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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n1. HCJ 7957/04 [2005] (Isr.), translated in 45 I.L.M. 202 (2006).
n2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131 (July 9), reprinted in 43 I.L.M. 1009 (2004) [hereinafter ICJ Wall Advisory Opinion]. For further commentary on this Advisory Opinion, see generally Susan Akram & Michael Link, The Wall and the Law: A Tale of Two Judgments (2006); Aeyal M. Gross, The Construction of a Wall Between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, 19 Leiden J. Int'l L. 1 (2006); Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99 Am. J. Int'l L. 1 (2005) (including contributions from Watson, Pomerance, Falk, Wedgwood, Murphy, Scobbie, Kretzmer, Imseis and Dennis); Pieter H.F. Bekker, The World Court's Ruling Regarding Israel's West Bank Barrier and the Primacy of International Law: An Insider's Perspective, 38 Cornell Int'l L.J. 553 (2005); Paul J. I. M. De Waart, International Court of Justice Firmly Walled in the Law of Power in the Israeli-Palestinian Peace Process, 18 Leiden J. Int'l L. 467 (2005); Jean-Francois Gareau, Shouting at the Wall: Self-Determination and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 18 Leiden J. Int'l L. 489 (2005); Andrea Bianchi, Dismantling the Wall: The ICJ's Advisory Opinion and Its Likely Impact on International Law, 47 German Y.B. Int'l L. 343 (2004); and Marco Pertile, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Missed Opportunity for International Law?, 4 Italian Y.B. Int'l L. 121 (2004). See also 39 Isr. L. Rev. (2006) (dedicating a special double issue to discuss the domestic and international legal issues arising from the construction of the "separation barrier"); 13 Palestine Y.B. Int'l L. 337 (2004-2005) (reprinting the Advisory Opinion, Palestine's written statement to the Court, and several articles).
n3. Alfe Menashe is an Israeli settlement situated close to the Palestinian town of Qalqilya in the West Bank.
n4. Interestingly, the HCJ issued simultaneous versions of the judgment in both English and Hebrew, something it does not normally do. The other time it issued versions in both languages was in the Beit Sourik case. Iain Scobbie notes that neither decision has been issued in an official Arabic text. Unlike English, Arabic is one of the High Court's official languages and is the tongue spoken by the principle petitioners in both cases. Iain Scobbie, Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion, 5 Chinese J. Int'l L. 269, 287 (2006).
n5. As Roger O'Keefe writes:

What is meant ... by its "associated regime' is to be found among paragraphs 114 to 137. One aspect of this regime is obviously the range of legislative and regulatory measures associated with the Wall, from the requisitions of land to the restrictions imposed on the Palestinian populace by the declaration of the Closed Area... . In short, the opinion finds not only the construction of the Wall to be illegal but with it the policy and practice of Israeli settlements in the occupied territories, considered as part of its "associated regime.'

It follows that the checkpoints and the closed military zones associated with the Wall are also per se unlawful. Roger O'Keefe, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Commentary, 37 Rev. Belge Droit Int'l 92, 133 (2004).

n6. The Advisory Opinion was acknowledged by the U.N. General Assembly on 2 August 2004. G.A. Res. 10/15, U.N. GAOR, 10th Sess., U.N. Doc. A/RES/ES-10/15 (Aug. 2, 2004).
n7. ICJ Wall Advisory Opinion, supra note 2, at 1029, para. 67.
n8. Although it should be said that structure only takes the form of eight-meter-high-concrete slabs when it passes through areas densely populated by Palestinians such as Qalqilya, Tulkarem, Bethlehem, and East Jerusalem. The remainder of the structure is a fenced complex with electronic sensors and surveillance cameras surrounded by rolls of barbed wire, accompanied by ditches, an earth-covered tracer road (so footprints can be seen), patrol roads and "closed military zones" approximately 40-100 meters wide. For a description of the wall, see generally the U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Report on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, U.N. Doc. E/CN4/2004/6 (Sept. 8, 2003) (prepared by John Dugard).
n9. See HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] (Isr.), translated in 43 I.L.M. 1099, P 28 (2004).

