1 The present writer has discussed the jurisprudence of the Court in these petitions elsewhere. David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002).

2 See, e.g., id.; Cassese, Antonio, Powers and Duties of an Occupant in Relation to Land and Natural Resources, in International Law and the Administration of Occupied Territories 419 (Emma, Playfair ed., 1992 Google Scholar); Dinstein, Yoram, The Israel Supreme Court and the IJIW of Belligerent Occupation: Reunification of Families, 1988 LSR. Y.B. Hum. Rts. 173 Google Scholar; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Deportations, 1993 ISR. Y.B. Hum. Rts. 1 Google Scholar; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 1996 ISR. Y.B. Hum. Rts. 1 Google Scholar; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses, 2000 ISR. Y.B. Hum. Rts. 285 Google Scholar; Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 89–95 (1990)Google Scholar.

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004)Google ScholarPubMed [hereinafter Advisory Opinion], Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 23 [hereinafter Higgins Opinion]. As Professor Watson mentions, there is no accepted terminology for the barrier. Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 7 n.3 (2005)Google Scholar (in this Agora). The General Assembly used the term “wall,” and the ICJ followed suit, even though this term is highly loaded and was obviously chosen for its political effect. In actual fact, only a small section of the barrier is a wall; in most places it is a fence (together with surrounding trenches and other obstacles). I have chosen to use the term “barrier,” which in my mind most accurately reflects the nature of the “structure.”

4 Higgins Opinion, supra note 3, para. 24.

5 On the distinction between jus strictum and jus aequum in the law of armed conflict, see 2 Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals: The Law of Armed Conflict 129(1968)Google Scholar.

6 Watson, supra note 3, at 24-25.

7 Higgins Opinion, supra note 3, para. 24.

8 SC Res. 452 (July 20, 1979).

9 ICRC, Conference of High Contracting Parties to the Fourth Geneva Convention, Official Statement, para. 5 (Dec. 5, 2001), available at <http://www.icrc.org/Web/Eng/siteengO.nsf/htmlall/57JRGW>.

10 Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration, para. 12 (Dec. 5, 2001), available at <http://www.eda.admin.ch/eda/e/home/foreign/humsec/hupomi/4gc.html>.

11 For the U.S. position, see Letter of the State Department Legal Adviser Concerning the Legality of Israeli Settlements in the Occupied Territories, 17 ILM 777 (1978)Google Scholar. For the position of the European Union, see Declaration by the Presidency on Behalf of the European Union on Israeli Settlement Activities, EU Press Release (Apr. 4, 2001), at <http://www.caabu.org/press/documents/eu-settlements-2001.html>.

12 See, e.g., Benvenisti, Eyal, The International Law of Occupation 140 (1993)Google Scholar; Dinstein, Yoram, SeSferomi and. Expulsion in the Occupied Territories, 6 Tel Aviv U. L. Rev. 188 (1979)Google Scholar (in Hebrew); Roberts, supra note 2, at 84-85.

13 See Israel National Section of The International Commission of Jurists, The Rule of Law in the Areas Administered by Israel 54—55 (1981); Shefi, Dov, The Reports of the U.N. Special Committees on Israeli Practices m the Territories—A Survey and Evaluation, in Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects 285, 313–17 (Meir, Shamgar ed., 1982)Google Scholar.

14 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 49(6), 6 UST 3516, 75 UNTS 287 Google Scholar [hereinafter Fourth Geneva Convention], This is not the only argument against the legality of the settlements. A succinct presentation of the various arguments may be found in International Humanitarian Law Research Initiative, The Legal Status of Israeli Settlements under IHL: Policy Brief (Jan. 2004), available at <http://www.ihlresearch.org/.>

15 See HCJ 606/78, Ayoub v. Minister of Defense, 33(2) P.D. 113 [hereinafter Beth El case]; HCJ 390/79, Dweikat v. Israel, 34(1) P.D. 1 [hereinafter Elon Moreh case]. English translations of these cases may be found in I Military Government in the Territories Administered by Israel, supra note 13, at 371 and 404, respectively. (All further references to these cases are to the English translation.) In the latter case the Supreme Court held that a requisition order for private land to set up a settlement was invalid, as it had been issued for political rather than security reasons, and the intention was that the settlement would be permanent.

