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‘A La Recherche du Temps Perdu’: Rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion

Published online by Cambridge University Press:  04 July 2014

Orna Ben-Naftali
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Abstract

The comment focuses on the construction of time in the normative regime of occupation. Beginning (in section 2) with a critique of the ICJ's reading of Article 6 of the Fourth Geneva Convention concerning the scope of applicability ratione temporis of the Convention in cases where the duration of an occupation lasts longer than one year, the comment proceeds (in section 3) to argue (a) that the gap between the working assumption informing Article 6 (of relatively short-term occupations) and reality (of prolonged occupations) defines a problem which the Court erroneously construed as a solution; (b) that the problem of prolonged occupation has allowed for the substitution of an indefinite for a temporary duration of an occupation, a move which defies the basic tenets of the normative regime of occupation; and (c) that a proper solution involves the construction of the notion of “reasonable time” into the Fourth Geneva Convention. The comment includes (in section 4) a proposal designed to minimize the temporary/indefinite blurring of boundaries in situations where an occupation has not ended within one year.

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Articles
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Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 211 - 229
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

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Head of the International Law Division, The Law School, The College of Management Academic Studies.

References

1 Legal Consequences of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. Google Scholar For a transcript of this decision see this issue “Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar para. 78 (hereinafter: “Construction of the Wall”). The reference to the “Occupied Palestinian Territory” (hereinafter: “OPT”) should be noted: Since 1999, this term is gradually substituting the terms “the West Bank, Gaza Strip and East Jerusalem” and “Palestinian occupied territories” in the terminology of the United Nations referring to the areas occupied by Israel since 1967, to connote the contiguous nature of the area where the Palestinians are entitled to exercise their right of self-determination. See e.g., GA Res. ES-10/6, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc. A/ES-10/6 (1999).

2 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287.

3 Construction of the Wall, supra n. 1, at para. 125. In para. 126 the Court proceeded to identify Articles 47, 49, 52, 53 and 59 of the Fourth Geneva Convention as relevant to the question at hand.

4 For a similar interpretation see Dinstein, Yoram, “The International Legal Status of the West Bank and the Gaza Strip – 1998” (1998) 28 Isr. YB. Hum. Rts. 37, 42–44 Google Scholar.

5 Construction of the Wall, supra n. 1, at paras. 71 and 162. See on this point, Eyal Benvenisiti's op-ed in Ha'Aretz, available at: http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=450102&contrassID=2&subContrassID=3&sbSubContrassID=0.

6 Construction of the Wall, supra n. 1, at para. 78.

7 Ibid., at paras. 120-121; 134.

8 Ibid., at paras. 90-101.

9 Ibid., at paras. 104-113. For a summary of the Court's pronouncements on this issue and a critical review thereof, see the ‘Postscript’ section in Ben-Naftali, Orna and Shany, Yuval, “Living in Denial: The Application of Human Rights in the Occupied Territories” (2003–2004) 37 (1) Is.L.R. 17 CrossRefGoogle Scholar.

10 Construction of the Wall, supra n. 1, at para. 49.

11 Ibid., paras. 25-32.

12 Ibid., paras. 44-54; 59-64.

13 The question on which the Court was asked to render an opinion focuses on the normative consequences attached to a specific action undertaken by an occupying power. Such indeed is the focus of most international legal scholarship, which refrains from questioning the legality of the regime itself. For a review of existing literature, undertaken in the context of an effort to enrich the legal discourse on occupation, see Ben-Naftali, Orna et al. , “Illegal Occupation: Framing the Occupied Palestinian Territory” (2005) Berkeley J. Int. L. (forthcoming)Google Scholar. This article, written together with Aeyal Gross and Keren Michaeli, advances various parameters for the determination of the legality of an occupation regime. The latter's duration is one such parameter, and this comment is based on the discussion of the time element in said article.

