The West Bank Separation Barrier

The Israeli-Palestinian Peace Process

1987-1993 First intifada.
Sept. 1993 Oslo Accords (Declaration of Principles on Interim Self-Government Arrangements) Stipulated: Withdrawal of Israeli forces from some parts of the Gaza Strip and the West Bank (Gaza and Jericho first) ; Creation of a Palestinian Authority; Five-year transitional period; Negotiation of a final status agreement (Jerusalem, Refugees, Settlements, Security Arrangements, Borders, and Relations and Cooperation with Other Neighbors).

Sept. 1995 Interim Agreement - Division of West Bank into 3 areas: A (Palestinians responsible for internal security and public order); B (Palestinians responsible for public order for Palestinians, Israel retains responsibility for security); C (Israeli rule, to be gradually transferred to Palestinian Authority). Nov. 4 1995 Rabin assassinated.

The Al-Aqsa Intifada (Sept 2000 to the present)

Emerged out of growing Palestinian dissatisfaction with the Oslo process, and the tensions following the failure of the Camp David Summit in July 2000 (Barak, Arafat, and Clinton). Feb. 2001 Sharon elected PM. 2001 and 2002 Clashes in the West Bank and Palestinian suicide attacks in green line Israel. March-May 2002 Operation Defensive Shield. June 2002 Cabinet approves initial construction of the separation barrier. August 2005 Unilateral disengagement from Gaza Strip and 4 settlements in the northern West Bank.

The Legal Status of the Separation Barrier

Legal framework: the International law of belligerent occupation. The legal question: For what purpose is the military commander of the West Bank authorized to appropriate land under the international law of belligerent occupation? Art. 52 (Hague) Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. Questions: Is the barrier a military necessity? Is the security benefit gained by erecting the barrier proportional to the damage caused to the local population? Different approaches of the Israeli Supreme Court and the International Court of Justice.

Beit Sourik Village Council v. Government of Israel (HCJ 2056/04) - 30 June 2004 Is the separation barrier legal? Why? What implications does the security argument have for the route of the barrier vis--vis the green line ? How does the Court assess the legality of the route? What method and tools of legal analysis does it use? What is the overall outcome?

Proportionality: A Principle of International Law and Israeli Administrative Law

According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize the government objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is being attempted, and the means used to achieve it.
Appropriate means test. The least injurious test.

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Is the damage caused disproportionate to the gain?

Does the route undermine the balance between the Military Commanders obligation to preserve security and his obligation to provide for the needs of the local inhabitants?

ICJ Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory - 9 July 2004 -

Is the separation barrier legal? Why? What implications does the security argument have for the route of the barrier vis--vis the green line ? How does the Court assess the legality of the route? What method and tools of legal analysis does it use? What is the overall outcome?

Mara`abe v. Prime Minister And Alfei Menashe Local Council (HCJ 7957/2004) - 15 September 2005 -

Alfei Menashe - the HCJ Answers the ICJ

The ICJ concluded that the barrier was not necessitated by security reasons due to insufficient factual basis and an extensive discussion of impingement on Palestinian rights, but no discussion of the Palestinian attacks. This is crucial, because in international law the legality of the barrier depends on appropriate balance between security needs and impingement on Palestinian rights. In Beit Sourik, the data was placed on a scale and weighed. In the ICJ ruling, only the data regarding impingement on Palestinian rights received weight.

Bil`in Habibti
Chair of Bil`in Village Council v. Government of Israel (HCJ 8414/05)
Seizure orders of spring 2004 left about of Bil`ins village lands on the Israeli side of the separation barrier, including land designated for planned expansion of Modi`in Ilit (Matitiyahu East neighborhood). Petition Submitted 5 September 2005. Decided 4 September 2007.