1 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST3516, 75 UNTS 187 Google Scholar (entered into force Oct. 21, 1950) [hereinafter Fourth Geneva Convention].

2 On this point, I fully endorse the analysis and opinion offered by Richard, A. Falk, Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall, 99 AJIL 42 (2005)Google Scholar (in this Agora).

3 See Imseis, Ardi, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int’l L.J. 65 (2003)Google Scholar. The law of belligerent occupation is governed in large part by Hague Convention [No. FV] Respecting the Laws and Customs of War on Land, and annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631, as well as the 1949 Fourth Geneva Convention. Various aspects of the law of belligerent occupation are also codified in specific provisions of the 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, and the Rome Statute of the International Criminal Court, July 17,1998, UN Doc. A/CONF. 183/9*, 37ILM 999 (1998)Google Scholar, corrected through Jan. 16, 2002, at <http://www.icc-cpi.int/> [hereinafter Rome Statute].

4 While the belligerent occupant may amend local legislation in occupied territory, it may do so only to the extent reasonably required to provide for the protection of the local civilian population and the security of its armed forces. Although the law of belligerent occupation, particularly as codified in the Fourth Geneva Convention, has progressively attempted to strike a balance between the rights of the occupier and those of the occupied, its “overriding aim” is to “ensure that claims of military exigency do not result in the violation of basic political and human rights of the civilians under military occupation.” United Nations Committee on the Exercise of the Inalienable Right of the Palestinian People, The Question of the Observance of the Fourth Geneva Convention of 1949 in Gaza and the West Bank Including Jerusalem Occupied by Israel in June 1967, at 1 (1979) [hereinafter Question of the Fourth Convention]; see also text at note 34 infra.

5 Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 12 (2005)Google Scholar; see also Imseis, supra note 3, at 93-101. For a list of the other main treaties governing the law of belligerent occupation, see supra note 3. While the Supreme Court of Israel has held since 1988 that the 1907 Hague Regulations apply to the OPT because they form part of customary international law, it has consistently maintained that the Fourth Geneva Convention is not justiciable in Israeli courts because it constitutes treaty law as opposed to customary law, and has not been formally incorporated into Israeli municipal law by an act of the Israeli Knesset.

6 Question of the Fourth Geneva Convention, supra note 4, at 11-12. For a demonstrative list of relevant Security Council and General Assembly resolutions to this effect, see Imseis, supra note 3, at 97 n.283 & 98 n.285.

7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 101 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004)Google ScholarPubMed [hereinafter Advisory Opinion].

8 In noting the Court’s reliance on the report of the secretary-general, I do not wish to be taken as criticizing it for failing to take notice of other “unofficial” Israeli positions on the subject not reflected therein. On the evidentiary question, I am in full agreement with the views expressed in the separate opinion of Judge Kooijmans, where he stated that

Advisory Opinion, supra note 7, Separate Opinion of Judge Kooijmans, 43 ILM at 1065, para. 28 [hereinafter Kooijmans Opinion].

9 Advisory Opinion, supra note 7, para. 90.

10 Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/13, at 8, UN Doc. A/ES-10/28 (2003), available at <http://www.icj-cij.org>. But see comments in note 8 supra. In fact, Egypt only administered and did not annex the Gaza Strip. For Israel’s position on the applicability of the Fourth Geneva Convention to t h e OPT, see Stone, Julius, Israel and Palestine: Assault on the Law of Nations 177–78, 209 n.2 (1981)Google Scholar; Blum, Yehuda, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 ISR. L. REV. 279(1968)CrossRefGoogle Scholar; Shamgar, Meir, The Observance of International Law in the Administered Territories, 1971 ISR.Y.B. Hum. Rts. 262 Google Scholar. For critiques of that position, see Mallison, W. Thomas & Mallison, Sally V. , The Palestine Problem in International Law and World Order 252–62 (1986)Google Scholar; Falk, Richard & Weston, Burns, The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza, in International Law and the Administration of Occupied Territories 132, 132 (Emma, Playfair ed., 1992)Google Scholar [hereinafter ADMINISTRATION]; Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories 1967-1988, in id. at 25 Google Scholar.

