Israel High Court Ruling Docket H.C.J. 7957/04
International Legality of the Security Fence and Sections near Alfei Menashe
 September 15, 2005

Introduction

Following the outbreak of Palestinian Arab violence in 2002, Israel began construction of a barrier that would separate most of the West Bank (Judea and Samaria) from areas inside Israel. The barrier  consists primarily of a chain-link fence and in parts (about 10%) of a wall of prefabricated concrete. The purpose of the fence was to prevent infiltration of terrorists and stop the wave of suicide bombings which took hundreds of lives in Israel. Palestinians insisted that the fence is an "Apartheid Wall" designed to de-facto annex parts of the West Bank to Israel. In fact, the fence encloses about 10% of the land of the West Bank. They took their case to the International Court of Justice. Israel refused to present evidence directly, arguing that the court had no jurisdiction. Several countries submitted briefs to that effect. The court however, ruled for the Palestinians and they won a ruling that seemingly insists that in principle the fence is illegal as long as any part of it is built beyond the 1967 Green Line. (Text of ICJ Ruling on the Israeli Security Wall (Barrier, Fence):

The ruling was based on several different lines of reasoning.

1- The court ruled that it had jurisdiction over the case, and that it involved only a dispute between Israel and the UN, rather than a dispute between Israel and the Palestinians or another party.

2- The court ruled that provisions of international law regarding right to self defense are inapplicable, since there is no state involved other than Israel:

3. On the other hand, the court ruled that the West Bank is occupied territory, asserting that:

          95. The Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled:  that there exists an armed conflict (whether or not a state of war has been recognized);  and that the conflict has arisen between two contracting parties.  If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.

Thus, to achieve its finding, the court held  at the same time  that there exists an armed conflict, and that territories are occupied territories of another state,  but also and at the same time asserted that Israel has no right to defend itself in that conflict, because there is no other state involved.

4. The court asserted that Israel had other ways to defend itself:

State of necessity - Customary international law - Conditions - Construction of the wall not the only means to safeguard Israel's interests against the peril invoked.

However, it did not discuss those other ways. The court did not examine in detail the material relevant to specific violations of rights. It provided some instances of allegations before the court, some of which were untrue. On the other hand, the judgment was based on the sweeping dictum that in principle, any security wall section built in the West Bank would be illegal. Given the assertion that Israel had no right to self defense, it would seem that this judgment would be true according to the court,  regardless of the consequences to Palestinians or the security benefit.

The Israeli Supreme Court, sitting as the High Court of Justice, reviewed the legal issues in deciding the legality of a particular section of the fence. The court ruled that the disputed sections would have to be rerouted to take into account the needs of the population. At the same time, the court ruled that the ICJ ruling was flawed, because it did not take into account the specifics of different sections of the route. In this, the court relied a great deal on the dissenting opinion of Justice Buergenthal of the International Court of Justice and similar points made in the opinion of Judge Ozawa.

The court compares the ICJ decision with the Israeli courts ruling in a previous case regarding the fence and notes that the previous opinion quotes:

"To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.  The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.  The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments" (paragraph 137).

 The court continues:

From this passage – as well as the rest of the opinion – it appears that, based on the data before the ICJ, it was not persuaded that the route of the wall – which severely impedes the rights of the Palestinian residents – is necessary for achieving the security objectives which Israel contended.  In contrast, the Supreme Court in The Beit Sourik Case ruled that there is a military necessity to erect the fence.  However, it ruled that some discussed segments of the fence route violate the Palestinian residents' rights disproportionately.  What is the basis of this difference between the two judgments?

We can compare the above directly with the text of the  Buergenthal dissent:

7. In summarizing its finding that the wall violates international humanitarian law and international human rights law, the Court has the following to say:

  “To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.” (Para. 137.)

 The Court supports this conclusion with extensive quotations of the relevant legal provisions and with evidence that relates to the suffering the wall has caused along some parts of its route. But in reaching this conclusion, the Court fails to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security. It is true that in dealing with this subject the Court asserts that it draws on the factual summaries provided by the United Nations Secretary-General as well as some other United Nations reports. It is equally true, however, that the Court barely addresses the summaries of Israel’s position on this subject that are attached to the Secretary-General’s report and which contradict or cast doubt on the material the Court claims to rely on. Instead, all we have from the Court is a description of the harm the wall is causing and a discussion of various provisions of international humanitarian law and human rights instruments followed by the conclusion that this law has been violated. Lacking is an examination of the facts that might show why the alleged defences of military exigencies, national security or public order are not applicable to the wall as a whole or to the individual segments of its route. The Court says that it “is not convinced” but it fails to demonstrate why it is not convinced, and that is why these conclusions are not convincing.

Indeed, Justice Cheshin notes:

I can only agree with Judge Buergenthal, and partly with Judge Higgins, Judge Kooijmans, and Judge Owada, that the factual basis upon which the judgment was built is inadequate to the point that it is inappropriate to pass judgment upon it, even by way of opinion.  As Judge Buergenthal wrote (paragraph 1 of his opinion)...

But in fact, Higgins, Kooijmans and Owada voted for the court's advisory opinion despite their reservations.

The Israeli High Court chose to ignore, more or less, those parts of the ICJ ruling that seem to state that Israel has no right to self defense vis-a-vis the Palestinians, and that any part of the fence built in occupied territory is in principle illegal.

Ami Isseroff

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H.C.J. 7957/04

Petitioners:                                            1.       Zaharan Yunis Muhammad Mara'abe

2.            Morad Ahmed Muhammad Ahmed

3.            Muhammad Jamil Mas'ud Shuahani

4.            Adnan Abd el Rahman Daud Udah

5.            Abd el Rahim Ismail Daud Udah

6.            Bassem Salah Abd el Rahman Udah

7.            The Association for Civil Rights in Israel

v.

