Coming Apart at the Seamline-the Oslo Accords and Israel's Security Barrier: a Missed Opportunity
| Citation | Vol. 10 No. 3 |
| Publication year | 2007 |
Cite as: Seth Benjamin Orkand, Comment,
In 2004, the International Court of Justice and the Israeli Supreme Court both ruled on the legality of the barrier that Israel is constructing along the 'seamline' between Israel and the West Bank. While they differed in their outcomes, both opinions were based on international humanitarian and human rights law, and neither court found it necessary to discuss the obligations that the Israelis and Palestinians had made in signing the Oslo Accords. This paper examines several possible explanations for this omission, ultimately concluding that the Oslo Accords were binding on the parties as subjects of international law, and they continued to remain in force at the time of the court decisions. If the courts had considered the parties' express agreements, they would have found them extremely relevant to the legality of the barrier. First, the context provided by the Oslo Accords should have given the I.C.J. pause before exercising its discretionary jurisdiction, since the parties agreed that the permanent status issues of borders and Jerusalem would be resolved only through negotiation. Second, both courts may have been more sympathetic to Israel's claim of military necessity if they had considered Oslo's mandate that Israel have exclusive authority to protect its citizens, and the Palestinians' unfulfilled obligation to prevent terrorist attacks. Third, the Oslo Accords would have strengthened the Palestinian's case, since those sections of the barrier that seek to change the demographic composition of the West Bank are likely violative of the Accords' prohibition against changing the status of the territory pending permanent status negotiations. This paper concludes that both courts missed an opportunity to hold the parties to their commitments and enforce them under international law, choosing instead to base their opinions on sources of law far more removed from the current conflict.
I. Introduction............................................................................ 393
II. Writing on the Wall: The Facts About Israel's Security Barrier 395
A. Linguistic Skirmishes: The Use of Words as Weapons........... 395
B. The Security Barrier in Context............................................ 397
C. The Effect of the Security Barrier........................................ 400
III. Legal Challenges to the Barrier............................................ 401
A. International Reaction......................................................... 401
B. Israeli Judicial Interpretation of the Barrier............................ 405
IV. The Peace Process and Bilateral Agreements......................... 407
A. Oslo I: The Declaration of Principles.................................... 408
B. The Gaza-Jericho Agreement............................................... 410
C. Oslo II: The Interim-Agreement........................................... 411
D. The Assassination of Rabin and the Hebron Protocol............. 413
E. The Wye River and Sharm El-Sheik Memoranda.................... 413
G. The Camp David Negotiations............................................. 415
H. The Quartet Roadmap........................................................ 416
V. Why the Oslo Accords Were Not Considered by the I.C.J. or the Israeli Supreme Court 418
A. Were the Oslo Accords Ever Legally Binding?....................... 419
1. The Oslo Accords Do Not Satisfy the Vienna Convention's Traditional Definition of a 'Treaty' 420
2. The Oslo Accords as Binding Treaties Between 'Subjects of International Law' 423
B. The Oslo Accords Were Still in Force in 2004....................... 427
VI. The Oslo Accords Applied to the Separation Barrier............. 430
A. Jurisdiction of the International Court of Justice.................... 431
B. Oslo's Prohibition Against Actions that Would Prejudice Permanent Status Negotiations 433
C. Reciprocity and Israel's Security Obligations........................ 436
VII. Conclusion............................................................................. 437
A grim "monument to evil," the charred and twisted carcass of the Number 19 bus sat outside the International Court of Justice (I.C.J) in The Hague as a reminder of how Israel had suffered from terror and why it felt its security barrier along the 'seamline' with the West Bank was necessary. [1] The bus had been destroyed and eleven passengers were killed when a Palestinian suicide bomber detonated explosives on board while traveling in Jerusalem during rush hour three weeks earlier.[2] Flown from Israel to the Netherlands by Zaka, a search and rescue organization that collects the remains of attack victims for Jewish burial, the bus provided a symbolic backdrop as the I.C.J. considered the legality of the security barrier.[3] In another symbolic plea for international support, 927 Jewish students from Israel and abroad, one for each of the victims killed in terrorist attacks since September 2000, marched holding placards detailing a victim's life story.[4] Other supporters erected a papier-mache wall decorated with sunflowers arranged to spell the word "Defence," some wearing shirts splattered with red paint reading "The Fence Saves Lives."[5]
Opponents of the security barrier's legality also used symbolism to garner international sympathy for the plight of the Palestinian people.[6] The Palestinians sent fruit farmers and olive growers who had been separated from their land.[7] They marched near the courthouse and chanted "[t]his wall must fall."[8] Some opponents of the barrier carried gruesome photographs of Palestinian women and children who had died at the hands of Israeli soldiers, and those that spoke with reporters told personal stories of dispossession of the land that their families had farmed for generations.[9] Meanwhile, Palestinians in the West Bank and Gaza Strip marked a "day of rage," observing a moment of silence, staging demonstrations and a general strike, and rallying against Israeli troops.[10]
At the same time that the protests raged in the usually quiet streets of The Hague, the Israeli Supreme Court was also considering arguments on the legality of the barrier.[11] Ruling within two weeks of each other, the decisions of these two courts differed greatly in their outcomes, though they were both predominantly based on the same sources of international law.[12] The Israeli Supreme Court ruled that Israel had the right to build the barrier on occupied territory, but that certain sections posed disproportionate hardships on Palestinians and had to be rerouted.[13] The I.C.J., on the other hand, ruled that the entire barrier violated international law and urged that it be dismantled.[14] Though both decisions determined that Israel holds the West Bank in "belligerent occupation"-and was thus subject to international humanitarian law-neither court considered whether the binding agreements signed between the parties, namely the Oslo Accords, either allowed or prohibited the security barrier's construction.[15]
This essay examines the applicability of the Oslo Accords and subsequent agreements to the legality of the barrier along the seamline between Israel and the West Bank. Part I discusses the history of the barrier, its physical properties, and its effect on Palestinian and Israeli society. Part II explores the Palestinian-Israeli peace process and the main themes established by the Oslo Accords. Part III discusses the legal and political challenges to the barrier as addressed to the United Nations, International Court of Justice, and the Israeli Supreme Court. Part IV addresses possible rationales for why neither the International Court of Justice nor the Israeli Supreme Court considered the Oslo Accords in their decisions regarding the security barrier. Finally, having concluded that the Oslo Accords were legally binding and in effect at the time of these decisions, Part V applies the Accords to the security barrier and discusses how such consideration may have affected the courts' analyses.
How commentators refer to the security barrier often reflects their attitudes regarding its legitimacy and its effect on Israelis and West Bank Palestinians.[16] Some Palestinians call it an "Apartheid Wall [that] isolates Palestinian communities, keeping people locked in Ghettos and Bantustans."[17] The Palestinian National Authority officially refers to the barrier as the "Expansion and Annexation Wall."[18] Of course, linking the barrier to ghettos verbally connects it to the emotionally sensitive history of persecution of European Jews during the Holocaust.[19] Even calling the barrier a "wall" has symbolic significance, subtly likening it to the Berlin...
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