The Fence is motivated by security concerns. As we have seen in the government decisions concerning the construction of the Fence, the government has emphasized, numerous times, that "the Fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.

n10. "Israel vowed to press on with the construction of the West Bank separation fence after the General Assembly overwhelmingly adopted a resolution condemning the barrier late Tuesday." Shlomo Shamir, Israel Summons EU Envoys Over Support for Anti-fence Ruling, Ha'aretz (Jerusalem), July 21, 2004.

n11. See Written Statement of the Government of Israel on Jurisdiction and Propriety, PP 3.53-.86 (Jan. 30, 2004), available at http://www.icj-cij.org/docket/ files/131/1579.pdf (last visited Oct. 16, 2007); Letter from Alan Baker, Ambassador, Deputy Dir. and Legal Advisor, Isr. Ministry of Foreign Affairs, to the Int'l Court of Justice (Jan. 29, 2004), available at http://www.icj-cij.org/docket/files/131/1579.pdf (accompanying the Written Statement of the Government of Israel on Jurisdiction and Propriety to the ICJ).
n12. According to Israel, the purpose of including factual information on Palestinian terrorist attacks in its written statement was to assist the ICJ "properly to exercise its discretion under Article 65 (1) of the Statute and decide whether or not to answer the question referred to it." Written Statement of the Government of Israel on Jurisdiction and Propriety, supra note 11, P 3.54.
n13. Written Statement of the Government of Israel on Jurisdiction and Propriety, supra note 11.
n14. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement, Submitted by Palestine, PP 280-297 (Jan. 30, 2004), available at http://www.icj-cij.org/docket/files/131/1555.pdf (last visited Oct. 16, 2007).
n15. As pointed out by Vaughan Lowe in his oral pleadings:

The issue here is not whether Israel has a right to build a Wall: it is whether it has a right to build the Wall in the Occupied Palestinian Territory. Palestine's main point is that whatever security effects the Wall might have could be secured by building the Wall along the Green Line, on Israeli territory, so that there is no legal justification for building it in the Occupied Palestinian Territory.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Public Sitting, at 47 (Req. for Advisory Op.) (Feb. 23, 2004), available at http://www.icj-cij.org/docket/files/131/1503.pdf (last visited Oct. 16, 2007) [hereinafter Request for Wall Advisory Opinion].

n16. G.A. Res. 10/14, U.N. GAOR, 10th Sess., U.N. Doc. A/RES/ES-10/14 (Dec. 8, 2003) (emphasis added).
n17. HCJ 2056/04 [2004] (Isr.), translated in 43 I.L.M. 1099 (2004).
n18. This begs one to ask what is, and what is not, proportional, from an Israeli-security perspective. Alain Pellet has observed:

Proportionality seems more a general directive than a criterion in the proper sense of the word; its appraisal rests on the subjective judgment of those involved and, for this reason, it is ill-suited to serve as a means of distinguishing that which is lawful from that which is not, a process which is the raison d'etre of a criterion.

Alain Pellet, The Destruction of Troy Will Not Take Place, in International Law and the Administration of Occupied Territories 169, 173 (Emma Playfair ed., 1992); see generally Gross, supra note 2 (detailing criticisms of the ICJ's application of the proportionality principle).