Respondents:                                        1.         The Prime Minister of Israel

2.                  The Minister of Defense

3.                  The Commander of IDF Forces in the Judea and Samaria Area

4.                  The Separation Fence Authority

5.                  The Alfei Menashe Local Council

The Supreme Court Sitting as the High Court of Justice

[September 12 2004; March 31 2005; June 21 2005]

Before President A. Barak, Vice President M. Cheshin, Justice D. Beinisch, Justice A. Procaccia, Justice E. Levy, Justice A. Grunis, Justice M. Naor, Justice S. Jubran  & Justice E. Chayut

Petition for an Order Nisi

For Petitioners:                         Michael Sfard

For Respondents no. 1-4:         Anar Helman

                                                Avi Licht

For Respondent 5:                    Baruch Heikin

JUDGMENT

President A. Barak:

Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four kilometers beyond the Green Line.  Pursuant 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 Israel, 58(5) P.D. 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 IL M 1009 (2004)).  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 attacks have been carried out within Israel.  In Judea and Samaria, 9000 attacks have been carried out.  Thousands of attacks have been carried out in the Gaza Strip.  More than one thousand Israelis have lost their lives, approximately 200 of them in the Judea and Samaria area.  Many of the injured have become severely handicapped.  On the Palestinian side as well, the armed conflict has caused many deaths and injuries.  We are flooded with bereavement and pain.

2.         Israel took a series of steps to defend the lives of her residents.  Military operations were carried out against terrorist organizations.  These operations were intended to defeat the Palestinian terrorist infrastructure and prevent reoccurrence of terrorist acts (see HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57(2) P.D. 349, hereinafter – Marab; HCJ 3278/02 The Center for Defense of the Individual v. The Commander of IDF Forces in the West Bank Area, 57(1) P.D. 385.  These steps did not provide a sufficient answer to the immediate need to halt the severe terrorist attacks.  Innocent people continued to pay with life and limb.  I discussed this in The Beit Sourik Case:

"These terrorist acts committed by the Palestinian side have led Israel to take security steps of various levels of severity. Thus, the government, for example, decided upon 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 reoccurrence of terror attacks . . .  These combat operations – which are not regular police operations, rather bear all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the severe acts of terrorism. The Committee of Ministers on National Security considered a series of steps intended to prevent additional acts of terrorism and to deter potential terrorists from committing such acts . . . 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 (Id., at p. 815).

Against this background, the idea of erecting a separation fence in the Judea and Samaria area, which would make it difficult for terrorists to strike at Israelis and ease the security forces' struggle against the terrorists, was formulated.

3.         The construction of the separation fence was approved by the government on June 23 2002.  At the same time, phase A of the fence was approved.  Its length is 116 km.  It begins in the area of the Salem village, adjacent to the Megiddo junction, and continues to the Trans-Samaria Highway adjacent to the Elkana community.  An additional obstacle in the Jerusalem area (approximately 22 km long) was also approved.  These were intended to prevent terrorist infiltration into the north and center of the country, and into the Jerusalem area.  The government decision stated, inter alia,

"(3) In the framework of phase A – to approve construction of security fences and obstacles in the 'seamline area' and in the surroundings of Jerusalem, in order to decrease infiltrations by terrorists from the Judea and Samaria areas for the purpose of attacks in Israel.    

(4) The fence, like the other obstacles, is a security means.  Its construction does not reflect a political border, or any other border.

(5) . . .

(6) The exact and final route of the fence shall be determined by the Prime Minister and the Minister of Defense . . . the final route shall be presented to the Committee of Ministers on National Security or to the government."

After that (December 2002) the construction of phase B of the fence was approved.  That phase began at Salem village, heading east until the Jordan river (approximately 60 km).  This phase also includes an offshoot starting at Mt. Avner (adjacent to the village of Al Mutilla) in the southern Gilboa, heading south toward Thaisar village.  After about one year (on October 1 2003) the government decided to construct phases C and D of the fence.  Phase C includes the fence between Elkana and the Camp Ofer military base, a fence east of the Ben Gurion airport and north of planned highway 45, and a fence protecting Israeli communities in Samaria (including Ariel, Emanuel, Kedumim, Karnei Shomron).  Phase D includes the area from the Etzion Bloc southward to the southern Hebron area.  The government decision stated, inter alia:

"(2) The obstacle built pursuant to this decision, like its other segments in the 'seamline area', is a security means for preventing terrorist attacks, and does not reflect a political border, or any other border.

(3) Local alterations of the obstacle route or of construction necessary for the overall planning of the route, shall be brought for approval to the Minister of Defense and the Prime Minister.

(4) . . .

(5) . . .

(6) During the detailed planning, all efforts shall be made to minimize, to the extent possible, disturbance liable to be caused to the daily lives of Palestinians as a result of the construction of the obstacle." 

The separation fence discussed in the petition before us is part of phase A of fence construction.  The separation fence discussed in The Beit Sourik Case is part of phase C of fence construction.  The length of the entire fence, including all four phases, is approximately 763 km.  According to information relayed to us, approximately 242 km of fence have already been erected, and are in operational use.  28 km of it are built as a wall (11%).  Approximately 157 km are currently being built, 140 km of which are fence and approximately 17 km are wall (12%).  The building of 364 km of the separation fence has not yet been commenced, of which 361 km are fence, and 3 km are wall.

4.         The separation fence is an obstacle built of a number of components.  "In its center stands a 'smart' fence. The purpose of the fence is to alert the forces deployed along it of any attempt to cross it. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Adjacent to the fence, a service road is paved. On the internal side of the electronic fence, there are a number of roads: a trace road (a strip of sand smoothed to detect footprints of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50–70 meters.  Due to various constraints at certain points along the route, a narrower obstacle, which includes only part of the components supporting the electronic fence, will be constructed.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. . . Various means to help prevent infiltration will be erected along the route of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence" (The Beit Sourik Case, at p. 818).

5.         Parts of the separation fence are erected on private land.  Under such circumstances, there is an administrative process of issuing an order of seizure and payment of compensation for the use of the land.  The seizure order can be appealed to the military commander.  If the appeal is rejected, the landowner is given a seven day period to petition the High Court of Justice.  Since issuance of the orders, more than eighty petitions have been submitted to this Court.  Approximately half were withdrawn in light of compromise between the parties.  The other half are being heard before us.  One of those petitions is the petition before us.