11 This point is briefly touched on by Watson, supra note 5, at 12.

12 See STONE, supra note 10, at 177-78, 209 n.2; Blum, supra note 10; Shamgar, supra note 10.

13 Question of the Fourth Geneva Convention, supra note 4, at 4-6; see also The Colonization of the West Bank Territories by Israel: Hearing Before the Subcomm. on Immigration and Naturalization of the Senate Comm. on the Judiciary, 95th Cong. 35 (1978)Google Scholar (statement of Yehuda Blum).

14 MALLISON & MALLISON, supra note 10, at 254.

15 Id. at 255.

16 Advisory Opinion, supra note 7, para. 95.

17 Id., para. 125 (emphasis added).

18 I emphasize “as a matter of treaty law” because to the extent that any of these other protections form part of customary international law, Israel is still bound by them. Having said that, one should not discount the importance of establishing the applicability of these protections under treaty law, a separate and distinct source of international law with legal implications quite different from those associated with custom. As noted by Professor Brownlie, “even if norms of treaty origin crystallize as new principles or rules of customary law, the customary norms retain a separate identity even if the two norms appear identical in content.” Ian Brownlie, Principles of Public International Law 14 (6th ed. 2003).

19 Rome Statute, supra note 3, Art. 8; see also Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex, Art. 2 (1993), reprinted in 32 ILM 1192 (1993)Google ScholarPubMed; Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, Arts. 3, 4 (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994)Google Scholar.

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

21 The existence of the Palestinian Authority (PA) created through the Oslo Accords is irrelevant as a matter of public international law on this point. Israel’s status as the occupying power in the whole of the OPT was not extinguished by the Oslo Accords, which expressly provided that the “two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity of which will be preserved during the interim period.” Agreement on the Gaza Strip and the Jericho Area, Isr.-PLO, May 4, 1994, Art. XXIII(6), 33 ILM 622 (1994)Google Scholar. Further, under the law of belligerent occupation, so long as the occupying power retains effective control over the occupied territory, as has Israel, its status as belligerent occupant does not end. See 1907 Hague Regulations, supra note 3, Art. 42. This status remains unchanged even when the belligerent occupant evacuates parts of the territory, so long as it is able “at any time” to reassume control over those parts. Trial of Wilhelm List and Others, 8 Law Reports of Trials of War Criminals 34, 56 (1949). On this point, the ICJ was clear in its opinion that the whole of the OPT “remain[s] occupied territories and Israel has continued to have the status of occupying Power,” noting that “ [subsequent events in these territories”—including the establishment of the Palestinian Authority—”have done nothing to alter this situation.” Advisory Opinion, supra note 7, para. 78.

22 Fourth Geneva Convention, supra note 1, Art. 6.

23 Indeed, this interpretation is supported by the International Committee of the Red Cross (ICRC) Commentary on Article 6 of the Fourth Geneva Convention. In considering the meaning of the words “general close of military operations,” the Commentary notes that

ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary 62 (Jean, Pictet gen. ed., 1958)Google Scholar (footnotes omitted), available at <http://www.icrc.org> [hereinafter ICRC COMMENTARY].

24 To underscore the point: the possible outbreak of subsequent military conflict is here central. While one would think that such an outbreak would either revive or renew the legal state of affairs that existed prior to the “general close of military operations,” triggering the complete applicability of the Convention, the Court’s unilateral application to that test of the qualifying language “leading to the occupation” renders this line of approach unfeasible because it has the effect of limiting the test temporally. Of course, this limiting language does not exist in Article 6, and based on the ordinary meaning of the terms of that article, no such limitation can be imputed. See text at note 20 supra.

