THE ICJ ADVISORY OPINION AND THE SEPARATION BARRIER: A TROUBLESOME ROUTE

Israel Yearbook on Human Rights

Volumn 35, Issue , 2005, Pages 283-313

  Lubell, Noam ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 85080785989     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789047415442_012     Document Type: Chapter

References (158)

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Adv. Op., 9 July 2004, [2004] I.C.J. Rep. (hereinafter: Legal Consequences Adv. Op.). Separate Opinion of Judge Higgins, paras. 20-25; Declaration of Judge Buergenthal, paras. 3, 7; Separate Opinion of Judge Kooijmans, para. 29; Separate Opinion of Judge Owada, paras. 22-25, 30.
2. Although the Court used the term “Wall”, this was dictated by the question as phrased by the General Assembly. Faced with a choice, the term “Barrier” would seem to raise less of an objection than “Wall” or “Fence”, neither of which accurately reflect the physical nature of the construction throughout its route. The term “wall” will still be used when quoting the Court.
3. See, for example, Legal Consequences Adv. Op., supra note 1, paras. 39, 79, 81, 137.
4. Ibid., para. 39. Italics added.
5. Ibid., para. 67.
6. Ibid., para. 151. Italics added.
7. Another interesting reason would be if the barrier were to be routed around a village to avoid cutting through a residential area, in the way the Green Line can do in some places.
8. Legal Consequences Adv. Op., supra note 1, para. 121.
9. Judge Buergenthal distinguishes between the wall as a whole, and various segments of it. Declaration of Judge Buergenthal, supra note 1, paras. 3-4.
10. Legal Consequences Adv. Op., supra note 1, para. 81.
11. Ibid., paras. 80-84.
12. http://news.bbc.co.uk/1/hi/world/middle_east/3632678.stm.
13. A. Pinchuk, “The Separation Barrier – An Interdisciplinary Analysis”, Symposium of the Concord Research Center for the Interplay between Israeli Law and International Law 65-67 (The College of Management, Israel, 2004)
14. Legal Consequences Adv. Op., supra note 1, para. 79.
15. H.C. (High Court of Justice) 2056/04, Beit Sourik Village Council v. The Government of Israel (June 30, 2004); hereinafter: Beit Sourik Case. In fact, changes to the route were made earlier, even during the proceedings, see para. 31.
16. See later section “The Facts at Hand”.
17. http://securityfence.mfa.gov.il/mfm/web/main/document.asp?SubjectID=45876&Mission ID=45187&LanguageID=0&StatusID=0&DocumentID=-1;
18. http://www.btselem.org/.
19. See in particular the remarks in the Declaration of Judge Buergenthal, supra note 1, paras. 3-5. The Written Statement by the UK also notes that “…different stretches of the wall would require separate analysis …”. Written Statement of the United Kingdom of Great Britain and Northern Ireland, Jan. 2004, para. 3.37.
20. http://securityfence.mfa.gov.il/.
21. Legal Consequences Adv. Op., supra note 1, para. 115.
22. Ibid., para. 117.
23. Ibid., paras. 119-20.
24. Ibid., para. 81.
25. “Determining the route: legitimate v. extraneous considerations” in Behind the Barrier (B’Tselem, Jerusalem, 2003);
26. S. Arieli, Concord Symposium, supra note 12,
27. Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian Territories Occupied by Israel since 1967, UN Doc. E/CN.4/2004/6, 8 Sept. 2003, paras. 6-16.
28. R. Bindschedler, “Annexation”, 3 Encyclopaedia of Public International Law 19-23, at 19 (R. Benhardt ed., 1982).
29. As recognised by the Court, supra note 18 and accompanying text.
30. G. Von Glahn, Law Among Nations: An Introduction to Public International Law 324-25 (1986).
31. Legal Consequences Adv. Op., supra note 1, paras. 88, 118, 122.
32. Separate Opinion of Judge Higgins, supra note 1, para. 30.
33. Legal Consequences Adv. Op., supra note 1, para. 139.
34. M. Schmitt, “Counter-Terrorism and the Use of Force in International Law”, 32 Israel Y.B. Hum. Rts. 53, 76-78 (2002).
35. Press Release 124 (2001), 12 Sept. 2001, available on: http://www.nato.int/docu/pr/2001/p01-124e.htm.
36. http://www.oas.org/OASpage/crisis/follow_e.htm.
