Capacities and inadequacies: A look at the two separation barrier cases

Israel Law Review

Volumn 38, Issue 1-2, 2005, Pages 230-246

  Shany, Yuval ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

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EID: 84925119890     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700012681     Document Type: Article

References (103)

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Advisory Opinion of 9 July 2004, I.C.J.
2. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38 (1–2) Is.L.R. 17 (hereinafter: “OPT Wair”).
3. H.C.J. 2056/04 Beit Sourik Village Council v. Government of Israel 58(5) P.D. 807.
4. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807” (2005) 38 (1–2) Is.L.R. 83.
5. I use the term ‘separation barrier’ throughout the note for reasons of stylistic consistency and attempted terminological neutrality. The term ‘separation barrier’ encompasses the term ‘separation wall’ to which the ICJ referred in the advisory opinion, the term ‘security fence’ to which Israeli spokesperson allude and the terms ‘separation fence’ and ‘separation area’ which the HCJ used interchangeably. The same methodological concerns have led the UN Secretary General to adopt the term ‘separation barrier’ in his report to the General Assembly. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, UN Doc. A/ES-10/248 (2003).
6. Charter of the United Nations, art. 92, 26 June 1945, XV U.N.C.I.O. Doc. 355 (hereinafter: “UN Charter”).
7. See G.A. Res. ES-10/14 (2003), 8 Dec. 2003. According to UN Charter, art. 96, the ICJ may issue advisory opinions at the request of the UN General Assembly and Security Council, or other authorized UN and UN-affiliated organs and agencies.
8. But see Richard A. Falk, “Toward Authoritativeness: The ICJ Ruling on Israel's Security Wall” (2005) 99 Am. J. Int'lL. 42, 48–50 (criticizing the common perception of advisory opinions as non-binding).
9. See Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford, Oxford University Press, 2003) 24.
10. For elaboration of the ‘same parties’ and ‘same issues’ standards, see Certain German Interests in Polish Upper Silesia (Germany v. Poland), 1925 PCIJ (ser. A) No. 6, at p. 20
11. Benvenuti and Bonfat Sri. V. Congo, 1 ICSID Rep. 330, 340 (1980)
12. Amco Asia, Pan American Development Ltd. v. Indonesia, 1 ICSID Rep. 389,409 (1983)
13. China Navigation Co. Ltd. (U.K.) v. U.S. (The ‘Newchwang’), VI R.I.A.A. 64, 65 (1921)
14. Cases 172, 228/83 Hoogovens Greop v. Commission [1985] E.C.R. 2831, 2846
15. Waste Management Inc. v. Mexico, 41 I.L.M. 1315, 1322 (2002) (ICSID Additional Facility decision on preliminary objections).
16. It is notable that the HCJ did not question the applicability of the Fourth Geneva Convention to the proceedings at hand. Beit Sourik Village, I.L.M. n. 2, at para. 23.
17. I.L.M., at para. 38–39. The reference by the Court to both national and international law arguably strengthens the legitimacy of the decision within Israel and outside it.
18. See e.g., Beit Sourik Village, I.L.M. n. 2, at para. 61 (“[A]n alternative route exists… ft is based on military control of Jebel Mukatam, without ‘pulling’ the Separation Fence to that mountain… The gap between the security provided by the military commander's approach and the security provided by the alternate route is minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a Fence which does not separate the two”).
19. Report of the Secretary-General, I.L.M. n. 3. The Report contains a two-page summary of the position of the Israeli government on the legal justifications for constructing the barrier. However, it should be noted that Israel argued in its written pleadings that the Report did not accurately reflect its positions. Written Statement of the State of Israel on Jurisdiction and Admissibility, 30 Jan. 2004, para. 2.24, http://www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/iWrittenStatement_17_israel.pdf.
20. QpT Wall, I.L.M. n. 1, at para. 57 There is no indication in the advisory opinion that the specific factual and legal assertions of the Israeli government, as presented during the numerous HCJ proceedings on the legality of the barrier in Israel, were taken into considerations.
21. Cf. Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14, 26 (“The vigilance which the court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present”). See also separate opinion of Judge Owada, at para. 30, (“[A]n in-depth effort could have been made by the Court, proprio motu, to ascertain the validity of this argument on the basis of facts and law, and to present an objective picture surrounding the construction of the wall in its entirety, on the basis of which to assess the merits of the contention of Israel”) available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Owada.htm.