16 Elon Moreh case, supra note 15, at 438.

17 Id.; Beth El case, supra note 15. In his decision in the Beth El case, Justice Landau intimated that even if the rule in Article 49(6) had been part of customary law, he would have regarded the general legality of settlements as nonjusticiable, since it was a matter that should be dealt with on the political level. Id. at 389-400.

Israeli courts follow the approach of English law that customary international law is part of the common law of the land that will be enforced by the courts unless contradicted by parliamentary legislation; conventional international law may not be enforced by the courts unless it has been incorporated in the domestic legal system through parliamentary legislation.

18 HCJ 277/84, Ayreib v. Appeals Committee, 40(2) P.D. 57. The Court denied the standing of a Palestinian whose ownership claims in the land had been rejected to challenge the use being made of the land. When Peace Now submitted a petition to the Court challenging the legality of the whole settlement policy on a variety of grounds, the Court ruled that such a general petition was nonjusticiable. HCJ 4481/91, Bargil v. Israel, 47(4) P.D. 210, Eng. trans, at <http://62.90.71.124/eng/verdict/framesetSrch.html>. For the provision of the Hague Regulations, see Regulations Respecting the Laws and Customs of War on Land, Art. 55, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

19 HCJ 2056/04, Beit Sourik Village Council v. Israel (June 30, 2004), 43 ILM 1099 (2004).

20 The route was also close to the Jerusalem suburb of Ramot, part of which lies in the portions of greater Jerusalem annexed by Israel in 1967; Mevasseret, which lies in Israel; and Maccabim, which was built on territoiy that was no-man’s-land between 1949 and 1967.

21 Beit Sourik, supra note 19, para. 29 (emphasis added).

22 Advisory Opinion, supra note 3, paras. 90-101. The government of Israel has consistently contested the formal application of the Fourth Geneva Convention, although it has declared that Israeli forces would respect its humanitarian provisions. See Shamgar, Meir, The Observance of International IMW in the Administered Territories, 1971 ISR. Y.B. Hum. Rts. 262 Google Scholar; Nissim, Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (the West Bank) and to the Gaza Strip, 24 ISR. L. Rev. 485 (1988)Google Scholar. The Supreme Court of Israel has never ruled on the question of the Convention’s applicability, since it has held that controversial provisions (mainly paragraphs 1 and 6 of Article 49) are not reflective of customary international law. KRETZMER, supra note 1, at 35-40. As Professor Watson points out, in recent years the Court has been prepared to assess whether actions of the military are compatible with the Fourth Geneva Convention, without formally deciding either whether the Convention applies de jure, or whether the relevant provisions are reflective of customary law. This practice has allowed the Court to enjoy the best of both worlds: it could apply the Convention without formally challenging the view, adopted by the government of Israel in international fora, that the Geneva Convention does not apply de jure. While this approach may not be satisfying from the legal point of view, it is probably politically astute. Judging from the way the Court has used similar tactics in other fields, after a while the caveat (that the parties concerned have agreed to application of the Convention) may well fall aside, and the Convention will be applied as a matter of course.

23 It was perhaps somewhat surprising that the International Court applied the one-year rule, even though this rule is regarded as somewhat of an anomaly. See Roberts, supra note 2, at 55-57; Shany, Yuval, Epilogue to The Separation Seam: A Multidisciplinary View 86,96 Google Scholar (Concord Research Center for the Interplay Between International Norms and Israeli Law, 2004) (in Hebrew). The rule was abrogated by Article 3(b) of Additional Protocol I. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I]. Although Israel is not a party to the Additional Protocol, it has never relied on the one-year rule. In HCJ 7015/02, Ajuri v. IDF Commander, 56(6) P.D. 352, Eng. trans, at <http://62.90.71.124/eng/verdict/framesetSrcti.html>, the Supreme Court expressly relied on Article 78 of the Convention, even though this is one of the provisions that does not apply after the one-year rule comes into play. One question that was not addressed by the International Court is whether the “military operations” mentioned in Article 6(3) are restricted to the original military operations that led to the occupation. What happens if there is a recurrence of military operations? This question is raised by Roberts, supra, at 55, and by Michael, J. Dennis, Application of Human Rights Treaties in Times of Armed Conflict, 99 AJIL 119, 133–34 (2005)Google Scholar (in this Agora). See also Imseis, infra note 41.

24 Advisoiy Opinion, supra note 3, para. 120.

25 According to Article 4 of the Fourth Geneva Convention, supra note 14, nationals of the occupying power are not regarded as protected persons.

