The Mara’abe judgment, like many Supreme Court judgments in the past decade, reads partly as a judgment and partly as a statement of defense or a polemic. The judgment concerns the legality of the separation wall in the segment south of Qalqiliya. In this particular segment, the wall penetrates deep into the West Bank, surrounds Alfei Menashe and creates territorial contiguity between this settlement and the State of Israel. This enclosure – the “Alfei Menashe enclave” – may, according to plans, expand to include a much larger area even deeper inside the West Bank. It would create a contiguous territory closed in by a wall which includes other settlements such as Karnei Shomron, Yakir, Immanuel and Kedumim, reaches the outskirts of Nablus and tears the West Bank apart.
In the Mara’abe judgment, the Supreme Court sanctions the construction of a wall inside the OPT and the creation of the enclave surrounding the Alfei Menashe settlement
The “Alfei Menashe enclave” contains a number of Palestinian villages which the wall cuts off from the rest of the Occupied Palestinian Territories (OPT). In the Mara’abe judgment, the Supreme Court sanctions the construction of a wall inside the OPT and the creation of the enclave surrounding the Alfei Menashe settlement, but strikes down the wall’s route in view of the existence of a possible alternative route which is less injurious to the Palestinian residents.
The Mara’abe judgment was delivered following a number of Supreme Court judgments that sanctioned the construction of the wall in the OPT, most important among them Beit Sourik,
[1] in which the court laid down its theory regarding the legality of the wall and the manner in which a review of its route is to be conducted. In the time between the Beit Sourik and Mara’abe judgments, the International Court of Justice (ICJ) in The Hague delivered its advisory opinion regarding the legality of the separation wall.
[2] The ICJ held that the construction of the wall contravenes international law, ruling,
inter alia, that Israel must dismantle the segments of the wall which had been completed and compensate the individuals injured by its construction. Much of the Mara’abe judgment focuses on the ramifications of the ICJ’s advisory opinion. It reads as a statement of defense – a defense of Israel and the separation wall it is building and a defense of the Supreme Court’s rulings on this issue.
Then Supreme Court President Aharon Barak, who wrote the judgment, carefully avoided a direct confrontation with the ICJ judges, particularly in an area where they yield greater authority than the Israeli court: the interpretation of international law. He preferred to blame the discrepancies in the results reached by the Supreme Court and the ICJ on issues relating to the nature of the proceedings and the type of evidence presented to the courts. In his words:
Our point of departure is that the basic normative foundation upon which the International Court of Justice in The Hague and the Supreme Court in the Beit Sourik case based their judgments is a common one. Despite that, the two courts reached different conclusions… the difference stems from the different factual basis that was laid before the ICJ on the one hand and the Court in the Beit Sourik Case on the other... the difference in the model of proceedings also contributed to the difference in the outcome.[3]
In other words: according to Barak, the Supreme Court enjoys the advantages of the adversarial process and better access to information, particularly with respect to attacks on Israeli civilians which originated in the West Bank. The Supreme Court conducted a micro-examination of the wall, each part with its unique nature and characteristics, whereas the ICJ conducted a macro-examination. These differences, according to Barak, led to the different results..
This commentary will not delve into the question of whether the judges in The Hague were ignorant of the scope of the attacks that originated in the OPT and injured Israeli civilians. It is reasonable to doubt that this was indeed the case. It is also doubtful that an adversarial process and an individual examination of separate wall segments one by one would have led the ICJ to a different conclusion. This commentary does not go into this issue as well. Instead, I will examine whether the ICJ and the Israeli Supreme Court indeed share the same legal foundation, focusing on the Palestinian people’s right to self-determination.
One of the ICJ’s pivotal reasons for ruling that the separation wall is unlawful was the finding that its construction impedes the Palestinian people from exercising its right to self-determination (para. 122 of the Advisory Opinion).
The ICJ provides detailed grounds for this argument: the right of peoples to self-determination has long since been recognized in international law. It is enshrined in the Charter of the United Nations, human rights conventions, UN decisions and ICJ judgments (para. 88 of the Advisory Opinion). The Palestinian people, whose existence is no longer disputed, also has this right. In fact, Israel itself has recognized the “legitimate rights” of the Palestinian people, which inherently include the right to self-determination, in the Oslo Accords (para. 118 of the Advisory Opinion).
In the context of the Palestinian people’s right to self-determination, the ICJ takes notice of Israel’s acts of annexation in East Jerusalem and its settlement project and holds that these are illegal. The route of the wall leaves most of the settlements, including those in the annexed territory in East Jerusalem, between the wall and the Green Line. The wall’s route is hence the practical expression of Israel’s illegal actions with respect to these issues (paras. 119, 120 and 122).
