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Capacities and Inadequacies: A Look at the Two Separation Barrier Cases

Published online by Cambridge University Press:  04 July 2014

Yuval Shany
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Abstract

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 230 - 246
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Senior Lecturer, School of Law, The College of Management Academic Studies (Israel); visiting researcher, the Pioneer Program, Amsterdam Center for International Law, University of Amsterdam. Thanks are due to Dr. Orna Ben Naftali, Dr. Iris Canor, Dr. Moshe Hirsch, Mr. Arthur Lenk, Prof. Andre Nollkaemper and Ms. Geranne Lautenbach for their comments to earlier drafts. The author also thanks the editors of the Israel Law Review for their useful remarks.

While the author participated in preparing Israel's written pleadings to the ICJ in the Consequences of the Construction of a Wall in the Occupied Palestinians Territory case, the opinions presented here are his personal views and should not be attributed in any way to the Israeli government

References

1 Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Advisory Opinion of 9 July 2004, I.C.J. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar (hereinafter: “OPT Wall”).

2 H.C.J. 2056/04 Beit Sourik Village Council v. Government of Israel 58(5) P.D. 807. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807” (2005) 38 (1-2) ls.L.R. 83.

3 I use the term ‘separation barrier’ throughout the note for reasons of stylistic consistency and attempted terminological neutrality. The term ‘separation barrier’ encompasses the term ‘separation wall’ to which the ICJ referred in the advisory opinion, the term ‘security fence’ to which Israeli spokesperson allude and the terms ‘separation fence’ and ‘separation area’ which the HCJ used interchangeably. The same methodological concerns have led the UN Secretary General to adopt the term ‘separation barrier’ in his report to the General Assembly. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, UN Doc. A/ES-10/248 (2003).

4 Charter of the United Nations, art. 92, 26 June 1945, XV U.N.C.I.O. Doc. 355 (hereinafter: “UN Charter”).

5 See G.A. Res. ES-10/14 (2003), 8 Dec. 2003. According to UN Charter, art. 96, the ICJ may issue advisory opinions at the request of the UN General Assembly and Security Council, or other authorized UN and UN-affiliated organs and agencies. But see Falk, Richard A., “Toward Authoritativeness: The ICJ Ruling on Israel's Security Wall” (2005) 99 Am. J. Int'l L. 42, 48–50 CrossRefGoogle Scholar (criticizing the common perception of advisory opinions as non-binding).

6 The Beit Sourik Village judgment is however the first major decision of the HCJ on the lawfulness of the separation barrier. Until that case, the Court seemed to go out of its way to avoid ruling on the matter (it dismissed some petitions on technical grounds and directed the litigating parties to other petitions to try and negotiate an out-of-court settlement). It can only be speculated that the Court felt compelled to render a precedent-setting judgment by reason of the increase in the sheer number of petitions; the failure of the parties to past litigations to reach settlements; and the prospective ICJ proceedings. With relation to this last consideration, one can assume that the HCJ hoped to convey to the ICJ the message the international intervention is unnecessary, as the HCJ is fully capable of applying international law norms to the situation. It might also be speculated that the HCJ assessed that the political acceptability of its decision within Israel would increase if it were to issue its judgment before the ICJ, as this would stress the independence of the HCJ from external pressures.

7 See Shany, Yuval, The Competing Jurisdictions of International Courts and Tribunals (Oxford, Oxford University Press, 2003) 24 Google Scholar. For elaboration of the ‘same parties’ and ‘same issues’ standards, see Certain German Interests in Polish Upper Silesia (Germany v. Poland), 1925 Google Scholar PCIJ (ser. A) No. 6, atp. 20; Benvenuti and Bonfat Sri. V. Congo, 1 ICSID Rep. 330, 340 (1980); Amco Asia, Pan American Development Ltd. v. Indonesia, 1 ICSID Rep. 389, 409 (1983); China Navigation Co. Ltd. (U.K.) v. U.S. (The ‘Newchwang’), VI R.I.A.A. 64, 65 (1921); Cases 172, 228/83 Hoogovens Greop v. Commission [1985] E.C.R. 2831, 2846; Waste Management Inc. v. Mexico, 41 I.L.M. 1315, 1322 (2002) (ICSID Additional Facility decision on preliminary objections).