37. C. Greenwood, “International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq”, 4 San Diego Int'l L.J. 7, 17 (2003);
38. T. Franck, “Editorial Comments: Terrorism and the Right of Self-Defense”, 95 Am. J. Int’l L. 839, 840 (2001);
39. Y. Dinstein, War, Aggression and Self-Defence 214 (3rd ed., 2001)
40. J. Paust, “Use of Armed Force against Terrorists in Afghanistan, Iraq, and Beyond”, 35 Cornell Int'l L.J. 533, 533-34 (2002);
41. J.B. Moore, 2 Digest of International Law 409, 412 (1906).
42. Case Concerning Military and Paramilitary Activities in and Against Nicaragua, [1986] I.C.J.Rep. 14; hereinafter: Nicaragua Case.
43. R. Higgins, Problems and Process: International Law and How We Use It 250-51 (1994).
44. Nicaragua Case, supra note 36, paras. 131,195, 229, 230.
45. The fighting in Jenin in Apr. 2002 caused an estimated at least 52 Palestinian and 23 Israeli deaths. See Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/10 UN Doc.A/ES-10/186 July 30 2002, paras. 43-61.
46. http://www.ihlresearch.org/opt/feature.php?a=31#f58.
47. Declaration by Judge Buergenthal, supra note 1, para. 6. Judge Higgins hinted at an unevenhanded approach, saying that Palestine cannot be recognised as an international entity for these proceedings but not sufficiently so when regarding the origin of armed attacks; Separate Opinion of Judge Higgins, supra note 1, para. 34.
48. See the above discussion on annexation.
49. Legal Consequences Adv. Op., supra note 1, para. 139.
50. Supra note 32.
51. There is a separate issue, beyond the current scope, of a State’s right to invoke self-defence in response to a situation occurring within its sovereign territory.
52. Joint Statement of the Quartet, 26 Statement 2003. Appears in Annex 15 to the Written Statement of the Government of Israel on Jurisdiction and Propriety, 30 Jan. 2004.
53. Israel Y.B. Hum. Rts. 373 (2002)).
54. Dinstein, supra note 34, at 183-85. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), [1996] I.C.J. Rep., para. 245.
55. This will be dealt with below.
56. One of the issues to be addressed would have to be Judge Higgins’ comment that the construction of a wall is a non-forcible measure that does not fall within self-defence under Art. 51 of the Charter; see the Separate Opinion of Judge Higgins, supra note 1, para. 35. This is a separate issue from the question of whether there has been an armed attack in the first place. The right to self-defence is invoked in order to justify taking a forcible response that would otherwise have been unlawful. A non-forcible measure would not necessarily need recourse to claims of self-defence. Extensive analysis of this issue is not possible in the scope of this article.
57. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949, 75 U.N.T.S. 287: hereinafter: Geneva-IV.
58. A. Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories 1967-1988”, 84 Am. J. Int’l L. 44, at 61-70;
59. E. Benvenisti, The International Law of Occupation (1993);
60. Y. Dinstein, “The International Law of Belligerent Occupation and Human Rights”, 8 Israel Y.B. Hum. Rts. 105 (1978).
61. B’Tselem, The Settlements in the Territories as a Human Rights Violation: Legal and Principled Aspects (Mar. 1997).
62. In H.C. 4764/04, Physicians for Human Rights et al. v. Commander of the IDF Forces in the Gaza Strip (30 May 2004, excerpted in this Volume of the Israel Y.B. Hum. Rts.), para. 19, the Court noted that “The military operations of the IDF in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 […] and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 ...”. While the Court in most cases still points out the official government position (see Beit Sourik Case, supra note 14, para. 23), it nevertheless appears to have very little reluctance in relying upon Geneva-IV for its judgements. See also the statements by the Israeli Attorney General, regarding the need to rethink the applicability of Geneva-IV, Haaretz (Israeli Newspaper, Hebrew), 24 Aug. 2004.
63. The Laws of Armed Conflicts 63 (D. Schindler & J. Toman eds., 3rd ed., 1988).
64. This has been stated in judgments of the Israeli Supreme Court, starting from H.C. 606/78 and 610/78, Ayub et al. v. Minister of Defense et al. (Beth El Case, excerpted in 9 Israel Y.B. Hum. Rts. 337 (1979)).
