Case Number

HCJ 2056/04

Date Decided

2-29-2004

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 government decisions as to constructing the borderline barrier, the Second Respondent (hereinafter: the Respondent) issued orders for the seizure of land, some privately owned, in the West Bank in order to build the barrier fence. The Petitioners, landowners and residents of villages in the borderline area, challenge the legality of the orders. They claim the Respondent lacks authority, under international law, to issue the orders and that the process of issuing the orders was touched by procedural flaws, including the infringement of their right to a hearing. They also argue that the fence severely violates their property rights, their freedom of movement and a line of other fundamental liberties insofar that it threatens to completely disrupt their lives and their ability to work their lands.

The Supreme Court held:

A. 1. The military commander is not authorized to order the construction of a barrier fence when his reasons are political. The barrier fence cannot serve reasons of “annexing” territories from the West Bank into the State of Israel. The purpose of the barrier fence cannot be determining a state border.

2. The considerations that the military commander may take into account are military considerations alone rather than political ones. He must balance military needs, on one hand, and the needs of local residents, on the other.

3. Indeed, combat-based seizure in the area is age-old. This implicates the scope of the military commander’s authority, however the passage of time cannot expand the authority of the military command and allow him to consider factors that are beyond the mere proper management of the area subject to combat-based seizure.

4. According to the entirety of the evidence submitted to the High Court of Justice, the considerations that guided the Respondent in selecting the path of the barrier fence were security based rather than political. The mere fact that the fence was not erected along the Green Line does not contradict this conclusion but rather enforces it. From a security standpoint, the military commander should have examined the path of the fence substantively not necessarily in connection with the Green Line.

B. 1. Under the Hague Regulations and the fourth Geneva Convention, the military commander may seize land, including property that is privately owne, for various military needs. Constructing the barrier fence falls within this framework, as long as it is necessary for military needs. To the extent that erecting the fence is a military necessity, the infringement of private property in and of itself does not negate the authority to erect it. The barrier fence was meant to substitute for military combat operations by way of physical bar of terror activity from infiltrating Israeli population centers.

2. Therefore the Petitioners’ argument that the Respondent has no authority to construct the fence because it is mostly constructed over lands that are privately owned must be rejected.

C. 1. The provisions of International law, and particularly regulation 46 of the Hague Regulations and section 27 of the fourth Geneva Convention, impose a duty upon the military commander to avoid actions which harm local residents in an occupied territory and to ensure they are not harmed by military action. As a result, the military commander must balance security needs against the needs of the local population.

2. The principle of proportionality is a fundamental principle of international law, in general, and the law of combat based seizure, in particular, and it is a primary standard in the Israeli administrative law, which applies to the area subject to combat based seizure. According to the principle of proportionality, it is possible to limit the liberty of local residents who are subject to combat based seizure in order to realize the goals of securing the state and its citizens and securing the area, so long as such restriction is proportional.

3. The principle of proportionality mandates that a decision by an administrative authority is lawful only when the government means taken in order to realize the government purpose is properly proportional. Under this principle it is required that the means taken by the administration leads rationally to the realization of the purpose, that the means taken by the administration harms the individual to the least extent, and that the harm caused to the individual as a result of the manes that the administration has taken in order to realize its goals must be in proper proportion to the benefit from such means.

D. 1. In determining whether the proportionality test was passed, the Court must examine the extent to which the decision as to the path of the barrier fence was based on military factors, because were the path chosen not based on military factors, there is not rational connection between the goal the fence was designed to achieve and the path chosen.

2. Indeed, the Court was presented with contradictory security expert opinions as to the military aspects of the barrier fence’s path, with the Petitioners relying on the opinion of the Council for Peace and Security – according to which the path chosen does not properly respond to military needs as it is overly close to houses in Arab villages in the borderline area. However, in a dispute between contradicting military experts’ opinions, the Court must give special weight to the fact that the area commander is responsible for safety and thus his military opinion must be preferred over that of the Petitioners.

3. However, when the issue of proportionality goes to the balance performed by the military commander between considerations of harm to local residents, as opposed to the issue of balancing military needs among themselves – this is a legal question where the expertise is that of the Court, because the Court is the expert on the humanitarian aspects of the barrier fence.

E. 1. The length of the barrier fence in the section subject the Petitions is approximately 40 kilometers. It implicates the lives of 35,000 local residents. About 1,000 acres of their lands are seized by the path of the fence itself, and thousands of olive trees growing on that path were uprooted. The fence separates eight villages and their local residents from about 750 acres for their lands. The vast majority of these lands are developed, and the include tens of thousands of olive trees, fruit trees and other various agricultural vegetation.

2. The licensing arrangements that the military commander seeks to establish and which was applied to many lands cannot prevent the extent of the grave harm to local farmers or to significantly mitigate it. The ability to access the lands depends on the ability to cross gateways that are located at a great distance and that may not always be open. Security checks are to be conducted at these gateways, and this may preclude the passage of vehicles and naturally would create long lines and many hours of waiting. All this is not consistent with the ability of a farmer to work his land. There will certainly be locations where there would be no alternative but for the barrier fence to separate between the local residents and their lands. In those places there must be a passageway that would mitigate the harm to farmers as much as possible.

3. The Respondents also failed to provide a satisfactory response to the Court’s question about providing the Petitioners with alternative land in the place of that which was seized from them for purposes of constructing the fence. Taking land from the Petitioners ought to, under the circumstances, create a duty for the Respondents to attempt to identify substitute land and propose it to the Petitioners instead of the lands taken from them. Only in the absence of alternative lands, compensation must take its place.

4. The infringement caused by the barrier fence is not limited only to harm to the residents’ lands and their access to them. The infringement is broader. In encompasses the fabric of life of the entire population. In many sections the fence is placed close to their homes. In certain places (such as Beit Surik) the barrier fence wraps around the village from the west, north and east. The fence directly impacts the connection between local residents and city centers (Bir Naballan and Ramallah). This connection is difficult even without the barrier fence, and will be immensely harder with the erection of the fence.

5. Even assuming that the path chosen by the Respondent is the optimal security path for the fence, then the path chosen does not reflect a proper balance between security needs and the harm to local residents, particularly in light of the fact that the security consideration, whereby this pate was preferred over other paths when at its core is the need to ensure military control in the area of the fence, can be accomplished without the fence’s path surrounding all of the territories included in the path chosen. In other words: it is possible to reduce the harm to the population without compromising the security goals by selecting an alternative path for the barrier fence in the areas subject the Petitions.

6. Therefore, there is no alternative but concluding that the balance reached by the decisions of the military commander as to the path of the barrier fence is not proportional, and there is no alternative but for voiding some of the orders subject the Petitions in order for the Respondent to reconsider the path of the barrier fence.

Keywords

Administrative Law -- Discretion, Contracts -- Estoppel, International Law -- Occupied territories

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