Israeli Supreme Court opinions on the West Bank Barrier

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Israeli West Bank Barrier, October 31, 2006 West Bank barrier 0996.jpg
Israeli West Bank Barrier, October 31, 2006

On two occasions the Israeli Government has been instructed by the Supreme Court of Israel (SCI) to alter the route of the barrier to ensure that negative effects on Palestinians would be minimized and proportional. [1]

Israel country in the Middle East

Israel, officially the State of Israel, is a country in Western Asia, located on the southeastern shore of the Mediterranean Sea and the northern shore of the Red Sea. It has land borders with Lebanon to the north, Syria to the northeast, Jordan on the east, the Palestinian territories of the West Bank and Gaza Strip to the east and west, respectively, and Egypt to the southwest. The country contains geographically diverse features within its relatively small area. Israel's economic and technological center is Tel Aviv, while its seat of government and proclaimed capital is Jerusalem, although the state's sovereignty over Jerusalem has only partial recognition.

The Supreme Court is the highest court in Israel. It has ultimate appellate jurisdiction over all other courts, and in some cases original jurisdiction.

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Israeli Supreme Court decision of 2004

In February 2004, Israel's High Court of Justice [2] began hearing petitions from two Israeli human rights organizations, the Hamoked Centre for the Defense of the Individual and the Association for Civil Rights in Israel, against the building of the barrier, referring to the distress it will cause to Palestinians in the area. The Israeli High Court of Justice has heard several petitions related to the barrier, sometimes issuing temporary injunctions or setting limits on related Israeli activities.

Human rights Inalienable fundamental rights to which a person is inherently entitled

Human rights are "the basic rights and freedoms to which all humans are entitled" Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life, liberty, and property, freedom of expression, pursuit of happiness and equality before the law; and social, cultural and economic rights, including the right to participate in science and culture, the right to work, and the right to education.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Association for Civil Rights in Israel organization

The Association for Civil Rights in Israel (ACRI) was created in 1972 as an independent, non-partisan not-for-profit organization with the mission of protecting human rights and civil rights in Israel and the territories under its control. ACRI is Israel’s oldest and largest human rights organization. Headquartered in Tel Aviv, with offices in Jerusalem, Nazareth and Be'er Sheva, the organization promotes transparency and accountability in government.

The most important case was a petition brought in February 2004 by Beit Sourik Village Council, and responded to by the Government of Israel and the Commander of the IDF Forces in the West Bank, concerning a 40 km stretch of existing and planned barrier north of Jerusalem. Several other people and organizations also made submissions. After a number of hearings, judgment was made on June 30 [3] The court agreed with both parties that "The general point of departure of all parties – which is also our point of departure – is that Israel holds the area in belligerent occupation (occupatio bellica), "and that "military administration, headed by the military commander, continues to apply" flowing from "the principles of the Israeli administrative law" and "provisions of public international law... established principally in..." the Hague Conventions. [3] The court did not rule on "[t]he question of the application of the Fourth Geneva Convention" because "[t]he question is not before us now, since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review." [3]

Israel Defense Forces combined military forces of Israel

The Israel Defense Forces, commonly known in Israel by the Hebrew acronym Tzahal, are the military forces of the State of Israel. They consist of the ground forces, air force, and navy. It is the sole military wing of the Israeli security forces, and has no civilian jurisdiction within Israel. The IDF is headed by its Chief of General Staff, the Ramatkal, subordinate to the Defense Minister of Israel; Lieutenant General Gadi Eizenkot has served as Chief of Staff since 2015.

West Bank Part of the Palestinian territories near the Mediterranean coast of Western Asia

The West Bank is a landlocked territory near the Mediterranean coast of Western Asia, bordered by Jordan to the east and by the Green Line separating it and Israel on the south, west and north. The West Bank also contains a significant section of the western Dead Sea shore. The West Bank was the name given to the territory that was captured by Jordan in the aftermath of the 1948 Arab–Israeli War, and subsequently annexed in 1950 until 1967 when it was occupied by Israel during the 1967 Six-Day War.

Jerusalem City in the Middle East

Jerusalem is a city in the Middle East, located on a plateau in the Judaean Mountains between the Mediterranean and the Dead Sea. It is one of the oldest cities in the world, and is considered holy to the three major Abrahamic religions—Judaism, Christianity, and Islam. Both Israel and the Palestinian Authority claim Jerusalem as their capital, as Israel maintains its primary governmental institutions there and the State of Palestine ultimately foresees it as its seat of power; however, neither claim is widely recognized internationally.

The first claim made by the petitioners was that construction of the barrier was itself illegal. The court ruled that the construction of the barrier for security reasons would be legal even though it would be illegal for political, economic, or social purposes. Since the court accepted the respondent's argument that the part of the barrier under discussion was designed for security purposes, this claim of the petitioners was lost.

