The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation

Leiden Journal of International Law

Volumn 19, Issue 2, 2006, Pages 393-440

  Gross, Aeyal M ^a  

^a TEL AVIV UNIVERSITY   (Israel)

Author keywords

Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; International Court of Justice; international humanitarian law; occupation; proportionality; transnational legal process

Indexed keywords

EID: 85010110633     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003360     Document Type: Article

References (228)

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), Judgment of 9 July 2004, (2004) 43 ILM 1999 (hereafter Advisory Opinion).
2. HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) P.D. 807 (2004), translated in (2005) 38 Israel Law Review 83 and (2005) 43 ILM 1099 (hereafter Beit Sourik).
3. The question ofwhat to call the structure being built in theWest Bank remains controversial. Although the title of this article cites the title of the ICJ Opinion,which used the term ‘wall’, others think the term ‘fence’ is more appropriate. Throughout the article, unless in a direct quote, I will use the term ‘barrier’ (or ‘separation barrier'), which is perhaps this structure's best description.
4. HCJ 7957/04Mara'abe v. The Prime Minister of Israel (not yet published) (hereafter Mara'abe), English translation available at http//elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.pdf.
5. See especially the Separate Opinions of Judge Higgins, Judge Kooijmans, and Judge Owada. A critical view of the Court's reasoning was also taken by Judge Buergenthal, who dissented from the Court's decision to hear the case, and thus from the Advisory Opinion itself. In his Declaration, Judge Buergenthal also addressed the merits part of the Advisory Opinion, and pointedly criticized the gaps in the Court's reasoning.
6. See especially I. Scobbie, ‘Smoke Mirrors and Killer Whales” The International Court's Opinion on the Israeli Barrier Wall’, (2004) 5 German Law Journal 1107, available at http//www.germanlawjournal.com/ print.php?id=495. Scobbie argues that the Court's drafting method sometimes makes its reasoning ‘less candid than onemight desire’. The Advisory Opinion, he suggests, seeks to convey only the ‘lowest common denominator’ of the various judicial opinions. For a similar explanation see L. Fisler Damrosch and B. Oxman, ‘Agora” ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory” Editor's Introduction’, (2005) 99 AJIL 1, at 1.
7. On ‘missing pages’ in a court's decisions in another context, see L. Baker, ‘TheMissing Pages of theMajority Opinion in Romer v. Evans’, (1997) 68 University of Colorado Law Review 387; J. Halley, ‘Gay Rights and the Courts-TheAmendment 2 Controversy” Romer v.Hardwick’, (1997) 68 University of Colorado Law Review 373.
8. See especially Imseis, On ‘missing pages’ in a court's decisions in another context note 8.
9. The Israeli High Court of Justice enjoys original jurisdiction over petitions made against government agencies regarding their capacities as such. See Basic Law” The Judiciary, 38 L.S.I 181 (1984), Art. 15, available at http//www.mfa.gov.il/MFA/MFAArchive/1980_1989/Basic per cent20Law-per cent20The per cent20Judiciary.
10. UN Doc. A/RES/ ES-10/14, 10 Dec. 2003, quoted in Advisory Opinion, The Israeli High Court of Justice enjoys original jurisdiction over petitions made against government agencies regarding their capacities as such. note 1, para. 1.
11. HCJ 9961/03 Hamoked-The Center for the Defense of the Individual v. The Government of Israel (pending).
12. HCJ 639/04 The Association for Civil Rights in Israel v. The IDF Commander in Judea and Samaria (pending).
13. HCJ 11344/03 Faiz Salem v. The IDF Commander in Judea and Samaria (pending). On 27 July 2005 the HCJ issued a decision within this petition, stating that it would hear it together with the petition in HCJ 639/04 challenging the permit regime.
14. The Green Line is the name given to the border that had existed between Israel and theWest Bank, which was held by Jordan before the 1967 war, and thus currently marking the boundary between Israel and the occupied territories.
15. Advisory Opinion, The Green Line is the name given to the border that had existed between Israel and theWest Bank note 1, paras. 149-53, 163.
16. The Green Line is the name given to the border that had existed between Israel and theWest Bank., para. 83.
17. The Law of Return, 5710-1950, 4 LSI 114 (1950), available at http//www.mfa.gov.il/MFA/ MFAArchive/1950_1959/Law+of+Return+5710-1950.htm. The permit system was later changed in some aspects, including omission of the special status given specifically to non-Israeli Jews.However, for themost part the changes seem cosmetic only. See note 22, infra.
18. Advisory Opinion, The Green Line is the name given to the border that had existed between Israel and theWest Bank. note 1, para. 143. For an overview of the Advisory Opinion and its place within the Israeli-Palestinian conflict see P. J. I. M. DeWaart, ‘International Court of Justice FirmlyWalled in the Law of Power in the Israeli-Palestinian Peace Process’, (2005) 18 LJIL 467.
19. Advisory Opinion, The Green Line is the name given to the border that had existed between Israel and theWest Bank. note 1, paras. 119-20.
20. The Green Line is the name given to the border that had existed between Israel and theWest Bank., para. 121.
21. The Green Line is the name given to the border that had existed between Israel and theWest Bank., para. 122.
22. The Green Line is the name given to the border that had existed between Israel and theWest Bank…TheICJnotedthatthesedemographicchangesmightresultfromPalestiniansbeingforcedtodepartfrom certain areas as a result of the barrier. The Green Line is the name given to the border that had existed between Israel and theWest Bank., para. 133. For a comprehensive discussion of self-determination in this context see J. F. Gareau, ‘Shouting at theWall” Self-Determination and the Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory’, (2005) 18 LJIL 489.
23. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art. 6 of the FourthGeneva Convention to imply that only these provisions are applicable in theOPT. For a powerful critique of this position see Ben-Naftali, The Green Line is the name given to the border that had existed between Israel and theWest Bank… note 8. On this point, see also Imseis, The Green Line is the name given to the border that had existed between Israel and theWest Bank… note 8, at 105-9.
24. Advisory Opinion, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art. note 1, paras. 123-37.
25. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art., para. 133.
26. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art., paras. 135-7.
27. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art., paras. 140-1.
28. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art., paras. 138-9.
29. The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art., paras. 135, 137, 140.
30. For such critiques, see Advisory Opinion (Buergenthal), The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 1. See also Watson, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 5, at 24; Shany, ‘Capacities and Inadequacies’, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 5, at 230-6; Kretzmer, ‘The Light Treatment’, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 5, at 98-9. Imseis, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 8, at 110-15, discusses in detail what he considers to be the ICJ's patent failure to give substantive reasons for its finding that Israel's construction of the barrier cannot be justified bymilitary necessity, and offers reasons of his own.
31. For a comprehensive discussion see Scobbie, Imseis, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 8, at 110-15, discusses in detail what he considers to be the ICJ's patent failure to give substantive reasons for its finding that Israel's construction of the barrier cannot be justified bymilitary necessity, and offers reasons of his own. note 8.
32. Advisory Opinion, For a comprehensive discussion see Scobbie, Imseis, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 8, at 110-15, discusses in detail what he considers to be the ICJ's patent failure to give substantive reasons for its finding that Israel's construction of the barrier cannot be justified bymilitary necessity, and offers reasons of his own. note 8. note 1, paras. 138-40.
33. Judge Higgins was critical of this view in her concurring opinion, but accepted this is a statement of the law as it stands. Advisory Opinion (Higgins), Advisory Opinion, For a comprehensive discussion see Scobbie, Imseis, The ICJ confined its analysis to provisions that continue to apply after the cut-off date, namely one year after the general closure of military operations, interpreting Art… note 8, at 110-15, discusses in detail what he considers to be the ICJ's patent failure to give substantive reasons for its finding that Israel's construction of the barrier cannot be justified bymilitary necessity, and offers reasons of his own. note 8. note 1, paras. 138-40. note 1, para. 33. In my view the law on this question at this time does not require an attack by a state.