26 BENVENISTI, supra note 12, at 140.

27 Rome Statute of the International Criminal Court, July 17,1998, Art. 8(2)(b) (viii), UN Doc. A/CONF. 183/9* (1998), 37 ILM 999 (1998)Google ScholarPubMed, corrected through Jan. 16, 2002, at <http://www.icc-cpi.int>. Violation of Article 49(6) was not included among acts that amount to grave breaches under Article 147 of the Fourth Geneva Convention. Under Article 85, paragraph 4(a) of Additional Protocol I to the Geneva Conventions, supra note 23, violation of Article 49(6) was added to the list of grave breaches. However, since Israel is not a party to the Additional Protocols, this amendment does not bind it. Israel is also not a party to the Rome Statute.

28 See Shany, supra note 23, at 97.

29 Advisory Opinion, supra note 3, para. 120.

30 UN Commission on Human Rights, Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, paras. 27-28, UN Doc. E/CN.4/2004/6/Add.l (addendum to the special rapporteur’s report of Sept. 8, 2003).

31 Beit Sourik, supra note 19, para. 27.

32 Strong evidence for this was recently provided by Zipi Livni, a minister in the Sharon government, in an interview published in the daily Haaretz. Ms. Livni stated:

Gideon Alon, ‘I’ll Take Existence,’ HAARETZ, Sept. 20, 2004 (all cites herein to this Israeli daily are to the English language edition).

33 Written Statement of the Government of Israel on Jurisdiction and Propriety 5 (Jan. 30, 2004), Advisory Opinion, supra note 3, available at <http://www.icj-cij.org>.

34 Id.

35 Advisory Opinion, supra note 3, para. 116.

36 Id., para. 121, in which the Court states:

37 Id.

38 See Higgins Opinion, supra note 3, para. 31 (stressing that the barrier does not at the present time constitute, per se, a de facto annexation). But cf. Separate Opinion of Judge Koroma, Advisory Opinion, supra note 3, 43 ILM at 1056, para. 2. Judge Koroma opines that the construction of the barrier has involved annexation of parts of occupied territory by Israel. He does not contend with Israel’s argument that the barrier is temporary and is being built only for security purposes, but takes the view that anything that changes the character of the occupied territory is illegal. As a variation on its view that construction of the barrier around the settlements could become permanent, the Court also mentions that by giving expression in loco to the illegal settlements, Israel was impeding the exercise by the Palestinians of their right to self-determination. Advisory Opinion, supra, para. 122. The weakness of this argument was exposed in the Higgins Opinion, supra, para. 30, and the Separate Opinion of Judge Kooijmans, Advisory Opinion, supra, 43 ILM at 1065, paras. 31-32 [hereinafter Kooijmans Opinion].

39 This conclusion can most clearly be drawn from Judge Buergenthal’s statement that as the settlements are illegal, segments of the wall being built to protect them “are ipso facto in violation of international humanitarian law.” Advisory Opinion, supra note 3, Declaration of Judge Buergenthal, 43 ILM at 1078, para. 9 [hereinafter Buergenthal Declaration]. And see the view of Professor Dugard, UN Commission on Human Rights, supra note 30, para. 26.

40 The argument that the situation obtaining in the occupied territories is one of active armed conflict is discussed below.

41 See Shany, supra note 23, at 93. Shany argues that by intimating that in an armed conflict a state is prohibited from taking measures to protect acts done illegally in the past, the Court confused the fundamental distinction between jus ad bellum and jus in bello. In his contribution to this Agora, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, 99 AJIL 102, 112 n.52 (2005)Google Scholar, Ardi Imseis takes issue with my argument. He overstates my position, which is only that it is not self-evident that the fact that the settlements were established in violation of international law means that any measures to protect civilians in those settlements are necessarily illegal. It was therefore incumbent on the ICJ to explain why segments of the barrier that were constructed to protect persons in the settlements were unlawfully constructed, even if no specific norms of IHL (such as the prohibition on confiscation of private property) were violated. If one takes Imseis’s view, one is led to the conclusion that the Israeli forces are prevented from lifting a finger to defend civilians in the settlements. This would seem to be an unacceptable conclusion, especially if one accepts (as Imseis does) that there has not been a close to military operations in the occupied territories. It becomes even more unreasonable if one takes into account that under the Oslo Accords and subsequent agreements between Israel and the PLO, the status of the settlements was to be decided in the final agreement between the parties. See Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Art. V(3) & Annex II, Isr.-PLO, 32 ILM 1525 (1993)Google ScholarPubMed. Pending such an agreement, Israel retained’ responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility.” Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Art. XII, Isr.-PLO, 36 ILM 551 (1997)Google Scholar.