22. It could be argued that the fact that the barrier was designed to protect unlawful settlements renders it illegal ipso facto thus obviating the need for ascertaining the necessity of constructing it. However, the Court never makes such an argument. For discussion of the treatment of settlements issue by the ICJ, see David Kretzmer, “The Advisory Opinion: The Light Treatment of International Humanitarian Law” (2005) 99 Am. J. Int'l L. 88, 91–94. Further, such argument is problematic as it overlooks segments of the barrier constructed in the Occupied Territories, which directly protect cities and villages within Israel proper. It is also oblivious to any strategic military advantage of constructing obstacles in ‘enemy territory’ (especially in the light of possible rocket attacks on Israeli population centers).
23. Dissenting opinion of Judge Buergenthal, Am. J. Int'l L. n. 16, at para. 3.
24. Cf. Eastern Carelia, 1923 P.C.I.J. (Ser. B), No. 5, at 28–29 (“The Court, the Russian Government having refused their concurrence, finds itself unable to pursue the investigation…. which would require the consent and cooperation of both parties”).
25. OPT Wall, Am. J. Int'l L. n. 1, at para. 58.
26. See Am. J. Int'l L., at para. 135 (“on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations”)
27. Am. J. Int'l L., at para. 136 (“On the basis of the information available to it, the Court finds that these conditions [necessity and proportionality] are not met in the present instance”)
28. Am. J. Int'l L., at para. 137 (“To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives”)
29. Am. J. Int'l L., at para. 140 (“In the light of the material before it, the Court is 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.”).
30. Dissenting opinion of Judge Buergenthal, Am. J. Int'l L. n. 16, at para. 7.
31. See also Iain Scobbie, “Smoke, Mirrors and Killer Whales: the International Court's Opinion on the Israeli Barrier Wall” (2004) 5 GLJ 9 http://www.germanlawjournal.com/, at para. 10 (describing the ICJ opinion in the following terms - “much rests on little more than assertion rather than on reasoned argument”).
32. Cf. Ilascu v. Moldova, ECHR judgment of 8 July 2004, at para. 26(i)(“In assessing both written and oral evidence the Court has hitherto generally applied “beyond a reasonable doubt” as the standard of proof required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact; in addition, the conduct of the parties in relation to the Court's efforts to obtain evidence may constitute an element to be taken into account”)
33. Eirtrea v. Ethiopia, Award of 1 July 2003, at para. 45 (Claims Commission)(grave charges against a State must be supported by a high level of certainty).
34. On the link between inadequate reasoning and legitimacy, see Laurence R. Heifer and Anne-Marie Slaughter, “Towards a Theory of Effective Supranational Adjudication” (1997) 107 Yale L.J. 213, 321–322.
35. Beit Sourik Village, Yale L.J. n. 2, at para. 29.
36. It is perhaps significant to note that the Court opined that had it found that the real motive of constructing the barrier had been political and not military, it would have declared the unlawfulness of the separation barrier altogether. Yale L.J., at para. 27.
37. Yale L.J., at para. 47 and 58.
38. Yale L.J., at para. 47.
39. The Court also commended the sincere desire of the military commander to meet the standards of legality. Yale L.J., at para. 85.
40. Yale L.J.,at para. 48.
41. Yale L.J., at para. 42. The involvement of the Council for Peace and Security, which provided the Court with competing expert opinion on security matters, seem to have emboldened the Court in dismissing the army's position and in asserting that alternative effective routes exist. See also text accompanying notes 37–38.
42. Yale L.J., at para. 82–85.
43. See e.g., Yale L.J., at para. 71, (“Other routes, of c.ourse, may be considered. This is the military commander's affair.”)
44. OPT Wall, Yale L.J. n. 1, at para. 121.
45. Cf. Lac Lanoux (Spain v. France), 24 I.L.R. 101, 126 (1957) (“[T]here is a general and well-established principle of law according to which bad faith is not presumed”)
46. Free Zones of the Upper Savory and the District of Gex, (France v. Switz.) 1932 P.C.I.J. (ser. A/B), No. 46, at p. 167 (“[A]n abuse cannot be presumed by the Court”).
47. Oil Platforms (Iran v. U.S.), judgment of 6 Nov. 2003,2003,2003 I.C.J. at para. 73 available at www.icj-cij.org/icjwww/idocket/iop/iopjudgement/iop_ijudgement_20031106.PDF.
