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The International Court of Justice Decision on the Separation Barrier and the Green Line

Published online by Cambridge University Press:  04 July 2014

Robbie Sabel
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Abstract

This Article examines how the advisory opinion of the ICJ on the “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” dealt with the status of the territory through which the separation barrier passed and the question of the status of the “Green Line” which delineates this territory.

Israel has accepted that the rules of belligerent occupation are to be applied to the territory, the Court however did not suffice itself with applying the laws of belligerent occupation but chose to follow current UN precedents in the use of the phrase occupied “Palestinian” territory. The Court does not attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory when its status as occupied territory presumably derived from Israel's seizure of the Area from Jordan and a Palestinian State had never existed there, or anywhere.

Although the Court disclaimed any intention of determining boundaries, nevertheless the Court treats the Green Line as Israel s Eastern boundary notwithstanding that neither Israel nor any Arab State recognized it as such. By its decision, the Court apparently however has recognized Israel sovereignty West of the Green Line, including West Jerusalem, perhaps an outcome not foreseen by all who initiated the application to the Court.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 316 - 330
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Department of International Relations and Faculty of Law, The Hebrew University of Jerusalem.

References

1 UNGA Resolution A/ES-10/14, adopted on 8 December 2003 at the Tenth Emergency Special Session.

2 The Israel Government refers to it as a fence. The UN General Assembly and ICJ refer to it as a wall. In fact, most of the length is a fence and only a small part is a wall. I choose to use the phrase “barrier”, which is used in the report of the UN Secretary General.

3 H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807. For an English translation of this case see “H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807” (2005) 38 (1–2) Is.L.R. 83 CrossRefGoogle Scholar.

4 Ibid., at para. 1.

5 Ibid., at para. 23.

6 H.C.J. 785/87 Abd Al Nasser Al Aziz Abd Al Aziz Abd Al Affo Et Al v. Commander of ID.F. Forces in The West Bank (not published), at para. 10.

7 Oppenheims International Law, SirJennings, Robert and Watts, Sir Arthur, eds. (London, Longman, 1996) vol. 1, 382 Google Scholar.

8 See C.C. 2538/00 Jerusalem District Court, Irena Litwak Nuritz et al v. The Palestinian Authority and Yasser Arafat 62(2) P. M. 776.

9 See Shaw, Malcolm N., International Law (Cambridge, Cambridge University Press, 5th ed., 2003) 222 CrossRefGoogle Scholar.

10 UNGA Resolution A/Res./43/l 77 of 15 December 1988.

11 UNGA Resolution 186 (XXXI) of 21 December 1976.

12 UNGA Resolution 5 (XXXII) of 28 October 1977.

13 UN Security Council Resolution 446 (1979) 22 March 1979.

14 Separate Opinion of Judge Nabil Elaraby, Section III available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Elaraby.htm. This quote and all quotes from Written Statements, Oral Pleadings and the Advisory Opinion of the ICJ in the case are taken from Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No. 131. For a transcript of the Advisory Opinion see this issue “Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar (hereinafter: “ICJ Opinion”).

15 ICJ Opinion, supra n. 14, at para. 101.

16 Separate Opinion of Judge Higgins, at para. 31, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Higgins.htm.

17 Dissenting Declaration of Judge Buergenthal, at para. 6, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_declaration_Buergenthal.htm.

18 ICJ Opinion, supra n. 14, opinion of the Court, at para. 101.

19 Separate Opinion of Judge Kooijmans, para. 30, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Kooijmans.htm.

20 ICJ Opinion, supra n. 14, at para. 73.

21 See Blum, Yehuda Zvi, “The Juridical Status of Jerusalem,” Jerusalem Papers on Peace Problems (Jerusalem, Leonard Davis Institute for International Relations, 1974) 21 Google Scholar.

22 Separate Opinion of Judge Kooijmans, supra n. 19, at para. 9, 10.

23 Separate Opinion of Judge Higgins, supra n. 16, at para. 16.

24 Separate Opinion, Judge Al-Khasawneh, para. 8 available at http://www.icj-icj.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Al-Khasawneh.

25 ICJ Opinion, supra n. 14, at para. 78.

26 “The withdrawal of the military government will not prevent Israel from exercising the powers and responsibilities not transferred to the Council.” Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements, Israel-PLO, 15 September 1993, Article VII (5). See Singer, Joel, “The Declaration of Principles on Interim Self-Government Arrangements, Some Legal Aspects” (1994) 1 Justice 4, at 6 Google Scholar.

27 Declaration of Principles on Interim Self-Government Arrangements, Israel-PLO, 15 September 1993, Article VIII.

28 In relation to Gaza and Jericho, this is the opinion of Benvenisti, Eyal, “The Status of the Palestinian Authority”, in Cotran, Eugene and Mallet, Chibli, eds. The Arab Israeli Accords: Legal Perspectives (London, Kluwer Law International, 1996) 47 at 59 Google Scholar.

