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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A. Self-Defense, Self-Determination, and State Attacks

In the Mara'abe case, the HCJ expressed its bewilderment that Article 51 of the U.N. Charter only applies when one state militarily attacks another state. n234 As Judge Higgins duly noted, "There is ... [*1473] nothing in the text of Article 51 that thus stipulates that self-defence is available only when an armed attack is made by a State." n235 Rather, this qualification is a result of the ICJ so determining in Nicaragua, which based this finding of law upon the consensus interpretation placed upon the Definition of Aggression annexed to General Assembly resolution 3314. Article 3 of the Definition stipulates that an act of aggression must originate from another state, which stipulation the ICJ assimilated to an armed attack for the purposes of its discussion of Article 3(g). n236 That an armed attack must originate from a State is also, according to one study, a reflection of the majority interpretation advanced by international lawyers. n237 As the ICJ held in its Nicaragua ruling:

The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. n238



The ICJ's opinion on this point of law has been subject to intense criticism because, some argue, the practice of states since the late 1990s allows them to invoke the right of self-defense under Article 51 in the event of an attack by a non-state actor. n239 There may also be difficulties in ascertaining how much force is necessary before an attack amounts to an armed attack as opposed to "a mere frontier incident." n240 Taking its cue from a number of critical commentaries in the American Journal of International Law, the HCJ in Mara'abe [*1474] found the ICJ's reasoning regarding Article 51 of the U.N. Charter "hard to come to terms with," and doubted whether it "fits the needs of democracy in the struggle against terrorism." n241 Without entering into a debate over definitions of democracy and terrorism, since the definitions of both are rather controversial in the Middle East, n242 it is fair to say that the reasoning of the ICJ on the scope of Article 51 leaves something to be desired. n243 But it is arguable that the ICJ summarily dismissed Israel's plea, because when Article 51 is looked at in its entirety (meaning when one considers it in the context of the U.N. Charter as a whole), it is evidently inapplicable to the facts at hand; the U.N. Charter only applies to its members, with membership of the organization restricted to "peace-loving States." n244 Furthermore, Article 51 is an exception to the prohibition of aggression contained in Article 2(4), which only applies to states, and which, when coupled with Article 2(3), requires them to settle their disputes peacefully with one another. n245 This also tallies with the principles of sovereign equality mentioned in Article 2(1) and the doctrine of non-intervention. n246 The law on the threat or use of force [*1475] in the Charter is state-orientated. Whether the law has changed in the aftermath of the September 11 attacks on the United States so that it can apply to armed attacks carried out by non-state actors is still open to debate n247 and will depend somewhat on the nature of the non-state actor (as not all non-state actors are considered terrorist organizations). n248 Moreover, the practices of states such as Israel and the United States (and even the United Kingdom) in the "global war on terror" are not universally accepted as representing the current state of international law on the use of force and self-defense. n249 In order to determine whether the law has indeed changed, one would have to consider the Charter provisions as interpreted through both state practice and opinio juris. n250 Although there has been a definite trend since September 11, with most members of the Security Council (as well as NATO) invoking the right of self-defense against non-state actors, n251 this is not necessarily universally accepted as reflecting the [*1476] law in parts of Africa and the Islamic world (or amongst the non-aligned movement). n252 For instance, while there may be agreement that attacks by terrorist organizations fall within the scope of Article 51, depending on the severity of the attack, there may be disagreement as to whether a state can use force in "self-defense" against a people struggling to exercise their right of self-determination (such as in Kashmir, Western Sahara, and elsewhere). n253 From the statements made in various international forums, n254 it is evident that many states do not view Israeli attacks against Palestinians in the OPTs as legitimate acts of "self-defense," and they do not view Palestinian attacks against Israel as "terrorism," although many such actions could be described as such. n255 For example, the Charter of the Organization of the Islamic Conference provides that its objectives include, among other things, "to co-ordinate efforts for the safeguard of the Holy Places and support of the struggle of the people of Palestine, to help them regain their rights and liberate their land," as well as "to strengthen the struggle of all Moslem peoples with a view to safeguarding their dignity, independence and national rights." n256 One should therefore be careful in assessing state practice, especially because some sixty states in the world today (which is almost a third of the entire [*1477] membership of the General Assembly) have majority Muslim populations. n257 As Christine Gray writes:

The natural focus of writers on controversial cases where states invoke self-defence in protection of nationals, anticipatory or pre-emptive self-defence, and response to terrorism inevitably gives an unbalanced picture or distorts our perception of state practice; it helps to give the impression that the far-reaching claims of states like the USA and Israel are normal rather than exceptional. n258



Critics n259 of the paragraph on the inapplicability of self-defense in the ICJ's Wall Advisory Opinion have also cited the Caroline precedent n260 as a case in which a state used force against a non-state actor. However, the Caroline precedent should be used with the utmost caution, for it emanates from an era when there was no prohibition on the use of force by states. n261 If it is at all relevant today, it is regarding the question of necessity and not self-defense. Moreover, the Caroline case can hardly be compared to the present conflict between Israel and the Palestinians. The U.S. was not an occupied territory but a sovereign state when the Caroline incident occurred. n262 Moreover, at the time, both Upper and Lower Canada were British colonies (hence the protest by Great Britain over the [*1478] arrest of Alexander McLeod, as it claimed that the destruction of the Caroline was the public act of persons on Her Majesty's service and that, as a consequence, individuals acting under such authority were not personally responsible for executing the orders of their government). n263 The same certainly could not be said about Israel's relationship with the Palestinians, which could hardly be described as peaceful (or as a relationship between equals). n264 Of course, this also took place before the U.N. Charter was drafted and before self-determination was established as a legal right and an obligation erga omnes. n265 Citing the Caroline as a precedent for acting in self-defense - as opposed to its continuing relevancy to the question of necessity - also ignores the development of customary international law prior to the adoption of the U.N. Charter and afterwards. n266 Moreover, the Caroline criterion can be abused all too easily if it is not used with caution. n267 Although it has been suggested that Article 51 of the U.N. Charter can apply to non-state actors because the threat in the Caroline came from a non-state entity, n268 this surely would not make any difference today because, at the time, the legal status of the entity that carried out that attack was irrelevant. Rather, the dispute between Great Britain and the United States during the Caroline debacle arose on an interpretation of the law: the circumstances and conditions under which the concept of what they understood at the time to be "self-defense" could serve as a proper justification for the use of force by one nation against another. n269 In [*1479] 1840, the question as to whether a state could only act in self-defense against another state was not an issue; it only became relevant after the adoption of the U.N. Charter in San Francisco in 1945, which only applies to its constituent states. n270 Furthermore, it is even doubtful whether Israel could justify building the wall as a legitimate act of self-defense along its present trajectory according to the Caroline criteria because the Israeli government would have to show a "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation." n271 In other words, Israel would have to prove that it was absolutely necessary to build the wall in occupied territory as opposed to building it within its own territory or along the 1949-ceasefire lines. To date, Israel has provided no valid justification for building the wall where it is. n272

