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10. The Supreme Court of the State of Israel

The ICJ does not follow the directive in its mandate that requires it to use the most qualified and valued writing of law of other nations – in this case Israel. The Bench ignores the rulings of the Supreme Court of the State of Israel [acting in the cases cited, as the High Court of Justice – HCJ] that could directly contribute to its own investigation of legality and proportionality.

The ICJ’s Statute1 requires it “to decide in accordance with international law” and to apply “… the most highly qualified publicists of the various nations.” In this case, the relevant writings of the Supreme Court of the State of Israel should have been applied “as subsidiary means for the determination of the rules of law.”

The ICJ’s evaluation of the validity of supporting evidence appears to be carefully tailored to support forgone conclusions, including the ICJ’s own rules that the Bench seems to ignore. Article 38, rule 1(d) of the Court Statute requires that the Court:

“Shall apply: … Judicial decisions and the teachings of the most highly qualified publicists of the various nations [to] determine rules of law.”

The Bench even ignores the writings of former members of its own Bench, including a past president of the Court, as well as a host of other eminent jurists and academic scholars of international law.

In his writing on Government Legal Advising in the Field of Foreign Affairs about what influences and makes international laws, the former president of the International Court of Justice, Judge Schwebel, writes:

“International law is largely the creation of Governments. In that creative process, those who render legal advice to Governments play a critical part (in present case the Supreme Court of the State of Israel). The forces which shape international law, like the forces which shape international affairs, are many and complex. But what is singular and clear is that those who advise Governments on what international law is and should be exert a particular, perhaps at times a paramount, influence on the formation of international law.”2

United States Supreme Court Justice Stephen G. Breyer has said that:

“the United States could learn from compromises Israeli courts have struck to balance terrorism and human rights concerns”3 [italics by author].

At first glance, it would seem that the ICJ recognizes this fact. Closer examination reveals that when convenient, this same Court relies on the Israel Supreme Court to reach a conclusion that fits its thinking, but it sees nothing improper in ignoring the decisions most relevant to this case by the Israeli Supreme Court when its findings differ from the ICJ’s. Thus, the ICJ supports the applicability of the Hague and Geneva Conventions by citing in paragraph 100 of the ICJ opinion, a May 30 2004 ruling by the Supreme Court of the State of Israel sitting as a High Court of Justice.4 The ICJ noted that Israel’s highest court of justice ruled that:

“… the military operations of the [Israeli Defense Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 … and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949.”5

Yet, when it comes to a far more fundamental question – the purpose of the security fence and whether it is justified in light of the injury it causes Palestinians6 – the expertise and experience of the Supreme Court of the State of Israel are no longer deemed valid. In paragraph 140 of the ICJ opinion, the Bench declares:

“… In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to _safeguard the interests of Israel against the peril which it has invoked as justification for that construction.”

What is the highly qualified material before the ICJ? Or, to be more precise, is there highly relevant material that the ICJ arbitrarily judged to be immaterial?

If the Israeli Supreme Court can contribute to the case, why is there no mention whatsoever of a ruling handed down by the Supreme Court of the State of Israel, sitting as the High Court of Justice, in the case of Beit Sourik Village Council v. 1. The Government of Israel, (HCJ 2056/04) dated June 30 20047 that also recognizes the applicability of the Hague and Geneva Conventions, and is also directly connected to the security barrier issue?

The case is not hard to find in the online archive of the Israeli Court. In addition, the decision received worldwide exposure, reported internationally in most major media outlets.8 Moreover, the Israeli Court’s Judge Aaron Barak notes in the opening paragraph of the second case, the June 30 2004 ruling: “The question before us is whether the orders and the Fence are legal.”

Examination of the Israeli Court’s ruling reveals why the ICJ preferred to quote a ruling that deals with alleged lack of access to medical treatment for civilians in Rafiah (Rafah) in the Gaza Strip in the midst of Israel Defense Forces (IDF) military operations, rather than a ruling that addresses the legality of the security barrier, which is on the West Bank, directly relevant to the case.

The Israeli Supreme Court devoted seven court sessions to hearing the appeal of one Palestinian village that felt it had been wronged by seizure of some of its land to construct the security barrier. The June 30 2004 judgment is 22,000 words long. The Israeli Court describes at length both the all-pervasive and insidious character of Palestinian terrorism and the injury to Palestinian civilians caused by the security barrier. It concludes in paragraph 28:

“We examined petitioners’ arguments and have come to the conclusion, based upon the facts before us, that the Fence is motivated by security concerns. As we have seen in the government decisions concerning the construction of the Fence, the government has emphasized, numerous times, that ‘the Fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.’ (Decision of June 23 2002).

“The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the Seam Area, is a security measure for the prevention of terror attacks and does not mark a national border or any other border” (Government of Israel, decision of October 1 2003) [italics by author].

