Israeli High Court
Decision on Location of West Bank Barrier
By Nidal Sliman
July 2004
On June 30, 2004, the Israeli
High Court delivered its decision in HCJ 2056/04
Beit Sourik v. Israel, ordering the
State of Israel and its military commanders
to modify the route of the wall/barrier that
is being constructed in the Occupied West
Bank. In its 52-page landmark decision, the
High Court recognized that according to the
laws of belligerent occupation, the Occupant
may confiscate private property and use public
property to build the wall for military purposes.
However, the Court ruled that the Occupant
may not build the wall based on political
grounds, or to annex territories or fix a
border. The Court cited several cases in which
it has ruled that only military necessities
may justify the taking of property. In the
Duikat case (HCJ 390/79 Duikat v. Israel)
the High Court held that according to the
laws of belligerent occupation, Israel may
not build settlements in the Occupied Territories
for political or ideological purposes. Ever
since, Israel has said that it is building
the settlements for military purposes.
In addition, the High Court recalled
its previous decisions in which it held that
the authority of the military commander is
temporary, and the fact that the belligerent
occupation is taking place for long time does
not expand the powers of the Occupant beyond
the proper administration of the occupied
territories (however, in HCJ 9717/03, 10359/03
Na'aleh v. Civil Administration
of Judea and Samaria (June 14, 2004),
the High Court said that "When we deal with
very long periods it seems that it is justified
to recognize the authority of the occupant
state to take actions that will affect the
territory under belligerent occupation for
long time"). The High Court accepted the State's
argument that the wall is constructed for
security purposes, and rejected the petitioners'
contention that the construction is motivated
by political considerations.
Using as a point of departure
that Israel holds the Occupied West Bank in
belligerent occupation, the High Court said
that the authority of the military commander
in that area flows from the provisions of
public international law established principally
in the 1907 Hague Regulations, which reflect
customary international law, and the humanitarian
provisions of the 1949 Fourth Geneva Convention
Relative to the Protection of Civilian Persons
in Time of War. The High Court cited Articles
23(g) and 52 of The Hague Regulations and
Article 53 of the Fourth Geneva Convention
as authorizing the Occupant to confiscate
private property if it is necessary for military
purposes, provided that compensation is paid.
In addition, it recalled its previous decisions
justifying the taking of private property
to build military compounds, fencing outposts,
providing temporary housing for soldiers,
securing transportation, building civil administration
facilities, and stationing soldiers on private
property. However, the military commander
must take the needs of the local community
into consideration, but this question pertains
to the route of the wall, not to the authority
to build it.
Military purpose does not authorize
the military commander to do everything. Since
the Occupant is not the sovereign in the occupied
territories, his discretion is limited by
the laws of belligerent occupation and the
principles of Israeli administration law.
The Occupant has the right to defend the state
and its citizens, but he must take into consideration
the rights, needs and interests of the local
population. In one case (HCJ 256/72 The
Electricity Company of Jerusalem v. Minister
of Security), the High Court ruled that
the military commander must insure adequate
living conditions of the local population.
According to Articles 46 of The Hague Regulations
and 27 of the Fourth Geneva Convention the
military commander must refrain from harming
the local population and should take measures
to prevent such harm, although measures of
control and security may be taken if they
are necessary as a result of the armed conflict.
In order to balance between the
military necessities of the occupation and
the duty to respect and to protect the rights
of the local population, the actions of the
military commander must be proportional. The
proportionality principle stems from the international
law of belligerent occupation and from Israeli
administrative law. The High Court has applied
the proportionality principle in several cases.
The contexts have included regulating the
authority of the military commander to (a)
assign places of living, (b) surround towns
and set checkpoints, (c) damage private property
during military operations, (d) establish
entry routes for Israelis into closed military
territories,, (e) secure access to religious
sanctuaries and protect worshipers, (f) destroy
houses for military purposes or for deterrence,
(g) detain suspects, (h) arrest persons for
investigation purposes, (i) deny a detainee's
right to meet with an attorney, (j) lay siege
to persons in religious places, and (k) regulate
the documentation and identification of the
local population.
According to the proportionality
principle, the decision of the administrative
authority is lawful if the method applied
to achieve the objective is in proper proportion
to the objective. The High Court held that
according to international law, common law
(such as in Canada), continental law (such
as in Germany), and Israeli law, there are
three secondary tests for proportionality:
1) the measures taken must rationally lead
to realization of the objective (the rational
means test); 2) the measure must injure the
individual to the least extent possible (the
least injurious means test); 3) the harm expected
from the action should be proportional to
the benefit gained from it (the proportionate
means test). Only when these secondary tests
are met is the authority's action proportional.
The Israeli Council for Peace
& Security submitted expert opinions contradicting
the position of the Israeli Defense Forces
on military matters. The High Court reiterated
its position to give deference to the military
commander in belligerent matters, and decided
that the first proportionality test was met.
Nonetheless, unlike in military matters in
which the High Court refrains from interfering,
the High Court examined the humanitarian aspects
of military decisions.
The High Court concluded that
the potential harm/damages the local population
will suffer from the proposed forty-kilometer
segment of the fence are not proportional
to the security benefit from its construction.
The proposed route severely infringes upon
the rights of the local population; tens of
thousands of Palestinian farmers will be apart
from thousands of acres of cultivated lands,
and despite the Court's proposals the State
did not offer any alternative lands to the
farmers. The High Court held that the proposed
route will severely violate the local population's
property rights, freedom of movement, and
livelihood. Furthermore, the High Court accepted
the petitioners' argument that an alternative
less harmful route is possible and although
the military had changed the route several
times during the hearings, the High Court
found that these attempts were not sufficient
since the harm caused to the local population
is out of proportion to its security value,
and therefore the High Court declared the
route of the segment to violate international
humanitarian law, and nullified the orders
pertaining to it.
Although the decision dealt with
only 40 kilometers (about 25 miles) of the
proposed wall that affects the lives of tens
of thousands of Palestinians, it will serve
as a legal precedent in many other cases pending
before the High Court. The High Court found
that the fence strikes across the fabric of
life of the entire population.
The High Court concluded its
judgment by recognizing the terrorism that
Israel faces, but "at the end of the
day, a struggle according to the law will
strengthen [Israel's] power and her spirit.
There is no security without law."
About the Author: Nidal Sliman is an Israeli-Palestinian
lawyer and a JSD Candidate at the Center for
Civil & Human Rights, Notre Dame University
Law School focusing on land issues in International
Human Rights Law. He received his LL.B. and
LL.M. degrees from the Hebrew University of
Jerusalem, Israel in 1996 and 1999 respectively.
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