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Beit Sourik Village Council v. Government of Israel

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aliasesBeit Sourik Village Council v. Government of Israel, HCJ 2056/04, Beit Surik case

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Summary

HCJ 2056/04, the judgment of President A. Barak for a panel with Vice-President E. Mazza and Justice M. Cheshin (both concurring), dated June 30, 2004, on petitions by landowners and village councils of Beit Sourik, Bidu, El Kabiba, Katane, Beit A’anan, Beit Likia, Beit Ajaza and Beit Daku against seizure orders issued by the Commander of the IDF Forces in Judea and Samaria to build the separation fence west and northwest of Jerusalem. The Court holds that the commander may not build the fence for political reasons, annexation or drawing a border, finds on the evidence that the considerations here were security-based and in good faith, and holds that he is authorized under the Hague Regulations and the Fourth Geneva Convention to take possession of even privately owned land where necessitated by military needs, with compensation. On the route, the Court applies Proportionality in its three sub-tests, gives special weight to the responsible commander’s military opinion over the Council for Peace and Security experts, but treats the balance between security and harm to the local population as a legal question for the Court; segment by segment it finds the first two sub-tests satisfied and the third — proper proportion between the added security benefit and the injury — failed on most segments, because alternate routes would lose only a minute amount of security while avoiding the separation of more than 13,000 farmers in the Jebel Muktam segment alone, and of 35,000 inhabitants overall, from more than 30,000 dunams. It rejects the petition against order Tav/105/03 and nullifies 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), with respondents to pay 20,000 NIS in petitioners’ costs (Beit Sourik Village Council v. Government of Israel, lines 208-1006).

What the file is

The English translation published by the Cardozo Israeli Supreme Court Project (Versa), in an HTML original and a paired text copy of 1,006 lines and about 23,932 words, preceded by the Project’s navigation, a case header (HCJ 2056/04) and an abstract expressly stated not to be part of the Court’s opinion, translated from a Hebrew version prepared by Nevo Press Ltd. The page states: “This translation is not an official document; the only authoritative text of this decision is the Hebrew original.” (lines 182-184). The judgment itself is by President A. Barak, for petitioners Mohammed Dahla and for respondents Anar Helman and Yuval Roitman, with hearings listed on February 29, March 11, March 17, March 31, April 16, April 21 and May 2, 2004 (lines 184-204). The site header’s “Decided: February 29, 2004” is the first hearing date; the judgment itself is dated June 30, 2004 at its end (lines 937-941). Printed slips in the text copy are recorded in Section by section and Open questions, not corrected.

Section by section

  • Abstract (lines 58-176; not part of the opinion). The abstract’s summary of the holdings: no authority for political, annexation or border-drawing purposes; seizure of private land authorized for military needs under the Hague Regulations and the Fourth Geneva Convention; a duty under Hague Regulation 46 and Fourth Geneva Convention Article 27 to avoid harming local residents, balanced through Proportionality in its three sub-tests (rational connection, least injurious means, proper proportion between harm and benefit); on military disputes between experts the responsible commander’s opinion is preferred, while the humanitarian balance is the Court’s expertise; the roughly 40 km section implicates 35,000 residents, about 1,000 acres seized by the path itself, thousands of olive trees uprooted and eight villages separated from about 750 acres, the permit/gateway regime cannot mitigate the grave harm, respondents gave no satisfactory answer on substitute land, and even an optimal security path fails the balance because the control the path secures can be achieved without surrounding all the territory it includes, so some orders must be voided for reconsideration of the path. These acre figures are the abstract’s; the petition as summarized in the judgment gives dunam figures (see paragraph 9 below), and the two sets are held side by side in Open questions.

  • Background (paragraphs 1-2, lines 208-230). Since 1967 Israel has held Judea and Samaria in belligerent occupation; the 1993 process with the PLO transferred control over parts of the area to the Palestinian Authority, and the Camp David negotiations failed in July 2000. From respondents’ affidavit: from September 2000 a campaign of terror; more than 780 attacks within Israel and more than 8,200 in the area from September 2000 to the beginning of April 2004; 900 Israeli citizens and residents killed and more than 6,000 injured as of April 2004, with many Palestinian dead and wounded (no figure given). Operations “Defensive Wall” (March 2002) and “Determined Path” (June 2002) did not sufficiently stop the terror; this is the background to the fence decision. Barak’s description in HCJ 7015/02 Ajuri v. IDF Commander, at 358, of suicide bombers and fighters hiding among the civilian population is quoted.

