18/19, C. Perotti, ‘Israel and The Wall: Security, Proportionality and Self – Defence’

Author: Camilla Perotti

 

INTRODUCTION

The wall separating the territories of the State of Israel and the Palestinian West Bank has raised several concerns within the global community regarding matters of security and self-defence. Firstly, this article will contemplate the structure of the separation barrier, focusing then on its consequences on the civilian population in the occupied Palestinian territories. It will then analyse the reasoning of the Israeli High Court in the   case and the ICJ advisory opinion, comparing the different considerations made by the two courts. Finally, it will focus on the role of self-defence in the judicial decision by the High Court and in the advisory opinion, emphasising the aspect of anticipatory self-defence.

  

THE WALL

In April 2002, the Israeli government decided to build a wall separating the territories of Israel and Palestine, aiming at preventing Palestinian terrorists to enter Israel from the West Bank[1] and conducting terrorist attacks against Israeli civilians.[2] The barrier can be considered a development of a policy implemented since the beginning of the Israeli occupation: already in 1996, before the Second Intifada, permanent roadblocks were established along what is today known as the Seam Zone.[3] The idea of developing a larger infrastructural system had already sparked after the Six Day War, but started to become reality only after the Second Intifada. Today, the barrier runs for roughly 730 kilometres, parts made in concrete and parts in iron mesh, surmounted by razor wire and flanked by ditches.[4] The actual fence, is only the core of the barrier system, a multi-shaped structure[5] with an average width of 50-70 metres, depending on topographical conditions.[6] The wall is supposed to sit on the Green Line between the Israeli territory and the West Bank, that is the armistice line set in 1949 between Israel, Jordan, and Syria, following the Arab-Israeli conflict.[7] Actually, only 15% of the wall is built either on the Green Line or on Israeli territory, while 85% sits in the West Bank.[8] The route diverts from the Green Line mostly where there are Israeli settlements, showing that, besides security-related reasons, “the aim was to encompass as many settlements and settlers as possible, so as to enable their de facto annexation to Israel,”[9] and the protection of settlers and settlements has been indicated as one of the purposes of the barrier by government officials.[10]

Although the Israeli government keeps deeming the wall as temporary,[11] it bears characteristics of a border: at checkpoints a system of registration and inspections has been adopted, like the one employed at other Israeli border crossings and airports.[12] Moreover, even if considered temporary, the wall has already severely damaged the life of the Palestinian population in the offing of the wall’s route: people have been divided from their lands, suddenly having to request permits to cross the wall, with the related delays and struggles; lands have been expropriated; whole families and communities have been displaced,[13] several houses on the route of the wall or in its buffer zone have been demolished.[14]

 

THE HIGH COURT DECISION IN THE BEIT SOURIK CASE

Most of the petitions brought by Palestinians or Israeli human rights groups to the Israeli High Court of Justice have ab origine been rejected on the basis of the provisional and security-related nature of the barrier.[15] The most important case has been the Beit Sourik case,[16] concerning a 40-kilometre long stretch of wall, entirely situated in the occupied territory,[17] in construction west of Ramallah.[18] The paramount aspect of this decision is that the Court, for the first time, questioned the authority of the State of Israel to build a barrier within the territory of the West Bank.[19] Firstly, the Court highlighted that the reasons for the construction of the wall cannot be political, a barrier cannot be built with the purpose to draw a political border.[20] Indeed, a balance between the military needs and the needs of the local inhabitants must be kept: “in the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state.”[21] The Court, therefore, accepted the argument made by the State that the purpose of the barrier is solely security-related.[22] Furthermore, the Court stated that the security reasons themselves justify a derail from the Green Line[23] and that the alterations already made to the route, as suggested by the Court itself, are proof of the security-based objective, rather than political.[24]

Regarding the legality of the route chosen for the barrier, the Court underlined how “it is not sufficient that the fence be motivated by security considerations, as opposed to political considerations,”[25] given that the commander does not have full discretion on the matter[26] and must abide to the principle of proportionality, general principle of international law.[27] Therefore, the commander’s authority, recognised by the law of belligerent occupation, must be “properly balanced against the rights, needs, and interests of the local population.”[28] Particularly, the Court analysed whether “the separation route (…) injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the fence,”[29] hence, not dealing with military considerations, but rather with humanitarian considerations.[30] Thus, the Court found that the 40-kilometre section of the barrier under question, which impacts upon the lives of 35,000 locals, caused the seizing of 4,000 dunams of private land and separated eight different villages from 30,000 dunams of their cultivated land, cannot be considered respectful of the principle of proportionality.[31] Not even the licensing system can decrease the extent of the injury to the farmers, causing unnecessary delays and deviations for the access to their own private land,[32] and, therefore, “cannot be considered a solution to the infringement of the rights of the local inhabitants.”[33] Hence, the commander is called to reduce at its minimum the impact of the wall on cultivated land.

