CIRCUMSTANCES SURROUNDING THE SEPARATION BARRIER AND THE WALL
CASE AND THEIR RELEVANCE FOR THE ISRAELI RIGHT OF SELF-DEFENSE
by Yaroslav Shiryaev
In 2004 the International Court of
Justice (ICJ) proclaimed in a decision that the wall being built in the
Occupied Palestinian Territory, and its associated regime are contrary to
international law.  Israel was ordered to terminate the
construction, dismantle the barrier, and repair all of the damage done in the
It is not without irony that the
history behind this Advisory Opinion and the present circumstances in general,
begin with a rejected request for an advisory opinion. In
theory, an ICJ advisory opinion could have tremendously influenced the relations
between Palestine and Israel and could have had far-reaching legal consequences,
which could have helped avoid certain contemporary legal stalemates.
In February 1947, Great Britain
declared, seeing no solution in sight, it would give up its mandate and
withdraw from Palestine. By doing so, Great Britain placed the problem
before the United Nations General Assembly and the Arab States immediately announced
“that no change in the Mandate was permissible without the consent of the Arab
people of Palestine.” The proposed Partition Plan was rejected and
the Arabs demanded an advisory opinion from the ICJ on the permissibility of the
plan under the UN Charter. With only one vote short, the demand was not
satisfied (20 yes, 21 no, 13 abstentions).
A whirlwind of events followed, including
occupation of the West Bank, Gaza and other territories by Israel, resulting in
what can be characterized as one of the most dire and demanding challenges before
the UN and international community. Evolving
from Cold-War competition, the Arab-Israeli
conflict has outlived the disappearance of the Holocaust generation and has
ended up in the hands of nations that have only ever known conflict with each
This paper will concentrate on the
most controversial act perpetrated in the occupied territories by Israel, the
construction of the Wall in and around the West Bank. Important legal issues surrounding the
construction will be analyzed through the ICJ decision and international law. Specifically, focus will regard the
applicability of the Geneva Conventions to the Territories, the permissibility
of invoking a self-defense argument against terrorism, and the availability of
the Wall as a defensive measure. Finally,
the composition of the ICJ panel will be briefly assessed. Despite being too brief, of poor quality, and
somewhat biased, the Wall Case entails
important positive developments, which helped define the concept of
self-defense in international law, its global interpretation, and affirmed the applicability
of the Geneva Conventions in Palestine.
II. APPLICABILITY OF THE GENEVA
One question the ICJ had to answer
in its advisory opinion was whether the Fourth Geneva Convention (GC4)  was
applicable to the West Bank. Occupation is one of those notions, which does
not tolerate the divorcing of jus in
bello and jus ad bellum concepts,
and should be understood through both. Recognizing the broad ban against
acquiring foreign territory by force is the first step toward understanding the
international legal consequences of occupation. Even if application of the Stimson Note of
1932 and the Briand-Kellogg Pact does not establish a legal obligation to
recognize a forcible acquisition of land, subsequent developments in customary
law certainly has provided a legal basis for such an obligation.
Unlike a mere invasion, occupation is
followed by the establishment of an administration taking possession of the
enemy country. If the administration lasts for longer than a
reasonable period of time, its existence contrasts with the principle of
self-determination: the right of a group of individuals inhabiting a particular
fixed territory to determine its own
political future. When Israel began occupying the Palestinian
territories in 1967, it had no right to remain. Even if Israel originally acted in
self-defense, the defensively taken territory could be kept “only so long as
necessary to forestall the aggression that precipitated the taking.” In other words, even if the State of Israel was
being attacked sporadically, it is required to adhere to a gentleman’s reaction.
This means Israel had to enter enemy
territory, lay the enemy flat on its back, and then withdraw. Israel instead remained and its lengthy
occupation and construction of the Wall
has been criticized as a de facto attempt
to annex Palestinian land for new Jewish settlements.
One scholar, Nicholas Lancaster,
has noted that customary international law no longer recognizes the occupier as
a mere trustee, but grants it the “authority to transform the occupied state’s
form of government and economy to reflect democratic values.” It is true that Israeli management in the West Bank manifests some unusual democratic features, but there
is no indication that Israel’s occupation has continued for over four decades
in order to establish democratic values within Palestine. Moreover, such post-occupational interference would
be contrary to the realization of the right to self-determination, which itself
is to be considered a violation of human rights.
the 1967 occupation, a dispute has existed regarding the applicability of the GC4 in
the Palestinian territories. In theory,
the Geneva Conventions are applicable from the outbreak of hostilities and continue
to protect the inhabitants of occupied territories when they find themselves in
the hands of an occupying state. Israel has always stated that it cannot be
considered an occupying power within the meaning of the GC4 because “Arab
States which controlled the occupied territories prior to 1967 were not
legitimate sovereigns in those areas.” According to Henry Cattan, Israeli supporters justified
the occupation by rejecting the partition of Palestine by Arab States, coupled
with the Arab States’ armed intervention in 1948, which had caused the
partition resolution to
lapse. Professor Rostow contends that instead of the
GC4, the 1917
Balfour Declaration was
the law applicable in the occupied territories. As argued by Lisa Hajjar, the idea behind
stressing Israel’s administrator versus occupier status was to “leave open the
possibility of a future claim on (some or all of) the captured lands.” Moreover, recognition of belligerence deprives
Israel of its status as the “sole international actor for the disputed
Israel’s view on the inapplicability
of the GC4 met harsh opposition in the face of international lawyers, the ICRC
and the international community as a whole. The opposition contested that “Article 2 of
the GC4 was drafted to cover all cases of occupation and that the civilian
population is not to be denied the protection of the Convention on the basis that
the status of the previous occupier is uncertain.” It has even been argued that the Israeli
Supreme Court treats the Palestinian territories differently than its own government
and has accepted jurisdiction over complaints of violations in the occupied
in the Wall Case, Israel naively reiterated
its argument about the inapplicability of the GC4 in the Palestinian Territory,
citing “the lack of recognition of the territory as sovereign prior to its
annexation by Jordan and Egypt,” and inferring that it is “not a territory of a
High Contracting Party as required by the Convention.” The ICJ also chose to cite a bona fide interpretation requirement arising
out of customary international law reflected in Article 31 of the Vienna
Convention on the Law of Treaties (VCLT). After taking note of the travaux préparatoires and
relevant UN Resolutions,
the ICJ simply concluded that GC4 was applicable in the occupied territories.
Occupation as Continuation of an Armed Conflict
When analyzing the Israeli occupation, it is important to note the ICJ’s
observation in the Wall Case that GC4 is applicable “when two conditions
are fulfilled: that [1)] there exists an armed conflict (whether or not a state
of war has been recognized); and [2)] that the conflict has arisen between two
It is also relevant to recall at
this point that two conclusions were reached by the Criminal Tribunal for the former Yugoslavia in the Tadic Case: 1) that armed conflict exists whenever there is a resort to
armed force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State, and
humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace
is reached; or, in the case of internal conflicts, a peaceful settlement is
achieved. [Furthermore,] until that moment, international humanitarian law
continues to apply in the whole territory of the warring States or, in the case
of internal conflicts, the whole territory under the control of a party, whether
or not actual combat takes place there.
Theoretically, Israel could support its
argument by asserting that GC4 ceased to apply one year after the general close
of military operations (according to Article 6(3) of the GC4), when peace has
been forcefully established. The problem is that a proper peace agreement
has never been reached between Palestine and Israel. Moreover, according to Security Council
Resolution 242, establishment of just and lasting peace in the Middle East
requires the withdrawal of Israeli armed forces from the occupied territories. It may be argued that the Oslo Accords
symbolized an appropriate settlement, but even there upon closer inspection, it
is revealed that the Accords cannot be perceived as a peace treaty for several reasons. First, the Accords have been breached by both
sides. Second, the Accords left the
Palestinian territories with ambiguous political and legal status. Finally, the Accords recognized the PLO as the
representative of the Palestinian people but ignored
Hamas and Islamic Jihad, groups that historically participated in armed
Therefore, there is no
possibility that the GC4 is not applicable in the occupied Palestinian
territories. The State of Israel should
decide that the GC4 will be applicable in the West Bank and Gaza territories as
long as Israel holds authority over external security, border control and other
aspects of sovereign Palestinian lives.
Acknowledgement of the proclamation of the State of Palestine,
granting it observer status in the UN, and
expressions of anticipating full recognition as a country,
indicate that the world community prefers to see Palestine as an occupied sovereign
state that severed its connection with Jordan. Judge Kooijmans, a presiding judge in the Wall Case, argues that Jordan’s claim over
the West Bank in 1967 “strengthen[ed] the argument in favor of the applicability”
of the GC4.  This argument is unsubstantiated since
Palestine is now an individual occupied state, and even though Jordan ratified
the GC4, that does not automatically mean that the GC4 applies in the West
Bank. However, one cannot disagree with
the point brought up by Judge Al-Khasawneh:
[F]ew propositions in
international law can be said to command an almost universal acceptance and to
rest on a long, constant and solid opinio
juris as the proposition that Israel’s presence in the Palestinian
territory of the West Bank including East Jerusalem and Gaza is one of military
occupation governed by the applicable international legal regime of military
A tandem of scholars, states, and political bodies have contested the inapplicability
of the GC4 to the occupied territory, but the ICJ’s advisory opinion ended the
debate once and for all. Having failed
to obtain the support of any of the ICJ Judges, Israel has now run out of options
except to acknowledge the defeat of its theory. Even if Israel continues to withstand, the Wall Case is precedent which other
countries will look to; and in that sense, it is the last nail in the coffin of the Israeli non-applicability of GC4. The ICJ’s simple but powerful conclusion on
this issue is a very valuable accomplishment stemming from the Wall proceedings.
E. Palestine’s Ratification of
the Geneva Conventions and the Applicability of the First Additional Protocol
While important and valuable, the ICJ’s conclusion regarding the applicability
of the Geneva Conventions seems incomplete because the ICJ did not consider
whether Palestine could be a High Contracting Party to the Geneva Conventions. In a letter dated June 21, 1989, the Permanent
Observer of Palestine to the United Nations Office at Geneva informed the Swiss
Federal Council “that the Executive Committee of the Palestine Liberation
Organization, entrusted with the functions of the Government of the State of
Palestine by decision of the Palestine National Council, decided, on 4 May
1989, to adhere to the Four Geneva Conventions … and the two Protocols
At first glance, such a consideration would seem like an unnecessary burden
for the ICJ. Israel’s ratification of the Conventions on
July 6, 1951, is enough to speak of the application of the GC4, however, the
importance of the Permanent Observer’s letter becomes apparent when considering
the applicability of the First Additional Protocol (AP1) in the occupied
territories, which Israel did not ratify, but which places additional obligations
on the occupying power. The applicability of AP1 was noted expressis verbis in the preambulatory
part of the Resolution ES-10/14, wherein
the General Assembly requested an advisory opinion on the Wall, but it was not
noted by the ICJ nor any of the Judges in
their dissenting opinions (with the exception of, perhaps, Judge Kooijmans).
