Talking Points for and Text of Senate Resolution 408

TAKE ACTION NOW: Call or write your Senators today and urge them to oppose Senate Resolution 408 which supports Israel’s wall in the West Bank and condemns the International Court of Justice (ICJ) for its advisory opinion ruling that this wall is illegal. The Senate is likely to vote on this after returning from its August recess.

Contact information for your Senators can be found at:

YOUR EFFORTS MAKE A DIFFERENCE! Before adjourning for August recess, the House passed a similar resolution. However 58 Members of Congress voted against it or abstained. For some of these Members of Congress this was the first time they voted against a resolution introduced by supporters of Israel’s military occupation. Several Congressional offices acknowledged that it was thanks to your phone calls that they voted no or abstained and some even encouraged us to organize more pressure on them so that they would feel empowered to vote against these types of resolutions in the future.


* This resolution is one-sided and unproductive. It calls attention to Israeli civilian casualties but fails to mention the far greater number of Palestinian civilian casualties. This resolution suggests no positive steps to bring about a just and lasting peace between Israelis and Palestinians based on human rights and international law.

* This resolution incorrectly implies that Israel’s security concerns trump Palestinian human rights and that the ICJ advisory opinion diminishes Israel’s right to self-defense. In fact, the ICJ opinion stated that Israel “has the right, and indeed the duty, to respond in order to protect the life of its citizens.” The court noted, however, that the “measures taken are bound nonetheless to remain in conformity with applicable international law” (Para. 142), which the wall does not. 

* This resolution fails to mention that the Israeli Supreme Court also recognized that Israel is occupying the West Bank and that the wall is violating Palestinian human rights.  On June 30 it ruled Israel has held the West Bank “in belligerent occupation” since 1967 and “the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law.”  (HCJ 2056/04, Para. 1 & 60.)  On August 24, the Jerusalem Post reported that Israeli Attorney General Menahem Mazuz is recommending that Israel formally declare that the 4th Geneva Convention, which formed the basis of the ICJ advisory opinion, applies to its military occupation of the West Bank.
*  This resolution also fails to mention that the US judge on the ICJ, Judge Thomas Buergenthal, while voting against the majority ruling on procedural grounds, nevertheless concludes that Israel must comply with international law.  In a separate declaration, Judge Buergenthal stated: “I share the Court’s conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must there be faithfully complied with by Israel.  I accept that the wall is causing deplorable suffering to many Palestinians living in that territory.  In this connection, I agree that the means used to defend against terrorism must conform to all applicable rules of international law and that a State which is the victim of terrorism may not defend itself against this scourge by resorting to measures international law prohibits.” (Para. 2.)

* This resolution contradicts the ICJ advisory opinion on the responsibilities of all states. According to the ruling, “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.” (Para. 163(D).) By actively supporting the wall, the Senate is violating the ICJ advisory opinion.

* This resolution further isolates US policy toward Israel and Palestine from the international consensus. On July 20, the United Nations General Assembly voted 150 to 6 with 10 abstentions to demand that Israel comply with the ICJ advisory opinion to dismantle its illegal wall in the West Bank. The only countries voting no were the United States, Israel, Australia, Micronesia, the Marshall Islands, and Palau. The United States must work with the international community to implement a just and lasting peace based on human rights and international law. 

* This resolution undermines human rights, international law, and international institutions. The ICJ rendered an advisory opinion after the proper submission to it of a legal question by the United Nations General Assembly. The advisory opinion was based on sound principles of human rights and international law. Senate rejection of this advisory opinion signals to the world U.S. contempt for human rights and international law and the deliberations of international institutions that play a vital role in the pacific resolution of disputes.

* This resolution draws several false analogies. It mentions Israel’s “security fence” that surrounds the Gaza Strip and cites it as a positive example of reducing acts of terrorism. The resolution fails to mention that the Gaza fence is built on the border between Israel and the Gaza Strip (although Israel is also building a wall on Palestinian land on the Gaza Strip’s border with Egypt). The resolution also mentions “security fences” created by the United States, Korea, and India but fails to mention that these too are situated on recognized borders or cease-fire lines. The wall Israel is building in the West Bank cuts deeply into Palestinian territory. Good fences make good neighbors only when the fence is situated on one’s own property.

* This resolution is factually inaccurate. It states that Oslo peace process permits the “security fence” when in fact the sponsors of the resolution do not cite one clause in any agreement signed by Israel and the PLO that permits Israel to unilaterally confiscate land to build a wall on Palestinian territory.