The maxim ex injuria jus non oritur, cited in the separate opinion of Judge Elaraby and supported by Imseis, has limited application in the law of armed conflict. First, an occupying power acquires powers rather than rights. Second, this law rests on the fundamental distinction between jus ad bellum and jus in bello. Whether an occupation was lawful or not has no influence on the powers and duties of the occupant. See Trial of Wilhelm List and Others (1948), 8 Law Reports of Trials of War Criminals 34, 59 (1949). The situation should be no different in a less radical situation in which the occupying power has in the past violated norms of IHL in the occupied territories.

42 On this point it is worth citing the remark of Judge Higgins that

Higgins Opinion, supra note 3, para. 19. Common Article 3 of the Geneva Conventions, which lays down the minimum standards to be applied by all parties even in noninternational armed conflicts, prohibits violence to life and person of persons taking no active part in hostilities “at any time and in any place whatsoever.” See, e.g., Fourth Geneva Convention, supra note 14, Art. 3.

43 Advisory Opinion, supra note 3, paras. 133, 134. In the latter paragraph the Court summarizes its opinion and states: “Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above.” The Court failed to mention paragraphs 1 and 2 of Article 49, which would seem to be more pertinent when the changes in the demographic composition of the occupied territories are effected by the forcible removal of local residents. The Court cited evidence that the barrier had forced local Palestinian residents to depart from certain areas. Id., para. 133. In these circumstances one would have expected the Court to examine whether this amounted to a forcible transfer, prohibited under paragraph 1 of Article 49, and if so, whether the exception in paragraph 2, permitting evacuation for the population’s security or imperative military reasons, applied.

44 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31, 1155 UNTS 331.

45 The Supreme Court of Israel would seem to have fallen into a similar trap in deciding which acts are covered by Article 49(1) of the Convention, which prohibits deportation of protected persons from occupied territory. The Court held that as the basis for this provision was the experience with the deportations carried out by the Nazis, only acts such as those are covered by the prohibition. I have criticized this view elsewhere. KRETZMER, sup a note 1, at 43-52.

46 The Court took the position that international human rights conventions to which Israel is a party bind it in its actions in the occupied territories. The present writer has no problem with this position, which, as the Court itself pointed out, has been adopted by the UN Human Rights Committee. But see Dennis, supra note 23.

47 Beit Sourik, supra note 19. This point was appreciated by Judge Kooijmans, who remarked in his separate opinion drat “construction of the wall should also have been put to the proportionality test, in particular since the concepts of military necessity and proportionality have always been intimately linked in international humanitarian law.” Kooijmans Opinion, supra note 38, para. 34.

48 This point has recently been developed in an essay by Eyal Benvenisti, The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective, at <http://www.tau.ac.il/law/members/benvenisti/articals/amos.doc> (visited Sept. 27, 2004); see aho SCHWARZENBERGER, supra note 5, at 259; Cassese, supra note 2, at 422.

49 Hague Regulations, supra note 18, Arts. 23(g), 46, 52.

50 UN Commission on Human Rights, supra note 30, para. 29.

51 Beit Sourik, supra note 19, para. 32.

52 Higgins Opinion, supra note 3, para. 23.

53 SCHWARZENBERGER, supra note 5, at 253, 314; see also ICRC, Commentary on the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 301 (Jean Pictet gen. ed., 1958) (expressing the view that Article 23(g) of the Hague Regulations is wider than Article 53 of the Fourth Geneva Convention, as it covers all parties involved in war, while Article 53 is concerned only with occupied territories) [hereinafter ICRC COMMENTARY],

54 Report of the United Nations High Commissioner for Human Rights on Her Visit to the Occupied Palestinian Territories, Israel, Egypt, and Jordan (8-16November 2000), UN Doc. E/CN.4/2001/114, para. 73 (2000), available at <http://ap.ohchr.org/documents/alldocs.aspx?doc_id=2260> (describing the position as presented to the high commissioner by senior officers of the Israel Defense Forces); The Mitchell Report: Report of the Sharm el-Sheikh Fact-Finding Committee (Apr. 2001), available at <http://Ww.mideastweb.org/mitchell_report.htm> (quoting statements submitted by the government of Israel). The wording of the government claim was somewhat unfortunate and confusing, as it assumed that there is a difference between armed conflict and war. It seems, however, that the intention was to claim that there were active hostilities that amounted to an armed conflict but that did not involve another state. In other words, the claim was that a noninternational armed conflict was taking place.