Since Palestine is seen as an individual state-like entity by the world
community, recognized by more than 100 UN States, and is
not commonly recognized as part of Israel, Jordan or any other country, there
is no logical reason why Palestine should not be permitted to accede to
international agreements, especially those meant to protect human rights. Therefore,
one must conclude that in addition to the Geneva Conventions, AP1 is also
applicable in the occupied territories, a fact the ICJ clearly missed.
It has been argued that “throughout history the first type of civilian
conduct towards an occupying army comes loosely under the term obedience.” Countries predominately populated by Muslims may
be an exception to this rule. The Quran and Sunna “strongly disapprove a do-nothing fatalistic approach to
oppression.” Moreover, the objective of the Islam message
is a decisive “declaration of man’s freedom.” Egyptian Judge Elaraby, in his separate
opinion in the Wall Case, took a
completely opposite approach to the obedience theory. He states, “[t]hroughout the annals of
history, occupation has always been met with armed resistance. Violence breeds violence.” He later concluded that Israeli occupation “is
the heart of the whole problem.” Faith cannot be taken as an excuse for acts of
terror, especially violent acts that deliberately target innocent civilians and
undermine rudiments of a civil society. Now, there is a general consensus among the
international community that terrorism must be condemned and that
all nations condemn it. Furthermore, “humanitarian law also denounces
acts of terrorism committed in both international and internal armed conflicts.”
Article 2(4) of the UN Charter prohibits the use and threats of force and Article 51 provides an exception from this
rule: the right of self-defense. In exercising such a right, necessity and
proportionality principles are of utmost importance and aside from the UN Charter
itself, the right of self-defense exists as a separate customary international norm.
Despite the fact that the UN Charter
sets out promotion of peace as a clear-cut purpose, it is “subsumed into the
United Nations’ larger goal of establishing and maintaining a stable international
Although self-defense does not require an authorization from the UN Security
Council, within the system of collective security that the UN backs up,
self-defense is “only an exceptional, subsidiary and provisional right.” At the
time it was being drafted, use of force under the Charter was intended to be
monopolized by the UN. However, it is important to understand that the
obligation to refrain from the use of force was initially limited only in
relation to Member States and not imposed on all states as a general principle. German and Japanese membership in the
Organization in the post-war environment was hard to predict and the UN was
seen as an organization more like the League of Nations. Nevertheless, the organization grew and so did
its dominance regarding the use of force. This dominance was evidenced most notably by rejecting
the Soviet proposal to draft a World
Treaty on the Non-Use of Force in 1978, claiming a possible conflict with
the Charter rules. The Charter rules started to be interpreted
collectively by the international community of diplomats, government officials,
legal professionals and media commentators,
whereby international law served as a communication device that helped “frame
various claims which states wished to make to other States and institutions in
defense of their coercive actions.” Rosalyn Higgins, a presiding judge in the Wall Case, wrote in 1963, that such
communication was “not an innovative development in questions pertaining to the
use of force.” 
Through such communications, international law began to develop ways to “bridge
the gap between what is requisite in strict legality and what is generally
regarded as just and moral.” It has been argued that during the last ten
years that the jus ad bellum concept
of legality was replaced by the concept of legitimacy. The problem with legitimacy in particular is
that when the issue concerns a political topic such as terrorism, “it means
different things to different people.” So too, the permissibility of self-defense
against acts of terror has been evaluated differently in different situations,
especially after the 9/11 bombings.
No terrorism-related discussion can make do without mentioning the lack
of a specific definition or the vast amount of differing definitions for what
exactly is terrorism. Modern international law is limited to a small
number of widely accepted conventions, which reflect customary norms of
international law, and prohibit certain types of conduct. Since the exact
description of terrorism is not important for the present thesis or the Wall Case in general, this paper will highlight
three basic elements without which the concept of terrorism cannot exist. These three elements are fear, violence, and
an impact on civilians. An offense can only be called an act of terror if the
consequences of the action instill a sufficient amount of fear in a civilian
population. Violence, or at least a remotely perceivable
possibility thereof, is a crucial component of terrorism, since physical
violence is the only method capable of causing civilians to experience a
feeling of terror. Therefore,
terrorism is violence aimed at inspiring fear and intimidation in a population. One might add to that Münkler’s observation
that terrorism “mainly seeks to produce results in an indirect way.”
Israel’s success in gaining the Bush Administration’s consent to link
Yasser Arafat to the War on Terror has
led to a rapid deterioration of human rights in the occupied territories. It is no secret that today the label terrorist is pejorative, “a badge which
denotes a lack of legitimacy and morality.” It is exactly this label Israel is
persistently trying to demonstrate to the world community in referencing to the
violence occurring in the occupied territories. But can actions of Palestinians, in the West
Bank in particular, be properly characterized as terrorism? During the four decades of occupation, certain Palestinian
groups operating within the West Bank resorted to indisputably terrorist
tactics, including rocket attacks, hostage taking and suicide bombings. But upon
closer inspection, it is revealed that since the end of the Second Intifada,
West Bank terrorist groups (unlike Hamas in Gaza) have been relatively quiet. Al-Aqsa Martyrs’ Brigades are now formally at
peace with Israel, while the final powerful terrorist organization in the
region, Islamic Jihad, perpetrates only one to two acts of terror each
Today, these few attacks justify political assertions that classify the Palestinian
resistance as terrorism and portray these terrorists
“as monsters unworthy of moral dialogue,” whom
always prefer the hope of annihilating Israel to any peaceful solution. In turn, this makes it easier for Israel to “implement
the reprisal policy enunciated by Ben-Gurion in 1948 by which ‘there is no need
to distinguish between guilty and innocent.”’ Furthermore, in the eyes of Israelis, the
terrorist status helps justify punitive counterattacks in the West Bank, Gaza
and Lebanon, whereby 50 to 100 Arabs are killed for every one Jewish fatality. Actions by Israelis are
very rarely mentioned as acts of terrorism.
Professor Gerald M. Steinberg states that the terrorist attacks
emanating from the West Bank were greatly reduced following the application of
the Israeli Defense Forces’ (IDF) policies by the end of 2002, the year the construction
of the Wall began.  One cannot dispute the fact that the Wall and the
Israeli checkpoints along it have been a major factor behind the significantly
lessened number of terrorist attacks. Here,
one may observe a paradox: rare acts of violence in and out of the West Bank do
not amount to a level of widespread terrorism that requires such drastic
measures as the construction of the Wall; however, it is this same barrier that
is preventing the acts of terror from amounting to such a level. Nevertheless, it seems clear that it is
terrorism, and not minor and sporadic acts of violence, that the Wall is meant
The ICJ again remained silent on why Palestinian actions could be
properly labeled as terrorism. Judge
Kooijmans, in his separate opinion, notes that the “rather oblique references
to terrorist acts which can be sound at several places in the opinion are … not
sufficient.” He also chose not to discuss the topic directly
and confined his opinion to merely stating that the core element of terrorism
is “deliberate and indiscriminate attacks against civilians with the intention
to kill,” which is an inaccurate definition. Judge Owada has a similar interpretation but does
not reference murder. This definition,
“indiscriminate violence against [a] civilian population,” is a
little better than Koojimans’, but is also far from accurately identifying the
legal reality of terrorism in the West Bank.
United Nations Security Council Resolutions 1368 and 1373 recognize an
inherent right to self-defense in the context of anti-terrorist measures, although
the fact that they are mentioned together in the Wall Case does not establish a “conceptual or normative link
between them.” It could be argued that massive international
support for the legality of the US claim to self-defense in Operation Enduring Freedom, could constitute “instant
customary international law and an authoritative reinterpretation of the UN
Charter.” However, use of force is not so abstract that
customary international norms relating to force cannot be brought into
existence or modified in a short period of time. Despite that, a state’s right, under Article
51 of the Charter, to defend itself against terrorist groups has been
vigorously defended by many scholars. Some even believe that since the threat is
often asymmetric and transnational, the UN “is institutionally and materially
not equipped to deal with each terrorist threat as it arises and, thus, nations
are largely left on their own to resolve the problem.” The general consensus is that a
ather than measuring the gravity of each
individual terrorist attack according to the threshold necessary for an armed
attack, consideration is given to the cumulative effect of a series of attacks,” whereby
“instead of expiring immediately after any single attack, the right to
self-defense survives [the duration of the attack] and allows states to take
forcible action necessary to put an end to the chain of attacks.” Ady Niv writes:
For the purpose of discussing the Advisory
Opinion, it seems safe to state that the terrorist actions which, presumably,
led to the construction of the Wall have reached the magnitude needed to be
qualified as “armed attack” for the purpose of Article 51, either because a
sole act was of sufficient magnitude or because the scale and effects of the
terrorist acts, taken all together within a certain period of time, were
serious enough. Those who wish to argue otherwise will have to absurdly explain
how terrorist attacks that resulted in the deaths of hundreds and the injury of
thousands do not qualify as armed attack.
Wedgwood, “the Charter’s language does not link the right to
self-defense to the particular legal personality of the attacker,” and
“it would be illogical to strip an occupying State of its right of
self-protection at the moment it has taken provisional control of an adversary
territory.” Moreover, “ inconceivable that
actions the Security Council deems itself competent to take against non-state
actors … should be impermissible when taken against the same actor under
Article 51.” a
single authority in support of [its] position,” and “it gives no reference to
anything in the drafting history of Article 51, the Court’s prior decisions,
the writings of commentators, or resolutions by the General Assembly (on which
the ICJ relies in other parts of the decision) that support this interpretation
of Article 51.”
