Can Law Students see past the Barrier in Israel?

I am writing this from Jerusalem, where I have joined 25 Osgoode students on a study/tour program at Hebrew University. The program offers an opportunity for the students to get a taste of legal education in Israel and they take intensive courses on topics ranging from intellectual property, criminal justice, and constitutional law to legal philosophy. The students also, however, get a chance to experience Israeli legal dramas unfolding in real time. During our first week in Jerusalem, the Knesset enacted the controversial anti-boycott law, which will make possible sanctions on domestic or international firms advocating or abiding by any boycott of Israel or the occupied territories.

The broader conflicts between Israelis and Palestinians, between the religious and the secular Jews, between moderate and fundamental Muslims, all takes place in and through legal questions. Are Israeli settlements East Jerusalem legal in international law? Will the Courts of the West Bank shape Palestinian justice or the Sharia’a tribunals of Gaza? Should the children of secular Jews in Israel continue to be compelled to do military service while the children of Orthodox Jews are not?

To see how law is interwoven in the realities of life in Israel and the Palestinian territories, consider the issue of the Security Fence (sometimes referred to poignantly as the Wall, or simply and most neutrally, the Barrier). The Barrier, now over 700 kilometres, separates Israel from the West Bank (though it does not follow precisely either the 1948 or 1967 internationally recognized Israeli border). The Barrier was erected between 2003-2010, as a response to the second “Intifada” and the reign of terror and suicide bombings in Israel (2000-2005). Since the Barrier has been mostly completed, the number of incidents has dropped to a negligible level. In a sense, the Osgoode students may not have been able safely to journey to and study in Jerusalem but for the Barrier.

The Barrier snakes through Jerusalem neighbourhoods and separates Arab and Jewish neighbourhoods – it also, sometimes, divides Palestinian communities, designating one as part of Jerusalem, the other as part of the West Bank, with community members and businesses having to cross an Israeli military checkpoint in order to see each other. In other cases, Palestinian communities are cut off from their agricultural lands and from commercial transportation links.

The Barrier is a physical structure (sometimes a concrete stone-faced wall, sometimes a fence), and a military, political, social and economic reality. Beyond this, the Barrier is a multi-faceted legal issue.

The Osgoode students took a bus tour of the Barrier offered by Ir Amim, an Israeli NGO committed to an “equitable and stable Jerusalem with an Agreed Political Future.” The students saw the Barrier and the communities adjacent to it in vivid detail (although even the Barrier appears to buckle in the heat of a July afternoon in Jerusalem).

That evening, after the tour, the students had a chance to meet Aharon Barak, the former President of the Israeli Supreme Court and author of the most significant High Court (the name of the Supreme Court when it functions as a court of first review of government decisions as opposed to a court of appeal from other judicial decisions) judgment on the legality of the Barrier, Mara’abe v. Prime Minister of Israel , from 2005. In that decision, the High Court accepted that the rationale for the Barrier was military (in contrast to the International Court of Justice which had characterized the Barrier in its advisory opinion on the matter as “political.”) The High Court considered the circumstances of the particular Arab village involved in the petition, and in light of the significant hardship its residents would experience being cut-off by the Barrier, the Court ordered the route of the Barrier modified. This Solomon-like decision both upheld the legality of the Barrier, but subjected its precise route to constitutional scrutiny based on a proportionality analysis (the military benefit to Israel vs. the social and economic hardship experienced by Palestinians).  As Aharon Barak reiterated to the Osgoode class, the Barrier cases represent a significant landmark in Israeli constitutional law and the justiciability of military and governmental action. Further, the High Court used the ruling to explore the relationship between international law, international tribunals, domestic law and domestic courts. The decision highlighted the entitlement of all those living under Israeli  authority to the rule of law, human dignity and basic human rights.

The Barrier both symbolizes and literally entrenches the legal tensions, both internationally and domestically, which make this place unique. Through the experience of seeing and studying the Barrier, the Osgoode students have been exposed to multiple perspectives and views of the Barrier. They will, of course, have to make up their own minds as to whether the Barrier is part of the problem or the solution to the conflict between Israelis and Palestinians. They all, however, have seen first-hand how perspectives on law can only truly be understood by seeing what is in front of you, and also being able to see past what is in front of you.

The barrier between Abu Dis and Jerusalem