25 According to Professor John Dugard, the UN special rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, “the Israel Defence Forces (IDF) have carried out intensified military incursions into the Gaza Strip” during the course of which

Dugard also pointed out that the construction of the wall in the OPT has less to do with security than with the “incorporation of settlers within Israel,” the “confiscation of Palestinian land,” and the “encouragement to Palestinians to leave their lands and homes by making life intolerable for them.” UN Commission on Human Rights, Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, UN Doc. A/59/256, at 2, 3 (2004) (interim report).

26 This view finds some support in the ICRC Commentary on the Fourth Geneva Convention. In explaining the rationale of the 1949 Diplomatic Conference in declaring in Article 6 that the Convention shall cease one year after the general close of military hostilities in occupied territory, the Commentary notes that

ICRC COMMENTARY, supra note 23, at 62-63.

27 Advisory Opinion, supra note 7, Separate Opinion of Judge Elaraby, 43 ILM at 1081, para. 3.3 [hereinafter Elaraby Opinion].

28 Id.

29 See supra note 18.

30 Documents on the laws of War 10 (Roberts, Adam & Richard, Guelff eds., 3d ed. 2000)Google Scholar [hereinafter DOCUMENTS].

31 U.S. Dep’t of the Navy (jointly with U.S. Marine Corps & U.S. Coast Guard), The Commander’s Handbook on the Law of Naval Operations 5-1 (NWP 1-14M, 1995), quoted in DOCUMENTS, supra note 30, at 10; see also Falk & Weston, supra note 10, at 136 (noting that “[i]n our modern era of mechanized and automated warfare, the principle of chivalry . . . is said to have diminished in its distinctiveness relative to the principle of humanity” (footnotes omitted)).

32 DOCUMENTS, supra note 30, at 10.

33 Id.

34 Alain Pellet, The Destruction of Troy Will Not Take Place, in ADMINISTRATION, supra note 10, at 169, 196.

35 Id. at 198.

36 Falk & Weston, supra note 10, at 136.

37 Article 46 of the 1907 Hague Regulations, supra note 3, provides that “[p]rivate property cannot be confiscated.”

38 Article 47 of the Fourth Geneva Convention, supra note 1, provides:

Article 49, in part, prohibits “[individual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive”; it also provides that “the Occupying Power may undertake total or partial evacuation of a given area if die security of the population or imperative military reasons so demand.” Article 53 provides that “[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons . . . is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

39 Advisory Opinion, supra note 7, para. 135.

40 Id., para. 137.

41 Id.

42 These principles have been authoritatively set forth by the International Humanitarian Law Research Initiative (IHLRI) of the Harvard Program on Humanitarian Policy and Conflict Research (HPCR). HPCR, The Separation Barrier and International Humanitarian Law: Policy Brief 6 (July 2004), available at <http://www.ihlresearch.org/> [hereinafter Harvard Brief]. IHLRI is a network of internationally renowned experts on IHL engaged in research, policy, and training activities on the laws of armed conflict. IHLRI was launched by Harvard in 2002 in cooperation with the Swiss Department of Foreign Affairs, as depository of the Geneva Conventions, and the ICRC. It is designed to complement and support ongoing international efforts in the development and reaffirmation of international humanitarian law. For more on the initiative, see its Web site supra.

