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The Defense of Necessity in Request for Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Under the advisory opinion procedure, any UN member state may file a written statement and participate in oral argument. The United States filed a written statement, urging the court not to issue an advisory opinion. The United States said that such an opinion would interfere with the effort to re-start bilateral negotiations under the 2003 "Road Map" document. European states also took a position against the issuance of an advisory opinion.
Israel has already built sections of the barrier and plans additional sections, although Prime Minister Ariel Sharon has said he may cut back on certain projected sections that were to go deep into the West Bank. The barrier was explained on a number of grounds, including protection for Israeli settlers in the West Bank and protection for Israeli civilians within the territory of Israel. The section of the barrier that would provide the latter protection is being constructed, however, not on the 1949 armistice line that separates Israel from the West Bank, but at a distance into the West Bank, thereby placing tens of thousands of Palestinians on the western side of the barrier.
In legal terms, Palestine's lawyers, in their presentations before the court, challenged the barrier as violating the law of belligerent occupation, which requires an occupant to promote the well-being of the population, consistent with its own interest in maintaining the temporary control that an occupant exercises. Israel takes the position that it has discretion as occupant to build the wall in order to maintain control.
The Palestine lawyers also asserted a violation by Israel of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, two treaties to which Israel is a party. Israel argues that it is subject only to the law of belligerent occupation, and not, additionally, to human rights law. Moreover, it argues that the two treaties by their terms apply only in its own territory, but not in the West Bank.
On the basis both of belligerent occupation law and human rights law, the Palestine lawyers argued that the barrier impedes access to health care, and that particularly in emergency medical situations is likely to result in deaths. It also impedes access to educational and religious facilities. They asserted that it has already involved the taking of large tracts of land, in violation of the rights of individual Palestinian property owners. The land in question is largely agricultural, they said, and the confiscations hurt a Palestinian economy already in crisis. In many instances, they said, the barrier separates farmers' houses from their fields.
Israel characterizes the barrier as necessary protection against suicide bombers who enter Israel from the West Bank. Palestine's lawyers pointed out that by virtue of the barrier's location it is not calculated to prevent suicide bombers from entering Israel. They suggested that if Israel truly believes that a barrier will protect against suicide bombers, it might construct a barrier on its own side of the 1949 armistice line.
Israel's rationale that the barrier protects against suicide bombers also implicitly involves an argument that even if it were violating humanitarian law or human rights law, self-protection is an overriding need. As legal argumentation, Israel, to be sure, has not voiced such a plea, instead asserting that it is not in violation of humanitarian law or human rights law. However, Israel's press statements about the wall emphasize the need to protect Israeli civilians.
Under international law, a state is excused from a legal infringement if it acts to "safeguard an essential interest against a grave and imminent peril." As in domestic penal law, this principle is called "necessity." It is defined in Article 25 of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the UN International Law Commission. Article 25 views "necessity" as an extraordinary plea and imposes severe limitations on its invocation.
The act done must be "the only way" to prevent the peril. What is more, action taken under "necessity" may not "seriously impair an essential interest." The barrier causes harm, as Palestine's lawyers explained. More Palestinians may die as result of the barrier than will Israelis be saved.
"Necessity" cannot be invoked to violate treaties that preclude that plea. According to the International Law Commission's commentary on Article 25, this means either explicitly or implicitly. Neither of the two treaties addresses the issue, but the committee that monitors the International Covenant on Civil and Political Rights, addressing the invocation of necessity to justify torture, suggested that necessity is not open, at least as to that provision and perhaps generally.
"Necessity," according to Article 25, may not be invoked if the state by its own action contributed to creating the situation of peril. In this regard, on October 9, 2002, a UN committee that monitors the Convention on the Rights of the Child examined Israel and said that it contributes to the suicide bombings. The committee noted "the deliberate and indiscriminate targeting and killing of Israeli civilians, including children, by Palestinian suicide bombers," but it also noted "that the illegal occupation of Palestinian territory, the bombing of civilian areas, extrajudicial killings, the disproportionate use of force by the Israeli Defence Forces, the demolition of homes, the destruction of infrastructure, mobility restrictions and the daily humiliation of Palestinians continue to contribute to the cycle of violence."
Moreover, the standard for "contribution" is low. In the Gabcikovo-Nagymaros Project case, its most extended consideration of "necessity" as a plea, the International Court of Justice said that necessity is unavailable even if the act of the state invoking it is not the cause of the peril. Contributing, in other words, need not rise to the level of causing. So long as the act was a factor in creating the peril, a plea of necessity is foreclosed.
Israel faces a "peril" in the suicide bombings. Given, however, the route of the separation barrier and the violation of Palestinian rights and interests the barrier entails, Israel would not seem to meet the elements required for a plea of necessity.
Documentation on the separation barrier case, including the UN General Assembly's request, a report by the UN Secretary-General, written statements filed by states, and transcripts of the oral proceedings, can be located on the website of the International Court of Justice, www.icj-cij.org (to which the reader should be able to hyperlink through the title of this Instant Analysis).
*President's Club Professor in Law, Ohio State University, Moritz College of Law.