n19. HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] (Isr.), translated in 43 I.L.M. 1099, P 30 (2004) (emphasis added).
n20. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
n21. Id.
n22. HCJ 2056/04 Beit Sourik, P 28.
n23. See infra notes 140, 464-65 and accompanying text for a discussion of this lack of reference to international law by the ICJ.
n24. See HCJ 2056/04 Beit Sourik, PP 26-32 ("Regarding the central question raised before us, our opinion is that the military commander is authorized - by the international law applicable to an area under belligerent occupation - to take possession of land, if this is necessary for the needs of the army.").
n25. Id. P 80.
n26. Id. P 24.
n27. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, P 14 (2006).
n28. See U.S. Dep't of State [USDOS], Bureau of Democracy, Human Rights, and Labor, Israel and the Occupied Territories (Feb. 25, 2005), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27929.htm (describing, in its section on "The occupied territories," disagreement between the Israeli government and other groups over how the Hague Regulations and Geneva Convention applied to Israel's authority in OPT, and whether Israel "largely observed the Geneva Convention's humanitarian provisions").
n29. David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 32 (2002).
n30. Id.
n31. Id. (emphasis added); ICJ Wall Advisory Opinion, supra note 2, at 1035-36, para. 93; see also Mazen Qupty, The Application of International Law in the Occupied Territories as Reflected in the Judgments of the High Court of Justice in Israel, in International Law and the Administration of Occupied Territories, supra note 18, at 119-20 n.126 (citing Booklet No. 1 (1967), 5, at 12). Kretzmer cites in footnote 2 the Proclamation Regarding the Taking of Power by the IDF (7.6.1967) in 1 Proclamations, Orders and Appointments of the Judea and Samaria Command at 3.
n32. Kretzmer, supra note 29, at 32-33.
n33. Id.
n34. Michael Lynk, Down by Law: The High Court of Israel, International Law, and the Separation Wall, 35 J. Palestine Stud. 6, 8-9 (2005).
n35. See generally Kretzmer, supra note 29, at 196. For a more recent exposition of his views, see David Kretzmer, The Supreme Court of Israel: Judicial Review During Armed Conflict, 47 German Y.B. Int'l L. 392 (2005). See also Yoav Dotan, Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada, 33 L. & Soc'y Rev. 319, 322-24 (1999).
n36. See Statutes of the International Committee of the Red Cross, art. 4(c), http://www.icrc.org/Web/Eng/siteeng0.nsf/html/icrc-statutes-080503 (last visited Oct. 17, 2007) (providing that the ICRC shall "undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law").
n37. See Declaration of the Conference of the High Contracting Parties to the Fourth Geneva Convention and Statement of the ICRC, Dec. 5, 2001, http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLDPJ (last visited Oct. 17, 2007) (discussing the applicability of Geneva Convention IV to the OPT); United Kingdom Materials on International Law 2002, 73 Brit. Y.B. Int'l L. 942 (2002) (discussing British State practice). See also Matthew Happold, The Conference of High Contracting Parties to the Fourth Geneva Convention, 4 Y.B. Int'l Hum. L. 389 (2004); Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int'l L.J. 65-138 (2003); Hussein A. Hassouna, The Enforcement of the Fourth Geneva Convention in the Occupied Palestinian Territory, Including Jerusalem, 7 ILSA J. Int'l & Comp. L. 461 (2001).
n38. S.C. Res. 681, PP 1-8, U.N. Doc. S/RES/681 (Dec. 20, 1990).
n39. S.C. Res. 1322, P 3, U.N. Doc. S/RES/1322 (Oct. 7, 2000); S.C. Res. 605, P 2, U.N. Doc. S/RES/605 (Dec. 22, 1987).
n40. See G.A. Res. 43/21, P 4, U.N. GAOR, 43d Sess., 45th plen. mtg., U.N. Doc. A/RES/43/21 (Nov. 3, 1988) ("Demands that Israel, the occupying Power, abide immediately and scrupulously by the Geneva Convention relative to the Protection of Civilian Persons in Time of War."); G.A. Res. 38/180A, P 6, U.N. GAOR, 38th Sess., 102d plen. mtg., U.N. Doc. A/RES/38/180 (A-E) (Dec. 19, 1983) ("Reaffirms its determination that all relevant provisions of the Regulations annexed to the Hague Convention IV of 1907, and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, continue to apply to the Syrian territory occupied by Israel since 1967.); G.A. Res. 37/123A, P 6, U.N. GAOR, 37th Sess., 108th plen. mtg., U.N. Doc. A/RES/37/123 (A-F) (Dec. 16, 1982) ("Reaffirms its determination that all the provisions of the Hague Convention of 1907 and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, continue to apply to the Syrian territory occupied by Israel since 1967."); G.A. Res. 32/91A, P 3, U.N. GAOR, 32d Sess., 101st plen. mtg., U.N. Doc. A/RES/32/91(A-C) (Dec. 13, 1977) ("Calls again upon Israel to acknowledge and to comply with the provisions of that Convention in all the Arab territories it has occupied since 1967.").
