Barriers to Peace: Assessing Separation Barriers’ Legality and their Implications for Peace Processes

Autor: Sean Khalepari

Originally Published at Peace and Conflict Monitor on: 11/01/2007

Governments in multiple countries have turned to the construction of Separation Barriers as a security measure in response to protracted ethno-national violence. It is argued herein that Separation Barriers constructed in ethno-national conflict zones serve to perpetuate and entrench sectarian sentiment. Furthermore, while these Barriers are built in order to separate conflicting parties and thus reduce levels of violence, their construction and maintenance in these zones entail low-level structural violence at best, and a combination of high levels of structural and direct violence at worst.[1]

Over and above that, the manner in which these Barriers and their associated régimes are constructed and maintained, which determines the amount of structural and direct violence they inflict, sometimes violates one or more aspects of international law, with serious implications for affected populations.[2] In concert, the sectarianism and violence alone that result from the existence of Separation Barriers in ethno-national conflict zones are sufficiently harmful to peace processes that they delay or prevent the peaceful resolution of those disputes. In those cases in which the nature of the Barrier is such that its existence or the consequences thereof amount to violations of international law, Separation Barriers may have disastrous implications for peace processes.

Perhaps no case better serves to illustrate this point than the Israeli Separation Barrier in the Occupied Palestinian Territory.[3] La Israeli undertaking, widely criticized by governments and private citizens the world over, was declared to be illegal in an advisory opinion delivered by the International Court of Justice on 09 July 2004.[4]

Furthermore, two rulings by the Supreme Court of Israel – one delivered prior to the International Court’s advisory opinion, the other after – ordered that the State reroute kilometers-long portions of the Barrier located or due for construction in occupied territory. The Court found that the existence or planned construction of those sections violated domestic and international law by imposing an unjustifiably-high level of hardship upon the affected Palestinian population.[5]

Examples of such hardship include instances in which thousands of Palestinian villagers’ access to vital social services, their sources of employment, and their farmland are restricted to such a degree that they essentially become prisoners within the tall concrete walls of the Separation Barrier that surrounds them.[6]

This restricted access does great harm to various aspects of the affected Palestinians’ overall well-being, e.g. their physical, financial, emotional, and mental health. By imposing this harm, it serves to inflict a very high level of structural violence upon those Palestinians.

Additionally, many Palestinians – government officials included – perceive Israel’s construction and maintenance of the Separation Barrier and its associated régime to be an act of de facto de Irak annexation of occupied territory.[7] Furthermore, a great number view the Barrier as a symbol of racism, oppression, and occupation.[8]  La continued existence of the Israeli Separation Barrier and its associated régime in the Occupied Palestinian Territory would therefore seem to preclude the peaceful resolution of the Israeli-Palestinian conflict.

Even Separation Barriers erected in compliance with international law may prove just as pernicious as their illegal parallels by reinforcing sectarianism, increasing levels of structural and/or direct violence upon affected populations, and impeding or inhibiting peaceful dispute settlement. The Separation Barriers composing the so-called ‘Peace Lines’ of Northern Ireland are a prime example. Great Britain constructed these Barriers as a means of separating overwhelmingly Protestant communities from their adjoining Catholic counterparts in areas particularly prone to sectarian violence.[9]

While the Barriers in Northern Ireland do not inflict violence upon the populations they affect to the same degree as their Israeli equivalent, their existence irrefutably does inflict violence to certain extent. It does so by creating or reinforcing perceptions of discrimination, by contributing to elevated levels of unemployment, and possibly by hindering (but more than likely not completely obstructing) the satisfaction of fundamental human needs, such as those for community and relations with others.[10]

