Down by law: The High Court of Israel, international law, and the separation wall

Journal of Palestine Studies

Volumn 35, Issue 1, 2005, Pages 6-24

  Lynk, Michael ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

GOVERNMENT; INTERNATIONAL LAW; OCCUPATION; POLICY IMPLEMENTATION; VILLAGE;

ASIA; EURASIA; ISRAEL; MIDDLE EAST; PALESTINE;

EID: 33646813647     PISSN: 0377919X     EISSN: None     Source Type: Journal    
DOI: 10.1525/jps.2005.35.1.6     Document Type: Article

References (95)

1. For an informative overview of the wall, see Peter Lagerquist, "Fencing the Last Sky: Excavating Palestine after Israel's 'Separation Wall,'" JPS 33, no. 2 (Winter 2004), pp. 5-34.
2. The ICJ Opinion, formally called the dispositif, is available online at www.icj-cij.org.
3. The HCI wears two judicial hats. As the High Court of Justice, it has the power to issue prerogative writs against government agencies; as the Supreme Court, it is the final court of appeal in Israel for judgments of lower courts.
4. Beit Sourik Village Council v. The Government of Israel and the Commander of the IDF Forces in the West Bank, as found in the translated version provided by the HCI available online at www.court.gov.il.
5. The American Journal of International Law, the scholarly publication of the American Society of International Law and probably the most prestigious international law journal in the world, devoted a large portion of a recent issue to the wall opinion: American Journal of International Law 99, no. 1 (Jan. 2005), pp. 1-141.
6. See, for example, the remarks of Cherie Booth Blair, the wife of British prime minister Tony Blair, as reported in the Guardian: Cherie Booth, "Now We Need Judges More than Ever," Guardian, 28 July 2005.
7. Afu v. IDF Commander of the West Bank (1993), Israel Yearbook on Human Rights [IYHR], vol. 23, p. 277
8. (HCI - Summary); Sajedia v. Minister of Defense (1993), IYHR, vol. 23, p. 288
9. (HCI - Summary). The Israeli government has persistently maintained that, while the Fourth Geneva Convention does not apply to the occupied territories, it will apply the humanitarian features of the convention. This position ignores the universally accepted view that the entire convention is humanitarian law. The HCI has accepted this legal ruse, most recently in Beit Sourik (para. 23).
10. UN Security Council Resolution 904 (18 March 1994); UNGA Resolution 57/ 269 (5 March 2003); Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention, 5 December 2001, para. 1.
11. Amira v. Minister of Defense ("Mattityahu") (1980), IYHR, vol. 10, p. 331 (HCI-Summary).
12. Article 49(6) of the Fourth Geneva Convention states: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The United Nations Security Council (Resolution 465, 1 March 1980) and the International Court of Justice (Advisory Opinion, para. 120) have stated that Article 49(6) applies to the occupied Palestinian territories and that the Israeli settlements violate international law.
13. For a critical assessment of the court's judicial decision-making pertaining to the occupation, see David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002).
14. Ja'amait Ascan v. IDF Commander in Judea and Samaria (HCJ 393/82), described in Kretzmer, Occupation of Justice, pp. 97-98.
15. Afu v. IDF Commander of the West Bank (1993), IYHR, vol. 23, p. 277 (HCI - Summary).
16. Sajedia v. Minister of Defense (1993), IYHR, vol. 23, p. 288 (HCI - Summary).
17. Sanuar v. IDF Commander in Gaza (1995), IYHR, vol. 25, p. 324 (HCI - Summary).
18. Shahin v. IDF Commander in Judea and Samaria (1988), IYHR, vol. 18, p. 241 (HCI - Summary).
19. In Public Committee Against Torture in Israel v. Government of Israel, the court in 1999 ruled that the Israeli General Security Service (Shin Bet) had no legal basis for the use of physical force when interrogating detainees.
20. This ruling contrasted with earlier judgments by the court where it had allowed the Shin Bet to apply physical force during interrogation: Mubarak v. General Security Service (1996). Reputable human rights groups have reported that Israel security forces have continued torturing Palestinian prisoners well after the Public Committee Against Torture ruling: Amnesty International, Combating Torture (London, 2003);
21. B'Tselem, Standard Routine: Beatings and Abuse of Palestinians by Israeli Security Forces during the al-Aqsa Intifada (Jerusalem, May 2001).
22. Beit Sourik, paras. 23 and 27.