Many believe Palestine should be considered a de facto occupied country without borders. This opinion is confirmed by several UN documents
and multiple states’ positions. Even the ex-prime minister of Israel, Ariel
Sharon, admitted that the Palestinian entity, upon implementation of the “Road
Map,” would become a fully complete
This bears great importance. Unlike
Article 2(4) of the UN Charter, which merely prohibits use of force, the
Declaration on Friendly Relations
requires positive action on the part of a state “so as not to acquiesce in or
tolerate terrorist activities originating from within its territory.” Before 9/11 a position dominated in
international law, according to which acts of self-defense could only be applied
against a state that had engaged in a wrongful use of force. An International Law Commission concluded in
1980 that “an armed intervention into a State in order to attack terrorists
cannot be regarded as self-defense when the State itself has not been guilty of
an armed attack and has not directed or controlled the terrorists in question.” This was further underscored by the
international community’s condemnation of the United States’ bombing of Libya
in 1986 in self-defense. The US government presented arguments almost
identical to the ones Israel uses in attempts to justify the construction of
the Wall today. They include, inter alia, claims that:
1) The US attempted to use peaceful means first,
then other measures (sanctions) but did not succeed to make Libya alter its
2) The “ongoing pattern of attacks” by Libya
against US citizens and installations “over considerable period of time”
amounted to an armed attack;
3) There was clear evidence of future threats and
terrorist actions by Libya against US targets, i.e., there was an immediate
threat, leaving no moment for deliberation;
4) There was a necessity for a preemptive action
to deter future Libyan attacks, to provide it with “incentives to alter its
Exactly these same arguments convinced the Security
Council to approve the Afghanistan invasion in 2002, in which the United States
and Coalition Forces went further than destroying the terrorist infrastructure
in Afghanistan in order to prevent further al-Qaeda attacks, but also overthrew
the Taliban authority (a controversial act from an international law point of
view) replacing that authority with a more democratic regime. As noted by Joanne Wright, “although several countries [voiced] their concerns
about the value of military action against terrorism and the scale of America’s
actions, there was no dispute [over] the USA’s right to take action on the
basis of self-defense against future possible attacks.” Similar
arguments can be made regarding the Israeli intervention in Lebanon in
2006, where many states rejected Israel’s disproportionate use of force, but
not its basic right to use force in response to Hezbollah’s actions.
These examples indicate that no direct link to a country is required to
implement self-defense and a state that has been the target of a terrorist
attack, or is subjected to the danger of an imminent terrorist attack in the
near future, has the right to act in self-defense aimed at neutralizing the
terrorist organization located in the territory of another State, “even in the
absence of any responsibility on the part of the State where the terrorists [are]
located.” The construction of the Wall, a much less
drastic measure than using force would also be permissible. It is prudent to conclude, therefore, that the
old criteria of the International Law Commission does not apply to the
situation in the West Bank and that under proper circumstances Israel has the
right to take action in self-defense, regardless of whether Palestine is a
recognized state or not.
The right of self-defense
as contained in the Charter is a rule of international law and thus relates to
international phenomena. Resolutions 1368 (2001) and 1373 (2001) refer to acts
of international terrorism as constituting a threat to international peace and
security; they therefore have no immediate bearing on terrorist acts
originating within a territory which is under control of the State which is
also the victim of these acts.
advocating, Judge obviously contradicted
himself, by branding the Israeli-Palestine conflict and terrorist acts
emanating from Palestine as “non-international,” although all cases of
occupation are international in nature. His
conclusion automatically means that instead of the 1949 Geneva Conventions
(including GC4) hostilities would be subject to Common Article 3 and the Second
Additional Protocol. A preferable
opinion is that of Judge Higgins, who held that the idea that an armed attack
cannot emanate from the occupied territories is “unpersuasive.”
The ICJ’s strange behavior in relation to UNSC Resolutions could be due
to the reality that despite the fact that the ICJ enjoys a role in reviewing
the legality of Security Council decisions, the
role of the latter in international relations is more important, and
is similar to that of a legislative body, whereby the Judges are merely
interpreting the law. The ICJ, therefore,
must either accept the binding nature of the resolutions, as it usually does or
confront them altogether. However dubious UNSC Resolutions 1368 and 1373
may be, in the Wall Case, the ICJ
should have at least discussed the Resolutions’ limitations and differentiated terrorism
in the West Bank from actions perpetrated by Al-Qaeda.
response to the Wall Case has been
defiant; “the ICJ has through its opinion itself become ‘a sponsor of terror.”’  Although the statement itself may be an
exaggeration, it certainly describes the feeling experienced by many Israelis
that the ICJ wants to remove a successful measure, which has diminished the
number of Palestinian acts of terror. Unlike
Judge Higgins, some believe that
non-forcible measures (including building the Wall) actually fall within the
inherent right to take actions in self-defense guaranteed by Article 51 of the
UN Charter.  The legality of self-defense measures is
ensured primarily by customary international law. The Middle East has been described as a
battleground between two self-preserving peoples and
the ICJ itself pointed out that “Israel has to face numerous indiscriminate and
deadly acts of violence against its civilian population” and that “it has the
right, and indeed the duty, to respond in order to protect the life of its citizens.”
Neither the ICJ itself, nor any of
the Judges, noted that the construction of the Wall could be considered as a permissible
measure under anticipatory self-defense. In this particular case, anticipatory
self-defense defined as the use of force by a state which has been the victim
of an armed attack and has knowledge that further attacks are planned. Professor Amos Guiora writes:
fight against terrorism takes place in what has been referred to as the “back
alleys and dark shadows against an unseen enemy,” the State, in order to
adequately defend itself, must be able to take the fight to the terrorist
before the terrorist takes the fight to it. From experience gained over the
years, it has become clear that the State must be able to act preemptively in
order to either deter terrorists or, at the very least, prevent the terrorist
act from taking place.
While the right to preemptive, armed
self-defense measures against imminent threats is permitted by customary
international law stemming from the Caroline
case, and affirmed by the UN
in the In Larger Freedom Report and the Report on Threats, Challenges and Change, an
unarmed preventative act of self-defense against a future putative threat
should also be allowed, as long as it likely entails fewer negative
consequences than an armed preemptive attack. Keeping in mind, as former UN
Secretary-General Kofi Annan once said, “the right to use force preventively
sets precedents for a proliferation of the unilateral and lawless use of force,
with or without justifications.” Preventive action should always be based on
the proposition that it is possible to foresee the future and in that sense,
Israel could have reasonably expected future terrorist attacks if it had not
erected the Wall. 
Israel also satisfies the anticipatory action test. Since Israel’s choice was capable of providing
“reliable, viable, valid and corroborated intelligence, reviewed by a court of
law,” the “review” being the conclusion reached by the ICJ in the Wall Case at paragraph 141. Moreover,
allowing non-violent self-defense tactics against an armed terrorist attack
must be more readily accepted than tactics which involve the use of force. But taking into account the ICJ conclusion in
the Nicaragua case, it is necessary
to distinguish “the most grave forms of the use of force (those constituting an
armed attack) from other less grave forms.”  So the terrorist acts would have to reach a
certain level of “graveness” before justifying any defensive measures, whether
armed or not. According to statistics
provided by the B’Tselem Information Center, from the period of September 29,
2000 to December 26, 2008, 198 Israeli civilians were killed by Palestinians in
the West Bank, 135 Palestinians were also killed by other Palestinians, and an additional
490 Israelis were killed in their own territory by Palestinians.  It is noteworthy that many of these killings do
not qualify as acts of terrorism, have no connection with the terrorist groups
operating within the region, and were perpetrated simply out of hatred by
others. In contrast, the Israeli Supreme Court
2000 until the beginning of April 2004, more than 780 attacks were carried out
within Israel. During the same period, more than 8200 attacks were carried out
in the area. The armed conflict claimed (as of April 2004) the lives of 900
Israeli citizens and residents. More than 6000 were injured, some with serious
wounds that have left them severely handicapped.
Whatever the numbers are, Hamas and Islamic
Jihad, as well as attacks emanating from the West Bank before and during construction
of the Wall, clearly reach the necessary threshold to be considered an “armed
attack” under the needle prick theory. This
theory, though controversial, is more legitimate in light of the employment of
the non-violent preventative measures such as the Wall, chosen by Israel. Lastly, as with any self-defense measure, the
degree of necessity and proportionality should be evaluated to determine the
permissibility of the preventative action, in addition to evaluating the
seriousness of the threat.
The ICJ’s position, expressed in the 1996 Nuclear Weapons advisory opinion, declares that necessity and
proportionality apply “to Article 51 of the Charter, whatever the means of
force employed.” Accordingly, “the submission of the exercise
of the right of self-defense to the conditions of necessity and proportionality
is a rule of customary international law.” Since the ICJ held in the Wall Case that Israel
could not rely on Article 51, it also chose not to address proportionality and instead
concentrated its attention solely on the doctrine of necessity. In the judgment, the ICJ referred to Article
25 of the International Law Commission’s Articles on State Responsibility. In short, the ICJ “was not convinced that the
destruction carried out contrary to the prohibition in Article 53 of the [GC4] was
rendered absolutely necessary by military operations.” Judge Elaraby chose to clarify in his separate
opinion that “a distinction must be drawn between building the Wall as a
security measure [and the idea that] necessity could be invoked to justify the
unwarranted destruction and demolition that accompanied the construction
process.” This distinction seems logical and further
analysis is based on the division between the necessity for the Wall as a
security measure and the ramifications of the destruction of Palestinian houses
along the planned route. According to
Israel’s Ministry of Foreign Affairs, the Wall is “a sad necessity, designed to
prevent Palestinian suicide bombers from infiltrating Israeli population
centers and Jewish settlements in the West Bank.” It has also been argued that without control over
the West Bank, Israel would be totally indefensible against external threats. It is true that “the State’s ability to
control its borders and prevent the unchecked passage of people into its
territory is considered to be one of the primary symbols of sovereignty.” Moreover, there are no obstacles in customary
international law that would not allow for a sovereign state “to build
separation barriers on its international borders in order to prevent infiltration
into its territory.” Walls have existed for thousands of years as
means of deterring enemy attacks and have been recognized as non-violent
defensive measures. Prominent examples include
the Great Wall of China, Hadrian’s Wall, the Berlin Wall and the more recent Indian
The latter has much in common with the West Bank Wall. The Indian Kasmir
Barrier also employs a network of motion sensors, alarms, and thermal imaging
devices. Its stated purpose is “to exclude arms
smuggling and infiltration by Pakistani-based separatist militants or
terrorists, who wish to bring Kashmir into Pakistan, or gain independence for
Kashmir.” But the Indian fence also
“divides villages and creates hardships for farmers separated from their land,
and it is likely to make the unfortunate division of Kashmir more or less a
fixed fact (at least for the foreseeable future) [and it] is built on [ ]
Indian territory.” The West Bank Wall, on the other hand, runs
deep inside the disputed Palestinian territory. It seems that this fact is most responsible
for the active pursuits to condemn Israel, while the Kashmir Wall is criticized
only by Pakistan. Notably, “even Pakistan has been more severe in its public
attacks on the Israeli Barrier than on the Indian one.”
Gary Schmitt writes that comparing the Berlin Wall with the one in
Palestine is inappropriate:
The moral and political associations are wrong.