55 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, para. 70 (Oct. 2, 1995).

56 See HCJ 3239/02, Marab v. IDF Commander, 57(2) P.D. 349;Ajuri, supra note 23; HCJ 3451/02, Almadani v. Minister of Defense, 56(3) P.D. 30. English translations of these cases are available at <http://62.90.71.124/eng/verdict/framesetSrch.html>.

57 UN Commission on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine: Report of the Human Rights Inquiry Commission, UN Doc. E/CN.4/2001/121, paras. 39-40, available at <http://ap.ohchr.org/documents/alldocs.aspx?doc_id=2260>.

58 See, e.g., Orna, Ben-Naftali & Michaeli, Keren, “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233 (2003)Google Scholar; Kretzmer, David, Targeted Killings of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Self-Defense? 16 Eur. J. Int’l L. (forthcoming 2005)CrossRefGoogle Scholar.

59 Advisory Opinion, supra note 3, para. 124.

60 As mentioned above, Schwarzenberger takes the view that provisions relating to the destruction and seizure of private properties during fighting apply to occupied territories. He argues that this interpretation is required when military operations become necessary in the case of a local rebellion or operations against partisans. SCHWARZENBERGER, supra note 5, at 257.

61 Advisory Opinion, supra note 3, para. 139.

62 This was indeed the view taken explicitly by Judge Kooijmans. Kooijmans Opinion, supra note 38, paras. 35-36.

63 The Court’s approach on this issue was criticized by Judge Buergenthal in his declaration and by Judges Higgins and Kooijmans in their separate opinions. Buergenthal Declaration, supra note 39, paras. 5-6; Higgins Opinion, supra note 3, paras. 33-34; Kooijmans Opinion, supra note 38, paras. 35-36; see also Pomerance, Michla, The ICJ’s Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial, 99 AJIL 26 (2005)CrossRefGoogle Scholar (in this Agora).

64 In an expert opinion submitted to the Supreme Court of Israel in support of a petition challenging the legality of “targeted killings,” Professor Antonio Cassese states that the applicable law to the violent conflict between Israel and armed Palestinian groups “is the body of international customary and treaty rules relating to international armed conflicts, in particular to occupatio bellica of foreign territory.” Cassese proceeds to rely in his opinion on provisions that relate to active hostilities in international conflicts. Cassese, Antonio, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law 2 (June 13, 2003)Google Scholar, in HCJ Petition 769/02 (on file with author). On the other hand, the UN Human Rights Inquiry Commission thought that if an armed conflict existed, it should be regarded as a noninternational conflict, as only one state was involved. UN Commission on Human Rights, supra note 57, para. 39. (The members of the Commission were Professor John Dugard, Professor Richard Falk, and Dr. Kamal Hossain.)

65 See SCHWARZENBERGER, supra note 5, at 245, who explains that in the law of peace confiscation means unlawful expropriation, i.e., expropriation for reasons other than the public interest and without adequate compensation. He concedes, however, that in the law of war any interference with private property is regarded as illegal confiscation, subject to three exceptions: requisition, seizure of certain types of property mentioned in Article 53(2) of the Hague Regulations, and expropriation for die public benefit under the local law. Id. at 266; see also Canada, Judge Advocate General, The Law of Armed Conflict at The Operational and Tactical Levels § 1238 (2003), available at <http://www.forces.gc.ca/jag/traming/pubHcaUons/law_of_anned_conflict/loac_2004_e.pdf> (defining confiscation as the “taking of enemy public movable property without the obligation to compensate the state to which it belongs”).

66 See 2 Oppenheim’s International Law, para. 140 ( Hersch, Lauterpacht ed., 7th ed. 1952 Google Scholar); SCHWARZENBERGER, supra note 5, at 266; Gerhard, Von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)Google Scholar.

67 See SCHWARZENBERGER, supra note 5, at 266; Cassese, supra note 2, at 421.

68 See Beit Sourik, supra note 19, para. 27; HCJ 393/82, Jam’iat Ascan Elma’almoon Eltha’aooniah Elmahduda Elmaoolieh v. Commander of IDF Forces, 37(3) P.D. 785, 795, summarized in Eng. in 1984ISR. Y.B. Hum. Rts. 301.