23. For the restrictions placed by international humanitarian law and the rules of belligerent occupation on the occupying power, see the 1907 Hague Regulations, particularly Articles 43 and 55, and Article 47 of the Fourth Geneva Convention of 1949.
24. Beit Sourik, para. 29.
25. See generally Article 46 of the 1907 Hague Regulations: "Private property cannot be confiscated." International law permits the requisition of private lands and property, if it is meant solely for the military and administrative requirements of the occupation. However, consistent with the temporary character of occupation, such properties are to be returned to their owners upon the termination of the occupation.
26. Beit Sourik, para. 32.
27. According to B'Tselem, the Israeli State Attorney's office said to the HCI in 2002, when defending the initial seizure orders to expropriate private Palestinian lands to construct the wall, that Israel is only taking control of the lands temporarily. The seizure orders were valid only until the end of 2005. However, the military legal regime governing the occupied territories permits the indefinite extension of these orders, which is the IDF's common practice regarding lands seized for new settlements or for bypass roads. B'Tselem, Behind the Barrier: Human Rights Violations as a Result of Israel's Separation Barrier (Jerusalem, March 2003), p. 34.
28. In a decision released shortly before Beit Sourik, the court stated in Na'aleh v. Civil Administration of Judea and Samaria (HCJ 9717/03, 14 June 2004): "When we deal with very long periods of time, it seems it is justified to recognize the authority of the occupant state to take actions that will affect the territory under belligerent occupation for a long time."
29. According to the Senat think tank in Israel, building the wall on the green line would also have cut its length and its cost in half: Amnon Barzilai, "Cost of Fence Could Be Halved if Built along 1967 Lines," Ha'Aretz, 2 April 2004.
30. Beit Sourik, para. 31.
31. Advisory Opinion, para. 120.
32. For a prescient view of the relationship between the wall and the settlements, see the remarks of Israeli deputy prime minister Ehud Olmert in support of the Israeli government's unilateral disengagement strategy combined with the construction of the wall, quoted and described in David Landau, "'Maximum Jews, Minimum Palestinians," Ha'Aretz, 13 November 2003: "'[The] formula for the parameters of a unilateral solution are: To maximize the number of Jews; to minimize the number of Palestinians; not to withdraw to the 1967 border and not to divide Jerusalem.' Large settlements such as Ariel would 'obviously' be carved into Israel.... The fence, now being built amid much controversy, would 'ultimately become part of the unilateral plan,' Olmert says with deliberate vagueness.... [H]is unilateralism 'would inevitably preclude a dialogue with the Palestinians for at least 25 years."
33. Beit Sourik, para. 30.
34. Mazal Mualem, "Shas: Include More Communities West of the Fence," Ha'Aretz, 4 July 2002.
35. Cited in B'Tselem, Behind the Barrier, p. 31 note 23.
36. A prime example of this lesson arose from the well-known 1979 Elon Moreh decision: Dweikat v. Government of Israel (1979), IYHR, vol. 9, p. 345 (HCI - Summary). The HCI refused to accept the military requisition of private Palestinian land for a settlement in the West Bank, on the grounds that the purpose of the requisition was for "political" rather than "security" or "military" reasons. Following the decision, the Israeli government has built its settlements on "public lands" in the occupied territories and has never formally labeled its settlement activities in the occupied territories as "political" before any domestic legal forum. (This is also illegal under international law: Article 55 of the 1907 Hague Regulations compels the occupying authority to safeguard immovable public and state property, in anticipation of its restoration to the new sovereign government.) Following Eton Moreh, the High Court has not ruled against the legality of a settlement location.
37. The Official Commentary to Article 53 of the Fourth Geneva Convention of 1949 (dealing with the prohibition against the destruction of private or public property in the occupied territories) warns that "unscrupulous recourse to the clause concerning military necessity would allow the Occupying Power to circumvent the prohibition set forth in the Convention."
