Barriers to nation building, the ICJ, Palestine and the Israeli wall

The fundamental paradox facing Israel under international law is that the lawful existence of Israeli sovereignty logically mandates the parallel existence of an equally sovereign and viable Palestinian state. As both entities were judicially created by the UN General Assembly Resolution of 1947, the question that always accompanies the issue of “whither Israel?” must be “where is Palestine?”. Any practical problem that concerns Israeli self-defence, borders, parameters, settlements, or retaliatory actions must involve correlative considerations of Palestinian legal personality. As the International Court of Justice (ICJ) has demonstrated with remarkable verve, any judicial determination of the issue of the barrier Israel is building in the West Bank inevitably doubles as a de facto ruling upon the parameters of the Palestinian national entity.

The problem becomes determining the correct framework within which to situate the wider question of legality: self-defence or self-determination? Prioritising self-defence meets the objectives of Israel, which are, at first glance, unproblematic. Article 51 of the UN Charter and customary international law provide all states with an inalienable right of self-defence, which now includes, following the Afghanistan resolutions, actions against non-state entities.

I would submit that terrorism has recently achieved the same status of international criminality as piracy, conferring upon all states extremely wide latitude in both combating and prosecuting the offence. But herein lies the dilemma: the indisputable legality of the Israeli state ultimately flows from that self-same set of international customary and administrative norms that underlies to an equal degree the guaranteed existence of the Palestinian state. Within the competing “frame” of self-determination, I would argue that the legality of the barrier must be interpreted in the narrowest possible terms, with the evidentiary burden shifting to Israel to positively demonstrate that the structure does not unreasonably impede inalienable Palestinian sovereignty.

Issues of walls and fixed fortifications are extremely problematic under international law for the simple reason that permanent constructions may be interpreted as unilateral declarations of territoriality. There is nothing inherently unlawful about a nation-wide fortification system (for example, the Maginot Line), provided that the contours of such a system strictly correlate with uncontested territorial demarcations. It is precisely this that Israel cannot successfully make out, as recently demonstrated by its own Supreme Court.

Given the fact that the construction of permanent barriers is tantamount to a unilateral declaration of national boundaries, the Supreme Court of Israel found it necessarily to judicially prescribe the alteration of a 40 km section of the barrier in order to make it co-determinant with the “Green Line” of June 1967, the outer extent of what Israel has traditionally accepted as unambiguous national territory.

The problem is that there are at least three contending territorial formulations of the Israeli state: the original UN sponsored model of 1947/48, the pre-Six Day War borders, and the post-Six Day War borders, the last including at least the greater part of the West Bank and the Gaza Strip. As a permanent fixture, the barrier would transform a contested occupied area of “effective control” into overtly annexed territory, tantamount to an act of conquest. There is an unavoidable juridical asymmetry at work here. The integrity of the legal personality of Israel, as established by UN mandate, is not identical with any one particular set of borders, but any unilateral Israeli declaration of territoriality may very well illicitly “decay” the viability of the Palestinian state guaranteed by the same UN mandate.

The barrier would also be illegal if it could be shown to breach a relevant treaty obligation of some kind. Here, the ICJ has closely followed the lead of the Israeli Supreme Court. International human rights and humanitarian law are generally binding upon all states, either through their status as custom or through their direct incorporation into national law through some sort of positive act of transformation.

The Israeli Supreme Court unambiguously grounded part of its ruling upon the domestic status of both the 1907 Hague Regulations and the 1949 Fourth Geneva Convention governing the protection of civilians during wartime. The ICJ, as an international tribunal, went beyond the narrower domestic context and considered Israel to be in breach of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both treaties deemed by the IJC to be of universal application.

The ICJ Advisory Opinion is outstanding in this regard for two reasons. First, it clearly establishes the principle that international human rights law operates outside of state boundaries and within territorially ambiguous areas of “effective control”.

Second, the IJC formulates a fairly rigid “means-to-ends test”, pursuant to its first innovation. That is, if a fortification within a zone of occupation could be shown to possess a harmful effect upon any population disproportionate to otherwise lawful self-defensive measures (now to be interpreted strictly, under the counter-prevailing norm of human rights) or there are discriminatory effects on the basis of ethnic identity, then such a fixture would constitute a breach of binding international law.

This indeed is the impact of the barrier. It restricts the rights and freedoms of Palestinians within their own territory, while seeking to ensure that settlers on illegal settlements are able to enjoy the same rights and freedoms.

The legality of the barrier can only be made out on the basis of a complex balancing act of competing legal and narrative “frames”, under which Israel stands no chance of success, either in fact or in law.