Length: 41749 words article: The Legality of the West Bank Wall: Israel's High Court of Justice V the International Court of Justice name



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n345. This is when the last major international act of terrorism by a P.L.O. faction took place, on the cruise ship Achille Lauro. Gregory V. Gooding, Fighting Terrorism in the 1980s: The Interception of the Achille Lauro Hijackers, 12 Yale J. Int'l L. 158 (1987).
n346. ECOSOC, Comm'n on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, P 39, UN Doc. E/CN.4/2001/121 (Mar. 16, 2001) (emphasis added).
n347. See G.A. Res. 52/250, U.N. Doc. A/RES/52/250 (July 13, 1998) (recalling Palestine's "observer status"); G.A. Res. 43/177, U.N. Doc. 43/177 (Dec. 15, 1988) (recalling the P.L.O.'s "observer status"); G.A. Res. 43/160, U.N. Doc. A/RES/43/160 (Dec. 9, 1988) (recalling the P.L.O.'s "observer status"); G.A. Res. 3237, P 2, U.N. Doc. A/RES/3237 (Nov. 22, 1974) (noting that the U.N. the P.L.O. had been invited to participate as an observer in various conferences).
n348. Protocol Additional to the Geneva Conventions, supra note 280, art. 1, para. 4.
n349. ICJ Wall Advisory Opinion, supra note 2, at 1072, para. 36 (separate opinion of Judge Kooijmans).
n350. ICJ Wall Advisory Opinion, supra note 2, at 1063, para. 35 (separate opinion of Judge Higgins). However, in a recent lecture, Kooijmans (who recently retired from the bench) made the point that non-forcible measures are covered by resolutions 1368 and 1373 (although not by Article 51). Judge Pieter H. Kooijmans, Annual Grotius Lecture, British Institute of International and Comparative Law, London House, Mecklenburgh Square (Dec. 11, 2006). Israel has resorted to the use of force on numerous occasions when clearing land for the wall's construction. For examples of this use of force, see Security Forces Fired Live Ammo at Anti-fence Protest, Ha'aretz (Jerusalem), Nov. 6, 2006, available at http://www.haaretz.com/hasen/spages/ 783632.html; and 6 Protestors, Officer Injured in Fence Protest, Ynetnews.com, June 6, 2006, available at http://www.ynetnews.com/articles/0,7340,L-3258049,00.html.
n351. See U.N. Charter art. 2, para. 1 (stating that the basis for the U.N. itself is the sovereign control each member has over its territory due to its status as a state).
n352. The Six Days War ended with a cease fire on June 11, 1967, enforced by the United Nations. S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967).
n353. Id.
n354. G.A. Res. 56/83, art. 21, U.N. Doc. A/RES/56/83 (Jan. 28, 2002) (emphasis added). The Articles were approved, without vote, by the General Assembly in Resolution 56/83, 12 December 2001. Id.
n355. Crawford, supra note 64, at 167.
n356. Id.
n357. See U.N. Charter art. 2, para. 4 (setting forth provisions that directly conflict with Israel's actions).
n358. See G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 18, U.N. Doc A/8018 (Oct. 24, 1970) (explaining that States have a duty to co-operate with one another as stipulated by the U.N. Charter).
n359. See U.N. Charter art. 1, para. 1.

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.


Id.
n360. Id. art. 2, para. 3.


