Summary
In the Beit Sourik case, a fundamental principle of international law and of the law of belligerent occupation, and a primary standard of Israeli administrative law applying to the military commander, under which a limitation of local residents’ liberty is lawful only if the means are properly proportional to the governmental purpose (Beit Sourik Village Council v. Government of Israel, lines 89-103, 410-424).
Details
-
The abstract of the judgment (not part of the opinion) states the three requirements: the means must rationally lead to realizing the purpose, must harm the individual to the least extent, and the harm must be in proper proportion to the benefit from the means (lines 95-101).
-
In the judgment itself, proportionality is listed among the administrative-law norms applying to the military commander, with fairness and reasonableness (paragraph 24). Paragraphs 36-43 ground it as a general principle of international law — central in armed conflict, quoting Pictet: “Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy.” — and as a general principle of Israeli administrative law, constitutionalized in article 8 of the Basic Law: Human Dignity and Freedom, with case law applying it to the commander’s powers over assigned residence, checkpoints, house demolition, detainee conditions and other matters (paragraphs 37-39).
-
The three sub-tests must all be satisfied simultaneously (paragraphs 40-42): (1) rational connection — the means must rationally lead to the objective; (2) least injurious means — among means achieving the objective, the one injuring the individual least; (3) proportionality in the narrow sense — damage in proper proportion to gain, applicable in a “relative manner” against an alternate act of somewhat smaller benefit, which is disproportionate if a certain reduction in advantage ensures a substantial reduction in injury. Where several means satisfy all three there is a “zone of proportionality”.
-
Applied to the fence route (paragraphs 44-48): the military character of a route is judged only for reasonableness, with special weight to the responsible commander’s opinion in a dispute between military experts; proportionality itself is an objective legal question — “The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects.” In the outcome, every contested segment passes sub-tests (1) and (2) but fails sub-test (3) in its relative form: the security advantage of the commander’s route over the alternates presented is “minute, as compared to the large difference” between a fence separating inhabitants from their lands and one that does not (paragraph 61), and the corresponding orders are nullified (paragraphs 57-62, 67, 70-71, 76, 80-82).
-
In the separate opinions appended to the Court’s 9 July 2004 Advisory Opinion on the wall, Judge Kooijmans holds the construction should also have been put to the proportionality test, military necessity and proportionality having always been intimately linked in international humanitarian law, and that the route and its consequences are manifestly disproportionate to the interests Israel seeks to protect, as recent Israeli Supreme Court decisions seem to recognize (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.72). Judge Buergenthal would have the test applied segment by segment, accepting some segments might meet it and others not, and seriously doubts the segments protecting settlements satisfy it (PDF p.80-81, p.83); Judge Owada accepts the wall’s impacts are so overwhelming that no military-exigencies justification could preclude wrongfulness under the stringent proportionality conditions (PDF p.101).
Related pages
Beit Sourik Village Council v. Government of Israel, Beit Sourik case, Separation wall, Hague Regulations, Pieter Kooijmans, Thomas Buergenthal, Hisashi Owada