Mara'abe v. The Prime Minister of Israel

The Supreme Court Sitting as the High Court of Justice. The Supreme Court of Israel ("the Court"), sitting as a High Court of Justice, unanimously issued an order absolute, which requires the state to 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." This judgment concerns the legality of the wall or barrier* in the area of Alfei Menashe, an Israeli settlement in the West Bank, located 4 km from the Green Line. According to Israel, the separation fence, which surrounds five Palestinian villages, was built to prevent terrorist infiltration into the State of Israel. The villagers received permanent resident cards, which allow them to enter the enclave. Palestinians who are not residents of the villages have to obtain permits in order to enter the area. The petitioners, who are residents of the villages within the enclave, challenge the legality of the wall, arguing that the military commander is not authorized to order the construction of such a barrier. The petitioners base their claim on the Advisory Opinion: Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory ("the Advisory Opinion") rendered by the International Court of Justice ("the ICJ"). The petitioners also challenged the validity of the wall under The Beit Sourik Case rendered by the Supreme Court of Israel, because it does not meet the proportionality test established in that case. The Respondents contend that "the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case," and that the ICJ Advisory Opinion is not of relevance because it was decided on facts other than those established in The Beit Sourik Case. The Court reiterated its findings in The Beit Sourik Case, in which it held that a "military commander is not authorized to order the construction of the separation fence if his reasons are political." The Court further stated that in order to erect such a wall, taking possession of land belonging to Palestinians is necessary. According to the Regulations Concerning the Laws and Customs of War on Land ("the Hague Regulations") and the Geneva (IV) Convention Relative to the Protection of Civilian Persons in Time of War 1949, the taking of possession must be for "needs of the army of occupation", and is only allowed if it is "absolutely necessary by military operation." The Court concluded that the military commander's authority entails actions taken in order to ensure public order and security, and also comprises actions aimed at protection of Israeli settlers. In its Advisory Opinion, the ICJ held that the right to self-defense under Article 51 of the Charter of the United Nations did not have any relevance to the case, because the attacks did not derive from another State. The ICJ also noted that the attacks originated within the territory occupied by Israel, where it exercises control. The Court found the ICJ ruling "hard to come to terms with," and stated that it did not need to "thoroughly examine" the issue, as it held that "regulation 43 of the Hague Regulations authorizes the military commander to take all necessary action to preserve security." The Court then compared the Advisory Opinion to The Beit Sourik Case, and concluded that the ICJ, too, had held that the "harm to the Palestinian residents would not violate international law if the harm was caused as a result of military necessity, national security requirements, or public order." According to the Court, the difference in result "stems from the difference in the factual basis laid before the court. The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion." Moreover, the Court stated that the ICJ considered the "entire route" of the wall, whereas The Beit Sourik decision only pertained to a part of it. The Court then came to the question of what effect the Advisory Opinion would have "on the future approach of the Supreme Court on the question of the legality of the separation fence according to international law as determined in The Beit Sourik Case?" It answered this question as follows: [T]he Supreme Court of Israel shall give the full appropriate weight to the norms of international law, as developed and interpreted by the ICJ in its Advisory Opinion. However, the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law. The Israeli Court shall continue to examine each of the segments of the fence, as they are brought for its decision and according to its customary model of proceedings; it shall ask itself, regarding each and every segment, whether it represents a proportional balance between the security-military need and the rights of the local population." With respect to the existing route of the wall around Alfei Menashe, the Court found that the military commander had the authority to erect the wall, since the building of the wall was merely motivated by a "security consideration", and not by political reasons. The petitioners' request that the wall be built on the Green Line was rejected due to the security-military considerations laid out by the Respondents. The Court stated: "[A]ny route of the fence must take into account the need to provide security for the?residents of Alfei Menashe." The Court then had to decide whether the military commander had exercised his authority proportionately. With respect to the existing route of the wall the Court determined that "the details of an alternative route have not been examined, in order to ensure security with a lesser injury to the residents of the village." For this reason, the route of the fence did not meet the proportionality test, and the Respondent must reconsider the existing route.