38. Moshe Dayan, one of the primary architects of Israel's settlement policy, stated in 1979 that the settlements were necessary "not because they can ensure security better than the army, but because without them we cannot keep the army in these territories. Without settlements, the IDF would be merely an occupying army in these occupied territories. "Jerusalem Post, 11 April 1979.
39. Beit Sourik, para. 32.
40. Alain Pellet, "The Destruction of Troy Will Not Take Place," in Emma Playfair (ed.), International Law and the Administration of Occupied Territories (Oxford: Oxford University Press, 1992), p. 196.
41. Yoram Dinstein, "Legislative Authority in the Administered Territories," Iyunei Mishpat [Legal Studies] 2 (1973), pp. 505, 509.
42. Cited in Beit Sourik, para. 34.
43. According to the eminent Israeli political historian Tom Segev, "In the history of the Israeli occupation, there may not be any practice more despicable than the home demolition of the families of terrorists. The High Court has repeatedly lent a hand to it, since when it comes to the occupation, the court has been far from its image as the stronghold for the defense of human rights." Tom Segev, "Mahmoud Nasser's House," Ha'Aretz, 30 June 2005.
44. Article 33 of the Fourth Geneva Convention expressly states that "Collective penalties... are prohibited."
45. Article 53 of the Fourth Geneva Convention.
46. Farj v. IDF Commander (HCJ 893/04);
47. Turkman v. Minister of Defense (1995), IYHR, vol. 25, p. 347 (HCI - Summary).
48. Since October 2000, the IDF had demolished 675 homes for punitive purposes, leaving more than 4,000 homeless. The IDF announced in February 2005 that it was ending the practice of punitive home demolitions, because it proved not to be a deterrent. Israeli political historian Tom Segev has written: "The army, out of a cost-benefit calculation, adopted a more humane policy than the [High] Court would ever have dared to impose on it." Segev, "Mahmoud Nasser's House," Ha'Aretz, 30 June 2005.
49. "B'Tselem: High Court 'Rubber Stamp' for IDF House Demolitions," Ha'Aretz, 15 November 2004.
50. Official Commentary on Article 53 of the Fourth Geneva Convention, provided by the International Committee of the Red Cross.
51. For a critical review of the Supreme Court's case law in this area, see Kretzmer, The Occupation of Justice, chapter 9, note 11;
52. and B'Tselem, Through No Fault of Their Own: Punitive House Demolitions during the al-Asqa Intifata (Jerusalem, November 2004).
53. For a detailed explanation of these principles in their robust fashion, see the work of the International Humanitarian Law Research Initiative of the Harvard Program on Humanitarian Policy and Conflict Research found in "The Separation Barrier and International Humanitarian Law: Policy Brief" (Cambridge: Harvard Program on Humanitarian Policy and Conflict Research, July 2004), online at www.ihlresearch.org.
54. Beit Sourik, para. 46.
55. See Aluf Benn, "Israel's New Frontier," Ha'Aretz, 25 February 2005.
56. B'Tselem, "Separation Barrier," online at www.btselem.org/Enghsh/ Separation_Barrier.
57. B'Tselem, Behind the Barrier, pp. 26-28.
58. Beit Sourik, para. 84.
59. Beit Sourik, para. 86.
60. See footnote 6.
61. Meron Benvenisti has observed: "The government of Israel and the High Court of Justice have reached a silent agreement. The government will not argue the non-application of the Convention, and the Court will not rule." Meron Benvenisti, "Applying the Geneva Convention," Ha'Aretz, 26 August 2004.
62. Kretzmer, The Occupation of justice, p. 196, note 11.
63. Ze'ev Sternhell, "Removing the Oxygen Mask," Ha'Aretz, 17 June 2005 ("the Supreme Court is now the last hurdle before the gradual collapse of democratic patterns of government").
64. UNGA Resolution A/Res/ES-10/15.
65. "Declaration on Palestine," XIV Ministerial Conference of the Non-Aligned Movement, Durban, South Africa (17-19 August 2004), para. 5, available online at www.nam.gov.za.
66. The U.S. House of Representatives overwhelmingly passed (361-45) a bipartisan motion deploring the "misuse of the International Court of Justice" by the UNGA, and cautioned "members of the international community that they risk a strongly negative impact on their relationship [with the United States] should they use the ICJ's advisory judgment as an excuse to interfere with the Roadmap process." House Resolution 713, 108th Congress, 2nd Session.