 

 

THE ICJ ADVISORY OPINION

In December 2003, the UN General Assembly, according to Article 65 of the ICJ Statute, requested an advisory opinion regarding the legal consequences of  the building of the wall by Israel and its lawfulness in light of the provisions of the Forth Geneva Conventions and of previous UN resolutions.[34] The Court delivered such opinion in July 2004, stating that the wall regime is contrary to international law.[35] First of all, the court took into consideration the Hague Regulations annexed to the Fourth Hague Convention of 1907, whose norms are now considered customary[36] and therefore binding Israel, not a party to the Convention.[37] The Court also observed that the regulations of the Geneva Convention on the protection of civilians in times of war are applicable in any occupied territory whenever there is an armed conflict between two State parties: in 1967, when the Six Day War took place, both Israel and Jordan where parties to the Convention, and the Palestinian territory falls, therefore, under its jurisdiction.[38] Finally, the Court focused on the International Covenant on Civil and Political Rights (ICCPR), which “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory;”[39] and the Convention on the Rights of the Child, applicable also to the occupied Palestinian territory because under the jurisdiction of Israel, a State party.[40] Specifically, the construction of the wall and its regime imply a restriction on the right of movement of the inhabitants of the occupied territory, in contrast with Article 12 ICCPR.[41] Moreover, also the rights to work, to health, to education, and to an adequate standard of living, proclaimed by both the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, are hindered by the separation barrier.[42]

The most important point made by the Court, however, regards the alleged intention of Israel to annex parts of the occupied Palestinian territory to the State of Israel. Indeed, the planned route of the wall would have incorporated 16% of the whole territory of the West Bank, an area where the 80% of all the settlers in the West Bank, amounting to about 320,000 individuals, reside.[43] It appears evident to the Court how the route of the wall was designed to incorporate the majority of the settlements.[44] Notwithstanding the denial of such purpose by the Israeli government, the Court retained that the factual situation, although reputed temporary by the government, could well become permanent, in which case “it would tantamount to de facto annexation.”[45] This would also bring to a further alteration of the demographic composition of the West Bank.[46] It would, therefore, amount to annexation of an occupied territory, prohibited by Article 49(6) of the Fourth Geneva Convention. As elucidated by the ICJ, “that provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.”[47] The whole policy involving the establishment and development of settlements in the occupied territory, implemented by Israel since 1977, could, therefore, be deemed illegal.[48] Israel, with the construction of the wall, also violates Article 53, which prohibits the destruction, by the occupying power, of private property.[49] The provision, however, allows the exception for necessity of military operations: the ICJ, nevertheless, did not repute such exception applicable.[50] The Court finally contemplated the necessity of that specific course of the wall for security objectives: the infringement of local Palestinians’ rights “cannot be justified by military exigencies or by the requirements of national security or public order” and Israel is, therefore, violating international humanitarian law and human rights law.[51]

Israel claimed that, while the ICJ relied on information regarding single sections of the barrier, the final advisory opinion considered the fence as a single entity, hence being unbalanced.[52] The proportionality test operated in the Beit Sourik case, instead, had been conducted solely on those 40 kilometres of barrier in question. Moreover, the Israeli government considered that the ICJ opinion was based on reports by UN agencies and special rapporteurs which could be considered “inexact and unbalanced,”[53] given that they overlooked the terrorist attacks already conducted against Israel, the military necessity and the safety of Israeli citizens.[54] Such reports, mostly written in 2003, did not consider, according to Israel, the changes in the factual situations which had occurred in the meanwhile, especially the improvement in the lives of the Palestinian locals.[55]

 

