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The Difference in the Factual Basis
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The main difference between the two judgments stems primarily from the difference in the factual basis upon which each court made its decision. Once again, the simple truth is proven: the facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur). The ICJ drew the factual basis for its opinion from the Secretary-General's report, his written statement, the Dugard report, and the Zeigler report. The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other. In addition, The Supreme Court received an expert opinion by military experts who requested the opportunity to present their position as amici curie. Despite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great. This difference is what ultimately led to the contrary legal conclusions. In what is this difference manifested?
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The first difference, and the most important one, regards the security-military necessity to erect the fence. This necessity was presented expansively before the court in The Beit Sourik Case. The State laid out before the Court the full data regarding the terrorism which has plagued Israel since September 2000; regarding the character of this terrorism, which spares no means, including "human bombs" which explode in buses, in shopping centers, and in markets; regarding the thousands killed and injured; regarding the various military action taken in order to defeat the terrorism ("Defensive Wall" in March 2002; "Determined Path" in June 2002), which did not provide a sufficient solution to it; regarding the additional plans which were suggested, yet rejected due to legal reasons (see, e.g., The Ajuri Case) or were of no avail. Against this background came the decision to construct of the fence. From the evidence presented before the Court, the conclusion arose that the decision to erect the fence was not the fruit of a political decision to annex occupied territory to Israel. The decision to erect the fence arose out of security-military considerations, and out of security-military necessity, as a necessary means to defend the state, its citizens, and its army against terrorist activity. Against this background, we wrote, in The Beit Sourik Case:
“We examined petitioners’ arguments. We have come to the conclusion, based upon the facts before us, that the reason the fence is being erected is a security reason. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that ‘the fence, like the additional obstacles, is a security measure. Its construction does not reflect a political border, or any other border’ (decision of June 23, 2002). 'The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the ‘Seamline Area,’ is a security measure for the prevention of terrorist attacks and does not mark a political border or any other border” (decision of October 1, 2003)” (p. 830).
Later in our judgment, we dealt with the affidavit submitted to us by the military commander:
“In his affidavit he stated that ‘the objective of the security fence is to allow effective confrontation of the array of threats stemming from Palestinian terrorism. Specifically, the fence is intended to prevent the unchecked passage of residents of the area into Israel and their infiltration into certain Israeli communities located in the area. The choice of the topographic route was derived from the security consideration’ (affidavit of April 15 2004, sections 22-23). The commander of the area detailed his considerations behind the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings; that it pass through a route as flat as possible, which will allow surveillance of it; and that a ‘security zone’ be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit which was submitted to us, Major General Kaplinsky testified that ‘it is not a permanent fence, but rather a fence erected temporarily, for security needs’ (affidavit of April 19 2004, section 4). We have no reason to give this testimony less than its full weight, and we have no basis for not believing in the sincerity of the military commander’s testimony” (p. 830).
We concluded our discussion on this question, stating:
“We devoted seven sessions to the hearing of the petition. We intently listened to the explanations of officers and workers who handled the details of the fence. During our hearing of the petition, the route of the fence was altered in a number of locations. Respondents showed openness to various suggestions which were made. Thus, for example, adjacent to the town of Har Adar, they agreed to move the fence passing north of the town to the security zone closer to the town, and distance it from the lands of the adjacent village of El Kabiba. We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in determining the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding” (p. 831).
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The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion. Only one line is devoted to it in the Secretary-General's report, stating that the decision to erect the fence was made due to a new rise in Palestinian terrorism in the Spring of 2002. In his written statement, the security-military consideration is not mentioned at all. In the Dugard report and the Zeigler report there are no data on this issue at all. In Israel's written statement to the ICJ regarding jurisdiction and discretion, data regarding the terrorism and its repercussions were presented, but these did not find their way to the opinion itself. This minimal factual basis is manifest, of course, in the opinion itself. It contains no real mention of the security-military aspect. In one of the paragraphs, the opinion notes that Israel argues that the objective of the wall is to allow an effective struggle against the terrorist attacks emanating from the West Bank (paragraph 116). That's it. In another paragraph, the ICJ discusses the force of §53 of The Fourth Geneva Convention, according to which it is prohibited for an occupier state to harm local property, "except where such destruction is rendered absolutely necessary by military operations". Regarding that, the ICJ stated:
“[O]n the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations” (paragraph 135).
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64. This minimal factual basis regarding Israel’s security-military necessity to erect the fence did not go unnoticed by the judges of the ICJ. The dissenting judge, Judge Buergenthal, noted in his opinion:
“I am compelled to vote against the Court’s finding on the merits because the Court did not have before it the requisite factual bases for its sweeping findings” (paragraph 1).