8 It is notable that the HCJ did not question the applicability of the Fourth Geneva Convention to the proceedings at hand. Beit Sourik Village, supra n. 2, at para. 23.

9 Ibid., at para. 38-39. The reference by the Court to both national and international law arguably strengthens the legitimacy of the decision within Israel and outside it.

10 Two other differences in legal analysis could be noted: 1) The HCJ did not address the applicability of human rights treaties to the issue at hand, whereas the ICJ addressed the legality of the separation barrier under both international humanitarian law (IHL) and international human rights law (IHR). This did not, however, bring about a significant change in the outcome of the cases as both IHL and IHR are subject to essentially the same necessity and proportionality limitation standards; 2) The ICJ opinion also addressed the effects of the barrier on the Palestinian right to self-determination, which the HCJ ignored altogether. However, here too the invocation of the right by the ICJ was dictated by its rejection of Israel's military necessity arguments. Furthermore, the appropriateness of the Court's analysis on this point is debatable: It is the occupation and not the barrier which hinders the fulfillment of the right to self-determination (See separate opinion of Judge Higgins, at para. 31-32, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Higgins.htm).

11 These included affidavits by the parties (which comprised the IDF, the Palestinians and residents of Mevaseret Zion – a Jewish town situated in proximity to the barrier), an amicus brief by the Council for Peace and Security (an NGO comprising dovish ex-generals), which eventually joined the proceedings, and an expert opinion paper on ecological implications of the barrier

12 See e.g., Beit Sourik Village, supra n. 2, at para. 61 (“[A]n alternative route exists… It is based on military control of Jebel Mukatam, without ‘pulling’ the Separation Fence to that mountain… The gap between the security provided by the military commander's approach and the security provided by the alternate route is minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a Fence which does not separate the two”).

13 Report of the Secretary-General, supra n. 3. The Report contains a two-page summary of the position of the Israeli government on the legal justifications for constructing the barrier. However, it should be noted that Israel argued in its written pleadings that the Report did not accurately reflect its positions. Written Statement of the State of Israel on Jurisdiction and Admissibility, 30 Jan. 2004, para. 2.24, http://www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/iWrittenStatement_17_israel.pdf.

14 OPT Wall, supra n. 1 para. 57. There is no indication in the advisory opinion that the specific factual and legal assertions of the Israeli government, as presented during the numerous HCJ proceedings on the legality of the barrier in Israel, were taken into considerations.

15 Cf. Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14, 26 (“The vigilance which the court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present”). See also separate opinion of Judge Owada, at para. 30, (“[A]n in-depth effort could have been made by the Court, proprio motu, to ascertain the validity of this argument on the basis of facts and law, and to present an objective picture surrounding the construction of the wall in its entirety, on the basis of which to assess the merits of the contention of Israel”) available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Owada.htm.

16 See dissenting opinion of Judge Buergenthal, at para. 10, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_declaration_Buergenthal.htm. Cf. separate opinion of Judge Higgins, at para. 40 available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Higgins.htm (“[Israel has not] explained to the United Nations or to this Court why its legitimate security needs can be met only by the route selected”).

17 It could be argued that the fact that the barrier was designed to protect unlawful settlements renders it illegal ipso facto thus obviating the need for ascertaining the necessity of constructing it. However, the Court never makes such an argument. For discussion of the treatment of settlements issue by the ICJ, see Kretzmer, David, “The Advisory Opinion: The Light Treatment of International Humanitarian Law” (2005) 99 Am. J. Int'l L. 88, 91–94 CrossRefGoogle Scholar. Further, such argument is problematic as it overlooks segments of the barrier constructed in the Occupied Territories, which directly protect cities and villages within Israel proper. It is also oblivious to any strategic military advantage of constructing obstacles in ‘enemy territory’ (especially in the light of possible rocket attacks on Israeli population centers).

18 Dissenting opinion of Judge Buergenthal, supra n. 16, at para. 3. Cf. Eastern Carelia, 1923 P.C.I.J. (Ser. B), No. 5, at 28-29 (“The Court, the Russian Government having refused their concurrence, finds itself unable to pursue the investigation.… which would require the consent and cooperation of both parties”).

19 OPT Wall, supra n. 1, at para. 58.

20 See ibid., at para. 135 (“on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations”); ibid., at para. 136 (“On the basis of the information available to it, the Court finds that these conditions [necessity and proportionality] are not met in the present instance”); ibid., at para. 137 (“To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives”); ibid., at para. 140 (“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.”).

