The Wall and the Law: A Tale of Two Judgements
| DOI | 10.1177/016934410602400104 |
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
| Author | Susan Akram,Michael Lynk |
| Subject Matter | Part A: Article |
THE WALL AND THE LAW:
A TALE OF TWO JUDGEMENTS
SUSAN AKRAM* and MICHAEL LYNK**
Abstract
Israel’s construction of a 670 kilometre wall and barrier through the West Bank and East
Jerusalem has generated international political controversy, and two significant judicial
rulings. In July 2004, the International Court of Justice issued its Advisory Opinion to the
United Nations General Assembly, stating that the Separation Wall violated international
human rights and humanitarian law, and proposing that Israel immediately dismantle it, with
reparations to its victims. The week before, the Israeli Supreme Court released its decision in
Beit Sourik Village Council vs Israel, finding that the Wall complied in principle with legal
norms, but portions of it must be re-located to reduce avoidable harm to Palestinian villages.
This article critically assesses the two decisions against the requirements of international law. It
also tracks the response of the international community to Israel’s continued construction of the
Wall in the aftermath of these two judicial rulings.
1. INTRODUCTION
Before I built a wall I’d ask to know
What I was walling in or walling out
And to whom I was like to give offence
(Robert Frost, Mending Wall)
In late June and early July of 2004, two courts in different parts of the world issued a
pair of remarkable judgements examining the legality of the separation wall that
Israel is building through the West Bank and East Jerusalem.
1
While both
judgements were critical of the Wall, their judicial approaches and legal conclusions
were strikingly divergent, particularly given that the two courts were purporting to
rely upon the same principles of international law. Indeed, even their vocabulary
differed: one court used the term ‘wall’, while the other called it a ‘fence’.
2
The
judgements also elicited quite different political and diplomatic reactions, especially
among the parties most involved in the Israel/Palestine conflict. Moreover, the
Netherlands Quarterly of Human Rights, Vol. 24/1, 61-106, 2006.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 61
* Associate Professor of Law, Boston University Law School, USA.
** Assistant Professor of Law, Faculty of Law, the University of Western Ontario, Canada.
1
For an insightful discussion of the Wall and its impact upon Palestinian society in the West Bank, as
well as its contribution to the dwindling prospects for a two-State solution, see Lagerquist, P.,
‘Facing the Last Sky: Excavating Palestine after Israel’s ‘‘Separation Wall’’’, Journal of Palestine
Studies, Vol. 33, No. 2, 2004, p. 5.
2
This article will adopt the terminology of the United Nations and the International Court of Justice,
and refer to the physical barrier as the ‘Wall’.
62
subsequent impact of the judgements has been profoundly contradictory. On the
one hand, the two rulings have made the clearest case yet for the indispensable role
of the rule of law in mediating a just and lasting settlement of the conflict. Yet, more
than a year after the judgements, the Wall continues to be built, and Israel has paid
only a trifling price for its legal and political obstructionism.
On 9 July 2004, the International Court of Justice (ICJ) issued its widely-
anticipated Advisory Opinion on the Wall’s legality, in response to a question
referred to it by the United Nations General Assembly the previous December.
3
In
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion,
4
the International Court found, by a 14-1 margin, that the
construction of the Wall in occupied territory violated international law, and held
that Israel was required to dismantle it immediately and pay reparations to all those
who have suffered damages. The political reaction was immediate. Coverage of the
ICJ opinion was headline news around the world; Israel, the Bush administration,
and the United States House of Representatives all sharply denounced the decision;
the United Nations General Assembly voted overwhelmingly two weeks later to
accept the Court’s ruling; and the Israeli debate over the judgement became an
incendiary political issue for the remainder of the summer. The Advisory Opinion
marked the very first occasion where issues central to the Israel/Palestine conflict
have been addressed by a prominent international judicial body. The forcefulness
and clarity of the ICJ judgement has challenged the largely successful efforts to date
by Israel and the United States to exclude international humanitarian and human
rights principles from efforts to resolve the conflict.
Nine days earlier, on 30 June, the Israeli Supreme Court, sitting as the High
Court of Justice, delivered its altogether more modest ruling in Beit Sourik Village
Council vs Israel.