69 Hague Regulations, supra note 18, Art. 52.

70 Beth El case, supra note 15.

71 Id. at 390-92.

72 Oppenheim’s International Law, supra note 66, para. 147. Lauterpacht claims that the quartering of soldiers in private houses may be regarded as a special kind of requisition in kind.

73 Id., para. 140.

74 SCHWARZENBERGER, supra note 5, at 266.

75 Id. at 245-46, 269.

76 See ICRC COMMENTARY, supra note 53, at 301; Von Glahn, supra note 66, at 186; Hans-Peter, Gasser, Protection of Civilians, in The Handbook of Humanitarian Law in Armed Conflicts 262 (Dieter, Fleck ed., 1995)Google Scholar; see also UK Ministry of Defence, The Manual of the Law of Armed Conflict, para. 11.78 (2004).

77 See SCHWARZENBERGER, supra note 5, at 245-46 (stating that the term “needs of the army of occupation” was “intentionally chosen as being narrower than necessities of war or military necessities”).

78 Beth El case, supra note 15, at 391-92. The Court relied for this interpretation on authorities who mention that the term “needs of the army of occupation” was employed to stress that property in occupied territory may not be exploited for the war economy of the occupying power. This view does indeed have some support, see SCHWARZENBERGER, supra note 5, at 270. In later cases the Court refined its approach by clarifying that security needs must be given a narrow interpretation, and do not include the national, economic, or social interests of the occupying power, or security interests based on a broad political agenda. Jam’iat Ascan Elma’almoon Eltha’aooniah Elmahduda Elmaoolieh, supra note 68, at 794; Elon Moreh case, supra note 15, at 422.

79 Beth El case, supra note 15.1 have criticized this approach elsewhere. KRETZMER, supra note 1, at 8$; see also Gasser, supra note 76, at 262. In the Elon Moreh case, supra note 15, the Court qualified this ruling when it held that if the dominant purpose in establishing the settlement was political, it was illegal to requisition land for the settlement even if the army claimed that the settlement would fulfill a security function.

80 Beit Sourik, supra note 19, para. 32.

81 SCHWARZENBERGER, supra note 5, at 276, emphasizes that in the case of immovable property, all that the occupying power really needs is possession, as opposed to title.

82 See Beit Sourik, supra note 19, para. 32; Beth El case, supra note 15, at 390.

83 Advisory Opinion, supra note 3, para. 132.

84 Higgins Opinion, supra note 3, para. 24.

85 Advisory Opinion, supra note 3, para. 135.

86 Fourth Geneva Convention, supra note 14, Art. 53.

87 Advisory Opinion, supra note 3, para. 135.

88 See id., Separate Opinion of Judge Owada, 43 ILM at 1091 Google ScholarPubMed, para. 25 [hereinafter Owada Opinion].

89 The Court dealt with the general defense of necessity but stated that it would not consider whether this defense applies to norms of IHL. Advisory Opinion, supra note 3, para. 140. Judge Higgins intimated that she supports the generally accepted (and, I would argue, correct) approach that as norms of IHL already incorporate considerations of military necessity, the general defense of necessity cannot be raised against violations of IHL. Higgins Opinion, supra note 3, para. 14.

90 Advisory Opinion, supra note 3, para. 140.

91 Report of the International Law Commission on the Work of Its Thirty-second Session, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, at 32 Google Scholar, para. 27, UN Doc. A/CN.4/SER.A/1980/Add.l(Part 2). The ILC added that “what is involved is certainly not the effect of ‘necessity’ as a circumstance precluding the wrongfulness of conduct which the applicable rule does not prohibit, but rather the effect of ‘non-necessity’ as a circumstance precluding the lawfulness of conduct which that rule normally allows.” Id.

92 Id.

93 Greenwood, Christopher, Historical Development and Legal Basis, in The Handbook of Humanitarian Law in Armed Conflicts, supra note 76, at 1, 33 Google Scholar.