6.         Since the decision to construct the fence, a constant and continual process of analysis and improvement has been taking place.  This process was intensified, of course, after the judgment in the Beit Sourik Case (given on June 30 2004).  As a result, some segments of the existing route were altered.  The planning of phases not yet constructed was changed.  When necessary, a government decision was made, ordering an alteration of the route of the fence.  Indeed, on February 20 2005, the government decided to alter the fence route.  The decision stated that it came about "after examining the implications of the High Court of Justice's ruling regarding continued work to construct the fence."  The decision further stated:

"(a) The government sees importance in the continued construction of the security fence, as a means whose efficacy - in defending the State of Israel and its residents, and in preventing the negative influence a terrorist attack is liable to have on diplomatic moves - has been proven, while ensuring minimization, to the extent possible, of the affect on the daily lives of the Palestinians, according to the standards outlined in the ruling of the High Court of Justice."

This decision included additional segments of fence, whose legal examination had not yet been completed (in the area of Western Samaria, Ma'aleh Edumim, and the Judean Desert).  As a result of the government decision, special teams were established to examine the crossings policy and the permit regime.  According to the data relayed to us, part of the separation fence is inside of Israel or on the Green Line (approximately 150.4 km, which are 19.7% of the route).  The part of the fence which is in the Judea and Samaria area leaves about 432 km2, which are about 7.8% of the area of Judea and Samaria, on the "Israeli" (western) side of the fence.  In this area live 8900 Palestinian residents, who will live under a permit regime; and 19,000 Palestinian residents in the Etzion Bloc area, where such a regime will not apply, and it will be possible to enter and exit freely, subject to security check, with no need to acquire permits or licenses of any kind.  It is worth noting that this figure includes the Gush Etzion region (about 1.2% of the area of Judea and Samaria), the "fingers of Ariel" (about 2.0% of the area of Judea and Samaria) and Ma'aleh Edumim (approximately 1.2% of the area of Judea and Samaria).  The staff work and the legal examination regarding these areas have not yet been completed.  Nor have Jerusalem's municipal territory or no-man's-land been included in these figures, since they are not in Judea and Samaria. 

7.         All territory left on the "Israeli" (western) side of the fence in the framework of phase A – that is to say, the area between the fence and the State of Israel (hereinafter – the seamline area) – were declared a closed military area, pursuant to Territory Closure Declaration no. S/2/03 (seamline area) (Judea and Samaria), 5764-2003 (of October 2 2003), issued by the Commander of IDF Forces in the Judea and Samaria Area (hereinafter – the declaration).  The seamline area in the phase A area is approximately 87 km2, and about 5600 Palestinians and 21,000 Israeli residents live in it.  The declaration forbade entrance and presence in the seamline area, while determining that the rule does not apply to Israelis or people holding permits from the military commander to enter the seamline area and be present in it. The declaration determined, regarding permanent residents, that people whose permanent residence is in the seamline area will be permitted to enter the seamline area and be present in it, subject to the requirement that they hold a written permit from the military commander testifying to the fact that their permanent place of residence is in the seamline area, and subject to the conditions determined in the permit.  The military commander issued a general permit to enter the seamline area, for holders of foreign passports, holders of permits for work in an Israeli community within the seamline area, and for those who have a valid exit permit from the area into Israel.  After about a half a year (May 27 2004), the declaration was amended (Territory Closure Declaration no. S/2/03 (Seamline Area) (Judea and Samaria) (Amendment no. 1), 5764 – 2004).  According to the amended declaration, the rule forbidding entrance and presence in the seamline area does not apply to permanent residents in the seamline area or those with a work permit from the military commander.  A general permit, for entrance into the seamline area and presence in it for any purpose, was granted to residents of the State of Israel.  Palestinians living in the seamline area were issued a "permanent resident card" testifying that they are permanent residents of the seamline area.  The permits make it possible to live in the seamline area and to move from it into the territories of the area, and back.  Palestinians who are not permanent residents of the seamline area must acquire an entry permit.  Such permits are granted for various reasons, including work, trade, agriculture, and education.

            2. The Alfei Menashe Enclave

The Alfei Menashe enclave – the topic of the petition before us – is part of phase A of the fence.  The decision regarding it was reached on June 23 2002.  The construction of the fence was finished in August 2003.  The fence circumscribes Alfei Menashe (population approximately 5650) and five Palestinian villages (population approximately 1200): Arab a-Ramadin (population approximately 250); Arab Abu-Farda (population approximately 120); Wadi a-Rasha (population approximately 120); Ma'arat a-Daba (population approximately 250), and Hirbet Ras a-Tira (population approximately 400) (see appendix).  The fence which surrounds the enclave from the north is based, on its western side, upon the fence encircling the city of Qalqiliya (population approximately 38,000) from the south.  This part of the fence passes north of highway 55, which is the enclave's connection to Israel.  The northern part of the fence surrounds Alfei Menashe, Abu-Farda, and Arab a-Ramadin.  The Alfei Menashe enclave is unique for two reasons: First, it is based, in many places, upon the separation fence around the city of Qalqiliya and the villages of Habla and Hirbet Ras Atiyeh; second, the separation fence "brings" over to the "Israeli" (western) side not only Alfei Menashe, but also the five Palestinian villages.

9.         There is one crossing and three agricultural gates in the fence surrounding the Alfei Menashe enclave, which connect the enclave to the area.  The central connection between the enclave and the area is via "crossing 109", located on the northern side of the fence, on highway 55.  Crossing 109 is close to the access point to the city of Qalqiliya, in the eastern fence surrounding Qalqiliya called DCO Qalqiliya.  This point is not staffed, except for special cases, and it allows free passage between Qalqiliya and the area.  Crossing 109 allows residents of the enclave to pass by foot and car, subject to security check, to the area and the city of Qalqiliya at all hours of the day.  There are three additional gates in the Alfei Menashe enclave fence, two agricultural, through which one can pass by foot or car.  The three gates are the Ras a-Tira gate (on the western side of the enclave, adjacent to the town of Hirbet Ras Atiyeh); the South Qalqiliya gate, and the Habla gate.  At the time the petition was submitted, the three gates were generally opened three times a day for one hour.  Now, the Ras a-Tira gate opens one hour after sunrise and is closed one hour before sunset.  There is no change in the opening hours of the other gates.  The enclave is connected, with territorial integrity, to Israel (with no checkpoint), and the crossing is made via highway 55, which connects Alfei Menashe to Israel.  The road is mainly used by Israelis traveling to and leaving Alfei Menashe and by Palestinians with permits to enter Israel, or traveling within the boundaries of the enclave.

