This Article offers a critique of the decision reached by Israel's High Court of Justice in the Mara'abe Case (2005) as well as some aspects of the International Court of Justice's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004). The Article takes a socio-legal and facts-based approach to analyzing the decisions' discussions of settlements, self-determination, and self-defense, examining all three topics in light of several recent legal and political developments.
TABLE OF CONTENTS I. INTRODUCTION II. THE HCJ AND THE WALL III. THE WALL AND ISRAELI CIVILIAN SETTLEMENT ACTIVITY A. The Settlements and Article 43 of the Hague Regulations B. The Settlers, the Settlements, and Human-Rights Law C. The Settlements as De Facto Annexation IV. THE WALL AND SELF-DETERMINATION V. THE WALL AND SELF-DEFENSE A. Self-Defense, Self-Determination, and State Attacks B. Self-Defense and Occupied Territory C. Self-Defense and International Terrorism D. Circumstances Precluding Wrongfulness VI. THE LEGAL SIGNIFICANCE OF THE ADVISORY OPINION VII. CONCLUDING REMARKS VIII. APPENDIX "Is the separation fence legal? That is the question before us."
--Judge Barak, Mara'abe v. The Prime Minister of Israel, introductory paragraph.
On September 15, 2005, the Israel Supreme Court, sitting as the High Court of Justice (HCJ), rendered its decision in Mara'abe v. The Prime Minister of Israel, (1) in which it questioned a number of points of law arising from the Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (2) The case in Israel arose as a result of a number of petitions filed against the Prime Minister of Israel, the Minister of Defence, the Commander of the Israeli army, the "separation fence" authority, and the Alfe Menashe local council. (3) The petitioners, Palestinian residents of a number of villages affected by the route of the wall, argued that in light of the ICJ's Advisory Opinion, Israel's actions in continuing its construction were unlawful. (4) On July 9, 2004, the ICJ concluded that the wall and its associated regime of settlements, checkpoints, and closed military zones are contrary to international law. (5) The HCJ therefore had to rule on the legality of the wall that its government has been building in Occupied Palestinian Territory (OPT) of the West Bank since June 2002, while taking into account the advice of the principal judicial organ of the United Nations (U.N.). (6)
The terminology used by the ICJ and the HCJ to describe Israel's vast concrete-and-wire barrier differed. The HCJ referred to it as the "separation fence," and the ICJ simply called it the "wall," as this was the language the General Assembly used in its request for an Advisory Opinion. (7) In deference to the ICJ and the world organization, the terminology they employed will be used throughout the remainder of this Article. (8) This Article employs a socio-legal and facts-based approach in analyzing the decisions reached by the HCJ and the ICJ on the legality of the wall, since it is usually the facts of the Israeli-Palestinian conflict rather than the substance of the law that prove to be a point of contention. After all, it was on the basis of "the facts" that Israel's HCJ would ultimately reject the ICJ's Advisory Opinion. (9) In the following pages, the ICJ's opinion and the decisions of the HCJ will be compared and contrasted, concentrating on three areas of controversy: (a) Israeli civilian settlement activity, (b) self-determination, and (c) self-defense. These inter-related topics have been chosen for further analysis because they are at the core of the Israel-Palestine conflict. The right of self-defense cannot be debated without an understanding of why there is a conflict in the first place, and an understanding of why there is a conflict between Israelis and Palestinians cannot be comprehended without taking into account the question of self-determination. Correspondingly, it will be necessary to refer to the Israeli civilian settlements constructed in and around East Jerusalem and scattered throughout the West Bank because they are of direct relevance to any discussion of self-determination. Special attention has been devoted to the issue of self-defense, as the ICJ's opinion on this issue has proved to be particularly contentious. To date, the Israeli government has said that it will not abide by the ICJ's Advisory Opinion, but will only adhere to the decisions reached by its HCJ. (10) It is therefore essential to clarify some of the substantive issues that arose in these cases, especially as Israel is still building the wall. Therefore, the final section of this Article will be devoted to the debate over the legal effect of Advisory Opinions generally, and particularly the effect of the Advisory Opinion on the wall as a guide for the U.N. in its quest for peace in the Middle East.
Although the Israeli Government's written statement to the ICJ was replete with references to Palestinian terrorism, (11) it is noteworthy that the statement did not justify the building of the West Bank wall as necessary to stop Palestinian terrorist attacks against its nationals in Israel and in West Bank settlements. (12) This is because Israel did not raise the merits of the case in its written statement, which was solely concerned with issues of jurisdiction and propriety. (13) Palestine's written statement argued that the wall is tantamount to annexation because it is being constructed primarily in occupied territory rather than in Israeli territory, which circumvents Israeli civilian settlement blocs, by-passes roads and land designated for their future construction and expansion, and encompasses underground aquifers and water wells. (14) In other words, the issue is the not the wall itself, but its route through OPT. (15) This concern was reflected in the question submitted by the U.N. General Assembly to the ICJ in December 2003, which asked:
What are the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions? (16) II. THE HCJ AND THE WALL
The HCJ has handed down two principal decisions concerning the legality of the wall. On June 30, 2004, some nine days before the ICJ rendered its Advisory Opinion, the HCJ first ruled in Beit Sourik Village Council v. the Government of Israel (17) that the wall could be built in the West Bank, in and around occupied East Jerusalem, but that in a number of sections the wall's route did not satisfy the proportionality test established by the court. (18) In response to the petitioner's argument that the route of the wall was motivated by political reasons (i.e. to incorporate into Israel certain Israeli civilian settlements established inside the West Bank), the HCJ held: "[I]t is the security perspective--and not the political one--which must examine a route based on its security merits alone, without regard for the location of the Green Line." (19) Of course the HCJ could only reach this conclusion by not addressing the applicability to the West Bank of Article 49(6) of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 1949 (hereafter Geneva Convention IV). (20) This is because that article prohibits an occupying power from transferring its civilian population to the territory it occupies. (21) Had the HCJ examined the legality of the Israeli settlements in East Jerusalem and the West Bank by applying the relevant provisions of Geneva Convention IV, it would have been difficult for the HCJ to have reached the conclusion that the wall was a lawful measure to protect the settlements. Instead, the HCJ uncritically accepted the Israeli government's position that the wall is not a political measure, even though most of it is being constructed in territory over which it has no sovereignty. (22) This may also explain why there was so little reference to international law in its judgment, particularly on the question of self-determination and human rights law. (23) Instead, the HCJ decided that there was a lawful basis for constructing the wall according to its interpretation of the law of belligerent occupation and Israeli administrative law. (24) On this basis the HCJ found that a small section of the wall (approximately 30 kilometers) should be re-routed because it inflicted disproportionate harm upon Palestinian residents and could not be justified by Israel's security needs. (25) It was up to the individual military commander in the occupied territories to balance Israel's security needs with the needs of the local inhabitants. As the HCJ's decision in Beit Sourik was delivered before the ICJ's Advisory Opinion, the remainder of this article will focus on the Mara'abe case, which challenged the ICJ's Advisory Opinion on both factual and legal grounds.
In Mara'abe, the HCJ chose to avoid the question of the applicability of Geneva Convention IV as it did in the Beit Sourik case (26)--and as it had done several times in earlier decisions--by relaying the position of its government, which has declared that it practices the "humanitarian parts" of the Convention:
In light of that declaration on the part of the government of Israel, we see no need to re-examine the government's position. We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area [that is, the West Bank], and that its application is not conditional upon the...