48. This decision was criticized by some of the individual judges. I.C.J., separate opinion of Judge Kooijmans, at para. 44–46
49. I.C.J., separate opinion of Judge Buergenthal, at para. 37.
50. Cf. Handyside v. UK, (1979) 1 EHRR 737, at para. 48 (domestic courts are better situated to assess local conditions)
51. Heifer and Slaughter, EHRR n. 23, at. 316.
52. Apart from the ECHR which has long applied the margin of appreciation doctrine, acceptance of the doctrine in some form or the other can be identified in the case law of the European Court of Justice, WTO dispute settlement body, the International Tribunal for the Law of the Sea, the Human Rights Committee, the Inter-American Court of Human Rights, NAFTA and the International Center for the Settlement of Investment Disputes. See e.g., Germany v. Leifer 1995 ECR I-3231
53. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Inter-Am. Ct. H.R. (ser. A) (1984), at para. 57–58
54. Comm. 547/1993 Mahuika v. New Zealand, UN Doc. CCPR/C/70/D/547/1993 (2000)
55. EC-Measures Affecting Asbestos and Asbestos-Containing Products (Appellate Body Report), 40 I.L.M. 1093, 1226 (2001)
56. The Volga Case (Russia v. Australia) (Application for Prompt Release), 42 I.L.M. (2003) 159, 183–186 (Separate Opinion, Judge Cot)
57. D. Myers, Inc. v. Canada (NAFTA Partial Award), 40 I.L.M. 1408, 1438
58. Compania de Aquas del Aconquija, S.A. v. Argentina, (ICSID ad hoc Annulment Committee decision) 41 I.L.M. 1135, 1149 (2002).
59. One should also note that the two recent ICJ decisions on the application of the death penalty to foreign nationals in the U.S. leave a certain margin of appreciation to the local authorities in implementing the Court's judgments. See LaGrand (Germany v. U.S.), 2001 I.C.J. 466, 514
60. Avena (Mexico v. U.S.), judgment of 31 March 2004, 2004 I.C.J. (forthcoming), at para. 141–143.
61. See e.g., Beit Sourik Village, I.C.J. n. 2, at para. 61.
62. See e.g., I.C.J., at para. 18–20 (discussing the competing tactical choices in locating the barrier between Israeli localities and Palestinian villages).
63. OPT Wall, I.C.J. n. 1, at para 141.
64. See e.g, Beit Sourik Village, I.C.J. n. 2, at para 86 (“We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror. We are aware of the killing and destruction wrought by terror against the state and its citizens”).
65. See also I.C.J., at para. 2 (describing the background to the decision to construct the separation barrier in a manner sympathetic to the government's position).
66. I.C.J., at para 86 (“Only a Separation Fence built on a base of law will grant security to the state and its citizens”).
67. See I.C.J., at para, 67–68 (“[T]he farmer's way of life is impinged upon most severely… This is a veritable chokehold, will severely stifle daily life”)
68. I.C.J., at para. 9 (describing inter alia the harm to sheepherding activities, to olive trees and to land “cultivated for many generations”).
69. Cf. with the dry fact-of-the-matter tone used by the ICJ. OPT Wall, I.C.J. n. 1, at para. 133 (“There have also been serious repercussions for agricultural production”).
70. See Heifer and Slaughter, I.C.J. n. 23, at 285.
71. See e.g., Hugh W.A. Thirlway, Non-Appearance Before the International Court of Justice (Cambridge, Cambridge University Press, 1985) 64–82.
72. Cf. Heifer and Slaughter, I.C.J. n. 23, at 303 (discussing the link between fact-finding capabilities and legitimacy).
73. It should be noted that HCJ proceedings also do not, as a rule, provide for oral testimony, although there have been occasional exceptions (e.g., H.C.J. 5016/96 Horev v. Minister of Transportation 51(4) P.D. 1).
74. Still, the HCJ plays a vastly more active role in the proceedings before it than the ICJ and requires the parties to produce additional facts on a regular basis (see e.g., H.C.J. 4764/04 Physicians for Human Rights v. IDF Commander in the Gaza Strip, judgment of 30 May 2004, at para. 6) (not yet published)?”
75. On the importance of the dialogue between international courts and national publics, see Heifer and Slaughter, P.D. n. 23, at 309.
76. The call, at the very end of the opinion, for all parties to refrain from violence (OPT Wall, P.D. n. 1, at para. 162) appears to be too little, too late.
77. See P.D. n. 10, at separate opinion of Judge Higgins (“[I]n my view much, much more was required to avoid the huge imbalance that necessarily flows from being invited to look at only “part of a greater whole”).
78. See e.g., Shlomo Shamir, “Sharon to Convene Ministers Sunday to Discuss ICJ Ruling”, Haaretz 11 July 2004 (citing inter alia Minister of Justice, Lapid's reaction: “This was a decision made by countries whose stance was known, and is therefore irrelevant to Israel”).