21 Dissenting opinion of Judge Buergenthal, supra n. 16, at para. 7. See also Scobbie, Iain, “Smoke, Mirrors and Killer Whales: the International Court's Opinion on the Israeli Barrier Wall” (2004) 5 GLJ 9 Google Scholar http://www.germanlawjournal.com/, at para. 10 (describing the ICJ opinion in the following terms – “much, rests on little more than assertion rather than on reasoned argument”).

22 Cf. Ilascu v. Moldova, ECHR judgment of 8 July 2004, at para. 26(i)(“In assessing both written and oral evidence the Court has hitherto generally applied “beyond a reasonable doubt” as the standard of proof required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact; in addition, the conduct of the parties in relation to the Court's efforts to obtain evidence may constitute an element to be taken into account”); Eirtrea v. Ethiopia, Award of 1 July 2003, at para. 45 (Claims Commission)(grave charges against a State must be supported by a high level of certainty).

23 On the link between inadequate reasoning and legitimacy, see Helfer, Laurence R. and Slaughter, Anne-Marie, “Towards a Theory of Effective Supranational Adjudication” (1997) 107 Yale L.J. 273, 321–322 CrossRefGoogle Scholar.

24 Beit Sourik Village, supra n. 2, at para. 29. It is perhaps significant to note that the Court opined that had it found that the real motive of constructing the barrier had been political and not military, it would have declared the unlawfulness of the separation barrier altogether. Ibid., at para. 27.

25 Ibid., at para. 47 and 58.

26 Ibid., at para. 47. The Court also commended the sincere desire of the military commander to meet the standards of legality. Ibid., at para. 85.

27 Ibid., at para. 48.

28 Ibid., at para. 42. The involvement of the Council for Peace and Security, which provided the Court with competing expert opinion on security matters, seem to have emboldened the Court in dismissing the army's position and in asserting that alternative effective routes exist. See also text accompanying notes 37-38.

29 Ibid., at para. 82-85.

30 See e.g., ibid., at para. 71, (“Other routes, of course, may be considered. This is the military commander's affair.”)

31 OPT Wall, supra n. 1, at para. 121.

32 Cf. Lac Lanoux (Spain v. France), 24 I.L.R. 101, 126 (1957) (“[T]here is a general and well-established principle of law according to which bad faith is not presumed”) Free Zones of the Upper Savory and the District of Gex, (France v. Switz.) 1932 P.C.I.J. (ser. A/B), No. 46, at p. 167 (“[A]n abuse cannot be presumed by the Court”).

33 The Court's position seems to have been based on the correlation between the route of the barrier and the spread of settlements in the West Bank. The barrier was thus arguably designed to serve the same annexationist policies which the settlements serve. However, this is not explicitly stated. Further, the unlawful nature of the settlements does not necessarily negate the assurances given by Israel (for example, the fact that the separation barrier is designed to protect the Israeli settlement in the West Bank does not automatically detract from its temporary nature). In addition, some parts of the separation barrier in the West Bank cannot be definitively linked to the location of settlements (e.g., in the Mevaseret Zion area). Still the Court does not explain why Israel's assurances must be rejected with regard to those parts as well.

34 Oil Platforms (Iran v. U.S.), judgment of 6 Nov. 2003, 2003, 2003 I.C.J. at para. 73 available at www.icjcij.org/icjwww/idocket/iop/iopjudgement/iop_ijudgement_20031106.PDF. This decision was criticized by some of the individual judges. Ibid., separate opinion of Judge Kooijmans, at para. 44-46; Ibid., separate opinion of Judge Buergenthal, at para. 37.

35 Cf. Handyside v. UK, (1979) 1 EHRR 737, at para. 48 (domestic courts are better situated to assess local conditions); Helfer and Slaughter, supra n. 23, at. 316.