  • The Decision to Construct the Separation Fence (paragraphs 3-6, lines 234-284). Ministers’ Committee for National Security, April 14, 2002: deployment in the “Seamline Area” to prevent terrorist penetration, with a temporary obstacle in the Umm El-Fahm/Baka/Barta’a, Qalqilya-Tulkarm and Greater Jerusalem regions. Government, June 23, 2002: Stage 1 approved, 116 km from Salam village by the Megiddo junction (printed “Meggido”) to the Trans-Samaria road plus the Jerusalem area, the decision stating the fence “is a security measure. Its construction does not mark a national border or any other border.” August 14, 2002: final location approved. December 2002: Stage 2, 60 km from Salam east to the Jordan River, plus a Gilboa extension to Tayseer. September 5, 2003: Stage 3 in Greater Jerusalem except Ma’ale Adumim, 64 km. Government, October 1, 2003, on Stages 3 and 4: the obstacle “is a security measure for the prevention of terror attacks and does not mark a national border or any other border”, local changes to go to the Prime Minister and Minister of Defense, and “every effort shall be made to minimize, to the extent possible, the disturbances to the daily lives of the Palestinians due to the construction of the obstacle”. The fence west of Jerusalem is at the heart of the dispute.

  • The Separation Fence (paragraph 7, lines 288-292). The Seamline obstacle: a central “smart” fence, an anti-vehicle obstacle, a delaying fence, a service road, and on the internal side a track-discovery dirt road, a patrol road, an armored-vehicle road and an additional fence; average optimal width 50-70 meters, up to 100 meters for topography; in the petition area at most 35 meters except where topography requires wider, and there it is not replaced by a concrete wall.

  • The Seizure Proceedings (paragraph 8, lines 296-300). Where the fence is on private land a seizure order issues from respondent 2, the Commander of the IDF Forces in Judea and Samaria; owners receive compensation for use; the order is publicized, the Palestinian Authority liaison body contacted, a survey is held with landowners a few days after issue, then one week to appeal to the military commander and, if denied, a further week to petition the High Court of Justice.

  • The Petition (paragraphs 9-11, lines 302-330). Petitioners claim over 42,000 dunams affected: the obstacle passes over 4,850 dunams and separates them from more than 37,000 dunams, 26,500 of them agricultural land cultivated for generations; access, wells and shepherding hindered, tens of thousands of olive and fruit trees uprooted and tens of thousands more separated, hundreds of families’ livelihoods critically injured, 35,000 residents disrupted, access roads to Ramallah and Bir Naballa blocked and access to East Jerusalem services, ambulances, schools and universities impaired. First, no authority: the route through Judea and Samaria alters the West Bank’s borders, annexes areas, serves the occupying power rather than the occupied area, and the security arguments disguise annexation. Second, illegal procedure: orders unpublished and learned of by chance, only a few days to appeal, no participation or hearing. Third, disproportionate violation of property, movement, livelihood, occupation, education, family and community life and religion, defacement of nature and landscape, collective punishment, and breach of the obligation to make normal life possible; the fence is not temporary in character and the wound far outweighs its benefits.

  • The Response to the Petition (paragraphs 12-15, lines 334-366). Respondents: a project of utmost national importance in actual combat; attacks on Jerusalem and Route 443 originated in this area; the central route consideration was operational-security — topographic command, a security zone for warning and pursuit, protection of forces and of Israeli towns on both sides. Planning gave great weight to residents’ interests: State Attorney and Attorney-General examination of segments, efforts to use land not privately owned or cultivated, agricultural gateways, new roads, compensation, moving crops and trees rather than cutting them, 24-hour permanent checkpoints east of certain villages, and improved roads toward Ramallah. Seizure power is claimed from Israel’s natural right of self-defense, combat seizure powers and the laws of belligerent occupation; the injury is denied to be as severe as claimed — all villages are connected to water systems, each has a clinic with a central clinic in Bidu, and produce marketing will remain possible.