5
The case had been initiated by Palestinian residents of villages to
the northwest of Jerusalem, who sought to quash Israeli military orders to construct
portions of the Wall through their lands. In its judgement, the Supreme Court
rejected the villagers’ arguments that the Wall violated international law, but it went
on to rule that the actual route of this portion of the Wall near Jerusalem failed a
proportionality test that balances the security needs of the military and the
humanitarian concerns of the occupied population. Accordingly, the Supreme
Court ordered approximately 25 kilometres of the 40 kilometre stretch challenged
by the villagers to be re-routed closer to the 1967 Green Line. Israeli political and
military leaders at first expressed a mixture of dismay and guarded relief over the
Supreme Court ruling. However, once the Advisory Opinion was released a week and a
half later, they enthusiastically embraced the Beit Sourik judgement, stating that it
Susan Akram and Michael Lynk
3
UNGA Res. ES-10/14, 8 December 2003. The formal question asked by the General Assembly was:
‘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 the relevant Security
Council and General Assembly resolutions?’.
4
International Legal Materials, 2004, Vol. 43, p. 1009 (hereinafter Advisory Opinion). The ICJ Opinion,
formally called the dispositif, can be viewed at www.icj-cij.org/icjwww/idocket/imwp/imwp/
imwpframe.htm.
5
Beit Sourik Village Council vs the Government of Israel and the Commander of the IDF Forces in the West Bank,
International Legal Materials, Vol. 43, 2004, p. 1099 (hereinafter Beit Sourik).
would be the only judicial ruling they would respect and implement. Since the
Supreme Court ruling, Israel has made some changes in the Wall’s planned path in
direct response to the decision, while continuing to build the barrier predominately
on occupied lands and private Palestinian property.
Both decisions have received extensive legal and academic scrutiny since their
release, particularly the Advisory Opinion.
6
This is welcomed, as the broad legal and
diplomatic consensus that Israel’s occupation of Palestinian territory is manifestly
illegal serves as an ongoing, if modest, constraint on its colonising activities.
However, the divergent approaches to international law employed in the two
rulings, and their quite distinct legal conclusions, say as much about the two courts
themselves as they do about the laws of occupation. One ruling, coming from the
highest judicial organ of the United Nations, provides a dispassionate, yet erudite,
application of the primary rules of international law. It offers guidelines for ending
the conflict, and is a direct reminder to the international community of its
obligations to bring to an end the illegal situation arising from the occupation. The
other ruling, from the occupier’s highest court, shares certain basic assumptions
with the Israeli Government and military on the critical features of the conflict,
breaking rank only on tertiary issues about how to balance the acute humanitarian
distress among the Palestinian population. Indeed, if law is politics by other means,
then we can read into the rulings the two diametrically opposite approaches to the
conflict: one reflecting the formal international consensus of the profound illegality
of the Wall; and the other reflecting the strategy of legal exceptionalism that Israel
has so effectively employed over the decades to entrench its military conquest and its
demographic gains.
2. THE ICJ ADVISORY OPINION
The Court considers that the construction of the wall and its associated regime create a ‘fait
accompli’ on the ground that could well become permanent, in which case, and
notwithstanding the formal characterization of the wall by Israel, it would be tantamount to
de facto annexation. (Wall Advisory Opinion, para. 121)
It is difficult to conceive, in a conflict as lengthy and complex as that of Palestine-
Israel, that none of the significant underlying legal issues had reached the ICJ prior
to the General Assembly’s Advisory Request on Israel’s Wall construction in 2004.
Early attempts to challenge the legality of the General Assembly resolution
recommending partition of historic Palestine through appeal to the ICJ were
thwarted by political pressure exerted by the major powers.
7
Unlike the situation of
South Africa’s occupation of Namibia and its apartheid policies, which generated
The Wall and the Law: A Tale of Two Judgements
Netherlands Quarterly of Human Rights, Vol. 24/1 (2006) 63
6
The American Journal of International Law, the principal scholarly publication of the American
Society of International Law and probably the most prestigious international law journal in the
world, devoted a large portion of a recent issue to the Advisory Opinion, with nine substantive articles
defending or critiquing the ruling: American Journal of International Law , Vol. 99, No. 1, 2005, pp. 1-
141.
7
For texts of the requests by Egypt, Iraq and Syria to obtain an advisory opinion from the ICJ on the
legality of the partition resolution, and the discussion in the General Assembly, see UN Docs A/
AC.14/21; A/AC.14/25; A/AC.14/14, reprinted in: 1949 U.N.Y.B. 1947-48, UN Sales No. 1949.I.13.
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