RAMALLAH, WEST BANK // It has become one of the most potent images of the Palestinian-Israeli conflict. Seven years since construction started on the Israeli separation barrier - part barbed-wire fence and military road, part concrete wall - 413km of a projected 709km route have now been completed. Israel says the barrier is purely a security measure and points to the complete drop-off in suicide bombings in the past two years. But Palestinians say it is a land grab and point out that almost all the barrier actually runs inside occupied territory specifically to include Jewish settlements on the "Israeli" side.
Yesterday marked five years since the International Court of Justice in The Hague, asked by the UN's General Assembly to rule on the legality of the barrier, came out with its advisory opinion. The ICJ found that the barrier, where it runs along the pre-June 1967 armistice line, the so-called green line, is justifiable, but where it dips into the West Bank, is illegal under international law. Israel ignored the ruling, claiming since it was an advisory opinion it was not legally binding. According to Gerald Steinberg, a professor of political science at Bar Ilan University in Tel Aviv, it was also just another in a "long line of attempts to delegitimise Israel".
"The ruling is irrelevant. [The ICJ] is not a court, it's a political forum. It was an advisory opinion. I could write an advisory opinion. It's only being used as part of the political war." That is a widely held opinion in Israel, certainly of successive Israeli governments. The Israeli military has changed the route of the barrier only after rulings by the Israeli High Court, which has at times considered stretches of the barrier to exceed the security rationale, but has never ruled on the legality of the barrier itself.
The United Nations accepts that Israel has legitimate security concerns, but at a press conference on Wednesday, the UN High Commissioner for Human Rights, Navi Pillay, reiterated the position stipulated by the ICJ advisory opinion that most of the barrier had to be taken down. Israel must "comply with the advisory opinion of the ICJ and dismantle the Wall within the OPT [Occupied Palestinian Territory] and make reparation for all damage suffered by all persons affected by the wall's construction", Ms Pillay said.
At the core of the legal case against the barrier is the argument that the concept of military necessity cannot set aside international law and international humanitarian law. Specifically international jurors note the effect of the barrier on the civilian Palestinian population. The UN projects that once completed, 35,000 Palestinians will find themselves between the barrier and the green line, effectively hemmed in and at the mercy of a system of barrier checkpoints and permits that leave them nearly unable to move.
A further 125,000 Palestinians will be surrounded by the barrier on three sides severely circumscribing their movement, while Palestinians with West Bank IDs will find themselves separated from East Jerusalem, also occupied territory, as will several thousand Palestinians with Jerusalem ID in certain areas. All these effects have tangibly negative economic and social implications, with people restricted from access to their land, health and education services as well as religious places of worship, notably, of course, the mosques and churches of Jerusalem.
That also means, notes the Geneva-based International Commission of Jurists, that the barrier cannot be characterised as a "neutral" physical structure since along with it comes a system of Israeli-army granted permits to control Palestinian movement. That permit regime, furthermore, is inherently discriminatory since it applies only to Palestinians with West Bank IDs and some Palestinians with Jerusalem IDs. Jewish settlers in the West Bank are exempt from seeking and obtaining similar permits, as are Israelis in general.
Finally of course, with 85 per cent of the barrier projected to be located inside occupied territory once the barrier is completed, and in view of the above, the barrier cannot be described simply as a security measure. As such, concludes the UN, where it runs through occupied territory, it must be deemed illegal, both under international law and international humanitarian law, under which Israel, as an occupying power, has a responsibility for the welfare of the people under its occupation.
That is also the position of the PLO. "The wall is not a security measure," said Saeb Erekat, Palestinian chief negotiator. "It is a serious breach of international law and a violation of basic Palestinian rights." Mr Erekat said the ICJ ruling "provides the international community with a clear opportunity to act as an honest and even handed broker, whose commitment to peace ought to coincide with its commitment to upholding the very laws that protect the rights of all states and peoples."
And yet, in five years since the ruling, the international community has largely passed up the "opportunity to act as an honest and even handed broker". Israel, while it faces weekly grassroots protests against the barrier in West Bank villages such as Ni'lin and Bili'in, has been able to continue construction apace, with little international outcry. The US, the most important international actor in the Palestinian-Israeli conflict, has largely ignored protests against the barrier and accepted Israel's argument that it is a security measure and that as an advisory opinion, the ICJ ruling is not binding.
And part of the problem stems from the negotiating process itself, according to Camille Mansur, head of the law department at Ramallah's Birzeit University. "The Palestinians are told by the international community to use negotiations and reject violence to solve the conflict. But these negotiations have to be based on international law. If international law is set aside, what is left for Palestinians?"
Mr Mansur pointed out that the current pressure on Israel to freeze its settlement construction should not be allowed to obscure the point that all settlements are illegal and that settlements "have to be dismantled". Israel, he said, had been allowed to shift the goalposts of negotiations, partly by establishing facts on the ground in the shape of settlements and the barrier. "If there had been serious negotiations in 1993-94, we would not today have had all these settlements or the wall. These became a fait accompli. As time passes the settlements become the basis for the next round of negotiations. So Israel has a short-term interest to continue settling because the more settlements are built, the more territory is likely to be allocated to Israel in any negotiated agreement, if negotiations are not based on international law."