  • The Hearing of the Petition (paragraphs 16-22, lines 370-406). The route was changed in part during the hearings, including next to Har Adar and Beit Sourik; work in the petition area was halted until the next hearing after February 29, 2004. The Council for Peace and Security affidavit (Major General (res.) Danny Rothchild, Major General (res.) Avraham Adan, Commissioner (emeritus) Shaul Giv’oli, Colonel (res.) Yuval Dvir; further affidavit April 15, 2004, joined as amici curiae by stipulation; further affidavit April 18, 2004) argued on security grounds that the fence must be far from Palestinian village houses, that proximity invites attacks on patrols, friction at gateways and bitterness that increase the security danger, and that seizing topographically controlling hilltops and avoiding flat-trajectory fire lengthen the fence unnecessarily without preventing fire on it. Respondent Lt.-Gen. Moshe Kaplinsky’s comments were requested. On March 23, 2004 the petition was amended to add orders Tav/110/03, Tav/104/03 and Tav/105/03; on March 31 an order nisi issued and the temporary injunction was narrowed, with respondents undertaking compensation if building at the excepted locations proved illegal. Petitioners submitted an alternate route, ecological expert opinions of April 15, 2004 (habitat damage, ecosystem separation, small-animal passageways of 20-30 cm proposed), a Nature and Parks Authority expert reply, relief models and an aerial photograph. Mevasseret Zion residents joined on both sides: some as petitioners for a route adjacent to the Green Line, and Efraim Halevy as a respondent against moving it there.

  • The Normative Framework (paragraphs 23-25, lines 410-436). All parties and the Court start from belligerent occupation (occupatio bellica); in the relevant areas military administration headed by the military commander continues. His authority flows principally from the Hague Regulations, which reflect customary international law, and is also anchored in the Fourth Geneva Convention; the Convention’s application is not in issue because the parties agree its humanitarian rules apply. Israeli administrative law principles also apply to the commander — fairness including the right to be heard before seizure, reasonableness and Proportionality: “[e]very Israeli soldier carries, in his pack, the provisions of public international law regarding the laws of war and the basic provisions of Israeli administrative law.” (Jam’iyat Ascan, at 810). Two questions: authority to construct the fence in the area, and, if so, its location; the parties concentrated on the second, so the first is dealt with briefly and without exhausting it.

  • Authority to Erect the Separation Fence (paragraphs 26-32, lines 440-472). First argument — political considerations: accepted in principle and rejected on the facts. The commander cannot order construction for political reasons, annexation or drawing a political border (Duikat, at 17, Landau J. on Article 52 of the Hague Regulations: army needs cannot include “national security needs in broad meaning of the term”; Jam’iyat Ascan, at 794-795, on roads: planning “cannot be done in order to serve the occupying country”). He must balance army needs against local inhabitants’ needs, with no room for political considerations, annexation or permanent borders; his authority is inherently temporary, and the occupation’s length, while it affects the scope of his authority, cannot extend it beyond proper administration of the area. On the facts the fence is security-motivated: the government decisions’ repeated statements, Kaplinsky’s affidavits of April 15, 2004 (sections 22-23) and April 19, 2004 (section 4, “it is not a permanent fence, but rather a temporary fence erected for security needs”), route changes made during the hearings including distancing the fence from El Kabiba’s lands near Har Adar, and the Council’s own position, which does not argue political motivation or recommend the Green Line — security must examine the route on its merits without regard for the Green Line, and petitioners did not carry their burden. Second argument — seizure of private land: rejected. No defect was found in the seizure or appeal process. Under Hague Articles 23(g) and 52 and Fourth Geneva Convention Article 53 the commander may take possession of land necessitated by military needs, with compensation for its use; precedents are listed for military facilities, detour roads, fences around outposts, soldiers’ housing, traffic, civilian administration offices and building seizure for force deployment. The fence falls within this framework as an obstacle intended to take the place of combat operations by physically blocking infiltration; property infringement alone does not remove authority, and local needs go to the route, not to authority.

