Summary
HCJ 2056/04, Beit Sourik Village Council v. Government of Israel: landowners and village councils of eight villages west and northwest of Jerusalem petitioned the Israeli Supreme Court, sitting as the High Court of Justice, against seizure orders for the separation fence; the Court upheld the military commander’s authority to build the fence for security needs on seized private land, then held most of the challenged route disproportionate and nullified most of the orders (Beit Sourik Village Council v. Government of Israel, lines 208-1006).
Details
- Petitioners are the landowners and village councils of Beit Sourik, Bidu, El Kabiba, Katane, Beit A’anan, Beit Likia, Beit Ajaza and Beit Daku, adjacent to Mevo Choron, Har Adar, Mevasseret Zion and the Jerusalem neighborhoods of Ramot and Giv’at Zeev (lines 302-306).
- Panel: President A. Barak (author), Vice-President E. Mazza and Justice M. Cheshin; hearings February 29, March 11, March 17, March 31, April 16, April 21 and May 2, 2004 (lines 184-204). An earlier hearing panel included Vice-President (ret.) T. Or (paragraph 16).
- The petition was amended on March 23, 2004 to add seizure orders Tav/110/03, Tav/104/03 and Tav/105/03, and an order nisi issued on March 31, 2004 with a narrowed temporary injunction (paragraph 17).
- Authority holdings in this part: a political, annexation or border-drawing purpose would defeat authority, but the Court found the considerations security-based and in good faith (paragraphs 27-31); seizure of privately owned land necessitated by military needs, with compensation, is authorized by Hague Articles 23(g) and 52 and Fourth Geneva Convention Article 53 (paragraph 32).
- The route question is governed by the balance between the holder’s legitimate security interest and the needs of the local population, including protection of their rights (paragraphs 33-35), applied through Proportionality’s three sub-tests (paragraphs 40-44). On military disputes the Court gives special weight to the responsible commander’s opinion over the Council for Peace and Security experts (paragraph 47); the humanitarian balance is the Court’s own expertise, judged objectively (paragraph 48).
- Outcome, June 30, 2004 (Mazza and Cheshin concurring): the petition against order Tav/105/03 is rejected; the petition is accepted against orders Tav/104/03, Tav/103/03, Tav/84/03 (western part), Tav/107/03, Tav/108/03, Tav/109/03 and Tav/110/03 (as it applies to Beit Daku’s lands), which are nullified as disproportionate, and respondents pay 20,000 NIS in petitioners’ costs (result, lines 933-941). Segment reasoning: each contested segment passes the rational-connection and least-injurious-means sub-tests but fails proportionality in the narrow sense, because an alternate route’s security loss is minute beside the injury of separating the villages from their lands (paragraphs 57-62, 67, 70-71, 76, 80). The Court’s overview: about 40 km injuring 35,000 inhabitants, 4,000 dunams taken by the route itself, the eight villages separated from more than 30,000 dunams, and a licensing regime that cannot substantially decrease the injury (paragraph 82); taking farmers’ lands obligates the commander to attempt to find substitute land before offering monetary compensation (paragraph 83). Paragraph 67’s statement that no final order was made on Tav/107/03 and the result’s listing of Tav/107/03 as nullified are both recorded on the source page under Open questions.
Related pages
Beit Sourik Village Council v. Government of Israel, Beit Sourik, Aharon Barak, Moshe Kaplinsky, Separation wall, Proportionality