Furthermore, the Barriers serve to localize direct violence [see 1 above], which endangers not only the physical well-being of those living within their proximity, but also potentially their emotional and/or psychological well-being. Therefore, in those instances where Separation Barriers serve to increase the number of violent attacks, they simultaneously inflict upon affected populations a higher degree of structural violence that their presence alone otherwise would.[11] As Galtung wrote in commenting upon the interplay between structural and direct violence in 1969, “That structural violence often breeds structural violence, and personal violence often breeds personal violence nobody would dispute – but the point here would be the cross-breeding between the two.”[12]

While the presence of these Barriers may[13] or may not[14] have resulted in fewer occurrences of politically-motivated crime – or at least fewer deaths resulting therefrom – it certainly has rendered it much more difficult for Catholics and Protestants to engage in friendly relations with one another, even on a casual basis.[15] Many Northern Irish, Catholic and Protestant alike, agree that the Separation Barriers have perpetuated – and continue to perpetuate – sectarianism. In doing so, this paper and the evidence argue, they have delayed the achievement – and now hamper the maintenance – of the breakthrough political accord recently come to by the conflicting parties.

This issue is of particular salience for several reasons. First, the post-colonial period has seen a decline in inter-state wars and a sharp rise in the number of ethno-national disputes resulting in armed conflict.[16] Second, many such conflicts are – or if they have been suspended, were – of a long-standing character, i.e. lasting at least ten years; examples of such include those in Northern Ireland, Israel/Occupied Palestinian Territory, Cyprus, Serbia (e.g. Kosovo), India/Pakistan, the Sudan, Russia (e.g. Chechnya), Sri Lanka, Ethiopia/Eritrea, and Burundi, entre otras.[17] Third, supranational response to ethno-national conflict can prove costly to the international community: for example, UNFICYP – the United Nations Peacekeeping Force in Cyprus – was created in 1964 in order to prevent further fighting between Greek and Turkish Cypriot communities, and remains in place to this day;[18] the Force’s operating budget for July 2004 to June 2005 alone was $51.9 million.[19] Fourth, Separation Barriers in ethno-conflict zones entail serious, potentially damaging ramifications for the populations directly affected by their construction and maintenance; in fact, the Barriers’ effects may be of such an intensely-deleterious character that they amount to violations of customary and codified international law, including the Charter of the United Nations (notably Article 2 thereof).

Article 2(3) of the Charter of the United Nations states that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” It is asserted herein that Separation Barriers and their associated régime inflict structural (and possibly direct) violence upon affected populations, and serve to perpetuate sectarianism. Furthermore, as Separation Barriers’ negative effects pervade their greater conflict areas, such Barriers may serve to retard or prevent dispute-settlement efforts and the peaceful resolution of violent conflicts, even if statistics indicate that the occurrence of violence has fallen subsequent to a Barrier’s construction. It would therefore seem that the construction and maintenance of such Barriers endanger international peace and security. Furthermore, as structural violence may often be synonymous with injustice, and given injustice is often an observable consequence of some such Barriers,[20] it would seem that some Separation Barriers, at least, are prima facie of such a character that they endanger principles of justice. It is therefore eminently possible that the construction and maintenance of a given Separation Barrier and its associated régime constitutes a violation of Article 2(3).

Additionally, in those cases in which a State builds a Separation Barrier on territory outside of, but contiguous to, its own, said Barrier may constitute a violation of Article 2, paragraph 4 of the Charter, a fundamental principle of the collective security system. Article 2(4) states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The Israeli Separation Barrier is one such case.[21]

Given the aforementioned reasons for this topic’s salience, it is worth noting that Separation Barriers already exist in several ethno-national conflict zones other than those previously mentioned, e.g. Cyprus and Iraq. These and other such Barriers entail significant ramifications, actual and potential, for international law and for the peaceful settlement of their associated disputes. The Israeli Separation Barrier in the Occupied Palestinian Territory, for example, is a gross violation of international human rights law, international humanitarian law, various other codified and customary international laws, and, at the least, Article 2(4) of the United Nations Charter.[22]