  • The Route of the Separation Fence (paragraphs 33-34, lines 476-503, paragraph 34 unfinished at line 503). Security motivation is not sufficient: the commander’s discretion is restricted by the normative system that sources his authority, and “the military commander is not the sovereign in the occupied territory” (Oppenheim, 33 Law Q. Rev. 363, 364 (1917); Dinstein, The Law of War 210 (1983)). The law of belligerent occupation balances security authority against the local population’s rights, needs and interests: “The law of war usually creates a delicate balance between two poles: military necessity on one hand, and humanitarian considerations on the other.” (Dinstein, 2 Iyunei Mishpat 505, 509 (1973)). The authorities quoted — HCJ 337/71, HCJ 256/72, Abu Ita at 270, Jam’iyat Ascan at 794 (“The Hague Regulations revolve around two central axes”), HCJ 72/86 Zaloom at 532, HCJ 2977/91 Thaj at 474 on Hague Regulation 43 — state the obligation to provide for the population’s well-being and normal daily life alongside military needs; the paragraph continues past line 503 with the statement that in the humanitarian area the commander is responsible for protecting residents’ rights, especially their constitutional human rights.

  • The Route, continued (paragraphs 34-35, lines 504-536). Hague Regulation 46 and Fourth Geneva Convention Article 27 (the introductory sentence says “Article 46 of the Fourth Geneva Convention”, as printed) impose a double obligation: a “negative” obligation to refrain from injuring local inhabitants and a “positive” obligation to act so they are not injured (Physicians for Human Rights). Pictet is quoted on Article 27 as the basis of the Convention. With the specific seizure provisions, these create “a single tapestry of norms” recognizing both human rights and local needs and the commander’s security needs, between which a proper balance must be found.

  • Proportionality (paragraphs 36-43, lines 540-652). Proportionality is a general principle of international law, central in armed conflict (Pictet: “Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare”; Fenrick and Gasser quoted), and a general principle of Israeli administrative law, constitutionalized in article 8 of the Basic Law: Human Dignity and Freedom; case law applying it to assigned residence, checkpoints, house demolitions, detainee conditions and other commander powers is listed. A decision is legal only if its means are of proper proportion to its objective, through three cumulative sub-tests: (1) rational connection (“appropriate means”); (2) least injurious means; (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. Where several means satisfy all three, there is a “zone of proportionality”.

  • Proportionality of the route and scope of review (paragraphs 44-48, lines 656-712). Applied to the route: (1) is there a rational connection between route and goal; (2) among routes achieving the objective, is the chosen one least injurious; (3) relatively, an alternate route with a smaller security advantage but significantly less damage makes the chosen route disproportionate. On the military character of the route the Court is not expert and asks only whether a reasonable commander would so decide; standing before contradictory military opinions, it gives special weight to the responsible commander’s opinion (Amira; Duikat) and holds petitioners did not carry their burden to prefer the Council’s opinion. On proportionality itself the standard is objective and legal: “The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects.” (Physicians for Human Rights, para. 9, quoted).

  • From the general to the specific (paragraph 49, lines 716-724). The fence in this petition is approximately 40 km; proportionality varies by local conditions and is examined order by order, west to east (appendix map): Maccabim and Beit Sira, south to Mevo Choron, east to Jerusalem, climbing Jebel Muktam, past Beit Likia, Beit A’anan and Chirbet Abu A-Lahm, separating Ma’aleh HaChamisha and Har Adar from Katane, El Kabiba and Bidu, circling Beit Sourik to Route 443, and finally separating Bidu, Beit Ajaza and Beit Daku from Har Shmuel, New Giv’on and Giv’at Ze’ev.

  • Order Tav/105/03 (paragraph 50, lines 728-733). East of Maccabim, west of Beit Sira, to northeast of Mevo Choron: not substantially disputed, its tips changed, Beit Sira not a petitioner, the Council silent; the petition against it is denied.