34. For such a reading see also Scobbie, Judge Higgins was critical of this view in her concurring opinion, but accepted this is a statement of the law as it stands. note 8. About the confusion between self-defence as a legal doctrine and the broader notions of security concerns see Judge Higgins was critical of this view in her concurring opinion, but accepted this is a statement of the law as it stands., at 84. Thus I agree with the position taken by Judge
35. See Scobbie, About the confusion between self-defence as a legal doctrine and the broader notions of security concerns see Judge Higgins was critical of this view in her concurring opinion, but accepted this is a statement of the law as it stands. note 8, at 83-4. For a discussion of the complex relationship between jus ad bellum and jus in bello in this context see also S. Murphy, ‘Self-Defense and the Israeli Wall Advisory Opinion” An Ipse Dixit from the ICJ?’, (2005) 99 AJIL 62; I. Canor, ‘When Jus ad BellumMeets Jus in Bello” The Occupier's Right of Self-Defence against Terrorism Stemming from Occupied Territories’, (2006) 19 LJIL 129.
36. For an outline of the positions on this issue see Harvard Program on Humanitarian Policy and Conflict Research, ‘The Separation Barrier and IHL’, July 2004, available at http//www.ihlresearch.org/opt/ feature.php?a=36.
37. For a discussion of the importance of maintaining the distinction between jus ad bellum and jus in bello see section 3.1.2, infra. Scobbie joins some of the critiques of the ICJ's determination on self-defence, but agrees with the ICJ's rejection of Israel's claims on thismatter, partly out of agreement with Judge Higgins's scepticism about the applicability of the doctrine to non-forcible measures. Without taking a position on this complex question, I agree with Scobbie's determination that ‘to state the proposition that measures taken in self-defence may exculpate a State from responsibility for violations of IHL is to demonstrate both the fallacy and danger at the heart of the Israeli argument. It is to claim that the law designed to restrain the exercise of force does not apply when force is being exercised.’ Scobbie, For an outline of the positions on this issue see Harvard Program on Humanitarian Policy and Conflict Research note 10, paras. 44-59.
38. Beit Sourik, Scobbie joins some of the critiques of the ICJ's determination on self-defence, but agrees with the ICJ's rejection of Israel's claims on thismatter, partly out of agreement with Judge Higgins's scepticism about the applicability of the doctrine to non-forcible measures. note 3, para. 9.
39. The HCJ noted that it will examine the matter under the Fourth Geneva Convention, notwithstanding the controversy about its applicability in the OPT, ‘since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review’ (Scobbie joins some of the critiques of the ICJ's determination on self-defence, but agrees with the ICJ's rejection of Israel's claims on thismatter, partly out of agreement with Judge Higgins's scepticism about the applicability of the doctrine to non-forcible measures., para. 23). On the question of the status of the Fourth Geneva Convention in Israeli Courts see notes 137 and 211-216 and accompanying text, infra.
40. Beit Sourik, On the question of the status of the Fourth Geneva Convention in Israeli Courts see notes 137 and 211-216 and accompanying text, infra. note 3, paras. 23-4
41. On the question of the status of the Fourth Geneva Convention in Israeli Courts see notes 137 and 211-216 and accompanying text, infra., para. 1.
42. On the question of the status of the Fourth Geneva Convention in Israeli Courts see notes 137 and 211-216 and accompanying text, infra., at 241-7 (where they discuss the Rashomon quality of the Second Intifada), and the sources cited therein.
43. All data taken from B'Tselem, the Israeli Centre for Human Rights in the Occupied Territories, available at http//www.btselem.org/English/Statistics/Index.asp.
44. As opposed to graphic descriptions of Palestinian terror, mention of the Israeli occupation is confined in the HCJ'sHebrew original to the term ‘tefisah lohmatit’ (belligerent occupation), a technical legal term lacking any of the overtones attached to the Hebrew word for occupation (kibbush). All data taken from B'Tselem., citing a previous ruling (HCJ 7015/02 Ajuri v. The IDF Commander of the West Bank 56(6) P.D. 352 (2002), English translation available at http//elyon1.court.gov.il/files_eng/02/150/070/a15/02070150.a15.pdf), which includes this description and was later canonized by the HCJ through recurrent quoting.
45. Cited in Beit-Sourik, All data taken from B'Tselem note 3, para. 6. Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank. On the link between the barrier's route and Israel's permanent borders see note 152 and accompanying text, infra.
46. Beit Sourik, Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank. note 3, para. 9.
47. Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank., para. 10.
48. Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank., para. 11.
49. Beit Sourik, Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank… note 3, paras. 18, 54, 64, 71, 78.
50. Interestingly, the emphasis on the statement that the barrier is not a border was probably included in the government decision in order to conciliate the Israeli right wing that has traditionally opposed the barrier as a potential border for Israel that would leave out much of the West Bank., para. 22. Another Israeli citizen appearing before the HCJ argued the opposite” bringing the barrier close to the homes of the Jewish residents would endanger them.
51. While noting it does not ‘exhaust’ it. Another Israeli citizen appearing before the HCJ argued the opposite” bringing the barrier close to the homes of the Jewish residents would endanger them., para. 25.
52. While noting it does not ‘exhaust’ it., paras. 26-7.
53. Whereas the petitioners argued that a security barrier should have been constructed on the Green Line, the HCJ said the opposite was true” the barrier's routemust be determined by security considerations rather than by the location of the Green Line (While noting it does not ‘exhaust’ it., paras. 28-31).
54. Whereas the petitioners argued that a security barrier should have been constructed on the Green Line, the HCJ said the opposite was true” the barrier's routemust be determined by security considerations rather than by the location of the Green Line., paras. 32-3.
55. The HCJ mentioned in passing an area within a West Bank settlement as deserving the barrier's defence, without evenmentioning that it is beyond the Green Line. Whereas the petitioners argued that a security barrier should have been constructed on the Green Line, the HCJ said the opposite was true” the barrier's routemust be determined by security considerations rather than by the location of the Green Line., para. 80.
56. The HCJ mentioned in passing an area within a West Bank settlement as deserving the barrier's defence, without evenmentioning that it is beyond the Green Line., para. 34.
57. The HCJ mentioned in passing an area within a West Bank settlement as deserving the barrier's defence, without evenmentioning that it is beyond the Green Line., para. 36. Although Israeli law does not apply to the OPT as such, the HCJ has repeatedly ruled in the past that it would examine the actions of the Israeli army in the OPT according to Israeli administrative law as well, since this law is binding on Israeli army authorities. See HCJ 393/82 Jamait Askan v. The IDF Commander in Judea and Samaria, 37(4) P.D. 785, 810 ('Every Israeli soldier carries in his backpack the norms of public and customary international law, which regard the rules of war, as well as the basic norms of Israeli administrative law.')
58. Beit Sourik, Although Israeli law does not apply to the OPT as such, the HCJ has repeatedly ruled in the past that it would examine the actions of the Israeli army in the OPT according to Israeli administrative law as well, since this law is binding on Israeli army authorities. note 3, para. 37.
59. J. Pictet, Developments and Principles of International Humanitarian Law (1985), at 62.
60. The term is borrowed from A.Watson, Legal Transplants” An Approach to Comparative Law (1993).
61. Gardam, ‘Proportionality as a Restraint’, Although Israeli law does not apply to the OPT as such, the HCJ has repeatedly ruled in the past that it would examine the actions of the Israeli army in the OPT according to Israeli administrative law as well, since this law is binding on Israeli army authorities. note 67, at 164-5; R. Higgins, Problems and Process” International Law and HowWe Use It (1994), at 231. Gardam argues that only proportionality in the jus in bello derived traditionally from humanitarian considerations, whereas in jus ad bellum the limitations of proportionality related to the minimization of the disruption of international peace and security. At present, however, proportionality in the context of the jus ad bellum has a humanitarian component, namely to achieve a reasonable balance between the achievement of the legitimate goals of the state claiming self-defence and the anticipated loss of life and suffering of those involved, especially civilians. Gardam, ‘Proportionality as a Restraint’, supranote 67, at 166. See also J.Gardam, ‘LegalRestraintsonSecurity CouncilMilitaryEnforcement Action’, (1995) 17 Michigan Journal of International Law 285, at 308. For a discussion of the use of the concept of proportionality in the ICJ's Advisory Opinion on The Legality of the Threat or Use of NuclearWeapons, see J. Gardam, ‘Necessity and Proportionality in jus ad bellum and jus in bello’, in L. Boisson de Chazournes and P. Sands (eds.), International Law, the International Court of Justice and NuclearWeapons (1999), 275.
