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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Because Article 4 restricts the scope of Geneva Convention IV to "protected persons," the HCJ has sought to rely on the Hague Regulations where there are no such restrictions. n81 However, this still does not change the fact that the settlements, which the HCJ has admitted the wall is designed to protect, are contrary to Article 49(6) of Geneva Convention IV. n82 It is therefore hardly surprising that the HCJ refuses to address its applicability. Yet the Hague Regulations are supposed to be supplemented by the relevant provisions of Geneva Convention IV, as well as the Additional Protocols of 1977 (which Israel has not ratified, although Additional Protocol 1 (AP1) may be said to represent customary international law, and was even mentioned in the General Assembly's December 2003 resolution [*1442] requesting the Advisory Opinion from the ICJ). n83 Thus, contrary to the findings of the HCJ, Article 43 cannot be construed as providing the Israeli military commander with the obligation to defend the lives and safety of Israelis living in illegal settlements by constructing a wall. Article 43 was never drafted to accommodate a settler population; rather, it was intended to safeguard the interests of the local population who found itself under belligerent occupation. Hence, the whole of Article 43 is written in the past tense. n84

It may also be queried whether establishing Israeli civilian settlements amidst a Palestinian population struggling for independence and statehood in East Jerusalem, the West Bank, and the Gaza Strip for nearly four decades is likely to restore and ensure public order and life. n85 Indeed, it would seem that the very presence of the Israeli settlements contributes to acts of violence, riots, and civil disturbance. n86 Some would even argue that the continued construction of the settlements was one of the primary factors that led to the collapse of the "Oslo Peace Process." n87 Therefore, [*1443] 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." n88

B. The Settlers, the Settlements, and Human-Rights Law

It is submitted that Israeli settlers may not invoke human rights law to justify their living in the OPTs for the following four reasons: (1) IHL prohibits establishing settlements in occupied territories and is the lex specialis in situations of belligerent occupation; (2) human rights law does not give the settlers the right to live wherever they like; (3) the provisions of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip n89 regarding the settlements are irrelevant to the matter at hand, and cannot derogate from Geneva Convention IV; and (4) the law of self-determination as a norm of customary international law, as the primordial human right and as a jus cogens norm, trumps any rights the settlers may have under general human rights law.

The ICJ has held, in accordance with the long-established position of the U.N. Commission of Human Rights and the practice of the European Court of Human Rights (as reflected in a series of cases concerning Turkey's occupation of northern Cyprus), that international humanitarian and human rights law applies where the occupying power has effective control of the occupied territory. n90 As a result, the indigenous Palestinian population of the West Bank is also entitled to the protection of human rights law. n91 It is therefore clear that Palestinians inhabiting the OPTs are covered by both international humanitarian and human rights law. n92 However, in cases of conflict between these two branches of law, it has been [*1444] suggested that the latter should be interpreted in light of the former as the law specific to belligerent occupation. n93

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ held that the protection of the International Covenant of Civil and Political Rights n94 (ICCPR) does not cease in times of war unless a state has derogated from certain of its provisions in a time of national emergency. n95 The Advisory Opinion notes, however, that respect for the right to life is not a provision that can be derogated from, and that the right not to be arbitrarily deprived of one's life applies also in hostilities. n96 The ICJ then held: "The test of what is an arbitrary deprivation of life ... then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." n97 In its Advisory Opinion in Wall, the ICJ cited its opinion in Nuclear Weapons, stipulating that there are three possible situations with regard to the relationship between international humanitarian and human rights law:

Some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law. n98

In other words, both of these branches of law may, depending on the circumstances, be applicable to situations of belligerent occupation, which the ICJ recently affirmed in its decision in Armed activity in the Congo. n99 However, where there is a clash between human rights [*1445] and humanitarian law, it would seem that IHL would prevail in situations of armed conflict. n100 Although the ICJ in its Nuclear Weapons Advisory Opinion was discussing the test of what is an arbitrary deprivation of life, its finding that IHL is the lex specialis in the course of armed conflict would in principle apply to all conflict situations. n101 It would therefore seem that in case of dispute, international humanitarian law as embodied in The Hague Regulations, Geneva Convention IV, and the Additional Protocols - insofar as they reflect customary international law n102 - would prevail over human rights law. Thus, even though Israeli settlers are protected by the law of human rights, this cannot preclude the wrongfulness of breaching specific rules of international humanitarian law such as Article 49(6) of Geneva Convention IV.