  • Orders Tav/104/03, Tav/103/03 and western Tav/84/03 — Jebel Muktam (paragraphs 51-62, lines 737-797). More than 10 km surrounding the ridge that towers over Route 443. Petitioners’ figures for Beit A’anan (population 5,500): 6,000 dunams affected, 7,500 beyond the fence (6,000 cultivated), 18,000 trees uprooted, 70,000 separated, unemployment approaching 75%; for Beit Likia (8,000): 2,100 dunams affected, 5,000 beyond (3,000 cultivated). Respondents’ figures for Beit A’anan are far lower (410 dunams seized, 1,245 cultivated dunams beyond, 3,500 trees uprooted), yet even on them the damage is great. The Council: effective light-weapon fire from Jebel Muktam on Route 443 is not possible, a route three kilometers south by the Green Line would sit on controlling, defensible ground, and not every controlling hill is necessary; two alternates were presented. The commander: control of Jebel Muktam is of decisive military importance, petitioners’ route is topographically inferior and endangers patrols; mitigations are two daytime gates, compensation and transferring olive trees. The Court does not intervene on the military dispute and finds sub-tests (1) and (2) satisfied, but fails sub-test (3): “more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood”, no substitute land was sought, and two licensed daytime gates cannot preserve a farmer’s way of life; an alternate based on military control of Jebel Muktam without “pulling” the fence to it exists, and the security gap between the routes is “minute, as compared to the large difference” between separating and non-separating routes. Orders Tav/103/03 and Tav/104/03 and the western part of Tav/84/03 are annulled in effect (see the result), and the eastern part of Tav/84/03 is to be examined anew.

  • Order Tav/107/03 — Har Adar (paragraphs 63-67, lines 801-825; heading printed “Tav/107/30”). About 4.5 km south of Katane to east of Har Adar; petitioners: Katane 300 dunams directly injured and 5,700 beyond (4,000 cultivated), El Kabiba 200 directly and 2,500 beyond (1,500 cultivated); two gates, one pedestrian-only. Respondents had already moved the part north of Har Adar closer to the town’s security systems as an admittedly inferior security solution; the Council would integrate the fence into Har Adar’s existing fence, the commander says that is operationally and engineering-wise impossible near Katane and would leave the controlling northeast hill outside the defended area, though slight changes were made there and amending order Tav/37/04 issued. Sub-tests (1) and (2) pass; sub-test (3) fails for the more than 3,000 farmers of Katane and El Kabiba, and the route east and west of Har Adar can reduce the lands beyond the fence — but paragraph 67 makes no final order on Tav/107/03 because the parties must continue discussing (see Open questions on the result paragraph).

  • Eastern tip of Tav/107/03 and order Tav/108/03 — Beit Sourik and Bidu (paragraphs 68-71, lines 829-841). 5.5 km; petitioners’ figures, not negated by respondents: Beit Sourik 500 dunams directly damaged, 6,000 beyond (5,000 cultivated) including three greenhouses, 10,000 trees uprooted, inhabitants cut off from “25,000 thousand olive trees” (as printed), 25,000 fruit trees and 5,400 fig trees; the route borders Beit Sourik tightly on west, south and east — “a veritable chokehold” — and surrounds Bidu from east and south; one seasonal gate and one checkpoint. Mevasseret Zion residents were heard on both sides. Even after the commander’s changes, which he said give an inferior security solution, the injury is very severe and his humanitarian obligations are not satisfied; the Council’s alternate (distancing the fence from Beit Sourik’s east and west) loses a security advantage “in no way proportionate” to the added injury, so the order must be annulled and reconsidered, on condition the route free Beit Sourik (and to a lesser extent Bidu) from the chokehold and allow access to the majority of their agricultural lands.

  • Order Tav/109/03 (paragraphs 72-80, lines 845-889; heading printed “Tav/109/103”). About 5 km east of Bidu, Beit Ajaza and Beit Daku. Its southern tip shares Tav/108/03’s fate — the fence is to move eastward so Bidu can keep cultivating. The central part (west of Har Shmuel, east of Bidu, to New Giv’on and Beit Ajaza; Beit Ajaza 350 dunams damaged, 2,400 beyond, 2,000 cultivated; access roads to Ramallah and East Jerusalem cut) is annulled: respondent’s mitigations (a gate, a permanent checkpoint east of Bidu open 24 hours a day, 365 days a year, improved roads, and his April 20, 2004 affidavit undertaking not to prevent passage toward Ramallah under current arrangements until a new road is completed) do not make the licensing regime a substantial solution. In the northern part, the segment separating New Giv’on and Beit Ajaza is undisputed and legal; beyond it, Beit Daku (300 dunams directly damaged, 4,000 beyond, 2,500 cultivated) — accepting that the high hill east of Beit Daku must be under IDF control and that “The Gazelles’ Basin” is part of Giv’at Ze’ev needing defense, the commander must still map an alternate satisfying the majority of security considerations while mitigating the separation.