n41. Geneva Convention IV, supra note 20, art. 1 (emphasis added); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, para. 220 (June 27).
n42. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, P 19 (2006).
n43. Commentary on the Geneva Conventions of 12 August 1949: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Jean S. Pictet ed., 1958).
n44. One reason may be that Barak was seeking to avoid a clash with the legislature. Since the HCJ's jurisdiction over acts of the Israeli military in the OPTs rests on an interpretation of an Israeli statute, the Knesset (Israel's parliament) can always redefine the court's jurisdiction so as to limit its review over decisions relating to the occupied territories. This is because Israel has no formal constitution, and, thus, judicial rulings on any subject can be overruled by legislation. See Yoav Dotan, Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel, 32 Isr. L. Rev. 448, 469 (1998) (suggesting that "unlike other systems with entrenched constitutions (such as the United States), the fear of "judicial tyranny' is far from being real").
n45. See Talia Sasson Report, Summary of the Opinion Concerning Unauthorized Outposts, http://www.fmep.org/documents/sassonreport.html (last visited Oct. 18, 2007) [hereinafter Sasson Report] (explaining that the summary opinion has been prepared at the request of the Prime Minister's bureau). According to the report, written by Talia Sasson, a former State prosecutor: "It is absolutely prohibited to establish outposts on private Palestinian property. Such an action may in certain circumstances become a felony." In this regard, Sasson cites the HCJ ruling in the case of Elon Moreh, HCJ 390/79 Dweikat et al. v. Israel [1979] IsrSc 34(1) 1. See 9 Isr. Y.B. Hum. Rts. 345 (1979) (offering an English summary of the case); see also Steven Erlanger, West Bank Settlements on Private Land, Data Shows, Int'l Herald Trib., Mar. 14, 2007, available at http://www.iht.com/articles/2007/03/14/africa/web-0314israel.php ("An up-to-date Israeli government register shows that 32.4 percent of the property held by Israeli settlements in the occupied West Bank is private, according to the advocacy group that sued the government to obtain the data.").
n46. For a recent commentary on Judge Barak's legacy, see Nimer Sultany, The Legacy of Justice Aharon Barak: A Critical Review, 48 Harv. Int'l L.J. Online 83 (2007), http://www.harvardilj.org/online/113.
n47. ICJ Wall Advisory Opinion, supra note 2, at 1055, 1080-81.
n48. Id. at 1080-81, para. 9 (declaration of Judge Buergenthal).
n49. Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977, at 99-102 (2006). Since the 1970s, legal advisors at the U.S. State Department have accepted that the settlements contravene Article 49(6) of Geneva Convention IV. See Letter of H. J. Hansell, Legal Advisor, USDOS to House Comm. on International Relations, Apr. 21, 1978, in 17 I.L.M. 777 (1978) (giving advice on the illegality of Israeli civilian settlement activity).
n50. Hague Convention (IV) Respecting the Laws and Customs of War on Land, and Its Annex: Regulations Respecting the Laws and Customs of War on Land, art. 43, Oct. 18, 1907, U.S.T.S. 539 [hereinafter 1907 Hague Regulations]; HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, PP 18-20 (2006).
n51. HCJ 7957/04 Mara'abe, P 21.
n52. Id.
n53. Id.
n54. Id.
n55. See Disengagement Plan of Prime Minister Ariel Sharon, April 16, 2004, available at http://www.knesset.gov.il/process/docs/DisengageSharon_e ng.htm (last visited Oct. 18 2007) (containing an outline of the Gaza Disengagement Plan and links to related documents).
n56. See Muhammad Abdullah Iwad & Zeev Shimshon Maches v. Military Court, Hebron District & Military Prosecutor for the West Bank Region, reprinted in 48 Int'l L. Rep. 63 (1975) (making a distinction between the legal status of East Jerusalem and other Palestinian cities in the West Bank); see also infra note 111 (discussing the court's decisions in Hanzalis and elsewhere).
n57. See Separation Barrier/Wall, Jerusalem and Ramallah Heads of Mission, Report on East Jerusalem (2005), http://www.passia.org/jerusalem/ meetings/2005/EU-Report-Jerusalem.htm (discussing the separation barrier that separates most of East Jerusalem from the West Bank, separating Palestinians from other Palestinians). The suppressed report was an internal EU document written by British staff at that country's consulate in East Jerusalem and was leaked to the press.
