Legalizing the Barrier: The Legality and Materiality of the Israel/Palestine Separation Barrier
35 Pages Posted: 27 Jun 2011
Date Written: June 2011
Since 2003, the state of Israel has been constructing a barrier snaking through the occupied territories of the West Bank, seldom adhering to Israel’s internationally recognized border, often protruding, sometimes very deeply, into the territories. This barrier, also referred to as the separation wall, the security obstacle, the fence, and a multitude of other terms, has attracted international and local (Israeli) interest, attention, and critique. While the barrier is clearly unique, a result of the complexities and anomalies of the Israeli/Palestinian conflict and context, it was immediately read within the backdrop of the global phenomenon of walling, therefore becoming a symbol of the emerging new global regime of separation and segregation, of risk management, and of growing securitization. Thus the local campaign against the barrier was quickly understood, at least by external spectators (mostly academics), through global theoretical frameworks that were developed in order to analyze the current paradoxical coupling of globalization with segregation, of global openness and renewed national closure, and of decolonization with parochial reterritorialization.
Indeed, it is a great paradox of our times that with the weakening of national borders associated with globalization there seems to appear a growing tendency to erect material walls between states. These walls are usually constructed with the declared purpose of fending off terrorists, traffickers, illegal immigrants, or other undesirable persons and things. Long stretches of physical barriers have been built on the borders of USA/Mexico, Israel/Palestine, Botswana/Zimbabwe, India/Pakistan, and elsewhere. These barriers often use a combination of high and low-end technology reminiscent both of antiquity and of futuristic science-fiction movies. In a way, these walls could be seen as the dark side of globalization: They demarcate its limits and its unwanted consequences, those that need to be met with the utmost response, the wall. What makes the phenomenon of walls unique and new is indeed not a result of a particular attribute, but rather that they have become emblematic of our times; as if they are the monument which represent most clearly and vividly the era in which we live. As such, they are a legal and material manifestation of the idea of sovereign states, but also what makes possible its critique.
The legal campaign against the Israeli barrier was both local, in Israeli courts that had to determine its legality, as well as international, in the International Court of Justice (ICJ), which issued an advisory opinion concerning its legality. In this article I argue that the unique route of the barrier, crawling through the territories and creating bizarre-shaped enclaves in which Palestinian communities are trapped, caused the legal campaign and court rulings on the matter to take a very specific form. The majority of the legal challenges, as well as the legal principles set out by the courts in response, related to the barrier’s route and to its impact on the lives of the persons in the territories surrounding it. Left out of the legal battle was an attempt to delegitimize the very establishment of a separation barrier between Israel and the occupied territories, regardless of its route, even if it were erected exactly on the Green Line.
In this article I analyze the role sovereignty has had in masking the hybrid nature of the barrier and in shaping the legal campaign against it. As a founding concept, sovereignty shaped (1) the legal norms in which the litigators and the courts operated; (2) the theoretical approaches, often of extra-legal disciplines, regarding the harm that the barrier caused (or might cause); and (3) the strategic and tactical choices taken by the various NGOs which spearheaded the campaign, often a result of compromises among disagreeing parties.
Keywords: international law, sovereignty, occupation, walls, barriers, Israel, Palestine, proportionality, security, terror, settlements, ICJ, protected persons
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