Presentation
Yuval Feinstein, “Activists Squeezed Between The “Apartheid Wall” and the
“Separation Fence”: The Radicalism versus Pragmatism, Dilemma of Social
Movements: The Case of the Israeli Separation Barrier”, in Civil Organizations
And Protest Movements in Israel: Mobilization Around the Israeli-Palestinian
Conflict, ed. Elisabeth Marteu
Focus on the legal implications of the Israeli Separation Barrier
By Sarah Blum
Student # 332746874
The author: Dr. Yuval Feinstein is the Chair of undergraduate studies of the
Department of Sociology and Anthropology at the University of Haifa. He holds a
Ph.D. in Sociology from the University of California, Los Angeles, an M.A. in
Sociology from the University of California, Los Angeles and an M.A. in Sociology
(Summa cum laude) from the University of Haifa. His expertise is in qualitative social
research, quantitative social research, social theory, sociology, comparative politics,
political sociology, race, ethnicity and politics, and public opinion research. He
studied grassroots activities in Israel and in the Occupied Palestinian Territories
against the barrier for a year and a half.
I started to explain the semantic differences between the terms used to describe the
structure, and the political realities and narratives it refers to. Some use “separation
fence”, “separation wall”, “security fence”, “apartheid wall”, “barrier”, “separation
barrier”, and “West Bank barrier”. Then, I provided for some practical information
that he does not give either. I came with a map from 2014 so the class could visualize
what I was talking about. About 6% of the structure is actually a concrete wall, 8
meters high, providing more protection against snipers. Wall construction is more
common in urban settings. The rest is a “multi-layered fence system” up to 3 meters
width. I mentioned that upon completion, the total length of the barrier will be about
700 km and include on the Western side about 9,5% of the West Bank.
Feinstein tells about Jonathan Pollak, a 23 year-old non-formal leader of the
Anarchists Against The Wall (AATW), the most prominent group in the
demonstration on the ground. Although a real anarchist, not supportive of the Israeli
Supreme Court, he was present at the Court during the Bil’in case and he served as an
informal adviser to the lawyer representing the petitioners from Bi’lin. Feinstein
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explains the radicalism versus pragmatism dilemma, when activists in social
movements prioritize pragmatic considerations over radical ideology. Resolving the
tension between radical ideology and temporarily practical politics becomes a
political action in itself. He engages in a theoretical discussion between the
deconstruction theories and the pragmatic theories that I chose not to develop in order
to focus on the case study and the legal actions. He adds that there is a risk, for social
activists movements, of cooperation with the power structure, sort of a third way.
Especially, in the context of modern wars that are evolving along ethnic lines,
centered on questions of identity politics.
Therefore, he asks what the consequences of the decision to prefer either radical or
pragmatic modes of actions in order to challenge state policies in a context of war are.
Using the case study of the Israeli separation barrier, he gives two modes of objection
to the barrier to illustrate the dilemma of radicalism versus pragmatism in grassroots
activities in the context of war: protest activities (that can go to violent clashes with
the Israeli forces) and the legal path (through the Court system, to make change in
specific actions of the barrier; more moderate means). He uses the case studies of the
route of the barrier in Bil’in and in Beit Surik. In both cases, a Palestinian village
struggled to prevent the construction of sections of the barrier on its agricultural land.
For him, the two case studies will be analyzed as two frames of collective action, two
potential interpretation of the reality. In Bi’lin, it was a radical framework that
challenged the sovereignty of the State and its authorization to construct the barrier.
