Title Beit Sourik Village Council v. The Government of Israel
Publisher Israel: Supreme Court
Author Supreme Court of Israel
Publication Date 30 May 2004
Country Israel
Topics Terrorism
Citation / Document Symbol HCJ 2056/04
Cite as Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04, Israel: Supreme Court, 30 May 2004, available at: http://www.refworld.org/docid/4374ac594.html [accessed 22 August 2014]
Comments The Supreme Court of Israel ordered that the route of sections of a wall in the area of Judea and Samaria ("the West Bank") be changed in order to avoid unnecessary hardship to the local Palestinian population. President A. Barak delivered the opinion of the Court. Israel, as noted by the Court, has been holding the West Bank in belligerent occupation since 1967. Israel began a political process with the PLO in 1993 at which time it signed agreements to transfer control of parts of the area to the Palestinian Authority. Negotiations continued, talks were held at Camp David in the United States, and these talks failed in July 2000. According to the numbers presented by Israel to the Court, more than 8200 attacks on Israeli civilians were carried out in the West Bank area following the failure of the Camp David talks (from September 2000 to April 2004). In response to these attacks, Israel carried out several military operations and began plans for erecting a wall to prevent terrorist infiltration. The location of this wall that now passes through areas west of Jerusalem is the subject of the dispute between the parties, and is approximately 40 kilometers long. Parts of the wall are being erected on land that is privately owned. Once this private land is seized, an order of compensation is in principle to be made to the landowners. The petitioners in this case are landowners and the village councils affected by the land seizure orders. The petitioners challenged the legality of the seizure orders in relation to lands located west and northwest of Jerusalem. The claimed that such orders violated both Israeli administrative law and international law. They challenged both the authority of the Israeli military to erect such a wall and the manner in which it has been erected. In particular, the petitioners claimed that the wall passes over many miles of agricultural lands that have been cultivated for generations, that the wall disrupts the lives of 35,000 village residents, blocking access to roads, schools and emergency hospital services. Members of the Council for Peace and Security joined as amici curiae and proposed a route for the wall that would result in less disruption to villages such as those of the petitioners'. The Court noted that the authority of Israel's military commander is established in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 ("the Hague Regulations") It also noted that the Geneva (IV) Convention Relative to the Protection of Civilian Persons in Time of War 1949 ("Geneva Convention IV") provides sets forth the legal framework for the question of the military commander's authority to build this wall. The petitioners argued that the construction of the wall was motivated by political rather than security concerns, and therefore in violation of the principle that occupation of land should only take place out of military necessity. The Court disagreed with the petitioners, finding that the wall was being built out of military necessity due to security concerns. The Court observed that it could not substitute its judgment for that of the military, and that "[a]ll we can determine is whether a reasonable military commander would have set out the route as this military commander did." However, the Court noted that even when done out of military necessity, the wall must take into account the needs of the local population. The Court found that the "relationship between the injury to the local inhabitants and the security benefit from the construction of the separation fence along the route, as determined by the military commander, is not proportionate. The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. ... Here are the facts: 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, and which are located on the other side of the separation fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter. ... The route of the separation fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired. The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe." The Court found that the injuries were not proportionate, and that they could be substantially decreased by an alternate route, either the route proposed by the experts of the Council for Peace and Security, or another route designed by the military commander. In sum, the Court upheld all petitions except for one, and found that 30 km of the 40 km wall in question resulted in disproportionate injury to the local population.
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