Israeli High Court Decision on Location of West Bank Barrier

Nidal Sliman
July 08, 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.