36 Apart from the ECHR which has long applied the margin of appreciation doctrine, acceptance of the doctrine in some form or the other can be identified in the case law of the European Court of Justice, WTO dispute settlement body, the International Tribunal for the Law of the Sea, the Human Rights Committee, the Inter-American Court of Human Rights, NAFTA and the International Center for the Settlement of Investment Disputes. See e.g., Germany v. Leifer 1995 ECR I-3231; Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Inter-Am. Ct. H.R. (ser. A) (1984), at para. 57-58; Comm. 547/1993 Mahuika v. New Zealand, UN Doc. CCPR/C/70/D/547/1993 (2000); EC-Measures Affecting Asbestos and Asbestos-Containing Products (Appellate Body Report), 40 I.L.M. 1093, 1226 (2001); The Volga Case (Russia v. Australia) (Application for Prompt Release), 42 I.L.M. (2003) 159, 183-186 (Separate Opinion, Judge Cot); D. Myers, Inc. v. Canada (NAFTA Partial Award), 40 I.L.M. 1408, 1438; Compania de Aquas del Aconquija, S.A. v. Argentina, (ICSID ad hoc Annulment Committee decision) 41 I.L.M. 1135, 1149 (2002).

One should also note that the two recent ICJ decisions on the application of the death penalty to foreign nationals in the U.S. leave a certain margin of appreciation to the local authorities in implementing the Court's judgments. See LaGrand (Germany v. U.S.), 2001 I.C.J. 466, 514; Avena (Mexico v. U.S.), judgment of 31 March 2004, 2004 I.C.J. (forthcoming), at para. 141-143.

37 See e.g., Beit Sourik Village, supra n. 2, at para. 61.

38 See e.g., Ibid, at para. 18-20 (discussing the competing tactical choices in locating the barrier between Israeli localities and Palestinian villages).

39 OPT Wall, supra n. 1 at para. 141.

40 See e.g, Beit Sourik Village, supra n. 2, at para 86 (“We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror. We are aware of the killing and destruction wrought by terror against the state and its citizens”). See also ibid, at para. 2 (describing the background to the decision to construct the separation barrier in a manner sympathetic to the government's position).

41 Ibid, at para 86 (“Only a Separation Fence built on a base of law will grant security to the state and its citizens”).

42 See ibid, at para, 67-68 (“[T]he farmer's way of life is impinged upon most severely… This is a veritable chokehold, will severely stifle daily life”); ibid., at para. 9 (describing inter alia the harm to sheepherding activities, to olive trees and to land “cultivated for many generations”). Cf. with the dry fact-of-the-matter tone used by the ICJ. OPT Wall, supra n. 1, at para. 133 (“There have also been serious repercussions for agricultural production”).

43 See Helfer and Slaughter, supra n. 23, at 285.

44 See e.g., Thirlway, Hugh W.A., Non-Appearance Before the International Court of Justice (Cambridge, Cambridge University Press, 1985) 64–82 Google Scholar.

45 Cf. Helfer and Slaughter, supra n. 23, at 303 (discussing the link between fact-finding capabilities and legitimacy).

46 It should be noted that HCJ proceedings also do not, as a rule, provide for oral testimony, although there have been occasional exceptions (e.g., H.C.J. 5016/96 Horev v. Minister of Transportation 51(4) P.D.1). Still, the HCJ plays a vastly more active role in the proceedings before it than the ICJ and requires the parties to produce additional facts on a regular basis (see e.g., H.C.J. 4764/04 Physicians for Human Rights v. IDF Commander in the Gaza Strip, judgment of 30 May 2004, at para. 6) (not yet published):”

47 On the importance of the dialogue between international courts and national publics, see Helfer and Slaughter, supra n. 23, at 309.

48 The call, at the very end of the opinion, for all parties to refrain from violence (OPT Wall, supra n. 1, at para. 162) appears to be too little, too late. See supra n. 10, at separate opinion of Judge Higgins (“[I]n my view much, much more was required to avoid the huge imbalance that necessarily flows from being invited to look at only “part of a greater whole”).

49 See e.g., Shamir, Shlomo, “Sharon to Convene Ministers Sunday to Discuss ICJ Ruling”, Haaretz 11 July 2004 Google Scholar (citing inter alia Minister of Justice, Lapid's reaction: “This was a decision made by countries whose stance was known, and is therefore irrelevant to Israel”).

50 OPT Wall, supra n. 1, at para. 122.

51 See e.g., Ministry of Foreign Affairs, “Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip”, http://www.mfa.gov.il/mfa/mfaarchive/2000_2009/2003/2/disputed+territories-+forgotten+facts+about+the+we.htm>. In a nutshell, Israel argues that the League of Nations Mandate over Palestine conferred upon it title, at least, over West Bank territories which were under effective Jewish control before the war of 1948. It is questionable, however, whether unilateral annexation would be permissible even under such conditions.

