Combating Terrorism: Does Self-Defense Include the Security Barrier? The Answer Depends on Who You Ask

Abstract

In the war against terrorism, a democratic state has the duty and the right to protect its citizens. In June 2002, the Israeli government has decided to erect a security fence in order to prevent terrorist infiltration from the Palestinian territories into Israel's territory. However, the chosen route of the fence involved various limitations on the rights of the Palestinian inhabitants, including the seizure of private lands.

The Israeli Supreme Court and the International Court of Justice issued two contradicting decisions regarding the legality of the fence as a measure of non-forcible self-defense. The essay analyzes the decisions and suggests that the Supreme Court - in contrast to the ICJ - reached a decision which reflects the true state of affairs in the Israeli-Palestinian conflict and created a just balance between national security and humanitarian considerations.

Keywords: humanitarian law, Israel- Supreme Court, international court of justice, international law, national security, security fence, self-defense, terrorism

JEL Classification: K33, K00, K10, K19 ,K20 ,29, K30, K39, K42