Case Number
HCJ 2150/07
Date Decided
12-29-2009
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: This is a petition to allow free movement of Palestinian vehicles and pedestrians along Road 443 and on the Beituniya Road. In 2002, Road 443, which served as the main traffic artery for the Palestinian residents of the area between the villages in the area and Ramallah, was closed to all Palestinian traffic. This closure was ordered following the numerous terrorist attacks that were perpetrated along the Road. The arguments related to the question of the authority of the military commander to order the restriction of traffic on the Road in general, and closure of the Road to Palestinians in particular; they also related to the mode of exercise of the military commander’s authority and his discretion, based on the relevant Israeli and international law dealing with belligerent occupation.
Held: The High Court of Justice granted the petition (by majority opinion) in relation to Road 443. It held that it is not sufficient to anchor a decision on the closure of the Road in a security order and in travel provisions. The authority of the military commander is derived from the laws of belligerent occupancy, which pertain in the Area of Judaea and Samaria. Article 43 of the Regulations Respecting the Laws and Customs of War on Land of 1907, appended to the Fourth Hague Convention of obligates the occupying state “to ensure, as far as possible, public security and safety…”.
Road 443 was designed to safeguard the needs of the local population. According to the rules of public international law, the military government’s authority to expropriate is exercised for the benefit of the local population, i.e. the “protected persons” in terms of the Convention. It was assumed that the Road would also serve Israeli residents, and traffic needs between the Judaea and Samaria and Israel. However, closure of the Road to Palestinian vehicles results in the Road serving primarily for purposes of “internal” vehicular traffic in Israel between the center of the country and Jerusalem: in accordance with the case law of this Court, the military commander would not have been authorized to order construction of the Road from the outset, had this been its main purpose.
The arrangement resulting from the closure of the Road, whereby it no longer serves the interests of the local population, but is rendered a “service road” of the occupying state, exceeds the authority of the military commander and does not comport with the international law dealing with belligerent occupation. Consequently, the travel restrictions imposed by the military commander cannot stand in their present format, and must be set aside.
In exercising his authority, the military commander must balance three considerations: the security-military consideration, including the security of Israelis travelling on the Road; safeguarding the rights of the Palestinian residents, who are ‘protected persons’; and preserving the rights of Israelis who live in Israeli settlements in the Area.” A main criteria in the framework of this balancing act is proportionality.
The Court held that there is no basis to intervene in the position of the respondents whereby there is a rational connection between the measures that were adopted and between ensuring order and security. The situation prevailing on the Road, in practice, since the security measures were adopted, supports this position.
As required by the limitation clause in Basic Law: Human Dignity and Liberty, the Court examined whether there exists an alternative measure to that adopted, one that is less prejudicial to the rights of the petitioners, that will achieve the security purpose. While acknowledging the impact of the closure of the Road on security, the Court was not convinced that due consideration was given to possible alternative measures for protection of travelers on the Road which would be less prejudicial to the rights of the local residents.
The constitutional test of proportionality examines the relationship between the measures and the benefit from their adoption. The Court found that the travel restrictions had indeed been substantially detrimental to the fabric of life of the residents of the villages. It held that in the said circumstances, the sweeping prohibition on travel imposed on the Palestinian residents of the Area does not meet the test of proportionality, since due weight was not ascribed to safeguarding their rights as “protected residents”. The said prohibition, therefore, cannot stand.
The authority of the military commander to order the closure of a road without a written document should be exercised only where there is an immediate need to close the road due to safety concerns. When the closure is not for a short and limited time, the order should eventually be committed to writing.
The Court held that there is no cause to intervene in the decision of the military commander concerning the operation of the Beituniya crossing.
JUSTICES
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, International Law -- Laws of war, International Law -- Treaties
Recommended Citation
Vogelman, Uzi; Beinisch, Dorit; and Levy, Edmond E., "Abu Safiyeh v. Minister of Defense" (2009). Translated Opinions. 16.
https://larc.cardozo.yu.edu/iscp-opinions/16