94 See Owada Opinion, supra note 88, para. 22; Buergenthal Declaration, supra note 39, para. 3.

95 Judge Higgins was obviously aware of this problem and tried to circumvent it by relying on the burden of proof. She ended her separate opinion by stating that Israel had not “explained to the United Nations or to this Court why its legitimate security needs can be met only by the route selected.” Higgins Opinion, supra note 3, para. 40. The validity of this answer was challenged by Judge Buergenthal. He opined that in the context of an advisory opinion it was improper for the Court to base legal conclusions on the failure of a state to provide information necessary for the Court to make a finding well based in law, when that state was not a party to the proceedings, and had no legal obligation to appear before the Court or to provide it with information. Buergenthal Declaration, supra note 39, para. 10.

96 Owada Opinion, supra note 88, para. 24.

97 Id., para. 31.

98 See the remark of Judge Higgins that “the Court’s findings of law are notably general in character, saying remarkably little as concerns the application of specific provisions of the Hague Rules or the Fourth Geneva Convention along particular sections of the route of the wall.” Higgins Opinion, supra note 3, para. 40.

99 Buergenthal Declaration, supra note 39, para. 5.

100 This was also the view of Judge Elaraby, who stressed that military necessity could possibly justify construction of the barrier, but not the destruction and demolition of property that accompanied the construction process. Advisory Opinion, supra note 3, Separate Opinion of Judge Elaraby, 43 ILM at 1081 Google ScholarPubMed, para. 3.2.

101 See BENVENISTI, supra note 12, at 214. Compare International Humanitarian Law Research Initiative, The Separation Barrier and International Humanitarian Law: Policy Brief (July 2004), available at <http://www.ihlresearch.org/>, which states that “the state of necessity refers only to situations that are within the occupied territory, and facing the occupying power in the course of occupation.” Contrary to the view presented by Ardi Imseis in this Agora, supra note 41, at 112 n.52, it does not seem to me that this brief supports the thesis that an occupying power may not take measures in the occupied territory whose object is to defend the territory of the occupying power from attacks originating in the occupied territory. Such a thesis ignores the fact that the law of occupation is part of the law of armed conflict. Becoming an occupying power in the course of an armed conflict cannot prevent a state from taking measures in the occupied territory necessary to protect the population in its own territory against attacks originating in the occupied territory. See SCHWARZENBERGER, supra note 5, at 178. See also UK MINISTRY OF DEFENCE, supra note 76, para. 11.78, which expressly states that temporary military use of land in occupied territory includes “construction of defensive positions.” Even Pellet, whose article is cited by Imseis as the main source for his view that the occupying power is restricted to measures to protect its own forces, stresses that his view relates to a situation in which military operations have ceased. Pellet, Alain, The Destruction of Troy Will Not Take Place, in International Law and the Administration of Occupied Territories, supra note 2, at 169, 198 Google Scholar. Rejecting defense of the occupying power’s population from attack as a legitimate military objective leads to conclusions that expose the fallacy of the thesis. Assume, for example, that mortars fired from the occupied territory threaten civilians in the territory of the occupying power but not the security of its troops in the occupied territory. Would the occupying power be prohibited from taking any measures to stop those attacks? If the answer is negative, the question necessarily becomes which measures are lawful. As indicated in the text, this depends on whether they violate jus strictum norms or other standards of IHL, first and foremost of which is the requirement of proportionality. Examining whether a particular measure meets these standards is not the same as challenging whether the purpose of the measures is a legitimate military objective.

102 See Doris, Appel Graber, The Development of the Law of Belligerent Occupation 1863-1914: A Historical Survey 243–45 (1949)Google Scholar. Graber traces the discussions on the question of requisitions and contributions that preceded adoption of the Hague Regulations and shows that the term “needs of the army of occupation” was adopted in this specific context.

103 Fourth Geneva Convention, supra note 14, Art. 64(2) (emphasis added).

104 See the article by Israel’s foremost military commentator, Ze’ev Schiff, Full of Mistakes—Until the Court Ruled, HAARETZ, Sept. 21, 2004. See also Yoaz, Yuval, Constructed Section offence to Be Reviewed, High Court Told, Haaretz, Sept. 13, 2004 Google Scholar.

105 As Professor Watson mentions, supra note 3, at 25, in a case dealing with the barrier that came before the Supreme Court after the advisory opinion was delivered, the Court demanded that the state inform it of its attitude to the ICJ opinion, and declared that it was clear that it would have to give it due consideration. Yoaz, Yuval, Mazuz: Hague Ruling on Fence Could Lead to Sanctions on Israel, Haaretz, Aug. 20, 2004 Google Scholar.

106 See Buergenthal Declaration, supra note 39, para. 3.