Mr. SMITH (for himself, Mr. ALEXANDER, Mr. BOND, Mr. BUNNING, Mr. CHAMBLISS, Mrs. CLINTON, Mr. COLEMAN, Ms. COLLINS, Mr. CORZINE, Mr. CRAPO, Mrs. DOLE, Mr. FITZGERALD, Mr. LIEBERMAN, Mr. LUGAR, Mrs. MURRAY, Mr. SCHUMER, Mr. WYDEN, Mr. DEWINE, Ms. MIKULSKI, and Mr. ALLARD) submitted the following resolution; which was referred to the Committee on Foreign Relations:

S. Res. 408

Whereas the United Nations General Assembly requested the International Court of Justice to render an opinion on the legality of the security fence being constructed by Israel to prevent Palestinian terrorists from entering Israel ;

Whereas, on February 23, 2004, the International Court of Justice commenced hearings on the legality of the security fence;

Whereas, on July 9, 2004, the International Court of Justice issued an advisory opinion that was critical of the legality of the security fence and that accused Israel of violating its international obligations;

Whereas the security fence is a necessary and proportional response to the campaign of terrorism by Palestinian militants;

Whereas, throughout Israel , the West Bank, and Gaza, terrorist groups have sent suicide bombers to murder Israeli civilians in buses, cafes, and places of worship, have used snipers to shoot at Israeli civilians in their homes and vehicles and even in baby carriages, and have invaded homes and seminaries in order to carry out acts of terrorism;

Whereas Palestinian terrorists routinely disguise themselves as civilians, including as pregnant women, hide bombs in ambulances, feign injuries, and sequence bombs to kill rescue workers responding to an initial attack;

Whereas a security fence has existed in Gaza since 1996 and that fence has proved effective at reducing the number of terrorist attacks and prevented many residents of Gaza from crossing into Israel to carry out terrorist attacks;

Whereas, from the onset of the Palestinian campaign of terror against Israel in September 2000, until the start of the construction of the fence in July 2003, Palestinian terrorists based out of the northern West Bank carried out 73 attacks in which 293 Israeli were killed and 1,950 were wounded, and during the period since construction began, from August 2003 through June 2004, only 3 attacks were successfully executed, 2 of which were executed by terrorists coming from areas where the fence was not yet completed;

Whereas this reduction in number of attacks represents a 90 percent decline since construction of the security fence commenced;

Whereas, on June 30, 2004, Israel's High Court of Justice issued a dramatic ruling that supported the need for the security fence to fight terror, but ruled that its route must take into account Palestinian humanitarian concerns, thus reinforcing the central role that the rule of law plays in Israeli society;

Whereas United Nations Security Council Resolution 242 (November 22, 1967) and United Nations Security Council Resolution 338 (October 22, 1973) require negotiated settlement of the Israeli-Palestinian conflict, including the demarcation of final borders and recognition of the right of Israel to ``secure and recognized boundaries'';

Whereas, according to international law and as expressly recognized in Article 51 of the Charter of the United Nations, all countries possess an inherent right to self-defense;

Whereas the security fence and associated checkpoints are crucial to detecting and deterring terrorists among the Palestinian civilian population;

Whereas there is concern that the International Court of Justice is politicized and critical of Israel ;

Whereas construction of the security fence does not constitute annexation of disputed territory because the security fence is a temporary measure and does not extend the sovereignty of Israel ;

Whereas the security fence is permitted under the Declaration of Principles on Interim Self-Government Arrangements, signed at Washington September 13, 1993, between Israel and the P.L.O. (hereinafter referred to as the ``Oslo Accord'') in which Israel retained the right to provide for security, including the security of Israeli settlers;

Whereas the case regarding the legality of the security fence in the International Court of Justice violates the principles of the Oslo Accord that require that all disputes between the parties be settled by direct negotiations or by agreed-upon methods; and

Whereas the United States, Korea, and India have constructed security fences to separate such countries from territories or other countries for the security of their citizens: Now, therefore, be it

That the Senate--

(1) recognizes Israel's right of self-defense against Palestinian terrorist attacks, and supports the construction of a security fence, the route of which, with the support of the Government of Israel , takes into account the need to minimize the confiscation of Palestinian land and the imposition of hardships on the Palestinian people;

(2) condemns the decision of the International Court of Justice on the legality of the security fence; and

(3) urges the United States to vote against any further United Nations action that could delay or prevent the construction of the security fence and to engage in a diplomatic campaign to persuade other countries to do the same.