Last week's judgment by the International Court of Justice on Israel's West Bank separation barrier -- known to Palestinians as the apartheid wall -- may emerge as the most important development in the Israeli-Palestinian conflict in years. While advisory in nature, the conclusion that the barrier is illegal may spawn actions by the international community to compel Israeli compliance. In 1971, just such an opinion regarding South Africa's illegal occupation of Namibia led to diplomatic pressure, boycotts and other forms of nonviolent resistance against the apartheid regime, eventually contributing to peaceful democratic transformation.
Israel began construction of the barrier in 2002. It consists of a road, trenches, barbed-wire fencing, electronic sensors and a concrete wall as high as 24 feet. Palestinians, together with much of the world, suspect this is a step in an Israeli plan to permanently annex much of the West Bank. (Israel occupied the West Bank in 1967, but the United Nations has designated the territory for Palestinian national self-determination.) Meanwhile, the officially announced purpose of the wall was to prevent infiltration by Palestinian attackers from the West Bank.
While some might have preferred negotiations to enforced segregation, no legal quarrel would have erupted had Israel placed the barrier along its roughly 200-mile West Bank border. But it chose to build the barrier substantially within the West Bank, on Palestinian land.
The planned wall is not linear, with Israelis on one side and Palestinians on the other. Instead, if completed, the barrier will stretch some 400 miles and completely encircle Palestinian population centers in the West Bank. Israel will control all access of people and goods in the Palestinian enclosures. About 43 percent of the West Bank will remain outside the Palestinian areas under Israel's control. In several places, the barrier cuts deep into Palestinian territory to protect Israeli settlements, long condemned as illegal by the international community.
About 120 miles have been built to date, with devastating human impact. According to the Negotiations Affairs Department of the Palestine Liberation Organization, about 8,000 acres of Palestinian land have been seized for the structure. More than 100,000 trees -- olive and citrus, among others -- have been uprooted. Seventy-five homes and 124 businesses have been destroyed. More than 25,000 acres of Palestinian agricultural land and 50 wells lie on the Israeli side of the wall, to which the Palestinian owners have tightly restricted access.
Israel has established discriminatory regulations that permit Jews freedom of movement in areas near the wall, while requiring special permits of Palestinians. Palestinians have been unable to reach vital educational, health and other social services. Economic activity has been severely disrupted. The Israeli human-rights group B'Tselem estimates that 875,000 Palestinians will be impacted by the wall. As some commentators familiar with South Africa have noted, what is emerging in the West Bank is a form of apartheid -- only in aggravated form.
The international court heard this case following an urgent request from the U.N. General Assembly in December. Israel, backed primarily by the United States, refused to participate in oral pleadings, objecting to the court's jurisdiction on the ground that the case was political, not legal. The 15- member court -- with esteemed judges representing the world's major legal systems -- rejected Israel's procedural challenge on a vote of 14 to 1. By identical margins, it found that the barrier, as constructed, violated international law, and that Israel must cease building activities immediately, remove existing portions and pay compensation to Palestinians.
The near unanimity on the points of law amounts to a repudiation of the legality of the barrier. Even the lone dissenter, American judge Thomas Buergenthal, did not defend the barrier as lawful. Rather, he believed the evidence insufficient to reach a finding. Significantly, he, too, affirmed that Israel's West Bank, East Jerusalem and Gaza Strip settlements were illegal under the Fourth Geneva Convention, and that any parts of the wall designed to protect settlements would likewise be illegal.
Vindication of their grievances by the world's highest legal authority restores hope to Palestinians that nonviolent, legal means of struggle for their rights can bear fruit. That is a truth in which Palestinians -- who have appealed to the world's conscience for decades, garnering countless U.N. resolutions that failed to stem the intensifying discrimination, violence and economic strangulation they suffer -- have sometimes lost faith. Empowering the peaceful and law-abiding segments of the Palestinian national movement can only benefit the region, as well as the rest of us whose fates are tied closely with it.
George Bisharat, a professor at Hastings College of the Law in San Francisco, writes frequently on law and politics in the Middle East.
©2004 San Francisco Chronicle