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Copyright (c) 2007 The Vanderbilt University Law School
Vanderbilt Journal of Transnational Law
40 Vand. J. Transnat'l L. 1425
ARTICLE: The Legality of the West Bank Wall: Israel's High Court of Justice v. the International Court of Justice
* LL. B (Hons.) Brunel University, 2001; LL. M Leiden University, 2002; Research Fellow at the British Institute of International and Comparative Law. The Author attended the oral pleadings before the ICJ in The Hague in February 2004 in his personal capacity. He also worked in the Occupied Palestinian Territories as a U.N. Development Programme TOKTEN (transfer of knowledge through expatriate nationals) consultant in 2003-4, where he witnessed the construction of the wall first-hand in Bethlehem, Jerusalem, and Qalqilya. He would like to thank John Dugard, D.W. Greig, William V.G. Kattan, Stephanie Koury
, John McHugo, Panos Merkouris, Nigel Parker, Gillian Triggs, John B. Quigley, and Iain Scobbie for their comments. The views expressed here and any mistakes therein are of course attributable to the Author alone. He can be contacted at the following email address: v. firstname.lastname@example.org.
... On September 15, 2005, the Israel Supreme Court, sitting as the High Court of Justice (HCJ), rendered its decision in Mara'abe v. The Prime Minister of Israel, in which it questioned a number of points of law arising from the Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. ... " Therefore, encouraging one's nationals to emigrate to the occupied territory might, according to Israeli lawyer Eyal Benvenisti, "impinge on the local "public order and civil life' and therefore be proscribed by international law, particularly by Article 43. ... But is it not annexation in all but name for Israel to incorporate the settlement blocs by widening the municipal boundaries of Jerusalem, to expand already existing settlements so that they protrude further into occupied territory (such as the proposed E-1 settlement abutting Ma'aleh Adumim, see map 3 in Appendix), and to administer these territories as a part of the state of Israel? This logic must have swayed the ICJ, which found that it could not "remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. ...
This Article offers a critique of the decision reached by Israel's High Court of Justice in the Mara'abe Case (2005) as well as some aspects of the International Court of Justice's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004). The Article takes a socio-legal and facts-based approach to analyzing the decisions' discussions of settlements, self-determination, and self-defense, examining all three topics in light of several recent legal and political developments.
"Is the separation fence legal? That is the question before us."
-Judge Barak, Mara'abe v. The Prime Minister of Israel, introductory paragraph.
On September 15, 2005, the Israel Supreme Court, sitting as the High Court of Justice (HCJ), rendered its decision in Mara'abe v. The Prime Minister of Israel, n1 in which it questioned a number of points of law arising from the Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. n2 The case in Israel arose as a [*1427] result of a number of petitions filed against the Prime Minister of Israel, the Minister of Defence, the Commander of the Israeli army, the "separation fence" authority, and the Alfe Menashe local council. n3 The petitioners, Palestinian residents of a number of villages affected by the route of the wall, argued that in light of the ICJ's Advisory Opinion, Israel's actions in continuing its construction were unlawful. n4 On July 9, 2004, the ICJ concluded that the wall and its associated regime of settlements, checkpoints, and closed military zones are contrary to international law. n5 The HCJ therefore had to rule on the legality of the wall that its government has been building in Occupied Palestinian Territory (OPT) of the West Bank since June 2002, while taking into account the advice of the principal judicial organ of the United Nations (U.N.). n6
The terminology used by the ICJ and the HCJ to describe Israel's vast concrete-and-wire barrier differed. The HCJ referred to it as the "separation fence," and the ICJ simply called it the "wall," as this was the language the General Assembly used in its request for an Advisory Opinion. n7 In deference to the ICJ and the world organization, the terminology they employed will be used throughout [*1428] the remainder of this Article. n8 This Article employs a socio-legal and facts-based approach in analyzing the decisions reached by the HCJ and the ICJ on the legality of the wall, since it is usually the facts of the Israeli-Palestinian conflict rather than the substance of the law that prove to be a point of contention. After all, it was on the basis of "the facts" that Israel's HCJ would ultimately reject the ICJ's Advisory Opinion. n9 In the following pages, the ICJ's opinion and the decisions of the HCJ will be compared and contrasted, concentrating on three areas of controversy: (a) Israeli civilian settlement activity, (b) self-determination, and (c) self-defense. These inter-related topics have been chosen for further analysis because they are at the core of the Israel-Palestine conflict. The right of self-defense cannot be debated without an understanding of why there is a conflict in the first place, and an understanding of why there is a conflict between Israelis and Palestinians cannot be comprehended without taking into account the question of self-determination. Correspondingly, it will be necessary to refer to the Israeli civilian settlements constructed in and around East Jerusalem and scattered throughout the West Bank because they are of direct relevance to any discussion of self-determination. Special attention has been devoted to the issue of self-defense, as the ICJ's opinion on this issue has proved to be particularly contentious. To date, the Israeli government has said that it will not abide by the ICJ's Advisory Opinion, but will only adhere to the decisions reached by its HCJ. n10 It is therefore essential to clarify some of the substantive issues that arose in these cases, especially as Israel is still building the wall. Therefore, the final [*1429] section of this Article will be devoted to the debate over the legal effect of Advisory Opinions generally, and particularly the effect of the Advisory Opinion on the wall as a guide for the U.N. in its quest for peace in the Middle East.
