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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n425. See U.N. GAOR, Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, U.N. Doc. A/ES-10/273 (July 13, 2004) (discussing the International Court of Justice opinion regarding the wall).
n426. Id.
n427. Id.
n428. .See Press Release, USDOS, A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (Apr. 30, 2003), http://www.state.gov/r/pa/prs/ps/2003/20062.htm (stating that "[a] settlement, negotiated between the parties, will result in the emergence of an independent, democratic, and viable Palestinian state living side by side in peace and security with Israel and its other neighbors"); ICJ Wall Advisory Opinion, supra note 2, at 1054, para. 162 ("Illegal actions and unilateral decisions have been taken on al1 sides, whereas, in the Court's view, this tragic situation can be brought to an end only through implementation in good faith of al1 relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The "Roadmap' approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end.").
n429. See Appendix 4.
n430. See U.N. Office for the Coordination of Human Affairs [OCHA], OCHA Closure Update occupied Palestinian Territory (Apr. 2007), http://www.ochaopt.org/ documents/Closure%20Apr07_2.pdf (discussing flying checkpoint positions and limits on Palestinian access to different parts of Israel).
n431. Id.
n432. Id.
n433. Id.
n434. See, e.g., Orakhelashvili, supra note 207, at 134-39 (favoring the ICJ's Advisory Opinion over that of the HCJ).
n435. See, e.g., Palestinian Civil Soc'y, Calls for Boycott, Divestment and Sanction against Israel Until It Complies with International Law and Universal Principles of Human Rights, July 9, 2005, available at http://www.stopthewall.org/downloads/pdf/ BDSEnglish.pdf (calling on civil organizations and people around the world to impose sanctions against Israel similar to those imposed upon South Africa during Apartheid); BADIL, The Electronic Intifada, Palestinians Attend World Social Forum, Jan. 20, 2007, http://wsf2007.org/info/media-articles-online/palestinians-attend-world-social-forum (reporting that a Palestinian delegation supporting this initiative attended the World Social Forum in Nairobi in January 2007).
n436. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, 244 (2006).
n437. Id. at 245, para. 4.
n438. Id.
n439. Id. at 231, para. 70.
n440. ICJ Wall Advisory Opinion, supra note 2, at 1054-55, para. 163.
n441. Eldar Akiva, Pulling Out Phase Two of the Road Map, Ha'aretz (Jerusalem), June 14, 2006, available at http://www.haaretz.com/hasen/objects/pages/ PrintArticleEn.jhtml?itemNo=726062.
n442. I would like to thank John Dugard and Aeyal Gross for drawing this to my attention. Ha'aretz reported that Justices Aharon Barak, Dorit Beinisch, and Ayala Procaccia severely criticized the government for concealing in earlier High Court hearings that the existing route was determined partly by a master plan for expanding the settlements, and not solely for security considerations. See Yuval Yoaz, Court Orders Section of Separation Fence Torn Down, Ha'aretz (Jerusalem), June 16, 2006, available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=727626.
n443. HCJ 2732/05 Hassin and Radwan v. Israel [2005] (Isr.), translation provided courtesy of Michael Sfard, Adv. (on file with author).
n444. Id.
n445. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, 230, para. 67 (2006).
n446. Legal Consequence of Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 36, paras. 28-29 (Feb. 23).
n447. ICJ Wall Advisory Opinion, supra note 2, at 1028, paras. 55-58 (stating the facts and events).
n448. For monthly reports on the situation in the OPT, see the Reports From the Palestinian Monitoring Group (2006), http://www.nad-plo.org/main.php?view= pmg_pmg. See also Under the Guise of Security: Routing the Separation Barrier to Enable the Expansion of Israeli Settlements in the West Bank (2005), available at http://www.btselem.org/Download/200512_Under_the _Guise_of_ Security_Eng.pdf (examining the connection between the settlements and the separation barrier's route).
n449. See Amnesty Int'l, Links to Israeli and Palestinian (Human Rights) Organizations, http://web.amnesty.org/pages/isr-links-eng (providing a list of 45 organizations that are dedicated to human rights work in Israel and Palestine).
n450. ICJ Wall Advisory Opinion, supra note 2, at 1097, para. 24 (separate opinion of Judge Owada).
n451. See Military and Paramilitary Activities (Nicar. v. U.S.), supra note 41, paras. 29-31 (explaining that I.C.J. is not bound to confine its consideration just to the facts that have been submitted).
n452. Id. para. 30.
n453. ICJ, Practice Directions (Dec. 6, 2006), http://www.icj-cij.org/documents/ index.php?p1=4&p2=4&p3=0.
n454. For this view, see Lance Bartholomeusz, The Amicus Curiae before International Courts and Tribunals, 5 Non-State Actors & Int'l L. 209, 223-24 (2005).
n455. ICJ Wall Advisory Opinion, supra note 2, at 1050, para. 141.
n456. Id.
n457. See id. at 1066, paras. 4-5 (separate opinion of Judge Kooijmans); id. at 1079, para. 5 (declaration of Judge Beurgenthal); id. at 1097-98, paras. 30-31 (separate opinion of Judge Owada).
n458. See id. at 1050, para. 141 (addressing the terrorist attacks on Israel). Interestingly, neither the Beit Sourik court nor the Mara'abe court addressed the question of Israeli attacks on Palestinians.
n459. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, 245, para. 4 (2006).
n460. See ICJ Wall Advisory Opinion, supra note 2, at 1035, para. 91 (ICJ acknowledging the P.L.O.'s request to unilaterally accede to the Geneva Conventions in 1982). But see Application to Accede to the Geneva Convention, 5 Palestine Y.B. Int'l L. 318, 319 (1989) (ICJ failing to mention that this effort to accede was opposed by both the United States and Israel).
n461. See Geneva Convention IV, supra note 20, art. 147 (prohibiting collective punishments under Article 147 of Geneva Convention IV and Article 75 of Additional Protocol I); Legal Consequence of Construction, ICJ Advisory Opinion, supra note 446, at 51, para. 23 (oral pleadings of Vaughan Lowe).
n462. Albie Sachs, Justice of the S. Afr. Constitutional Court, Talk at Logan Hall, Institute of Education: Tales of Terrorism: I Was Thirty-Nine Years Old and Quietly Teaching at Southampton University When I Discovered I Was a Terrorist (Apr. 26, 2006) (author attended). This talk was organized and sponsored by the Sir Joseph Hotung Programme in Law, Human Rights and Peace Building in the Middle East at the School of Oriental and African Studies, University of London. Sachs was severely injured in a terrorist attack (a bomb was placed under his car) and carried out by a secret agent working for the apartheid government in the late 1980s.
n463. See Eqbal Ahmad, PLO and ANC: Painful Contrasts, in The Selected Writings of Eqbal Ahmad 76 (Carollee Bengelsdorf, Margaret Cerullo, & Yogesh Chandrani eds., 2006) (discussing the difference in tactics between the PLO and the ANC).
n464. HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] (Isr.), translated in 43 I.L.M. 1099 (2004); HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, P 14 (2006).
n465. Having said this, the ICJ's cursory treatment of Palestinian self-determination was dealt with in a similar fashion in the East Timor and Western Sahara cases. For instance, in its decision on East Timor, the ICJ merely repeated the relevant U.N. resolutions recognising that the East Timorese have a right of self-determination. It did not actually elaborate on the norm in much detail in the context of the specific circumstances in East Timor. Instead, it simply discussed the issue in a very general manner. See Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90 (June 30) (failing to, as Judge Weeramantry noted in his dissent, "examine such seminal issues as the duties flowing to Australia from the right to self-determination of the people of East Timor or from their right to permanent sovereignty over their natural resources"). The fact is that the ICJ could probably have spent more time examining the issue since Australia's objections as to the admissibility of Portugal's application "were inextricably linked to the merits and should therefore be determined within the framework of the merits." Id. at 98, para. 19. For commentaries on East Timor, see generally Iain G.M. Scobbie & Catriona Drew, Self-determination Undetermined: The Case of East Timor, 9 Leiden J. Int'l L. 185 (1996); and Drew, supra note 204.
n466. See Full text: The Palestinian Two-State Blueprint, Times Online, May 25, 2006, para. 18, http://www.timesonline.co.uk/article/0251-2196956.html.