            3.         The Petition

10.       The petition was submitted on August 31 2004.  (Original) petitioners are residents of the Ras a-Tira village (petitioners no. 1-3) and the Wadi a-Rasha village (petitioners no. 4-6).  These two villages are located southwest of Alfei Menashe.  Along with them petitioned the Association for Civil Rights in Israel (petitioner no. 7).  At a later phase petitioners' counsel submitted a letter (of March 30 2005) written by the five council heads of the villages in the enclave.  The letter is addressed to the Court.  It expresses support for the petition.  It verifies its content.  At the same time, petitioners' counsel informed us that the village council heads had granted him power of attorney to act in the name of the councils, as petitioners in the petition.

11.       Petitioners contend that the separation fence is not legal, and should be dismantled.  They argue that the military commander is not authorized to give orders to construct the separation fence.  That claim is based on the Advisory Opinion of the International Court of Justice at the Hague (hereinafter also "ICJ").  Petitioners also contend that the separation fence does not satisfy the standards determined in The Beit Sourik Case.  On this issue, petitioners argue that the fence is disproportionate and discriminatory.  Respondents ask that the petition be rejected due to a number of preliminary arguments (laches (delay), the "public" nature of the petition, and the lack of a prior plea to respondents).  On the merits, respondents argue that the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case.  The Advisory Opinion of the International Court of Justice at the Hague makes no difference in this regard, since it was based upon a factual basis different from that established in The Beit Sourik Case.  Respondents also contend that the injury to the Palestinian residents satisfies the standards determined in The Beit Sourik Case.

            4.         The Hearing of the Petition

12.       The petition was heard soon after being submitted, by President A. Barak, Vice President (emeritus) E. Mazza and Vice President M. Cheshin (on September 12 2004).  The Alfei Menashe local council was joined, at its request, as a respondent in the petition.  Further hearing of the petition was postponed, in order to allow the state to formulate its stance.  We noted that postponement of the petition does not prevent respondents from doing all they can to ease the reality of daily life for petitioners under the existing fence route.  The hearing of the petition continued (on March 31 2005) before President A. Barak, Vice President M. Cheshin and Justice D. Beinisch (who replaced Vice President E. Mazza, who retired).  After that, it was decided (on April 21 2005) that the hearing of the petition would take place together with the hearing of HCJ 1348/05 and HCJ 3290/05 (regarding the separation fence around the city of Ariel), and that the hearing of all three petitions would take place before an expanded panel of nine Justices.  The petition was thus heard before an expanded panel (on June 21 2005).  At the commencement of the hearing, it was stipulated that the court would view the hearing as if an order nisi had been granted.  Petitioners presented arguments regarding the fence's injury to the various areas of life in the villages, and extensively discussed their legal arguments regarding the illegality of the fence.  Respondents expanded upon the authority to build the fence and the steps that had been taken in order to ease the residents' lives.  In addition, Colonel (res.) Dan Tirza (head of the administration dealing with the planning of the obstacle route in the seamline area) appeared before us, and surveyed the fence route and the considerations which the route planners confronted.

            5. The Discussion Framework

13.       The parties' arguments will be examined in five parts.  In the first part we shall discuss the Supreme Court's caselaw regarding the military commander's authority, according to the law of belligerent occupation, to order the erection of the separation fence.  This caselaw was developed by this Court in scores of judgments it has handed down since the Six Day War.  In the second part we shall discuss the way this law was applied, in concrete implementation, in The Beit Sourik Case.  In the third part, we shall discuss the Advisory Opinion of the International Court of Justice at the Hague.  In the fourth part we shall discuss the Advisory Opinion's effect upon the standards in The Beit Sourik Case, and its ramifications for the normative outline as determined by this Court, and for the way this outline was implemented in The Beit Sourik Case.  Finally, we shall examine whether the separation fence at the Alfei Menashe enclave satisfies the tests of the law.

B.        The Normative Outline in the Supreme Court's Caselaw

            1.         Belligerent Occupation

14.       The Judea and Samaria areas are held by the State of Israel in belligerent occupation.  The long arm of the state in the area is the military commander.  He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832).  His power is granted him by public international law regarding belligerent occupation.  The legal meaning of this view is twofold: first, Israeli law does not apply in these areas.  They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case).  In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations).  These regulations are a reflection of customary international law.  The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  The State of Israel has declared that it practices the humanitarian parts of this convention.  In light of that declaration on the part of the government of Israel, we see no need to reexamine the government's position.  We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area, and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions.  As mentioned, seeing as the government of Israel accepts that the humanitarian aspects of The Fourth Geneva Convention apply in the area, we are not of the opinion that we must take a stand on that issue in the petition before us.  In addition to those two sources of international law, there is a third source of law which applies to the State of Israel's belligerent occupation.  That third source is the basic principles of Israeli administrative law, which is law regarding the use of a public official's governing power.  These principles include, inter alia, rules of substantive and procedural fairness, the duty to act reasonably, and rules of proportionality. "Indeed, every Israeli soldier carries in his pack the rules of customary public international law regarding the law of war, and the fundamental rules of Israeli administrative law" (HCJ 393/82 Jami'at Ascan el-Malmun el-Mahdudeh el-Masauliyeh, Communal Society Registered at the Judea and Samaria Area Headquarters v. The Commander of IDF Forces in the Judea and Samaria Area, 37(4) P.D. 785, 810; hereinafter The Jami'at Ascan Case).