Whereas the purpose of the Berlin Wall was to prevent East German citizens who
hated their government from escaping to freedom, the purpose of the security
fence is to keep Palestinians devoted to their leader from blowing up Israeli
the Israeli project a Berlin Wall of the 21st century is harsh, one cannot
ignore certain similarities. Approximately
10,000 Palestinians have become physically separated from the rest of the West Bank, in
what some refer to as “ghettos,”
while “a greater number have been isolated from farms, grazing lands and water
resources located on the west side.” According to a Human Rights Watch report, “the
Barrier embodies long-term and severe restrictions on the movement that causes
disproportionate harm to the lives of tens of thousands of Palestinian
civilians.”  Many Palestinian workers depending on jobs
inside Israel face severe difficulties or are prevented from reaching their
work place. In addition, as the ICJ concluded, the Wall “severely
impedes the exercise by the Palestinian people of its right to
Israel defends the necessity of its actions by referring to the fight
against terrorism. Israel has been waging this fight since before it established
a presence in the Palestinian territories in 1967. Furthermore, “there is nothing in
international law that requires Israel to maintain open borders with … [a]
hostile territory, whatever its sovereign status.” However,
the necessity of building the Wall deep within the West Bank occupied territory
could be called into question.
One might suggest that Israeli settlements in the West Bank are in
peril. Ignoring the question of their
legality under GC4 and AP1, it is important to note that as of June 2007 there were
235 Israeli settlements in the West Bank, including East Jerusalem, 135 of
which are recognized by the Israeli government, while 100 outposts are simply tolerated. US Secretary of State Webster’s correspondence,
following the Caroline incident,
mentioned having “no choice of means” for the location of the Wall. Prior to construction, Israel did not show
that there were alternatives besides the Green Line. In choosing the route for the Wall, Israel (perhaps
even guided by motives of fear described by Hobbes) was
selective in understanding its own security and
ignored the fact that its settlements could actually weaken Israel’s security “because
each settler, each settlement, and each bypass road connecting Israel to the
settlements requires protection from the [Israeli Defense Forces].” Repatriation
of Israel’s settlers would be a better alternative and Israel should have
considered it. The ICJ confirmed this by
implying that the “construction of the Wall along the route chosen was [not]
the only means to safeguard the interests of Israel against the peril which it
has invoked as justification for that construction.”
The ICJ held in the Nuclear
Weapons case that “the protection of the ICCPR [International Covenant on
Civil and Political Rights] does not cease in times of war.” Therefore,
it was logical to expect that Israel would build the Wall causing minimum
amount of human rights violations for the Palestinians. Instead, Israel adopted a policy of land
requisition and mass demolition of houses built without a permit. Olive trees, fruit trees, and farmlands were uprooted
or destroyed. Summarily, the damage done by Israel amounted
to violations of freedom of movement, rights to property, healthcare,
education, work and food. That is why Judge Elaraby concluded that the “magnitude
of the damage and injury inflicted upon the civilian inhabitants [uninvolved in
terrorist attacks] in the course of building the Wall [within the Palestinian occupied
territories] is prohibited by … law.” Even
if the Wall itself is necessary, the actions described above are clearly
outside the boundaries of necessity.
In addition, as pointed out by Judges Buergenthal and
Kooijmans, the satisfaction of the
proportionality requirement must be called into question. Both Judges rightly noted that “given the
demonstrable great hardship to which the affected Palestinian population is
being subjected in and around the enclaves created by those segments of the Wall,” and
“the route chosen for the construction… [and] the consequences… are manifestly
disproportionate to the interests Israel seeks to protect.”
Despite the ICJ’s conclusion that erection of the Wall violated
international law and that construction should be stopped, the construction continued. Today many claim that Israel’s defiance of the
UN and its case law destroys respect for the UN and international legal
principles in general. Proponents of the Wall respond by saying that “in
condemning [Israel’s] defenses the Court has condemned its own set of legal
norms, in the process becoming ‘equally guilty of … betrayal’” and of sponsoring
Alan Dershowitz describes three alternatives why Israeli citizens may feel
that violations of human rights, including those entailed by the Wall
construction, in Palestine are acceptable:
1) Not the worst in the world: Israel is not “the prime example of human
rights violators in the world.”
2) Better than the Arabs: the Arabs in general and the Palestinians in
particular deliberately [attack] innocent civilians in wars of “genocidal
aggression,” whereas Israel only inadvertently [targets] civilians in
legitimate defensive [action against] terrorists or Arab military targets.
3) [Israel’s human rights record is b]etter than
any other countries “in the history of the world” that have faced “comparable
threats” to its survival,
including most Western nations.
The Israeli Court also elaborated its own approach. Two months after the General Assembly
requested an advisory opinion on the legality of the Wall, the Israeli Supreme
Court hastily began a hearing in the Beit
Sourik case. This case concerned the legality of orders
issued by the IDF regarding a stretch of approximately forty kilometers of
existing and planned construction north of Jerusalem. The Israeli Court omitted “the question of the
application of the [GC4],” because “the parties agree[d] that the humanitarian
rules of the GC4 [applied] to the issue under review.” The Israeli Supreme Court concluded that
international law permitted Israel to take possession of an individual’s land
in order to erect a separation fence if it was necessitated by military needs. The Supreme Court held that the Wall was
justified by necessity, because it was intended to take the place of combat
military operations, by physically blocking terrorist infiltration into Israel. The Supreme Court, however, noted that “the
route of the Separation Fence must take the needs of the local population into
account.” The President of the Israeli Supreme Court, Aharon
Barak, suggested a 3-step test in order to verify whether the Wall was a proportionate
measure. The test required that the Israel’s “objective
be related to the means” used and that the means must be the least injurious available
and, finally, “the damage caused to an individual” should be proportionate to
the gain brought about by the means employed. Eventually the Court decided that the parts in
question were not proportionate. This meant that Israel had to alter the
planned route for the Wall.
A similar decision was reached in the Mara’abe case, issued roughly one year after the Beit Surik judgment. In Mara’abe,
the Israeli Court employed the criteria adopted in Beit Surik and held that Israel must alter the route of a portion
of the Wall since the planned route was not proportionate. Unlike the Beit
Surik decision, which was released a few days before the ICJ’s Advisory
Opinion, this time, the Israeli Supreme Court had to deal with the ICJ’s decision
directly. The Supreme Court contended
that Article 51 of the UN Charter did not limit the exercise of the right of
self-defense to attacks perpetrated by states. It further held that “the military commander …
[is] authorized to protect Israeli citizens in the [West Bank] and even to
impinge upon other rights for that purpose, as long as the impingement is a
proportional one.” By openly disagreeing with the ICJ, the
Israeli Court “declared its factual superiority.” Further, the Supreme Court now considers the ICJ’s
decision obsolete, since following the Beit
Surik decision, the Wall no longer annexes as much territory as was planned
initially. Though the Israeli Supreme Court’s approach of
determining legality of the Wall part-by-part, and not as a whole, seems more suited
to properly find the balance between security and human rights concerns, the
approach deliberately avoids the international aspect of the construction
around Israeli settlements as a whole. International
law is closely interlinked with political considerations, and until the Supreme
Court of Israel starts confronting such considerations, its decisions will
differ from the ICJ’s advisory opinion.
Unlike contentious cases, the
purpose of the ICJ’s advisory jurisdiction is not to settle international
disputes, but rather to “offer legal advice to the organs and institutions
requesting the opinion.” The very fact that an advisory opinion on a
question directly connected with a dispute between states is made by an
international political organ (such as the General Assembly) was requested is an
indication that “the states concerned have not agreed to settle the dispute by
a binding judicial decision within the framework of existing law.” Rosalyn Higgins concluded in 1996, that the
use of advisory opinions usually occurs “when unforeseeable problems arise for
the working of UN organs or agencies.” Construction
of the Wall, which began in 2002, on one hand, sharply reduced the number of
terrorist acts within the region, but
on the other, continues to entail dangerous humanitarian consequences, has
surely presented a problem. Moreover, as
argued previously, the situation in the Palestinian occupied territories has,
for a long time, been one of the most important political concerns of the United
The principles of democracy that the
UN and its organs adopt foresee the following norms to be required of a judge: “[h]e
must act with impersonal dignity; he should show no emotion, sympathy or
revulsion; he must act with earnestness and decision.” It is understandable that judges “are not
computers or automatic machines programmed to come out with answers when
appropriate levers are pushed.”  ICJ judges should not be political ambassadors
of their own countries and personal involvement in political affairs should be
Many accused the ICJ of
intentionally including a judge from Jordan (Al-Khasawneh) and a judge from
Egypt (Elaraby), “two States that regularly take anti-Israeli positions.” Some even claimed that the Judges were guilty
of violating the code of professional conduct, as it was their duty to recuse
themselves. In the past, Judge Elaraby has been accused of
repeatedly criticizing Israel in his capacity as Egyptian ambassador to the UN,
as well as in an interview given when he was no longer ambassador. Despite Israeli objections, he was not precluded
from the ICJ panel. Only Judge
Buergenthal voted against Elaraby’s presence. It does not seem that having two Arabic judges
(who interestingly, avoid using the term terrorism in their separate opinions) on
a panel consisting of fifteen is a justifiable reason to conclude impartiality of
the entire ICJ, even if some judges have been engaged in politics in the past. Moreover, although Israel was not directly
represented, two judges, Buergenthal
(who suspiciously opposed the other judges in practically every question the
court had to answer)
and Judge Higgins are of Jewish origin, and
thus, accusations of bias, which may be founded in political UN organs, have no
ground in the ICJ Wall Case. There is
no conspiracy. Despite that, the Wall Case is still a poor attempt at
solving the Israeli-Palestinian border problem. As Judge Buergenthal noted, the
ICJ reached conclusions “with regard to the [W]all as a whole without having
before it or seeking to ascertain all relevant facts bearing directly on issues
of Israel’s legitimate right of self-defense, military necessity and security
Israel has always argued that it cannot be considered an occupying power
in Palestine within the meaning of the GC4. This position has been challenged by different
scholars, states and political bodies, but
it is the ICJ’s advisory opinion that marked the end of the debate once and for
all. In that sense, it is the last nail in the
coffin of the Israeli arguments for non-applicability of GC4. The ICJ’s conclusion, however, is incomplete
because it did not consider whether Palestine could be a High Contracting Party
to the Geneva Conventions and
whether Additional Protocol I is applicable. Additional Protocol I should apply
in the West Bank.
