Fence Rulings: Democracy in Action

The legality of the Israeli security fence remains in the media spotlight, with two binding rulings issued by the Israeli Supreme Court last week, and an upcoming (July 9) ‘advisory opinion’ expected from the World Court at The Hague. At stake are two questions:

  • Is the proposed route of the fence fair to both Israelis and Palestinians?
  • More fundamentally, is the very construction of the security fence justified under international law?

Addressing the first question, the Supreme Court ruled that the fence should be re-routed in certain regions around Jerusalem to address humanitarian concerns. The army immediately complied.

Media reports were quick to convey this portion of the ruling. The Washington Post granted it front-page status, and the Associated Press issued a broadly-published report.

But these same media outlets were remiss in bringing to readers’ attention the much more fundamental, second ruling of the high court – upholding the fence’s legal justification as a security measure.

AP sets the tone for their article with the opening phrase:

Israel’s Supreme Court sided with the Palestinians in a precedent-setting decision Wednesday, ordering the government to reroute part of its West Bank separation barrier near Jerusalem because it causes too much suffering.

And the Washington Post mentions the court’s fundamental acceptance of the fence only as an afterthought ? in paragraph 18 of a 19-paragraph article ? stating that the court “did not find that the barrier was being constructed for political reasons, as Palestinians have alleged.”

This was soundly rejected by the Supreme Court:

We examined petitioners’ arguments, and have come to the conclusion, based upon the facts before us, that the Fence is motivated by security concerns … Petitioners, by pointing to the route of the Fence, attempt to prove that the construction of the Fence is not motivated by security considerations, but by political ones. They argue that if the Fence was primarily motivated by security considerations, it would be constructed on the “Green Line,” that is to say, on the armistice line between Israel and Jordan after the War of Independence. We cannot accept this argument. The opposite is the case: it is the security perspective and not the political one. which must examine a route based on its security merits alone, without regard for the location of the Green Line.

Yet the Washington Post downplays, and the Associated Press completely omits, this crucial part of the court’s ruling.

Comments to Washington Post: letters@washpost.com

Comments to AP: feedback@ap.org

[The New York Times‘ Joseph Berger, on the other hand, should be commended for accurately representing the court’s full ruling in his second sentence: “The unanimous decision by the three-judge panel asserted that Israel has a genuine security reason for building the barrier and can expropriate land in the West Bank for it.”]


Last week’s Supreme Court ruling demonstrated, perhaps better than any event in the recent past, the power of Israeli democratic process to address security vs. human rights concerns. The judges themselves emphasized the dilemma they faced:

Our task is difficult. We are members of Israeli society…We are aware of the killing and destruction wrought by terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state’s struggle against those rising up against it easier.

This Israeli democratic process was in sharp contrast to a development on the Palestinian side last week. A Palestinian Authority organ called the Supreme National Committee for the Protection of the Right of Return’ determined that Palestinians living in refugee camps should not have the right to vote in local elections. The PA daily paper, Al-Hayat Al-Jadida explained why:

The committee justified its objection as protecting the unique status of the refugee camps in Gaza and the West Bank, considering them testimony to the crime that the occupation state made against our nation for 56 years. The committee warned of the dangers of integrating the refugee camps into the urban housing units.[via PMW]

That is, the PA plans to deny democratic voting rights to hundreds of thousands of Palestinians, so that this impoverished population can continue to be used by the Arab ruling class as a weapon to fight against Israel, as ‘testimony to a crime.’

Consider the irony: The Israeli court issues a ruling out of concern for Palestinian human rights, while the PA’s own ruling sets back Palestinian human rights.

This is the same Fatah-led PA under whose authority a public lynching of an alleged ‘collaborator’ occurred on a Qabatiya street last week (pictured at right).

Washington Post columnist Richard Cohen compares the Israeli Supreme Court decision with the U.S. Declaration of Independence’s assertion of “life, liberty and the pursuit of happiness.” Writes Cohen:

The Israeli Supreme Court did something similar, although with more explicit language. “There is no security without law,” it wrote. Bear this decision in mind, please, when next someone refers to the Israelis as “Nazis” or otherwise talks about the nation as if it were a thuggish dictatorship …

The early Zionists wanted Israel to be a light unto other nations. The other day, it was.

As legal issues surrounding the Israeli security fence continue to make headlines, HonestReporting encourages subscribers to write letters to your local media outlets, emphasizing Israel’s democratic struggle to balance security needs with human rights.


David Gerstman contributed to this HonestReporting communique.