Two Courts and a Wall

O be a judge, you sometimes need to be a good acrobat. You must be able to walk a tightrope between the law on one hand and, on the other, the inclinations of the heart or political exigencies or a combination of both. You have to be able to juggle legal sources like torches. Often you must struggle to extricate yourself from iron cables, locked trunks and straitjackets, which come in the form of situations where reaching a decision seems impossible.

The issue of the separation barrier might well have been like that. On September 15, 2005, however, the Supreme Court of Israel emerged Houdini-like from the maze of knots, a decision in its hands. It had mulled a petition presented by the Association for Civil Rights in Israel and six Palestinians. The latter come from five villages that are trapped inside an artificial enclave, which the barrier creates where it bulges eastward in order to protect – and effectively annex – the settlement of Alfei Menashe. (See map.)

Settlement Map

When the Israeli Supreme Court (ISC) set about writing this decision, the judges must surely have known that they would have to use all their acrobatic skills. They faced an Advisory Opinion by the International Court of Justice (ICJ), which sits in The Hague. In July 2004 the ICJ totally invalidated the Separation Barrier wherever it enters the Occupied Territories. It determined that Israel must cease building it, must dismantle the parts already built, must cancel the special regime created to govern the “seamline areas” between the barrier and the 1967 border, and must compensate all who have been harmed. It bade the nations of the world not to aid the project, to end any effect of the wall that impedes the Palestinian right to self-determination, and to make sure that Israel complies with international law as established in the Fourth Geneva Convention.

The ISC could not ignore this Opinion, emanating as it does from the world’s highest judicial instance in the field of international law. On the other hand, Israel’s justices do not have the power (and some say the courage) to throw their bodies in the path of a national project which is offered as a magical solution for saving innocent lives.

This dilemma produced some interesting contortions, which we shall examine here. The bottom line came out thus. The ISC directed the state to seek an alternative route, so that the enclave would include only Alfei Menashe and a road to Israel, while the five villages would again enjoy unimpeded access to the rest of the West Bank. On the other hand, the court affirmed the state’s right to build the barrier inside the West Bank to protect those of its citizens who are living there.

In presenting its decision, the ISC first spread a safety net. President Aharon Barak explained that any difference between the Israeli ruling and the international one derives not from judicial error, rather from the different factual bases that the two courts had before them. He then elaborated for seven pages about security considerations, including the statistics on Palestinian attacks that were brought before his court. He implied that if The Hague judges had only known about Israel’s security considerations, they would have decided as he did. At this point the apologetic tone receives an arrogant edge, for the judges of the ICJ are well aware of the cycle of bloodshed, which they mentioned in their ruling.

At such a moment it is not the powerful Israeli judicial wizard that we find before us. It is rather the abused Israeli, whose eternal victimhood has been rudely snatched from him by the ICJ. President Barak is accustomed to introduce his rulings, when these concern the Territories, with emotional descriptions of atrocities committed by “human bombs” against women, the elderly and infants. He then tacks on a laconic balancing statement, to the effect that “also on the Palestinian side, the armed confrontation has resulted in many dead and wounded.” But here comes the ICJ and dares to be laconic in the opposite direction, making do with the statement that “Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens - but only in conformity with international law.”

FTER locating the difference between the rulings in varying factual bases, the ISC could declare that there is no difference in the guiding legal norms. The European court simply didn’t get all the facts. On the other hand, it would have been unacceptable to claim that the ICJ, so rich in knowledge and authority, might have made an error in law. If the Israeli court had claimed to know the law better, this would have impugned the legitimacy of its ruling. The statement that it abides by the same legal norms that guided the ICJ is potentially important – but in the present case, we shall see, it often falls short of reality. Let us look at the correspondences and differences.

The Hague court determined that the West Bank counts as “occupied territory” according to international law. This has also been a basic premise of the ISC since 1967.

The Hague court determined that the Occupied Territories fall under two kinds of international law: (1) laws of warfare, including The Hague and Geneva Conventions, and (2) laws protecting human rights, including the international conventions on civil, political, economic, social and cultural rights. Israel's Supreme Court, in contrast, has always refrained from an explicit ruling that the Geneva and human-rights conventions apply de jure in the Territories. De facto, nonetheless, it has imposed them many times on the operations of Israel’s army. It has also imposed them, in effect, in the present decision concerning the section of wall near Alfei Menashe.

The Hague court determined that the seizure of land in the Occupied Territories is permissible only if temporary and only “if rendered absolutely necessary by military operations.” This statement is based on The Hague and Geneva Conventions. The ISC adopted it years ago in a formal sense. In practice, however, it has given extreme latitude to the notions of “temporary” and “necessary.”