  • Order Tav/110/03 (paragraph 81, lines 893). Northwest of Beit Daku, from eastern A-Tira to Route 443 east of Beit Horon; A-Tira is not a party and is not dealt with; as it affects Beit Daku’s lands, the order goes the way of Tav/109/03.

  • Overview (paragraphs 82-85, lines 897-917). The whole 40 km injures 35,000 inhabitants; 4,000 dunams are taken by the route itself and thousands of olive trees along it uprooted; the eight villages are separated from more than 30,000 dunams, the great majority cultivated, with tens of thousands of olive, fruit and other trees. The licensing regime cannot prevent or substantially decrease the injury — distant gates, not always open, security checks, vehicle preclusion, long lines and hours of waiting “do not go hand in hand with the farmer’s ability to work his land”; where separation is unavoidable, passage must reduce injury to the extent possible. On substitute land the Court received no satisfactory answer: taking farmers’ lands obligates respondent to attempt to find other lands in exchange, and monetary compensation may be offered only if there are none. The injury strikes “across the fabric of life of the entire population”: the fence passes by homes, surrounds Beit Sourik from west, south and east, and multiplies sevenfold the already difficult link to Bir Nabbala (spelling as printed here) and Ramallah. The Court records its impression of the commander’s sincere desire for balance and willingness to change the plan, and finds no stubbornness, but holds his balance is not proportionate and a renewed examination of the route is unavoidable.

  • Epilogue and result (paragraph 86 and following, lines 921-941). “We are members of Israeli society… that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror”; in the short term the judgment will not make the state’s struggle easier: “There is no security without law. Satisfying the provisions of the law is an aspect of national security.” Barak’s Public Committee against Torture passage (at 845) is quoted — a democracy “must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand” — closing: “Only a separation fence built on a base of law will grant security to the state and its citizens.” Result: the petition against Tav/105/03 is rejected; the petition is accepted against 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), “meaning that these orders are nullified, since their injury to the local inhabitants is disproportionate”; respondents pay 20,000 NIS in petitioners’ costs. Mazza and Cheshin concur. Dated June 30, 2004.

Key passages

  • “The military commander is not permitted to take the national, economic, or social interests of his own country into account” (Barak in Jam’iyat Ascan, at 794, quoted at lines 448-456)
  • “it is not a permanent fence, but rather a temporary fence erected for security needs” (Kaplinsky affidavit of April 19, 2004, section 4, quoted at line 419)
  • “the military commander is not the sovereign in the occupied territory” (lines 439-443)
  • “The law of war usually creates a delicate balance between two poles: military necessity on one hand, and humanitarian considerations on the other.” (Dinstein, quoted at lines 447-451)
  • “The Hague Regulations revolve around two central axes: one – the ensuring of the legitimate security interests of the holder of a territory held in belligerent occupation; the other – the ensuring of the needs of the local population in the territory held in belligerent occupation.” (Barak in Jam’iyat Ascan, at 794, quoted at lines 475-483)
  • “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.” (Pictet, quoted at lines 575-583)
  • “The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects.” (lines 709-712)
  • “more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood” (lines 787-789)
  • “Only a separation fence built on a base of law will grant security to the state and its citizens.” (lines 929-931)