Admittedly, this may be a conservative analysis of Article 51 and the customary international law rules on the recourse to armed force. It is also true that the world is a very different place today than it was when the Charter was drafted in 1945. n273 Yet one must not forget that the struggles in the Middle East are not new. Any difficulties that have arisen with the Charter's interpretation in light of the Israeli-Palestinian conflict are not the fault of the draftsmen. In this particular instance, it is the result of Israel's refusal to withdraw from the territories it occupied in 1967. In so doing, it is forcibly depriving the Palestinian people of their right to exercise self-determination and stretching the limits of self-defense into uncharted waters - for belligerent occupation is supposed to be a relatively temporary phenomenon. n274 Forcibly depriving a people of their right [*1480] to exercise self-determination is considered a breach of an obligation erga omnes by the ICJ, and is in itself a violation of international law. n275 In such circumstances, resistance is inevitable. The United Nation's Definition of Aggression provides:


Nothing in this Definition, and in particular article 3, could in any way prejudice the right of self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right ... particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration. n276



It is well known that all peoples subjected to colonial and racist regimes or other forms of alien domination have resisted such injustices at one time or another. n277 In his separate opinion in the Namibia case, Judge Ammoun considered that "the struggle of peoples in general has been one, if not indeed the primary, factor in the formation of the customary rule whereby the right of peoples to self-determination is recognized." n278 Although positive international law provides no explicit basis for a people struggling for freedom and independence to achieve this, no rule of international law prohibits this either (it only proscribes the conduct of those struggling for this right). In fact, such resistance need not necessarily be violent. For instance, non-violent resistance is reflected in the terminology employed by the Definition of Aggression ("struggle" as opposed to "armed struggle") and exemplified by Mahatma Gandhi's revolt against the British in India, the struggle of black South Africans against the minority white apartheid government in Pretoria, and even the Palestinian people's struggle for freedom against Israeli occupation from 1987 until 1993. n279 Of course, any quasi-military [*1481] actions taken by Palestinian organizations against Israel would be subject to the customary rules of IHL, and in particular Article 48 of Additional Protocol 1, which provides as a basic rule that the belligerents "shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives." n280 Islamic international law also proscribes the conduct of belligerents: "Those non-combatants who are unable to participate in hostilities are classed as protected persons and cannot be attacked, killed or otherwise molested." n281 It should be added that as the Charter's provisions on self-defense only apply to its members, and as there is no Palestinian state at present with membership in that organization, it is arguable that they are not bound by its constraints - such as a prior armed attack - but only by the customary law principles of proportionality and necessity. Consequently, the Palestinians could claim that they have an "inherent" right to protect themselves from Israeli aggression. n282 Since the occupation of foreign territory, even if it resulted from an act of justifiable self-defense, could constitute by itself an act of armed aggression, n283 the Palestinians could always argue that they have a right to respond and to anticipate future Israeli attacks. In this respect, those in Israel who advocate an expansive interpretation of self-defense should be aware that such arguments could be used against them. n284 However, it is submitted that the conflict between [*1482] Israel and the Palestinian people within the occupied territories is not a question to be determined according to the jus ad bellum, but rather by the jus in bello, and that consequently the question of self-defense is not really relevant to this debate. n285 Widening the scope of self-defense so that it can be invoked by both Israelis and Palestinians is likely to lead to further conflict contrary to the spirit of the U.N. Charter, which is "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."

But perhaps the debate on the nature of the attacker is all really "beside the point" as Judge Kooijmans noted, since Israel was not claiming that the terrorist attacks against its civilian population emanated from another state. n286 Even if it is accepted that state practice has changed since September 11 and Article 51 can apply to non-state actors, n287 Israel would still be precluded from invoking Article 51 because it exercises effective control in the OPT as the occupying power, and therefore the situation, as the ICJ noted, is different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), which speak of international terrorism. n288

B. Self-Defense and Occupied Territory

An occupying power may not invoke self-defense under Article 51 of the U.N. Charter to respond to attacks coming from occupied territory because it has effective control there. n289 In this regard, it would be nonsensical for a state to claim such a right, as attacks that come from a territory and a population over which it exercises effective control is equivalent to an attack emanating from its own territory and population. In this respect, a state would not invoke self-defense to attack itself. Furthermore, jurisprudence from World War II provides support for the view that occupying powers cannot claim a right of self-defense to attack rebels situated in a territory under its effective control. This is because self-defense does not [*1483] belong to the rules regarding the conduct of hostilities (the jus in bello) but instead to the rules governing the recourse to armed force (the jus ad bellum). The only possible justification for using force against an occupied people is provided by the rules regulating the conduct of belligerent reprisals, not the law of self-defense. n290

The fact that Israel is an occupying power in the West Bank (which includes East Jerusalem) is significant precisely because Israel, as the ICJ noted, exercises effective control there. n291 Israel is consequently caught in a legal limbo: on the one hand it has no sovereignty over the territory, but on the other hand it exercises effective control as the occupying power with the concomitant responsibilities set out in the Geneva Conventions. The simple fact is that Israel cannot have it both ways. Either, it must withdraw from the territories and give the Palestinians the opportunity to create a viable and independent state, or it must accept its responsibilities as the occupying power and abide by the rules of belligerent occupation. Israel evidently desires the territory but not the people who inhabit it, which is precisely why it has never annexed the West Bank or Gaza, an act that would trigger its obligation to grant citizenship rights to the native population. n292 The whole question of the Israel-Palestine conflict, the use of force, and self-defense are inextricably tied up with the question of self-determination. Until this is resolved in a satisfactory manner in accordance with international law, these problems will remain.

It should be recalled that Israel was not created in a territorial vacuum. n293 The Palestinian Arabs have every right to be there as the [*1484] indigenous population of any territory. They are not "foreign" to Israel. Therefore, one cannot invoke their "foreign nationality" as an external link or basis for invoking the right of self-defense. n294 Rather, their statelessness, meaning their lack of nationality, is a direct consequence of actions taken by the Israeli legislature, which unlawfully denationalized them (that is, stripped them of their prior nationality status) in 1952. n295 The passage of time does not cure that illegality. n296 Therefore, it is arguable that Palestinian attacks against Israel come very close to domestic forms of violence, and that Article 51 is therefore inapplicable. n297 However, the situation is more complex. The Palestinians have stated that they want to establish an independent Palestinian state in the OPTs, from which Israel refuses to withdraw. n298 As with most self-determination disputes, the conflict has both international and domestic characteristics. n299 The ICJ is therefore not being inconsistent when it ruled that Article 51 is inapplicable because Palestine is not a state; n300 this is a matter of fact. The rules of belligerent occupation continue to apply because [*1485] when that territory was captured in 1967, it was Jordanian territory (even though its annexation was only recognized by three states), and the inhabitants of the West Bank had Jordanian nationality (though many lost it in 1988, when Jordan gave up its territorial claims). n301 The conflict has therefore evolved politically from one between Israel and Jordan to one between Israelis and Palestinians. Geneva Convention IV remains applicable, however. That Jordan claimed sovereignty over the West Bank until 1988 "only strengthens the argument in favour of the applicability of the Fourth Geneva Convention right from the moment of its occupation by Israel in June 1967." n302 In fact, Jordan was, at the time of the June 1967 war, a "High Contracting Party" within the meaning of Article 2 of Geneva Convention IV. n303 To claim that certain Palestinian organizations are somehow alien to the territory and part of a "shadowy network of foreign fighters" is a fallacy unsupported by the facts. n304 Any analogy with the United States' "global war on terror" is simply inappropriate to the question of Palestine, which has been on the U.N. agenda longer than the existence of the Jewish state. n305