            2. The Military Commander's Authority to Erect a Security Fence

15.       Is the military commander authorized, according to the law of belligerent occupation, to order the construction of a separation fence in the Judea and Samaria area?  In The Beit Sourik Case our answer was that the military commander is not authorized to order the construction of a separation fence, if the reason behind the fence is a political goal of "annexing" territories of the area to the State of Israel and to determine Israel's political border.  The military commander is authorized to order the construction of the separation fence if the reason behind its construction is a security and military one.  Thus we wrote in The Beit Sourik Case:

"the military commander is not authorized to order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories in the area to the state of Israel. The purpose of the separation fence cannot be to draw a political border. . . . the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.         . . . The passage of time, however, cannot expand the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation" (Id., at pp. 829-830). 

16.       It is sometimes necessary, in order to erect a separation fence, to take possession of land belonging to Palestinian residents.  Is the military commander authorized to do so?  The answer is that if it is necessary for military needs, the military commander is authorized to do so. So we ruled in The Beit Sourik Case:

". . . the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if that is necessary for the needs of the army. . . . He must, of course, provide compensation for his use of the land. Of course, . . . the military commander must also consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework, on the condition that it is necessary from a military standpoint.  To the extent that the fence is a military necessity, infringement of private property rights cannot, in and of itself, negate the authority to build it. . . . Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers (Id., at p. 832).

It is worth noting that construction of the separation fence is unrelated to expropriation or confiscation of land.  The latter are prohibited by regulation 46 of The Hague Regulations (see HCJ 606/78 Iyub v. The Minister of Defense, 33(2) P.D. 113, 122; hereinafter – The Iyub case).  Construction of the fence does not involve transfer of ownership of the land upon which it is built.  The construction of the fence is done by way of taking possession.  Taking of possession is temporary.  The seizure order orders its date of termination.  Taking of possession is accompanied by payment of compensation for the damage caused.  Such taking of possession – which is not related in any way to expropriation – is permissible according to the law of belligerent occupation (see regulations 43 and 52 of The Hague Regulations, and §53 of The Fourth Geneva Convention: see The Iyub case, at p. 129; HCJ 834/78 Salame v. The Minister of Defense, 33(1) P.D. 471, 472; The Iyub case, at p. 122; HCJ 401/88 Abu Rian v. The Commander of IDF Forces in the Judea and Samaria Area, 42(2) P.D. 767, 770; HCJ 290/89 Jora v. The Military Commander of the Judea and Samaria Area, 43(2) P.D. 116, 118; HCJ 24/91 Timraz v. The Commander of IDF Forces in the Gaza Strip Area, 45(2) P.D. 325, 333 – hereinafter The Timraz Case; HCJ 1890/03 The Bethlehem Municipality v. The State of Israel – The Ministry of Defense (yet unpublished) – hereinafter The Bethlehem Municipality Case; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443, 456 – hereinafter The Hess Case; see also D. Kretzmer "The Advisory Opinion: The Light Treatment of International Humanitarian Law" 99 A.J.I.L. 88, 97 (2005) – hereinafter Kretzmer; N. Keidar "An Examination of the Authority of Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier" 38 Isr. L. Rev. 247 (2005) – hereinafter Keidar).  Pursuant to regulation 52 of The Hague Regulations, the taking of possession must be for "needs of the army of occupation".  Pursuant to §53 of The Fourth Geneva Convention, the taking of possession must be rendered "absolutely necessary by military operation".  G. Von Glahn discussed the legality of taking possession of land, stating:

“Under normal circumstances an occupier may not appropriate or seize on a permanent basis any immovable private property but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity” (G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)).

The key question is, of course, whether taking possession of land is rendered "absolutely necessary by military operation" (on this question see Imseis "Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion", 99 A.J.I.L. 102 (2005), and Keidar, at p. 247).  This issue is for the military commander to decide.  J.S. Pictet discussed this point, stating:

“[I]t will be for the Occupying Power to judge the importance of such military requirements” (J.S. Pictet, Commentary IV Geneva Convention - Relative to the Protection of Civilian Persons in Time of War  302 (1958); hereinafter - Pictet).

Of course, the military commander's discretion is subject to judicial review by this Court (see The Timraz Case, at p. 335).

17.       In The Beit Sourik Case and preceding case law, the Supreme Court held that the authority to take possession of land for military needs is anchored not only in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention, but also in regulation 23(g) of The Hague Regulations.  The Advisory Opinion of the International Court of Justice at the Hague determined that the second part of The Hague Regulations, in which regulation 23(g) is found, applies only during the time that hostilities are occurring, and that therefore it does not apply to the construction of the fence (paragraph 124).  The International Court of Justice added that the third part of The Hague Regulations – which includes regulations 43 and 52 – continues to apply, as it deals with military government (§125).  This approach of the International Court of Justice cannot detract from this Court's approach regarding the military commander's authority to take possession of land for constructing the fence.  This authority is anchored, as mentioned, in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention.  Regarding the principled stance of the International Court of Justice, we note the following two points: first, there is a view – to which Pictet himself adheres – by which the scope of application of regulation 23(g) can be widened, by way of analogy, to cover belligerent occupation as well (see Pictet, at p. 301; G. Schwarzenberger 2 International Law as Applied by International Courts and Tribunals: the Law of Armed Conflict 253, 314 (1968).  Second, the situation in the territory under belligerent occupation is often fluid.  Periods of tranquility and calm transform into dynamic periods of combat.  When combat takes place, it is carried out according to the rules of international law.  "This combat is not being carried out in a normative void.  It is being carried out according to the rules of international law, which determine principles and rules for the waging of combat" (see HCJ 3451/02 Almandi v. The Minister of Defense, 56(3) P.D. 30, 34; see also HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  In such a situation, in which combat activities are taking place in the area under belligerent occupation, the rules applicable to belligerent occupation, as well as the rules applicable to combat activities, will apply to these activities (see The Marab Case; HCJ 7015/02 Ajuri v. The Commander of IDF forces in the West Bank, 56(6) P.D. 352, and Watkin "Controlling the Use of Force: A Role of Human Rights Norms in Contemporary Armed Conflict" 98 A.J.I.L. 1, 28 (2004)).  Regulation 23(g) of The Hague Regulations will apply in such a situation in territory under belligerent occupation, due to the combat activities taking place in it.  The position of the state, as argued before us, is that the construction of the fence is part of Israel's combat actions.  It is, according to the state's argument, a defensive act of erecting fortifications; it is intended to stop the advance of an offensive of terrorism; it is a defensive act which serves as an alternative to offensive military activity; it is an act absolutely necessary for the for the combat effort.  As mentioned, we have no need to discuss this issue in depth, since the general authority granted the military commander pursuant to regulations 43 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention are sufficient, as far as construction of the separation fence goes.  We are thus able to leave that issue for decision at a later opportunity. 