The State justified the construction of the barrier as necessary after the wave of
terrorism. Israel’s methods of war during the Second Intifada had a “collective
punishment” character according to Feinstein, helping the State to create the
separation between “us” and “them”. The separation barrier created the same effect of
national sovereignty. AATW and other groups, via their radical counter framework,
treated the security argument cynically, resisted to the separatism of the State and
made huge efforts to overcome the “us” and “them” division (Israeli, Palestinian and
international activists working together). They tried to make the occupation
ungovernable and created a snowball effect in the media around the world, by framing
their protest as part of a global movement of peace and human rights, so as to amplify
the voices of local communities. The reaction of the State confirmed that it worked
(as it was difficult for the state to counter-act) on the spot; yet the construction of the
barrier continued near Bil’in (until the Israeli HCJ decision to reroute part of it in
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2007 and the application of it by the government in 2011), so their mode of objection
had no direct influence on State policy. A collective action in court is more efficient
to force the State to give the annexed lands back to their Palestinian owners, as seen
in the Beit Surik and Mevasseret Zion case. 3 young residents of Mevasseret Zion,
already very committed in resisting the barrier initiated, in a tactical decision, the
petition. They temporarily excluded their ideological opposition to the barrier from
the framework in order to recruit as many other residents of Mevasseret Zion to an ad
hoc campaign against the planned path of the barrier between the two localities, thus
creating a totally different framework from the one used at Bil’in, in accordance with
the Israeli opinion perception (the barrier is a legitimate means of security): the path
of the barrier caused an “avoidable harm” to the Palestinian residents in Beit Surik
and such harm had the potential to develop a “security threat” to the Israeli residents
in Mevasseret Zion. The activity was thus meant only for promoting the changing of
the plans for the barrier in the area. This moderate framework, channeling their
activity along a legal path, conforming to the Israeli dominant militaristic perception
of the barrier, enabled to recruit Israeli security experts who proposed an alternative
path for the barrier. This convinced the judges for the first time since the start of the
barrier construction in late 2002 to accept an appeal against the path of the barrier and
to rule against the State. So, on June 30, 2004, the Israeli court ruled that 30 km of the
barrier were illegal since here, the principle of proportionality between the damage
caused by this route to the Palestinians and the expected security benefits was not
met. This provided great achievements: there was no more barrier there and it created
a legal precedent, that enabled other actions against the State to make it change other
sections of the barrier as well. The HCJ judges also confirmed the Israeli official
stance: the barrier is a legitimate means of security in a situation of massive
Palestinian terrorist attacks. In fact, it was the first time that the Court gave its opinion
on the whole subject, passing from legitimacy de facto to legitimacy de jure. By using
the legal principle of proportionality, the judges were able to “grab both edges of the
stick”: they interfered in the planning of the barrier’s route in order to alleviate the
abuses of the rights of Palestinian people. The hegemonic security voice was turned,
according to Feinstein, into a shared platform for both the State and the petitioners.
On September 15, 2005, in the Alfei Menashe ruling, the Israeli HCJ ruled again in
favor of the Palestinian and Israeli petitioners. Still, the judges were unanimously
convinced that the barrier was a matter of security. This was expressly confirmed in
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the decision, and it served as an answer to the Advisory Opinion of the International
Court of Justice of July 9, 2004 that disregarded the security argument and ruled that
the construction of the barrier on Occupied Palestinian Territory is contrary to
international law. I explained here the content of judge Buergenthal dissident opinion,
having the same reasoning as the Israeli HCJ. On September 2007, petitioners from
Bil’in won. Ironically, the inhabitants regained their lands only by acting through the
Israeli legal system. Finally, Feinstein concluded by saying that there is neither a
theoretical nor a practical clear-cut solution for the radicalism versus pragmatism
dilemma, especially not in war situation. Radical activity can raise political awareness
and dedication of activists to act against the barrier (in a more pragmatic framework),
thus being a crucial step in the process to initiate the temporary and relatively
pragmatic legal campaign.
Yuval Feinstein is a sociologist and not a lawyer. As for the legal aspects, I noticed
some inaccuracies regarding a few terms in the article (“pre-1967 borders” instead of
“lines”, his definition of sovereignty, “International High Court of Justice” instead of
“International Court of Justice). Also, he could have defined the term “apartheid
wall”, and the way it is framed, since he uses it in his title (but does not mention in his
analysis), by providing some contextualization. He defends himself to refer only to a
legal-positivist approach. Yet, judges rule according to the facts that are submitted to
them and to the system of norms they are submitted to. That is the reason why, in my
paper, I was interested in developing these legal controversies caused by the route of
the barrier and in understanding their implications on the two nations future, on
identities, and on individuals.
List of sources:
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Yuval Feinstein, “Activists Squeezed Between The “Apartheid Wall” and the
“Separation Fence”: The Radicalism versus Pragmatism, Dilemma of Social
Movements: The Case of the Israeli Separation Barrier”, in Civil
Organizations And Protest Movements in Israel: Mobilization Around the
Israeli-Palestinian Conflict, ed. Elisabeth Marteu
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 http://www.icjcij.org/docket/index.php?p1=3&p2=4&case=131&p3=4
Written Statement of the Government of Israel on Jurisdiction and Propriety,
January 30, 2004 http://www.icj-cij.org/docket/files/131/1579.pdf
Beit Surik Village Council v. The Government of Israel, HCJ 2056/04, 30
June 2004
http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf
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and Mara'abe et al. v. The Prime Minister of Israel et al. Judgment, HCJ
7957/04, 15 Sept. 2005
http://elyon1.court.gov.il/files_eng/04/570/079/A14/04079570.a14.htm
Ahmed Issa Abdallah Yassin, Bil'in Village Council Chairman v the
Government of Israel, HCJ 8414/05, September 4, 2007
Anshel Pfeffer, “Defense Ministry begins dismantling section of West Bank
barrier”, Haaretz, June 22, 2011
http://web.archive.org/web/20110623022038/http://www.haaretz.com/news/di
plomacy-defense/defense-ministry-begins-dismantling-section-of-west-bankbarrier-1.369139
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