As long as Israel exercises effective control over the OPTs, it remains (for the purposes of legal responsibility) equivalent to its own territory. Therefore, Israel's claim of a right of self-defense to respond to attacks that come from the OPTs (over which it exercises effective control) is equivalent to Israel claiming a right of self-defense from an attack emanating from its own territory and population. In other words, there is no right of self-defense against a civilian population under belligerent occupation; there is only the right to enforce the law in accordance with the laws of belligerent occupation. n306 The question is not one of allegiance, as an occupied people owe no allegiance to an occupying power other than to obey [*1486] legitimate orders issued by it. n307 However, according to Article 43 of the Hague Regulations, just because a population under belligerent occupation owes no allegiance to the occupying power does not mean that it has no responsibility for ensuring public order and life in the occupied territory. n308 Nor can the Palestinian civilian population be compelled to accept living under the yoke of Israeli occupation indefinitely. Indeed, due to the length of the Israeli occupation and the extent of the settlement enterprise, some Israeli lawyers are now openly referring to the situation in the OPTs as an "illegal occupation." n309

During World War II, Danish, Dutch, Greek, Italian, Swedish, and Yugoslavian partisans fought the Nazis by concealing their weapons, mingling with the local population, and killing and torturing members of the occupying power. n310 Indeed, many of their actions, grotesque as they were, were not too dissimilar to many of [*1487] the disturbances in the OPTs today. n311 Although the partisans were not generally considered lawful combatants n312 because they concealed their identities and their weapons, the actions of the German Armed Forces were not considered as lawful measures of self-defense either. n313 Self-defense is not available to an occupying power when it has already subdued its enemy and taken control of its territory; it is only available at the start of hostilities, not when they come to an end. n314 Once the occupied territory is under the effective control of the occupying power, the right of self-defense is no longer applicable. An occupying power also does not have the right to determine for itself whether its actions amount to self-defense; only an authorized tribunal or a competent body, such as the Security Council, can validly make the determination. n315 For example, at Nuremberg, the Tribunal found that the question as to whether Germany's actions could be justified as self-defense or whether the manner in which it acquired those territories was legal was ultimately irrelevant, as it could not make that determination for itself. n316 In Tokyo, the International Military Tribunal for the Far East held: "Under the most liberal interpretation of the Kellog-Briand pact, the right of self-defence does not confer upon the State resorting to war the authority to make a final determination upon the justification of its action." n317

Jurisprudence from World War II also provides support for the view that self-defense does not belong to the rules regarding the conduct of hostilities (the jus in bello) but to the rules governing the recourse to armed force (the jus ad bellum). n318 This distinction was made at Nuremberg in In re List and others, n319 when it pointed out that there is no reciprocal connection between the manner of the military occupation of territory (i.e., whether this entailed a violation [*1488] of the jus ad bellum) and the rights and duties of the occupant and population to each other after the relationship has in fact been established (the jus in bello). n320 In other words, a distinction is made between the jus ad bellum and the jus in bello, so that a violation of the former does not affect the applicability of the latter. n321 It is a cardinal principle of humanitarian law that jus ad bellum applies to all conflict situations irrespective of the justifications advanced in support of military action. n322 In fact, this principle was considered so important that it was subsequently drafted in the preamble to AP1 and is regarded as one of the foundations of the law of armed conflict. n323 Consequently, one must conclude that the law of self-defense has no relevancy to the law of occupation. n324 As Georges Abi-Saab elucidated in his oral pleading before the ICJ on behalf of Palestine regarding the question of self-defense and the laws which regulate the conduct of hostilities in occupied territories:

One of the justifications, self-defence, does not belong to international humanitarian law or the jus in bello, but to the jus ad bellum. Israel makes here an impermissible confusion between the two branches of the law of war that have to be kept radically apart. Once an armed conflict is brought into being, the jus in bello (or international [*1489] humanitarian law) comes into play, as the lex specialis governing the ensuing situation regardless of the rules of the jus ad bellum. n325

Consequently, occupying powers cannot rely on Article 51, which belongs to the jus ad bellum, once major combat operations end. n326 Rather, the law is to be governed by the rules of belligerent occupation, the jus in bello. n327 For an occupying power, the issue is one of maintaining law and order in the occupied territory, which is not, strictly speaking, a question of self-defense. As one prominent international lawyer has noted, it would be odd to conclude that Israel could rely on self-defense to justify its response to acts that denote a breakdown of the same law and order for which it bears responsibility under international law. n328

It would therefore seem that Israel is using the concept of "self-defense" as a subterfuge for undertaking belligerent reprisals, which is permitted in the law of armed conflict but only in exceptional circumstances. n329 It is noteworthy that Israel has not signed or acceded to AP1, which severely curtails the targets a state may attack in response to a prior violation of international law by those it perceives to be its "enemies." n330 However, even then, the reprisal must be directed at those persons responsible for the prior violation, and it must be undertaken for the purpose of putting an end to that violation or preventing further violations, rather than for revenge. n331 Reprisals must also be proportionate and necessary, in the sense that their purpose is to prevent future unlawful conduct and to seek [*1490] redress rather than to exact retribution. n332 However, as one commentator notes: "The notion of collective responsibility upon which the taking of reprisals is based [i.e., that an enemy's military, government, and civilian population may be targeted] has become increasingly at odds with the rules and spirit of contemporary international humanitarian law." n333

C. Self-Defense and International Terrorism

The ICJ was correct to conclude that Security Council Resolutions 1368 (2001) and 1373 (2001) do not apply to Israel's struggle with "Palestine" because Palestine is not a state, and the Resolutions refer to "international terrorism." n334 The Resolutions thus require some form of trans-boundary violence to trigger the right of self-defense under Article 51. It is not by accident that official Israeli maps do not include the 1949 armistice line between Israel and Jordan or the 1967 cease-fire line (known as the "Green Line"). n335 For example, the map produced by Israel's Ministry of Defense to show the route of the wall does not include the Green Line, which is usually portrayed on international maps. n336 The line is omitted because the 1949 cease-fire lines are not political boundaries. n337 Border crossings for Israelis between the West Bank and Israel also do not exist (the new crossings currently being constructed along the [*1491] route of the wall are for Palestinians only). n338 It would therefore seem that the legal significance of the armistice line is simply to delineate the starting point of Israel's occupation of non-Israeli territory. n339 There is consequently nothing international about the acts of terror committed by Israelis against Palestinians and vice-versa; they are endemic to a self-determination dispute. As Professor Yoram Dinstein of Tel Aviv University writes (while specifically referring to the Wall Advisory Opinion):


Of course, when non-State actors attack a State from within - and no other State is involved - this is a case of an internal armed conflict or domestic terrorism. In neither instance does Article 51 come into play at all. An armed attack against a State, in the meaning of Article 51, posits some element external to the victim State. Non-State actors must strike at a State from the outside. n340

