Q. Do the attacks from and towards Gaza indicate the redeployment was a mistake? Q. How does the Israel High Court of Justice decision on the security fence compare with last year's advisory by the International Court of Justice in The Hague?
Q. Over the weekend Hamas fired 35 Qassam rockets from Gaza at targets in Israel, and Israel renewed targeted killings in Gaza and threatened to retaliate with artillery. Does this indicate that the Gaza redeployment was a mistake?
A. In a word, no. But PM Sharon has maneuvered himself into a position where he is liable to pay dearly for his success in leaving Gaza.
The weekend violence was the inevitable outcome of the holes in the internal Palestinian ceasefire agreement, the weakness of the Palestinian Authority in dealing with armed militants, and Sharon's resolve to retaliate harshly for violence from Gaza and to oppose the attempts of PA/PLO leader Mahmoud Abbas to coopt Hamas into the Palestinian political system.
The military picture is straightforward, and not unusual. The escalatory spiral began last week with an Israeli attack on Islamic Jihad militants in Tulkarm on the West Bank that led to the deaths of three terrorists. Islamic Jihad does not observe the ceasefire and continues to plan suicide bombings and other attacks, which PA security forces do little to impede. Islamic Jihad responded by firing a few rockets from Gaza into Israel, thus heating up the atmosphere. Then a Hamas military parade in Jebalya refugee camp in Gaza ended in heavy casualties when a pickup truck loaded with rockets blew up accidentally, killing at least 15 Palestinians, including children. The parade violated Abbas' directives. The latter, to his credit, blamed Hamas, for once taking Israel's side. But Hamas insisted Israel had caused the explosion and proceeded to launch its Qassams, with PA forces standing by helplessly. The Cabinet, responding to Sharon's demand to create a new and more powerful deterrent against violence emanating from Gaza, approved Israeli artillery retaliation as well as the clearing of no-man's land areas inside the Gaza fence. Israel also attacked a variety of Palestinian terrorist targets in Gaza from the air, and arrested some 300 Palestinian militants in the West Bank. Most were Hamas members, including candidates in coming Palestinian elections.
The weekend violence provided timely ammunition for Binyamin Netanyahu's attempt to unseat Sharon from the Likud leadership, a move almost certain to catalyze new elections. That process is scheduled to come to a head on Monday, Sept. 26, when the Likud Central Committee votes to decide whether to hold early leadership primaries (Netanyahu's demand) or not (Sharon's position). If Sharon loses the vote (the results will not be known before midnight Israel time on Monday) he is almost certain to resign from the party and form a new center party, and is likely to seek early elections. If Netanyahu wins and Likud primaries are moved up, the result will also almost certainly be elections. In any event, Netanyahu now claims that he was right to warn that disengagement would reward Hamas and provoke new and worse violence.
Sharon's dilemma in this regard is that he allowed the Israeli public to believe that disengagement would be good for security, without articulating clearly what he means. In fact it was obvious from the outset that the pullout would not necessarily reinforce the ceasefire, and that more violence was likely. It was also clear that disengagement is very good for demographic security, but Sharon never convincingly stated his case on this issue, apparently because he would be hard put to explain to the public why, if demography is the issue, he built the Gaza settlements in the first place. Nor could he respond to Netanyahu's repeated reminders of the Hamas claim that it had expelled Israel from Gaza--by acknowledging that Israel and its settlements should never have been there in the first place, and that Jerusalem should have withdrawn long before the current violence began. So he set himself up for criticism the moment violence was renewed.
Sharon can now claim that Israel is much better positioned to fight terrorism in Gaza. There are no settlers there to be "held hostage" by Palestinian terrorists, the PA's obligations to prevent terror are more clear-cut, and Israel can deal with terrorism from Gaza and address the PA's security failings there without the constraints of operating in occupied territory. Nevertheless, the timing of the violence was particularly unfortunate for Sharon, coming two days before his critical confrontation with Netanyahu, which in turn could ultimately affect future West Bank disengagements or negotiations with the Palestinians. Sharon's speech to the Likud Central Committee on Sunday--the speech he never gave due to a sabotaged sound system--sought to set the record straight regarding Gaza, violence, and demography.
