Israeli Court orders part of barrier torn down

[Scurrilous]

http://www.forbes.com/home/feeds/afx/2005/09/15/afx2225653.html

<snip>

"The supreme court on Thursday ruled that a section of Israel's separation barrier be dismantled in the northern part of the occupied West Bank to enable Palestinian villagers to move freely.

The court ordered that a portion of the barrier near the Palestinian town of Qalqilya be torn down because it effectively imprisons thousands of Palestinian villagers and cuts them off from the rest of the West Bank.

The unanimous decision from the nine chief justices ordering the construction to be re-routed near the Jewish settlement of Alfei Menashe in effect calls for the dismantlement of the barrier already built in the area.

The ruling comes more than a year after the UN International Court of Justice issued a non-binding ruling that parts of the 650-kilometre barrier which criss-crosses the West Bank were illegal and should be torn down."

[eyl]

1. Also worth noting

However, the Court also ruled that a previous decision on the fence by the International Court of Justice is non-binding.
:
The extended nine-judge panel made the decision unanimously. The Court said the decision was based on the harm done to Palestinian villages and not on the ICJ ruling on the matter.

However, the judges ruled that the ICJ decision was flawed and one-sided, and failed to discuss Israel’s security needs. The High Court said the fence should not be examined as a whole, but rather, attention should be given to each section.

Source

Some further discussion of this in the verdict (note: this is my translation of the Hebrew verdict - red comments are mine):

61. The main difference between the two verdicts (i.e. the ICJ's and the High Court's) mainly stems from the difference in the factual basis according to which each one of the courts ruled. Once again, the simple truth that facts are at the basis of judgment, and judgment arises from the facts (ex facto jus oritur) is proven. The ICJ drew the factual basis for its ruling from the (UN) Secretary-General's report, from the supplementary report, the Dugard report and the Zigler report. The High Court derived the facts from the information brought before it by the Palestinian plaintiffs on the one hand and the State on the other. As well, the Court received opinions from military experts, who asked to present their position as "friends of the court". Although the information both courts received address the same fence/wall, the difference between them is profound. This difference is what led, at the end, to contradictory legal conclusions. From what does this difference arise?

62. The first and most important difference concerns the security-military need for erecting the fence. (The rest of the paragraph is a review of the security needs brought up in the Beit Sourik case, and the High Court's ruling in that case that the barrier has a security purpose)

63. The security-military need is barely mentioned in the sources the ICJ relied on for its ruling. The Secretary-General's report devotes a single line to it, saying that following the increase in Palestinian terrorism in the Spring of 2002, it was decided to erect the fence. The supplementary report does not mention the security-military need at all. The Dugard and Zigler reports contain no information on this issue. In the State of Israel's written arguments before the ICJ on the question of authority and discretion, information regarding terrorism and its consequences was presented, but this information did not find its way into the ruling itself. This poor factual basis found its way, of course, into the ruing itself. It contains no substantial reference to the security-military aspect. In one paragraph (116), the ruling mentions that Israel claims that the purpose of the wall is to allow effective fighting against terrorism coming from the East, but no more. (The remainder of the paragraph repeats the paragraphs from the ICJ decision (135-137, 140) which state that the ICJ found that on the basis of material available to it (underline in source) it was not convinced the route was necessary).

64. This paragraph reviews the statements in the separate opinions of Judges Burgenthal, Kooijmans, and Owada, that they felt the ICJ ruling failed to sufficiently address the Israeli side of the matter

The following paragraphs speculate briefly as to the cause of the lack of a factual basis, as well as pointing out that some of the information regarding the harm to the Palestinian population was inaccurate, and the lack of an adversarial process at the ICJ hearing

The above was written by Judge Barak. Judge Heshin, in his opinion, was less charitable (same link, at the end of the document):

4. As we saw in my fellow's review, the factual basis on which the ICJ built its ruling - was a shaky basis. Some might say it has no worthy basis at all. The ICJ made its findings on the basis of general opinions, its findings - are general and vague, and it seems - unlike the ICJ's usual manner - it is not proper to base a ruling - on inconsequential matters as on matters of importance - on findings such as the findings the ICJ base its ruling on. The generality and vagueness characterizing the ruling in its factual aspect are not among the signs which are worthy of being presented in a legal opinion or judgment. Furthermore: this generality and vagueness create a hefty emotional dimension which should not be present in a judicial judgment. I will also add, that because of this the ruling is colored with a political tinge that a judicial decision should avoid as far as it can. And if these are not enough,, take the ICJ's almost complete ignorance of the security problems and the terrible terrorism which Israel has suffered - and I will add: almost blatant disregard - this disregard is strange. I can only agree with Judge Burgenthal - and partly with Judges Higgins and Judge Kooijmans and Judge Owada - that the factual basis on which the judgment was built is so threadbare that there is no place to determine a judgment according to it, even an (judicial) opinion. As Judge Burgenthal says (1st paragraph of his separate opinion):

... I am compelled to vote against the Court’s
findings on the merits because the Court did not
have before it the requisite factual bases for its
sweeping findings; it should therefore have
declined to hear the case…

And so later on (see paragraph 64 of the president's opinion (Barak's ruling above). I am sorry, but the ICJ's decision cannot light my path. Its light is too dim for me to guide myself according to it in order to reach true and just justice in the manner of a judge as I learned from my predecessors and at my father's house.