52 See e.g., Declaration of Principles on Interim Self-Government Arrangements (Israel/PLO), 13 Sept. 1993, art. V (3), 32 I.L.M. 1525 (1993). For discussion, see Watson, Geoffrey R., “The ‘Wall’ Decisions in Legal and Political Context” (2005) 99 Am. J. Int'l L. 6, 22–24 CrossRefGoogle Scholar.

53 This position is not supported by the ILC Draft Articles on State Responsibility, which bar the raising of the defense of necessity, where the state in question contributed to the illegality of the act. Draft Articles on the Responsibility of States for International Wrongful Acts, art. 25(2), 32, UN G.A.O.R. 56th Sess., Supp. No. 10, UN Doc. A/56/10, Ch. IV.E. 1 (2001). It could however be argued that the draft articles use excessively sweeping language in this regard and ignore precedents in which the illegality of the overall situation was distinguished from the question of legality of specific measures taken within its context. See e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 56 (illegality of South Africa's rule in Namibia does note render all the decision of local courts unlawful); Cyprus v. Turkey, 2001-IV Eur. Ct. H.R., at para. 95-99 (acts of the unlawful authorities of Northern Cyprus might nevertheless be lawful). Furthermore, an analogy could be drawn to the traditional distinction between jus in hello and jus ad helium – i.e., the illegality of the resort to force does not render every specific military operation as unlawful.

54 This argument would depend, however, on good faith acceptance on the part of Israel of such an obligation.

55 See Beit Sourik Village, supra n. 2, at para. 30 (“[I]t is the security perspective – and not the political one – which must examine a route based on its security merits alone, without regard for the location of the Green Line”); Ibid, at para. 80 (“We also accept that ‘The Gazelles’ Basin” is a part of Giv'at Ze'ev [ a West Bank settlement – Y.S.] and needs defense just like the rest of that town”).

56 See e.g., H.C.J. 390/79 Dawikat v. Government of Israel 34(1) P.D. 1; H.C.J. 7015/02 Ajuri v. IDF West Bank Commander 56(6) P.D. 352.

57 See e.g., H.C.J. 4219/02 Gussin v. IDF Commander in the Gaza Strip 56(4) P.D. 608 (the alleged illegality of the settlement is irrelevant for reviewing the lawfulness of security measures) H.C.J. 4481/91 Bargil v. Gov't Israel 47(4) P.D. 210; H.C.J. 3125/98 Iyad v. IDF West Bank Commander 55(1) P.D. 913 (the dominantly political nature of the question of the legality of the settlements renders the two petitions non-justiciable); H.C.J. 610/78 Ayoub v. Minister of Defense 33(2) P.D. 113, 131, 134 (the settlements are not permanent fixtures and are therefore not unlawful under the Hague Regulations).

58 Beit Sourik Village, supra n. 2, at para. 27.

59 But see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, SUNY University Press, 2002) 20 Google Scholar (judicial review of acts taken by Israel in the territory might confer legitimacy upon them).

60 See e.g., MOX Plant (Ireland v. U.K.), Order No. 4 of 14 Nov. 2003, at para. 28 [http://www.pca-cpa.org/ENGLISH/RPC/MOX/MOX%20Order%20No4.pdf].

61 See e.g., SGS v. Philippines, Decision of 29 Jan. 2004, at para. 162, 175, http://www.worldbank.org/icsid/cases/SGSvPhil-final.pdf; Dallal v. Bank Mellat [1986] 1 Q.B. 441, 461-62 (Hobhouse J.).

62 See Southern Pacific Properties (Middle East) v. Egypt (jurisdiction), 3 ICSID Rep. 101, 129(1985).

63 See MOX Plant, supra n. 60; SGS, supra n. 60.

64 Cf. Prince von Pless (Germany v. Poland). P.C.I.J. (Ser. A/B), No. 52, at p. 16 (1933)(interim order)(“[I]t will certainly be an advantage to the Court… to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal upon the appeals brought by Prince von Pless and now pending before that Tribunal… the Court must therefore arrange its procedure so as to ensure that this will be possible).

65 H.C.J. 4825/04 Alian v. Prime Minister, decision of 19 Aug. 2004 (ordering the state to address the implications of the ICJ advisory opinion for the case at hand) (not yet published).