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Introduction

Published online by Cambridge University Press:  04 July 2014

David Kretzmer
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Introduction
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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. 6 - 16
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2005

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Footnotes

*

Bruce W. Wayne Professor of International Law, The Hebrew University of Jerusalem.

References

1 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) Is.L.R. 83 CrossRefGoogle Scholar.

2 Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Opinion of 9 July 2004, 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: “Advisory Opinion”).

3 See Uzi Dayan, In Defence of a Fence, Speech to The Washington Institute's Special Policy Forum, 19 December 2003, available at http://www.washingtoninstitute.org/templateC05.php?CID=2128. Dayan is the former deputy chief of staff of the IDF and was head of the National Security Council of Israel, when it submitted the initial proposal for the barrier to the government.

4 See interview with cabinet minister Zipi Livni published in the daily Haaretz. Ms. Livni stated that “construction of the fence is meant, in the future security policy of Israel, to transfer 85-90% of the territory to the Palestinians living on the other side of the fence. If Israel places itself around the fence to grant security to the blocs of settlements, this is meant to ease the lives of the Palestinians, even thought the price is harm to the villagers who live close to fence. When the dilemma is between the life of an Israeli citizen living in the settlement and the difficulty which we create by constructing the fence for Palestinian villager in working their land, my value choice is clear.” Alon, Gideon, “I'll Take Existence” Ha'aretz, 20 September 2004 Google Scholar. Also see the interview with Deputy Prime Minister Ehud Olmert in Landau, David, “Maximum Jews, Minimum Palestinians” Ha'aretz, 14 November 2003 Google Scholar.

5 See Ben, Aluf and Kara, Baruch, “The State Attorney Points Out Difficulties and Sharon in Planning Changes in the Fence” Ha'aretz, 18 January 2004 Google Scholar.

6 The present writer has discussed elsewhere the jurisprudence of the Court in its decisions in these petitions: Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, SUNY Press, 2002)Google Scholar.

7 H.C.J. 8172/02 Ibrahim v. IDF Commander (not yet published).

8 Ibid.

9 See, e.g., Dugard, John, “Enforcement of Human Rights in the West Bank and the Gaza Strip” in Playfair, Emma, ed. International Law and the Administration of Occupied Territories (Oxford, Oxford University Press, 1992) 461, 468–475 Google Scholar.

10 According to Article 93 of the UN Charter, all members of the United Nations are ipso facto party to the Statute.

11 Article 66 of Statute of International Court of Justice.

12 See Written Statement of the Government of Israel on Jurisdiction and Propriety at http://www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/WrittenStatement_17_Israel.pdf.

13 As opposed to most of the other petitions relating to the barrier, in which the petitioners were Palestinian land-owners, the Palestinian petitioners in this case were joined by residents of Mevasseret Zion, who also objected to the particular route chosen for the barrier. These residents managed to obtain an opinion by members of the Council for Peace and Security, a dovish Israeli NGO made up mainly of retired army and security high rank officers, stating that the route chosen was not optimal from a security perspective. The proposed an alternative route which they claimed would be as effective from a security point of view, but less harmful to rights of Palestinians in the area. Part of this route also was in the West Bank.

14 See GA Resolution ES-10-14, adopted on 8 December 2003.

15 See General Assembly Resolution ES-10/13 of 21 October 2003, demanding that “Israel stop and reverse construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law.” There was probably another reason for speaking of the legal consequences, rather than of the lawfulness of the barrier itself. The General Assembly was attempting to follow the precedent of the request in the Namibia case: see Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971. As Judge Higgins pointed out in her separate opinion, for a variety of reasons the parallel to the Namibia case was misconceived. In that case the Court itself had already decided that South Africa's presence in Namibia was illegal. Furthermore, all the obligations as a Mandatory Power lay with South Africa, whereas in the present case there was an attempt to isolate one aspect of a dispute in which both parties face obligations in international law: Separate Opinion of Judge Higgins, paras. 2 – 5 available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Higgins.htm.

16 Advisory Opinion, supra n. 2, at para. 39.

17 Ibid., para. 163.

18 On this point even the one judge on the Court who dissented, Judge Thomas Buergenthal, expressed his agreement.

19 See, e.g., Aluf Ben, Sources in the Defence Establishment Define the Judges' Decision as a Slap in the Face, Ha'aretz, 1 July 2004; Gidon Alon, Yuval Yoaz and Arnon Regular, Ministers Nave, Orlev and Shiransky Demand that Sharon Initiate a Law Circumventing the High Court; Lapid is Opposed Ha'aretz, 1.7.2004.