[I]t is possible that even after Israel acknowledged the Palestinian people’s right to self-determination in the Oslo process, it remains a thorn in the Supreme Court justices’ side
The ICJ refers to Israeli declarations that the wall is temporary, that its construction is not tantamount to annexation of the area between it and the Green Line, that it has no political significance and that it does not change the legal status of the territory. Despite these affirmations, the court rules that the wall may become a
fait accompli and may be tantamount to de-facto annexation (para. 121).
The wall has broad demographic ramifications. It leaves most of the settlers and a large contingent of the Palestinian population between it and the Green Line. Some 160,000 Palestinians are to remain in enclaves. There is concern that the regime governing Palestinians’ lives, which is a result of the wall, would lead to internal migration (para. 122). The ICJ found, on the basis of all the above factors, that the wall reduces the chances that the Palestinian people would be able to exercise its right to self-determination.
How does President Barak address this in the context of his declaration that he is guided by the same normative foundation as the ICJ? President Barak accepts the principle that the West Bank is an occupied territory that may not be annexed, a principle that the Supreme Court of Israel has applied for many years. However, he avoids the question of whether this principle also applies to East Jerusalem. He also evades the question of the legality of the settlements and prefers to look upon the wall not as yet another expression of the illegal settlement project (as the ICJ did), but rather as a measure for protecting the settlers as individuals, until the fate of the settlements is resolved in negotiations.
In applying the prohibition on the annexation of occupied territories to the case before him, Barak opts for an approach that examines the occupier’s subjective considerations: if the purpose of the wall is political, it is unacceptable. If the purpose is security (and the measure is proportionate) the wall may be built subject to other rules, primarily proportionality. Barak quotes paragraph 121 of the ICJ’s advisory opinion, the same section in which the ICJ rules that the wall may create a
fait accompli which is tantamount to de-facto annexation and rules:
[T]he ICJ could have determined that on the basis of the examination of the totality of the fence, it had reached the conclusion that the motivation behind its construction is political and not security-based, and that the intention of the government of Israel in erecting the fence was its desire to annex parts of the West Bank which lay on the “Israeli” side of the fence. The ICJ did not, however, do so; nor was a factual basis placed before it, which would have enabled it to say so. The ICJ came extremely close to this approach [in para. 121 of the Advisory Opinion]… However, this statement – which expressed grave concerns – is not a positive finding that the fence is political and that its objective is annexation.[4]
This reveals a large gap between the normative foundations of the two courts. Whilst the ICJ examines the practical ramifications of the separation wall, namely de-facto annexation and the frustration of the Palestinian people’s right to self-determination, Barak examines the subjective motives of the Government of Israel and entirely validates the (questionable) statements given to the court by the state.
However, what stands out most in President Barak’s polemic is the fact that he entirely ignores the right of the Palestinian people to self-determination. He dedicates almost six pages to the harm caused to the Palestinian residents of the “Alfei Menashe enclave” and the proportionality thereof, but says not a word about the right of the Palestinian people to self-determination and the wall’s impact on it.
When it comes to Israel, he quibbles with the ICJ and demands not only Israel’s right and obligation to maintain public order and protect both national security and the security of its citizens as individuals (a right which is recognized in the ICJ’s opinion), but also the right to self-defense as a collective, under Article 51 of the Charter of the United Nations.
[5] In the ICJ’s view, which may be contested, this right applies to defense against attacks by a foreign country (not those of non-state actors), and does not apply to defense against actions carried out inside a territory under Israel’s control and, therefore, it cannot justify the construction of the wall (paras. 138-139 of the advisory opinion). However, when it comes to the Palestinian people, Barak entirely ignores collective rights and national aspirations and refers only to a collection of rights and needs of individuals living in the area.
Has the Palestinian people’s right to self-determination escaped the President of the Supreme Court? Surely not. It is mentioned in a summary of the ICJ’s judgment which he presents.
[6] Does he not view this right as part of international law? If so, one might have expected him to state so explicitly and support his position. Since he writes that he generally accepts the normative foundation laid by the ICJ, he presumably also accepts the norm whereby Israel may not take measures that would frustrate the Palestinian people’s right to self-determination. However, it is possible that even after Israel acknowledged the Palestinian people’s right to self-determination in the Oslo process, it remains a thorn in the Supreme Court justices’ side: Judicial recognition of the collective rights of the Palestinian people undermines the discourse of a “benevolent occupation”, on which the court wrote the proverbial book. Occupation, by definition undermines the right to self-determination and in that respect, it cannot be “benevolent”.
Or, we might perhaps surmise, in the spirit of Barak’s distinctions, that the different conclusions reached by the ICJ and the Supreme Court are a result of the fact that the Israeli court was not presented with a sufficient
evidentiary foundation on the issue of the Palestinian people’s right to self-determination and the practical impact of the wall on its possible fulfillment…
Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