The petitioners "by pointing to the route of the Fence, attempt to prove that the construction of the Fence is not motivated by security considerations, but by political ones" argued that if the Fence were primarily motivated by security considerations, it would be constructed on the Green Line. The court rejected their claims, stating: "We cannot accept this argument. The opposite is the case: it is the security perspective – and not the political one – which must examine a route based on its security merits alone, without regard for the location of the Green Line" (Article 30) and noted that "The commander of the area detailed his considerations for the choice of the route. He noted the necessity that the Fence pass through territory that topographically controls its surroundings, that, in order to allow surveillance of it, its route be as flat as possible, and that a 'security zone' be established which will delay infiltration into Israel. These are security considerations par excellence. ... We have no reason not to give this testimony less than full weight, and we have no reason not to believe the sincerity of the military commander." (Article 29)

The Green Line, or (pre-) 1967 border or 1949 Armistice border, is the demarcation line set out in the 1949 Armistice Agreements between the armies of Israel and those of its neighbors after the 1948 Arab–Israeli War. It served as the de facto borders of the State of Israel from 1949 until the Six-Day War in 1967.

The second claim made by the petitioners was that the route of the barrier in the region covered by the petition "illegally infringed on the rights of the Palestinian inhabitants". In this case the court ruled that the existing and planned route failed the principle of "proportionality" in both Israeli and international law: that harm caused to an "occupied population must be in proportion to the security benefits". On the contrary, the court listed ways in which the barrier route "injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law". Accordingly, the court ordered that a 30 km portion of the existing and planned barrier must be rerouted.

Although many in the Israeli government and security establishment reacted with anger to the court's ruling, the public reaction of the government was one of satisfaction that the court had considered the barrier legal in principle. Prime Minister Sharon promised that the court's order would be followed.

Israeli Supreme Court decision of 2005

The Israeli Supreme Court (sitting as "High Court of Justice") in the case of Palestinian petitioners against the Government of Israel determined that the government must find an alternative route to lessen the effect on the rights of the resident Palestinian civilians. The petition to the court was submitted on behalf of five villages that are currently trapped in an enclave created by the existing route of the barrier. The court also ruled that the Advisory Opinion issued by the International Court of Justice in The Hague (which relates to the legal status of the barrier) is not legally binding in Israel. The ruling is the second principled ruling regarding the route of the separation barrier (the first was a ruling on the case of Beit Sourik). The petition which was deliberated on by an expanded panel of nine judges, headed by the President of the Supreme Court, Aharon Barak, was directed against the route of the barrier in the area of the Alfei Menashe enclave, to the south and east of Qalqilyah. The court conducted a review of accounts by the IDF, Israelis architects, Palestinian petitioners, military experts and the International Court of Justice, and ruled that the Government of Israel must find an alternative route to lessen the effect on the rights of the resident Palestinian civilians:

Alfei Menashe Place in West Bank, Israel

Alfei Menashe is an Israeli settlement located in the seam zone on the western edge of the central West Bank. It was granted local council status in 1987. In 2017 its population was 7,801.

Therefore, we turn the order nisi into an order absolute in the following way: (respondents) must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent. In this context, the alternative by which the enclave will contain only Alfei Menashe and a connecting road to Israel, while moving the existing road connecting Alfei Menashe to Israel to another location in the south of the enclave, should be examined.

The court took upon itself the job of examining the fence section by section, even in places where it has already been completed. The International Court of Justice in The Hague determined that all parts of the barrier not on the green line violates international law because it has been built in occupied territory, the Supreme Court determined that the state is entitled to defend itself and its citizens, even in territories defined as "under belligerent occupation" according to the 4th Geneva convention - but it cannot build a fence in order to annex land.

The court conclusion is different from that of the International Court of Justice. According to the Supreme Court:

International Court of Justice primary judicial organ of the United Nations

The International Court of Justice (ICJ) sometimes called the World Court, is the principal judicial organ of the United Nations (U.N.). It settles legal disputes submitted by states and gives advisory opinions on legal issues referred by authorized U.N. organs and specialized agencies. Through its opinions and rulings, the ICJ also serves as a source of international law.

The main difference between the two judgements stems primarily from the difference in the factual basis upon which each court made its decision. Once again, the simple truth is proven: Facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur). The ICJ drew the factual basis for its opinion from the Secretary-General's report, his written statement, the Dugard report, and the Zeigler report. The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other.

The ruling by the court will affect roughly 40 different petitions which are now pending before the court asking for changes of the barrier route in several additional sections.

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Seam Zone is a term used to refer to a land area in the Israeli-occupied West Bank located east of the Green Line and west of Israel's separation barrier, populated largely by Israelis in settlements such as Alfei Menashe, Ariel, Beit Arye, Modi'in Illit, Giv'at Ze'ev, Ma'ale Adumim, Beitar Illit and Efrat.

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References

  1. ↑ , .
  2. ↑ "Archived copy". Archived from the original on 2014-05-05. Retrieved 2014-05-15.CS1 maint: Archived copy as title (link) Israel Supreme court decisions
  3. 1 2 3 Aharon Barak (June 30, 2004). "Beit Sourik Village Council vs. The Government of Israel and Commander of the IDF Forces in the West Bank" (RTF). Supreme Court of Israel. Retrieved September 2, 2014.

Israeli government and courts

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