18. The rationale behind the military commander's authority to construct a separation fence for security and military reasons includes, first and foremost, the need to protect the army in the territory under belligerent occupation.  It also includes defense of the State of Israel itself (compare §62(2) of The Fourth Geneva Convention, and HCJ 302/72 Hilo v. The Government of Israel, 27(2) P.D. 162, 178; The Iyub Case, at p. 117; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90; The Beit Sourik Case, at p. 833; Kretzmer, at p. 101).  Does the military commander's authority to construct a separation fence also include his authority to construct a fence in order to protect the lives and safety of Israelis living in Israeli communities in the Judea and Samaria area?  This question arises in light of the fact that Israelis living in the area are not "protected persons," as per the meaning of that term in §4 of The Fourth Geneva Convention (see The Gaza Coast Regional Council Case (yet unpublished, paragraph 4 of the opinion of the Court)).  Is the military commander authorized to protect the lives and defend the safety of people who are not "protected" under The Fourth Geneva Convention?  In our opinion, the answer is positive.  The reason for this is twofold: first, the military commander's general authority is set out in regulation 43 of The Hague Regulations, which determines:

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

The authority of the military commander is, therefore, "to ensure . . . public order and safety".  This authority is not restricted only to situations of actual combat.  It applies as long as the belligerent occupation continues (see The Timraz Case, at p. 336).  This authority is not restricted only to the persons protected under international humanitarian law.  It is a general authority, covering any person present in the territory held under belligerent occupation.  Justice E. Mazza discussed this, stating:

"as far as the need to preserve the security of the area and the security of the public in the area is concerned, the military commander's authority applies to all persons present in the boundaries of the area at any given time.  This determination is a necessary deduction from the military commander's known and clear duty to preserve the security of the area and from his responsibility for preservation of the public peace in his area" (HCJ 2612/94 Sha'ar v. The Commander of IDF Forces in the Judea and Samaria Area, 48(3) P.D. 675, 679).

In another case I added:

"The Israeli settlement in the Gaza Strip is controlled by the law of belligerent occupation.  Israeli law does not apply in this area . . . the lives of the settlers are arranged, mainly, by the security legislation of the military commander.  The military commander's authority 'to ensure public order and safety' is directed towards every person present in the area under belligerent occupation.  It is not restricted to 'protected persons' only . . . this authority of his covers all Israelis present in the area" (HCJ 6339/05 Matar v. The Commander of IDF Forces in the Gaza Strip (yet unpublished); see also the Hess case, at p. 455).

Indeed, the military commander must ensure security.  He must preserve the safety of every person present in the area of belligerent occupation, even if that person does not fall into the category of 'protected persons' (see HCJ 72/86 Zlum v. The Military Commander of the Judea and Samaria Area, 41(1) P.D. 528, 532, hereinafter – The Zlum Case; HCJ 2717/96 Wafa v. The Minister of Defense, 50(2) P.D. 848, 856; HCJ 4363/02 Zindat v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611).

19.       Our conclusion is, therefore, that the military commander is authorized to construct a separation fence in the area for the purpose of defending the lives and safety of the Israeli settlers in the area.  It is not relevant whatsoever to this conclusion to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at the Hague.  For this reason, we shall express no position regarding that question.  The authority to construct a security fence for the purpose of defending the lives and safety of Israeli settlers is derived from the need to preserve "public order and safety" (regulation 43 of The Hague Regulations).  It is called for, in light of the human dignity of every human individual.  It is intended to preserve the life of every person created in God's image.  The life of a person who is in the area illegally is not up for the taking.   Even if a person is located in the area illegally, he is not outlawed. This Court took this approach in a number of judgments.  In one case I noted:

"The military commander's duty is to protect the security of his soldiers, while being considerate of the safety of the local population.  This population also includes the settlements located in the area.  Their legality is not under discussion before us, and will be determined in the peace treaties which the relevant parties will reach" (HCJ 4364/02 Zindat v. The Commander of the IDF Forces in the Gaza Strip (unpublished), and see also HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished)).

In another case I stated:

"It is contended before us that the objective of the order is to allow movement between two settlements, and that this objective is not a legal one, as the settlements are not legal.  Not security considerations lie at the base of the order, rather political considerations.  This argument holds no water.  The status of the settlements will be determined in the peace treaty.  Until that time, respondent has the duty to defend the population (Arab and Jewish) in the territory under his military control (HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611; see also The Zlum Case, at p. 532).

In a similar vein wrote my colleague, Justice A. Procaccia:

"Alongside the area commander's responsibility for safeguarding the safety of the military force under his command, he must ensure the well being, safety and welfare of the residents of the area.  This duty of his applies to all residents, without distinction by identity – Jew, Arab, or foreigner.  The question of the legality of various populations' settlement activity in the area is not the issue put forth for our decision in this case.  From the very fact that they have settled in the area is derived the area commander's duty to preserve their lives and their human rights.  This sits well with the humanitarian aspect of the military force's responsibility in belligerent occupation" (The Hess Case, at p. 460).

20.       Indeed, the legality of the Israeli settlement activity in the area does not affect the military commander's duty – as the long arm of the State of Israel – to ensure the life, dignity and honor, and liberty of every person present in the area under belligerent occupation (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230, 243 (2005)).  Even if the military commander acted in a manner that conflicted the law of belligerent occupation at the time he agreed to the establishment of this or that settlement – and that issue is not before us, and we shall express no opinion on it – that does not release him from his duty according to the law of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of the Israeli settlers.  The ensuring of the safety of Israelis present in the area is cast upon the shoulders of the military commander (compare §3 of The Fourth Geneva Convention).  Professor Kretzmer discussed this:

“[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against a serious violation of IHL”   (Kretzmer, at p. 93).