To work on expanding the role and presence of the international solidarity committees and the peace loving groups that support our people in their just struggle against the occupation, settlements, the apartheid Wall politically and locally and to work towards the implementation of the International Court of Justice decision at The Hague pertaining to the removal of the Wall and settlements and their illegitimate presence.


Id.
n467. Recourse to conciliatory methods of dispute resolution is something the Palestinians have tried before. In 1947, they lobbied Egypt and Syria to muster support in the General Assembly to petition the ICJ for an Advisory Opinion which ultimately failed. See U.N. Ad Hoc Committee on the Palestinian Question, 32d Sess., U.N. Doc. A/AC.14/SR.32 (Nov. 25, 1947) (prepared by Thor Thors).


n468. See generally Pertile, supra note 2 (discussing the legal consequences of constructing the wall).
n469. See, e.g., Charles Krauthammer, Travesty at The Hague, Wash. Post, July 16, 2004, at A21 (describing the ICJ as a "kangaroo court"); Alan Dershowitz, Israel Follows Its Own Law, Not Bigoted Hague Decision, Jerusalem Post, July 11, 2004, at 1 (reporting an unfavorable view of the ICJ as of "questionable status" and deserving of no deference from Israel).
n470. All maps obtained from the Office for the Coordination of Humanitarian Affairs, Occupied Palestinian Territory, Map Center, http://www.ochaopt.org/.
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