The ICJ also remained silent on the matter of whether and why actions of
certain Palestinians could be accurately labeled terrorism. The erection of the Wall created a legal
paradox – rare acts of violence in and out of the West Bank do not amount to
widespread terrorism that require such drastic measures as the construction of
the Wall; however, it is this barrier that is preventing the acts of terror
from amounting to such. Nevertheless, it seems clear that it is terrorism the
Wall is meant to prevent.
The ICJ’s argument that
to a country is required, and the State of Israel is entitled to the right to
act in self-defense, regardless of whether Palestine is an independent state or
not.The establishment of the Wall is necessary. However, the necessity of physically locating
the Wall deep within the West Bank could be called into question, especially in
light of the fact that Israel failed to explore alternatives to the Green Line.
The magnitude of the damage and injury inflicted upon the civilian
inhabitants where the Wall has been built is beyond the boundaries of necessity
and proportionality. Regarding questions
about the composition of the ICJ, it seems that the panel was actually quite
balanced and there was no conspiracy or bias against Israel. Even without a conspiracy, the Wall Case is a poor attempt at solving
the Israeli-Palestinian Border problem. Moreover,
instead of shaping the concept of self-defense, the construction of the Wall only
bedims it. On the other hand, the
expectations regarding the applicability of the Geneva Conventions have proven to
be true. The ICJ’s conclusion on this
point should be considered a valuable accomplishment derived from the Wall proceedings.
Shiryaev is the President of PubIntel SU Organization. He receieved his LLM from the University of
Aberdeen and BA from the University of Tartu.
This paper is dedicated to Kerli Valk, to whom I could not answer,
whether construction of the Wall was illegal or not.
 Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J.
136 (July 9), available at 43 I.L.M.
1009 [hereinafter Wall Case].
Wright, The Middle East: Prospects for Peace 17 (Isaac Shapiro ed., 1969).
 Id. at 16.
 Id. at 17.
 See generally Peter L. Hahn, Caught in
the Middle East: U.S. Policy toward the Arab-Israeli Conflict, 1945-1961 277-78
 Ahron Bregman, Israel’s Wars, 1947-93 136-37 (2000).
 See Hahn, supra note 8, at 277-79.
 Sara Fallegård, The ICJ
Advisory Opinion on the Israeli Wall 10, n.8 (Spring 2008) (unpublished Master
Thesis, Univ. of Lund) (There
are many names for the wall: “The Palestinians refer to the structure as a
‘separation wall;’ the Israelis refer to it as a ‘security fence;’ the UN
Secretary General has referred to it as a ‘barrier.’ Human rights advocacy
organizations have termed it an ‘apartheid wall.’” The author of this article
will call the construction the “Wall” because the term is well adapted among
 Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,
6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Convention for
the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members
of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85
[hereinafter Geneva Convention II]; Convention Relative to the Treatment of
Prisoners of war, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter
Geneva Convention III]; Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
[hereinafter Geneva Convention IV]; Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter
Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Additional
Convention I, supra note 12; Geneva
Convention II, supra note 12; Geneva
Convention III, supra note 12; Geneva
Convention IV, supra note 12;
Additional Protocol I, supra note 12;
Additional Protocol II, supra note
Convention IV, supra note 12.
 Wall Case, supra note 2, at ¶ 1.
 Rotem Giladi, The
Jus Ad Bellum/Jus in Bello Distinction and the Law of Occupation, 41 Isr.
L. Rev. 246, 247-48 (2008); see generally
Steven R. Ratner, Revising the Geneva Conventions to Regulate
Force by and Against Terrorists: Four Fallacies, 1 Isr. Def. Forces L. Rev.
7, 10-12 (2003) (arguing that jus ad bellum and jus in bello should sometimes
both be considered together); Nico Shriver, September
11 and Challenges to International Law, in
Terrorism and the UN: Before and After September 11 55 (Jane Boulden &
Thomas G. Weiss eds., 2004) (explaining the distinction between jus ad bellum
and jus in bello).
 See Article 2(4) of the UN Charter
(‘‘All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations”); see also Article 1(11) of
the Declaration of Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter of the
United Nations, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 18, U.N.
Doc. A/8018, at 123 (Oct. 24, 1970) (hereinafter Declaration on Friendly
Relations) (“The territory of a State shall not be the object of military
occupation resulting from the use of force in contravention of the provisions
of the Charter. The territory of a State shall not be the object of acquisition
by another State resulting from the threat or use of force.” Security Council
Resolution’s 242 (1967) preamble emphasizes the “inadmissibility of the
acquisition of territory by war” specifically in the Middle East).
 Hans-Peter Gasser, Protection
of the Civilian Population, in
The Handbook of International Humanitarian Law (Dieter Fleck ed., 2d ed. 2008);
see generally U.N. Charter art. 2,
para. 4 (“All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations”); Declaration on Friendly Relations, supra note 17 at 123 (“The territory of a State shall not be the
object of military occupation resulting from the use of force in contravention
of the provisions of the Charter. The territory of a State shall not be the
object of acquisition by another State resulting from the threat or use of
force”); S.C. Res. 242, preamble, U.N. Doc. A/RES/242 (Nov. 22, 1967)
(emphasizes the “inadmissibility of the acquisition of territory by war”
specifically in the Middle East).
Brownlie, International Law and the Use of Force by States 418 (1963).
 Arnold D. McNair, Legal Effects of War 320 (3d ed.
 See Joshua Castellino, The ‘Right’ to Land, International Law & Indigenous Peoples, in International Law and Indigenous
Peoples 89-90 (Joshua Castellino & Niamh Walsh eds., 2005).
 See Declaration on
Friendly Relations, GA Res 2625 (XXV), 1970 (stating that people with a
right to self-determination may not be forcibly deprived of it, and, if they
are so deprived are entitled, in pursuit of self-determination in the face of
forcible deprivation, “to seek and to receive support in accordance with the purposes
and principles of the Charter of the UN”).
 John Quigley, The
United Nations’ Response to Israel’s Seizure of the Gaza Strip and West Bank,
12 Palestine Y.B. Int’l L. 145, 146 (2003).
Chomsky, Fateful Triangle: the United States, Israel & the Palestinians 103
(Pluto Press, 1999).
 E.g., James Summers, Peoples and International Law: How
Nationalism and Self-Determination Shape a Contemporary Law of Nations 261 (2007).
 Nicholas Lancaster, Occupation Law, Sovereignty,
and Political Transformation: Should the Hague Regulations and the Fourth
Geneva Convention Still be Considered Customary International Law?, 189
Mil. L. Rev. 51, 91 (2006).
 Julius Stone, Behind
the Cease-Fire Lines: Israel’s Administration in Gaza and the West Bank, in
The Arab-Israeli Conflict 391 (John N. Moore ed., Princeton Univ. Press 1974).
J. de Waart, Dynamics of
Self-Determination in Palestine 56 (1994) (Violating human rights in the sense that
people have the right to choose their own form of government and forcing them
to accept unwanted democratic values is denying them political freedom).
 Geneva Convention (IV), supra note 12 at 287
 Id. at Art. 2, 4; see also
Esther Rosalind Cohen, Human Rights in the Israeli-Occupied Territories 53
 Antonio Cassese, Self-Determination of Peoples: A
Legal Reappraisal 235 (1995).
 Partition Resolution, G.A. Res. 181(II), U.N.
Doc. A/RES/181(II) (Nov. 29, 1947).
 Henry Cattan, Palestine and International Law: The
Legal Aspects of the Arab-Israeli Conflict 109 (1973).
 See Arthur James Balfour, The Balfour Declaration (1917),
in The Arab-Israeli Conflict: Readings and Documents 484, 485 (John N.
Moore ed., Princeton U. Press 1974) (British Foreign Secretary, Arthur James
Balfour, wrote to Jewish leader Lord Rothshild, to assure him that his
government supported the ideal of providing a homeland for the Jews and The Balfour Declaration became the basis
for international support for the founding of the modern state of Israel).
A. Falk & Burns H. Weston, The
relevance of international law to Israeli and Palestinian Rights in the West
Bank and Gaza, in International
Law and the Administration of Occupied Territories: Two Decades of Israeli
Occupation of the West Bank and Gaza Strip 125, 132 (Emma Playfair ed.,
Clarendon Press 1992).
 Lisa Hajjar, From
the Fight for Legal Rights to the Promotion of Human Rights: Israeli and
Palestinian Cause Lawyers in the Trenches of Globalization, in Cause Lawyering and the State in a Global Era 68, 76 (Austin Sarat
& Stuart Scheingold eds., Oxford Univ. Press 2001).
 John R. Vincent, Nonintervention and International
Order 286 (1974).
e.g., S.C. Res. 237, U.N. Doc. S/RES/ 237 (1968) available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/240/89/IMG/NR024089.pdf?OpenElement,
G.A. Res. 2443 (XXIII) (1968) available
see generally Wendy Olson, UN Security Council Resolutions Regarding
Deportations from Israeli Administered Territories: the Applicability of the
Fourth Geneva Convention Relative to the Protection of Civilian persons in Time
of War, 24 Stan. J Int’l L 611-636 (1988) (discussing United Nation’s and
international community’s concerns over Israel’s occupation of the Palestinian
 See Wall Case, supra note 2, at ¶ 6 (Al-Khasawneh, J., separate opinion)
(noting the Israel Supreme Court’s adoption of the Fourth Geneva Convention).
Case, supra note 2, at ¶ 90.
 Id., at ¶ 94; see also Kasikili/Sedudu Island (Botswana v. Namibia), 1999 I.C.J.
at ¶ 18 (citing Territorial Dispute (Libya v. Chad), 1994 I.C.J. 21, at ¶ 41); see
also Oil Platforms (Iran v. US), 1996 I.C.J. Preliminary Objections 812, at
 Wall Case, supra note 2, at ¶ 95.
at ¶¶ 98 – 99.
 Id., at ¶ 101.
 Wall Case, supra note 2, at ¶ 95.
 Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on
Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim.
Trib. for the Former Yugoslavia Oct. 2, 1995).
Charter, supra note 17, Article 6(3).
Res. 242, ¶ 1, U.N. Doc. S/RES/242 (Nov. 22, 1967).
 Geoffrey R. Watson, The Oslo Accords 309 (Oxford
Univ. Press 2000).
Toby, The Jurisdictional Politics of
Israel/Palestine: the Case of Palestinian Workers in Israeli Settlements, 9
Y.B. Mid. E. & Islamic L. 169-170 (2004) available at www.brill.nl/default.aspx?partid=210&pid=22357
(last visited Dec. 1, 2010).
 See generally James Crawford, The Creation of States in
International Law 435-436 (Oxford Univ. Press 2d ed. 2006).