Under certain circumstances, international law permits a state to limit human rights. The Hague court found that no such circumstances justify the violations caused by the wall. The ISC too tests the violations of rights, but it does this on a case-by-case basis, with regard to each section of the wall taken separately. In July 2004, such a test led it to condemn a planned segment near the Palestinian village of Beit Sourik.

Concerning East Jerusalem, which is grievously affected by the wall, the Hague court determined that this area is an integral part of the Occupied Territories. The ISC has avoided discussing the status of East Jerusalem explicitly, but in another context it has voiced an opposing view, holding that it is not part of the Occupied Territories.

At the root of the decision at The Hague is a refusal to believe Israel when it proclaims that the wall is temporary and not intended to annex territory. On the contrary, say the judges at The Hague, the wall creates irreversible facts, amounting to a fait accompli that will likely lead to annexation. It thereby violates the UN resolutions that prohibit a state from gaining territory by force (Article [2]4 of the UN Charter, Security Council Resolution 242, and the 1970 Declaration on Principles of International Law). It also undermines the right of the Palestinian people to self-determination. The court here states what is plain to anyone who glances at a map: the wall’s course is planned in order to annex the larger settlement blocs. It is meant to form the border between Israel and the locked-in entity, putatively independent, which Prime Minister Ariel Sharon, in his “peace” speeches, big-heartedly calls “the Palestinian state.”

The decision of the ICJ puts pressure on the ISC. Dust clouds ascend from its chambers, green vapors from the kettles of judicial wizards. Elegance is absent in these contortions. At length, however, we watch the ISC emerge free and clear. For the international court, Barak assures us, did not actually determine that the wall is intended to annex. Rather, it “could not remain indifferent to the fears” that the wall would prejudice the future frontier. It merely “considered” that a fait accompli might be in progress.

Yet another contortion: the settlements

The Hague court determined that the settlements are illegal: the Geneva Convention prohibits the transfer of population from the occupying state to the occupied land. This prohibition is unqualified. The ISC does not dispute the point. It prefers to take refuge in its traditional attitude, avoiding a decision.

However, even if the settlements are illegal, says the ISC, they deserve to be protected by the barrier. In a rhetorical exercise, the Israeli court transforms the issue into the question of the state’s obligation toward illegal sojourners. Even supposing that the settlers are illegally present in the Territories, they have the right to life and bodily integrity. The state, therefore, is obliged to protect them – for example, with a wall. We are suddenly asked to see the settlers in the same class as illegal migrant workers, say a Philippine woman in south Tel Aviv who begs the police to save her from rape. Are the police obliged to do so, although she's illegally there? Of course! So too, with the settlers.

Is the erection of the wall yet another step in the illegal project of perpetuating the settlements, or is it a temporary act to safeguard the well-being of people whose presence in the area is a gambit that was forced on the state? The answer lies, it would seem, in the eyes of the beholder.

The ISC's contortions cut in two directions. The court accepts its government's declarations that this is a "security fence," not a "political barrier," and that it is temporary. But with the same pretense of naiveté, it forces the government to stand behind these declarations.

Why, one may wonder, did the barrier create an enclave so big as to include the five villages? The answer has nothing to do with security, but everything to do with existing plans to expand Alfei Menashe. But expansion is forbidden by international law. In its false naiveté, the court could hardly attribute such evil designs to the government. The latter is assumed to be sincere when it claims security as its sole concern. The state just made a careless mistake. It should seek an alternative route. The costs of tearing down the existing segment don't trouble the court, for it accepts at face value the proclamation that, in any case, the whole affair is temporary.

If the governmental planners aren't wicked, however, they must be idiots. How could they have drawn such a line, when they could easily have drawn another that did not impinge so grossly? In its final contortion, the court seems to think that the planners underwent some sort of "blackout" that caused them to commit this childish mistake. Guiltless but in error, they are sent back to their desks for another try, like a pupil who has failed the test for lack of sufficient effort.

Here ends the performance. Each contortion along the way may have looked somewhat awkward, but the final result arouses admiration. The rules of international law have not been broken (albeit bent here and there). The state has gained its defensive shield while remaining unblemished by any suspicion that it might be interested in annexing territory. Its case that it needs the wall for security has been adopted. A head-on confrontation between court and state has been avoided. The principle of erecting the wall has been approved. The court's standing in the eyes of the public is secured. The requisite respect has been paid to the venerable judges of The Hague, who only lacked a bit of factual background. The operative result obliges the state to keep the wall ever closer to the Green Line, in a manner that will approximate, in effect, the international ruling. The contortionist is exhausted, but he stands erect for the moment, awaiting the next performance. "end"