Beit Sourik Village Council v Israel

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel Supreme Court.2

(Barak, President; Mazza, Vice-President; and Cheshin, Justice)

Beit Sourik Village Council
and
Government of Israel and Commander of the IDF Forces in the West Bank

War and armed conflict Belligerent occupation West Bank territories occupied by Israel since 1967 Whether the law of belligerent occupation still applicable Hague Regulations on Land Warfare, 1907 Whether declaratory of customary international law Geneva Convention No IV respecting the Protection of Civilian Persons, 1949 Whether applicable Powers of occupation authorities Taking of land Construction of security barrier Whether permitted Whether proportionate

Relationship of international law and municipal law Treaties Customary law General principles Proportionality Whether a general principle of international law Applicability in Israeli courts Conditions of proportionality The law of Israel

Summary: The facts: Following the 1967 conflict between Israel and various Arab States, Israel held the lands of the West Bank (referred to in the judgment as Judea and Samaria) as a belligerent occupant. In the aftermath of a series of terrorist attacks against Israeli targets, the Government of Israel decided to build a barrier3 to prevent attacks against Israeli towns emanating from the occupied territories. Much of this barrier was to be built in the occupied territories, some of it on privately owned land which was to be requisitioned for the purpose. The petitioners challenged the orders requisitioning land in the area in and around the village of Beit Sourik. They contended that the orders were contrary to international law and to Israeli administrative law.

Held (unanimously): The petitions were granted in respect of the majority of the orders concerned. The orders were nullified on the ground that their effect on the local inhabitants was disproportionate.

(1) The area to which the orders related was occupied territory and the authority of the military commander who had issued the requisition orders flowed from the international law of belligerent occupation. That law was to be found in the Hague Regulations on the Laws and Customs of War on Land, 1907, which reflected customary international law, and the humanitarian provisions of the Fourth Geneva Convention, 1949 (para. 23).

(2) The decision to build the security barrier was motivated by security concerns, not political considerations. The military commander was authorized by the international law of belligerent occupation to take possession of land if this was necessary to meet the needs of the army of occupation. He was required to consider the needs of the local population and to pay compensation, but provided that those conditions were met, requisition would be lawful. To the extent that construction of the security fence was a military necessity, it was permitted by international law (paras. 2732).

(3) The authority of the military commander was, however, restricted by the law of belligerent occupation. That law required a balance to be struck between military considerations, including the need to protect Israel and its citizens, and the needs of the population of the occupied territory. It imposed both negative obligations not to harm the population and positive obligations to protect the population (paras. 335).

(4) Proportionality was a recognized principle of general international law, as well as one of Israeli administrative law. It provided the standard for balancing considerations of military necessity and the needs of the local inhabitants. Proportionality required that three subtests be satisfied: (i) the means used must rationally lead to the realization of the objective; (ii) those means must injure the individual as little as possible; and (iii) the damage caused to the individual must be of proper proportion to gain brought about (paras. 403).

(5) In the present case, the majority of the orders requisitioning land failed these proportionality tests.

(a) Special weight had to be given to the military judgement of the military commander. The petitioners had not established that the route chosen for the separation barrier was not based on proper military considerations. The orders therefore satisfied the first subtest (paras. 467).

(b) They also satisfied the second subtest. There was no alternative route which fulfilled to a similar extent the security needs, while causing less injury to the inhabitants (para. 58).

(c) However, the majority of the orders failed the third subtest. The injury which they caused the local inhabitants was out of proportion to the security benefits. The selection of a different route for the barrier could greatly reduce the effect on the inhabitants (paras. 602, 67, 71, 76, 80 and 825).

The text of the judgment of the Court, delivered by President Barak, with whom the other members of the Court agreed, commences on the opposite page.4

The Commander of the IDF Forces in Judea and Samaria issued orders to take possession of plots of land in the area of Judea and Samaria. The purpose of the seizure was to erect a separation fence on the land. The question before us is whether the orders and the fence are legal.

Background

1. Since 1967, Israel has been holding the areas of Judea and Samaria [hereinafter the area] in belligerent occupation. In 1993 Israel began a political process with the PLO, and signed a number of agreements transferring control over parts of the area to the Palestinian Authority. Israel and the PLO continued political negotiations in an attempt to solve the remaining problems. The negotiations, whose final stages took place at Camp David in Maryland, USA, failed in July 2000.

From respondents' affidavit in answer to order nisi we learned that, a short time after the failure of the Camp David talks, the Israeli-Palestinian conflict reached new heights of violence. In September 2000, the Palestinian side began a campaign of terror against Israel and Israelis. Terror attacks take place both in the area and in Israel. They are directed against citizens and soldiers, men and women, elderly and infants, regular citizens and public figures. Terror attacks are carried out everywhere: in public transportation, in shopping centers and markets, in coffee houses and in restaurants. Terror organizations use gunfire attacks, suicide attacks, mortar fire, Katyusha rocket fire, and car bombs. From September 2000 until the beginning of April 2004, more than 780 attacks were carried out within Israel. During the same period, more than 8,200 attacks were carried out in the area.

The armed conflict claimed (as of April 2004) the lives of 900 Israeli citizens and residents. More than 6,000 were injured, some with serious wounds that have left them severely handicapped. The armed conflict has left many dead and wounded on the Palestinian side as well. Bereavement and pain wash over us.

In HCJ 7015/02 Ajuri v. IDF Commander, at 358, I described the security situation:

2. These terror acts have caused Israel to take security precautions on several levels. The government, for example, decided to carry out various military operations, such as operation Defensive Wall (March 2002) and operation Determined Path (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent terror attacks. See HCJ 3239/02 Marab v. IDF Commander in the West Bank, at 355; HCJ 3278/02 Center for Defense of the Individual v. IDF Commander, at 389. These combat operations which are not regular police operations, but embody all the characteristics of armed conflict did not provide a sufficient answer to the immediate need to stop the terror. The Ministers' Committee on National Security considered a list of steps intended to prevent additional terror acts and to deter potential terrorists from participating in such acts. SeeAjuri, at 359. Despite all these measures, the terror did not come to an end. The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence.

The Decision to Construct the Separation Fence

3. The Ministers' Committee for National Security reached a decision (on April 14, 2002) regarding deployment in the Seamline Area between Israel and the area. See HCJ 8532/02 Ibraheem v. Commander of the IDF Forces in the West Bank. The purpose behind the decision was to improve and strengthen operational capability in the framework of fighting terror, and to prevent the penetration of terrorists from the area of Judea and Samaria into Israel. The IDF and the police were given the task of preventing the passage of Palestinians into the State of Israel. As a temporary solution, it was decided to erect an obstacle in the three regions found to be most vulnerable to the passage of terrorists into the Israel: the Umm El-Fahm region and the villages divided between Israel and area (Baka and Barta'a); the Qalqilya-Tulkarm region; and the Greater Jerusalem region. It was further decided to create a team of Ministers, headed by the Prime Minister, which would examine long-term solutions to prevent the infiltration of Palestinians, including terrorists, into Israel.

4. The Government of Israel held deliberations on the Seamline Area program (June 23, 2002). The armed services presented their proposal to erect an obstacle on the Seamline. The government approved stage 1 of the project, which provides a solution to the operational problem of terrorist infiltration into the north of the country, the center of the country and the Jerusalem area. The obstacle that was approved begins in the area of the Salam village, adjacent to the Megiddo junction, and continues until the trans-Samaria road. An additional obstacle in the Jerusalem area was also approved. The entire obstacle, as approved, is 116 km long. The government decision provided:

5. The Ministers' Committee on National Security approved (August 14, 2002) the final location...

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