 See generally Ian Brownlie, Principles of Public
International Law 62 (Oxford Univ. Press 7th ed. 2008)
(defining generally observer status).
 See Sanford R. Silverburg, Palestine and International Law
42 (McFarland & Co. 2002).
 Wall Case, supra note 2, at ¶ 9 (Kooijmans, J., separate opinion).
 See Wall
Case, supra note 2, at ¶ 2
(Al-Khasawneh, J., separate opinion).
Prosecutor v. Tadic, supra note
International Humanitarian Law – State Parties/Signatories from the Geneva
Conventions of 12 August 1949, Icrc.org, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P
(last visited Nov. 24, 2010).
id. Especially taking into account that the
Swiss Federal Council concluded on 13 September 1989 that “it was not in a position to decide whether
the letter constituted an instrument of accession, due to the uncertainty
within the international community as to the existence or non-existence of a
State of Palestine,” with
similar positions, expressed by different States and organizations also today.
Res. 10/14, ¶ 9, U.N. Doc. A/RES/10/14 (Dec. 12, 2003).
 Yarden B. Enav-Weintraub, (Un)Settling the West Bank of Israel/Palestine: the Anthropology of
Citizenship in “No Man’s Land,” 10 (2) Anthropology Matters Journal 2
(2008), available at http://www.anthropologymatters.com/index.php?journal=anth_matters&page=article&op=view&path%5B%5D=36&path%5B%5D=65 .
 Karma Nabusli, Traditions of War 36 (Oxford Univ. Press 1999).
 Ali L. Khan, Theory of International terrorism:
Understanding Islamic Militancy 170 (Martinus Nijhoff Publishers 2006).
 Mohamed M. Elbakry, The Legality of “War” in
Al-Shari’a Al-Islamiya (The Islamic Law) and Contemporary International Law
(unpublished Ph.D. thesis, Glasgow
University)(on file with Glasgow Theses Service, University of Glasgow) available at http://theses.gla.ac.uk/666/01/1987Elbakryphd.pdf .
 See Wall case, supra note 2, at ¶ 3.1
(Elaraby, J., separate opinion).
 Wall case, supra note 2, at ¶ 3.1
(Elaraby, J., separate opinion).
 See Bruce W. Jentleson, Military Force Against Terrorissm: Questions of Legitimacy, Dilemmas of
Efficacy, in Beyond Preemption, 40, 41 (Ivo H. Daalder ed., 2007).
 Antonio Cassese, International Law, 479 (2d ed. 2005).
 Noam Chomsky, 9/11, 90 (Seven
 Luigi Condorelli & Yasmin Naqvi, The War Against Terrorism and Jus in Bello:
Are the Geneva Conventions Out of Date?, in Enforcing International Law
Norms Against Terrorism 25, 37 (Andrea Bianchi ed., 2004).
 Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 at ¶101 (June 27)
(recognizing Article 2 paragraph 4 of the Charter of the United Nations as
 See generally Tom Ruys & Sten Verhoeven, Attacks by
Private Actors and the Right of Self-Defence, 10 J. Conflict
& Sec. L. 289 (2005).
 See generally Yaroslav Shiryaev, Bush Doctrine in Action: Self-Defense and
the July War, 3/1 Gentium JIL (2008); Yaroslav Shiryaev, Israel-Gaza Conflict in 2008. Self-Defense?,
3/4 Gentium JIL (2008); Yaroslav Shiryaev, The
Right of Armed Self-Defense in International Law and Self-Defense Arguments
Used in the Second Lebanon War, 3 ASM (2009) (each providing background
information on the right to self-defense in international law).
 Joel H. Westra, International Law and the Use of Armed
Force: The UN Charter and the Major Powers 11 (2007).
 Frederik Naert, The
Impact of the Fight Against Terrorism on the Ius ad Bellum, 11 Ethical
Perspectives 148 (2004).
 Benedetto Conforti, The Doctrine of “Just war” and Contemporary International Law, 2002 Ital. Y.B. Int’l L.
 See Judge T. O. Elias, The
General Assembly and the Problems of Enhancing the Effectiveness of the Non-Use
of Force in International Relations, in
Liber Amicorum for The Rt. Hon. Lord Wilberforce 17 (Maarten Bos & Ian
Brownlie eds., 1987).
David Kennedy, Of War and Law 81 (Princeton Univ. Press 2006) (1954).
 Dino Kritsiotis,
When States Use Armed Force, in Politics of International Law 79 (Christian
Reus-Smit ed., 2004).
 Rosalyn Higgins, The
Development of International Law Through the Political Organs of the United
 Thomas M. Franck, Recourse to Force: Threats and Armed Attacks
180 (Cambridge Univ. Press 2002).
 Rein Müllerson, The Law of Use of Force at the Turn of the
Millennia, 3 Balt. YB Int’l L 217 (2003); see also Olivier Corten, The
Controversies Over the Customary Prohibition on the Use of Force: A
Methodological Debate, 16 EJIL 803 (2005).
 Michael J. Glennon, The Emerging Use-of-Force Paradigm, 11
C&SL 309 (2006).
 See Jeffrey Record, Bounding the Global War on
Terrorism 6 (Strategic Studies Institute, 2003) (citing Alex P. Schmid,
Albert J. Jongman, et al., Political Terrorism: A New Guide to Actors,
Authors, Concepts, Data Bases, Theories, and Literature 5-6 (Transaction
Books 1988) (By 1988 a study counted 109 definitions covering 22
different elements; today this number is much higher for obvious reasons).
Louis Rene Beres, On International Law
and Nuclear Terrorism, 24 Georgia
JIL&CL 1, 1-3 (1994); see
also Antonio Cassese, International
Criminal Law 163 (Oxford Univ. Press 2d ed. 2008).
Yaroslav Shiryaev, There’s Something
About Cyberterrorism, 3 Gentium JIL 9 (2008).
 Herfried Münkler & Patrick Camiller, The New Wars 100 (Polity Press
 See Dale T. Snauwaert, The Bush Doctrine and Just War Theory, 1
OJPCR 122 (2004);
see also Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of
Terrorism 13(Yale Univ. Press 2006).
 John Strawson, Law After
Ground Zero 6 (Routledge 2002); see also Ramesh Thakur, The United
Nations, Peace and Security 192 (Cambridge Univ. Press 2006) (citing Roger
Cohen, A Global War: Many Fronts, Little
Unity, N.Y. Times, Sept. 5, 2004).
 Wafula Okumu & Anneli
Botha, Understanding Terrorism in Africa: In Search for an African Voice 6
(Institute for Security Studies, 2006) (citing ‘Letter from al-Zawahiri to
al-Zarqawi,’ ODNI News Release 2-05, Oct. 11, 2005).
Shaked, Qassam fired from West Bank (Jan. 1, 2006), available at www.ynetnews.com/articles/0,7340,L-3193067,00.html
(last visited Dec. 1, 2010).
(last visited Dec. 1, 2010).
 Tomis Kapitan, Terrorism
in the Arab-Israeli Conflict,
in Igor Primoratz, ed., Terrorism: The
175-191(Palgrave Macmillan 2004) (citing Robert Ashmore, State Terrorism and Its Sponsors, in Tomis Kapitan, ed., Philosophical Perspectives on the
Israeli-Palestinian Conflict 107 (M.E. Sharpe, 1997)).
Smilansky, Terrorism, Justification, and Illusion, 114 Ethics 796 (2004).
Robert Ashmore, State Terrorism and Its
Sponsors, in Tomis Kapitan, ed.,
Philosophical Perspectives on the Israeli-Palestinian Conflict 107 (M.E. Sharpe
 See, e.g., David Weisburd & Hagit
Lernau, What Prevented Violence in Jewish
Settlements in the Withdrawal from the Gaza Strip: Toward a Perspective of Normative
Balance, 22 Ohio St. J. on Disp. Resol. 37, 48 (2006) (stating that a
settler from Kiryat Arba, Baruch Goldstein, shot to death 29 West Bank
Palestinians and wounded another 125 in February 1994 during the “Cave of the
Gerald M. Steinberg, Human Rights and
Defense Against Terror in Israeli Policy (Response to Rabbi Jeremy Milogram),
Human Rights Dialogue (Apr. 24, 2003),
 Wall Case, supra note 2, at ¶ 13 (Kooijmans, J., separate opinion).
 Id. at ¶ 5.
 Wall Case, supra note 2, at ¶ 31(Owada, J., separate opinion).
 See Eric P. Myjer & Nigel D. White, The Twin Towers Attack: An Unlimited Right
to Self-Defence?, 7 J. Conflict & Security L. 5, 10 (2002).
 Alexander Orakhelashvili, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory: Opinion and Reaction, 11 J. Conflict & Security
L. 119, 127 (2006).
 Christine Gray, The
Use of Force and the International Legal Order, in International Law 589, 602 (Malcolm Evans ed., Oxford Univ. Press 2d ed.
 Ulf Linderfalk, The
Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think
About the Consequences?, 18 Eur. J. Int’l L. 853, 862-863 (2007).
 Id. at 861.
 Thomas B. Hunter, Targeted Killing: Self-Defense,
Preemption, and War on Terrorism, Operational Studies, 3 (Apr. 29, 2005), available at http://www.operationalstudies.com/mootw/Targeted%20Killing%20Research%20PaperOS.pdf.
 Joshua E. Kastenberg,
Terrorism: A Maginot Line for Modern Civilization Employing the Principles of
Anticipatory Self-Defense and Preemption, 55 A.F.L. Rev. 87, 125 (2004)Use of Conventional International Law in Combating; see also Ulf
Linderfalk, The Effect of Jus Cogens
Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?,
18 Eur. J. Int’l L. 853, 866 (2007).
 Niaz A. Shah, Self-Defence,
Anticipatory Self-Defense and Pre-Emption: International Law’s Response to
Terrorism, 12 J. Conflict & Security L. 95, 107 (2007).
supra note 77, at ¶ 195.
 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 1980 I.C.J. 3, 64, 97
(May 24); see also Yoram Dinstein, War, Aggression & Self-Defence 197 (Grotius
Publ’n Ltd. 2d ed. 1994).
Andrew Garwood-Gowers, Self-Defence
Against Terrorism In The Post-9/11 World,
4 Queensland Univ. of Tech. Law & Justice J. n. 2 (2004), available at http://www.law.qut.edu.au/ljj/editions/v4n2/pdf/Garwood-Gowers.pdf.
Tarcisio Gazzini, The Rules On The Use Of
Force At The Beginning Of The XXI Century, 11 J. Conflict & Sec. L.
319, 330-31 (2006).