Although the Israeli Government's written statement to the ICJ was replete with references to Palestinian terrorism, n11 it is noteworthy that the statement did not justify the building of the West Bank wall as necessary to stop Palestinian terrorist attacks against its nationals in Israel and in West Bank settlements. n12 This is because Israel did not raise the merits of the case in its written statement, which was solely concerned with issues of jurisdiction and propriety. n13 Palestine's written statement argued that the wall is tantamount to annexation because it is being constructed primarily in occupied territory rather than in Israeli territory, which circumvents Israeli civilian settlement blocs, by-passes roads and land designated for their future construction and expansion, and encompasses underground aquifers and water wells. n14 In other words, the issue is the not the wall itself, but its route through OPT. n15 This concern was reflected in the question submitted by the U.N. General Assembly to the ICJ in December 2003, which asked:
What are the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions? n16
II. The HCJ and the Wall
The HCJ has handed down two principal decisions concerning the legality of the wall. On June 30, 2004, some nine days before the ICJ rendered its Advisory Opinion, the HCJ first ruled in Beit Sourik Village Council v. the Government of Israel n17 that the wall could be built in the West Bank, in and around occupied East Jerusalem, but that in a number of sections the wall's route did not satisfy the proportionality test established by the court. n18 In response to the petitioner's argument that the route of the wall was motivated by political reasons (i.e. to incorporate into Israel certain Israeli civilian settlements established inside the West Bank), the HCJ held: "It is the security perspective - and not the political one - which must examine a route based on its security merits alone, without regard for the location of the Green Line." n19 Of course the HCJ could only reach this conclusion by not addressing the applicability to the West Bank of Article 49(6) of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 1949 (hereafter Geneva Convention IV). n20 This is because that article prohibits an occupying power from transferring its civilian population to the [*1431] territory it occupies. n21 Had the HCJ examined the legality of the Israeli settlements in East Jerusalem and the West Bank by applying the relevant provisions of Geneva Convention IV, it would have been difficult for the HCJ to have reached the conclusion that the wall was a lawful measure to protect the settlements. Instead, the HCJ uncritically accepted the Israeli government's position that the wall is not a political measure, even though most of it is being constructed in territory over which it has no sovereignty. n22 This may also explain why there was so little reference to international law in its judgment, particularly on the question of self-determination and human rights law. n23 Instead, the HCJ decided that there was a lawful basis for constructing the wall according to its interpretation of the law of belligerent occupation and Israeli administrative law. n24 On this basis the HCJ found that a small section of the wall (approximately 30 kilometers) should be re-routed because it inflicted disproportionate harm upon Palestinian residents and could not be justified by Israel's security needs. n25 It was up to the individual military commander in the occupied territories to balance Israel's security needs with the needs of the local inhabitants. As the HCJ's decision in Beit Sourik was delivered before the ICJ's Advisory Opinion, the remainder of this article will focus on the Mara'abe case, which challenged the ICJ's Advisory Opinion on both factual and legal grounds.