65. See for example Beit Surik Case, supra note 14, para. 32; H.C. 769/02, The Public Committee Against Torture et al. v. The Government of Israel et al.; Supplemental Statement by the State Attorney’s Office, paras. 175-77 (speaking of para. (b) of the same Article); Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, UN Doc. E/CN.4/2004/6/Add.1, 27 Feb. 2004, para. 29.
66. It was authority and control that were handed over, and not as was oft mistakenly reported “sovereignty”. The latter always belonged to the Iraqi people, even when they had no control.
67. http://www.whitehouse.gov/news/releases/2003/05/iraq/20030501-15.html.
68. Res. 1483 (2003), adopted by the Security Council at its 4761st meeting, on 22 May 2003.
69. At least until the Interim Government was in place. Although beyond the current scope, it is worth noting that an argument could also be made to say that occupation did not end with the appointment of an Interim Government, and continues until an elected government assumes control.
70. http://news.bbc.co.uk/1/hi/world/middle_east/3840443.stm.
71. Operations regulated by rules on conduct of hostilities, but occurring during occupation, do nevertheless give rise to certain difficulties, as mentioned infra note 71.
72. Protocol II to the Geneva Conventions (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1977, 1125 U.N.T.S. 609) does speak of a situation in which the State may have lost control of the territory to the dissidents, but Common Art. 3 to the four Geneva Conventions does not contain this threshold for determining the existence of a non-international armed conflict.
73. Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, J. Pictet ed., 1958).
74. A.P.V. Rogers, Law on the Battlefield 179-80 (2004).
75. M. Finkelstein, “Legal Perspective in the Fight Against Terror – The Israeli Experience”, 1 IDF L. Rev. 341, at 343-44 (2003).
76. Civil Rights in Israel, Legal Consequences of Israel’s Construction of a Separation Barrier in the Occupied Territories (University of Oxford, Feb. 2004),
77. For a summary of a number of different positions, see D. Kretzmer, “The Advisory Opinion: The Light Treatment of International Humanitarian Law”, Am. J. Int’l L. (forthcoming 2005, draft on file with author). The position that this might be defined as a non-international armed conflict would be hard to support – the occupation was brought about by an international armed conflict and led to the continuing applicability of Geneva-IV, designed for international armed conflict. Without an act of annexation, and considering that the Occupied Territories are not regarded as Israeli territory, it is hard to see how this could be classified as an internal situation.
78. The possibility of short-term armed conflict was recognised in the Abella case, in which the Inter-American Commission on Human Rights found that the clashes between government forces and individuals who had attacked the La Tablada military base constituted a non-international armed conflict, despite the fact that the events occurred over a period of roughly 30 hours. This was due to the nature and level of violence, involvement of armed forces, and military style operations against a military object. See Juan Carlos Abella v. Argentina, Case 11.137, Report Nº55/97, Inter-Am. Ct. H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (1997).
79. Unless perhaps there had been the contention that we are dealing with a non-international armed conflict to which Art. 23 would not apply. However, see comments supra note 68.
80. Certain situations involving hostilities in times of occupation can contain potential difficulties in application of relevant rules – e.g., in a situation when there is heavy fighting and nearby there are crowds gathering, the same forces might be expected to proceed under the rules of conduct of hostilities with regard to fighting insurgents and law enforcements procedures of crowd dispersal with regard to the demonstrators. This could create practical difficulties and confusion with regard to rules of engagement, amongst other problems. Difficulties could also be encountered when occupying forces are confronted with a violent demonstration – the threshold of violence for crossing over from law enforcement procedures to applying rules of conduct of hostilities is unclear.
81. G. Von Glahn The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 227 (1957).
82. Supra note 12 and accompanying text.
83. More on this in later sections.
84. This section will focus on issues of private land, including buildings and crops. There can be a variety of types and reasons for interference, including use of land for the actual construction of the barrier, and open spaces created around the barrier for security reasons.
85. Legal Consequences Adv. Op., supra note 1, para. 135.
86. Ibid., paras. 79-85, 133. Certain details of the processes appear in information submitted to the Court. See the Written Statement by Jordan, supra note 47, paras. 5.240-5.244.
87. Written Statement Submitted by Palestine, 30 Jan. 2004, paras. 268-70.
88. G. Schwarzenberger, 2 International Law as Applied by International Courts and Tribunals: The Law of Armed Conflict 266-67 (1968).
