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Capacities and Inadequacies: A Look at the Two Separation Barrier Cases

Israel Law Review, Vol. 38, pp. 230-246, 2005

17 Pages Posted: 21 Jul 2005  

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Abstract

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

Keywords: Occupied territories, international court of justice, separation barrier, separation wall, comity, Israel, margin of appreciation

JEL Classification: K33, K40

Suggested Citation

Shany, Yuval, Capacities and Inadequacies: A Look at the Two Separation Barrier Cases. Israel Law Review, Vol. 38, pp. 230-246, 2005. Available at SSRN: https://ssrn.com/abstract=757771

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus, 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

HOME PAGE: http://www.idi.org.il

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