62. On the relevance of jus in bello rather than jus ad bellum to the examination of the barrier, see notes 40-2 and accompanying text, Although Israeli law does not apply to the OPT as such, the HCJ has repeatedly ruled in the past that it would examine the actions of the Israeli army in the OPT according to Israeli administrative law as well, since this law is binding on Israeli army authorities.
63. Gardam, ‘Proportionality as a Restraint’, On the relevance of jus in bello rather than jus ad bellum to the examination of the barrier note 67, at 172.
64. Beit Sourik, On the relevance of jus in bello rather than jus ad bellum to the examination of the barrier note 3, para. 38.
65. On these policies as creating a breach of trust by the military commander see O. Ben-Naftali, A. Gross, and K. Michaeli, ‘Illegal Occupation” Framing the Occupied Palestinian Territory’, (2005) 23 Berkeley Journal of International Law 551, at 579-92.
66. N. Emiliou, The Principle of Proportionality in European Law” A Comparative Study (1996), 40-3. Emiliou points to this rationale for proportionality in his discussion of the principle as developed in German public law. The inadequacy of transplanting this framework to an occupation context is evident in Moshe
67. Higgins, Emiliou points to this rationale for proportionality in his discussion of the principle as developed in German public law. note 68, at 232 (emphasis in the original).
68. Emiliou points to this rationale for proportionality in his discussion of the principle as developed in German public law., at 234.
69. Emiliou points to this rationale for proportionality in his discussion of the principle as developed in German public law., at 232.
70. Fourth Geneva Convention, Art. 49.
71. Fourth Geneva Convention., Art. 53.
72. Beit Sourik, Fourth Geneva Convention. note 3, para. 46.
73. Fourth Geneva Convention., para. 47.
74. Fourth Geneva Convention., para. 48.
75. Fourth Geneva Convention., paras. 49-81.
76. Fourth Geneva Convention., para. 82.
77. Fourth Geneva Convention., para. 49.
78. Thus I agree with Cohen-Eliya that, notwithstanding its discourse to the contrary, the HCJ did examine the relative effectiveness of the current route vis-à-vis the proposed ones. Cohen-Eliya, Fourth Geneva Convention… note 73, at 285-6. I also agree with his observation that the HCJ did suspect that the true purpose of the barrier's route was not security, although it did not openly cast doubt on the state'smotives (Fourth Geneva Convention., at 290).
79. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case. The other twoare the rational means test,which examines whether there is a rational connection between the barrier's route and the goal of its construction, and the ‘least injurious’ test, which examines whether the chosen route is the least injurious. Beit Sourik, Thus I agree with Cohen-Eliya that, notwithstanding its discourse to the contrary, the HCJ did examine the relative effectiveness of the current route vis-à-vis the proposed ones. note 3, para. 44.
80. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case., paras. 59-60.
81. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case., para. 61. See also paras. 71, 76, 80.
82. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6.
83. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6., para. 1
84. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6. note 6., para. 2.
85. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6. note 6… note 6., para. 6.
86. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6. note 6… note 6… note 6.
87. This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6. note 6… note 6… note 6… note 6., para. 7. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part. See note 22 and accompanying text, This test, of ‘proportionality in the narrow sense’, which examines the proportionality between the injury to the Palestinians and the security benefit of the barrier, is the third prong of the proportionality test that the HCJ applies generally, and specifically in this case… note 6. note 6. note 6… note 6… note 6.
88. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 9.
89. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., paras. 76-80.
90. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 104.
91. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 80.
92. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 81.
93. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 82.
94. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 14.
95. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 15.
96. The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines. The HCJ notes that this is true regarding ‘Phase A’ of the barrier, of which the barrier around AlpheiMenasheh was part., para. 99.
97. The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines., para. 100.
98. The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines., para. 101.
99. The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines., paras. 15-16.
100. The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines., paras. 18-19.
101. Imseis argues that military necessity can operate ‘only to protect the security interests of the occupying power'smilitary forces, and then only within the occupied territory’. Imseis, The State cited three reasons for not building the barrier on theGreen Line” (i) topography; (ii) the proximity of Israeli townsand villages to the Green Line,whichwouldrequire building the barrierontheir actual limits, leaving no space for an alert zone that would allow security forces to arrive prior to a terrorist infiltration; and (iii) the need to protect Israelis living in the West Bank as well as other ‘important locations’ such as roads and high-voltage lines… note 8, at 112. Including the security needs of the occupying power's home state under Art. 43 thus remains controversial. Given that a state may use its army to protect its own legitimate borders, I will not enter here the debate on whether this prerogative is part of the military commander's authority.
102. The language of the official French version of Art. 43 of the Hague Regulations refers to ‘l'ordre et la vie publique’, and thus the term ‘civil life’ is more accurate and appropriate than the term ‘safety’ used in the English version. See E. Benvenisti, The International Lawof Occupation (2004), 7, n. 1 and the references therein.
103. Mara'abe, The language of the official French version of Art. note 6, para. 19. For a detailed discussion of the case law on this question, see Kretzmer, The language of the official French version of Art. note 73, at 77-9. By refusing to rule on the legality of the settlements and generally choosing not to interfere in decisions connected with the use of land for settlements, the HCJ's case law on thismatter served to legitimize government actions. An exhaustive discussion of the HCJ's case law on settlements is beyond the scope of this article, and I will only point to a number of avoidance mechanisms in use by the HCJ. One technique, when dealing with specific settlements, is to hold that arguments made in accordance with Art. 49(6) of theGeneva Convention are not justiciable in Israeli courts because the Convention has not been incorporated into domestic law (see, e.g., HCJ 608/78 Ayub v. Minister of Defense 33(2) P.D. 112 (1978), English summary available at (1979) 9 Israeli Yearbook of Human Rights 337). Another is to reject petitions brought against settlement policy as too general and abstract, as well as raising non-justiciable political questions (see, e.g., HCJ 4481/91 Bargil v. Government of Israel, 47(4) P.D. 210 (1991)). Concerning the use of land for settlements, the HCJ has held that civilian settlements can fulfil military goals and can be temporary, and are thus within the authority of themilitary commander (see Ayub v. Minister of Defense, The language of the official French version of Art.). For a famous exception, which as Kretzmer puts it proves the rule and is the HCJ's sole intervention in thesematters, see HCJ 390/79 Dweikat v. Government of Israel, 34(1) P.D. 1 (1979), English summary available at (1979) 9 Israeli Yearbook of Human Rights 345. For an overview, discussion, and critique of these and other cases see Kretzmer, The language of the official French version of Art. note 73, at 75-99.
104. Mara'abe, For a detailed discussion of the case law on this question, see Kretzmer, The language of the official French version of Art. note 73, at 77-9. note 6, para. 20. The HCJ also cited Art. 3 of the Fourth Geneva Convention to support its conclusion, aswell as the Israeli-Palestinian InterimAgreement on theWest Bank and theGaza Strip,which provides that the issue of Israeli settlements in the area will be discussed in the negotiations over the final status, and that Israel shall bear responsibility for the overall security of Israelis and the settlements. For a discussion of the latter see notes 123-5 and accompanying text, infra.