Ady Niv, The International Court Of
Justice Under The Scrutiny Of Article 51, 2 Isr. Def. Forces L. Rev. 173,
 Kirsten Schmalenbach, The Right Of Self-Defence And The “War On Terrorism” One Year After
September 11, 3 Ger. L.J. (Special
Issue) 9 (2002) , available at http://www.germanlawjournal.com/article.php?id=189; see also Jeffrey F. Addicott, Thwarting Terrorist Acts By
Attacking The Perpetrators Or Their Commanders As An Act Of Self-Defense: Human
Rights Versus The State’s Duty To Protect Citizens, 15 Temp. Int’l & Comp. L.J. 195, 216
U.N. Charter Art. 2 at ¶ 4.
 Natalino Ronzitti, The
Expanding Law Of Self-Defence, 11 J. Conflict & Sec. L. 343, 352
(2006); see also Christine Gray, International Law And The Use Of Force
101 (M. Evans &
P. Okowa eds.,
Oxford Univ. Press 2000) (“[Those condemning Israel]
say that Israel has no right to be in [occupied] territories and so no right to
invoke self-defence against attacks on their forces in these territories.”).
 Wall Case, supra note 2, at ¶ 142 (One might also wish to inquire Israel’s
latest position regarding the use of force against terrorists by reading
through the recent MFA’s Report On Operation In Gaza. Israel Ministry Of
Foreign Affairs, The Operation In Gaza,
http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperation.pdf (last visited Nov. 14, 2010)).
 Id. at ¶ 139.
 Wall Case, supra note 2, at ¶ 33 (Higgins, J., separate opinion).
 See Wall Case, supra note 2, at ¶ 35 (Kooijmans, J., separate opinion); also Pieter Kooijmans, The
ICJ In The 21st
Century: Judicial Restraint, Judicial Activism, Or Proactive Judicial Policy, 56(4) Int’l & Comparative L. Quarterly
741, 752 (2007).
Ruth Wedgwood, The ICJ Advisory Opinion
On The Israeli Security Fence And The Limits Of Self-Defense, 99 Am. J.
Int’l L. 52, 58 (2005).
 Id. at 59.
 Thomas M. Franck, Terrorism and The Right Of Self-Defense, 95 Am. J. Int’l L. 839,
 Malvina Halberstam, The General Assembly Resolution, The ICJ Decision, Another General
Assembly Resolution Condemning Israel’s Construction Of The “Fence”: A
Tragi-Comedy In Three Acts, Conference of Presidents Of Major American
Jewish Organizations 4 (last visited Nov. 14, 2010),
 Wall Case, supra note 2, at ¶ 2 (Buergenthal, J., declaration).
The Road Map is a plan to resolve the conflict proposed by a quartet of the US,
EU, Russia and the UN. In exchange for statehood, the Road Map required the
Palestinian Authority to make democratic reforms and abandon the use of
violence. Israel must support and accept the emergence of a reformed government
and end settlement activity in the Palestinian territories.
 Ilan Pappe, The One Palestine: Past, Present and Future
Perspectives., 5.3 Nebula
61, 72 (Sept. 2008).
See Declaration on Friendly Relations, supra note 17.
 Jackson N. Maogoto, War on the Enemy: Self-Defence and State-Sponsored Terrorism, 4
Melb. J. Int’l L. 406, 416 (2003); see also
Mark P. Popiel, Redrafting the Right of
Self-Defense in Response to International Terrorism, 6 Gonz. J. Int’l L.
(2002-2003), http://www.gonzagajil.org/content/view/91/26/ (last visited Oct. 31, 2010).
Stanimir A. Alexandrov, Self-Defense Against the Use of Force in International
Law 182 (Kluwer L. Int’l, 1996)
(citing Oscar Schachter, International Law in Theory and Practice 165 (Martinus
Nijhoff 1991)). See Report of the
International Law Commission to the General Assembly on the work of its thirty
second session, U.N. Doc. A/35/10, reprinted
in  32 Y.B. Int’l L. Comm’n 34-52, U.N. Doc. A/CN.4/SER.A/1980/Add.1
 See http://www.un.org/News/Press/docs/2003/sc7868.doc.htm
(last visited Dec. 1, 2010).
 Stanimir A. Alexandrov,
Self-Defense Against the Use of Force in International Law 184 (Kluwer L. Int’l 1996).
 Nico Schrijver, September
11 and Challenges to International Law, in
Terrorism and the UN: Before and After September 11 55, 63 (Jane Boulden
& Thomas G. Weiss eds., Indiana Univ. Press
 Joanne Wright, International organizations: the UN, NATO
and the EU, in Global Responses
to Terrorism: 9/11, Afghanistan and beyond 252, 254 (Mary
Buckley & Rick Fawn
 Dominika Svarc, The
military response to terrorism and the international law on the use of force,
1(1) Pol. Persp. 1, 5 (2007)
(citing Press Release, Security Council, Security Council Debates Escalating
Crisis Between Israel, Lebanon; UN
Officials Urge Restraint, Diplomacy, Protection of Citizens; Lebanon’s
Ambassador Calls Israel’s Acts ‘Barbaric Aggression’; Israel Says Actions
Direct Response to Assault, Targeted Hezbollah Strongholds, U.N. Press Release
SC/8776 (July 14, 2006)).
T.D. Gill, The Eleventh of September and
the Right of Self-Defense, in
Terrorism and the Military: International Legal Implications 23, 37 (Wybo P.
Heere ed., T.M.C. Asser Press
 Wall Case, supra note 2, at ¶ 139.
 Sean D. Murphy, Self-Defense
and the Israeli Wall Advisory
Opinion: An Ipse Dixit from the ICJ?,
99 Am. J. Int’l L. 62, 62-63 (2005).
 Wall Case, supra note 2, at ¶ 36 (Kooijmans, J., separate opinion).
 Wall Case, supra note 2, at ¶34 (Higgins, J., separate opinion).
 David Schweigman, Authority of the Security Council
under Chapter VII of the UN Charter: Legal Limits and the Role of the
International Court of Justice 277-78 (Kluwer L. Int’l 2001).
 See Christine Gray, The
Use and Abuse of the International Court of Justice: Cases Concerning the Use
of Force after Nicaragua, 14 Eur. J. Int’l L. 867, 901 (2003).
 See Kristi Samules, Political Violence and the
International Community: Developments in International Law and Policy 49 (2007).
 Christine Gray, The
ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, 63 Cambridge L.J. 527, 532 (2004).
 Contra Wall Case, supra note 2, at ¶
35 (Higgins, J.,
 Johan Galtung, The
Middle East and the Theory of Conflict, 8 J. Peace Research L. 3/4 (1971), reprinted in 5 Peace Problems: Some Case Studies 78 (Christian
Ejlers ed., 1980).
 Wall Case, supra note 2, at ¶141.
 See Natalia
Ochoa-Ruiz, Exploring the Limits of
International Law Relating to the Use of Force in Self-Defense, 16
Eur. J. Int’l L. 499, 500 (2005).
Guiora, Targeted Killing as Active
Self-Defense, 36 Case W. Res J. Int’l L. 319, 324 (2004).
 See generally http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htm.
The Secretary-General, In Larger Freedom:
Towards Security, Development and Human Rights for All, ¶ 124, U.N. Doc.
A/59/2005 (Mar. 21, 2005), available at
 The Secretary General, A More Secure World Our Shared Responsibility: Report of the
Secretary-General’s High-Level Panel on Threats, Challenges and Change, ¶
188, U.N. Doc. A/59/565 (Dec. 2, 2004), available at http://www.un.org/secureworld/report.pdf .
 U.N. GAOR, 58th
Sess., 7th Plen. Mtg. at 3, U.N. Doc.
A/58/PV.7 (Sept. 23, 2001), available
http://disarmament.un.org/library.nsf (follow “58 GA” hyperlink; then follow
 James M. Crotty, The Weak and The Strong: Explaining
the 2003 War in Iraq (May 2005) (Unpublished
masters thesis, Boston College) (on file with author).
 Amos N. Guiora, Anticipatory
Self-Defence and International Law: A
Re-Evaluation, 13 J. Conflict
& Security L. 3, 15 (2008).
 Contra Georges Abi-Saab, Giuseppe Nesi, Jordan J. Paust, Ugo
Villani & Elizabeth Wilmshurst, Panel Discussion on Terrorism,
International Security and the Use of Force, in International
Co-Operation in Counter-Terrorism: The United Nations and Regional Organization
in the Fight Against Terrorism 255 (Giuseppe
Nesi ed., 2006) (arguing against a
reduced threshold for pre-emptive
self-defense and anticipatory self-defense).
 Nicaragua, supra note 77, ¶ 191.
B’Tselem Information Center Statistics: ‘Fatalities’
<http://www.btselem.org/english/statistics/casualties.asp > (last visited
Oct. 31, 2010).
 See id.
 Beit Sourik Village Council v. The
Government of Israel (2004) HCJ 2056/04, at ¶ 1.
 Robert Jennings & Arthur
Watts, Oppenheim’s International Law
421 (Longman 9th ed. 1992).
 Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 I.C.J. 226, 240 (July 8) [hereinafter Nuclear Weapons Case].
 Wall Case, supra note 2, at ¶ 140.
 Wall Case, supra note 2, at ¶ 135.
 Wall Case, supra note 2, at ¶ 3 (Elaraby, J., separate opinion).
 George Gavrilis, Sharon’s Endgame for the West Bank Barrier,
The Washington Quarterly 7 (2004).
 Emanuel Gross, Combating Terrorism: Does Self-Defense
Include the Security Barrier? The Answer Depends on Who You Ask, 38 Cornell
J. Int’l L. 572 (2005).
 See Michael Bell, The West Bank
Barrier Debate: Concept, Construction
and Consequence, 1 J. Int’l
L. &Int’l Relations 294 (2004) (“For the most part, [the Wall] is
composed of an electronic fence, supplemented by barbed wire and trenches, on
average about seventy meters wide. In some areas, a concrete wall of up to
eight meters in height replaces the fence”).
 Indian Kashmir barrier, in All Experts Encyclopedia, available at http://en.allexperts.com/e/i/in/indian_kashmir_barrier.htm
(last visited Oct. 31, 2010).
 Security Fences: Palestine and Kashmir, available at http://montages.blogspot.com/2004/07/security-fences-palestine-and-kashmir.html
(last visited Aug. 30, 2010).
 See Occupation Realities, AFSC Middle East
Task Force (2004), available at http://www.afsc.org/israel-palestine/ht/a/GetDocumentAction/i/44984(last visited Aug. 31, 2010) (most notably Qalqiliya,
which has been hermetically sealed by the Wall).