Similarly, the Chatham House Principles of International Law on the Use of Force in Self-Defence provide that

an armed attack is an attack directed from outside the territory controlled by the State. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ's observations may be read as reflecting the obvious point that unless an attack is directed from outside territory under the control of the defending State, the question of self-defence in the sense of Article 51 does not normally arise. n341

By characterizing the September 11 attacks as "terrorist," the Security Council's intent seemed to have been to subject the perpetrators to the ordinary criminal law and process, as the relevant international conventions on terrorism - referred to in Resolutions 1368 and 1373 - require. n342 This would, therefore, not give Israel carte blanche to go after the Palestinians in the name of the "global [*1492] war on terror" and to act as though there is no military occupation in the OPT by freeing itself from the constraints imposed by the relevant rules of IHL. n343 As Judge Buergenthal acknowledged in his separate opinion, "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." n344

It will be recalled that the Israeli-Palestinian conflict is no longer solely international in character (the P.L.O. having abandoned such methods as hijackings, kidnappings, and holding foreign governments to ransom), and has not been so since the mid-1980s. n345 The conflict between Israelis and Palestinians in the OPTs is therefore not an international armed conflict between two states, but one between an occupying power and an occupied people (although this could change rapidly, and will to a certain extent depend on outside factors). This was essentially the finding of the March 2001 Report of the U.N. Human Rights Inquiry Commission into violations of Human Rights in the Occupied Arab Territories, including Palestine. The Commission found that


there is no international armed conflict in the region, as Palestine, despite widespread recognition, still falls short of the accepted criteria of statehood. The question then arises as to whether there is a non-international armed conflict, defined by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Tadic case, as "protracted armed violence between governmental authorities and organized armed groups. n346

As this Commission stressed, Palestine is not a state for international law purposes and it is therefore not a member of the U.N.; instead, it has observer status. n347 Israel has no sovereignty over the West Bank [*1493] (or over East and West Jerusalem, the Gaza Strip, and Syria's Golan Heights). Resolutions 1368 and 1373 do not apply in circumstances where attacks on the territory of the occupant emanate from the territory of the occupied - as there is no international dimension to it (although wars of national liberation are considered international conflicts for the purposes of Geneva Convention IV). n348 And it was this consideration, as Judge Kooijmans noted in his separate opinion, that proved decisive in determining those resolutions irrelevant:

The right of self-defence as contained in the Charter is a rule of international law and thus relates to international phenomena. Resolutions 1368 and 1373 refer to acts of international terrorism as constituting a threat to international peace and security; they therefore have no immediate bearing on terrorist acts originating within a territory which is under control of the State which is also the victim of these acts. And Israel does not claim that these acts have their origin elsewhere. The Court therefore rightly concludes that the situation is different from that contemplated by resolutions 1368 and 1373 and that consequently Article 51 of the Charter cannot be invoked by Israel. n349

It may even be questioned whether the Charter's rules on the use of force and self-defense have any application to this situation at all. Judge Higgins, for instance, was unconvinced that non-forcible measures such as building a wall would fall within the scope of Article 51 (although it would seem that the violence accompanying the wall's construction, such as demolishing houses and firing on demonstrators with rubber-coated-metal bullets, is a use of force). n350 Furthermore, it is plainly evident from reading the Charter that these rules are state-oriented. n351 One is therefore not dealing with the jus ad bellum, since major combat operations ended in the West Bank after Israel captured it in 1967. n352 Instead, the rules of [*1494] international humanitarian law, those governing the conduct of hostilities known as the jus in bello, are more appropriate, as discussed above. n353

D. Circumstances Precluding Wrongfulness

Article 21 of the International Law Commission's Draft Articles on State Responsibility provides: "The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations." n354 According to the Commentary, "the term "lawful' implies that the action taken respects those obligations of total restraint applicable in international armed conflict, as well as compliance with the requirements of proportionality and of necessity inherent in the notion of self-defense." n355 Moreover, the action in self-defense must be taken in conformity with the principles and purposes of the U.N. Charter. n356

It would be difficult to describe Israel's actions in constructing the wall in OPT as in conformity with the Charter, especially because the ICJ has accepted that Israel's actions amount to de facto annexation. n357 The wall interferes with the Palestinian people's right of self-determination mentioned in Articles 1(2) and 55 of the Charter, and elaborated upon in the Friendly Relations Declaration. n358 Its construction would also seem to be contrary to the maintenance of international peace and security, which is mentioned in the first article and paragraph of the Charter. n359 Nor could it be said that Israel is settling its dispute with the Palestinian people through "peaceful means" or "in such a manner that international [*1495] peace and security, and justice, are not endangered." n360 Rather, it would seem as though it is the Palestinians who are attempting, in this instance, to settle their dispute peacefully with Israel.

On the question of necessity and proportionality, the ICJ, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, recalled its ruling in Nicaragua, in which it held: ""there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.'" n361 The Court then ruled: "This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed." n362 On the question of proportionality and Article 51 of the Charter, it is worth quoting the opinions of a number of judges from the ICJ in the Wall opinion. None of them accepted that building a wall through the OPT was a necessary or proportionate measure to respond to the terrorist attacks emanating from there. n363 Judge Higgins acknowledged, "Even if it were an act of self-defence, properly so called, it would need to be justified as necessary and proportionate." n364 She continued, "While the wall does seem to have resulted in a diminution of attacks on Israeli civilians, the necessity and proportionality for the particular route selected, with its attendant hardships for Palestinians uninvolved in these attacks, has not been explained." n365 This may indeed be the case, but surely the point is that Israel could have ensured its security by withdrawing from the OPT and building a wall on what is internationally recognized as its territory (i.e., within the 1949 armistice lines). n366 Judge Buergenthal stated that,

given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall [*1496] would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence. n367

Judge Kooijmans opined:

In my view it is of decisive importance that, even if the construction of the wall and its associated regime could be justified as measures necessary to protect the legitimate rights of Israeli citizens, these measures would not pass the proportionality test. The route chosen for the construction of the wall and the ensuing disturbing consequences for the inhabitants of the Occupied Palestinian Territory are manifestly disproportionate to interests which Israel seeks to protect, as seems to be recognized also in recent decisions of the Israeli Supreme Court. n368

The Court as whole ruled that it was not convinced

that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction ... Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. n369

It is evident from these quotations that the learned judges cited above only considered the wall disproportionate and unnecessary because of the particular route chosen. As the late Sir Arthur Watts observed in his oral pleading before the ICJ on behalf of Jordan:

Had Israel built a wall wholly within its own territory, we would not all be here today. And I would just observe that the Court has been given no cogent reasons why it was necessary to build this Wall in Occupied Territory, and why a wall built within Israel's own territory would not have met the security concerns which are alleged to have provoked it. n370

What is of particular interest is whether a wall of the kind Israel is constructing in the OPT could be considered necessary or proportionate if it was constructed solely within Israeli territory. n371 It is evident that such a wall would not be contrary to the U.N. Charter, as it would not amount to acquiring territory by force or in violation of IHL or the law of self-determination if it was accompanied by a full-Israeli withdrawal. n372 But could a 721 [*1497] kilometer (448 mile) wall n373 be considered proportionate to Palestinian terrorist attacks if Israel maintained the occupation? How would one determine proportionality in such a situation?