105. Mara'abe, For a detailed discussion of the case law on this question, see Kretzmer, The language of the official French version of Art. note 73, at 77-9. note 6, para. 21.
106. Mara'abe., para. 22. Though critical of the ICJ's determination on self-defence, the HCJ does not examine the matter and does not make a positive determination as to whether the law of self-defence and Art. 51 of the UN Charter also grant authority to erect the barrier. Mara'abe., para. 23.
107. For a case where settlers’ security justified limiting Palestinians’ rights see, e.g., HCJ 10356/02, Hess v. Commander of the IDF Forces in theWest Bank, 58(3) P.D. 443 (2003). In this case, the rationale stated in the text was accepted by the HCJ as a basis for authorizing the Israeli army to seize land owned by Palestinians and destroy structures inHebron for the purpose of allowing the settlers safe access to the Cave of the Patriarchs.
108. See Benvenisti, Though critical of the ICJ's determination on self-defence, the HCJ does not examine the matter and does not make a positive determination as to whether the law of self-defence and Art. note 110, at 7-31.
109. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation. See Ben-Naftali, Gross, and Michaeli, Though critical of the ICJ's determination on self-defence, the HCJ does not examine the matter and does not make a positive determination as to whether the law of self-defence and Art. note 72, at 554.
110. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation., at 563, 575-9.
111. For an elaborate discussion of the application of this prohibition to the settlements, Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation., at 581-2.
112. HCJ 1661/05 Hof Azah Regional Council v. The Knesset (not yet published, 2005).
113. See, in this context, Kretzmer's argument about the need to protect settlerswho are civilians as grounded in IHL. Kretzmer, ‘The Light Treatment’, For an elaborate discussion of the application of this prohibition to the settlements note 5, at 93. But Kretzmer emphasizes that the need is to protect civilians rather than the settlements in which they live. This begs the question of why, then, the HCJ found it logical (basing itself partly on Kretzmer's argument-see Mara'abe, For an elaborate discussion of the application of this prohibition to the settlements note 6, para. 20) to infer from this the justification for a barrier that in fact protects the settlements, rather than requiring the military commander to protect the settlers in another way. Indeed, even according to Kretzmer's position, whereby the illegality of the settlements does not per se affect the legality of the barrier, the HCJ should have taken into account, as part of a detailed examination of the barrier's route and the evaluation of its legality, the illegality of the settlements and the consequent duty of the occupying power to return its civilians in those settlements to its own territory. Kretzmer, ‘The Light Treatment’, For an elaborate discussion of the application of this prohibition to the settlements note 5, at 94.
114. Mara'abe, Indeed, even according to Kretzmer's position, whereby the illegality of the settlements does not per se affect the legality of the barrier, the HCJ should have taken into account, as part of a detailed examination of the barrier's route and the evaluation of its legality, the illegality of the settlements and the consequent duty of the occupying power to return its civilians in those settlements to its own territory. note 6, para 20.
115. See Fourth Geneva Convention, Arts. 7, 8, and 47. For an argument as to why the determination in the Oslo accords implies that the legality of the barrier does not depend on the legality of the settlements, see R. Lapidoth, ‘The Advisory Opinion and the Jewish Settlements’, (205) 38 Israel Law Review 292, at 293-4; Wedgwood, Mara'abe note 7, at 60-1. Kretzmer, ‘The Light Treatment’, Mara'abe note 5, at note 41. For a discussion of the possible effect of the Oslo accords on this issue see Shany, ‘Head against theWall’, Mara'abe note 5.
116. In the words of the ICJ in another context” ‘One of the fundamental principles governing the international relationships thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship’. Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Africa) notwithstanding Security Council Resolution (Advisory Opinion), (1971) ICJ Rep. 16, at 46.
117. Judge Elaraby mentioned the principle in his Separate Opinion in the Advisory Opinion (Advisory Opinion (Elaraby), the words of the ICJ in another context” ‘One of the fundamental principles governing the international relationships thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship’. note 1, para. 3.1) but without elaborating precisely on its applicability in this case. To the extent that he intended to imply, as may be apparent from the context of his reference, that states may not acquire land by use of force, thismay be a problematic use of the principle, since contemporary international law prohibits such acquisition regardless of whether use of force was illegal, or a legal resort to self-defence.
118. See R. Jennings and A.Watts (eds.), Oppenheim's International Law (1992), I, at 183-4 and the references cited therein.
119. Forasimilarposition seeImseis, supranote8, at 112.Foranelaborationof thisposition seeShany, ‘Headagainst theWall’, To the extent that he intended to imply, as may be apparent from the context of his reference, that states may not acquire land by use of force, thismay be a problematic use of the principle, since contemporary international law prohibits such acquisition regardless of whether use of force was illegal, or a legal resort to self-defence. note 8. As Shany notes, Art. 25(2)(b) of the ILC Draft Articles on State Responsibility would bar states that have contributed to the situation of illegality from invoking the defence of necessity. See ILC Draft Articles on Responsibility of States for InternationallyWrongful Acts, 51, UN Doc. A/CN.4/L.602/Rev.1 (2001). For an argument on why ex injuria jus nor oritur may not be relevant here, see Kretzmer, ‘The Light Treatment’, To the extent that he intended to imply, as may be apparent from the context of his reference, that states may not acquire land by use of force, thismay be a problematic use of the principle, since contemporary international law prohibits such acquisition regardless of whether use of force was illegal, or a legal resort to self-defence. note 5, at note 41.
120. Mara'abe, To the extent that he intended to imply, as may be apparent from the context of his reference, that states may not acquire land by use of force, thismay be a problematic use of the principle, since contemporary international law prohibits such acquisition regardless of whether use of force was illegal, or a legal resort to self-defence. note 6, para. 28.
121. Onthe (im)balance of security as part of the breach of trust entailed in the Israeli occupation, see Ben-Naftali, Gross, and Michaeli, Mara'abe note 72, at 590-2.
122. Mara'abe, Onthe (im)balance of security as part of the breach of trust entailed in the Israeli occupation note 6, paras. 24-5.
123. See Ben-Naftali, Gross, and Michaeli, Mara'abe note 72, at 581-8.
124. Although Israel generally does not have an absentee ballot and voting can only take place within Israel. See Knesset Elections Law (Consolidated Version) 5729-1969, 23 L.S.I. 110 (1969), Arts. 6 and 147. See on this Ben-Naftali, Gross, and Michaeli, Mara'abe note 72, at 584-5.
125. See Kretzmer's discussion of what he calls ‘a convenient system of control’,whereby the government relates to the occupied territories as colonies at thepolitical levelwhile resorting to the law of belligerent occupation at the legal level. Kretzmer, Although Israel generally does not have an absentee ballot and voting can only take place within Israel. note 73, at 197. This is a valid analysis, but, as discussed in the text, it is the contradictions between occupation and sovereignty within the legal level itself that structure thematrix of Israeli control in the OPT. See notes 136-9 and accompanying text, infra.
126. On the means by which Israeli law is applied to the settlers and the settlements see Ben-Naftali, Gross, and Michaeli, Kretzmer's discussion of what he calls ‘a convenient system of control’,whereby the government relates to the occupied territories as colonies at thepolitical levelwhile resorting to the law of belligerent occupation at the legal level. note 72, at 584-5.
127. For a discussion of Israeli objections to the application of the Fourth Geneva Convention in the OPT and for the rejection of these arguments see On the means by which Israeli law is applied to the settlers and the settlements see Ben-Naftali., at 567-70.
128. See generally Kretzmer, For a discussion of Israeli objections to the application of the Fourth Geneva Convention in the OPT and for the rejection of these arguments see On the means by which Israeli law is applied to the settlers and the settlements see Ben-Naftali., at 567-70. note 73; Ben-Naftali, Gross, and Michaeli, For a discussion of Israeli objections to the application of the Fourth Geneva Convention in the OPT and for the rejection of these arguments see On the means by which Israeli law is applied to the settlers and the settlements see Ben-Naftali., at 567-70. note 72.