The conclusion to be drawn from this is that while Israelis are entitled to have their human rights respected, the settlements in which they live are unlawful. The government of Israel must therefore cease construction of the settlements and refrain from encouraging its nationals to settle in them. n103 The fact that the settlers have human rights under international law should also not prevent them from being relocated from occupied territory. n104 The settlers cannot invoke human rights law to reside wherever they like, as Article 12 of the ICCPR provides: "Everyone lawfully within the [*1446] territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." n105 Palestine, as long as it remains OPT, is clearly not a state. n106 Secondly, the settlements are not situated in the State of Israel, but in the occupied territories. n107 Moreover, their presence in those territories is unlawful, and Article 12 is consequently inapplicable. n108 Israel may therefore not invoke human rights law to defend the settlers and the settlements in which they live. n109

Nor may Israel invoke the security provisions of the Interim Agreement it concluded with the PLO, as Judge Barak did in Mara'abe. n110 Although Article XII (1) of the Interim Agreement provides Israel with the responsibility for "overall security of Israelis and settlements," this article does not necessarily make the settlements lawful, as it is only concerned with security and public order. Even if one were to interpret these provisions as "legalizing" the settlements, such legalization would be prohibited by Article 47 of Geneva Convention IV, which provides:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by an annexation by the latter of the whole or part of the occupied territory." n111

[*1447] Pictet notes that "agreements concluded with the authorities of the occupied territory represent a more subtle means by which the Occupying Power may try to free itself from the obligations incumbent on it under occupation law." n112 In this regard, it is important to note that Article XXXI (7) of the Interim Agreement on Final Clauses provides, "Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations." n113 This article clearly prohibits any new settlement activity as such activity would affect the status of the West Bank before the outcome of the permanent status negotiations as well as any measures taken to incorporate them within Israel itself. Effectively, Israel is prohibited by Geneva Convention IV from any settlement activity per se, while the Interim Agreement prohibits the creation of any new settlements and the expansion of existing settlements. Thus two separate treaties (Geneva Convention IV and the Interim Agreement) prohibit Israeli civilian settlement activity in the OPTs, as does Israeli municipal law where the settlements are built on private Palestinian property. n114 It could therefore be argued that any measures undertaken by Israel to protect the settlements, which are in themselves unlawful, are contrary to international law. n115

Finally, common Article 1 to both the ICCPR and the International Covenant on Economic, Social, and Cultural Rights n116 (ICESCR) provides: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." n117 Evidently, this is the preeminent human right from which all other human rights flow. It is also widely regarded to be a peremptory norm of international law, as reflected in both custom and treaty law, and is therefore presumably binding under Israeli law. n118 Therefore, even if general human rights law is applicable to the settlers, the Palestinian people's right of self-determination takes precedence, especially as the Israeli settlements established after 1967 directly [*1448] conflict with their right of self-determination. The Palestinian people cannot pursue this internationally recognized right when the settlers, the soldiers, and the Israeli government are interfering with their economic, social, and cultural development. n119

C. The Settlements as De Facto Annexation

Despite claims to the contrary, n120 Israel's construction of the wall in the West Bank (in and around East Jerusalem) and its enclosure of the large settlement blocs located there are acts that in their very essence amount to de facto annexation. Indeed, Judge Barak's repetition in his judgment in Mara'abe of the assertion he had made in Beit Sourik, that "the military commander is not authorized to order the construction of a separation fence if the reason behind the fence is a political goal of "annexing' territories of the area to the State of Israel and to determine Israel's political border," is undoubtedly correct. n121 However, after making this statement, Judge Barak went on to conclude that the wall's route was not politically motivated, and that it is therefore not tantamount to de facto annexation. n122 This conclusion is, however, a very odd one to reach, especially since state representatives from the government of Israel had previously admitted, in a public session concerning the wall in another case, that "political considerations" did dictate to a certain extent the wall's route. n123 Surely, therefore, the only logical conclusion is that those sections of the wall that incorporate the large Israeli settlement blocs into Israel are acts tantamount to de facto annexation, according to Judge Barak's statement in Beit Sourik.