It is submitted that if Israel was serious about pursuing peace with the Palestinians in the wider Middle East, it could start by entering into negotiations with a view to concluding peace treaties with Iraq, Lebanon, and Syria - countries from the 1948 conflict with which it has still not made peace - while implementing Resolutions 242 and 338. n374 This would, of course, require a full Israeli withdrawal from the occupied territories, which could lead to full peace and normalization with the entire Muslim world (assuming that these countries are acting in good faith when they say they are prepared to make peace with Israel). n375 In order to ensure the mutual security of both Israelis and Palestinians, security arrangements could be created between Israel and the West Bank (including East Jerusalem), Gaza, and the Golan Heights that are similar to those provided for in Article 4 of the Israel-Egypt and the Israel-Jordan Peace Treaties. n376 These security arrangements would [*1498] be without prejudice to the parties' inherent right of self-defense in accordance with the U.N. Charter. In the event that a Palestinian state is created, there would be no question concerning Israel's right recognized by Article 51 of the Charter to defend itself. n377 A Palestinian government would also be obliged to prevent hostile attacks emanating from territories over which it has effective control. n378

VI. The Legal Significance of the Advisory Opinion

Since the ICJ rendered its opinion on the legal consequences of the construction of the wall in the OPTs on July 9, 2004, Israel has adopted a posture of defiance by ignoring the opinion and continuing with the construction process. n379 Although the U.N. has established a register of damage for all natural and legal persons affected by the wall's route, little has been done to urge compliance by Israel with international law. The Arab group did not attempt to lobby the U.N. Security Council for a resolution imposing countermeasures against Israel, nor did it get the U.N. General Assembly to pass a series of non-binding resolutions n380 in the Emergency Special Session n381 calling on third states to undertake countermeasures. n382 In fact, a draft resolution demanding that all U.N. members comply with their legal obligations as identified in the opinion was defeated. n383 The EU, for its part, still allows Israeli companies to benefit from preferential trade with it, even though this is conditional upon respect for human [*1499] rights, democracy, and the rule of law. n384 Looking at the way in which the Advisory Opinion has been received by the international community in the three years since it was rendered, one might therefore conclude that the opinion has little, if any, legal significance. However, to hold this position would be imprudent. Although a number of countries expressed reservations with the Advisory Opinion's paragraph on the question of self-defense, they did not question the court's findings of law in the other 162 paragraphs. n385 In the present political climate, there are many reasons that may explain why the international community has failed to enforce international law on the rules regarding the recourse to force, from the invasion of Iraq without prior U.N. Security Council authorization to Israel's invasion of Lebanon in July 2006. n386 However, just because some states get away with breaching their international legal obligations does not mean that those legal obligations are not binding upon them in the first place.

[*1500] Of course, this will also depend on what one means by "binding." In this respect, it is submitted that a distinction should be made between what is "binding" in the sense that a state, a group of states, or an international organization is obliged to comply with a particular rule, and what is enforceable (i.e., what is politically acceptable to the permanent five countries in the Security Council in the sense that one of them will not exercise its right to veto a resolution imposing countermeasures against a delinquent state). It would, therefore, be advisable for international lawyers, including judges before municipal courts, to make a distinction between politics, the law, and its enforcement.

For instance, after citing a passage from the ICJ's Advisory Opinion concerning the proprietary of giving its advice to the U.N. General Assembly on the legal consequences of constructing the Wall, the HCJ in Mara'abe ruled that the ICJ's opinion is not binding upon states. n387 However, this statement, which was based upon an erroneous citation, n388 misses the point. No state that submitted a written statement or made an oral submission before the Court claimed that the opinion was binding upon them. n389 Indeed, it was the members of the U.N. General Assembly acting collectively who requested the opinion and not its individual member states. n390 In other words, the ICJ's advice is rendered to the U.N. General Assembly, and the Assembly ultimately decides whether to accept the ICJ's advice. n391 It is not up to states A, B, or C to ignore the collective will of the international community. n392 No state can prevent the ICJ [*1501] from giving an Advisory Opinion, and no state can declare that the ICJ's findings of law are without legal effect. n393 A state that seeks to argue that a considered opinion of the Court does not represent the correct state of the law (particularly where the Court's findings, as in the Wall opinion, verge on unanimity) will be in a weak position. n394 The HCJ in Mara'abe seemed to be confusing three separate issues: the nature of Advisory Opinions, the role of the U.N. General Assembly, and the irrelevance of res judicata, which only applies when there are parties to a case. n395

The purpose of Advisory Opinions is to provide authoritative guidance on points of law arising from the functions of organs and specialized agencies of the U.N. But one cannot simply assume that because of the word "advisory" the ICJ's advice is without legal significance altogether. As ICJ noted itself in its Advisory Opinions concerning the Peace Treaties in Bulgaria, Hungary and Romania and on the status of Western Sahara, "The Court's reply is only of an advisory character: as such, it has no binding force." n396 Thus, there may be situations and circumstances under which its opinions will have legal consequences. For instance, in the Wall opinion, the ICJ ruled: "The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law." n397 Erga omnes obligations are, by their very definition, binding. n398 They are concerned with the enforcement of international law, the violation of which is deemed to be an offense not only against the state or entity in question, but against all members of the international community. n399 Whether these norms [*1502] are actually enforced or not is an entirely different matter and has little to do, strictly speaking, with the law. This is the difference between domestic and international law: the latter is not self-executing (if the law ever is). But this is not the same as saying that the law is not binding. As Sir Gerald Fitzmaurice once wrote:

The law is not binding because it is enforced: it is enforced because it is already binding. Enforcement presupposes the existence of a legal obligation incumbent on those concerned. The prospect of enforcement is in fact little more than a factor or motive inclining people to obey rules that they are in any case under an obligation to obey: but it is not itself the source of the obligation. n400

Even before the ascendancy of so-called peremptory norms of international law and obligations erga omnes, it was argued by some international lawyers that the difference between Advisory Opinions and contentious decisions of the ICJ was minimal. n401 In fact, some went so far as to write that there was, in reality, no fundamental difference between a "non-binding" Advisory Opinion and a "binding" judgment. n402 For instance, Blaine Sloane, a former director of the U.N. General Legal Division, made the point in an article he wrote in 1950: "While in a formal sense it may be true that an opinion does not have the binding force of a judgement, practically, it does, as an authoritative statement of law, have almost the same legal effect." n403 In other words, the ICJ states what the law is in both its advisory capacity and when there is a contentious case between states. Andre Gros, formerly a French judge at the ICJ, took a similar view:

The distinction habitually drawn between Advisory Opinions and judgments, whereby the former do not have the binding character of the latter, is not an absolute one. In the first place, it is only the operative part of a judgment that is distinct from an Advisory Opinion as to its obligatory force. As regards the reasoning, this, in both cases, represents the Court's legal conclusions concerning the situation which is being dealt with, and its weight is the same in both cases: there are no two ways of declaring the law. Second, even advisory proceedings [*1503] may involve acts that operate with finality both for the Court itself and for the participating states or organizations. n404