If past experience is anything to go by, even an escalated Israeli military reaction to Hamas violence emanating from Gaza will not deter Hamas, which does not hesitate to jeopardize the lives and wellbeing of multitudes of Gazans. In this regard, the IDF has still not found a complete military solution to Palestinian terrorism, and can only hope to reduce Hamas' efficiency by targeting its leadership and operational command, as it did effectively in the past.
This tactic also now appears to focus on the newly emergent Hamas political leadership, which intends to lead the movement in additional local elections later this week and then in the January 25 elections for the Palestinian Legislative Council. Sharon has staked out a problematic position in announcing to the world that Israel will obstruct PLC elections if Hamas participates: not because the violent radical Islamist organization deserves to participate, but because Abbas has staked his future on these inclusive elections and the Bush administration is backing him. While the current flare-up will likely calm down, Hamas' post-disengagement aggression against Israeli targets is liable to give Sharon a tempting opportunity to mix war with politics, with potential ramifications for PA stability and for Bush's regional reform program.
Q. How does the September 15 Israel High Court of Justice decision on the security fence compare with last
year's advisory by the International Court of Justice in The Hague?
A. The September 15 decision is a landmark in terms of the status of the fence from an Israeli legal standpoint, because for the first time the High Court pronounced on issues of principle related to the fence. Hence it is possible to compare it to the ICJ decision.
The ICJ determined that Israel had not built the fence purely for security reasons, and that in any case the barrier constituted a violation of international law and must be torn down, insofar as it was built in occupied territory. The Israel High Court, in contrast, found that the fence was built for security reasons, that this is a legitimate instrument even in occupied territory where the local military commander is obligated to maintain public order, and that the location of problematic parts of the fence that cause hardship to Palestinian civilians can and should be reassessed by Israel on a case-by-case basis, with the IDF obliged to exercise "proportionality" in balancing Israel's security needs with humanitarian concerns. While the proportionality part of the ruling reiterates a previous High Court decision from 2004, the rest of the new High Court decision breaks new ground in determining the legal status of the fence and its course.
The High Court backed up its ruling by assessing that the ICJ had not given proper consideration to Israel's security needs, which were undervalued because the Hague court based its decision largely on UN observer reports and Palestinian arguments. While the High Court leveled justified criticism at the Sharon government for boycotting the ICJ deliberations (a "serious omission"), thereby allowing this distortion of Israel's security needs to take root, it nevertheless found fault with the ICJ for ruling on the basis of an incomplete "factual infrastructure".
Perhaps most significantly at the international level (where Israel High Court decisions on issues related to terrorism are studied with interest insofar as they frequently break new ground on issues relevant to the rest of the world), the court in Jerusalem expressed doubt whether the ICJ approach to issues of national self defense "corresponds with the need of a democracy in its struggle against terrorism". The ICJ addressed Israel's self-defense needs as applying solely to aggression from a neighboring sovereign state. It thereby ignored current terrorist realities, particularly in the post-9/11 era, wherein terrorism is frequently stateless or, as in the Israeli case, takes place in occupied territory.
The two courts agree that the West Bank is occupied territory that cannot be annexed, that the Fourth Geneva Convention applies to it (although the Israel High Court did not enter into the question whether this is an obligatory commitment as the ICJ argues or, as Israel claims, a voluntary one), and that Israel has the duty to look to the welfare of Palestinians in the West Bank. But in reaffirming Israel's right to build even a portion of the security fence inside the West Bank, the Israel High Court in effect declared that the Hague ruling (which is really no more than an advisory to the United Nations) is "not the act of a court".
Finally, by establishing clearer criteria for determining the path of the fence, the Israeli ruling is now likely
to hasten High Court of Justice decisions--or, more likely, out-of-court compromises--regarding many of the 40
Palestinian complaints concerning the fence that are still pending before it.