14 See the opening and the proviso of para. 125, cited in the text accompanying supra n. 3. Note that in para. 135, where, in the context of addressing the term “military operations” in Article 53 in order to determine the existence of military exigencies, the Court said that such exigencies “may be invoked in occupied territories even after the general close of military operations that led to their occupation” (emphasis added O. B-N.).

15 While 43 of the 159 Articles of the Conventions continue to apply, the emphasis is on Articles 47 – 78 comprising the relevant Section III.

16 Fourth Geneva Convention, supra n. 2, at Article 50.

17 Ibid., Article 55.

18 See 2a Final Record of the Diplomatic Conference of Geneva 1949,623-25; Pictet, Jean, ed. Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958)Google Scholar; Green, Leslie C., The Contemporary Law of Armed Conflict (Manchester, Manchester University Press, 2nd ed., 2000) 258 Google Scholar; Roberts, Adam, “Prolonged Military Occupation: The Israeli Occupied Territories Since 1967” (1990) 84 Am. J. Int'l L. 44, 56 CrossRefGoogle Scholar. Roberts advances four arguments for the inapplicability of Article 6.

19 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 340.

20 Construction of the Wall, supra n. 1, at paras. 94-101. The Court turned to the preparatory work of the Fourth Geneva Convention as well as to its subsequent interpretation by its parties, the UN Security Council and General Assembly, the Red Cross and The Israeli Supreme Court, to confirm the applicability of the Convention.

21 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 1, 1125 U.N.T.S. 3 (hereinafter: “Protocol I”). Article 3(b) provides: “the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter…” See further, Roberts, supra n. 18, at 56.

22 See Dinstein, supra n. 4, at 43.

23 Sandoz, Yves, Swinarski, Claude and Zimmermann, Bruno, eds. Commentary on The Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Nijhoff Publishers, 1987) 67–68 Google Scholar.

24 Article 1(4) of Protocol I, supra n. 21, in recognition of the changing face of armed conflicts, broadened the traditional definition of international armed conflicts to incorporate “conflicts which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination…” thus equating the status of, and with it the protection accorded to, national liberation movements with that of States. See Green, Leslie C., “International Regulation of Armed Conflicts” in Bassiouni, M. Cherif, ed. International Criminal Law (Dobbs Ferry, Transnational Publisher, 2nd ed., 1998) 355, 373–374 Google Scholar. This move had the then Palestinian Liberation Organization in mind. See Michel Veuthey, “Non-International Armed Conflict and Guerilla Warfare” in Bassiouni, ibid, 417, 425). It is precisely for this reason that both Israel and the United States refused to join the Protocol. See Meron, Theodor, “The Time Has Come for the United States to Ratify Geneva Protocol” (1994) 88 Am. J. Int'l L. 678, 683 CrossRefGoogle Scholar. Israel has clearly remained a persistent objector to this attempt at broadening the scope of applicability of humanitarian law, but not to other provisions comprising the Protocol. See Ben-Naftali, Orna and Michaeli, Keren R., “‘Do Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings” (2003) 36 Cornell Int'l. L. J. 233, 255 Google Scholar; Rubin, Barry, “PLO Violence and Legitimate Combatancy: A Response to Professor Green” (1989) 19 Isr. YB. Hum. Rts. 167, 172–173 Google Scholar.

25 E.g., Article 78 of the Fourth Geneva Convention was recently applied by the HCJ in H.C.J. 7015/02 Ajuri. v. IDF Commander in the West Bank (96) P.D. 6, 352. For reviews of this judgment see, Barak-Erez, Daphne, “Assigned Residence in Israel's Administered Territories: The Judicial Review of Security Measures” (2003) 33 Isr. YB. Hum. Rts Google Scholar; Benvensiti, Eyal, “Ajuri et al. – Israel High Court of Justice, 3 September 2002” (2003) 9 Eur. Pub. L. 481 Google Scholar; Ben-Naftali, Orna and Michaeli, Keren, “The Call of Abraham: Between Man and ‘Makom’: Following HCJ 7015/02 Ajuri v. IDF Commander in the West Bank ” (2003) 15 Hamishpat 56 Google Scholar [in Hebrew], Note that while Article 78 provides less for the obligations and more for the rights of the Occupying Power, endowing it with the power to subject protected persons to assigned residence and to internment, and that this may well be the reason why the possibility of constricting the application of the provisions of the Geneva Convention was not raised, the fact remains that the Court applied this provision, regardless of Article 6.