129. For a discussion of this matrix see Ben-Naftali, Gross and Michaeli, For a discussion of Israeli objections to the application of the Fourth Geneva Convention in the OPT and for the rejection of these arguments see On the means by which Israeli law is applied to the settlers and the settlements see Ben-Naftali., at 567-70. note 72, at 609-12.
130. On the illegality of this occupation see For a discussion of this matrix see Ben-Naftali.
131. Mara'abe, On the illegality of this occupation see For a discussion of this matrix see Ben-Naftali. note 6, paras. 111-12. On the three prongs of proportionality see note 86, On the illegality of this occupation see For a discussion of this matrix see Ben-Naftali.
132. Mara'abe, Mara'abe note 6, para. 113.
133. Mara'abe., para. 114. Unlike Beit Sourik, which had dealt with a planned section of the barrier, the novel feature in Mara'abe is that the HCJ ordered changes in a section of the barrier that had already been built.
134. Unlike Beit Sourik, which had dealt with a planned section of the barrier, the novel feature in Mara'abe is that the HCJ ordered changes in a section of the barrier that had already been built., para. 116.
135. The rejection of this argument was part of the HCJ's rejection of these sections in the ICJ Advisory Opinion. See notes 176-83 and accompanying text, infra.
136. Mara'abe, The rejection of this argument was part of the HCJ's rejection of these sections in the ICJ Advisory Opinion. note 6, para. 113.
137. HCJ 8414/05 Head of the Village Council Bil'in v. The Government of Israel, Respondent's Brief (17 November 2005), paras. 20-9, 76-84. In this brief the government also noted that some of the settlement construction conducted in the area was at the time illegal even by Israeli law. Mara'abe., para 25. See on this case Akiva Eldar, ‘State Turns Blind Eye to Illegal Construction at Ultra-Orthodox West Bank Settlement’, Ha'aretz, 14 Dec. 2005, a1. For a discussion of the barrier in Bil'in and the various expansionist and economic interests involved see G. Algazi, ‘Matrix in Bil'in’ (Hebrew), available at http//www.hagada.org.il/hagada/ html/modules.php?name=Newsandfile=articleandsid=4143. In a decision in another pending case, the HCJ issued an interim order prohibiting the construction of the barrier in segments where it was meant to protect ‘unauthorized outposts’. HCJ 5139/05 Falech Mizlach Achmed Shaib v. State of Israel (unpublished, 26 Dec. 2005), available at http//elyon1.court.gov.il/Files/05/390/051/a10/05051390.a10.HTM. If eventually in its ruling in this case the HCJ determines that the illegality, under Israeli law, of this ‘outpost’ determines the illegality of building the barrier which is meant to protect it, this will beg the question as to why the same rationale does not apply to the connections between the question of the legality of the settlements themselves and the legality of the barrier meant to protect them.
138. Head of the Village Council Bil'in v. The Government of Israel, Mara'abe note 147, para 85. For another case where the state indicated that it had taken the settlement's building plans into account when planning the barrier's route see HCJ 2732/05 The Head of the Azun Council v. The Government of Israel, Respondent's Brief (30 June 2005), paras. 17-19, 35.
139. HCJ 2577/04 Taha El Chawaga v. The PrimeMinister of Israel, Corrected Petition filed 2 June 2004 (pending). In an HCJ decision issued on this case on 18 Aug. 2005, the Court added the real estate company in question as a respondent in the petition.
140. For a discussion of the relationship between ‘professional’ and ‘political’ considerations in Beit Sourik and in the Advisory Opinion, see Shany, ‘Head against theWall’, Mara'abe note 5. While Shany's position is similar to mine in that he finds the distinction between ‘political considerations’ and ‘professional “security considerations”’ to be unrealistic, I cannot agreewith his suggestion that instead of judging the barrier in accordance with this division, ‘the question which should have been properly placed before the HCJ and ICJ is, then, whether the barrier can be justified in terms of military necessity’. Military necessity could again be based on politically defined security needs, such as the protection of the settlements.
141. See Y. Yoaz, ‘Justice Minister” West Bank Fence is Future Border’, Ha'aretz, 1 Dec. 2005, 3. In the quotation from Minister Tzipi Livni, she further said that the HCJ in its rulings over the barrier ‘is drawing the country's borders’. See also Kretzmer, ‘The Light Treatment’, For a discussion of the relationship between ‘professional’ and ‘political’ considerations in Beit Sourik and in the Advisory Opinion, see Shany, ‘Head against theWall’, Mara'abe note 5. note 5, at note 32 and accompanying text. For the argument that Ariel Sharon's political programme for Israel's future borders is identical to the barrier's route, and the barrier thus aims to determine Israel's permanent borders by annexing maximum territory, settlements, and settlers and creating a territorial continuum with the Green Line while annexing a minimum of Palestinians and Palestinian villages, see S. Arieli, ‘Between the Completeness of the Land and a Jewish State We Chose the Jewish State’, in F. Raday and Y. Shani (eds.), The Separation Barrier” An Interdisciplinary Analysis (2004), 25 at 28-9 (Hebrew). Shaul Arieli is a reserve colonel in the Israeli army and formerly the chair of the Office in Charge of Negotiations with Palestinians in the Prime Minster's Office.
142. For a discussion of the attitude of national courts towards ICJ decisions, see M. Bedjaoui, ‘The Reception by National Courts of Decisions of International Tribunals’, in T. M. Franck and G. H. Fox (eds.), International Law Decisions in National Courts (1995), 21 at 21-35; S. Ordonez and D. Reilly, ‘The Effect of the Jurisprudence of the International Court of Justice onNational Courts’, in T.M. Franck and G. H. Fox (eds.), International Law Decisions in National Courts (1995), 335, at 335-71. Ordonez and Reilly point out that domestic courts have received ICJ decisions and advisory opinions in various ways, along a spectrum of more or less deferential treatment. Specifically concerning advisory opinions see ‘Justice Minister” West Bank Fence is Future Border’., at 357-9, 364.
143. Mara'abe, For a discussion of the attitude of national courts towards ICJ decisions note 6, para. 56.
144. Mara'abe.,para. 57.For a critical discussion of the ICJ's applicationofhumanrights treaties intheAdvisoryOpinion see M. J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, (2005) 99 AJIL 119. For an extensive discussion of this topic and an evaluation of the ICJ's position see O. Ben-Naftali and Y. Shany, ‘Living in Denial” The Application of Human Rights in the Occupied Territories’, (2003) 37 Israel Law Review 17.
145. The HCJ in Mara'abe said, ‘Despite this common normative foundation, the two courts reached different conclusions. The ICJ held that the building of the wall, and the regime accompanying it, are contrary to international law… In contrast, the SupremeCourt in the Beit Sourik Case held that it is not to be sweepingly said that any route of the fence is a breach of international law’ (Mara'abe., para. 58). This statement somewhat obscures the fact that the ICJ's opinion was limited to the part of the barrier being built in the OPT and did not deal with the entire barrier as such. See Advisory Opinion, Mara'abe note 1, paras. 67, 83.
146. Mara'abe, Mara'abe note 6, para. 58.
147. Mara'abe., para. 59.
148. Mara'abe., para. 60.
149. Mara'abe., para. 61.
150. Mara'abe., para. 62.
151. Mara'abe., para. 63.
152. Whilenoting that it didnotneedtoandcouldnot determine the cause forwhat it called ‘this severe oversight’, theHCJ listed a few possibilities” the dossier of documents submitted to the ICJ, Israel's neglecting to provide information, the ICJ's unwillingness to use the data Israel did submit as well as the information in the public domain, and themethod used by the ICJ, focusing on the barrier in general rather than on specific segments. Mara'abe., para. 65.
153. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city. Whilenoting that it didnotneedtoandcouldnot determine the cause forwhat it called ‘this severe oversight’, theHCJ listed a few possibilities” the dossier of documents submitted to the ICJ, Israel's neglecting to provide information, the ICJ's unwillingness to use the data Israel did submit as well as the information in the public domain, and themethod used by the ICJ, focusing on the barrier in general rather than on specific segments., paras. 66-7.
154. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city., para. 69.
155. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city., para. 68.
156. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city., para. 70.
157. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city., para. 72.
158. The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city., para. 74.
159. Along a similar line, Kretzmer criticizes the sweeping conclusions of the ICJ concerning the barrier in its entirety. Kretzmer, ‘The Light Treatment’, The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city… note 5, at 100-2. Alberto de Puy also seems to find that the HCJ's analysis of each segment of the barrier's route leads to amore persuasive result than that of the ICJ. De Puy, The HCJ points to four issues attesting to such imprecision” (i) the area of agricultural land that was seized-the state argued that itwas significantly smaller than the data relayed to the ICJ; (ii) freedom ofmovement-the state argued that a regime of permits allowed entry and exit from the ‘seam zone’, contrary to the reports before the ICJ describing a split between the residents of this area and the rest of the West Bank; (iii) the water question-the state argued that data before the ICJ according to which Israel is annexing most of the western aquifer system were completely baseless; (iv) information regarding entry into and exit from the city of Qalqilia and the barrier's effect on life in the city… note 5, at 299.
160. See note 152 and accompanying text, Along a similar line, Kretzmer criticizes the sweeping conclusions of the ICJ concerning the barrier in its entirety.
161. Kretzmer, ‘The Light Treatment’, note 152 and accompanying text note 5, at 100-2.
162. Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, note 152 and accompanying text note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ.
163. Shany, ‘Capacities and Inadequacies’, Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, note 152 and accompanying text note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ. note 5, at 233-4.
164. Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, note 152 and accompanying text note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ. note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ., at 242-5.
165. Ben-Naftali argues that the ICJ failed to consider the legality of the barrier in the context of the legality of the occupation. As she notes, however, although the ICJ did not consider the legality of the occupation, it did consider the issue of the barrier as part of the greater whole of the occupation. Ben-Naftali, Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, Thus, as Shany points out (Shany, ‘Capacities and Inadequacies’, note 152 and accompanying text note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ. note 5, at 238 and n. 33), although some parts of the barrier in the West Bank cannot definitely be linked to the location of settlements, this does not detract from the general picture as seen by the ICJ. note 8, at 227-9.
166. Mara'abe, Ben-Naftali argues that the ICJ failed to consider the legality of the barrier in the context of the legality of the occupation. note 6, para. 71. For a similar critique see Kretzmer, ‘The Light Treatment’, Ben-Naftali argues that the ICJ failed to consider the legality of the barrier in the context of the legality of the occupation. note 5, at 92.
167. Mara'abe, Mara'abe note 6, para. 71.
168. Advisory Opinion, Mara'abe note 1, para. 121, cited in Mara'abe, Mara'abe note 6, para 71.
169. See Ben-Naftali, Gross, and Michaeli, Advisory Opinion note 72, at 602.
170. Jean-FrancoisGareau indicates that the ICJ's view was not that a de facto annexation has already crystallized, but that it could be a violation in statu nascendi. In his view, however, the mere possibility of annexation places Israel in breach of its obligation to respect the Palestinians’ right of self-determination, as the acts signalling this possibility are unilateral actions that tend to prejudice or impede the process. Gareau, Advisory Opinion note 27, at 513-16. He argues that the very fluidity of the final result compounds the obligation placed on Israel not to perform unilateral changes in the composition of the territory before an agreement is reached. Advisory Opinion., at 518. Yet if the barrier's construction is deemed essential to protect (illegal) settlements populated by Israeli citizens who are owed protection by the state, the incorporation of those settlements into Israel's self-defence zone signals that the territory is considered part of Israel and that the construction of the barrier represents an annexation. Advisory Opinion., at 521.
171. Advisory Opinion, Jean-FrancoisGareau indicates that the ICJ's view was not that a de facto annexation has already crystallized, but that it could be a violation in statu nascendi. note 1, para. 122.
172. J. Dugard, ‘Question of the Violation ofHuman Rights in the Occupied Arab Territories, Including Palestine’, Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Commission on Human Rights, Sixtieth Session, E/CN.4/2004/6, 8 Sept. 2003, paras. 6-16, available at http//daccessdds.un.org/doc/UNDOC/GEN/ G03/160/82/PDF/G0316082.pdf?OpenElement.
173. See Gareau, ‘Question of the Violation ofHuman Rights in the Occupied Arab Territories, Including Palestine’ note 27, at 521 (on Israel's argument for defence of the settlements as part of its self-defence as implying annexation).
174. See Ben-Naftali, Gross, and Michaeli, ‘Question of the Violation ofHuman Rights in the Occupied Arab Territories, Including Palestine’ note 72, at 586-8.
175. On the ICJ's lack of empathy with Israeli society in general and terror victims in particular, see Shany, ‘Capacities and Inadequacies’, ‘Question of the Violation ofHuman Rights in the Occupied Arab Territories, Including Palestine’ note 5, at 239-40. The ICJ could have relied here on open information or on the limited input on this issue in Israel's submission.
176. Advisory Opinion, On the ICJ's lack of empathy with Israeli society in general and terror victims in particular note 1, para. 141.
177. For an excellent institutional analysis see Shany, ‘Capacities and Inadequacies’, Advisory Opinion note 5.
178. Watson, ‘Capacities and Inadequacies’ note 5, at 24-5.
179. Kretzmer, ‘The Light Treatment’, ‘Capacities and Inadequacies’ note 5, at 88-9. Kretzmer further points to problems in the ICJ's application of the Hague Regulations on the seizure of land and destruction of property (‘Capacities and Inadequacies’., at 95-100), which point to a lacuna in the ICJ's opinion concerning the question of whether it sees the situation in the West Bank as one of occupation, or one of an occupation in which hostilities amounting to armed conflict are taking place, and thus the laws regulating armed conflict also apply. On this issue see notes 41-42 and 106, and accompanying text, ‘Capacities and Inadequacies’.
180. G. Levy notes in ‘Cry, Our Beloved Country’, Ha'aretz, 11 Jan. 2004, that the General Assembly's request for the Advisory Opinion is what prompted Israel to discover the wrongs of the barrier and to start considering changes in it.
181. See, e.g., HCJ 8172/02 Ibrahim v. The IDF Commander in theWest Bank (unpublished, 2002), where the HCJ, in a two-page decision, rejected a petition from Palestinians whowere severely affected by the barrier. The HCJ discussed the military commander's authority to seize land but did not discuss any humanitarian or human rights norms and determined that, although the local residents were injured by the actions taken by the military commander, these were security measures ‘and, as iswell known, this court tends not to intervene in operative security measures’. Other brief decisions issued prior to the General Assembly's referral rejecting arguments against the barrier without elaborate discussion include HCJ 3771/02 The Local Council of A-Ras Village v. The Military Commander of Judea and Samaria (unpublished, 2002); HCJ 3325/02 Rashin Chasan (Kraos) v. The Military Commander of Judea and Samaria (unpublished, 2002).
182. Kretzmer rightly notes that we do not know to what extent the pending ICJ proceedings influenced the HCJ's decision in Beit Sourik. Kretzmer, ‘Introduction’, ‘The Light Treatment’ note 5, at 10. Nevertheless, it seems plausible to assume, given the HCJ's unprecedented intervention in security considerations, that international law or at least its shadow did play a role here. An interesting question is also whether the HCJ's proceedings influenced the ICJ. Kretzmer notes that the Advisory Opinion was not influenced by the Beit Sourik ruling, and that the ICJ judges had already voted on the Opinion when theHCJ delivered its judgment and were not prepared to review their position in its light. ‘The Light Treatment’. On this issue see also Shany, ‘Capacities and Inadequacies’, ‘The Light Treatment’ note 5, at 246.
