Judgment of the High Court of Justice in Beit Sourik
1 January 2011
On 26 February 2004, residents of several villages northwest of Jerusalem, among them Beit Sourik, petitioned the High Court of Justice in opposition to the route of the Separation Barrier planned for their area. The Council for Peace and Security (an Israeli NGO) joined the petitioners and submitted an opinion regarding the route set by the defense establishment, and suggested an alternate route closer to the Green Line that would significantly reduce the injury to the local residents.
The High Court gave its decision on 30 June 2004. The three justices - President Aharon Barak, Eliahu Matza, and Mishel Heshin - held that thirty of the forty kilometers of the barrier's route involved in the petition (the area between Givat Ze'ev and Maccabim) was illegal and that the state must change the route. The judgment discussed at length two questions: whether the military commander had the power to seize private land to build the Separation Barrier, and whether the barrier's route in the relevant section was lawfully set.
In examining these questions, the justices discussed reasons that could provide the legal basis for actions to be taken by the defense establishment in building the barrier. The Court assumed that the West Bank is occupied territory, subject to international humanitarian law: the Hague Regulations, of 1907, and the humanitarian provisions of the Fourth Geneva Convention (as defined by Israel). On this point, the justices held:
We accept that the military commander cannot order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to "annex" territories to the State of Israel.. Indeed, the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other. In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state. (Par. 27)
Based on this determination, the justices found that "construction of the fence comes within this framework," in that the decision was made in light of legitimate military needs. However, as it has done for many years, the justices ignored the case law on the question of the illegality, in international law, of the settlements that Israel established in the West Bank. Thus, the High Court did not examine the effect of this illegal action on the legitimacy of the considerations underlying construction of the barrier.
According to the judgment, the fact that the barrier is motivated by legitimate security concerns does not release the military commander from his duty to choose a "proportionate" route that balances between security and the inhabitants' needs. The judgment states that most of the route in the area under review is disproportionate because it severely impairs the residents' fabric of life:
The injury caused by the separation fence is not restricted to the lands of the inhabitants and to their access to these lands. The injury is of far wider a scope. It strikes across the fabric of life of the entire population. In many locations, the separation fence passes right by their homes. In certain places (like Beit Sourik), the separation fence surrounds the village from the west, the south, and the east. (Part. 94)
After the High Court gave its decision, Prime Minister Ariel Sharon directed the defense establishment to review the entire route of the Separation Barrier and to conform it to the spirit of the Court's judgment. The new route, which was proposed by the defense establishment in September 2004, was approved by the Cabinet on 20 February 2005.
