Give Peace a Chance: How Considering Peace Process Obligations Would Have Improved the Rulings of the International Court of Justice and the Israeli Supreme Court on the Israeli Security Barrier
affiliation not provided to SSRN
Duke Journal of Comparative & International Law, Vol. 17, No. 1, 2007
The article is a study of the two leading judicial opinions on the Israeli security barrier, the Israeli Supreme Court decision in Beit Sourik and the International Court of Justice Advisory Opinion. The author critiques both courts for ignoring the implications of Israeli-Palestinian peace agreements, specifically the Oslo Accords and the UN-sponsored "Road Map".
The article's central argument is that the agreements provide a more legally precise, even-handed and politically effective analysis than the approaches taken by the courts. The author maintains that the Israeli Court, by ignoring that the barrier violated agreement prohibitions against status changes in the occupied territories, incorrectly permitted illegal Israeli barrier construction in the territories. The article follows by showing that the ICJ, by ignoring that the barrier was a response to illegal Palestinian terrorism, issued a one-sided decision which improperly disregarded Palestinian responsibility for violating the agreements as well as Israeli self-defense rights.
The author demonstrates that the courts' flawed legal analyses have not diminished the political conflict that led to the barrier by reviewing the reactions to the two decisions. The article offers an alternative analysis based on the obligations in peace agreements. In so doing, the author argues that the peace agreements' bilateral conflict resolution obligations provide the best legal framework and fairest assessment of political responsibility for the barrier. The author supports this by showing that the agreements reflect international law and that the barrier would not have been built had the parties complied with the agreements.
Number of Pages in PDF File: 55
Keywords: international law, human rights, conflict resolution
Date posted: November 2, 2007 ; Last revised: August 13, 2008