183. T. M. Franck and G. H. Fox, ‘Introduction” Transnational Judicial Synergy’, in Thomas M. Franck and Gregory H. Fox (eds.), International Law Decisions in National Courts (1996) 1, at 1-11. For an argument on the need for both courts to co-operate within a framework of mutual comity formulated in the context of the separation barrier, see Shany, ‘Capacities and Inadequacies’, Kretzmer rightly notes that we do not know to what extent the pending ICJ proceedings influenced the HCJ's decision in Beit Sourik. note 5, at 245-6.
184. Thus I agree with Kretzmer's description of Beit Sourik as signalling ‘a radical departure’ from the HCJ's tendency not to interfere in operational security considerations. Kretzmer, ‘Introduction’, Kretzmer rightly notes that we do not know to what extent the pending ICJ proceedings influenced the HCJ's decision in Beit Sourik. note 5, at 8.
185. HCJ 5100/94 The Israeli Committee Against Torture v. The State of Israel, 53(4) P.D. 817 (1997).
186. H. Koh, ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181, at 199.
187. ‘Transnational Legal Process’., at 205.
188. H.Koh, ‘Transnational Legal ProcessAfter September 11th’, (2004) 22 Berkeley Journal of International Law337, at 339-49. See also H. Koh, ‘Why Do Nations Obey International Law?’, (1977) 106 Yale Law Journal 2599, at 2602-3, 2645-58.
189. See Shany, ‘Head against theWall’, ‘Transnational Legal Process’. note 5.
190. Compare with Koh's discussion of the Nicaragua case in the ICJ and its impact on US domestic law. Koh, ‘September 11’, ‘Transnational Legal Process’. note 200, at 340.
191. For a comprehensive discussion see Shany, ‘Capacities and Inadequacies’, Compare with Koh's discussion of the Nicaragua case in the ICJ and its impact on US domestic law. note 5.
192. D. Kennedy, The Dark Side of Virtue” Reassessing International Humanitarianism (2004), 235-323.
193. For an understanding of various alleviations in the name of humanitarianism as being part of the structure of the regime of the occupation in general and the barrier in particular, see A. Azoulay and A. Ophir, ‘The Monster's Tail’, inM. Sorkin (ed.), Against theWall (2005), 2 at 23.
194. See Kretzmer, For an understanding of various alleviations in the name of humanitarianism as being part of the structure of the regime of the occupation in general and the barrier in particular note 73, at 145-63. See, e.g., HCJ 2006/97 Ghanimat v. Officer Commanding Central Command, 51(2) P.D. 651 (1997) (the plausibility of the deterrence objective prevents intervention in the considerations of themilitary commander concerning home demolitions).
195. See Kretzmer, For an understanding of various alleviations in the name of humanitarianism as being part of the structure of the regime of the occupation in general and the barrier in particular note 73, 165-86. See especially HCJ 785/87 Afu v. IDF Commander of theWest Bank, 42(1) PD 4 (1990), trans. in (1990) 29 ILM 139.
196. Another interesting example is the use of physical force, which some argue amounts to torture, in the investigations of the General Security Services, prohibited by the HCJ in The Israeli Committee Against Torture v. The State of Israel (For an understanding of various alleviations in the name of humanitarianism as being part of the structure of the regime of the occupation in general and the barrier in particular note 196), but which, according to some reports, continues by other means. See Public Committee Against Torture in Israel, ‘Back to a Routine of Torture’ (April 2003), available at http//www.stoptorture.org.il//eng/images/uploaded/publications/58.pdf; Public Committee Against Torture in Israel, ‘Flawed Defense’ (September 2001), available at http//www.stoptorture.org.il//eng/ images/uploaded/publications/13.pdf.
197. Kretzmer, Another interesting example is the use of physical force, which some argue amounts to torture, in the investigations of the General Security Services, prohibited by the HCJ in The Israeli Committee Against Torture v. note 73, 43-56.
198. R. Shamir, ‘Landmark Cases and the Reproduction of Legitimacy’, (1990) 24(3) Law and Society Review 781.
199. For an understanding of these decisions in the broader context of the role of international law within the Israeli legal system see Barak-Erez, ‘Landmark Cases and the Reproduction of Legitimacy’ note 209; see especially the discussion of cases concerning the OPT, ‘Landmark Cases and the Reproduction of Legitimacy’., at 615-17, 618-23.
200. Ajuri v. IDF Commander of the West Bank, ‘Landmark Cases and the Reproduction of Legitimacy’ note 50 (allowing the ‘assigned residence’ of Palestinians who assisted terrorist activities,while restricting the use of thismechanism through the doctrine of proportionality). See O. Ben-Naftali and K. Michaeli, ‘The Call of Abraham-Between Deportation and Assigned Residence” A Critique of the Ajuri Case’, (2002) 15 Hamishpat 56 (Hebrew). For a reading of this decision as establishing an important role for IHL in the HCJ's jurisprudence see E. Benvenisiti, ‘Case Review” Ajuri et al. v. IDF Commander in theWest Bank et al.’, (2003) 9 European Public Law 481. On this case see also D. Barak-Erez, ‘Assigned Residence in Israel's Administered Territories” The Judicial Review of SecurityMeasures’, (2003) 33 Israel Yearbook on Human Rights 303.
201. HCJ 3239/02 Marab v. The IDF Commander in Judea and Samaria, 57(2) P.D. 349 (2002) (repealing orders enabling detainment of Palestinians for up to 18 days without judicial review).
202. HCJ 4764/04 PHR v. The IDF Commander in Gaza, 58(5) P.D. 385 (2004) (declaring the army's obligation to abide by humanitarian law during an operation in the town of Rafiah).
203. Asignificant decision in another context is the recent judgment concerning the ‘earlywarning’ procedure” in this case the HCJ held that the procedure, according to which Israeli soldiers wishing to arrest a Palestinian suspected of terrorist activity may be aided by a local Palestinian resident, who gives the suspect prior warning of possible injury to the suspect or to those with him during the arrest, is illegal. See HCJ 3799/02 Adalah-The Legal Centre for ArabMinority Rights in Israel v. GOC Central Command (not yet published, 2005), available at http//elyon1.court.gov.il/Files_ENG/02/990/037/a32/02037990.a32.HTM.
204. See, e.g., HCJ 2577/04 Taha El Chawaga v. The Prime Minster, decision issued by the Court on 19 Sept. 2005; HCJ 6336/04 Head of the Local Council Dir-Balut v. The Prime Minister, decision issued by the Court on 19 Sept. 2005.
205. For a discussion of the new route and a map comparing it with the previous one see The Humanitarian Impact of the West Bank Barrier on Palestinian Communities, March 2005, Update No. 5, A Report to the Humanitarian Emergency Policy Group (HEPG), compiled by the United Nations Office for Coordination on Humanitarian Affairs (OCHA) and the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA) in the occupied Palestinian Territory, available at http//www.humanitarianinfo.org/opt/ docs/UN/OCHA/OCHABarRprt05_Full.pdf. See also the official ‘seam zone’ website of the IsraeliMinistry of Defence” http//www.seamzone.mod.gov.il/Pages/ENG/default.htm.
206. See, e.g., thepetition inHCJ1348/05Mayor of Salfit v. State of Israel (pending), describing situations comparable with those discussed in the Beit Sourik case, which were not amended following this judgment and required additional petitions. The petition at HCJ 10905/05 TheMajor of Jayus v. The PrimeMinister, filed 23 Nov. 2005 (after the Mara'abe decision), also outlines problems affecting Palestinians of the type discussed in the two major cases already decided by the HCJ.