Evidence the work relies on

A judgment, resting on: the government and Ministers’ Committee decisions of April 14, 2002, June 23, 2002, August 14, 2002, December 2002, September 5, 2003 and October 1, 2003 as quoted; respondents’ affidavit in answer to the order nisi for the attack and casualty figures of paragraphs 1-2; Kaplinsky’s affidavits of April 15 and April 19, 2004 (including para. 60, on the Har Adar changes) and his affidavit of April 20, 2004 (para. 22, on passage toward Ramallah); the Council for Peace and Security affidavits (signed by Adan, Giv’oli and Dvir, with further affidavits of April 4, April 15 and April 18, 2004); the parties’ competing dunam and tree figures for each segment, petitioners’ two alternate routes in the Jebel Muktam segment and their alternates elsewhere, the respondents’ map of March 10, 2004 and the parties’ map of March 31, 2004, relief models and an aerial photograph; ecological expert opinion papers of April 15, 2004 and a Nature and Parks Authority expert opinion; amending seizure order Tav/37/04; and the case law and scholarship cited paragraph by paragraph in Section by section, principally the Hague Regulations, the Fourth Geneva Convention (with Pictet’s commentary), Jam’iyat Ascan, Duikat, Ayoob, Abu Ita, Ajuri, Physicians for Human Rights, Amira, Aga, Sabih, Public Committee against Torture, and Zamir and Dinstein on proportionality and the law of war.

Analysis

The judgment separates authority from route. Authority is decided on two narrow grounds the parties actually argued: purpose (political purpose would defeat authority, but the Court credits the government’s stated security purpose and the commander’s affidavits, and treats departure from the Green Line as evidence for, not against, a security examination) and property (seizure for military needs, with compensation, is within the listed Hague and Geneva provisions, so private ownership does not itself defeat authority). The local population’s needs are expressly deferred from authority to route.

On the route, the judgment’s method has two moves that together produce its outcome. First, deference on military questions: where the commander and the Council’s experts disagree on military merits, the responsible commander’s opinion is placed at the foundation, which makes sub-tests (1) and (2) pass on every segment — the chosen route rationally serves the objective, and no alternate is shown to serve it to a similar extent with less injury. Second, no deference on the balance: proportionality in the narrow sense is an objective, legal question on which the Court is the expert, applied in its “relative” form — not fence versus no fence, but the marginal security gain of the commander’s route over a presented alternate against the marginal injury of separating farmers from their lands. On that comparison each contested segment fails, on the Court’s own stated facts: the licensing-and-gates regime is treated throughout as unable to preserve a farmer’s way of life, substitute land was never attempted, and the injury is assessed across “the fabric of life of the entire population”, not only dunams and trees. The remedy follows the method: orders are nullified and the route returned to the commander for reconsideration within stated conditions, rather than the Court drawing a route itself — except Tav/105/03, which was not substantially disputed and stands, and Tav/107/03, where segment discussion and the result paragraph do not fully align (see Open questions).

The judgment’s limits are those of its own framework, as it states them: it works on the assumed foundation that the fence’s purpose is security and the commander’s route judgments are made in good faith; it does not decide the fence’s legality outside the roughly 40 km and the orders before it; contested segment figures (notably Beit A’anan) are left unreconciled, with the third-subtest conclusion expressly resting even on respondents’ lower figures in the Jebel Muktam segment; and the operative relief for Tav/109/03’s northern part and Tav/107/03 is reconsideration under conditions rather than a route fixed by the Court.

People, organizations, places and events

Aharon Barak, Moshe Kaplinsky, Council for Peace and Security, Israeli Supreme Court, Beit Sourik, Beit Sourik case, Jebel Muktam, Green Line, Ramallah, Palestinian Authority, Israel Defense Forces

Concepts

Separation wall, Proportionality, Seam zone

How it relates to other sources

This is the Israeli High Court of Justice’s own judgment on the separation fence segment west of Jerusalem, the domestic counterpart to the international proceedings recorded elsewhere in the wiki: Resolution ES-10/14 (8 December 2003) had requested the International Court of Justice’s advisory opinion on the wall, recording its departure from the Armistice Line of 1949, confiscation and destruction of Palestinian land and de facto annexation (Resolution ES-10/14: Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory (8 December 2003)), and ES-10/15 (20 July 2004) reproduced that Court’s reply that the wall and its associated regime are contrary to international law (Resolution ES-10/15: Advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (20 July 2004)) — positions summarized on Separation wall. This judgment, by contrast, begins from the parties’ agreement that the area is held in belligerent occupation and the Fourth Geneva Convention’s humanitarian rules apply, rejects the annexation-purpose claim on the evidence before it, and locates the local population’s protection in the route’s proportionality rather than in a bar on building the fence in the area at all — while on that basis nullifying most of the seizure orders for this segment and ordering the route reconsidered (Beit Sourik Village Council v. Government of Israel, lines 410-1006). The Political Economy of Israeli Occupation: What is Colonial about It? records the wall on UN OCHA figures — 408 km built by end of 2006 and 479,881 dunums trapped west of it under military order 378 — a later and wider account than the 42,000 dunams petitioners claimed affected here in 2004.