Palestinians are not the only population railing against the pernicious effects of a Separation Barrier and its associated régime. Unfortunately for embattled coalition soldiers and beleaguered Iraqis, the construction by United States occupying forces of a Separation Barrier some 3.65 meters high and five kilometers long[23] dividing Sunni and Shi’ite Muslim populations in part of Baghdad may have harmed, rather than helped, conflict resolution efforts in Iraq. Perhaps its only beneficial effect was uniting Sunnis and Shi’ites in their condemnation of the Barrier’s construction.[24]

Despite demonstrations and statements of protest from Iraqi civilians and government officials, United States Army soldiers from the 82^nd Airborne Division’s 2^nd Brigade Combat Team completed the Barrier on 28 May 2007.[25] According a Stars and Stripes, a United States Department of Defense-authorized newspaper, the construction of the Separation Barrier prompted Sunni residents and clerics to accuse US troops of “herding them into a concrete prison” and led them to state that “the wall would only make them more vulnerable to sectarian violence."[26]

Iraqi Prime Minister Nouri al-Maliki reacted quite negatively to the Barrier, saying “This wall reminds us of other walls that we reject [an obvious reference to the Israeli Separation Barrier], so I’ve ordered it to stop” – but the spokesperson for the US-led security crackdown has been quoted as saying that “construction of security barriers across Baghdad will continue without exception.”[27] The construction of such Barriers – the United States plans to create ‘gated communities’ safe from sectarian attack in five Baghdad districts[28] – may serve to prolong the Iraqi conflict both in terms of internal disputes and in terms of agitation against the United States’ occupation forces. With regard to the former, these Barriers will likely help to perpetuate sectarianism: there is already a fear among some Sunnis that the entrances to their sealed districts will be manned by Shi’ite soldiers or police who may detain – and potentially torture or kill – whomever they please.[29] With regard to the insurgency, the disregard shown by the United States for the sentiment and concern of Iraqis in Baghdad vis-à-vis the Separation Barriers may reinforce perceptions of callousness and help to further drive home the reality of occupation, thereby stirring up further enmity.

Meanwhile, in Cyprus, recent indications are that enmity may be waning. Although a detailed discussion of Cyprus is not undertaken herein, some developments with regard to the Separation Barrier are worth briefly mentioning. Early in March of 2007, the Greek Cypriot government unilaterally dismantled a “key section” of the Barrier that has divided Greek and Turkish populations in Cyprus’s capital city of Nicosia since 1974, replacing the demolished section with plastic barriers.[30]

The government announced, however, that Turkish soldiers would have to pull back before it would allow people to cross in either direction.[31] Nonetheless, the move – which a government spokesperson described as “a show of goodwill on our side” – was heralded as “a positive development” by Turkish Cypriot Prime Minister Ferdi Sabit Soyer and as “a positive contribution of great significance” by United Nations Chief of Mission Michael Moller.[32] European Union Enlargement Commissioner Olli Rehn also commented positively upon the development; he issued a statement welcoming the move, and stated that "The long-waited opening of the crossing point would be a major symbolic step forward in bringing both communities in Nicosia closer together.”[33] He further added that “It would also encourage the necessary efforts aiming at a comprehensive settlement of the Cyprus problem under [United Nations] auspices.”[34] While the demolition of that section of the Barrier is largely symbolic until further negotiations have been completed, many Cypriots were gladdened by the news. “We are hopeful,” said one Cypriot office worker; “The wall is now down [in that section] so that is a step forward.”[35]

While the demolishing of a section of the wall in Nicosia has many Cypriots more hopeful about the process of reconciliation and reunification, perhaps never before have prospects seemed so grim for Palestinians and their dream of statehood. The recent outbreak of civil war among rival Palestinian factions is of immediate salience – and pressing concern. While the situation is in its infancy and developments are still forthcoming, it would appear that Hamas’ 14 June victory – achieved after five days of pitched street battles against Fatah, which left 116 dead – has secured for Hamas control over the entire Gaza Strip.[36] Hamas’ conquest would therefore seem to have resulted in the creation of two separate Palestinian entities: the Gaza Strip, ruled by Hamas, and the West Bank, ruled by Fatah but occupied by Israel.[37]