207. HCJ 426/05 Bido Village Council v. The Government of Israel (pending).
208. HCJ 5683/04 Beit Sira Village Council v. The Government of Israel (not yet published, 9 Jan. 2006), available at http//elyon1.court.gov.il/Files/04/830/056/a19/04056830.a19.HTM. For another case where the HCJ held that a significant rerouting of the barrier following its principled rulings resulted in a route which strikes a valid balance see HCJ 6336/04 Kamal Yosef Mahmud Moussa v. The Prime Minister (not yet published, 4 Jan. 2006), available at http//elyon1.court.gov.il/Files/04/360/063/a14/04063360.a14.HTM.
209. See Shamir, HCJ 426/05 Bido Village Council v. The Government of Israel (pending). note 212.
210. See note 168 and accompanying text, HCJ 426/05 Bido Village Council v. The Government of Israel (pending).
211. HCJ 4547/03 Chlabi v. The Prime Minister (not yet published, 2005). Some of the facts of this case are not detailed in the HCJ's verdict but in the petition itself. Significantly, the HCJ did not mention in its decision that while the petitioners were outside the house they could not enter, their house was set on fire and destroyed.
212. See Shany, ‘Capacities and Inadequacies’, note 168 and accompanying text note 5.
213. Kretzmer reminds us that ‘however critical one may be of many of the Court's decisions… One must also considerwhatthepositionwouldhavebeeniftheCourthaddeclinedtoassumejurisdictioninsuchpetitions.’ He further speculates that ‘in the short term, the lack of formal external constraints would have resulted in more arbitrariness… Is it possible that in the medium or long term, the very lack of restraint… would have made the occupation less palatable for Israel's elite, and that the pressure to end the occupation… would have been felt much earlier?’ (Kretzmer, note 168 and accompanying text note 73, at 198).
214. For a description of such a regime see J. M. Coetzee, The Life and Times of Michael K (1983).
215. See Machsomwatch, ‘ACounterview” Checkpoints 2004’ (2004), available athttp//www.machsomwatch.org/ docs/Counterview.pdf; B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, ‘Forbidden Roads” The Discriminatory West Bank Road Regime’ (2004), available at http//www.btselem.org/download/200408_Forbidden_Roads_Eng.pdf; B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, ‘No Way Out’ (2001), available at http//www.btselem.org/Download/200106_No_Way_Out_Eng.doc; Physicians for Human Rights, ‘The Bureaucracy of Occupation’ (2004), available at http//www.phr.org.il/phr/files/articlefile_1108316859979. pdf. See also the film Checkpoint (Machsomim), directed by Y. Shamir (Israel, 2004).
216. Mara'abe, Kretzmer reminds us that ‘however critical one may be of many of the Court's decisions. note 6, para. 45.
217. Dugard, Mara'abe note 183, note 1.
218. Thus the barrier and the permits regimes associated with it can be examined from the perspective of Foucault's notion of ‘bio-power’ as a form of powerwhich achieves the subjugation of bodies and the control of populations, and of Agamben's idea of ‘bare-life’. See respectively M. Foucault, The History of Sexuality, Volume 1” An Introduction (1990), at 135-45, and G. Agamben,Homo Sacer” Sovereign Power and Bare Life (1998). For discussionswhich address this perspective, aswell as the spatial implications of the barrier and its place within the logic of ‘separation’ in the Israeli-Palestinian context see Azoulay and Ophir, Mara'abe note 206; M. Sorkin, ‘Introduction” Up Against the Wall’, in M. Sorkin (ed.), Against the Wall (2005), vi; O. Yiftachel and H. Yacobi, ‘Barriers, Walls and Dialectics” The Shaping of “Creeping Apartheid” in Israel/Palestine’, in M. Sorkin (ed.), Against theWall (2005), 138; S. Hanafi, ‘Spacio-cide and Bio-Politics” The Israeli Colonial Project from 1947 to theWall’, inM. Sorkin (ed.), Against theWall (2005), 158; R.Marton and D. Baum, ‘Transparent Wall, Opaque Gates’, in M. Sorkin (ed.), Against theWall (2005), 212; E.Weizman, ‘Hollow Land” The Barrier Archipelago and the Impossible Politics of Separation’, in M. Sorkin (ed.), Against the Wall (2005), 224; N. Ouroussoff, ‘A Line in the Sand” Architects and Israel's Barrier’, New York Times, 1 Jan. 2006.
219. See Thus the barrier and the permits regimes associated with it can be examined from the perspective of Foucault's notion of ‘bio-power’ as a form of powerwhich achieves the subjugation of bodies and the control of populations, and of Agamben's idea of ‘bare-life’. note 22.
220. Dan Rubinstein, ‘The FenceWill Not Block the Next Suicide Bomber’, Ha'aretz, 9 Dec. 2005, b5 (Hebrew).
221. The term ‘fantasy of separation’ is used byWeizman in his analysis of the barrier; seeWeizman, Thus the barrier and the permits regimes associated with it can be examined from the perspective of Foucault's notion of ‘bio-power’ as a form of powerwhich achieves the subjugation of bodies and the control of populations, and of Agamben's idea of ‘bare-life’. note 22. note 232, at 225.
222. See http//www.onestuggle.com.
223. L. Galili, ‘Fringe Benefits’, Ha'aretz, 2 Jan. 2004 (Hebrew); R. Kupperboim, ‘Hero Anti’, Ha'ir, 1 Jan. 2004 (Hebrew).
224. See Administrative Petition (Tel-Aviv) 1252/05 Aaref Mucharab v. The National Council for Planning and Building-Central District (pending), which deals with the plan to erect a wall 1,600 metres long and 4 metres high between the Arab neighbourhood of Pardes Snir in Lod and the nearby Jewish village of Nir Zvi. On this case see A. Dayan, ‘Wall-Eyed’, Ha'aretz, 22 July 2003. On walls now being built between Jews and Arabs in Israel see the Arab Association for Human Rights, ‘Behind the Walls” Separation Walls Between Arabs and Jews in Mixed Cities and Neighborhoods in Israel’ (2005), available at http//www.arabhra.org/publications/reports/Word/SeperationWallsReport_English.doc; L. Galili, ‘Long Division’, Ha'aretz 19 Dec. 2003, which discusses three such walls in detail. Formore information on the issue see http//www.bimkom.org/publicationView.asp?publicationId=51 (Hebrew). For a discussion of the barrier as part of regimes which are structured around economic and ethnic separations see Algazi, http//www.onestuggle.com. note 150; see also Ronen Shamir, ‘Without Borders? Notes on Globalization as a Mobility Regime’, (2005) 23 Sociological Theory 197, at 204-5.
225. For a suggestion to look at Israel's land policies in the West Bank as a continuation of its domestic land policies see Ben-Naftali, Gross, and Michaeli, http//www.onestuggle.com. note 72, at 611, n. 329. On the logic of separation in the Israeli-Palestinian context, see A. Gross, ‘The Constitution, Reconciliation and Transitional Justice” Lessons from South Africa and Israel’, (2004) 40 Stanford Journal of International Law, 47, at 100-2.
226. HCJ 9961/03Hamoked-The Center for the Defense of the Individual v. TheGovernment of Israel, Respondent's Brief (1 Jan. 2004), para. 33.
227. R. Frost, ‘MendingWall’, in The Poetry of Robert Frost, ed. E. C. Lathem (1979), at 33.
228. For a detailed report on the violations of human rights deriving from the barrier see B'Tselem-The Israeli Information Centre for Human Rights in the Occupied Territories, ‘Behind The Barrier” Human Rights Violations as a Result of Israel's Separation Barrier’ (April 2003), available at http//www.btselem.org/Download/ 200304_Behind_The_Barrier_Eng.pdf; B'Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, ‘Not All It Seems” Preventing Palestinians Access to their Lands West of the Separation Barrier in the Tulkarm-Qalqiliya Area’ (June 2004), available at http//www.btselem.org/ Download/200406_Qalqiliya_Tulkarm_Barrier_Eng.pdf. See also the information from the UN Office for the Coordination of Humanitarian Affairs (OCHA-OPT) at http//www.humanitarianinfo.org/opt/.