26 Roberts, Prolonged Military Occupation, supra n. 18, at 55.

27 On the customary status of most of Protocol I provisions, see Greenwood, Christopher, “Customary Law Status of the 1977 Geneva Protocols”, in Delissen, Astrid J.M. and Tanja, Gerard J., eds. Humanitarian Law of Armed Conflict: Challenges Ahead (Dordrecht., M. Nijhoff, 1991) 93 Google Scholar; Georges Abi-Saab, “The 1977 Additional Protocols and General International Law: Some Preliminary Reflections” in Delissen and Tanja, ibid., at 115, 119; Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law (Oxford, Oxford University Press, 1989) 62–70 Google Scholar.

28 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 240 (July 8).

29 Construction of the Wall, supra n. 1, at paras. 105-106.

30 See Ben-Naftali and Shany, supra n. 9.

31 See e.g., Art. 50 protecting children's right to education does not apply but this very same right as it appears in Article 28 of the Convention on the Rights of the Child and Articles 10, 13 and 14 of the International Covenant on Economic, Social and Cultural Rights, does apply. Similarly, Articles 55 and 56, which stipulate the duty of the occupant to ensure the population's health through provision of food and medical supplies and the maintenance of medical and hospital establishments, has no applicability while similar duties, far less specific, clear and legally binding, enshrined in Articles 11 and 12 of the ICESCR (the right to adequate standard of living and the right to health respectively) and Articles 24 and 27 of the CRC (the rights to health and adequate standard of living and development respectively), apply.

32 See Ben-Naftali and Shany, supra n. 9 (both in the concluding section of the text and in the postscript).

33 Construction of the Wall, supra n. 1, at para. 112.

34 Roberts, Prolonged Military Occupation, supra n. 18, at 71.

35 Ibid., at 57

36 The commentary of the Fourth Geneva Convention states: “…if the Occupying Power is victorious, the occupation may last more than a year, but as hostilities have ceased, stringent measures against the civilian population will no longer be justified.” See Pictet, supra n. 18, at 63. See Separate Opinion of Judge Elaraby, para. 3.1 available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_elaraby.htm. Elaraby, Judge, quoting Falk, Richard A. and Weston, Burns H., “The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza”, in Playfair, Emma, ed. International Law and the A dministration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford, Oxford University Press, 1992) 125, 146–147 Google Scholar. Indeed, the right of an occupied population to resist has gained wide international support, as manifested in many UN resolutions. See e.g. the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970), which stated: “every state has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purpose and principles of the Charter. See also the Charter of Economic Rights and Duties of States of December 12, 1974 (art. 16(1) of G.A. Res. 3281, 29 U.N. GAOR, 29th Sess., Supp. No. 31, at 52, U.N.Doc. A/9631 (1974)); Permanent Sovereignty over Natural Resources, GA Res. 3171, section 2, UN GAOR, 28th Sess., Supp. No. 30, at 52, UN Doc. A/9030 (1973). It has thus replaced the traditional duty of obedience incumbent upon that population. See Baxter, Richard R., “The Duty of Obedience to the Belligerent Occupant” (1950) 27 Brit. Y.B. Int'l L. 235 Google Scholar.