79. OPT Want Haaretz n 1; at para. 122.
80. See e.g., Ministry of Foreign Affairs, “Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip”, http://www.mfa.gov.il/mfa/mfaarchive/2000_2009/2003/2/disputed+territories-+forgotten+f acts+about+the+we.htm>. In a nutshell, Israel argues that the League of Nations Mandate over Palestine conferred upon it title, at least, over West Bank territories which were under effective Jewish control before the war of 1948. It is questionable, however, whether unilateral annexation would be permissible even under such conditions.
81. See e.g., Declaration of Principles on Interim Self-Government Arrangements (Israel/PLO), 13 Sept. 1993, art. V (3), 32 I.L.M. 1525 (1993).
82. For discussion, see Geoffrey R. Watson, “The ‘Wall’ Decisions in Legal and Political Context” (2005) 99 Am. J. Int'lL. 6, 22–24.
83. This position is not supported by the ILC Draft Articles on State Responsibility, which bar the raising of the defense of necessity, where the state in question contributed to the illegality of the act. Draft Articles on the Responsibility of States for International Wrongful Acts, art. 25(2), 32, UN G.A.O.R. 56th Sess., Supp. No. 10, UN Doc. A/56/10, Ch. IV.E. 1 (2001). It could however be argued that the draft articles use excessively sweeping language in this regard and ignore precedents in which the illegality of the overall situation was distinguished from the question of legality of specific measures taken within its context.
84. See e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)
85. Cyprus v. Turkey, 2001-IV Eur. Ct. H.R., at para. 95–99 (acts of the unlawful authorities of Northern Cyprus might nevertheless be lawful). Furthermore, an analogy could be drawn to the traditional distinction between jus in bello and jus ad bellum - i.e., the illegality of the resort to force does not render every specific military operation as unlawful.
86. See Beit Sourik Village, Eur. Ct. H.R. n. 2, at para. 30 (“[I]t is the security perspective - and not the political one - which must examine a route based on its security merits alone, without regard for the location of the Green Line”)
87. Eur. Ct. H.R., at para. 80 (“We also accept that ‘The Gazelles’ Basin’ is a part of Giv'at Ze'ev [a West Bank settlement - Y.S.] and needs defense just like the rest of that town”).
88. See e.g., H.C.J. 390/79 Dawikat v. Government of Israel 34(1) P.D. 1
89. H.C.J. 7015/02 Ajuri v. IDF West Bank Commander 56(6) P.D. 352.
90. See e.g., H.C.J. 4219/02 Gussin v. IDF Commander in the Gaza Strip 56(4) P.D. 608 (the alleged illegality of the settlement is irrelevant for reviewing the lawfulness of security measures)
91. H.C.J. 4481/91 Bargil v. Gov't Israel 47(4) P.D. 210
92. H.C.J. 3125/98 lyad v. IDF West Bank Commander 55(1) P.D. 913 (the dominantly political nature of the question of the legality of the settlements renders the two petitions non-justiciable)
93. H.C.J. 610/78 Ayoub v. Minister of Defense 33(2) P.D. 113, 131, 134 (the settlements are not permanent fixtures and are therefore not unlawful under the Hague Regulations).
94. Beit Sourik Village, P.D. n. 2, at para. 27.
95. But see David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, SUNY University Press, 2002) 20 (judicial review of acts taken by Israel in the territory might confer legitimacy upon them).
96. See e.g., MOX Plant (Ireland v. U.K.), Order No. 4 of 14 Nov. 2003, at para. 28 [http://www.pca-cpa. org/ENGLISH/RPC/MOX/MOX%20Order%20No4.pdf].
97. See e.g., SGS v. Philippines, Decision of 29 Jan. 2004, at para. 162, 175, http://www.worldbank.org/icsid/cases/SGSvPhil-final.pdf
98. Dallal v. Bank Mellat [1986] 1 Q.B. 441,461–62 (Hobhouse J.).
99. See Southern Pacific Properties (Middle East) v. Egypt (jurisdiction), 3 ICSID Rep. 101, 129(1985).
100. See MOXPlant, ICSID Rep. n. 60
101. SGS, ICSID Rep. n. 60.
102. Cf. Prince von Pless (Germany v. Poland). P.C.I.J. (Ser. A/B), No. 52, at p. 16 (1933)(interim order)(“[I]t will certainly be an advantage to the Court… to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal upon the appeals brought by Prince von Pless and now pending before that Tribunal… the Court must therefore arrange its procedure so as to ensure that this will be possible).
103. H.C.J. 4825/04 Alian v. Prime Minister, decision of 19 Aug. 2004 (ordering the state to address the implications of the ICJ advisory opinion for the case at hand) (not yet published).