Chapter 19. The Separation Fence in the International Court of Justice and the High Court of Justice: Commonalities, Differences and Specifics

2007 ◽  
pp. 509-541
Keyword(s):  
International Court Of Justice ◽  
High Court ◽  
Court Of Justice ◽  
International Court

scholarly journals Mara’abe v. Prime Minister of Israel

2006 ◽  
Vol 100 (4) ◽  
pp. 895-901
Author(s):  
Daniel Bodansky ◽  
Geoffrey R. Watson
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
High Court ◽  
Court Of Justice ◽  
International Court ◽  
Israeli Government ◽  
Israeli Supreme Court

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.

Pragmatism and Principle in International Humanitarian Law

2009 ◽  
Vol 42 (01) ◽  
pp. 150-167
Author(s):  
Michael M. Lieberman
Keyword(s):  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Theoretical Level ◽  
International Court Of Justice ◽  
True Nature ◽  
High Court ◽  
Court Of Justice ◽  
Pragmatic Analysis ◽  
International Court ◽  
Methodological Ground

As we seek to identify new norms to bridge the gaps between extant law and the challenges that new conflict modes pose today, we confront a threshold question as to which methodological ground we should stand upon in doing so. Based on a background assumption of positivism as the source of substantive norms, the issue for some observers comes down to a clash between pragmatism and formalism. To formalism's proponents, the concept of pragmatism—which sees law as a functional instrument to be used in pursuit of pre-envisioned ends—has contributed to a dearth of moral obligation in international humanitarian law discourse. Such a view considers that the emphasis on empiricism found in pragmatism both legitimizes and shrouds the reality of effective power lurking behind the law. The alternative they prefer, championed most articulately by Professor Koskenniemi, is a “culture of formalism” that sees law as an object of universal obligation and as a form of critique that unmasks the pragmatic mode for what it is, namely, a rationalization of might. As this Article suggests, this understanding misapprehends the true nature of pragmatism, which is neither a smokescreen nor an apoloay. Rather, pragmatism's focus on real-world effects and consequences holds far greater promise for advancing the actual humanitarianism of IHL. Formalism, moreover; is subsumed within the constellation of factors that pragmatic analysis demands. These ideas are explored on a theoretical level, and are then illustrated by a look at the Israel separation barrier cases decided by the International Court of Justice and the Israeli High Court of Justice.

C1. ISRAELI HIGH COURT, RULING ON THE SEPARATION FENCE, JERUSALEM, 30 JUNE 2004 (EXCERPTS).

2004 ◽  
Vol 34 (1) ◽  
pp. 160-163
Keyword(s):  
West Bank ◽  
Court Ruling ◽  
International Court Of Justice ◽  
High Court ◽  
Military Commander ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
The Government ◽  
The Military

The case was brought before the High Court on 29 February by villagers from Bayt Surik, Biddu, al-Kabiba, Ka'ane, Bayt Anan, Bayt Laqia, Bayt Ajaza, and Bayt Daku challenging the seizure of their lands and the disproportionate hardship caused by the wall's route; the defendants (““respondents””) were the Government of Israel and the military commander of the West Bank. Unlike the International Court of Justice at the Hague, the High Court was not called upon to consider the wall as a whole, but only a 40-km stretch (out of the 832-km total length) northwest of Jerusalem. The court ruled without deliberation in favor of Israel's right to build the wall on West Bank lands and the security nature of the project. Most of the opinion concerned the legality of the specific route. The court considered six separate orders pertaining to different segments of the wall and ruled that disproportionate hardship was caused to the inhabitants along about 30 km. For these segments, the court ordered the military commander to ““consider alternatives which, even if they result in a lower level of security, will cause a substantial (even if not complete) reduction of the damage to the lives of the local inhabitants”” (para. 76). In compliance with the order, the IDF on 8 July finalized a proposal for a new path for the wall in the Bayt Surik area, but Prime Minister Sharon and Defense Minister Mofaz had not formally approved it by the end of the quarter. The full text of the court ruling can be found on the High Court's Web site at www.court.gov.il.

