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11. Arab Consistent Behavior and Precedent for Fencing

The ICJ ignores the remarkably consistent Arab behavior in mandated Palestine that is documented in the Mandator’s reports to the League of Nations – a role that parallels a UN Special Rapporteur today. Such primary documents contain precedents for security fences and testify to their non-political nature.

The International Court of Justice shows an avid interest in the “Mandate for Palestine” and uses the Mandate document to openly champion a Palestinian state, but the ICJ also chooses to ignore evidence of the ‘un-readiness’ of Palestinian Arabs for independence – a political maturity that it quotes in the opinion is a prerequisite for political independence under Article 22 of the League of Nations. Far more crucial to the case, such documents note the necessity of security barriers in the past and demonstrate that in the context of the Arab-Israeli conflict, indeed, security barriers are temporary in nature. This statement undermines the Bench’s opinion that Israel’s security fence is political and illegal.

The Bench finds it convenient to ignore that the mandate system speaks of readiness for independence in terms of signs of local responsible governance. Article 22 of the League of Nation’s Charter speaks of reaching “a stage of development” that is provisional “until such time as they are able to stand alone.” This yardstick was applied to Lebanon, Iraq, and Syria. By contrast, this ICJ considers Palestinian statehood to be a ‘given’ – irrespective of Palestinian political behavior.

Ironically, the same political behavior (the use of terrorism as a political instrument) that the ICJ chooses to ignore as irrelevant, is chronicled in official reports to the Council of the League of Nations filed by the British Government during its nearly three-decade rule over Palestine’s Arab and Jewish inhabitants.1 Such reports from the British Government to the Council of the League of Nations were required of the Mandator in the terms of the “Mandate for Palestine” in Article 24 it requires that:

“The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council as to the measures taken during the year to carry out the provisions of the mandate. Copies of all laws and regulations promulgated or issued during the year shall be communicated with the report.”2

Logically, such documents and other special reports to the League by the Mandator should be of equal weight, in terms of standing and credibility, with the reports by the UN Special Rapporteur today, such as the one upon which the ICJ opinion says it relies. These reports, as well as the findings of international commissions such as the Anglo-American Committee of Enquiry,3 could have provided a valuable perspective for the ICJ and placed the current terrorism dilemma in its appropriate historical context.

Is the fence a security measure?

Most importantly, the reports are highly relevant in determining whether the fence is a security measure or a political ploy. The ICJ could have learned something about the need for a security fence from the Mandate Report of 1930 (p. 169) which noted, after Arabs razed the Jewish farming village of Beer-Tuvia to the ground and attacked ancient Jewish communities in Hebron, Safed and elsewhere in 1929:

“For the greater security of exposed Jewish settlements, the [Jewish] Agency, in co-operation with the [British] Administration, has allotted £P.36,500 to roads, telephones, central buildings and fencing” [italics by author].

Seventeen years later, in 1946, the Anglo-American Committee of Enquiry described again the need for security fences in the face of renewed Arab violence against Jews in 1936-39:

“The sudden rise of [Jewish] immigration after the Nazi seizure of power had as its direct result the three and a half years of Arab revolt, during which the Jew had to train himself for self-defence, and to accustom himself to the life of a pioneer in an armed stockade. … The high barbed wire and the watchtowers, manned by the settlement police day and night, strike the eye of the visitor as he approaches every collective [Jewish] colony. … The Jews in Palestine are convinced that Arab violence paid. Throughout the Arab rising, the Jews in the National Home, despite every provocation, obeyed the orders of their leaders and exercised a remarkable self-discipline. They shot, but only in self-defence; they rarely took reprisals on the Arab population”4 [italics by author].

Not one but two historical precedents (1929 and 1936-39) support the Israeli claim that its fencing is not necessarily political or permanent, but is instead a measure prompted by legitimate security needs. Indeed, the stockade walls and watchtowers that surrounded isolated civilian Jewish settlements in the latter part of the 1930s and protected them from attacks were dismantled when the 1936-39 Arab Revolt subsided. This challenges the Court’s conclusion that the fence is political “de facto annexation” and unilaterally changes the status of parts of the West Bank, all without any reference to law.

The Report by His Majesty’s Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine and the Palestine Royal Commission 1936-1937 testifies to the fact that there is no linkage between terrorism and “occupation” and the use of violence that required building security fences is not new. Unfortunately, these are salient features on the landscape that repeat themselves due to the violence deeply embedded in Palestinian political culture. The only difference is that the ‘shoe is on the other foot’ in terms of ‘who is fenced in,’ the potential victims or the perpetrators.

The above Mandator’s report definitively cites its corroborative evidence:

“There were similar assaults [by the Arabs] on the persons and property of the Jews, conducted with the same reckless ferocity. Women and children were not spared. … In 1936 this was still clearer. Jewish lives were taken and Jewish property destroyed. … The word ‘disturbances’ gives a misleading impression of what happened. It was an open rebellion of the Palestinian Arabs, assisted by fellow Arabs from other countries, against British Mandatory rule. Throughout the strike the Arab press indulged in unrestrained invective against the [British] Government. The [British] Government imprisons and demolishes [houses] and imposes extortionate fines in the interests of imperialism.”5

The British report to the League of Nations had no problem using the ‘T’ word or acknowledging the sustaining character of political violence in Palestinian Arab culture – internal and external, noting:

“The ugliest element in the picture remains to be noted. Arab nationalism in Palestine has not escaped infection with the foul disease which has so often defiled the cause of nationalism in other lands. Acts of ‘terrorism’ in various parts of the country have long been only too familiar reading in the _newspapers. As in Ireland in the worst days after the War or in Bengal, intimidation at the point of a revolver has become a not infrequent feature of Arab politics. Attacks by Arabs on Jews, unhappily, are no new thing. The novelty in the present situation is attacks by Arabs on Arabs. For an Arab to be suspected of a lukewarm adherence to the nationalist cause is to invite a visit from a body of ‘gunmen.’”6

The British report to the League of Nations noted Palestinian Arabs’ “refusal to negotiate.”

“The Arab leaders had refused to co-operate with us [E.H., British] in our search for a means of settling the [E.H., Arab-Jewish] dispute.”7

The British report to the League of Nations noted the hate that fueled Palestinian Arab political culture:

“… Palestine Arab nationalism is inextricably interwoven with antagonism to the Jews. … That is why it is difficult to be an Arab patriot and not to hate the Jews” [italics by author].

“…We [E.H., the British] find ourselves reluctantly convinced that no prospect of a lasting settlement can be founded on moderate Arab nationalism. At every successive crisis in the past that hope has been entertained. In each case it has proved illusory”8 [italics by author].

The British report to the League of Nations noted the destructive role of Palestinian Arab leadership:

“If anything is said in public or done in daylight against the known desires of the Arab Higher Committee, it is the work not of a more moderate, but a more full-blooded nationalism than theirs [AHC]”9 [italics by author].

  1. Report by His Majesty’s Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine, and by the “Palestine Royal Commission” 1936-1937.
  2. See: Appendix A. “Mandate for Palestine.”
  3. Report of the Anglo-American Committee of Enquiry Regarding the Problem of European Jewry and Palestine. Lausanne, April 20 1946.
  4. Ibid.
  5. British National Archive, Palestine Royal Commission report, July 1937, Chapter IV, p. 104
  6. Ibid. Chapter V, Paragraph 45, p. 135.
  7. Ibid. Chapter V, “The Present Situation”, Paragraph 1, p. 113.
  8. Ibid. Chapter V, “3. Arab Nationalism”, Paragraph 37, p. 131.
  9. Ibid. Chapter V, Paragraph 39, p. 132.

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