"The armed conflict has left many dead and wounded.... Bereavement and pain wash over us."
--Aharon Barak, President, Supreme Court of Israel, from Beit Sourik Village Council v. Government of Israel (1)
"I agree with almost all of what the Court has written.... My regrets are rather about what it has chosen not to write."
--Judge Rosalyn Higgins, International Court of Justice, from Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2)
The remarks of President Barak and Judge Higgins reflect that much was at stake when the Supreme Court of Israel (Israeli Court) and International Court of Justice (ICJ) considered the Israeli separation barrier. (3) In Beit Sourik Village Council v. Israel, the Israeli Court gave qualified approval to barrier construction in the occupied West Bank, but ordered the government to reroute barrier segments that caused disproportionate harm to Palestinians. (4) The ICJ Advisory Opinion more broadly held that the entire West Bank barrier route violates international law. (5)
This Article proposes an alternative analysis based on Israeli-Palestinian peace process agreements. The thesis is that the agreements provide a more precise framework of legal obligations for analyzing the barrier, and would more effectively promote peace than the approach in either decision.
To paraphrase Judge Higgins, the agreements fill in what the courts "chose not to write." (6) The Israeli Court failed to consider the barrier as part of Israel's illegal settlement policy in occupied territory. As a result, Beit Sourik wrongly allows a route that perpetuates Israeli possession of occupied territory. The ICJ dismissed Israeli security, and failed to consider that Palestinian failure to stop illegal terrorism led to Israel's erection of the barrier. As a result, the Advisory Opinion wrongly ignores Palestinian legal responsibilities and imposes obligations only on Israel.
An agreement-based framework directly addresses these issues by properly treating the barrier as the result of illegalities on both sides. The analysis affirms Israel's right to defend its citizens, including settlers. However, barrier routes that perpetuate illegal Israeli possession of contested territory would be prohibited.
Part I describes the barrier and summarizes the decisions. Part II analyzes the decisions' impact, showing that while the law now factors in the barrier route, the decisions have not effectively addressed issues central to the barrier, and the larger conflict of which the barrier is part. Part III offers an agreement-based framework and critique of the decisions, comparing peace process obligations with sources of international law that impose similar responsibilities illustrating that the framework is legally correct and would better promote peace. (7)
A final introductory note is that the decisions reflect the courts' different roles. (8) The ICJ is an international court and responded to the request of the United Nations General Assembly for a nonbinding advisory opinion on the entire barrier route. (9) By contrast, the Israeli Court bore the constraints of a domestic court, making a binding ruling with national security implications on a small section of the barrier. (10) It has been observed that the Israeli Court's restraint on security issues contributes to its important ongoing authority in Israeli society. (11) Some have concluded that the Israeli Court's decision on the barrier was a continuation of this and that Belt Sourik was a more pragmatic, effective ruling than the broader Advisory Opinion. (12) Ultimately, because pending Israeli Court cases call for reconsideration of the barrier's legality, the framework proposed here is offered not just as a critique of past decisions but as a suggestion for future ones.
I. BACKGROUND ON THE BARRIER AND SUMMARY OF THE DECISIONS