Down by Law: The High Court of Israel, International Law, and the Separation Wall

2005 ◽  
Vol 35 (1) ◽  
pp. 6-24 ◽  
Author(s):  
Michael Lynk
Keyword(s):  
International Law ◽  
The State ◽  
International Court Of Justice ◽  
High Court ◽  
Court Of Justice ◽  
International Court ◽  
Do So

In June 2004, the High Court of Israel (HCI) ruled on the ““Beit Sourik”” case in which Palestinian villagers challenged the legality of Israel's separation wall, which had been routed through their villages causing great hardship. This article examines the HCI decision---which upheld the legality of the wall under international law but mandated changes in its route---and the argumentation used. In the process, the article shows how the HCI, despite some disagreements with the state on narrow issues of administrative application, broadly supports the government's policies of occupation, and it explains how the court interprets international law in order to do so. The article also contrasts the HCI's ruling with the nearly simultaneous ruling of the International Court of Justice, highlighting the two courts' very different approaches to international law.

International Court of Justice

1952 ◽  
Vol 6 (3) ◽  
pp. 428-429 ◽  
Keyword(s):  
United Kingdom ◽  
Ad Hoc ◽  
International Court Of Justice ◽  
High Court ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Obligation ◽  
International Court ◽  
Administration Of Justice ◽  
Court Of Appeal

Ambatielos Case: When oral proceedings in the preliminary objection in the Ambatielos Case opened on May 15, as announced, the President of the Court stated that the Greek government had designated an ad hoc judge in the person of Mr. Jean Spiropoulos. Sir Eric Beckett, counsel for the United Kingdom, stated that, in spite of the United Kingdom's contention that the jurisdiction of the Court should be accepted as widely as possible by states, it felt bound to contest the jurisdiction of the Court in the case under consideration because: 1) the dispute related to facts occurring before 1930 when the United Kingdom first accepted the Optional Clause; 2) it considered the claim of denial of justice completely unfounded on the merits; 3) it considered it clear that municipal remedies had not been exhausted; and 4) no claim of any denial of justice or other breach of an international obligation was made until 1933, ten years after the events and eight years after a refusal of a request ex gratia in which it had been admitted that no legal claim could be made. Sir Eric explained that the United Kingdom, although it took the preliminary objection that the Court had no jurisdiction, had filed a comprehensive counter-memorial on the merits of the case in order that the Greek government's aspersions on the administration of justice in the English High Court and Court of Appeal should not appear on the record unrefuted. Further, the United Kingdom denied that the terms of the 1886 or 1926 treaties (or the declaration appended to the latter) between the two governments lent any support to the Greek government's claims on behalf of Mr. Ambatielos.

An Examination of the Authority of the Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier

2005 ◽  
Vol 38 (1-2) ◽  
pp. 247-261
Author(s):  
Nir Keidar
Keyword(s):  
International Court Of Justice ◽  
High Court ◽  
Military Commander ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Specific Duty ◽  
The Military ◽  
The Relationship ◽  
Privately Owned

This paper examines the authority of the Military Commander to requisition privately owned land for the construction of the Separation Barrier within the West Bank, which is held through a regime of belligerent occupation. The examination focuses on Article 52 of the Hague Regulations, which deals with the issue of requisitions in kind. Moreover, the relationship between Articles 23(g) and 52 of the Hague Regulations is discussed, in light of the ICJ's decision whereas Article 23(g) is irrelevant after the close of active hostilities. This paper argues that while Article 52 grants the Military Commander the authority for such requisitions, Israel must demonstrate in each specific case that there a specific duty of the army of occupation which gives rise to a specific need of the army of occupation, in accordance with Article 52. The relevant decisions of the International Court of Justice and the Israeli High Court of Justice (HCJ) are examined, especially the High Court of Justice's Beit Sourik judgments and the International Court of Justice's Legal Consequences case.

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