It is also to be noted that the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington D.C. between the State of Israel and the PLO on 28 September 1995, provided that the question of the Israeli settlements in the area will be discussed in the negotiations over the final status (see §17(a) and §31(5)).  It was also provided in that agreement that "Israel shall . . . carry the responsibility . . . for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order" (§12(1)).  This arrangement applies to all the Israeli settlements in the area.  This agreement was granted legal status in the area (see Decree Regarding Implementation of the Interim Agreement (Judea and Samaria)(No. 7), 5756-1995)(see The Gaza Coast Regional Council Case, paragraph 10 of the opinion of the Court, as well as Y. Zinger "The Israeli-Palestinian Interim Agreement Regarding Autonomy Arrangements in the West Bank and Gaza Strip – Some Legal Aspects", 27 Mishpatim 605 (1997) [Hebrew]).

21.       The second reason which justifies our conclusion that the military commander is authorized to order the construction of a separation fence intended to protect the lives and ensure the security of the Israeli settlers in the area is this: the Israelis living in the area are Israeli citizens.  The State of Israel has a duty to defend their lives, safety, and well being.  Indeed, the constitutional rights which our Basic Laws and our common law grant to every person in Israel are also granted to Israelis who are located in territory under belligerent occupation which is under Israeli control.  We discussed that point in The Gaza Coast Regional Council Case:

"In our opinion, the Basic Laws grant rights to every Israeli settler in the area to be evacuated.  This jurisdiction is personal.  It is derived from the State of Israel's control over the area to be evacuated.  It is the fruit of a view by which the state's Basic Laws regarding human rights apply to Israelis found outside the state, who are in an area under its control by way of belligerent occupation" (Id., paragraph 80 of the opinion of the Court).

In sum, Israelis present in the area have the rights to life, dignity and honor, property, privacy, and the rest of the rights which anyone present in Israel enjoys (see The Hess Case, at p. 461).  Converse to this right of theirs stands the state's duty to refrain from impinging upon these rights, and to protect them.  In one case, an Israeli wished to enter the area.  The military commander refused the request, reasoning his refusal by the danger to the Israeli from being present in the place he wished to enter.  The Israeli responded that he will "take the risk" upon himself.  We rejected this approach, stating:

"Israel has the duty to protect her citizens.  She does not satisfy her duty merely since citizens are willing to 'take the risk upon themselves'.  This 'taking of risk' does not add or detract from the issue, as the state remains obligated to the well being of its citizens, and must do everything possible to return them safely to the country" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 406.  See also HCJ 9293/01 Barakeh, M.K. v. The Minister of Defense, 56(2) P.D. 509, 515; The Gaza Coast Regional Council Case (yet unpublished, paragraph 111 of the opinion of the Court)).

Thus it is, generally speaking.  Thus it certainly is, when many of the Israelis living in the area do so with the encouragement and blessing of the government of Israel.

22.       Of course, the scope of the human right of the Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right.  At the foundation of this differentiation lies the fact that the area is not part of the State of Israel.  Israeli law does not apply in the area.  He who lives in the area lives under the regime of belligerent occupation.  Such a regime is inherently temporary (see HCJ 351/80 The Jerusalem District Electric Company v. The Minister of Energy and Infrastructure, 35(2) P.D. 673, 690; The Jami'at Ascan Case, at p. 802; The Beit Sourik Case, paragraph 27; The Gaza Coast Regional Council Case, paragraph 8 of the opinion of the Court)).  The rights granted to Israelis living in the area came to them from the military commander. They have no more than what he has - Nemo dat quod non habet.  Therefore, in determining the substance of the rights of Israelis living in the area, one must take the character of the area and the powers of the military commander into account.  This Court discussed that point in The Gaza Coast Regional Council Case, as it examined the impingement of the human rights of the Israelis evacuated from the Gaza Strip:

"In determining the substance of the impingement and the rate of compensation, one must take into consideration the fact that the rights impinged upon are the rights of Israelis in territory under belligerent occupation.  The temporariness of the belligerent occupation affects the substance of the right impinged upon, and thus also, automatically, the compensation for the impingement (Id., paragraph 126 of the opinion of the Court).

While discussing the property right of Israelis evacuated from the Gaza Strip, the Court stated:

"This property right is limited in scope . . . most Israelis do not have ownership of the land on which they built their houses and businesses in the territory to be evacuated.  They acquired their rights from the military commander, or from persons acting on his behalf.  Neither the military commander nor those acting on his behalf are owners of the property, and they cannot transfer rights better than those they have.  To the extent that the Israelis built their homes and assets on land which is not private ('state land'), that land is not owned by the military commander.  His authority is defined in regulation 55 of The Hague Regulations. . . . The State of Israel acts . . . as the administrator of the state property and as usufructuary of it . . . " (Id., paragraph 127 of the opinion of the Court).

The scope of this right and the level of protection of it are not put forth for decision before us.  The Israelis whose lives and security the separation fence is intended to protect are not petitioners before us.  Their security, lives, rights of property, movement, and freedom of occupation, as well as the other rights recognized in Israeli law, are taken into consideration in the petition before us in the framework of the military commander's discretion regarding the need for a separation fence, and regarding its route (see The Zlum Case, at p. 532).