37 Construction of the Wall, supra n. 1, at para. 136.

38 Article 2(1) of the Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153. The notion of the principle of sovereign equality of states decrees that it encompasses, inter alia, such elements as the inviolability of territorial integrity and political independence of each state, as well as the right of every state to freely choose and develop its political, social, economic and cultural systems. See GA Res. 2625, supra n. 36. On the principle of self-determination see generally Crawford, James, “The Right to Self-Determination in International Law: Its Development and Future” in Alston, Philip, ed. Peoples Rights (Oxford, Oxford University Press, 2001) 7–67 Google Scholar; Cassese, Antonio, Self-Determination of Peoples (Cambridge, Cambridge University Press, 1995)Google Scholar. In the context of the Israeli occupation of the OPT, it is important to note that Israel itself seems to have recognized this right, albeit implicitly, at least since the Oslo Accords of 1993, as can be inferred from both the articles 3(1) and 3(3) of the Declaration of Principles signed between Israel and the PLO in 1993. See Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, 32 I.L.M. 1525 (1993). Similarly, such recognition may be inferred from Israel's acceptance of the idea of “an independent, democratic, and viable Palestinian state” as part of the Middle East Roadmap. See, United States State Department, A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, Apr. 30, 2003. In the Construction of a Wall, supra n. 1, at para. 118, the Palestinian right to self determination was explicitly recognized, the Court opining that “the existence of a ‘Palestinian people’ is not longer an issue”, and noting that Israel itself has recognized this right.

39 An analogous situation is that of an emergency regime which is equally characterized by its exceptionality, the limited scope of powers it entails and, its temporary duration. Similarly, an emergency regime is designed to operate as a normative exception, indicating that the norm is suspended temporarily, but never substituted. The purpose and nature of this normative exception is thus to serve, rather than to challenge, the norm, in the sense that it is put in place in order to re-establish the status quo, that is, the return to normalcy. This is precisely why it is triggered only in extraordinary circumstances, and its limited duration ensures it does not generate permanent effects.

40 Graber, Doris A., The Development of the Law of Belligerent Occupation 1863-1914 – A Historical Survey (New York, Columbia University Press, 1949) 37 Google Scholar: “The modern law of belligerent occupation is anchored in the concept that occupation differs in its nature and legal consequences from conquest. It is therefore not surprising that the early definitions of the modern concept of occupation are chiefly concerned with the main aspects of this difference, namely the temporary nature of belligerent occupation as contrasted with the permanency of conquest, and the limited, rather than the fall powers which belligerent occupation entails for the occupant” (Emphasis added O. B.N.).

41 Benvenisti, Eyal, The International Law of Occupation (Princeton, Princeton University Press, 1992) 5 Google Scholar. Indeed, traditional occupational law, as materialized in the 19th century, rejected the recognition of such title since it violated the order of state sovereignty that law was designed to uphold. See Oppenheim, Lassa, “The Legal Relations Between an Occupying Power and the Inhabitants” (1917) 33 L. Q. Rev. 363, 364 Google Scholar. Similarly, the contemporary prohibition on annexation by force is premised on its perception as the corollary rule of the prohibition on the use of force against the sovereignty of states. The basis of the non-recognition rule, however, currently includes also the concept of the customary right to self-determination which is unavoidably impeded by such annexation. See Construction of the Wall, supra n. 1, at paras. 87-88, 122; Separate Opinion of Judge Koroma, para. 2, available at available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_koroma.htm; It should be emphasized that each of the above mentioned grounds leads to the conclusion that by its very nature, the non-recognition rule is especially relevant with respect to disputed territories, the sovereignty of which is not yet satisfactorily determined as the Construction of the Wall opinion demonstrates.

42 Wilson, Arnold, “The Laws of War in Occupied Territories” (1993) 18 Transactions Grotious Soc'y 17, 38 Google Scholar; Roberts, Adam, “What is a Military Occupation?” (1984) 55 Brit. Y.B. Int'l. L. 249, 295 Google Scholar. The concept of trust is manifested by the occupant's duty to maintain public order and civil life/safety in the occupied territories. Although previously owed to the ousted political sovereign, the contemporary concept of self-determination, which vests that sovereignty in the people themselves as well as the development of human rights standards decree that such trust is owed to the occupied population. The link between the principle of self-determination and the concept of trust was indeed noted by the Court. See Construction of the Wall, supra n. 1, at para. 88.