67. Shlomo Shamir, "Israel to Press on with Fence after UN Resolution Condemns It," Ha'Aretz, 21 July 2004.
68. Shlomo Shamir and Yuval Yoaz, "UN Vote on Fence Postponed," Ha'Aretz, 19 July 2004.
69. Editorial, "A New Legal Reality for the Fence," Ha'Aretz, 22 August 2004;
70. Aluf Benn, "Legal Team Recommends Applying Fourth Geneva Convention," Ha'Aretz, 24 August 2004.
71. Dan Izenberg, "Mazuz Defends ICJ Fence Decision Report," Jerusalem Post, 23 August 2004.
72. Aluf Benn, "Defense Ministry Official: Fence Won't Run along 1967 Line," Ha'Aretz, 29 July 2004.
73. "The Humanitarian Impact of the West Bank Barrier on Palestinian Communities" (March 2005, update no. 5). This report was compiled for the UN Humanitarian and Emergency Policy Group by the UN Office for coordination of Humanitarian Affairs and the UN Relief and Works Agency for Palestinian Refugees.
74. The wall's revised route will penetrate deeply in the southern West Bank to encompass the Gush Etzion settlement bloc near Bethlehem, while following the green line around the South Hebron hills. Ha'Aretz quoted Israeli government sources in late December 2004 to say that this specific "compromise" had two purposes: "To soften international criticism of the Gush Etzion section by linking it with the concessions in the South Hebron Hills region, and to mute rightist criticism of these concessions by linking it to the enclosure of the Gush Etzion settlements." Aluf Benn, "Cabinet to See New Fence Route after PA Vote," Ha'Aretz, 30 December 2004.
75. The wall's Ariel/Emmanuel "finger" would extend approximately 22 kilometers, or 42 percent, across the width of the northern West Bank, while the finger to Ma'ale Adumin would stretch 14 kilometers, or 45 percent, of its width to the east of Jerusalem.
76. Benn, "Israel's New Frontier."
77. Benn, "Israel's New Frontier."
78. An English summary of the response has been provided by Israel's Ministry of Foreign Affairs: "Unofficial Summary of State of Israel's Response regarding the Security Fence," 28 February 2005, online at www.mfa.gov.il.
79. "Unofficial Summary of State of Israel's Response," para. 23.
80. Palestinian Center for Human Rights, "Securing the Wall from International Law: An Initial Response to the Israeli State Attorney" (Gaza, April 2005); Association for Civil Rights in Israel, "A Statement of Opinion that the Ruling by the International Court of Justice in the Hague is Binding to Israel" (5 May 2005).
81. Aluf Benn, "PM Orders Acceleration in Work on West Bank Barrier," Ha'Aretz, 6 July 2005.
82. Editorial, "Sharon is Dividing Jerusalem," Ha'Aretz, 13 July 2005.
83. Akiva Eldar, "Diplomats without Diplomacy," Ha'Aretz, 24 June 2005.
84. Also see Meron Rapoport and Yuval Yoaz, "IDF Takes Land for Fence around Ma'aleh Adumim," Ha'Aretz, 24 August 2005.
85. Greg Myre, "Israeli Barrier in Jerusalem Will Cut Off 55,000 Arabs," New York Times, 11 July 2005.
86. Also see the remarks of Israeli cabinet minister Haim Ramon (Labor), who said that the wall's route "makes [Jerusalem] more Jewish." News Agencies, "EU's Solana Slams J'lem Fence; PA: It Makes Pullout Useless," Ha'Aretz, 11 July 2005.
87. International Crisis Group, The Jerusalem Powder Keg, Brussels and Amman: International Crisis Group, 2 August 2005.
88. Tom Segev, "The Paradox of Jerusalem," Ha'Aretz, 9 June 2005. Those Palestinians holding Jerusalemite status normally have Israeli ID cards, which enables them to have access to state benefits such as health care and education and to live in Jerusalem.
89. Yuval Yoaz, "State: Jerusalem Security Fence also Politically Motivated," Ha'Aretz, 21 June 2005;
90. Yuval Yoaz, "The Route Less Travelled," Ha'Aretz, 5 July 2005.
91. For example, see UN Security Council Resolution 476, 30 June 1980, stating that Israel's actions in East Jerusalem "have no legal validity."
92. Yuval Yoaz, "State to High Court: Fence Route Determined not only by Security Considerations," Ha'Aretz, 4 July 2005.
93. For an English language summary of the decision issued by the High Court, see "The High Court of Justice HCJ 7957/04 ruling on the fence surrounding Alfe Menashe," Ha'Aretz, 15 September 2005.
94. For an informative analysis of the wall's impact on the five Palestinian villages, see the chapter on Alfe Menashe in B'Tselem, Under the Guise of Security: Routing the Separation Barrier to Enable Settlement Expansion in the West Bank (Jerusalem, September 2005).
95. See note 80.