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Published online by Cambridge University Press: 04 July 2014
This paper argues that the ICJ did not need to discuss the legality of the settlements in order to examine the legality of the fence. Following this argument, until the settlement issue is resolved, Israel has an obligation to protect the settlers. Thus, even those parts of the fence that are intended to protect settlements, legality does not depend on the legality of the settlements. Moreover, this article argues that the Court's analysis of the settlements' legality is unsatisfactory: its interpretation of Article 49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certain extent, from the meaning of the same terms used in other paragraphs of Article 49, and as such a more in depth analysis by the Court was required.
Greenblatt Professor Emeritus, The Hebrew University and Professor at the Law School of the College of Management. The author wishes to express her thanks to Ms. Rena Arnowitz who helped in the collection of the material upon which this paper is based and to Ms. Morissa Amittai for the meticulous typing. Special thanks are also due to Dr. Moshe Hirsch and Dr. Yuval Shany for their most helpful remarks. This comment went to press before the publication of the Agora on this Advisory Opinion in the American Journal of International Law, volume 99.
1 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Opinion of 9 July 2004, International Court of Justice “ICJ” (hereinafter: “Legal Consequences”). See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar. Majority opinion, para. 120. The original French text reads as follows; “La Cour conclut que les colonies de peuplement installées par Israël dans le territoire palestinien occupé (y compris Jerusalem-Est) l'ont été en méconnaisance du droit international”.
2 See the Declaration of Judge Buergenthal, at para. 6 available at http://www/icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_declaration_Buergenthal.htm.
3 E.g. Resolution 446 (1979) of 27 March 1979; Resolution 452 (1979) of 20 July 1979; Resolution 465 (1980) of 1 March 1980. For General Assembly Resolutions, see e.g. 31/106A of 16 December 1976; 35/122B of 11 December 1980; 39/95C of 14 December 1984; 41/63 of 3 December 1986; 43/58 of 6 December 1988.
4 E.g. the Venice Declaration on the Middle East adopted by the European Council on 13 June 1980, Bulletin of the European Communities 6 - 1980, 10, para. 9.
5 E.g. Statement by the International Committee of the Red Cross to the Conference of High Contracting Parties to the Fourth Geneva Convention, of 5 December 2001.
6 For a similar trend in an earlier decision of the ICJ, see e.g. Case concerning Oie Platforms (Iran v. U.S.A.) of 6 November 2003.
7 Legal Consequences, supra n. 1, at majority opinion, para. 122.
8 Israel's Supreme Court, sitting as the High Court of Justice, examined the legality of each disputed segment separately – H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807” (2005) 38 (1-2) Is.L.R. 83. The Supreme Court has not yet expressed its opinion on the legality of the settlements.
9 32 International Legal Materials (1993) 1525-1544.
10 Excerpts of this agreement were published in 36 International Legal Materials (1997) 551. The full text was published in Kitvei Amana (Israel's publication of Treaties) vol. 33, no. 1071, 1-400.
11 See also Shany, Yuval, “The Advisory Opinion of the International Court of Justice” in Raday, Frances and Shany, Yuval, eds. The Separation Area – A Multidisciplinary Analysis (Tel Aviv, Concord Center, 2004) 85–105, at 96 and 97 [in Hebrew]Google Scholar.
12 For the text and a commentary, see Uhler, O.M., Siordec, F., Coursier, R. Boppe, Pilloud, C., Wilhelm, R.J., Schoenholzer, J.R, “Geneva Convention Relative to the Protection of Civilian Persons in Time of War”, in Pictet, Jean, ed. Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958) 277 Google Scholar.
13 Legal Consequences, supra n. 1, at Majority Opinion, para. 120. Does this imply that settlements established without governmental blessing are legal?
14 Ibid.
15 Uhler et. al, supra, n. 12, at 283.
16 E.g. Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories since 1967” (1990) 84 Am. J. Int'l L. 44–103, at 85CrossRefGoogle Scholar. See also supra n. 3-5.
17 Israel National Section of the International Commission of Jurists, The Rule of Law in the Areas Administered by Israel, (Tel Aviv, Israel National Section of the International Commission of Jurists, 1981) 55 Google Scholar.
18 Oppenheim, L. and SirLauterpacht, Hersch, International Law – A Treatise (London, Longmans, 7th ed., 1952) vol. 2, 452 Google Scholar.
19 Dinstein, Yoram, The Laws of War (Tel Aviv, Shoken, 1983) 226 [in Hebrew]Google Scholar.
20 Rostow, Eugene V., “Palestinian Self-Determination: Possible Futures for the Unallocated Territories of the Palestine Mandate” (1979) 5 Yale St. World Public Order 149–172, at 159Google Scholar.