It could be argued that even if this had been a contentious case between Israel and "Palestine," or between a third state such as Jordan (doing what Ethiopia and Liberia tried to do regarding South-West Africa in the 1960s), the result would have been the same - although in a contentious case, Israel would probably have put in full evidence and arguments on the merits. n405 However, in the present circumstances, this would probably not be possible because Israel has withdrawn its consent to the compulsory jurisdiction of the ICJ. n406 Although Assembly resolutions are only recommendatory according to Articles 10-14 of the Charter, this does not affect the legal quality of an Advisory Opinion; it is still a contemporary statement of the law [*1504] by the principal judicial organ of the U.N. Judge Elias went so far as to advance his view that:

If there is unanimity in the Assembly during the vote, all are bound... . If the vote is divided, then those states that vote for a particular resolution by the requisite majority are bound on the grounds of consent and of estoppel. Those that abstain are also bound on the ground of acquiescence and tacit consent, since an abstention is not a negative vote; while those that vote against the resolutions should be regarded as bound by the democratic principles that the majority view should always prevail when the vote has been truly free and fair and the requisite majority has been secured. n407

Resolution ES-10/L.18/Rev.1, passed in the Advisory Opinion's aftermath, demanded that Israel comply with its legal obligations in the Advisory Opinion. n408 This Resolution differs substantially from resolution ES-10/13. n409 The latter was adopted on October 27, 2003 (i.e., before the Assembly petitioned the ICJ), and demanded that "Israel stop and reverse the construction of the Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law." n410 Not only is Israel now obliged to stop and reverse construction of the wall, but according to resolution ES-10/L.18/Rev.1, the Secretary-General is to establish a register of damage caused to all natural or legal persons. n411

It should not be forgotten that there is no higher judicial authority that can rule on the legal issues involved in this case. The issues addressed in the ICJ's opinion on the Wall formed the corpus of law that guides the U.N. on the question of Palestine. After all, by analogizing to the ICJ's Advisory Opinions in the South-West Africa cases, one could argue that the U.N., as a successor to the League of Nations, has assumed a supervisory role over the Palestinian territories, which Israel has been effectively administering since June 1967. The "sacred trust" as encapsulated in Article 22 of the Covenant of the League of Nations, as preserved by Article 80 of the U.N. Charter, n412 would render relevant Judge Sir Hersch [*1505] Lauterpacht's classic statement in the Voting Procedure Case. n413 As he noted in his separate opinion while commenting upon the legal effect of Assembly resolutions on South-West Africa:


Whatever may be the content of the recommendation and whatever may be the nature and the circumstances of the majority by which it has been reached, it is nevertheless a legal act of the principal organ of the United Nations which members of the United Nations are under a duty to treat with a degree of respect appropriate to a resolution of the General Assembly ... Although there is no automatic obligation to accept fully a particular recommendation or series of recommendations, there is a legal obligation to act in good faith in accordance with the principles of the Charter and the System of Trusteeship. An administering State may not be acting illegally by declining to act upon a recommendation or series of recommendations on the same subject. But in doing so it acts at its peril when a point is reached when the cumulative effect of the persistent disregard of the articulate opinion of the Organization is such as to foster the conviction that the State in question has become guilty of disloyalty to the Principles and Purposes of the Charter. Thus an Administering State which consistently sets itself above the solemnly and repeatedly expressed judgment of the Organization, in particular in proportion as that judgment approximates to unanimity, may find that it has overstepped the imperceptible line between impropriety and illegality, between discretion and arbitrariness, between the exercise of the legal right to disregard the recommendation and the abuse of that right, and that it has exposed itself to consequences legitimately following as a legal sanction. n414

Resolution ES-10/L.18/Rev.1 was adopted on the basis of an Advisory Opinion and is thus distinct from political rhetoric. Linguistically, this Resolution is of a legal and not of a moral quality. n415 Certain mechanisms have been established to monitor compliance by Israel. [*1506] Operative paragraph 6 "calls upon both the Government of Israel and the Palestinian Authority to immediately implement their obligations under the Roadmap, in cooperation with the Quartet, as endorsed by Security Council Resolution 1515 (2003), to achieve the vision of two states living side by side in peace and security, and emphasizes that both Israel and the Palestinian Authority are under an obligation scrupulously to observe the rules of international humanitarian law." n416 Operative paragraph 7 "calls upon all States parties to the Fourth Geneva Convention of 1949 to ensure respect by Israel for the Convention, and invites Switzerland, in its capacity as the depositary of the Geneva Conventions, to conduct consultations and to report to the General Assembly on the matter, including with regard to the possibility of resuming the Conference of High Contracting Parties to the Fourth Geneva Convention." n417 The Assembly has clearly taken steps towards ensuring the effective implementation of this Resolution, emphasizing that the political process should lead to a vision of two states living in peace and security.

It is important to distinguish between the ICJ, the U.N.'s principal judicial organ, and the U.N. General Assembly and U.N. Security Council, which are political bodies. According to the U.N. Charter, only the Council can take legally binding decisions under Article 25 of the Charter, directing member states to impose economic sanctions or use force to maintain international peace. n418 But this is a political decision made by a political body subject to the possibility of a veto by one of its permanent members. Politics and law, though closely intertwined in international relations, are fundamentally different. Interestingly, Judge Higgins wrote in her separate opinion that the Court's finding that an act or situation is illegal is the same as a binding decision of a U.N. organ (such as the Security Council) acting under Chapter VI and VII of the Charter. n419 She wrote:


Although in the present case it is the Court, rather than a United Nations organ acting under Articles 24 and 25, that has found the illegality; and although it is found in the context of an Advisory Opinion rather than in a contentious case, the Court's position as the principal judicial organ of the United Nations suggests that the legal consequence for a finding that an act or situation is illegal is the same. n420

It may therefore be concluded that the obligations that the ICJ outlined are binding upon the U.N., which is estopped from undertaking measures that would conflict with the Advisory Opinion. As Judge Gros stated in Western Sahara:

[*1507]

The advisory opinion determines the law applicable to the question put; it is possible for the body which sought the opinion not to follow it in its action, but that body is aware that no position adopted contrary to the Court's pronouncement will have any effectiveness whatsoever in the legal sphere. n421

Whether or not the Palestinians are successful in persuading the international community to urge compliance by Israel with its legal obligations at some future point in time will depend upon geopolitical considerations. n422 Of course this is not, technically speaking, a legal issue, but a question of politics. After all, states can always ignore international law, or dismiss it when it is politically inconvenient. n423

