Case Number

HCJ 7957/04

Date Decided

9-15-2005

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

According to orders by the military commander, a partition fence was erected that sorrounds the town of Alfei Menashe in all directions while leaving a road connecting the town to Israel. Several Palestinian villages are within the area surrounded by the fence. The fence cuts them off from the remaining areas of the West Bank and creates a landlocked cluster of villages on the “Israeli” side of the fence. The Petitioners, residents of the villages, maintain that the fence that surrounds the landlocked area of Alfei Menashe is illegal and must be dismantled. They argue that the military commander is not authorized to order an erection of a fence around the landlocked area. This argument relies, among others, on the advisory opinion of the International Court in the Hague, according to which erecting the fence violates international law. The Petitioners further claimed that the fence – on the path along which it was erected – is disproportional.

The Supreme Court held:

A. 1. The legal system that applies in the West Bank is governed by public international law regarding war-based occupation. Under wartime occupation law, the military commander is not authorized to order the erection of a partition fence if the motivation for erecting the partition fence is a political reason of “annexing” lands from the area to the State of Israel and establishing Israel’s state borders. The military commander is authorized to order erection of a partition fence where the reason of erecting the fence is related to security and to the military.

2. The authority of the military commander to erect a partition fence for security and military reason encompasses, first and foremost, the need to protect the military in an area subject to wartime occupation. This authority also includes protecting the State of Israel itself. Further, the authority includes erecting a fence in order to protect the life and safety of Israeli residents in the area.

3. When determining the path for the fence, the military commander must balance the security needs and the needs of the local population. This balance will be done, among others, according to the principles of proportionality. Proportionality is based on three sub-test: the first sub-test requires a rational link between the means taken and the desired end; the second sub-test mandates that among the range of means that might accomplish the end, the means selected must be the least restrictive; the third sub-test requires that the harm caused to the individual as a result of the means taken must be at a proper proportion to the benefit it brings.

4. When examining the decisions and actions of the military commander in an area subject to wartime occupation, a court does not substitute the discretion of the military commander for its own. A court does not examine the wisdom of the decision, but its lawfulness. Still, a court does not refrain from judicial review merely because the military commander operates outside of Israel and because its activity bears political and militaristic consequences. When the decisions of the military commander or its activity infringe upon human rights, they are justiciable.

5. When an activity may be exercised in several manners, the question examined is whether the action of the military commander is one that a reasonable military commander could have made. When the decision of the military commander relies on military expertise, the court attaches special weight to the military expertise of the area’s commander, who shoulders the responsibility for the security and safety of the area. When the decision of the military commander – which relies on military professionalism – violates human rights, the proportionality of the violation hinges on the acceptable tests for such purposes.

B. The Supreme Court of Israel will attribute the full appropriate weight to the norms of international law, as developed and interpreted by the International Court in the Hague in its opinion. However, the conclusion of the International Court, which relies on a different factual foundation than that which was presented to the Supreme Court, does not constitute a court decision and does not bind the Supreme Court of Israel to find that the entire fence is inconsistent with international law. The Israeli Court will continue to examine each section of the fence’s path, as brought before it and according to the model of adjudication that it follows. It will ask itself, for each part of the fence, whether it embodies a proportional balance between the military-security need and the rights of the local population. When doing so, it will not disregard the overall picture and its determination will always be in regards to each section as a part of the whole.

C. 1. In the case at hand the motivation for erecting the fence is not political. At the foundation of the decision to erect the fence was the security consideration to prevent the infiltration of terrorists into the State of Israel and the Israeli towns in the area. The partition fence is a central security feature in Israel’s war against Palestinian terrorism. The fence is inherently temporary. So is generally the matter of the partition fence, and so, too, is the matter if the path of the fence around the landlocked area of Alfei Menashe. Therefore the decision of the erecting a partition fence in the landlocked area of Alfei Menashe was made within the authority granted to the area’s military commander.

2. As for proportionality, the partition fence creates a separation between the terrorists and the Israelis (in Israel and in the area,) and in this sense there necessary rational link between the means and the end is met. Therefore the first sub-test of proportionality is satisfied in the case of the landlocked Alfei Menashe.

3. On the other hand, it cannot be found that the second sub-test of proportionality is met in regard to the path of the fence that creates the landlocked area of Alfei Menashe. The necessary effort was not made, nor explored in depth, to identify an alternative path that would guarantee security and would cause lesser harm to the residents of the villages. Respondents 1-4 must reconsider, within a reasonable period of time, the different alternatives to the fence’s path while exploring security alternatives that would less restrict the lives of residents of the villages in the landlocked area. In this context, excluding the some or all of the villages of the landlocked area from it, and removing them from the “Israeli” side of the fence should be considered.

Keywords

Administrative Law -- Discretion, International Law -- International Court of Justice, International Law -- Laws of war, International Law -- Occupied territories

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