89. E. Feilchenfeld, The International Economic Law of Belligerent Occupation 51 (1942).
90. For a detailed analysis of the differences between confiscation, requisitions, contributions, seizures, fines, taxes, and expropriation, see Feilchenfeld, ibid., at 30-51. See also Kretzmer, supra note 68. For a review of the important aspect of payments and compensation, see also Schwarzenberger, supra note 79, at 271-88.
91. This was expressed by Justice Landau of the Israeli Supreme Court in the Beth El Case, (supra note 55), though he went on to then accept that land was included, based on existing interpretations by prominent commentators.
92. C. Stockton, quoting T.E. Holland, Outlines of International Law 369 (1914).
93. J.B. Scott, I The Hague Peace Conferences of 1899 and 1907 539 (1909).
94. Von Glahn, supra note 72, at 165, 167, 186; Schwarzenberger, supra note 79, at 246, 269, 288. Unlike the case of movables, this can only be deprivation of possession and not of ownership. See also Feilchenfeld, supra note 79, at 37-38.
95. Von Glahn, supra note 72, at 167.
96. D. Kretzmer The Occupation of Justice 82-83 (2002).
97. All mentioned in Art. 52 of the Hague Regulations, supra note 54. Requisitions must also be in proportion to resources of the country; not involving inhabitants in military operations against their own country; on the authority of the commander in the locality; payment in cash or receipt.
98. Art. 52 of the Hague Regulations, ibid.
99. Schwarzenberger states that “this formulation was intentionally chosen as being narrower than necessities of war or military necessities”; supra note 79, at 245.
100. Art. 23(g) of the Hague Regulations, supra note 54.
101. Art. 53 of Geneva-IV, supra note 51.
102. Art. 52(2) of Protocol I to the Geneva Conventions (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977, 1125 U.N.T.S. 3).
103. Ibid., Art. 54(5).
104. Ibid., Art. 57(2)(a).
105. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 19-20 (2004).
106. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Y. Sandoz et al. eds., ICRC, 1987), paras. 2024, 2209.
107. D.A. Graber, The Development of the Law of Belligerent Occupation 1863-1914: A Historical Survey 246-47 (1949).
108. Von Glahn, supra note 72, at 186. Von Glahn also speaks of requisitions as levies in terms of commodities; supra,note 27, at 702.
109. Schwarzenberger, supra note 79, at 270; Von Glahn, supra note 27, at 702; Feilchenfeld, supra note 79, at 36.
110. Italics at source. Schwarzenberger, supra note 79, at 271.
111. See the description of the effects on the land, as appears in the Written Statement by Jordan, supra note 47, para. 5.245.
112. Schwarzenberger, supra note 79, at 270.
113. Feilchenfeld, supra note 79, at 34.
114. A separate issue is the protection of settlements. Whether the protection of settlements can justify harm to Palestinian rights will be dealt with below.
115. Beth El Case, supra note 55; Kretzmer, supra note 86, at 82-83.
116. H.C. 390/79, Dweikat v. Government of Israel (Elon Moreh Case, excerpted in 9 Israel Y.B. Hum. Rts. 345 (1979)); Kretzmer supra note 86, at 85-89. Kretzmer also analyses the political concerns and other circumstances that may have influenced the outcome of this case).
117. Judge Higgins expressed dissatisfaction at the lack of detailed analysis concerning IHL provisions. Separate Opinion of Judge Higgins, supra note 1, para. 23.
118. For a detailed critique focusing on the ICJ’s approach to the settlements, including issues not raised in the scope of the current article, see Kretzmer, supra note 68.
119. Legal Consequences Adv. Op., supra note 1, para. 120; this view is reflected also in most the sources cited supra note 52.
120. Oxford Lawyers Opinion, supra note 67, para. 105.
121. The terminology of “illegal settlers” contributes to the confusion that leads some to the unfounded and dangerous claims that the settlers are legitimate targets for violent attacks.
122. Any detailed analysis of the legality of settlements would have to note possible differences between the State erecting settlements and placing civilians therein, encouraging private movement, or refraining from stopping private initiatives of individuals.
123. For example, under Art. 6 of the 1966 International Covenant on Civil and Political Rights (ICCPR), (999 U.N.T.S. 171) calling for protection of the right to life. One could claim that they chose to live in illegal settlements and in a place where their government is restricted in providing protection, though it might be argued that the element of choice is not always as clear-cut when it comes to certain groups of new immigrants or individuals from the lower socio-economic echelons of society, that are given the chance for affordable housing that would be hard to come by elsewhere.
