ICJ/Israel, Separation Wall/Security Fence in the Occupied Palestinian Territory Case Study
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ICJ/Israel, Separation Wall/Security Fence in the Occupied Palestinian Territory Case Study
Applicable law
1.
a. Are the Hague Regulations and GC IV applicable to the Palestinian territories? According to the International Court of Justice (ICJ)? According to the Israeli High Court of Justice (HCJ)?b. Which para. of GC IV, Art. 2 (para. 1 or para. 2) is decisive for the ICJs conclusion as to the applicability of GC IV?
c. (ICJ, para. 1) How can the General Assembly resolution reaffirm the applicability of Protocol I while Israel is not a party to that treaty? Does the ICJ apply Protocol I? If it had done so, would its conclusions have been different?
d. (ICJ, para. 91) In which sense is the unilateral undertaking given by the declaration of 7 June 1982 to respect GC IV valid? Does it make Palestine a State party to GC IV? Has this undertaking any impact on the outcome of the case before the HCJ?
2. Are all provisions of GC IV still applicable in the Palestinian territories, or only those referred to in Art. 6(3)? Have all military operations in the territories ceased?
II. Legality of the construction of the wall/fence
3.
a. Does the construction of the wall/fence amount to an annexation? According to the ICJ? According to the HCJ? Would such an annexation be contrary to IHL? What does the ICJ say about this?
b. Would the HCJ have found the wall/fence illegal if its route had been influenced by anything other than security considerations? May an occupying power take into account the security of its own population on its national territory?
That of inhabitants of settlements? On what basis does the HCJ come to the conclusion that no political or Zionist considerations influenced the route of the wall? Does the fact that it does not follow the Green Line argue in favour of the opposite conclusion?
4.
a. (ICJ, Separate Opinion of Judge Higgins, paras 23 and 24) Does the ICJ explain why the wall/fence violates Arts 47,
49, 52, 53 and 59 of GC IV? Can you explain this for each of these provisions? Do you agree with Judge Higgins criticism?
b. Explain why the destruction and requisition of private property contravene the requirements of Arts 46 and 52 of the Hague Regulations and of Art. 53 of GC IV. Is this conclusion correct even if the facts are those described by the HCJ (HCJ, Beit Sourik, para. 8)? Do you agree with Judge Buergenthals criticism (ICJ, Declaration of Judge Buergenthal)?
c. (ICJ, paras 135-137) Which of the provisions mentioned by the ICJ are subject to derogations if military exigencies so require? Are military exigencies and military operations equivalent? Why is the destruction of private property necessary to build the wall not permitted under Art. 53 of GC IV?
d. May an occupying power seize land for the needs of its army? For security reasons?
III. Protection of Israeli settlers
(HCJ, Maraabe, paras 15-22)
5. Why does the HCJ say that the Israelis living in Palestinian territories are not protected persons according to GC IV? What is their status? Are they protected by IHL at all?
6.
a. Do you agree with the HCJ that Art. 43 of the Hague Regulations applies to the Israeli settlers living in Palestinian territories? What does the duty to restore, and ensure, as far as possible, public order and safety entail? Does it include the protection of the settlers, who arrived after the occupation began?
b. Do you think that protecting Israeli settlements in Palestinian territories will contribute to restoring or ensuring public order and safety in the West Bank?
7. (ICJ, para. 120) Why are Israeli settlements in the Palestinian territories prohibited? Does every establishment of an Israeli citizen in the Palestinian territories violate IHL? Is the fact that Israeli settlements are included within the wall decisive for the conclusion that it contravenes IHL? For the ICJ? For Judge Buergenthal? In your opinion? Does the HCJ deal with the prohibition of settlements? Why not? Isnt it a humanitarian rule of GC IV?
