Mara'abe v Prime Minister

• Jurisdiction: Israel
• Date: 15 September 2005
• Court: Supreme Court (Israel)

Israel, Supreme Court.2

(Barak, President; Cheshin, Vice-President; Beinisch, Procaccia, Levy, Grunis, Naor, Jubran and Chayut, Justices)

Mara'abe and Others

and

Prime Minister and Others

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

International Court of Justice Advisory jurisdiction Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory Whether binding on the courts of Israel Whether to be given any weight Different factual basis put before different courts 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 which would separate Israel and Israeli towns from the occupied territories. Alfei Menashe was an Israeli settlement located in the occupied territory (approximately 4 kilometres from the Green Line which had marked the limit of Israeli authority before the 1967 conflict).4 Pursuant to the orders of the third respondent, the Commander of IDF forces in the Judea and Samaria Area (the military commander), the security barrier was built around Alfei Menashe, separating it from the surrounding country and leaving only a passage containing a road connecting the town to Israel. A number of Palestinian villages were situated in an enclave within the area enclosed by the barrier. The petitioners were residents of these villages who challenged the legality of the barrier

Held (unanimously): The first four respondents were required to reconsider the alternatives for the security barrier at Alfei Menashe to see whether it could be relocated in such a way as to reduce the injury to the lives of the Palestinian inhabitants by excluding the villages from the enclosed area.

(1) Judea and Samaria were not part of the State of Israel but occupied territory in which the authority of the military commander was derived 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. It was unnecessary to consider whether the Fourth Convention was applicable de jure as the State of Israel accepted the applicability of the humanitarian aspects of that Convention (para. 14).

(2) The military commander's duty, under Article 43 of the Hague Regulations, to preserve law and order in the occupied territory and the duty of Israel to defend the lives of Israeli citizens meant that the military commander was authorized to construct a separation barrier in this area of the occupied territory for the purpose of defending the safety of the Israeli settlers in the area. It was irrelevant whether the construction of the settlement was lawful or unlawful. The military commander could requisition the use of privately owned land for the purpose of constructing the barrier but only if it was absolutely necessary to do so. He had no authority to transfer ownership of the land in question. The human rights of the settlers and the right and duty under the law of Israel of the State of Israel to protect its nationals also led to the conclusion that the erection of the security barrier was lawful (paras. 1523).

(3) The military commander was required to balance the security needs of Israel and of its citizens in the area against the needs of the local population. Neither could be given absolute priority over the other. 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. It was not the job of the Court to substitute its judgement for that of the military commander but to examine whether the military commander had acted within the scope of his powers and, if so, whether his decision was one which a reasonable military commander could make (paras. 2432)

(4) While the Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory5 was not legally binding, it was an interpretation of international law by the highest judicial body in international law and had to be given its full appropriate weight. The International Court had reached a different conclusion regarding the legality of the barrier from that reached by the Supreme Court in the Beit Sourik case,6 although the normative foundations on which the two courts acted were the same. The main difference in the legal conclusions stemmed from the factual basis put before the two courts. In the light of the more extensive information about the security considerations put before the Supreme Court, it was not bound by the Advisory Opinion to find that every segment of the barrier was unlawful (paras. 3374).

(5) The decision to erect a security barrier to protect Alfei Menashe was within the authority of the military commander but the effect on the lives of the local inhabitants in the enclaved villages was very harmful. The question was whether that injury was proportionate. The first subtest of proportionality was satisfied but it was not clear that the second subtest was satisfied. The required effort to find a route which minimized the harm to the local inhabitants had not been made and the respondents were required to reconsider the location of the barrier to see whether the Palestinian villages could not be placed outside it and the disruption to the lives of the inhabitants reduced. Until that reconsideration had occurred, it was not necessary to consider whether the third subtest was met (paras. 75116).

Per Vice-President Cheshin: The Advisory Opinion of the International Court of Justice was not a satisfactory guide for the Supreme Court and should not have been taken into account (pp. 3202).

The following is the text of the judgment of the Court, delivered by President Barak:7

Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four kilometers beyond the Green Line. Pursuant

to the military commander's orders, a separation fence was built, surrounding the town from all sides, and leaving a passage containing a road connecting the town to Israel. A number of Palestinian villages are included within the fence's perimeter. The separation fence cuts them off from the remaining parts of the Judea and Samaria area. An enclave of Palestinian villages on the Israeli side of the fence has been created. Petitioners are residents of the villages. They contend that the separation fence is not legal. This contention of theirs is based upon the judgment in The Beit Sourik Case (HCJ 2056/04 Beit Sourik Village Council v. The Government of IsraelELR, 58(5) PD 807). The petition also relies upon the Advisory Opinion of the International Court of Justice at The Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 ILM 1009 (2004)) [see p. 37 above]. Is the separation fence legal? That is the question before us.

A. THE BACKGROUND AND THE PETITION

1. Terrorism and the Response to It

1. In September 2000 the second intifada broke out. A mighty attack of acts of terrorism landed upon Israel, and upon Israelis in the Judea, Samaria, and Gaza Strip areas (hereinafter the area). Most of the terrorist attacks were directed toward civilians. They struck at men and at women; at elderly and at infant. Entire families lost their loved ones. The attacks were designed to take human life. They were designed to sow fear and panic. They were meant to obstruct the daily life of the citizens of Israel. Terrorism has turned into a strategic threat. Terrorist attacks are committed inside of Israel and in the area. They occur everywhere, including public transportation, shopping centers and markets, coffee houses, and inside of houses and communities. The main targets of the attacks are the downtown areas of Israel's cities. Attacks are also directed at the Israeli communities in the area, and at transportation routes. Terrorist organizations use a variety of means. These include suicide attacks (guided human bombs), car bombs, explosive charges, throwing of Molotov cocktails and hand grenades, shooting attacks, mortar fire, and rocket fire. A number of attempts at attacking strategic targets (mega-terrorism) have failed. Thus, for example, the intent to topple one of the Azrieli towers in Tel Aviv using a car bomb in the parking lot was frustrated (April 2002). Another attempt which failed was the attempt to detonate a truck in the gas tank farm at Pi Glilot (May 2003). Since the onset of these terrorist acts, up until mid July 2005, almost one thousand...