The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation
The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.(Published Online July 13 2006)
Key Words: Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; International Court of Justice; international humanitarian law; occupation; proportionality; transnational legal process.
1 Faculty of Law, Tel-Aviv University; email@example.com. The author is grateful to Yaara Alon, Daphne Barak-Erez, Orna Ben-Naftali, Eyal Benvenisti, Sandy Kedar, Barak Medina, Keren Michaeli, Avner Pinchuk, Amnon Reichman, and Yuval Shany for their comments on a previous draft of this article. He also benefited from conversations with Hanoch Dagan and Karen Knop. Thanks to Nimrod Karin for his extensive and excellent research assistance. He is also grateful to Batya Stein for providing her excellent editing and language skills and her invaluable contribution to the article. Thanks are due to the Cegla Center for Interdisciplinary Research of the Law at Tel Aviv University for a grant that made the research for this article possible. Earlier versions of this article were presented in the Faculty Workshop of Tel-Aviv University Faculty of Law and in the Public Law Teachers Forum of the Israeli Association of Public Law; the author is grateful to the participants of both fora for their helpful comments. The author teaches international and constitutional law in the Faculty of Law of Tel-Aviv University. He is also a member of the board of the Association for Civil Rights in Israel (ACRI). ACRI's legal department represented and represents petitioners in some of the cases heard by the Israeli High Court of Justice discussed in this article. In the Mara'abe case, ACRI represented petitioners and also joined as one. The author participated in consultations concerning this and other cases involving the subject matter of this article. The opinions expressed in the article, however, are his own and should not be attributed to ACRI.