n361. Legality of the Threat of Use of Nuclear Weapons, ICJ Advisory Opinion, supra note 95, P 41.
n362. Id.
n363. See id. (explaining that building wall was not a necessary and proportionate measure).
n364. ICJ Wall Advisory Opinion, supra note 2, at 1063, para. 35 (separate opinion of Judge Higgins).
n365. Id. (emphasis added).
n366. It would seem that if one builds a series of eight-meter-high concrete walls and fences with electronic sensors, accompanied by dirt tracks, trenches and armed watch-towers, accompanied by regular military incursions into the OPT with the attendant extra-judicial assassinations, there will inevitably be a diminution on attacks on Israeli civilians from there simply because its inhabitants have effectively been "imprisoned," making it all but impossible to escape into Israel. For a description of the situation in the occupied West Bank along the route of the Wall, see ECOSOC, Comm'n on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, U.N. Doc. E/CN.4/2004/6/Add.1 (Feb. 27, 2004) (prepared by John Dugard).
n367. ICJ Wall Advisory Opinion, supra note 2, at 1081, para. 9 (separate opinion of Judge Buergenthal) (emphasis added).
n368. Id. at 1072, para. 34 (separate opinion of Judge Kooijmans) (emphasis added).
n369. Id. at 1050, paras. 140, 142 (emphasis added).
n370. Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Req. for Advisory Op.) (Order of Feb. 24, 2004), available at http://www.icj-cij.org/docket/files/131/1511.pdf at 57 (last visited Sept. 25, 2007).
n371. See The Berlin Wall: A Defiance of Human Rights (Int'l Comm'n of Jurists 1962) (finding that the Berlin Wall violated several provisions in the Universal Declaration of Human Rights on free movement and the right of residency).
n372. U.N. Charter art. 2, para. 3.
n373. On April 30, 2006, the Israeli cabinet approved a revised route of the wall and published a map on the Ministry of Defence website. The previous map was released on February 20, 2005. Based on this revised map, the total length of the wall's route will be 703 kilometers long, compared to 670 kilometers of length envisioned in the previous route. See U.N. Office for the Coordination of Humanitarian Affairs, Occupied Palestinian Territory, Preliminary Analysis of the Humanitarian Implications of the April 2006 Barrier Projections (July 2006), http://www.ochaopt.org/ documents/OCHABarrierProj_6jul06.pdf. But see U.N. Office for the Coordination of Humanitarian Affairs, Occupied Palestinian Territory, Three Years Later: The Humanitarian Impact of the Barrier Since the International Court of Justice Opinion (July 9, 2007), http://www.ochaopt.org/documents/ICJ3_Special_Foc us_July2007.pdf (according to the most recent assessment, Israel's barrier will be 721 kilometers long).
n374. For further reading on the 1948 conflict between Israel and the Arab world, see Avi Shlaim, The Iron Wall: Israel and the Arab World (2000). For its consequences and further insights, see Benny Morris, The Birth of the Palestinian Refugee Problem Revisited (2004); Ilan Pappe, The Ethnic Cleansing of Palestine (2006); Henry Cattan, Palestine, The Arabs and Israel: The Search for Justice (1969); Michael Palumbo, The Palestinian Catastrophe: The 1948 Expulsion of a People from their Homeland (1987); Lt. Colonel Netanel Lorch, The Edge of the Sword: Israel's War of Independence, 1947-1949 (1961); Walid Khalidi, Why did the Palestinians leave? An examination of the Zionist version of the exodus of 1948 (1963); Walid Khalidi, All the Remains: The Palestinian Villages Occupied and Depopulated by Israel in 1948 (1993); and Norman G. Finkelstein, Image and Reality of the Israel-Palestine Conflict (2003).
n375. Relevant Muslim countries include Bangladesh, Indonesia, Malaysia, Pakistan, and others that have not yet established diplomatic relations with Israel. When Israel withdrew its armed forces from southern Lebanon after its 34-day war with Hezbollah in the summer of 2006, it complained about the presence of peacekeepers in that country with whom it did not have diplomatic relations. Israel Puts Demands on Peacekeepers, Associated Press, Aug. 21, 2006.
n376. Egypt-Israel Treaty of Peace, supra note 187, art. 4. For discussion of the Israel-Egypt treaty, see generally Michael Akehurst, The Peace Treaty Between Egypt and Israel, 7 Int'l Relations 1035 (1981).
n377. U.N. Charter art. 51.
n378. But see The Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 1, at 22 (Apr. 9) (determining that the international responsibility of a state will only be engaged if it knowingly allows its territory to be used to attack another state).
n379. See Sharon Defies Court Over Barrier, BBC News Online, July 11, 2004, http://news.bbc.co.uk/1/hi/world/middle_east/3884887.stm (reporting that the Israeli government continued to build barrier in the West Bank after World Court held that such a barrier is illegal).
n380. Francis Aime Vallat, The Competence of the United Nations General Assembly, 97 Recueil des Cours 207 (1959). However, the view of Francis Aime Vallat, a former Legal Adviser to the British Foreign Office, who in his lecture before the Hague Academy of International Law said that the legal effect of a U.N. General Assembly resolution would be of the "greatest significance" in the context of the maintenance of peace and security, if the Security Council fails to take any action to deal with a breach of the peace, and the Assembly recommends measures, for the purpose of restoring the peace, to be taken by member states against one and in support of the other party to a conflict.
n381. See G.A. Res. 377(V), 5th Sess. (Nov. 3, 1950) (adopting a "uniting for peace" resolution).
n382. See G.A. Res. ES-10/L.18/Rev.1, U.N. Doc. A/ES-10/L.18/Rev.1 (July 20, 2004) (demanding merely that Israel, the occupying power, comply with its legal obligations as mentioned in the advisory opinion).
n383. Id.
n384. Victor Kattan, The Wall, Obligations Erga Omnes and Human Rights: The Case for Withdrawing the European Community's Terms of Preferential Trade With Israel, 13 Palestine Y.B. Int'l L. 71, 87 (2004-2005). It is noteworthy in this respect that in the case of Zimbabwe, the European Council implemented a series of targeted sanctions. See 2002 O.J. (L 50) 1, 4.
n385. See, e.g., U.N. GAOR, Emer. Spec. Sess., 25th mtg., U.N. Doc. A/ES-10/PV.25 (July, 16 2004) (including the statement made by Mr. Danforth (United States) in the debate on the General Assembly resolution following the rendering of the Advisory Opinion:

The judicial process is not the political process, and the International Court of Justice was not the appropriate forum to resolve this conflict... . So the Court opinion ... seems to say that the right of a State to defend itself exists only when it is attacked by another State, and that the right of self-defense does not exist against non-State actors. It does not exist when terrorists hijack planes and fly them into buildings, or bomb train stations or bus stops, or put poison gas into subways... . I would suggest that, if this were the meaning of Article 51, then the United Nations Charter could be irrelevant at a time when the major threats to peace are not from States but from terrorists.


Id.
n386. See generally Lord Alexander of Weedon QC, Iraq: The Pax Americana and the Law, 9 Y.B. Islamic & Middle E. L. 3 (2002-2003) (discussing the legality of the invasion of Iraq); see also Sean D. Murphy, Assessing the Legality of Invading Iraq, 92 Geo. L.J. 173 (2003-2004) (arguing that the invasion of Iraq in 2003 was illegal); Richard A. Falk, What Future for the UN Charter System of War Prevention?, 97 Am. J. Int'l L. 590 (2003) (providing an argument that the war was contrary to international law); Christopher Greenwood, Britain's War on Saddam Had the Law on Its Side, 9 Y.B. Islamic & Middle E. L. 3 (2002-2003) (arguing that the invasion of Iraq in 2003 was legal). For an examination of the legality of Israel's invasion of Lebanon in 2006, see Victor Kattan, The Use and Abuse of Self-Defense in International Law: The Israel-Hezbollah Conflict as a Case Study, 12 Y.B. Islamic & Middle E. L. (2005-2006). See also Israel, Hezbollah and the Conflict in Lebanon: An Act of Aggression or Self-Defense?, 14 Hum. Rts. Brief 26 (2006), available at http://www.wcl.american.edu/ hrbrief/14/1kattan.pdf?rd=1 (providing a shorter version of the Kattan article). See also Georgina Redsell, Illegitimate, Unnecessary and Disproportionate: Israel's Use of Force in Lebanon, 3 Cambridge Student L. Rev. 70 (2007).


n387. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, P 56 (2006) ("As the ICJ itself noted in its opinion (paragraph 31), it does not bind the States.").
n388. See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 I.C.J. 65, 71 (Mar. 30) (recalling its jurisprudence); Western Sahara, Advisory Opinion, 1975 I.C.J. 12, at 24 (Oct. 16) (quoting 1950 I.C.J. 71).
n389. See HCJ 7957/04 Mara'abe, translated in 45 I.L.M. 202 (listing petitioners bringing the case, which includes no nation-states).
n390. This is because the U.N. is a separate legal person from its members. It has international personality, and is a subject of international law. Its constituent members have clothed it with the competence required to enable it to effectively discharge its functions, duties, and responsibilities. As the ICJ ruled,

the functions of the Organization are of such a character that they could not be effectively discharged if they involved concurrent action, on the international plane of fifty-eight or more Foreign Offices, and the court concludes that the Members have endowed the organization with the capacity to bring international claims when necessitated by the discharge of its functions.