VII. Concluding Remarks

It is evident from comparing the ICJ's Advisory Opinion on Wall to the HCJ's decisions in the Beit Sourik and Mara'abe cases that there was little agreement on the substantive issues relating to Israeli civilian settlement activity, self-determination, and self-defense. On the legality of the wall, the Courts were at complete loggerheads: the HCJ ruled that the wall was a lawful measure to defend the Israeli civilian settlements established inside the West Bank including in and around East Jerusalem without actually [*1508] addressing their illegality, whereas the ICJ found that the wall was unlawful precisely because it encloses those settlements, which already breach Article 49(6) of Geneva Convention IV. n424 As examined in Section IV, the way in which both Courts dealt with the question of Palestinian self-determination was at best peripheral and ultimately unsatisfactory, although the ICJ did at least address the issue in some depth. n425 However, the ICJ should have established more clearly what states should do to ensure Israel's compliance with international law. It also should have elaborated further upon the question of self-defense, particularly as to whether the law has changed in the aftermath of September 11, although its reluctance to engage in a discussion of this issue was probably because the parties did not adequately argue self-defense before the court. n426



In its Advisory Opinion, the ICJ considered the wall's route as a whole, whereas the HCJ only dealt with certain sections of it in a piecemeal fashion. n427 This has allowed the HCJ to obfuscate the fact that the wall's route is in fact segmenting the already miniscule territorial area in which the Palestinian people desire to create a contiguous, sovereign, and viable state as envisaged by the "Performance-Based Road Map to a Two-State Solution to the Israeli-Palestinian Conflict." n428 The wall's route has a direct impact upon the question of self-determination for the Palestinians, as it affects their economic, social and cultural development. As is clearly evident [*1509] from examining the various maps of the wall's route (the latest route is shown in map 4 in the Appendix), the adjustments made to the wall's route after the HCJ's rulings in Beit Sourik and Mara'abe are cosmetic only. n429 In this respect, it should not be forgotten that there are still hundreds of checkpoints scattered throughout the West Bank as well as so-called "flying checkpoints." n430 Not all of these checkpoints - which are more akin to military barricades - separate Israelis from Palestinians. Some of them separate Palestinians from each other, and in these cases, it is difficult to see what the security rationale for their existence is. n431 Moreover, many parts of the West Bank - an area that is itself designated for a future Palestinian state - are off limits for Palestinians and are accessible to the settlers only. n432 Palestinians are also prohibited from traveling on many of the roads within the West Bank (different types of number plates distinguish Palestinian vehicles from those driven by the settlers and the military), and they need security permits to visit relatives inhabiting other Palestinian cities, towns, and villages in East Jerusalem, the West Bank, and Gaza, as well as in Israel. n433 By analyzing only a small section of the wall's route in Beit Sourik and Mara'abe, the HCJ was able to ignore the "bigger picture," whereas the ICJ at least took some of these factors into account (although inadequately in the opinion of the author). In this respect, the "bigger picture" is that after Israel has carved out its most valuable land and resources through constructing the wall, all that remains of the West Bank is a rump entity that will not satisfy Palestinian aspirations for independence and statehood. As a result, Palestinians are likely to remain in a state of permanent dependence upon Israel, unable to pursue their right of self-determination through their economic, social, and cultural development. And the sad thing is that all this has the stamp of approval of the highest Court of law in Israel (the Supreme Court, which was acting as a HCJ in this case). Having said this, as legal precedents, there is little doubt that despite some of the criticisms leveled at the ICJ in academic writings (it should be said, mostly in the United States), the ICJ's Advisory Opinion, outside Israel, has been a persuasive authority. n434 It has, for [*1510] instance, galvanised the international NGO community and Palestinian civil society. n435

In the Mara'abe case, Vice-President M. Cheshin said he found the ICJ's decision "objectionable." n436 He criticized the factual basis upon which the ICJ built its opinion, which he termed a "ramshackle one." n437 He failed to mention that whatever "defects" there were concerning the facts, Israel did not furnish the Court with any additional information for what he claims would have affected the legal outcome (and it is noteworthy that in the three years since the Advisory Opinion was rendered on July 9, 2004, over 80 percent of the wall continues to pass through occupied territory). n438 Although Israel has alleged that the wall it is building in the West Bank is solely a protective measure, it still has not accounted for its route in a satisfactory manner or explained why the wall "just happens" to loop around all the major Israeli civilian settlement blocs established in the West Bank. Presumably Israel is not building the wall in a haphazard manner, but deliberately and carefully. According to Judge Barak,


the only reason for the route beyond the Green Line is a professional reason related to topography, the ability to control the immediate surroundings, and other similar military reasons. Upon which rules of international law can it be said that such a route violates international law? n439

The ICJ, in its 163-paragraph opinion, has already examined the rules of international law that Israel is violating in constructing the wall in the OPT, and this will not be elaborated upon here. n440 It is interesting to note that a "professional reason related to topography," presumably determined by the Israeli military, just happens to coincide with the Israeli civilian settlements scattered on practically every major hill top around East Jerusalem. Surely, this cannot be a matter of sheer coincidence? A journalist writing for the Israeli newspaper Ha'aretz has since written that the wall's route in the [*1511] Jerusalem area is "suspiciously congruent" with the master plan of the adjacent settlements:

When Shaul Arieli of the Council for Peace and Security examined the Defense Ministry's route close to the northernmost neighbourhood of the capital, Neveh Yaakov [an Israeli settlement located in northeast Jerusalem], he could not understand why, contrary to the basic rules of planning a security fence, the fence wound along at the foot of the ridge. Why and for what purpose did the planner decide to deviate at that particular place nearly a kilometre and a half from the eastern border of the neighborhood and go out of the municipal area of Jerusalem into the territories of the West Bank? The riddle was solved when Arieli obtained Master Plan number 240.3 for the establishment of a new neighbourhood/Jewish settlement, by the name of Geva. According to the plan, Geva is to link up via a bridge with the settlement of Geva Binyamin (Adam) to the east. n441

The HCJ has since castigated the Israeli government for misleading it as to the reasons underlying its route. n442 In a recent decision, the HCJ ruled that "a complete picture was not presented" after what the Court referred to as a "grave phenomenon" was revealed (i.e., that the route of the wall is linked to Israeli civilian settlement activity). n443 Nevertheless, Judge Barak ruled that "our words are not intended to express a position as to the lawfulness of the new route now being considered by the Respondents, nor to express a position as regards other petitions concerning the route of the fence in the Northern and Southern sections." n444 With respect, it is still submitted that, for the HCJ to have even suggested that that the factual basis had changed since July 2004 (as Judge Barak implicitly did in paragraphs 59-72 of his decision in Mara'abe, where he cited statements by the State's counsel that called the findings in a number of U.N. reports "far from precise," "exaggerated," and "completely baseless"), and that ICJ's opinion was consequently outdated and irrelevant, was disingenuous. n445 The HCJ should not have accepted the government's contentions so uncritically in the first place, when it [*1512] was evident to all and sundry that something was amiss. As James Crawford pleaded in his oral statement before the ICJ:

Israel cannot plead lack of facts as a ground to have the Court refuse to decide, when any deficiency in the facts could have been corrected by Israel itself... . Anyway the basic facts are perfectly clear. The dominant fact is the US$ 2billion fact of the Wall, growing daily and dividing Palestinian communities from each other and from their lands and water. That is the essential fact, this US$ 2billion so-called "temporary" edifice. So much is now known about the Wall, and what is not known can be deduced from its route, its size, its cost, its regime, its effects, and the avowed intentions of those who are building it to impose a unilateral settlement. n446