43 Harvard Brief, supra note 42, at 6.

44 Id.

45 Advisory Opinion, supra note 7, para. 122.

46 Id.

47 Harvard Brief, supra note 42, at 6.

48 Id.

49 Id.

50 Advisory Opinion, supra note 7, para. 141.

51 Id.

52 In his contribution to this Agora, David Kretzmer takes an approach quite at odds with this general principle, one that accords more with the wider breadth afforded the concept of military necessity by the Israeli Supreme Court than is legally warranted, see infra note 71. In discussing the ICJ’s consideration of the connection between the illegality of Israeli colonies and the illegality of the wall’s route, Kretzmer takes the position that “a theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law.” Kretzmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian IMW, 99 AJIL 88, 93 (2005)Google Scholar. Elsewhere, he opines that it is not “self-evident” that the “protection of civilians in illegal settlements” through the construction of the wall in the OPT could not “legitimately be regarded as a measure taken on grounds of military necessity.” Id. at 94. Finally, he notes that it might be “conceivable, for example, that in some sections [of the wall’s route in the OPT] topographical factors made the chosen route the best possible one for building a barrier to prevent terrorists from infiltrating into Israel in an area where many terrorists had done so in the past.” Id. at 100. While I share Professor Kretzmer’s concern about the ICJ’s “light treatment” of IHL in the advisory opinion, I must disagree with his approach to the scope of military necessity. As noted above, in respect of territories occupied, military necessity cannot relate to anything other than the security interests of the military forces of the occupying power and then only within the occupied territory. The purpose of this limited scope is to ensure that military necessity is not resorted to by the occupying power as a catch-all justification for harsh acts taken against protected persons, acts that objectively bear no connection to the bona fide military interests of that power. These acts include such things as colonization, deportation, and collective punishment (e.g., home demolitions), practices that have unfortunately been marked features of Israel’s prolonged occupation of the OPT. The strictly limited scope of the military necessity principle, of course, is important not least because its maintenance helps safeguard the overarching principle of humanity, which must remain the edifice of IHL and inform it throughout. Although the assertion that military necessity cannot be employed to protect civilian colonies in occupied territory would seem to contradict the principle of humanity (as intimated by Kretzmer), the better view, I think, would be to maintain the strict prohibition of Article 49(6) of the Fourth Geneva Convention on the transfer of civilians by the occupying power into occupied territory, thereby avoiding a slippery slope by which the exceptional justification might evolve into a competing (even overarching) norm.

53 Separate Opinion of Judge Elaraby, supra note 27, para. 3.1.

54 Harvard Brief, supra note 42, at 7.

55 Id.

56 Id.

57 Advisory Opinion, supra note 7, para. 67.

58 B’Tselem, Behind the Barrier: Human Rights Violations as a Result of Israel’s Separation Barrier (Mar. 2003), cited in Harvard Brief, supra note 42, at 13.

59 Id., quoted in Harvard Brief, supra note 42, at 13.

60 Harvard Brief, supra note 42, at 7.

61 Id.

62 Advisory Opinion, supra note 7, paras. 84-85.

63 Id., paras. 83-84.

64 Id., para. 133. For instance, the Court recalled the report of the UN special rapporteur on human rights as noting that “Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residents can only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m.” Id. (quoting 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, UN Doc. E/CN.4/2004/6, at 7 (2003)).

65 Id.

66 Id.

67 Harvard Brief, supra note 42, at 7.

68 Id. at 10.

69 HCJ 2056/04, Beit Sourik Village Council v. Israel (June 30, 2004), 43 ILM 1099 (2004) [hereinafter Beit Sourik]. Beit Sourik is covered by Watson, supra note 5, at 19-21.

70 Beit Sourik, supra note 69, paras. 36-85.

71 For instance, the Israeli High Court has defined military necessity to include not only the military interests of the occupation forces, but also the security of the State oflsrael itself. HCJ 606/78, Ayoub v. Minister of Defense, 33(2) P.D. 113, cited in Harvard Brief, supra note 42, at 9. Likewise, the High Court has ruled that the security of Israeli civilians within both Israel and the OPT is covered by military necessity. HCJ 4219/02, Yusef Muhammed Gusen v. Commander of IDF Forces, cited in Harvard Brief, supra, at 9.

72 Kooijmans Opinion, supra note 8, para. 34.

73 To be sure, Judge Higgins took the opinion that “non-forcible measures,” such as the building of a wall, do not fall within Article 51 of the UN Charter “as that provision is normally understood.” Advisory Opinion,, supra note 7, Separate Opinion of Judge Higgins, 43 ILM at 1058 Google ScholarPubMed, para. 35.