SELF-DEFENCE

Although the High Court decision relies heavily on international humanitarian law,[56] the Court surprisingly did not refer to the fundamental principle of self-defence,[57] which was, instead, pivotal in the advisory opinion which the ICJ released ten days later.[58] The self-defence argument is the most interesting one, given the relevance it has upon the Israeli justification and the academic debate regarding its definition and applicability. The ICJ fully rejected the self-defence argument, adopting a restrictive interpretation of Article 51 of the UN Charter, which recognises a State’s inherent right to individual or collective self-defence. However, the Court retains that such self-defence could only be held against an armed attack by another state, and Israel opposes such status for Palestine. As sustained by the Israeli government, the threats behind the construction of the wall come from within the Palestinian territory, therefore from territory under Israeli occupation and jurisdiction.[59] The ICJ then, proceeded analysing the applicability of the necessity exception, but affirmed not to be “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.”[60] The matter of self-defence is not new to the ICJ and it already redefined the concept more than once: in the Oil Platform case,[61] the Court stated that the right to self-defence ex Article 51 is only triggered in response to a significantly severe attack by another State;[62] in the Nicaragua case,[63] the Court reputed that, to invoke the inherent right to self-defence, there must have been a large-scale use of force by a foreign state or by a non-state actor under the direct control of a state, as it was for the rebel groups in Nicaragua, supported by the United States.[64] The turning point in the interpretation of Article 51 was 9/11: the UN Security Council, on September 12th, adopted Resolution 1368, affirming the right to self-defence to fight threats to international peace and security caused by terrorist attacks,[65] hence affirming the right of self-defence also against non-state actors such as terrorist groups. Nonetheless, “the Charter’s language does not link the right of self-defense to the particular legal personality of the attacker.”[66] However, the ICJ seems to take a step back, considering that Israel could not claim its right to self-defence because it does not consider the Palestinian Authority a State.

Another important matter regards the temporal scope of the armed attack which should trigger the right to self-defence: according to Nicaragua, such attack should be at least imminent, but the discussion among scholars on whether a simple threat already justifies self-defence is still ongoing.[67] Among the international community there is no consensus, while among the Western states there is a preponderance in accepting the so-called anticipatory self-defence.[68] Notably, Israel itself, in 1967, fearing for an imminent attack by the Arab countries, attacked Egypt first on the basis of anticipatory self-defence, starting the Six Day War.

 

CONCLUSION

Never before has an advisory opinion by the ICJ raised such a discussion. Since 2004, the construction of the wall has proceeded and is close to completion, but the matter is still exposed to different political points of view.

In the Beit Sourik case, the Court conducted a detailed proportionality test which exhaustively showed how the security-related purpose of the wall, in that 40-kilometre long segment, did not justify the damages caused to the local Palestinian inhabitants. However, it did not question the actual temporary nature of the barrier, or the self-defence argument advanced by the government. Moreover, although basing its argument on humanitarian law and the principle of proportionality as a fundamental principle of international law, it did not make any reference to international human rights treaties. The ICJ advisory opinion, instead, opted for an analysis of each violation of the inhabitants of the West Bank’s human rights caused by the construction of the entire wall. Surely such human rights violations cannot be questioned, but the Court lacked, as noted by the Israeli government, to conduct a more detailed analysis on each section of the wall, instead of generally establishing that it violates international law as a unitary entity. Israel has faced several terrorist attacks against its citizens, and it has, therefore, the right and duty to intervene to protect their lives, although the measures adopted need, nonetheless, to comply with international law.[69] Therefore, some segments of the fence may, indeed, conform with such norms.

Another disputable point made by the ICJ was the refusal of the self-defence argument, made on the basis of an interpretation of Article 51 which nowadays seems archaic. In our contemporary global environment, with a growing relevance of non-state actors, it is unthinkable to deny the right to self-defence to a state because the attacker is not a state. Less admitted by the global community and still very discussed is, instead, anticipatory self-defence, which Israel already made use of back in 1967.

Nowadays, violations of the Palestinian population’s human rights continue and the route of the barrier still tries to incorporate settlements into the territory of Israel, therefore still, de facto, annexing territory. A new opinion could be deemed necessary, updated to the current situation, almost fifteen years after the first one, more accurate in the analysis of the barrier and more comprehensive of Israel’s military motivations.

 

[1] B’tselem, ‘Arrested Development: The Long Term Impact Of Israel’s Separation Barrier In The West Bank’ (2012) 7. <www.btselem.org/sites/default/files/sites/default/files2/201210_arrested_development_eng.pdf> Accessed 7 January 2019.

[2] Norwegian Refugee Council, ‘The Legality Of The Wall Built By Israel In The West Bank’ (2015) 3. Available at <www.globalprotectioncluster.org/_assets/files/field_protection_clusters/Occupied_Palestinian/files/hlp/the-legality-of-the-wall-built-by-israel-in-the-west-bank.pdf> Accessed 7 January 2019.

[3] M Pertile, ‘Beit Sourik Village Council V. The Government Of Israel: A Matter Of Principle (And Neglected Rules)’ (2005) 65 Zeitschrift Für Ausländisches Öffentliches Recht und Völkerrecht, 679-680. The Seam Zone is the area in between the Green Line and the route of the separation barrier, where most of the Israeli settlements and industries are concentrated.

[4] BBC News, ‘Q&A: What Is The West Bank Barrier?’ (2005)

<http://news.bbc.co.uk/2/hi/middle_east/3111159.stm&gt; Accessed 7 January 2019.