43 See the Court's discussion in paras. 117-122 of the opinion, ibid. See especially the Separate Opinion of Judge Elaraby, supra n. 36, at para. 3.1; Separate Opinion of Judge Koroma, supra n. 41, at para. 2,4.

44 Note, in this respect, Judge Elaraby's analysis of the illegality of the Israeli occupation. He correctly identifies the “inherent difficulties” and unavoidable consequences of the prolonged occupation, which “stretches the applicable rules…”, but attached the illegality of the occupation to its inception, rather than to its duration. I believe this analysis to be erroneous and outdated. See Lauterpacht, Hersch, “The Limits of the Operation of the Law of War” (1953) 30 Brit. Y.B. Int'l. L. 206, 233–37Google Scholar; Morgenstern, Felice, “The Validity of the Acts of the Belligerent Occupant” 28 Brit. Y.B. Int'l. L. 291, 321 Google Scholar. An occupation is not illegal ab-initio. The use of force which had occasioned it may have been legal or illegal, but it is irrelevant to the determination of the legality of the occupation. The former is a jus ad bellum issue; the latter a jus in bello and perhaps also, as suggested by Michael Walzer, a jus post bello issue. See Walzer, Michael, “Just and Unjust Occupation” (Winter 2004) Dissent Magazine available at http://www.dissentmagazine.org/menutest/articles/wi04/walzer.htm Google Scholar Indeed, use of force legally exercised does not give rise to a valid title over an occupied territory. See Jennings, Robert Y., The Acquisition of Territory in International Law (New York, Manchester University Press; Oceana Publications, 1963) 55 Google Scholar. Bowett, Derek W., “International Law Relating to Occupied Territory: A Rejoinder” (1971) 87 L. Q. Rev. 473, 475 Google Scholar (claiming that the right to have recourse to self-defense does not include the right to permanently seize the territory of the attacked).

45 For a comprehensive discussion see Ben-Naftali et al., supra n. 13, at section II.A.4.

46 Shamgar, Meir, “Legal Concepts and Problems of the Israeli Mlitary Government—The Initial Stage” in Shamgar, Meir, ed. Military Government in the Territories Administrated by Israel 1967-1980 (Jerusalem, Harry Sacher Institute, 1982) 13, 43 Google Scholar.

47 Applying this rationale to the analogous, for the purpose of this discussion, situation of a Mandate, a situation where no time limits have been explicitly set, Ammoun, Judge concluded that: “Mandates must have an end or are revocable” See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 72–73 Google Scholar (Junes 21) (Separate Opinion of Vice-President Ammoun).

48 The principle of reasonableness is a general principle of international law. Its application has generated the conclusion that a right cannot be exercised in a wholly unreasonable manner causing harm disproportionate to the right's holder interests. See Cheng, Bin, General Principles of Law: As Applies by International Courts and Tribunals (MA., Cambridge, 1987) 121–123 Google Scholar; Also see WTO, Report of the Appellate Body in United States - Standard for Reformulated and Concentrated Gasoline and Like Products of National Origin, reprinted in (1996) 35 I.L.M. 603, 626. In that sense, it resembles the basic notion underlying the principle of “good faith” with which every state must exercise its obligations. See Article 2(2) of the UN Charter; GA Res. 2625, supra n. 36; Nuclear Test Case, 1974 I.C.J. 253, 267 Google Scholar (Dec. 20). The principle of “reasonableness”, however, provides better criteria than the principle of “good faith”, as it is not concerned with the subjective aspects of states' actions, but rather with their objective consequences, and is therefore easier to apply, as is illustrated in the remaining part of the text above.