n58. Id.
n59. HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] (Isr.), translated in 43 I.L.M. 1099, P 27 (2004).
n60. See Law and Administration Ordinance - Amendment No. 11-Law, 5727-1967, 13 LSI 75, 75 (1967) (Isr.) ("The law, jurisdiction and administration of the State shall extend to any area of Eretz Israel designated by the Government by order."); Sabri Jiryis, Israeli Laws as Regards Jerusalem, in The Legal Aspects of the Palestine Problem With Special Regard to the Question of Jerusalem 182 (Hans Kochler ed., 1981) (citing Official Gazette (Kovetz Ha-Takanot), No. 2064, 28 June, 1967, at 2690-91 (Hebrew)).
n61. See S.C. Res. 478, para. 3, U.N. Doc. S/RES/478 (Aug. 20, 1980) (determining "that all legislative and administrative measures and actions taken by Israel, the Occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent "basic law' on Jerusalem, are null and void and must be rescinded forthwith"); Lord McNair & A.D. Watts, The Legal Effects of War 369 n.2 (1966); S.C. Res. 298, para. 3, U.N. Doc. S/RES/298 (Sept. 25, 1971) ("All legislative and administrative actions taken by Israel to change the status of the City of Jerusalem ... are totally invalid and cannot change that status."); S.C. Res. 446, para. 3, U.N. Doc. S/RES/446 (Mar. 22, 1979) ("Calls once more upon Israel, as the occupying Power ... to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem."); S.C. Res. 452, para. 3, U.N. Doc. S/RES/452 (July 20, 1979) ("Calls upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.").
n62. See the first principle to the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by the General Assembly - with the assent of Israel - in G.A. Res. 2625, at 121, U.N. GAOR, 25th Sess., U.N. Doc. A/8082 (1970). See also Robert Yewdall Jennings, The Acquisition of Territory in International Law 55 (1963) (writing four years before Israel captured East Jerusalem, the West Bank, Gaza, the Golan Heights and the Sinai Peninsula that "it would be a curious law of self-defence that permitted the defender in the course of his defence to seize and keep the resources and territory of the attacker"); D. W. Bowett, International Law Relating to Occupied Territory: A Rejoinder, 87 Law Q. Rev. 473 (1971) (conceding that "states cannot acquire territory by resort to force").
n63. Aharon Barak, Purposive Interpretation in Law: Translated From the Hebrew by Sari Bashi 360 (2005) (citing M. Hunt, Using Human Rights Law in English Courts (1997)).
n64. James Crawford, International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 32 (2002).
n65. See, e.g., Ruth Lapidoth, International Law Within the Israeli Legal System, 24 Isr. L. Rev 451, 452 (1990) (noting that in Israel, international custom is part of municipal law and that this position was adopted very early in Israel's history by the Supreme Court).
n66. See Geneva Convention IV, supra note 20, art. 49.
n67. See Jean-Marie Henckaerts & Louis Doswald-Beck, Customary International Humanitarian Law: Volume 1 Rules 462-63, rule 130 (2005).
n68. HCJ 7957/04 Mara'abe v. Prime Minister of Isr. [2005] (Isr.), translated in 45 I.L.M. 202, PP 18-19 (2006).
n69. 1907 Hague Regulations, supra note 50, art. 43 (emphasis added).
n70. The United Kingdom granted de jure recognition to the union, but most states withheld de jure recognition (although they may have granted de facto recognition). In particular, the other Arab states denounced the union as a betrayal of the Palestinian cause and as a breach of a resolution passed by the Arab League prohibiting the annexation of any part of Palestine. See The Policy of the Arab States Towards the Question of Palestine, Resolution 320-Sess.12 - Sched.6, Apr. 13, 1950, in Muhammad Khalil, The Arab States and the Arab League: A Documentary Record Volume II 166 (1962). Eventually a compromise was reached; Jordan declared that the annexation of the West Bank was without prejudice to the final settlement of the Palestine issue, which the other Arab states accepted. See Michael Akehurst, The Place of the Palestinians in an Arab-Israeli Peace Settlement, 70 Round Table 443 (1980) (discussing Resolution 242, which outlined the terms of the settlement).
n71. Jordan incorporated East Jerusalem and the West Bank into its Kingdom in 1950 after overrunning the territory in the 1948 war and subsequently occupying it. It did this in collusion with the Provisional Government of Israel. See generally Avi Shlaim, Collusion Across the Jordan: King Abdullah, the Zionist Movement, and the Partition of Palestine (1988).
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