a conversation with Michael Eitan

bitterlemons: How do you explain the radical difference between the fence decisions/recommendations of the Israel High Court of Justice and The Hague International Court of Justice ?

Eitan: The subject we are dealing with is not purely judicial. As a matter of fact, every judicial expert will tell you that you cannot disconnect the judicial process from its social, human, and economic environment. This is one of the cases that can demonstrate how two independent judicial systems come to different conclusions based on the same set of facts. The international court was constrained from the beginning by the way the case was presented for its judgment. The international court did not use the judicial tools that the Israeli court used.

bitterlemons: Let's begin with the Israeli court.

Eitan: The Israeli court used the mechanism of balancing between two principles and rights. On the one hand, the right of Israel to defend itself from terrorism, its right of self defense, and its humanitarian approach that justifies measures in order to save lives--and there is no doubt the fence has succeeded in saving lives. And on the other, the fact that the fence caused inconvenience and damage and was a massive intrusive element in the lives of groups of people. The question the Israeli court dealt with was the best route to balance these two factors.

bitterlemons: And the international court?

Eitan: The international court decided to concentrate on another issue and deal with the fence through the question of the rights of an occupying power. By ruling that Israel should destroy the present fence and move it to the green line, the international court took a one-sided and extreme decision that is political because it prefers the political aspect over the security aspect.

bitterlemons: What could the Sharon government have done to prevent the decisions?

Eitan: Regarding the Israel High Court of Justice decision, they could do nothing. Israel is a democracy committed to the rule of law, and High Court decisions are binding for the government. In The Hague, Israel had no chance of getting a fair and reasonable comprehensive approach to the problem.

The whole idea of building the fence was a response to barbaric terrorist acts. Around 1000 Israelis were killed and thousands wounded before Israel started to build the fence. The court didn't mention this and did not note the terrorist phenomenon, which was the only reason to build the fence. As Israelis we can say that in spite of the inconvenience and even humanitarian suffering that the fence has caused to many Palestinians, it has saved hundreds of Israeli lives and the same number of Palestinian lives: after, every suicide bomber succeeds in taking Israeli lives, Israel responds by launching attacks on Palestinian villages and terrorist centers that also take a toll in Palestinian deaths.

bitterlemons: What can the Knesset and your committee do in the current situation?

Eitan: Our committee deals with many aspects of the Israeli presence in the West Bank. We try to do our best to maintain human rights even in the war against terrorism, and are supervising the conduct of the Israeli security forces in the West Bank and trying to influence this conduct according to morality and international law. When you are fighting terrorism you face very complex dilemmas.

Now, after the courts have had their say, the issue becomes a political one. We have to remember that the Israeli court decision is binding on the Israeli government, but The Hague court decision is only a recommendation and doesn't bind Israel. The decision will be transferred to the international political arena, to the United Nations, presumably by the Palestinians and their supporters. This is the next arena where Israel will have to fight against the practical results, if there are any, using political tools. I hope that the many democracies that opposed or expressed reservations regarding The Hague judicial process will now make more effort to block any attempt by the UN to impose sanctions on Israel.

bitterlemons: Will the fence end up on the green line?

Eitan: I don't think it's possible for Israel. The Hague court didn't take into consideration the fact that there are many Jewish settlements near the green line that Israel should protect. There are more than 100,000 Jews living on territory that, according to international and Israeli law, is beyond the green line but is still under the authority and jurisprudence of the State of Israel. Taking this position and ignoring the political dispute is an attempt to isolate the judicial process from real life on the ground; it risks the lives of more than 100,000 Jews that are living adjacent to the green line, for whom the fence on its planned route is their only security guard.

We have to take into consideration that almost everyone in the area and in the international community that has some involvement in the continuous dialogue between the Palestinians and the Israelis knows that under any final status agreement this dense Jewish population will be included within the sovereignty of Israel. We are talking about territories that constitute perhaps four or five percent of the West Bank. -Published 12/7/2004©bitterlemons.org

Member of Knesset (Likud) Michael Eitan is chairman of the Knesset Constitution, Law, and Justice Committee.

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