49 E.g., The Uniform Negotiable Instruments Law sets standards for the measurement of “reasonable time.” See Speidel, Richard and Nicks, Steve H., Negotiable Instruments and Check Collections (The New Law) in a Nutshell (MN., West Publishing, 4th ed. 1993) 60, 61, 148, 149, 152 Google Scholar. Similarly, “reasonable time” for taking an action is contemplated in the Uniform Commercial Code (Colorado) as depending “on the nature, purpose and circumstances of such action”. See http://www.law.du.edu/russell/contracts/ucc/4-1-204.htm. It is interesting to note that the Israeli Supreme Court has itself resorted to the principle of reasonable time in order to determine the time limits of a judicial institutionalization order. See C.A. 3845/02 Anonymous v. the District Adult Psychiatric Committee, (not yet published). This determination relied on a similar decision by the US Supreme Court, Jackson v. Indiana 406 U.S. 715, 738 (1972).

50 Art. 2(3) of the UN Charter, supra n. 38. See supra text accompanying nn. 38-42. The fact that current international law legitimizes an armed struggle by occupied people attempting to realize their right to self-determination and emerge as a new sovereign state attests to the importance attached to the realization of this right. See supra n. 36.

51 The Court notes that the construction of the wall has been accompanied by the creation of a new administrative regime and that under this regime part of the West Bank lying between the Green Line an the wall was designated as a “Closed Area”: “Residents of this area may no longer remain in it, nor may non residents enter it, unless holding a permit or identity card issued by the Israeli authorities… Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in, or move freely to, from an within the Closed Area without a permit”. Construction of the Wall, supra n. 1, at para. 85. The Court returns to this point in the application part of the Opinion, when it determines that “[T]hat construction, the establishment of a closed area…and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto)”. Ibid., para. 133. These references to a regime which operates on the basis of ethnic distinctions seem to suggest the prima facie relevance of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195, and it is therefore surprising that the Court failed to refer to it when it enumerated the human right treaties to which Israel is a party and which are, at least potentially, applicable to the issue at hand. On this point see Ben-Naftali and Shany, postscript, supra n. 9.

52 Roberts, supra n. 18, at 52.

53 Falk and Weston, supra n. 36, at 146-147.

54 Construction of the Wall, supra n. 1, at para. 75

55 Ibid., at para. 119-122.

56 See Dugard, John, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, (NY, Special Rapporteur of the Commission on Human Rights, 2003)Google Scholar on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2 A, 14, U.N. Doc. E/CN.4/2004/6, Sep. 8, 2003, at 7, 15.

57 A leading commentator in Ha'Aretz newspaper, contemplating merely the cost of the by-pass roads, concluded that: “three explanations stand behind this reality. The first is that these expenditure express an intention never to give up the territories and all the rest is an illusion. The second is that we have decided to build, step-by-step, the road system of the Palestinian State that will be established in the territories, at the expense of the Israeli taxpayer. The third possible explanation is that the governmental systems of Israel have been dragged into this as if forced by a demon and without anyone being able to stop the march of folly”. See Schiff, Ze'ev, “The March of Folly of the By-Pass Roads” Ha'Aretz, Feb. 15, 2002, B. 1 Google Scholar. Given that governments are not presumed to be possessed by demons, the obvious cynicism of the second explanation, and the broader context and raison d'etre of the by-pass roads, that is, the settlements' enterprise, the first explanation is clearly the only reasonable conclusion. Also see Ran HaCohen, , Letter from Israel, Mar. 1, 2002, available at http://antiwar.com/hacohen/pf/p-h030102.html Google Scholar. The concern that the barrier is tantamount to annexation was the focus of the debate held during the 4841 th Security Council meeting on October 14, 2003. See UN press release, available at http://www.un.org/News/Press/docs/2003/sc7895.doc.htm.

58 On the “Greater Israel” (Eretz Isreal/Land of Israel) ideology and its implications see Kimmerling, Baruch, “Between the Primordial and the Civil Definitions of the Collective Identity: Eretz Israel or the State of Israel?” in Cohen, Eric et al. eds., Comparative Social Dynamics: Essays in Honor of S. N. Eisenstadt (Philadelphia, Westview Press, 1985) 262–283 Google Scholar. The settlement project cannot be understood outside of this context as there is an overlap between the occupied territories and the historical and religious “Greater Israel”. See Kimmerling, Baruch, “Boundaries and Frontiers of the Israeli Control System: Analytical Conclusions” in Kimmerling, Baruch ed., The Israeli State and Society: Boundaries and Frontiers (New York, SUNY Press, 1989) 265, 277 Google Scholar. For further discussion see Ben-Naftali et al., supra n. 13, sections II.A.3 and IV.