In Mara'abe, the HCJ chose to avoid the question of the applicability of Geneva Convention IV as it did in the Beit Sourik case n26 - and as it had done several times in earlier decisions - by relaying the position of its government, which has declared that it practices the "humanitarian parts" of the Convention:
In light of that declaration on the part of the government of Israel, we see no need to re-examine the government's position. We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area [that is, the West Bank], and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions. As mentioned, seeing as the government of Israel accepts that the humanitarian aspects of the Fourth Geneva Convention apply [*1432] in the area, we are not of the opinion that we must take a stand on that issue in the petition before us. n27
It may fairly be asked what parts of Geneva Convention IV the HCJ does not consider to be "humanitarian." As it has never taken a stance on its applicability to the OPT, this issue will remain a mystery. n28 Yet on the day the Israeli army took over the West Bank on June 7, 1967, the military commander of the Israeli army issued a proclamation that he had assumed all governmental powers in the area, and that the prevailing law would remain in force subject to any orders that he would promulgate. n29 Attached to this proclamation was the Security Provisions Order that contained detailed provisions for Israeli rule in the occupied areas. n30 According to these provisions,
[a] military tribunal and the administration of a military tribunal shall observe the provisions of the Geneva Convention of August 12, 1949 ... with respect to legal proceedings, and in case of conflict between this Order and the said Convention, the provisions of the Convention shall prevail. n31
David Kretzmer writes that after the 1967 war ended, it became clear to the Israeli political establishment that the Israeli army's perception of the territories during that war as "occupied territories" was incompatible with their political stance because they viewed the territories as "liberated." n32 He opines that this was most probably the reason why the above provision was revoked soon after the war. n33 Michael Lynk notes that the HCJ shares a common narrative with the Israeli government and military on the origins and principal features of the Israel-Palestine conflict: "It accepts that the state is under attack, that the occupation has been largely benign, that the military and the government are motivated by security concerns and [*1433] guided by human values, and that the benefit of any judicial doubt should be given to the military unless the minimal legal restraints on the occupation have been unmistakably ignored." n34 That the HCJ is security-minded and government-oriented in its decisions relating to the OPT is also a view endorsed by Israeli lawyers and academics in Israeli universities. n35
The HCJ is well aware that the position of the Israeli government on Geneva Convention IV is at odds with the views of the international community and the International Committee of the Red Cross (ICRC), the body charged with the task of monitoring the Convention n36 and the application of International Humanitarian Law (IHL). n37 In 1990, the U.N. Security Council adopted a resolution that called on the Geneva Convention IV parties to make sure that Israel respects its obligations, in accordance with Article 1 of the Convention. n38 The U.N. Security Council has reaffirmed that Geneva Convention IV is applicable to the Palestinian and other Arab territories occupied by Israel since June 1967, and has called upon Israel to "abide scrupulously by its legal obligations and responsibilities" under that Convention. n39 The U.N. General Assembly has adopted several resolutions to the same effect. n40 [*1434] Common Article 1 to the Geneva Conventions requires the Contracting Parties "to respect and to ensure respect for the present Convention in all circumstances." The ICJ held in Nicaragua v. United States of America that this requirement derives not only from the Conventions, "but from the general principles of humanitarian law to which the Conventions merely give specific expression." n41
III. The Wall and Israeli Civilian Settlement Activity
On the question of the legality of Israeli civilian settlement activity in the OPT, Judge Barak, the President of the HCJ who presided over the hearings and wrote the unanimous decision for the three-judge panel, declared:
Our conclusion is, therefore, that the military commander is authorized to construct a separation fence in the area for the purpose of defending the lives and safety of the Israeli settlers in the area. It is not relevant whatsoever to this conclusion to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at The Hague. For this reason, we shall express no position regarding that question. n42
With the benefit of hindsight and with the availability of an array of literature published on the topic, including Pictet's official commentary (which was published before Israel occupied the West Bank in 1967), n43 Judge Barak was in an ideal position to examine the legality of Israeli civilian settlements in the OPTs. It is therefore perplexing that he chose to avoid addressing the issue. n44 This is [*1435] especially true because the settlements violate not only international law, but also, to the extent that they are built on private Palestinian property, Israeli municipal law. n45 Instead, Judge Barak (who recently retired as President of the Supreme Court) concluded that the military commander of the West Bank is authorized to construct the wall for the purpose of defending the lives and safety of the Israeli settlers. n46 In reaching this conclusion, the HCJ in effect directly challenged the ICJ, which was unanimous on this finding of law. n47 Judge Buergenthal (who dissented from the decision to hear the case) agreed with his colleagues when it came to the settlement issue in his Declaration. Referring to Article 49, paragraph 6 of Geneva Convention IV, he wrote:
I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6. It follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law. n48
Note the use of terminology by Judge Buergenthal: where the wall is being built to protect the settlements, it is in violation of IHL by its very existence. In other words, one of the consequences of the illegality of the settlement enterprise is that any measures undertaken to protect settlers must also be considered unlawful. In this respect, it should be said that the illegality of Israeli civilian settlement activity has never been in any doubt, not even in Israel. [*1436] In fact, in 1967, Theodor Meron, who was then working as the legal counsel to Israel's Foreign Ministry, wrote in a "Top Secret" Memorandum: "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." n49 In contrast, Judge Barak advanced two principal reasons that the wall could protect the settlements (although he refrained from ruling on their legality): (1) "The authority to construct the wall for the purpose of defending the lives and safety of Israeli settlers is derived from the need to preserve "public order and safety,' as mentioned in Article 43 of the Hague Regulations;" n50 and (2) "Israelis living in the area are Israeli citizens. The State of Israel has a duty to defend their lives, safety, and well-being." n51
