Report Back: Moshe Hirsch on the ICJ’s advisory opinion on the security barrier

Today I attended a lecture at the Munk Centre by Mosche Hirsch, an Israeli scholar visiting from the Hebrew University in Jerusalem as part of the Halliburton exchange program. The lecture was part of the Munk centre Israeli studies program, but open to the public.

Hirsch’s presentation of the ICJ’s advisory opinion emphasized the role of the Israeli supreme court, who by accepting the ICJ’s normative rulings but basing their decisions on a “more intimate understanding of the facts”, was able to partially implement the ICJ ruling. He argued that the ICJ has no legitimacy in the eyes of the Israeli public, but their surpreme court does, and therefore the supreme court was able to bring the principles of the ICJ’s advisory opinion to the Israeli situation in such a way that some change could be effected.

Hirsch emphasized that “compliance” with the ICJ ruling could not be interpreted as a binary, in fact there are gradations of compliance. Personally, I found this a bit strange – if the law is clear, then isn’t it possible to say that a state or person either does or does not obey the law? Also, the means he suggested for measuring compliance was a bit absurd – he said that because the original plan for the security barrier would have separated Palestinians from 16.6% of the West Bank, the barrier was revised as a result of international pressure and the Supreme court decision, and in fact the barrier now takes only 5% of the Palestinian land. I don’t understand why it is called partial compliance to steal less than you originally planned to steal. By this logic, if Israel had originally planned to take 50% of the West Bank, then reducing to 5% would have been much more complete compliance, which obviously makes no sense.

During the talk the idea that the wall was built for “security concerns” went mostly unquestioned. I raised a question afterwards about whether it was actually the wall, or the negotiated end of the 2nd intifada, amnesty for al-aqsa martyrs, and the re-institution of collaboration between IDF and PASF that was actually the cause of the end of terrorist attacks. Hirsch responded that “everyone says they stopped the terrorist attacks, if you ask the Mossad they say it was them, if you ask the IDF they say it was them, if you ask PASF, they say it was them”. To me this wasn’t a satisfactory answer – if the legal justification in the eyes of the Israeli supreme court for building the security barrier on the West Bank side of the green line is “security concerns”, then the security concerns have to be actual – they can’t just be part of public perception.

It is my suspicion that many of these “security concerns” really only concern the security of settlers, which since the settlers are illegal under international law, it is no justification to assert their security as a justification for breaking international law.

In general, the talk was interesting and comprehensive, and went into detail into different interpretations of international law and showed why they are descriptive and complementary rather than having to decide which interpretation is correct. The talk was certainly not like an event on Israel I would normally attend – (for example the first question was, “But isn’t it true that the Arabs want to drive the Jews into the Sea!”), but this isn’t a bad thing.

What does worry me about attending Munk talks is the implicit validation of the Munk centre. To be clear – the Munk centre is funded in part by mining companies who kill union activists. And this talk was made possible by Halliburton – I don’t need to explain why they are not a neutral party to the Israeli-Palestinian conflict. But, the talks are “free” to attend, and they happen close to my house. So, while it is a strange privilege to attend them, I think I will continue to do so.

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