Alfei Menashe: Israel Supreme Court Rules on the Legality of the 'Wall'

The Supreme Court of Israel, and in particular its Chief Justice A. Barak, has been a powerful actor in the peace process, steering a difficult (and often brave) course between acknowleding Israel's security concerns and the protection of the rights of the Arab population. On September 15, the Court ruled on the legality of the separation fence in the area surrounding Alfei Menashe (a segment of the wall of about 40 km). An English summary has been published. The Court concluded that the present route of the fence was inconsistent with international law of armed conflict (in particular the Hague Regulation) and with the constitutional rights of the local Arab population.

Of particular interest is of course how the Court deals with the advisory opinion on the legality of the wall handed down by the International Court of Justice in 2004. The Court acknowledges that the normative basis of both decisions ´is a common one'. The Court, furthermore, recognizes that the advisory opinion by the Hague Court constitutes an important authority on international law. The Court nonetheless reaches a different conclusion, mainly by distinguishing its case on factual grounds.

• The Court criticizes that the Hague Court lacked the necessary factual basis. Hence, Israel's security concerns were not given the necessary weight.

• The Court further critizices the Hague Court for its failure to assess each segment of the wall separately (instead of dismissing its legality altogether).

The Court's criticism is reminiscent of Judge Buergenthal's Declaration to the advisory opinion in the Wall case: "I am compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings". Judge Buergenthal, however, appears to be more critical of the Wall:

• He suggests that "[i]t follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law." - The Israel Supreme Court decided that the question of the legality of the Israeli settlements was not relevant for the legality of the Wall.

• Judge Buergenthal reaches a tentative conclusion that the Wall may be unlawful in its entirety: "I am prepared to assume it, that on a thorough analysis of all relevant facts, a finding could well be made that some or even all segments of the wall being constructed by Israel on the Occupied Palestinian Territory violate international law".

The Supreme Court is probably correct when pointing out the factual insufficiencies in the Hague Court's opinion. Such insuffiency may have partly been due to the Israeli decision not to cooperate with the Court. As it turns out, a politically unwise decision - a view that Judge Buergenthal apparently shared: "While I have my own views on whether it was wise for Israel not to produce the requisite information..."