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Israeli Supreme Court decision on the Wall in Jayyus: Another Assault on the ICJ

On 9 September 2009, the Israeli Supreme Court published its judgment in the case of HCJ 11344/03 Mayor of Jayyus et al. v. Commander of the Armed Forces in the West Bank et al. (available in Hebrew), where the route of the Separation Wall that Israel has been constructing since the end of the second intifada was challenged by the mayors of a number of villages in a southern region of the West Bank. Notably, the amount of land that has been appropriated is, compared to other regions in the West Bank, remarkable, making the effects of the Wall on the daily lives of the people of this region particularly egregious.

The judgment, handed down by Justice Beinisch, the President of the Court, commences by considering the status of protected persons in occupied territory under international humanitarian law and the obligations owed to them by the Israeli occupying forces. She notes that “protected persons are entitled to appropriate treatment” and it is the obligation of the military commander to take account of this obligation when making a decision on security related matters in ensuring the personal security of the occupying forces and the security of “everyone else present in the area” (para. 31). She confirms that, as previously decided, the considerations of the military commander include the security of the “Israelis who reside in the area” – by this she means the ‘settlers’ that have been transferred into occupied territory in violation of international law, namely Art. 49 of the Fourth Geneva Convention. She proceeds to apply the provisions of the Fourth Geneva Convention for the protection of persons in occupied territory to settlers whose interests, according to the Court’s position, should be balanced with Israel’s obligations towards the local Palestinian population. The rationale adopted by the Court amounts to the distortion of international law for the purpose of providing a legal basis for the state’s actions (para. 32).

The Court went on to uphold that since the military commander is professionally qualified to make the appropriate balanced judgment when undertaking security measures, they “grant his position on this matter[, i.e. the decision to route the Wall,] great weight, and the one who asks to rebut it  carries a heavy [evidential] burden.” The “proportionality spectrum” is a “spectrum of possibilities” and “the choice amongst them is subject to the discretion of the authorised official body, the military commander” (para. 33). Not apart from this, the Court noted that the decision taken by the military commander in this regard is not political but one that concerns a “security-military” matter (para. 34).

The only consideration the Court gives to the illegality of the act of annexation of land that is generated by the construction of a Wall inside the occupied West Bank is as follows: “in our eyes it became apparent during the hearing on the petitions that the consideration with regard to the future expansion of the [settlement] Zofin-North – a consideration that is foreign to the purpose of the construction of the Wall – was part of the decision to route the Wall in a particular way.” Needless to say, the Court did not see a need to punish the State or the particular officials for this grave violation of international law.  Nevertheless, the Court upheld that the protection of the settlers is a valid consideration to take into account (para. 36). The Court also noted that “a lot of agricultural land was captured in order to build the existing route of the Wall…the State is not neglecting this violation of rights, but is convinced that this is a proportionate violation, which is necessary in light of security considerations” (para. 39). Thereby, the Court  is, in essence, rubber stamping the state’s grave breach of the provisions of the Fourth Geneva Convention, i.e. the construction of settlements and the vast appropriations of land.

It should be noted that the Court did not consider any of the international legal arguments that the petitioners invoked with regard to the illegality of the Wall itself or the settlements taken in by the route of the Wall resulting in the annexation of territory, a grave violation of international law. In fact, no provisions of international law were cited by the Court’s, apart from those relating to protected persons, which it then proceeded to apply erroneously. The lawless approach undertaken by the Court in this decision, like in many other cases on the route of the Wall, generates another direct assault on international humanitarian law and the unequivocal submissions made by the ICJ in the Advisory Opinion on the Separation Wall rendered by the World Court over five years ago (previously covered here).

In light of the judicial practice of the supreme judicial instance in Israel, the ongoing political battle for a ‘settlement freeze’ (which would bring to a halt any further construction or expansion of settlements) advanced principally by Obama’s administration, is of little value when, so to speak, ‘the thief is allowed to keep what he has stolen so long as he promises not to steal any more’ (this phraseology was coined by Israeli human rights lawyer Michael Sfard in his lecture at the New American Foundation).

In its many years of judicial practice on the occupied Palestinian territories, the Israeli Supreme Court is today the only judicial instance available to Palestinians for obtaining a remedy for the injustices that are procured on a daily basis by the Israeli occupying power. National human rights litigation is not unproblematic (previously covered here), to say the very least. It has, when effective in gaining some kind of middle-ground remedy, such as the rerouting of the Wall in the case at hand, a counter-productive effect on the overall scheme of the struggle of the Palestinian people for the exercise of their inherent right to self-determination, a right that the Court has virtually never upheld or referenced in any context whatsoever.

Finally, it is also interesting to consider such judicial practice, where the Court accepts the state’s position without looking for an objective expert’s opinion to confirm the facts, or at the very least access a third perspective on the situation on the ground, in light of the internationally accepted standards in this regard. A relatively recent report of the Human Rights and Social Justice Research Institute at the London Metropolitan University on ‘INTERNATIONAL HUMAN RIGHTS & FACT-FINDING: An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights’, published in February 2009, presents a thorough and useful analysis of the practice on the European level whilst drawing upon some general principles in the field of fact-finding by judicial bodies.

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