It may be true that Israel has not in fact annexed the territories de jure because it did not purport to annex East Jerusalem through [*1449] the act of its legislature until 1980. n124 But for all intents and purposes, Israel effectively annexed that city soon after its capture in 1967, an action that was condemned by the U.N. Security Council on several occasions. n125 This condemnation was even acknowledged by the HCJ in a number of decisions from the late 1960s and early 1970s. n126 Israel may, in fact, refrain from any de jure act of annexation precisely to avoid condemnation from the U.N. Security Council. But is it not annexation in all but name for Israel to incorporate the settlement blocs by widening the municipal boundaries n127 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." n128 It then held:

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The Court considers that the construction of the wall and its associated regime create a "fait accompli" on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation. n129

Indeed, the prognosis of the ICJ, as well as that of the U.N. Special Rapporteur (who - in his periodic reports to the Human Rights Commission - had defined as de facto annexation Israel's actions in constructing the wall around East Jerusalem), proved to be correct. n130 In February 2006, B'Tselem - the Israeli Information Center for Human Rights in the Occupied Territories - reported that Israel had effectively annexed the Jordan Valley by barring almost all Palestinians from entering the region. n131 The Jordan Valley accounts for a third of the West Bank. n132 The result of this annexation is that Palestinians in the West Bank are hemmed in on all sides: by the wall in the north, west, and south, and by the "security corridor" in the Jordan Valley to the east (see map 2 in Appendix). n133

Ehud Olmert, Israel's acting Prime Minister, told the Knesset (Israel's Parliament) on February 12, 2006, that "the first objective of the next Knesset will be to fix the permanent borders of Israel." n134 Prior to this statement, Condoleezza Rice, the U.S. Secretary of State, had been quoted by Agence France-Presse as saying, "Under no circumstances should anyone try and do that [set borders] in a preemptive or predetermined way, because these are issues for negotiation at final status." n135 And even before Secretary Rice's statement, Tzipi Livni, who was then Israel's Minister of Justice, was quoted by an Israeli newspaper as saying that the wall would serve [*1451] as "the future border of the State of Israel" and that the HCJ in its rulings "is drawing the country's borders." n136

Even if Israel does at some future date incorporate the West Bank settlements into Israel by passing a law in the Knesset, the ICJ in its Advisory Opinion made it clear that all territory to the east of the 1949 Israel-Jordan armistice line is occupied territory in which Israel only has the status of an occupying power. n137 This, of course, includes East Jerusalem and the settlements surrounding it. The laws of occupation therefore remain applicable to that territory, regardless of what Israel's municipal laws may say.

IV. The Wall and Self-Determination

The cumulative impact of the wall (its route, scale, and composition), its associated regime (checkpoints, military laws, and closed military zones), the "security corridor" in the Jordan Valley (a no-go area for Palestinians), and the discriminatory road system n138 linking Israeli civilian settlements in the West Bank to each other and to nearby military bases, substantially reduces the territorial sphere in which the Palestinian people seek to exercise their right of self-determination. n139 In its discussion of the wall's route and the regime associated with the wall in both the Beit Sourik and Mara'abe cases, the HCJ hardly mentioned these so-called "facts on the ground" or the recognition that the Palestinian people have a right of self-determination as a matter of international law. n140 It was also [*1452] inadequately addressed by the ICJ in its Advisory Opinion. n141 For instance, the ICJ's historical resume in paragraphs 70 through 78, which touches upon the origins of the question of self-determination, was not faultless - as Judge Kooijmans noted. n142 Therefore, a much more rigorous assessment of how the construction of the wall adversely affects the right of self-determination would have been appropriate, especially as the ICJ accepted that the wall "severely impedes the exercise by the Palestinian people of [their] right of self-determination." n143 The question of self-determination lies at the heart of the Israel-Palestine conflict and is linked to the controversy concerning Israel's right of self-defense from attacks emanating from occupied territory, which will be addressed in Part V.



It is submitted that the manner in which the ICJ dealt with the question of self-determination was rather formulaic. The Court first [*1453] mentions self-determination in paragraph 88 of its Advisory Opinion, noting that self-determination is "enshrined in the U.N. Charter and reaffirmed by the General Assembly in Resolution 2625 (XXV)." n144 It then cites Article 1 common to the ICCPR and the ICESCR, as well as its jurisprudence in Namibia and East Timor. n145 In paragraph 118, the ICJ observed that "as regards the principle of the right of peoples to self-determination ... the existence of a "Palestinian people' is no longer in issue." n146 Actually, the existence of "a Palestinian people" has never really been an issue, for Palestinians had been recognized as "a people" during the time of the League of Nations. n147 Already in 1922, the British government had recognized "the people of Palestine," who were specifically mentioned no fewer than six times in an exchange of correspondence between the Palestine Arab Delegation and J.E. Shuckburgh, who was instructed to write on behalf of Winston Churchill, then Secretary of State for the Colonies. n148 Moreover, Britain was prepared to create an Arab agency to occupy a position exactly analogous to that accorded to the Jewish agency under Article 4 of the Mandate. That is, it was to be recognized as a public body for the purpose of advising and cooperating with the administration in such economic, social, and other matters as may affect the interests of the non-Jewish population, and, subject to the control of the administration, of assisting and taking part in the development of the country. Upon the establishment of the Arab Agency, Britain, as the Mandatory Power, intended to approach the League of Nations to seek its approval and place these changes upon "a formal footing." n149 However, this offer was unanimously declined by the Arab leaders of the day on the ground that "it would not satisfy the aspirations of the Arab people." n150 Evidently, the leaders of Palestine's Arab [*1454] community therefore had legal and political rights that were recognized and acknowledged by Great Britain. n151 It would therefore have been prudent for the ICJ to have, at the very least, noted that the right of the Palestinian people to self-determination had its genesis in the Covenant of the League of Nations and in the period in which Palestine was placed under the tutelage of Britain during the Mandate. n152 "Although decolonization was not explicitly referred to, the overall concept behind Article 22 of the Covenant may be regarded as the first manifestation of the ultimate goal to abrogate ... colonial systems, [a goal] that was still being pursued by many European states" at the time. n153 After all, the Mandate system - like the U.N. Charter system - did not explicitly promote continued or new colonial power. n154 And it was the idea underlying the concept of the Mandate and its "sacred trust" that would [*1455] eventually work its way into the Trusteeship System of the United Nations. n155