Judge Buergenthal mentioned the possibility that, on the basis of all the facts, the conclusion would be that the building of the wall violates international law; however, in his opinion,
“[To] reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subject, cannot be justified as a matter of law. The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings basely touches on that subject” (paragraph 3).
In his separate opinion, Judge Kooijmans stated his opinion that:
“[T]he present Opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique reference to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose” (paragraph 13).
A similar attitude can be found in the separate opinion of Judge Owada. He notes that the ICJ had ample material before it regarding the humanitarian and socioeconomic effect of the building of the wall. In contrast,
“What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate” (paragraph 22).
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The ICJ based its factual findings regarding impingement upon the local residents' rights, upon the Secretary-General's report and his supplemental documents, and upon the Dugard report and the Zeigler report (see paragraph 133 of the opinion). In their arguments before us, State's counsel noted that the information relayed to the ICJ in these reports is far from precise.
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The difference between the factual bases upon which the courts relied is of decisive significance. According to international law, the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other. We have a scale before us: on one side rests the impingement upon the rights of the local residents, and on the other side rest the security and military considerations. Delicate and sensitive balancing between the two sides of the scale, taking into account the need to ensure the proportionality of the security measures' impingement upon the local residents' rights, and taking into account the margin of appreciation given the state, brings about the appropriate solution. In The Beit Sourik Case, data were laid before the Court on both sides of the scale. In certain parts of the route discussed before the court, the considerations regarding the impingement upon human rights prevailed. At other parts of the route, the security-military needs prevailed. Not so was the opinion of the ICJ. As a result of the factual basis presented to the ICJ, full weight was placed on the rights-infringement side; no weight was given to the security-military needs, and therefore the questions of the proportionality of the impingement or of the margin of appreciation were not discussed at all. The result was the ICJ's conclusion that Israel is violating international law. The different factual bases led to different legal conclusions. This stands out especially in the case of those parts of the ICJ's opinion dealing with Qalqiliya. On one side of the scale, the ICJ placed the severe impingement of the rights of Palestinians in Qalqiliya. Even if we remove the imprecision of these figures, the remainder is sufficient to indicate a severe impingement of their rights. On the other side of the scale, the ICJ did not place – due to the factual basis laid before it – any data regarding the security and military considerations. It was not mentioned that Qalqiliya lies two kilometers from the Israeli city of Kfar Saba; that Qalqiliya served as a passage point to Israel for suicide bomber terrorists, primarily in the years 2002-2003, for the purpose of committing terrorist attacks inside of Israel; that the Trans-Israel highway (highway 6), whose users must be protected, passes right by the city; that the majority of the fence route on the western side of the city runs on the Green Line, and part of it even within Israel; that since the fence around Qalqiliya was built – including the wall on the western side which borders upon highway 6 – terrorist infiltrations in that area have ceased.
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The difference in the factual bases was affected by the difference between the proceedings which took place in the ICJ and the proceedings in The Beit Sourik Case (see Weston, at p. 24). In the proceedings before the ICJ, the injured parties did not participate. Israel was not party to the proceedings. There was no adversarial process, whose purpose is to establish the factual basis through a choice between contradictory factual figures. The ICJ accepted the figures in the Secretary-General's report, and in the reports of the special rapporteurs, as objective factual figures. The burden was not cast upon the parties to the proceedings, nor was it examined. In contrast, the parties to the proceedings in The Beit Sourik Case stood before the Court. An adversarial process took place. The burden of establishing the factual basis before the court was cast upon the parties. The parties' factual figures were examined and made to confront each other, as the factual basis which would determine the decision was established. The proceedings themselves lacked strict formalities, and allowed the parties to make suggestions for alternative routes, which were examined by the other party, and the fence route was altered during the hearings themselves. All these aspects had an effect on the legal conclusions reached by the ICJ and the Supreme Court of Israel in The Beit Sourik Case (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230 (2005)).
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We would especially like to point out an important difference in the scope of examination. Before the ICJ, the entire route of the fence was up for examination. The factual basis which was laid before the ICJ (the Secretary-General's report and written statement, the reports of the special rapporteurs) did not analyze the different segments of the fence in a detailed fashion, except for a few examples, such as the fence around Qalqiliya. The material submitted to the ICJ contains no specific mention of the injury to local population at each segment of the route. We have already seen that this material contains no discussion of the security and military considerations behind the selection of the route, or of the process of rejecting various alternatives to it.
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Of course, prima facie, the ICJ could have determined, that on the basis of the examination of the totality of the fence, it had reached the conclusion that the motivation behind its construction is political and not security-based, and that the intention of the government of Israel in erecting the fence was its desire to annex parts of the West Bank which lay on the "Israeli" side of the fences. The ICJ did not, however, do so; nor was a factual basis placed before it, which would have enabled it to do so.
