The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation

Abstract

The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.

Frames of law: targeting advice and operational law in the Israeli military

“…It would also include the turn to 'precision weapons' and 'surgical strikes' that enables advanced militaries like Israel to claim that weapons technologies are improving at such a rate that they are able to measurably reduce the scope of 'collateral damage' and thus minimize civilian casualties (Witman, 2013;cf Zehfuss, 2011). The Israeli court systems-both civilian and military-are also integral parts of the machine that legitimizes Israel's war against the Palestinians (Gross, 2006;Hajjar, 2005;Kretzmer, 2002), and, as we shall see, the High Court of Justice (HCJ) lent great weight to the legality of targeted killing in its controversial decision on the matter in 2006. The obvious yet crucial point is that law and operational legal advice has been one frame among many that have been used by Israel to lend legitimacy to the occupation and more recently, to its assassination policy.…”

Childhood: A Universalist Perspective for How Israel is using Child Arrest and Detention to further its Colonial Settler Project

“…Despite the nomenclature, the juvenile military court uses the same facilities and court staff as the adult military court (Defence for Children International, ). The extra‐judicial military court established solely for trying children negates Israel's responsibility, not just to the UNCRC, but also the Geneva and Hague Conventions (Gross, ). This juvenile military court is rife with injustice and discriminatory practices.…”

Activism and Legitimation in Israel’s Jurisprudence of Occupation

“…the cases of Beer Nabalah, 2006; Maamon Kayed, 2006). The difference between the rulings is striking: It is the difference between the general and the particular, the diachronic and the synchronic, the forest and the trees (Gross, 2006). The ISC in Mara'abeh (2005) tries to downplay the significance of the difference by suggesting that it is a difference in the factual basis available before the two courts.…”

“…It also justifies the very existence of the wall inside the OPT in the first place. The Court's reasoning may also be damaging as it introduces factors or devices that can be used against the petitioners next time even if the factual or legal situation is somewhat similar: The separation wall cases and the Abu Safiya case (that canceled the Jewish-only movement on road 443) introduced the rights of the settlers to the 'balancing' and 'proportionality' analysis despite the fact that their very presence is illegal under international law (Abu Safiya, 2009;Gross, 2006;Harpaz and Shany, 2010).…”