8.
a. May Israel protect the lives of settlers in the occupied territories? Does it even have a duty under IHL to protect its citizens living in Palestinian territories? Even if those citizens were transferred unlawfully into the occupied territory? May it only protect their lives, or also their continued presence in the occupied territories? Wouldnt it be contradictory for IHL to protect settlements that it prohibits?
b. Is the HCJ saying that GC IV applies to the Palestinian territories? Why does it refer to GC IV, whereas Israel has always denied its de jure application?
c. (ICJ, Declaration of Judge Buergenthal, para. 9) Do you agree with Judge Buergenthal that, as the settlements are illegal under international law, any measure to protect them, including the construction of the wall/fence, is necessarily illegal?
9. Does Israeli law apply in the occupied territories? What does the Court say in this regard (HCJ, Maraabe, para. 22)? May the protection of Israeli citizens in the occupied territories be based on Israels Basic Laws and its common law?
IV. Proportionality
(HCJ, Beit Sourik, paras 36-85)
10.
a. Do you agree with the HCJs definition of proportionality? With the application of that definition to the facts?
b. Does the HCJ consider that a route for the wall/fence less injurious for Palestinians exists? Does it therefore consider that the present route is disproportionate? Would the HCJ consider the route disproportionate if the security interests and the injury to Palestinians were the same, but no alternative route existed?
c. Does the HCJ consider that if a measure violating IHL is proportionate, it is admissible?
d. Does the ICJ refer at all to the question of proportionality? In the context of IHL or of international human rights law?
V. Human rights law and self-defence
(ICJ, paras 102-113 and 127-137)11.
a. Is international human rights law applicable in armed conflicts? If yes, how do you determine whether that law or IHL prevails if they are contradictory?b. Does international human rights law apply in an occupied territory? Are the reasons the same for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child? According to the ICJ? In your opinion?
c. Are all provisions of human rights treaties fully applicable during an armed conflict? Are derogations due to the exigencies of the situation only admissible so long as they are officially declared?
d. Are the human rights mentioned by the ICJ also protected by IHL in occupied territories? Which are not protected by the latter? Are there any contradictions between those human rights and IHL?
e. Does international human rights law provide for freedom of movement in an occupied territory? Is such freedom compatible with IHL?
f. Does international human rights law lead the ICJ to any conclusion in this case which it would not have reached under IHL?
g. Does the HCJ apply international human rights law?
12. Can the right to self-defence or a state of necessity justify violations of IHL? Of international human rights law? According to the ICJ? The HCJ? In your opinion?
VI. Consequences
(ICJ, paras 147-160; HCJ, Beit Sourik, para. 86)13. What are the legal consequences of the illegality of the wall/fence for Israel? According to the ICJ? According to the HCJ?
14.
a. What are the legal consequences of the illegality of the wall/fence for third States?
b. Do all rules of IHL have an erga omnes character? What is the impact of such an erga omnes character?
c. Does common Art. 1 mean that third States must ensure respect for IHL by Israel? Does it simply confirm the erga omnes character of IHL rules, or does it also have an additional meaning? Do you agree with the criticism by Judge Koojimans and Professor Kalshoven of this interpretation of common Art. 1?
d. In practice, what is meant by the obligation for third States not to recognize the illegal situation resulting from the construction of the wall/fence? What about their obligation not to render aid or assistance in maintaining the situation created by such a construction? What are the reasons for such obligations?
e. What measures must third States take to ensure that the wall/fence is not built? Are there any limitations to those measures?
f. Do you agree with Judge Koojimans criticism of operative subpara. (3)(D) of the ICJ decision?
15. Does Judge Buergenthal consider that the construction of the wall/fence does not violate IHL?
16. Is Judge Higgins right that the ICJ should also have dealt with the broader context, i.e. the suicide attacks by
Palestinians on Israeli civilians? Do those attacks violate IHL? Could such violations have led to different conclusions by the ICJ? If the ICJ had attributed those attacks to the Palestinian Authority?
17. (HCJ, Beit Sourik, para. 86) Do you agree with the HCJ that there is no security without law and that satisfying the provisions of the law is an aspect of national security? If yes, explain why.
ICJ/Israel, Separation Wall/Security Fence in the Occupied Palestinian Territory Case Study
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ICJ/Israel, Separation Wall/Security Fence in the Occupied Palestinian Territory Case Study