20 It should be noted that Israel was not the only state that submitted a statement to the Court arguing that issues of propriety should prevent it from granting the requested opinion: see Statements of Russian Federation, Australia, Canada, United States of America, French Republic, Italian Republic, Federal Republic of Germany, Kingdom of Norway, Czech Republic, Ireland, Kingdom of the Netherlands, Kingdom of Sweden, Kingdom of Spain, Kingdom of Belgium, Republic of Palau, Federated States of Micronesia, Republic of the Marshall Islands and Ireland on behalf of the European Union, at http://www.icj-cji.org/icjwww/idocket/imwp/imwpframe.htm. One of the main grounds raised in some of these statements was that granting the Advisory Opinion would not be helpful in the political attempts to find a solution to the Israel-Palestinian conflict.

21 Declaration of Judge Thomas Buergenthal. Judge Buergenthal accepted that the State of Israel could have presented the Court with the missing information, but pointed out that as it had no legal duty to do so, the Court could not rely on burden of proof type arguments. Judge Buergenthal opinion is available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_declaration_buergenthal.htm.

22 Advisory Opinion, supra n. 2, at para. 47 – 50.

23 One case that may be regarded as somewhat similar in this respect is the Namibia case, in which the ICJ granted an advisory opinion on the “Legal consequences for slates of the continued presence of South Africa in Namibia (South West Africa)…” 1971 I.C.J. 16 Google Scholar. It is interesting to note that in that case South Africa maintained that the Mandate had been terminated by the General Assembly on the basis of the claim that South Africa had failed in its duty under the terms of the Mandate to promote the moral and material well-being of the people of South West Africa (Namibia). It argued that assessing whether this conclusion was well-founded would require detailed fact-finding by the ICJ, that the ICJ was illequipped to carry out this task and that it should therefore refuse to give the Opinion. The grounds of the Court in dismissing this argument are revealing. It stated that the General Assembly had terminated the Mandate mainly on the basis of the uncontroverted fact that South Africa had not submitted reports nor transmitted petitions relating to the territory. Therefore, the Court did not have to assess complicated issues of fact relating to the conduct of a state.

24 See Article 38 of the Statue of the International Court of Justice, which states:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

25 For a detailed analysis of the government's position on this question see Bar-Yaakov, Nissim, “The Applicability of the Laws of War to Judea and Samaria (the West Bank) and to the Gaza Strip” (1988) 24 Is.L.R. 485 CrossRefGoogle Scholar.

26 See, e.g., H.C.J. 7015/02, Ajuri v. IDF Commander 56 (6) RD. 352; H.C.J. 4764/04 Physicians for Human Rights v. IDF Commander (not yet published).

27 On this issue see Scobie, Iain, “Words My Mother Never Taught Me – ‘In Defense of the International Court’” (2005) 99 Am. J. Int'l L. 76 CrossRefGoogle Scholar.

28 See Declaration of Judge Buergenthal, supra n. 21, at paras. 5-6; Separate Opinion of Judge Higgins, supra n. 15, at paras. 33-34; and Separate Opinion of Judge Kooijmans at paras. 35-36 available at http://www.icj-cij/org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Kooijmans.

29 See, e.g., Dinstein, Yoram, War, Aggression and Self-Defense (Cambridge University Press, 3rd ed., 2001) 214 CrossRefGoogle Scholar who claims that “armed attacks by non-State actors are still armed attacks even if commenced from – and not by – another State”; Franck, Thomas M., “Editorial Comments: Terrorism and the Right of Self-Defense” (2001) 94 Am. J. Int'l L. 839 CrossRefGoogle Scholar; Brown, Davis, “Use of Force against Terrorism after September 11th: State Responsibility, Self-Defense and Other Responses” (2003) 11 Cardozo J. Int'l & Comp. L. 1 Google Scholar; Stahn, Carsten, “International Law Under Fire: Terrorist Acts as ‘Armed Attack’: The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism” (2003) 27 Fletcher F. World Aff. 35 Google Scholar. As Judge Buergenthal points out in his Declaration it would also seem that the view was implicitly rejected by UN Security Council Resolution 1368, passed one day after the 9/11 attacks on the US. Even thought this attack was carried out by non-state actors the SC recognized the “inherent right of individual or collective self-defense in accordance with the Charter.”

30 See H.C.J. 606/78 Ayub v. Minister of Defense 32 (2) P.D. 113.

31 For further analysis the reader is referred to discussions in other journals. See, e.g., “Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory” (2005) 99 Am. J. Int'l L. 1–141 Google Scholar.