Reparation of Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 178, 180 (Apr. 11).


n391. And indeed, it did precisely this, acknowledging the opinion in G.A. Res. ES-10/L.18/Rev.1, supra note 382.
n392. The principle of "persistent objection" only applies to the creation of new rules of international law. However, the ICJ was not dealing with any new rules of international law in its Advisory Opinion on the wall. See generally Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int'l L.J. 457 (1985) (discussing this principle in depth).
n393. See Adam Basak, Decisions of the United Nations Organs in the Judgments and Opinions of the International Court of Justice 35 (1969) ("No State can cancel the legal effects of a decisions [sic] in which an organ of the UN has decided to ask for an opinion. One must then acknowledge that in the opinion of the Court such a decision is in this sense indirectly binding on all member States.").
n394. Hugh Thirlway, The International Court of Justice, in International Law 561, 582-83 (Malcolm Evans ed., 2003).
n395. See Scobbie, supra note 4, at 269, 289-91 (discussing the fact that res judicata does not attach to an advisory opinion if there are no parties).
n396. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, supra note 388, at 71 (emphasis added).
n397. ICJ Wall Advisory Opinion, supra note 2, at 1053, para. 155.
n398. See Peter D. Coffman, Obligations Erga Omnes and the Absent Third State, 39 German Y.B. Int'l L. 285, 285 (1996) (discussing the binding nature of erga omnes obligations).
n399. For discussion on obligations erga omnes, see Coffman, supra note 398, at 285-333; Michael Byers, Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules, 66 Nordic J. Int'l L. 211, 211-39 (1997); and Karl Zemanek, New Trends in the Enforcement of Erga Omnes Obligations, 4 Max Planck Y.B. UN L. 1, 1-52 (2000).
n400. Gerald Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement, 19 Mod. L. Rev. 1, 2 (1956).
n401. F. Blaine Sloan, Advisory Jurisdiction of the International Court of Justice, 38 Cal. L. Rev. 830, 855 (1950) (discussing the fact that advisory opinions and decisions of the ICJ have the same legal effect).
n402. Id.
n403. Id.; see also Blaine Sloan, General Assembly Resolutions Revisited (Forty Years Later), 58 Brit. Y.B. Int'l L. 39 (1988) (looking back at the more than 6,000 General Assembly resolutions over the past forty years and discussing the unresolved legal status of such resolutions); F. Blaine Sloan, The Binding Force of a "Recommendation' of the General Assembly of the United Nations, 25 Brit. Y.B. Int'l L. 1 (1948) (discussing whether U.N. resolutions possess any binding force on Member states).
n404. Andre Gros, Concerning the Advisory Role of the International Court of Justice, in Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup 313, 315 (Wolfgang Friedmann et al. eds., 1972).
n405. Of course, in a contentious case, the losing State would be in violation of the U.N. Charter if it did not comply. From 1949 to 1971, the case of South-West Africa (now Namibia) engaged the International Court of Justice's attention. This resulted in four Advisory Opinions (1950, 1955, 1956 and 1971) and two judgments (1962 and 1966). From 1949 to 1962, South Africa did its best to thwart the supervisory role assigned to the U.N. General Assembly, and just like Israel, it ignored the ICJ's advisory opinions. But by the 1960s, with many new African states as members of the U.N., a new idea took root: to explore the possibility of contentious litigation through a judgment from the ICJ. However, South-West Africa was not a State in the 1960s (it did not attain independence as the state of Namibia until 1990), and it had to rely on Ethiopia and Liberia (who were both members of the League of Nations) to bring the case to the ICJ on its behalf. In 1966, "the white man's court" held that Ethiopia and Liberia were not entitled to receive judgment on the merits of the case, because they had not "established any legal right or interest appertaining to them in the subject matter" of the claims. This judgment came as a surprise to many, and it is generally thought that were it not for the death of Judge Badawi, the illness of Judge Bustamante, and the withdrawal of Judge Zafrullah Khan, the outcome might have been very different. For a commentary by one of the lawyers who participated in that case, see Richard A. Falk, The South West Africa Cases: An Appraisal, in Richard A. Falk, The Status of Law in International Society 378-402 (1970). Today, the matter seems to be settled as Article 42 of the International Law Commission's Draft Articles on State Responsibility (2001) allows an injured state to invoke the responsibility of another state if the obligation breached is owed to that state, a group of states, or to the international community as a whole. International Law Commission's Draft Articles on State Responsibility art. 42 (2001).
n406. Israel followed the US in withdrawing its consent from the compulsory jurisdiction of the ICJ in the aftermath of the Nicaragua judgment. The notification of termination of the declaration of 17 October 1956, received from the Government of Israel on 21 November 1985 reads as follows: "On behalf of the Government of Israel, I have the honour to inform you that the Government of Israel has decided to terminate, with effect as of today, its declaration of 17 October 1956 as amended, concerning the acceptance of the compulsory jurisdiction of the International Court of Justice." This statement was signed by Benjamin Netanyahu. See Declarations Recognizing Jurisdiction, 38-40 I.C.J. Y.B. 79, 79-80 (1983-1986) (including the statement signed by Golda Meir showing Israel's acceptance of the compulsory jurisdiction of the ICJ in the years before 1985).
n407. T. Olawale Elias, Modern Sources of International Law, in Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup, supra note 404, at 34, 51.
n408. G.A. Res. ES-10/L.18/Rev.1, supra note 382.
n409. See G.A. Res. ES-10/13, U.N. Doc. A/RES/ES-10/13 (Oct. 27, 2003) (discussing illegal Israeli actions in Occupied East Jerusalem and the rest of the OPTs).
n410. Id.
n411. See The Secretary-General, Report of the Secretary-General Pursuant to General Assembly Resolution ES-10/15, para. 4, delivered to the General Assembly, U.N. Doc. A/ES-10/361 (Oct. 17, 2006) (discussing the purpose and legal nature of the register of damage).
n412. U.N. Charter art. 80, para. 1.

Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.


Id.
n413. Voting Procedures on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion, 1955 I.C.J. 67 (June 7).


n414. Id. at 120 (separate opinion of Judge Lauterpacht).
n415. Richard A. Falk, Comment, On the Quasi-Legislative Competence of the General Assembly, 60 Am. J. Int'l L. 782, 787 (1966).

If the resolution enters a political process that looks toward implementation, then the legislative nature of the claim is more clear-cut, that is, there seems to be some explicit connection between the status of the claim as legislative and the prospects for effective implementation: the better the prospects, the more appropriate the label "legislative.'


Id.
n416. G.A. Res. ES-10/L.18/Rev.1, supra note 382, para 6.


n417. Id. para. 7 (emphasis added).
n418. U.N. Charter art. 25.
n419. ICJ Wall Advisory Opinion, supra note 2, at 1064, para. 38.
n420. Id. (emphasis added).
n421. Voting Procedures, Advisory Opinion, 1955 I.C.J., supra note 413, at 73, para. 6.
n422. In this respect, the PLO might want to consider lobbying friendly states in the General Assembly to petition the ICJ for a further Advisory Opinion, as suggested by the U.N. Special Rapporteur. For a discussion, see U.N. Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled "Human Rights Council," U.N. Doc. A/HRC/4/17 (Jan. 29, 2007) (prepared by John Dugard). Indeed, further recourse to the ICJ for Advisory Opinions on legal questions connected to the question of Palestine, and in particular on the legal consequences of prolonged occupations more generally, will be of particular use for third states who may refrain from taking coercive measures against Israel without an explicit legal mandate to do so. In this respect, it could be argued that the Advisory Opinion on the wall already provides a legal mandate to call for countermeasures (such as imposing a comprehensive arms embargo) against Israel, as was done against apartheid South Africa. See S.C. Res. 418, U.N. Doc. S/RES/418 (Nov. 4, 1977) (condemning the South African government for its massive violence and further recognizing the arms embargo against the nation to prevent further aggravation of the situation). Of course, that Resolution explicitly referred to Chapter VII of the U.N. Charter, which is unlikely to be accomplished in the case of Israel. In this regard, it would have been preferable if the ICJ could have explicitly enumerated the consequences for states, either in the opinion itself or in the separate opinions of the judges participating in the case, as was done, for example, by Vice-President Ammoun. Namibia Advisory Opinion, supra note 192, at 70 (separate opinion of Vice-President Ammoun).
n423. See Oliver Burkeman & Julian Borger, War Critic Astonished as US Hawk Admits Invasion was Illegal, Guardian (London), Nov. 20, 2003, available at http://www.guardian.co.uk/Iraq/Story/0,2763,1089158,00.html (noting that when asked about the legality of the invasion of Iraq, Richard Perle said, "I think in this case international law stood in the way of doing the right thing.").
n424. Daphne Barak-Erez, Israel: The Security Barrier-Between International Law, Constitutional Law, and Domestic Judicial Review, 4 Int'l J. Con. L. 540, 547-48 (2006) ("Paradoxically, the two courts have something in common - namely, a narrow view of the motivations behind the construction of the barrier. The ICJ held that the barrier was a political move and, therefore, refused to acknowledge its security purposes. By contrast, the Israeli Supreme Court firmly held that the barrier was not politically motivated, and that its sole concern was security. The two courts were not open to the possibility that, in fact, both motivations were inseparably linked in the considerations inspiring the barrier's construction.").
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