a Palestinian state.
The Fence IS Consistent with International Law
According to the international community, the aspect of international law that governs the West Bank is the Fourth Geneva Convention. However, instead of a blanket ban on the expropriating of land in occupied territory, the convention only bans "xtensive destruction and appropriation of property, not justified by military necessity." The Fourth Geneva Convention actually states the the occupying power may "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."
Assuming that international community is not suggesting applying a double standard to Israel, protecting one's civilian population from terrorist attacks is no less a right of Israel than the other countries currently the target of Islamist terrorism. This is especially important given that one of the 'encroachments' of the fence is designed to protect the Ben Gurion airport which handles 99% of Israel's air traffic, and is intended to keep the airport out of the reach of terrorists with shoulder-launced missiles.
The Land Israel is Building on DOES NOT belong to the Palestinian state-to-be
There is no binding document that assigns the area to the Palestinian Arabs. Instead, there is only one binding international document that deals with sovereignty in Palestine and that is the 1922 League of Nations Mandate for Palestine--and that assigns the West Bank area to the future State of Israel. The 1947 Partition Resolution did call for a Palestinian state in that area for the Arabs, however it was a General Assembly resolution--not a Security Council resolution--and was non-binding. More importantly, at the time the Palestinians themselves rejected the partition plan in toto, thus making null and void. Security Council Resolution 242, passed after Israel conquered the West Bank in 1967, called for Israel to withdraw "from territories occupied in the recent conflict" while not from 'the' territories--with the intent that Israel keep part of the land under a future peace agreement.
If indeed the international community is interested in international law, then it is important to note that that Resolution 242 does not indicate who would get sovereignty over whatever part of the West Bank Israel would withdraw from. The West Bank had no recognized sovereignty at the time, since before Israel conquered it, the West Bank had been illegally occupied by Jordan--only Britain and Pakistan ever recognized Jordan's occupation as legal; according to the international community, Jordan's occupation of the West Bank was illegal.
There is no basis under international law to say that the West Bank has ever been recognized under international law.
Construction of the fence DOES NOT prejudge subsequent negotiations over the borders of a Palestinian state
To say that the construction of the fence would prejudice subsequent negotiations over the borders of a Palestinian state would only be valid if the entire world not already prejudged the negotiations by declaring this land to be Palestinian. However, with both Europe and Powell insisting that the West Bank is Palestinian territory--to stop building the fence would be to acknowledge that Israel accepts their definition of these areas as part of the future Palestinian state.
Instead, building the fence, prejudges nothing, since it can always be moved pursuant to a peace agreement. Israel has proven this in the past when it dismantled its Sinai settlements following the agreement with Egypt.
Ironically, the world has created a situation in which not building the fence would prejudge the negotiations' outcome far more than its construction would.