Judge Barak then qualified this last point by holding that "the scope of the human right of the Israelis living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right." n52 This was because the area in question (a part of the West Bank between Qalqilya and the Alfe Menashe settlement) "is not part of the State of Israel." n53 Consequently, Israeli law does not apply there, and those who live in the area "live under the regime of belligerent occupation." n54 However, according to a leaked EU document, the HCJ (in an important decision relating to the Gaza Disengagement Plan that has not been translated) n55 reiterated the distinction n56 it makes between the legal status of occupied East [*1437] Jerusalem and the West Bank and Gaza. n57 Apparently, the HCJ ruled that it was legal to take into account political considerations, in addition to security considerations, for the routing of the wall in East Jerusalem because that part of the city has been "Israeli territory" since its annexation in 1967. n58 The Court thus clarified its earlier ruling in the Beit Sourik case, in which it had found that the military commander could not construct the wall in the West Bank if his reasons were political. n59
If this is indeed the case, then the HCJ seems to have drawn a distinction between East Jerusalem, which the Israeli government considers part of Israel under its municipal law, and the West Bank and Gaza, which under IHL is classified as occupied territory. n60 However, it should be emphasized that this finding of law is at complete odds with international law. n61 Even in a war of self-defense, the acquisition and annexation of territory by forcible means is illegitimate. n62 Although the question of whether an international law [*1438] overrides a municipal law when the two conflict will depend exclusively (at the municipal level) on the constitutional law of that state, it is interesting to note that Judge Barak, in his latest treatise, has written that "the theoretical principle of rule of law leads to a number of presumptions," which include "the need to ensure rule of law on the international plane by making sure domestic law is compatible with public international law." n63 Evidently, there is a difference between Judge Barak's decisions on the judicial level and his scholarly work, and in this respect his scholarly writings seem to be a more accurate reflection of the law as it should be, especially since, for the purposes of state responsibility, a state may not rely on the provisions of its internal law to justify a failure to comply with international law. n64 It is important to stress this inability on the part of the state to rely on its internal law because declarative statements of customary international law by the ICJ could be viewed by some Israeli judges as part of domestic Israeli law. Some judges could take this view because, in Israel, customary international law (as opposed to treaty law) automatically becomes part of municipal law, with no need for an act of the Israeli legislature to make it binding. n65 Although Geneva Convention IV is a treaty, certain of its provisions reflect customary international law. n66 According to a recent ICRC study, state practice establishes that Article 49(6) is a norm of customary international law. n67 Presumably then, this provision is binding in Israeli law and could be invoked by Israeli judges to outlaw those settlements established in the occupied territories.
A. The Settlements and Article 43 of the Hague Regulations
The HCJ's finding that the need to preserve "public order and safety" in the OPT - as mentioned in Article 43 of the 1907 Hague [*1439] Regulations - gives the military commander the authority to construct the wall for the purpose of defending the lives and safety of Israeli settlers in the West Bank is also unpersuasive. n68 Article 43 provides:
The authority of the legitimate power having in fact passed into the hands of the occupant, that latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. n69
In 1967, the legitimate power in East Jerusalem and the West Bank was Jordan, which claimed that its title rested not on conquest but on the consent of the inhabitants. n70 Even if Jordan was not viewed as the "legitimate" power, it still had the rights and duties of an occupying power before it annexed those territories. n71 Article 31 of the Vienna Convention on the Law of Treaties of 1969 (VCLT) provides that, as a general rule of interpretation, a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in light of its object and purpose. n72 [*1440] Assuming that when Article 43 was drafted its authors envisaged the possibility of a prolonged occupation, it is clear from the plain and ordinary meaning of Article 43's text that it is concerned with restoring and ensuring - as far as possible - public order and safety, while respecting the laws already in force in the country. n73 After all, "good faith," as Judge Barak has recently written, "is a fundamental principle that permeates the objective purpose of every statute." n74 Evidently, one can only restore and ensure public order and life (the word "safety" was a mistranslation from the original, official, and authoritative French text) for those persons who already inhabit the area in question. n75 Those Israeli civilian settlements established in the OPTs after those territories were captured by Israel in June 1967 necessarily violated Article 49(6) of Geneva Convention IV, which prohibits an occupying power from transferring its civilian population into the territory it occupies. n76 The settlements have also violated Article 43 of the Hague Regulations because Israel changed its laws to facilitate the settlement enterprise. n77 Moreover, Jordan ratified Geneva Convention IV on May 29, 1951. Consequently, the laws embodied in Geneva Convention IV were part of Jordanian law when [*1441] Israel captured the West Bank from Jordan in the June 1967 war. Israel is bound by that Convention not only because it has ratified it, n78 but also because it is the occupying power under Article 43 of the Hague Regulations, which reflected customary international law years before Israel occupied the West Bank. n79 Thus Geneva Convention IV was, prior to Israel's occupation, one of the "laws in force in the country," which Israel was obliged to respect. n80