This situation greatly compounds prospects for the peaceful resolution of the Israeli-Palestinian conflict, which has already been jeopardized by the construction of the Israeli Separation Barrier, the derailment of the Middle East Road Map, and a years-long stalling of the peace process. Furthermore, it gives the impression that a two-state solution – consisting of a peaceful, democratic Palestinian state that recognizes Israel’s right to exist and refrains from attacking it, and Israel, which in return recognizes, and does not occupy, the Palestinian state – is now an impossibility.[38]

Although Israel (and the United States) will re-engage in negotiations with the emergency government sworn in by Palestinian President Mahmoud Abbas of Fatah – which excludes Hamas members and consists almost entirely of Independents – Israel now considers the Gaza Strip to be a “terrorist entity” and has amassed troops in northern Gaza, near the border.[39]

With regard to the Israeli-Palestinian conflict, Palestinian infighting greatly complicates any hopes for a negotiated peace agreement that would result in the withdrawal of Israeli forces from the Occupied Palestinian Territory, as Fatah no longer exercises de facto de Irak control over the Gaza Strip and Hamas refuses to recognize Israel’s right to exist. Israel classifies Hamas as a terrorist organization, and the Israeli government’s policy of refusing to negotiate with those whom it considers terrorists (i.e. those advocating Israel’s destruction) extends to government entities and political parties (e.g. the government of Iran and Hamas). Worryingly for Israel, Hamas, which receives backing from Iran, “seized massive caches of Fatah weaponry as it swept through Gaza” while seizing power there; included among the spoils were a half-dozen armored personnel carriers equipped with large-caliber cannons, as well as “military jeeps, hundreds of heavy machine guns and thousands of AK-47 assault rifles.”[40] Israel therefore now faces two Palestinian power structures – with one of which Israel will not negotiate – and a military threat in the Gaza Strip, from which it had recently withdrawn its occupation forces.

Israel is therefore likely to pursue a policy of engagement with the West Bank and isolation of the Gaza Strip in the hope that the former will flourish and the latter will languish; in doing so, Israel would aim to convince Palestinians that it is in their interest to support the more secular Fatah over Islamist Hamas – thereby supporting peace while avoiding negotiation with Hamas.[41]

However, isolating Gaza and worsening the quality of life there would lead to higher levels of desperation among the masses and could therefore result in higher levels of political and/or religious radicalization in an area already thought to contain al-Qaeda-like groups.[42]

Furthermore, while those Palestinians living in the Gaza Strip and those residing in the West Bank now have two rival governments, they are one people possessing common aims – such as ending the Israeli occupation and achieving statehood. “Palestinians,” Charles Levinson writes in London’s Sunday Telegraph, “are unlikely to support any leader who pursues a policy of divorce from nearly half his people.”[43] That Israel would be able to secure first an Israel-West Bank peace agreement, and then an Israel-Gaza Strip peace agreement, is highly improbable. In order to achieve a lasting Israeli-Palestinian peace agreement, it is therefore necessary to address the crux of the Israeli-Palestinian conflict: decades of Israeli occupation and its damaging consequences, such as the denial of Palestinians’ right to self-determination.

Constructing and maintaining the Separation Barrier – especially those portions of it built within Occupied Palestinian Territory in order to protect Israeli settlements illegally built on Palestinian land – belie Israel’s claim to support the creation of an independent Palestinian state. It’s construction and maintenance also serve to call into question Israel’s intention to eventually abide by Security Council resolutions ordering that it withdraw its military forces to behind pre-1967 lines, a key Palestinian demand. The Barrier therefore serves to symbolize and perpetuate the Israeli-Palestinian conflict, and its destruction may well be a prerequisite for the pacific settlement of that dispute.