29 ICJ Opinion, supra n. 14, at para. 77.

30 ICJ Opinion, supra n. 14, at para. 78.

31 1949 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 656 UNTS 304.

32 The term “Green Line” derives from the fact that the armistice line was drawn in green on official Israeli maps.

33 1949 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 656 UNTS 304, Article III, para. 2.

34 Ibid., Article VI, para. 8,

35 Ibid., Article VI, para. 9, Article 5(2) of the Israeli-Egyptian armistice agreement has an even more explicit disclaimer which states “it is not to be construed in any sense as a political or territorial boundary and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”

36 See Brawer, Moshe, Israel's Boundaries, Past, Present and Future, A Study in Political Geography (Tel-Aviv, Yavneh Press, 1988) 145 Google Scholar [in Hebrew].

37 Law and Administration Ordinance (Amendment No. 11) Law 5727-1967; Municipal Ordinance (Amendment No. 6) Law 5727-1967. The Area of Jurisdiction and Powers Ordinance 5708-1948, which designates where Israel law applies, was enacted prior to the Armistice agreements. In 1982, Knesset member Michael Bar-Zohar presented a private member's bill that would have amended the Area of Jurisdiction and Powers Ordinance 5708-1948 by adding a reference to the ADL. No action was taken on this bill, which is referred to by Rubinstein, Amnon and Medina, Barak in Israel Constitutional Law, Vol. II (Jerusalem and Tel-Aviv, Shoken Press, 5th ed. 1996) 1181 Google Scholar [in Hebrew].

38 Since 1967 it is subject to the two exceptions refereed to in n. 40 infra.

39 While the Israel-Jordan Peace Agreement does not explicitly state that it supersedes the Armistice Agreement, the two agreements are patently incompatible.

40 Law and Administration Ordinance (Amendment No. 11) Law 5727-1967; Municipal Ordinance (Amendment No.6) Law 5727-1967; Basic Law: Jerusalem Capital of Israel, 1980, S.H. 186.

41 UN Security Council Resolution 242 of 22 November 1967.

42 Article 3(1), 1994 Treaty of Peace between The State of Israel and the Hashemite Kingdom of Jordan. Annex I (a) Article 2 (A)(7) of the Treaty provides that the section of the boundary separating Jordan from the West Bank is marked on the map as an “administrative boundary between Jordan and the territory which came under Israeli Military government control in 1967.”

43 Declaration of Principles on Interim Self-Government Arrangements, Israel-PLO, 15 September 1993; Israel-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995.

44 The extent of Areas B and C was described but the extent of Area A, adjacent to Israel, was not.

45 1995 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Article XI (1).

46 Singer, Joel, “The Oslo Peace Process: A View from Within,” in Shapira, Amos and Tabory, Mala, eds. New Political Entities in Public and International Law With Special Reference to the Palestinian Entity (The Hague, Kluwer Law International, 1999) 17, at 28 Google Scholar.

47 Quoted from HCJ 2056/04, supra n. 3, at para. 4.

48 ICJ Opinion, supra n. 14, at para. 57. “The Court notes in particular that Israel's Written Statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel's concerns in terms of security, and was accompanied by corresponding annexes.”

49 Written Statement of the Government of Israel on Jurisdiction and Propriety, 30 January 2004, para. 2.9 available at www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/writtenstatement_17_Israel_Annexes.pdf.

50 Written Statement of Saudi Arabia, 30 January 2004, para. 9 www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/writtenstatement_02_KingdomofSaudiaArabia.pdf.

51 Written Statement of the League of Arab States, January 2004, para. 1.2, 5.15 www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/writtenstatement_03_TheLeagueofArabStates.pdf.

52 Written statement of the Hashemite Kingdom of Jordan, 30 January 2004, para.2.5, www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/writtenstatement_11_KingdomofJordan.pdf.

53 CR/2004/01.

54 CR/2004/5.

55 C/2004/03, at para. 1.

56 C/2004/03, at para. 35.

57 CR/2004/l, para. 1.

58 CR/2004/l, para. 6.

59 ICJ Opinion, supra n. 14, at para. 101.

60 ICJ Opinion, supra n. 14, at para. 67.

61 ICJ Opinion, supra n. 14, at para. 83.

62 Dissenting Opinion of Judge Buergenthal, supra n. 17, at para. 6.

63 Separate Opinion, Judge Al-Khasawneh, supra n. 24, at para. 10, 11.

64 See also the comment on Latrun preceding note 40.

65 They are also entitled to Israel citizenship if they request it.

66 This paper does not deal with other aspects of the Opinion, notably the issue of self-defense, which, in the view of this Author, also contain serious flaws.