[5] HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel et al., 30 June 2004, §7. English version available at <http://elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf&gt; Accessed 7 January 2019.

[6] Ibid.

[7] ‘The Arab-Israeli War Of 1948’ (Office of the Historian) <https://history.state.gov/milestones/1945-1952/arab-israeli-war&gt; Accessed 7 January 2019.

[8] Norwegian Refugee Council (n 3) 3.

[9] B’tselem (n 2) 7.

[10] A Been, ‘Defence Ministry Official: Fence Won’t Run Along 1967 Line’ Haaretz (29 July 2004) <www.haaretz.com/1.4770474> Accessed 9 January 2019.

[11] HCJ (n 6) §29. The Commander of the IDF Forces in Judea and Samaria, Major General M. Kaplinski, in his affidavit of 19 April 2004, underlined specifically how “it is not a permanent fence, but rather a temporary fence erected for security needs.”

[12] B’tselem (n 2) 8.

[13] Norwegian Refugee Council (n 3) 3.

[14] B’tselem (n 2) 14.

 

[15] ’29 June 2011: Separation Barrier Moved, But Some 1,300 Dunans Of Bil’in Land Remain On The Other Side’ (2011) B’tselem <www.btselem.org/topic-page/29611-1300> Accessed 9 January 2019.

[16] Beit Sourik Village Council v. The Government of Israel (n 6).

[17] Pertile (n 4) 683.

[18] B’tselem (n 2) 9.

[19] Ibid.

[20] HCJ (n 6) para 27.

[21] Ibid.

[22] Ibid. §28.

[23] Ibid. §30.

[24] Ibid. §31.

[25] Ibid. §33.

[26] Ibid.

[27] Ibid. §§37, 39.

[28] Ibid. §34.

[29] HCJ (n 6) §44.

[30] Ibid. §48.

[31] Ibid. §82.

[32] Ibid.

[33] Pertile (n 4) 692.

[34] United Nations General Assembly Resolution 10/14 (12 December 2003).

[35] Norwegian Refugee Council (n 3) 7.

[36] In 1946, the Nuremberg International Military Tribunal stated that the norms of the Hague Convention on land warfare were already recognised by all civilized nations by 1939 (referring to the events of the Second World War) and this statement is considered proof of the character of international custom which these norms nowadays are recognised.

[37] ICJ, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory – Advisory Opinion’ (9 July 2004) I.C.J. Reports 2004, §89.

[38] Ibid. §101.

[39] ICJ (n 38) §111.

[40] Ibid. §113.

[41] Ibid. §134.

[42] Ibid. §134.

[43] Ibid. §122.

[44] Ibid. §119.

[45] Ibid. §121.

[46] Ibid. §122.

[47] Ibid. §120.

[48] Ibid. §120

[49] Ibid. §132.

[50] ICJ (n 38) §135.

[51] Ibid. §137.

[52] Israel Ministry of Foreign Affairs, ‘Unofficial Summary Of State Of Israel’s Response Regarding The Security Fence’ (2005) §17.

<www.mfa.gov.il/mfa/aboutisrael/state/law/pages/summary%20of%20israels%20response%20regarding%20the%20security%20fence%2028-feb-2005.aspx> Accessed 10 January 2019.

[53] Ibid. §16.

[54] Ibid.

[55] Ibid. §19.

[56] Ibid. §26.

[57] Ibid.

[58] Ibid.

[59] ICJ (n 38) §139.

[60] Ibid. §140.

[61] International Court of Justice, Oil Platforms (Iran v. U.S.) (2003).

[62] R Wedgwood, ‘The ICJ Advisory Opinion On The Israeli Security Fence And The Limits Of Self-Defense’ (2005) 99 AJIL, 57.

[63] International Court of Justice, Nicaragua v. U.S. (1986).

[64] S D Murphy, ‘Self-Defense And The Israeli Wall Advisory Opinion: An Ipse Dixit From The ICJ?’ (2005) 99 AJIL, 65.

[65] United Nations Security Council Resolution 1368, 12 September 2001.

[66] R Wedgwood, ‘The ICJ Advisory Opinion On The Israeli Security Fence And The Limits Of Self-Defense’ (2005) 99 AJIL, 58.

[67] M N Dutra Cetusic, ‘Uso De La Fuerza: ¿Conflicto Entre La Prohibición De Su Uso Y La Validez De La Legítima Defensa Preventiva En El Contexto De La Lucha Contra El Terrorismo Organizado?’ (2017) 129 Política y Estrategia, 54.

[68] K T Szabó, Anticipatory Action In Self-Defence: Essence And Limits Under International Law (2011 Springer) 2.

[69] ICJ (n 38) §141.

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