The ICJ then went on to note that the 1995 Israel-Palestinian Interim Agreement refers a number of times to the Palestinian people and their "legitimate rights" (citing the preamble; paragraphs 4, 7, and 8; Article II, paragraph 2; Article III, paragraphs 1 and 2; and Article XXXII, paragraph 2). n156 It therefore considered that these legitimate rights "include the right of self-determination." n157 However, it should be noted that although the Palestinian people's right of self-determination is not dependent upon its recognition by Israel, the occupying power, Israel implicitly recognized this by being party to the Interim Agreement. Moreover, the British Mandate provided both Jews and Arabs with the right of self-determination in Palestine, which was given recognition by the 1947 U.N. partition plan n158 and the effort to establish a U.N. Trusteeship. n159 Their right of self-determination was also confirmed by state practice in the period preceding the adoption of the U.N. Charter as provided for by Article 22 of the Covenant of the League of Nations. In this regard it is telling that all "A-class" Mandates would become independent states, the exception being Palestine. n160 It would therefore be nonsensical for Israel to deny de jure recognition of the right of the Palestinian people to self-determination when the basis for its own right has its origins with that of the very people with whom it is [*1456] destined to share that land. Thus, when the ICJ affirmed the right of self-determination as an obligation erga omnes, this would apply to both Jews and Arabs. However, in this particular instance, it is Israel who is depriving the Palestinians of the exercise of this right, by building a wall through territory in which they aspire to create their state. As the ICJ observed:


The obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature "the concern of all States" and, "in view of the importance of the rights involved, all States can be held to have a legal interest in their protection." (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination...

In the East Timor case, [the Court] described as "irreproachable" the assertion that "the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character" (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV)... .

"Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle... .' n161

The HCJ only mentioned the right of self-determination in passing in the Mara'abe case. n162 It merely noted that Judges Higgins and Kooijmans criticized in their separate opinions certain aspects of the ICJ's finding that the wall impinges upon the Palestinian people's right of self-determination. n163 In fact, only six ICJ judges (in five separate opinions and one declaration) referred to the question of the impact of the wall on Palestinian self-determination. n164 Judge Koroma cited the U.N. partition resolution and noted that the construction of the wall would prevent the Palestinian people from creating a state. n165 Judge Al-Khasawneh was of the opinion that it was Israel's prolonged military occupation and its policy of creating fait accomplis on the ground (which presumably also includes the construction of the wall) that prevented the Palestinian people from [*1457] exercising their right of self-determination. n166 Judge Elaraby simply repeated some of the relevant passages from the ICJ's Advisory Opinion on self-determination. n167 Judge Kooijmans thought that it would have been better if the Court had left the issue of self-determination to the political process. n168 However, he admitted that "the mere existence of a structure that separates the Palestinians from each other makes the realization of their right to self-determination far more difficult." n169 In his Declaration, Judge Buergenthal also agreed with the court's findings that the wall severely impedes the Palestinian people's exercise of their right of self-determination and that Israel was breaching this right. n170 However, he did not necessarily believe that the issue was relevant "to the case before us" and thought that Israel's right of self-defense could have precluded any wrongfulness in this regard (which is discussed more in Part V). n171 Judge Higgins considered the ICJ's finding that the construction of the wall "severely impedes the exercise by the Palestinian people of its right of self-determination, and is therefore a breach of Israel's obligation to respect that right" a non sequitur. She then elaborated upon this point:

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