The Justiciability of International Disputes; The Advisary opinion on Israel's Security Fence as a case study

The Legal Advisor of the Knesset Foreign Affairs and Defense Committee: A comprehensive legal, professional approach to a major security issue. The author's analysis of the various legal arguments argued before the International Court of Justice, as well as their enrichment with new ones, shed light to a new dimension as far as justiciability of international disputes is concerned. Moreover, the inclusion also of the relevant decisions of the Israeli Supreme Court and their comparison with the Advisory Opinion of the Court's international counterpart, render the book applicable and useful to the Israeli and international practitioner alike." From the introduction: While justiciability lato sensu factors are exterior to the international matter before the Court and do not affect irreversibly its non justiciable character which can be affirmed once these factors cease to exist, this is not the case with justiciability stricto sensu. There, the reasons of the matter’s non justiciability are embedded in it and cannot be separated from it, unless a change in the very essence of the issue occurs. In order to practically demonstrate the aforementioned remark, the advisory opinion on Israel’s security fence (hence the Opinion), will be used as an example. The treatise will argue that apart from non justiciability lato sensu issues, which could on their own lead to the non adjudication of the case such as the alleged bias of Judge Elaraby, the political motives behind the request, its high technical character as well as the lack of evidence, the Court should decline to render an opinion mainly due to reasons of non justiciability stricto sensu, attached to the very nature of the issue. In particular, these reasons can be found in the issue’s bilateral, contentious character and in the fence’s utter connection with the issue of the Israeli settlements. Although the Court itself opted to declare otherwise, it is true that the issue before it was of an intense bilateral character, since it was ultimately connected with that of the settlements. The latter, are deemed illegal by the Palestinians and legal by the Israeli side. Moreover, the difference of perspective from which one views the issue, does not focus only on the political, but extends also to the legal level. If settlements are deemed illegal, not only the Palestinian narrative is endorsed, but also the legal norms that apply are those of international humanitarian law, and more specifically, article 49 (6) of the Fourth Geneva Convention. On the other hand, if settlements are not viewed as a legal fictus, but as housing units habituated by people, not only the Israeli narrative is endorsed but also the applicable legal branch of international law is that of human rights, according to which, Israelis residing in these units have a right to life and Israel, their nationality state, is not only entitled, but obliged, under international law to protect them. The author, an international practitioner, has served in the Knesset Legal Department, in charge of international and constitutional issues. He has taken part in major symposia and international legal events and articles of his have been published in various legal journals. In 2008, after a relevant competition, the Hebrew University Law Faculty awarded him the George Weber award of excellency for his article on the legal status of the Gaza Strip and the relevant Israeli policy.