Case Number
HCJ 8414/05
Date Decided
9-4-2007
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.]
A Petition under the Contempt of Court Ordinance, based on the argument that despite the long period of time that had elapsed since the hand down of the decision in HCJ 8414/05, Yassin v. The State of Israel (April 9, 2007), where the High Court of Justice ordered the Respondents to change the path of the security fence in the Bilin Area, in a manner that would minimize the harm to the residents of Bilin, after finding the existing path did not meet the requirements of the proportionality tests – nothing was done to execute the decision. Following the petition, the Respondents took several steps, however the Petitioner argues that these actions are not consistent with the findings of the Court.
The Supreme Court (in a decision authored by President D. Beinisch and joined by Deputy President E. Rivlin and Justice A. Procaccia) granted the petition for the following reasons:
The State required many months to set a new path. Additionally, the path ultimately chosen did not meet the standards established in the decision. The selected alternative is not constructed primarily on state lands, but on private Palestinian land, some of which are densely developed as agricultural land, and as a result many acres of developed lands and olive orchards around the Dolev river. Further, this alternative leaves some of the lands reserved for phase b of the Matityahu East plan west of the fence. Additionally it does not leave any of the landlocked private Palestinian lands east of the fence. But most importantly – in light of all the above – this alternative does not reduce the harm to local residents.
Though the safety of Israeli residents in the West Ban justifies erecting the security fence east of the green line, it does not justify any harm to the daily lives of the Palestinian local residents. The restrictions over seizing lands for purposes of protecting the residents must meet the requirements of the proportionality tests.
It was found that the alternative that was chosen does not comply with the guidelines of the decision. The Respondents are ordered, therefore, to execute the instructions of the decision without any further delay, and to determine a path for the fence in the area subject to the petition that meats the criteria that were established in the decision.
Keywords
Administrative Law -- Discretion, International Law -- Occupied territories