Open questions

  • The abstract (not part of the opinion) gives the harm in acres — about 1,000 acres seized by the path, eight villages separated from about 750 acres (lines 105-113) — while the judgment gives dunams: the petition as summarized at paragraph 9 claims 4,850 dunams passed over and more than 37,000 dunams separated (line 295), and the Court’s own overview at paragraph 82 states 4,000 dunams taken by the route itself and more than 30,000 dunams separated. The sets are not reconciled in the text, and no conversion is supplied by it.
  • Beit A’anan figures conflict between the parties and within paragraph 53’s comparison: petitioners (paragraph 52) give 6,000 dunams affected by the obstacle passing over them, 7,500 dunams beyond (6,000 cultivated), 18,000 trees uprooted and 70,000 separated; respondents (paragraph 53) give 410 dunams seized “(as opposed to 600)”, 1,245 cultivated dunams beyond “(as opposed to 6000)” and 3,500 trees uprooted “(as opposed to 18,000)”. The “600” in paragraph 53 does not match the 6,000 in paragraph 52 as printed; the Court states its third-subtest conclusion holds even on respondents’ figures and does not reconcile them.
  • Order Tav/107/03: paragraph 67 states “we have not seen fit to make a final order regarding Tav/107/03” because the parties must continue discussing, while the result paragraph lists Tav/107/03 among the orders against which the petition is accepted and which “are nullified”. Both statements are recorded as printed; the text does not explain the relation between them.
  • Order Tav/109/03: the result paragraph lists Tav/109/03 without qualification among the nullified orders, while paragraphs 72-80 treat its parts differently — the southern tip shares Tav/108/03’s fate, the central part is annulled, the segment separating New Giv’on and Beit Ajaza “is legal” (paragraph 77), and for the northern part the commander “must map out an alternate arrangement” (paragraph 80). The scope of the nullification against those distinctions is not spelled out in the result.
  • Paragraph 35 introduces the Fourth Geneva Convention provision as “Article 46” and then quotes Article 27; the quotation and Pictet commentary that follow are Article 27’s. Recorded as printed.
  • Village and place spellings vary within the file: Beit Sourik in the title and judgment, “Beit Surik” in the abstract (line 113); Beit Likia (paragraph 9) and “Beit Lakia” for the Tav/104/03 and Tav/105/03 areas (paragraph 17); Beit A’anan, “Beit Anan” (paragraphs 49-55) and “Beit Anan village”; Bir Naballa (paragraph 9), “Bir Naballan” in the abstract (line 113) and “Bir Nabbala” (paragraph 84); El Kabiba and “El-Kabiba” (paragraph 67); Beit Daku and “Daku” (paragraph 80); A-Tira and “Beit Tira” (paragraph 77); Efraim Halevy (paragraph 22) and “Efraim Halevi” (paragraph 69). The spellings are recorded as printed.
  • Printed slips recorded as printed: “privately owne” (abstract B.1), “manes” for means (abstract C.3), “Meggido” (paragraph 4), “HJC 10356/02” for HCJ 10356/02 (paragraph 24), “Minster of Defense” (paragraph 32), “authority has no to construct” (paragraph 32), “J’mayat Ascan” beside “Jam’iyat Ascan” (paragraphs 34 and 23-27), “IDF Forcers” (paragraph 39), “the petition is denied,.” (paragraph 50), “there relationship” (paragraph 60), headings “Tav/107/30” for Tav/107/03 and “Tav/109/103” for Tav/109/03, “25,000 thousand olive trees” (paragraph 68), “as will as” (paragraph 68), and “Only a separation route based on the path of law, will lead the state…” (paragraph 86). Whether these are in the translation as published or are text-copy artefacts is not established; the slips in lines 1-503 noted earlier were checked at the byte level in the text copy and are present there, as are the paragraph 50, 60, 68 and heading slips checked in this part.

Coverage

lines 1-1006 of 1006, read in full.

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