74 Id.

75 Advisory Opinion, supra note 7, para. 163.

76 Id.

77 Id., para. 155. With respect to these IHL obligations, the Court recalled its advisory opinion Legality of the Threat or Use of Nuclear Weapons, where it held that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’“ that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” Id., para. 157 (quoting Legal it) of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 257, para. 79 (July 8))Google Scholar.

78 Id., para. 158.

79 The ICRC Commentary on the Fourth Geneva Convention offers the following explanation in respect of the meaning of common Article 1:

ICRC COMMENTARY, supra note 23, at 16. But see text at notes 88-89 infra.

80 Marco, Sassòli & Antoine, A. Bouvier, How Does Law Protect in War? 231 (1999)Google Scholar.

81 Id.

82 As noted earlier, most of these measures (especially universal jurisdiction) are intricately linked to the duty of high contracting parties to the Fourth Geneva Convention, codified in Article 146, to enact legislation penalizing the commission of grave breaches, to search for and prosecute or extradite any individuals suspected of committing or ordering the commission of such breaches, and to penalize those suspected of committing other violations of the Convention not amounting to grave breaches. See Imseis, supra note 3, at 127-37. See generally United Nations, International Meeting on the Convening of the Conference on Measures to Enforce the Fourth Geneva Convention in the Occupied Palestinian Territory, Including Jerusalem (No. 99-35892, 1999).

83 SASSòLI & BOUVIER, supra note 80, at 231.

84 Id.

85 Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, Art. 16, UN Doc. A/56/10 (2001). The commentary to the articles notes that “Article 16 deals with the situation where one State provides aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter.” Id. at 155. In the context where a third state might provide humanitarian aid or assistance to the Palestinian civilian population in the OPT, either through an international aid agency or the Palestinian Authority, but not directly through the government of the State of Israel, one might be inclined to interpret Article 16 as inapplicable, even where such aid or assistance might help maintain the illegal situation resulting from the construction of the wall. However, since Israel, as the occupying power in the OPT, assumes under the law of belligerent occupation the overall responsibility for the provision of such aid and assistance to the Palestinian civilian population, it stands to reason that Article 16 does apply mutatis mutandis.

86 Kooijmans Opinion, supra note 8, para. 44.

87 Id.

88 This position seems untenable given the exclusively state-centric nature of the duties contained in the 1949 Geneva Conventions. Id., paras. 47-48.

89 Id., para. 50.

90 See generally Palestinian National Authority, Ministry of Planning Policy Research Unit, The Annexation and Expansion Wall: Impacts and Mitigation Measures (May 31, 2004)Google ScholarPubMed, available at <http://www.psgateway.org/download/1872/Wallreport.doc>.

91 Id., Executive Summary.

92 Kooijmans Opinion, supra note 8, para. 45.

93 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16 (June 21)Google Scholar.

94 Id., paras. 119, 125 (emphasis added).

95 Rex v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, 259; see also Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 564-75 (1980).

96 ICJ STATUTE Art. 56; see also Rules of the International Court of Justice, as amended Dec. 5, 2000, Art. 95. This principle applies to advisory proceedings by virtue of Article 102, paragraph 2, of the Rules of Court, which provides that in such proceedings “[t]he Court shall also be guided by the provisions of the Statute and of these Rules which apply in contentious cases to the extent to which it recognizes them to be applicable.” Id., Art. 102.

97 ICJ, Rules of Court, supra note 96, Art. 107.

98 UN CHARTER Arts. 92, 96; see also 2 The Charter of the United Nations: Acommentary 1146 (Bruno Simma ed., 2d ed. 2002).

99 GA Res. 1731 (XVI) (Dec. 12, 1961); see oho Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151, 155–l56 (July 20)Google Scholar.

100 The Charter of the United Nations, supra note 98, at 1146.

101 Advisory Opinion, supra note 7, Separate Opinion of Judge Koroma, 43 ILM at 1056, para. 10.