59 B'tselem, The Israeli Information Center for Human Rights in the Occupied Territories, Land Grab: Israel's Settlement Policy in the West Bank, available at http://www.btselem.org/english/Publications/Summaries/Land_Grab_2002.asp.

60 Appeal Committee (A.C.) 2597/02 Kafr 'Aqeb Development Committee et al. v. Ministry of Defense et al. (hereinafter: “Kafr 'Aqeb Development Committee”), (Court of First Instance Tel Aviv-Jaffa) response of the state, sec. 33/c, reproduced in Behind the Barrier, B'tselem Human Rights Violation As a Result of Israel's Separation Barrier: Position Paper (April, 2003), available at http://www.diak.org/Roadmap/2003_Behind_The_Barrier_Eng.htm#_ftnref84. Note further that HCJ itself had, in the past, accepted this logic when it contemplated, and authorized, the temporary seizure of Palestinian land for the building of permanent settlements see H.C.J. 610/78 Ayun v. Minister of Defense 33(2) P.D. 113, 131 (opinion of Judge Landau); 134 (opinion of Judge Ben-Porat).

61 On the position that the exception defines the rule rather than the other way around, see Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (Schwab, George trans., MA., MIT Press, 1988)Google Scholar. A reversal of the relationship between the norm and the exception generates, as of necessity, the terminus of every normative system. See Marramo, Giacomo, “Schmitt and the Categories of the Political: The Exile of the Nomos: For a Critical Profile of Carl Schmitt” (2000) 27 Cardozo L. Rev. 1567 Google Scholar. For further discussion, see Ben-Naftali et al., supra n. 13, at section III.B.

62 Construction of the Wall, supra n. 1, at para. 54.

63 As pointed out by several of the separate opinions. E.g., Construction of the Wall, Separate Opinion of Judge Kooijmans, paras. 3-4, 12-13, 32, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_kooijmans.htm; Separate Opinion of Judge Higgins, paras. 14-18, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_higgins.htm; Separate Opinion of Judge Owada, paras. 26-29, 31, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_owada.htm.

64 A point emphasized by Israel to contest the Court's jurisdiction to give an advisory opinion. The former contended, inter alia, that the wall is one aspect of a larger bilateral dispute between itself and the Palestinian Authority, over which the Court has no jurisdiction in light of its rejection by Israel. See Construction of the Wall, supra n. 1, at para. 46. The Court's failure to fully take account of the context of the dispute led several of the judges to conclude that the opinion could, and should, have included a more balanced perspective which would have enhanced both the legitimacy and the legal accuracy of its determinations. See supra n. 63.

65 “Occupation, as an illegal and temporary situation is at the heart of the whole problem” See, Separate opinion of Judge Elaraby, supra n. 36, at para. 3.1.

66 A search in Lexis-Nexis on the Israeli occupation of the occupied Palestinian territory generated some 170 entries concerned with the questions indicated in the text, and no entry relative to the legality of the occupation itself. Similar results were obtained from West Law.

67 See supra text and nn. 56-57. The blurring of boundaries between occupation/ non occupation (visible in the context of the Israeli position regarding the applicability of the Fourth Geneva Convention); annexation/ non-annexation; temporary/indefinite; rule/ exception is characteristic of this occupation. It is this obfuscation that has made it possible for Israel to act in the territories as a sovereign, insofar as it settles its citizens there and extends to them its laws and at the same time, insofar as the territories have not been formally annexed, not to act as a sovereign vis-à-vis the Palestinians, granting them citizenship rights. For further discussion see Orna Ben-Naftali et al., Illegal Occupation, supra n. 13.