Although Crawford was speaking before the ICJ rendered its Advisory Opinion, events since that time have only strengthened this argument. n447 Israel is still building the wall in direct contravention of international law as determined by the ICJ, its cost has increased, Palestinians have been displaced, the settlements continue to grow unabated, Israel imposes a unilateral settlement in Gaza, and the conflict continues. n448 Many people can confirm the deterioration of the situation; there are no shortages of NGOs, journalists and U.N. personnel on the ground in Israel and the surrounding areas who are able to travel there and examine the situation for themselves (although things have become more difficult in recent years, particularly in the OPTs). There is also an abundance of information from international, Israeli, and Palestinian human-rights organizations. n449 Judge Owada thought it reasonable to conclude "that the political, social, economic, and humanitarian impacts of the construction of the wall, as substantiated by ample evidence supplied and documented in the course of the present proceedings, is such that the construction of the wall would constitute a violation of international obligations under various international instruments to which Israel is a party." n450 It will be recalled that in Nicaragua, the ICJ ruled that it could consider factual material "in the public [*1513] domain," whether or not the parties refer to them. n451 After citing the Brazilian Loans case by the Permanent Court of International Justice and its own jurisprudence in the Nuclear Test cases, it ruled: "As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties." n452 Evidently, the ICJ may therefore take other material into consideration. Although, according to the ICJ's Practice Direction XII, information submitted by international NGOs are not considered to be part of the case file, "such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements." n453 Because the ICJ's judgments and Advisory Opinions are not known for their comprehensive references to the sources relied upon for its legal conclusions, it could consider NGO amicus briefs without explicitly saying it has done so. n454 The HCJ therefore cannot assume that the ICJ did not take Israel's security justifications into consideration. The ICJ did recognize that "Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population" and it ruled that it has "the right, and indeed the duty, to respond in order to protect the life of its citizens." n455 However, it said, "the measures taken are bound nonetheless to remain in conformity with applicable international law." n456 Several judges also made reference to this in their separate opinions. n457 Therefore, to attack the ICJ's Advisory Opinion on the ground that the facts have changed is perhaps a demonstration of the desperation on the part of the HCJ. It cannot attack the opinion on the law, which is clear, so it goes for the facts - which only Israel could have "corrected" had it taken part in the oral pleadings or submitted a written statement addressing the merits of the case.

Vice-President M. Cheshin also claimed that "the opinion was colored by a political hue" and that it almost completely ignored "the horrible terrorism and security problems which have plagued Israel" without mentioning any of the terrible atrocities committed by the Israeli army in the OPT since 1967 (which were also hardly [*1514] addressed by the HCJ in either the Beit Sourik or Mara'abe cases). n458 He called the "silence" over the terrorist attacks on Israel "foreign and strange" before emotionally concluding, "I am sorry, but the decision of the ICJ cannot light my path. Its light is too dim for me to guide myself by it to law, truth and justice in the way a judge does." n459

There is no doubt that Palestinian attacks against Israeli civilians (or civilians anywhere for that matter) contravene international humanitarian and human rights law as well as domestic criminal law. It would be both hypocritical and ultimately self-defeating for the Palestinian leadership to invoke international law in support of their claims to self-determination and statehood and then breach it by deliberately attacking civilians. n460 But for Israel to react by imprisoning an entire nation for the actions of a minority will not solve its security dilemma either. As Vaughan Lowe declared in his oral pleading before the ICJ on behalf of Palestine:

The Palestinian Authority has consistently condemned terrorist attacks on Israeli civilians; and it is as absurd as it is offensive to imply that all Palestinians are engaged in a murderous conspiracy to attack Israel. To impose the Wall, and all the consequent restrictions on movement and access to property, jobs, welfare, education and families, as a punishment on the whole Palestinian population is unfair, unprincipled, and illegal. n461

No one is questioning the legitimacy of a people's right to resist occupation, particularly if it is prolonged and protracted, but there are rules and boundaries that should not be crossed. In this respect, it is worth heeding the words of wisdom of Justice Albie Sachs from a very moving and thought-provoking lecture he gave on terrorism and the African National Congress's struggle against apartheid South Africa on 26 April 2006. n462 Simply put, terrorism, whether committed [*1515] by states or non-state actors, is immoral, self-defeating, and ultimately harms the legitimacy of the cause in whose names such acts are undertaken. n463

The HCJ in both Beit Sourik and Mara'abe looked at the legality of the wall from a very narrow perspective related to Israeli administrative law, military law, and proportionality as defined and determined by Israel. n464 The HCJ thus completely ignored crucial issues such as the legality of the vast settlement enterprise, possibly the biggest obstacle to peace in the Middle East, and the nature of a prolonged occupation which has approached its fourth decade (it is worth bearing in mind that most Palestinians currently living in the OPT, born after 1967, have never experienced freedom). The question of self-determination, which is integral to the Israel-Palestine conflict, was completely marginalized, and the role of the U.N., which has a continuing responsibility towards the Palestinian people until a permanent solution is found, was hardly considered by the HCJ apart from when it addressed the ICJ's Advisory Opinion and the reports of the U.N. Special Rapporteurs. n465 The ICJ could have addressed the question of self-defense and prolonged occupations in far more detail, as the law is not entirely clear in this area. Grappling with this issue, probably one of the most controversial areas in international law, may have given the opinion more credibility. The ICJ could have also provided more of an analysis as to why the construction of the [*1516] wall along its current route is unreasonable, justifying its decisions by legal argument.

Although Israel has said that it will not abide by the ICJ's Advisory Opinion (nor for that matter most of the U.N. resolutions adopted during the course of the conflict), the Palestinians have embraced it, including the Hamas and Fatah hardliners in the so-called "prisoners document." n466 This must surely be a positive development. Rather than acting unilaterally and aggressively, the Palestinians have attempted to solve their international dispute with Israel peacefully, through non-violent means. n467 Whether Israel will reciprocate is another matter. In challenging the authority of the ICJ in reaching a decision that blatantly ignores the settlement issue and by sidelining the Geneva Conventions yet again, it is difficult to see how it can be said that the HCJ is acting independently from the Israeli government when it comes to policy in the OPT. The questions of self-defense, the wall, and the settlements would have been better discussed in the paradigm of self-determination had more attention been paid to this issue as one of the "legal consequences of the construction of the wall in the Occupied Palestinian Territory," as ultimately this conflict is about much more than just wire and concrete. n468 It is apparent that the ICJ did itself no favors in refraining from elaborating upon why it found Israel's self-defense arguments based on Article 51 of the Charter irrelevant to the matter at hand; this has given ample ammunition to those persons who are not inclined in favor of international law to attack the court. n469 Having said this, the ICJ was able to produce a concise and coherent [*1517] opinion in a relatively short period of time that could provide a framework for negotiations between Israelis and Palestinians when a more enlightened leadership is in a position to assert itself.

[*1518]

VIII. Appendix n470

[SEE MAP 1 IN ORIGINAL]


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[SEE MAP 2 IN ORIGINAL]

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[SEE MAP 3 IN ORIGINAL]

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[SEE MAP 4 IN ORIGINAL]


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