 Anti-Apartheid Wall Campaign:
Fact Sheet, Palestinian Grassroots, available at http://www.miftah.org/Doc/Factsheets/Other/NewWallFactSheet.pdf (last visited Aug. 31, 2010).
 The Humanitarian Impact of the Barrier, Report 8, United Nations Office for the
Coordination of Humanitarian Affairs (UNOCHA), United Nations Relief and Works
Agency for Palestine Refugees in the Near East (UNRWA) (2008), available
at http://www.ochaopt.org/documents/Barrier_Report_July_2008.pdf (last visited Aug. 31, 2010).
“separation barrier” in the occupied West Bank: Human Rights and International
Humanitarian Law consequences,
Human Rights Watch (Feb. 20, 2004), available at http://www.hrw.org/english/docs/2004/02/20/isrlpa7581_txt.htm
states as follows: “[the Wall] effectively confines more than a hundred
thousand men, women, and children in enclaves. It will institutionalize, and
threatens to make permanent, a system in which all movement for large numbers of
people is sharply curtailed except for a handful of permit-holders. The scope
and duration of such restrictions endanger Palestinians’ access to basic
services like education and medical care …. The Israeli government has failed
to demonstrate that it could not adopt less intrusive and less restrictive
alternatives to address the security of civilians, including a Barrier
contiguous with the 1949 Armistice Line, commonly known as the Green Line.”).
 Eva Balslev & Sune Segal, Security or Segregation
¶ 11 (World Council of Churches 2003), available
at http://www.wcc-coe.org/wcc/what/international/palestine/securityorsegregation.html .
Case, supra note 2, at ¶ 122.
 Disputed Territories: Forgotten Facts About the West Bank and
the Gaza Strip, Israel Ministry of Foreign Affairs (Feb. 1,
2003), http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2003/2/DISPUTED%20TERRITORIES%20Forgotten%20Facts%20About%20the%20We .
Abraham Bell, The Assault on Israel’s
Right to Self-Defense, Jerusalem Center for Public Affairs (Jan. 28, 2008),
 See http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htm(The
ICJ held that the employment of force
might have been justified in the Caroline Case by the necessity of self-defense,
but denied that such necessity existed).
 Richard Tuck, The Rights of War
and Peace 228 (Oxford Univ. Press
 Can. Arab Fed’n., Wall
is About the Annexation of Palestinian Land, Caf.ca, 1 (Dec. 12,
2005), http://www.caf.ca/Admin.aspx?AppModule=TxAppFramework.Web.Admin&Command=EMBEDDEDFILE&DataObjectID=701&ColumnID=3581&FieldName=CONTENT&Lang=EN&RecordID=100 .
 Mark Rosenblum & Gidon D. Remba, Myths and Facts About the
Palestinian-Israeli Conflict, ChicagoPeaceNow.org 3 (Sept. 5, 2004),
Case, supra note 2, at ¶ 140.
 Nuclear Weapons Case, supra note 176, at ¶ 25.
 See generally Occupied Palestinian
Territories: West Bank Wall main cause of new displacement amid worsening humanitarian
situation, Internal Displacement Monitoring Ctr., 8-9 (June 21, 2006), available at http://www.reliefweb.int/library/documents/2006/idmc-opt-21Jun.pdf (last visited Nov. 24, 2010).
Wall, Friends of Al Aqsa, 1,
http://www.aqsa.org.uk/Portals/0/Leaflets/LF_41_Wall.pdf (last visited Oct. 19,
supra note 2, at ¶ 3.2 (Elaraby, J.,
 Wall Case, supra note 2,
at ¶ 9 (Buergenthal, J., declaration).
supra note 2, at ¶ 34 (Kooijmans, J.,
Case, supra note 2, at ¶ 9
Case, supra note 2, at ¶ 34 (Kooijmans, J., separate opinion).
Case, supra note 2, at ¶ 163.
M. Maogoto, Battling Terrorism 3 (2005).
 Ed Morgan, The
Law of Betrayal in the Wild West Bank, 1 JILIR 345, 345 (2005) (quoting
Silven Shalom, A Fence Built for Peace, The Guardian (Feb. 3, 2004), available
President Harry S. Truman, Address in San Francisco at the Closing
Session of the United Nations Conference (June 26, 1945) (transcript available
in the Truman Library))).
Jerome Slater, Polemics in the
Israeli-Palestinian Conflict, 6 Hum. Rights & Hum. Welfare 105, 112
(2006) (citing Alan Deshowitz, The Case for Israel 181 (2003)).
 Beit Sourik Village Council v.
The Government of Israel, 43
I.L.M. 1099 (2004) (Isr.).
 See id.
 Beit Sourik Village Council, 43 I.L.M.
1099 at ¶ 23.
 Id. at ¶ 32.
 Id. at ¶¶
 Beit Sourik Village Council, 43 I.L.M.
1099 at ¶ 60.
 Id. at ¶ 61.
 Mara’abe v. The Prime Minister of Israel (2005) HCJ 7957/04.
 Id. at ¶ 53; see
also Daphne Barak-Erez, Israel: the Security Barrier – Between
International Law, Constitutional Law, and Domestic Judicial Review, 4
Int’l J. Const. L. 3 (2006).
 Id. at ¶ 91.
 Nimer Sultany, The Legacy of Justice Aharon Barak: A Critical Review, 48 Harv.
ILJO 88 (2007).
 See Tim McCormack & Avril
McDonald, Yearbook of International Humanitarian Law 359 (Cambridge Univ. Press
2004) (citing Mohammad Khaled Alian et al. v. Prime Minister (2004) HCJ 4825/04).
 Dharma Pratap, The Advisory
Jurisdiction of the International Court 227 (Court Clarendon Press 1972).
Michla Pomerance, The Advisory Function of the International Court in the
League and U.N. Eras 370 (John Hopkins Univ. Press 1973).
 Shabtai Rosenne, The
International Court of Justice 493 (Sijthoff 1957).
 Malcolm N. Shaw, International
Law 1108 (Cambridge Univ. Press 6th ed. 2008).
 Oliver J. Lissitzyn, The
International Court of Justice 84 (Martin Press 1951).
 Rosalyn Higgins, A
Comment on the Current Health of Advisory Opinions, in Fifty Years of the International Court of Justice 567, 581
(Vaughan Lowe & Malgosia Fitzmaurice eds., 1996).
 E.g., Mitchell Bard, Israel’s Security Fence, Jewish Virtual
Library: A Division of the American-Israeli Cooperative Enterprise (July 8,
Saving Lives: Israel’s anti-terrorist
fence – Answers to Questions, Israel Ministry of Foreign Affairs 1, 17
(Jan. 1, 2004),
 E.g., Press Release, General Assembly,
International Meeting on Impact of Wall Built by Israel in Occupied Palestinian
Territory; Final Document Says Lack of Dialogue between Parties Necessitates
Active Involvement of International Community, U.N. Press Release GA/PAL/953
(Apr. 16, 2004); Wall Case, supra note 2, at ¶ 133.
 Christian J. Tams, Light
Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case, 16
Eur. J. Int’l L. 963 (2005) (“When in 1943-1944, the Informal Inter-Allied Committee debated
the future of international adjudication, it sought to avoid politicization of
the soon-to-be established International Court of Justice.” One of its main
concerns was that “all possibility should be excluded of its being used to deal
with cases which are really political in their nature, and which require to be
dealt with by means of political decision and not by reference to a court of
law.” The fact is
the ICJ did not seriously weigh whether the Wall is justiciable in that sense.
It simply stated that “the circumstance that others may evaluate and interpret
… facts in a subjective or political manner can be no argument … to abdicate
[ICJ’s] judicial task”); see also Wall
Case, supra note 2, at ¶ 133 (But if
one is to claim that the ICJ did not have the right to take up the task, since
it was too political, a logical question arises: who then? The
diplomats have continued to
fail in solving the Palestinian issue for over 30 years, the Security Council
is constantly blocked by the US veto, the GA has no influence over Israel and
Israeli Courts are more likely to be biased than an International Court. Again, a deviation in the ideal
world of the UN is required and there is no choice but to accept the expanded
role of the ICJ).
 Lyndell v.
Prott, The Latent Power of Culture and the International Judge 10 (1979).
 Ijaz Hussain, Dissenting and Separate Opinions at the
World Court 2 (1984).
 E.g., Ruth Mackenzie & Philippe
Sands, International Courts and Tribunals
and the Independence of the International Judge, 44 Harv. Int’l L. J. 271,
278 (2003); Eric A. Posner & Miguel F. P. de Figueiredo, Is the International Court of Justice
Biased?, 34 J. Legal Stud. 599, 603 (2005).
 Halberstam, supra
note 135, at 2.
 Niki Dorsky, The
Construction of the ICJ’s Advisory Opinion on the Construction of Israel’s
Security Fence (Dec. 17, 2004)
(unpublished final paper, Counter-terrorism Law),
Halberstam, supra note 135, at 2.
Press Release, International Court of Justice, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory; Composition of
the Court, Press Release 2004/4 (Feb. 3, 2004),
 Wall Case, supra note 2, at ¶ 46-47.
 Wall Case, supra note 2,at ¶ 163.
Buergenthal, Holocaust Encyclopedia, United States Holocaust Memorial Museum , http://www.ushmm.org/wlc/en/idcard.php?ModuleId=10006193
(last visited Oct. 9, 2010); Joshua Rozenberg, British Woman is World’s Most Senior Judge, Telegraph (Apr. 6, 2006, 12:01 AM), http://www.telegraph.co.uk/news/uknews/1514961.
 Wall Case, supra note 2, at¶ 3 (Buergenthal, J., separate opinion).
 See Wall Case, supra note 2, at ¶ 90-92.
 See e.g., Howard Grief, Is Israel Occupying the West Bank,
Think-Israel (June 10, 2007), http://www.think-israel.org/grief.occupation.html;
see also e.g., Rachel Pomerance, Geneva Convention Targets Israel asOccupying
Power, Jewish Telegraphic Agency (Dec. 5, 2001), http://www.ncsj.org/AuxPages/120501JTA.shtml.
 Wall Case, supra note 2, at ¶ 9 (Kooijmans, J., separate opinion).
 Wall Case, supra note 2, at ¶ 78.
 Wall Case, supra note 2, at ¶¶ 96-99.
 See Wall
Case, supra note 2, at ¶ 1.
 Wall Case, supra note 2, at ¶ 11
(Kooijmans, J., separate opinion).
 Wall Case, supra note 2, at ¶ 6
(Buergenthal, J., separate opinion).
 E.g.,U.N. Court Rules West Bank Barrier
Bank+barrier (last visited Oct. 16, 2010); Wall
Case, supra note 2, at ¶ 140