124. The Israeli Supreme Court takes the position that the settlement status will be decided through political negotiations (thus conveniently avoiding having to rule on their legality), while in the meantime Israel has the duty to protect all those living in the area, settlers included. See H.C. 4219/02, Gusin v. Commander of the IDF Forces in the Gaza Strip, para. 6 (excerpted in 32 Israel Y.B. Hum. Rts. 379 (1979)).
125. If such a decision should ever come about, it is likely that there would be a lengthy period of time between the decision and the implementation, as can be seen in the parliamentary approval in Oct. 2004 of the Gaza disengagement plan which would include settlement evacuation in the summer of 2005. Knesset votes to back Gaza plan, BBC News website, Wednesday, 27 Oct. 2004.
126. For more along this line of thinking, see the Report of the International Commission of Jurists, Israel’s Separation Barrier: Challenges to the Rule of Law and Human Rights 31-32 (Geneva, July 2004), (the current author contributed drafting comments to the Report).
127. Supra note 16.
128. Nuclear Weapons Advisory Opinion, supra note 48. Legal Consequences Adv. Op., supra note 1, paras. 105-106.
129. The ICCPR (supra note 113) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 U.N.T.S. 3; Legal Consequences Adv. Op., supra note 1, paras. 107-112.
130. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel; 31/08/2001. E/C.12/1/Add.69 Concluding Observations of the Human Rights Committee: Israel; 18/08/98. CCPR/C/79/Add.93. See also the ruling of the European Court of Human Rights relating to the applicability of human rights in all territories subject to the effective control of the State: Loizidou v. Turkey (Preliminary Objections) (40/1993/ 435/514), paras. 62-64.
131. Legacy of Injustice (Physicians for Human Rights, Israel, Nov. 2002).
132. Legal Consequences Adv. Op., supra note 1, paras. 128, 130.
133. Ibid., para. 131.
134. UN Human Rights Committee General Comment 16, UN Doc. HRI\GEN\1\Rev.1 at 21, paras. 3-4 (1994).
135. Legal Consequences Adv. Op., supra note 1, para. 134.
136. Ibid., para. 136, citing the Human Rights Committee.
137. S. Greer, “The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights”, Council of Europe Human Rights Files No.17 (2000).
138. J. Delbruck, “Proportionality”, 3 Encyclopaedia of Public International Law 1140, at 1142 (R. Bernhardt ed., 1997).
139. Legal Consequences Adv. Op., supra note 1, paras. 133, 134.
140. Ibid., para. 134.
141. Ibid., para. 136, quoting ICESCR, Art. 4.
142. The right to the highest attainable standard of health (Twenty-second session, 2000),
143. Beit Surik Case, supra note 14.
144. Legal Consequences Adv. Op., supra note 1, paras. 135, 136, 137.
145. Supra note 10-15, and accompanying text.
146. Supra note 12.
147. Supra note 14.
148. http://news.bbc.co.uk/1/hi/programmes/hardtalk/3466987.stm.
149. Legal Consequences Adv. Op., supra note 1, paras. 135, 136, 137.
150. Israeli Ministry of Foreign Affairs Overview Document, available on: http://securityfence.mfa.gov.il/mfm/web/main/document.asp?SubjectID=46046&Mission ID=45187&LanguageID=0&StatusID=0&DocumentID=-1.
151. Declaration of Judge Buergenthal, supra note 1, para. 10.
152. Separate Opinion of Judge Higgins, supra note 1, para. 40.
153. Ibid., paras. 15-18, 40; Separate Opinion of Judge Kooijmans, supra note 1, paras. 4, 13; Declaration of Judge Buergenthal, supra note 1, para. 7; Separate Opinion of Judge Owada, supra note 1, paras. 22-25, 30.
154. Beit Surik Case, supra note 14, para. 16.
155. B’Tselem, supra note 23.
156. Beit Surik Case, supra note 14. It remains to be seen, however, if the Israeli Court will reach a similar conclusion with regard to other sections of the barrier. For detailed analysis and critique of the Court’s handling of cases concerning the Occupied Territories, see Kretzmer, supra note 86.
157. Separate Opinion of Judge Kooijmans, supra note 1, para. 34.
158. See also comment in Separate Opinion of Judge Higgins, supra note 1, para. 23.