The Israeli Supreme Court’s ruling doesn’t even rate a rebuttal in the ICJ’s opinion. It simply does not exist, or it is judged to be immaterial to the case.

It is clear there is another reason why the ICJ chose not to highlight this case. On the surface, from the ICJ’s point of view, the judgment by the Israeli Court is just as good. The Israeli judgment says clearly in paragraph 23:

“The authority of the military commander flows from the provisions of public international law regarding belligerent occupation. These rules are established principally in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 [hereinafter – the Hague Regulations]. These regulations reflect customary international law. The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 [hereinafter – the Fourth Geneva Convention].”9

But the judgment goes beyond this. The Israeli ruling also explains how the Israeli Court views adjudication of appeals for protection under the Hague and Geneva Conventions. In a very lengthy and thoughtful discussion of the challenges facing any court, the president of the Israeli Supreme Court says in paragraph 36:

“The problem of balancing security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation. It is a general problem in the law, both domestic and international. Its solution is universal. It is found deep in the general principles of law, which include reasonableness and good faith. … One of these foundational principles, which balance the legitimate objective with the means for achieving it, is the principle of proportionality. According to this principle, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate. This approach applies to all types of law.”

In paragraph 44, the Israeli Supreme Court adds:

“The key question regarding the route of the Fence is: Is the route of the Separation Fence proportionate? The proportionality of the Separation Fence must be decided by the three following questions … First, does the route pass the ‘appropriate means’ test? ... The question is whether there is a rational connection between the route of the Fence and the goal of the construction of the Separation Fence. Second, does it pass the test of the ‘least injurious’ means? The question is whether, among the various routes which would achieve the objective of the Separation Fence, is the chosen one the least injurious. Third, does it pass the test of proportionality in the narrow sense? The question is whether the Separation Fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the Fence.”

In a subsequent case, known as Alfei Menashe, HCJ 7957/04, September 15 2005, the Supreme Court of Israel held that according to international law regarding belligerent occupation, erecting a separation fence that minimizes the impediment of the local population in order to protect the lives and safety of Israeli settlers in Judea and Samaria (West Bank) is legal.10

The International Court of Justice distorts the Israeli court’s intention.

For the ICJ to simply quote the Israeli court as ‘accepting the applicability of the Hague and Geneva Conventions dealing with behavior towards civilians in wartime’ while failing to explain what the Israeli court actually means by this, hardly does justice to the Israeli Supreme Court. In fact, such conduct by the ICJ warps the true position of the Israeli court, which demonstrates just how difficult it really is to weigh the merits of such a case where the ‘right to life’ of potential victims of Palestinian terrorism must be balanced against non-lethal injury to Palestinian non-combatants. Such input would be welcome in any fair and judicious Court, but not to the ICJ, which lacks any military and security experience and never experienced life under constant terrorism, and was not interested in struggling with this issue.

In paragraph 100 of the ICJ opinion, the Bench mischaracterized the Supreme Court of Israel’s limited acceptance of the applicability of Geneva Convention, warping the Israel court’s intention and misleading the reader with selective use. The Supreme Court of the State of Israel did not rule that the West Bank and Gaza are Occupied Palestinian Territories and never suggested that the Geneva Convention applies to the legal status of Israeli settlers. Israel signed the Fourth Geneva Convention on August 12 1949, and ratified it on July 6 1951. Since then, including after the 1967 war, Israel has not denounced the Convention, as permitted by the convention’s Article 158.

As articulated in 1971 by then Attorney General of Israel, Meir Shamgar (who in 1983 became President of the Supreme Court), Israel voluntarily abides by the humanitarian provisions of the Geneva Convention in the West Bank and Gaza Strip, despite pointing out that Israel and other world renowned experts of international law believe that the Convention does not apply to these territories de jure.

  1. Statute of The International Court of Justice at: (10485)
  2. Professor, Judge Stephen M. Schwebel, Government Legal Advising in the Field of Foreign Affairs in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of the ICJ.
  3. “Justice: Israeli courts could teach U.S. something about compromise,” Associated Press, September 13 2003. See: (10308)
  4. In Hebrew “Baggatz.”
  5. HCJ 4764/04, May 30 2004, “Physicians for Human Rights v. Commander of the IDF Forces in the Gaza Strip,” at: (11387)
  6. The wording of the Advisory Opinion does not ask what its ramifications for Israelis are…
  7. HCJ 2056/04, June 30 2004, “Beit Sourik Village Council v. 1.The Government of Israel,” at: (10926)
  8. See for example The New York Times, “Israeli Court Orders Changes to Barrier in West Bank,” June 30 2004, at: (11388)
  9. Israel Supreme Court, ruling HCJ 2056/04, June 30 2004, Beit Sourik Village Council v. 1.The Government of Israel, at: (10926)
  10. For a summary of the Judgment in English, see: (11547) For complete text in Hebrew, see 11542.

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