23.       Israel's duty to defend its citizens and residents, even if they are in the area, is anchored in internal Israeli law.  The legality of the implementation of this duty is anchored in public international law, as discussed, in the provisions of regulation 43 of The Hague Regulations.  In The Beit Sourik Case, this Court did not anchor the military commander's authority to erect the separation fence upon the law of self defense.  The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense.  The reason for this is that §51 of the Charter of the United Nations recognizes the natural right of self defense, when one state militarily attacks another state.  Since Israel is not claiming that the source of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall (paragraph 138 of the Advisory Opinion of the International Court of Justice at the Hague).  Nor does the right of a state to self defense against international terrorism authorize Israel to employ the law of self defense against terrorism coming from the area, as such terrorism is not international, rather originates in territory controlled by Israel by belligerent occupation.  This approach of the International Court of Justice at the Hague is not indubitable (see R. Higgins Problems and Process, International Law and How We Use It 253 (1994); F. Frank "Terrorism and the Right of Self-Defense" 95 A.J.I.L.  839 (2001); J. J. Paust "Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond" 35 Cornell Int'l L.J. 533 (2002); A. C. Arend and R. J. Beck International Law and the Use of Force - Beyond the UN Charter Paradigm (2000)).  It stirred criticism both from the dissenting judge, Judge Buergenthal (paragraph 6) and in the separate opinion of Judge Higgins (paragraphs 33 and 34).  Conflicting opinions have been voiced in legal literature.  There are those who support the ICJ's conclusion regarding self defense (see I. Scobbie "Words My Mother Never Taught Me – 'In Defense of the International Court'" 99 A.J.I.L. 76 (2005). There are those who criticize the ICJ’s views on self-defense (see M. Pomerance "The ICJ's Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial" 99 A.J.I.L. 26 (2005); Murphy "Self-Defense and the Israeli Wall Advisory Opinion: An Ipse, Dixit from the ICJ" 99 I.J.I.L. 62 (2005); Wedgwood "The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self Defence" 99 A.J.I.L. 52 (2005); Gross "Combating Terrorism: Self-Defense, Does it Include Security Barrier – Depends Who You Ask" 38 Corn. Int. L.J. 569 (2005). We find this approach of the International Court of Justice hard to come to terms with.  It is not called for by the language of §51 of the Charter of the United Nations (see the difference between the English and French versions, S. Rosenne 291 General Course on Public International Law 149 (2001)).  It is doubtful whether it fits the needs of democracy in its struggle against terrorism.  From the point of view of a state's right to self defense, what difference does it make if a terrorist attack against it comes from another country or from territory external to it which is under belligerent occupation?  And what shall be the status of international terrorism which penetrates into territory under belligerent occupation, while being launched from that territory by international terrorism's local agents?  As mentioned, we have no need to thoroughly examine this issue, as we have found that regulation 43 of The Hague Regulations authorizes the military commander to take all necessary action to preserve security.  The acts which self defense permits are surely included within such action.  We shall, therefore, leave the examination of self defense for a future opportunity.

            3.         The Military Commander's Considerations in Erecting the Separation Fence and the Balancing Between Them

24.       What are the considerations which the military commander must weigh in determining the route of the fence?  The first consideration recognized by international law is the security-military consideration, by force of which the military commander is permitted to weigh considerations of the security of the state, the security of the army, and the personal security of all present in the area.  Indeed, converse to the human rights of the Israelis stands the military commander's duty and authority to defend them.  The second consideration is, in the context of the petition before us, the good of the local Arab population.  The human dignity of every member of the population, including the local population, must be defended by the military commander.  Indeed, the basic rule is that every member of the local population is entitled to recognition:

"His human dignity, the sanctity of his life, and his status as a free person . . .  one must not take his life or his dignity as a person, and one must defend his dignity as a person . . . the military commander's duty according to the basic rule is twofold: first, he must refrain from acts which hurt the local residents.  That is his 'negative' duty; second, he must take the action necessary to ensure that the local residents will not be hurt.  That is his 'positive' duty" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 394).

The human rights of the local residents include the whole gamut of human rights.  My colleague, Justice A. Procaccia, discussed this point, noting:

"In the framework of his responsibility for the well being of the residents of the area, the commander must also work diligently to provide proper defense to the constitutional human rights of the local residents, subject to the limitations posed by the conditions and factual circumstances on the ground . . . included in these protected constitutional rights are freedom of movement, religion, and worship, and property rights.  The commander of the area must use his authority to preserve the public safety and order in the area, while protecting human rights" (The Hess Case, at p. 461). 

25.       Human rights, to which the protected residents in the area are entitled, are not absolute.  As any human rights, they are relative.  They can be restricted (The Limitation of Human Rights in Comparative Constitutional Law (de Mestral ed. 1986); Kiss "Permissible Limitations on Rights" The International Bill of Rights (L. Henkin ed. 1981) 290).  Some of the limitations stem from the need to take rights of other people into account.  Some of the limitations stem from the public interest (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraphs 14 and 15).  Thus, for example, the freedom of movement is not an absolute freedom.  It can be restricted due to national security needs, public order, or the rights and freedoms of others (see § 12(3) of the International Covenant on Civil and Political Rights, 1966).  The person responsible for the public interest in the area is the military commander.

26.       What is the legal source from which the protected persons in the area derive their rights?  It is unanimously agreed that international humanitarian law is the central source of these rights.  This law is established, inter alia, by The Hague Regulations.  Regulation 46 of The Hague Regulations provides as follows:

"Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

This humanitarian law is also established in The Fourth Geneva Convention, which protects the rights of "protected persons".  The central provision is established in §27:

"Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. . . . the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."

These provisions have been quoted at times in the judgments of the Supreme Court (see HCJ 256/72 The Jerusalem District Electric Company v. The Minister of Defense, 27(1) P.D. 124; HCJ 302/72 Abu Hilu v. The Government of Israel, 27(2) P.D. 169; HCJ 574/82 Al Nawari v. The Minister of Defense, 39(3) P.D. 449; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 27(2) 349; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(3) P.D. 385; The Beit Sourik Case).

27.       Can the rights of the protected residents be anchored in the international conventions on human rights, the central of which is the International Covenant on Civil and Political Rights, 1966, to which Israel is party (see E. Benvenisti The International Law of Occupation (1993); Dennis "Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation" 99 A.J.I.L. 119 (2005))?  The International Court of Justice at the Hague determined, in its Advisory Opinion, that these conventions apply in an area under belligerent occupation.  When this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions.  In one case, President M. Shamgar relied upon these international sources, stating:

"I enter not, at this point, into the question whether the obligations arising from the various agreements and declarations to be referred to, are legally binding . . . for the concrete purposes before us now, I shall assume that one can view the content of these legal documents as relevant" (HCJ 13/86 Shahin v. The Commander of IDF Forces in the Judea and Samaria Area, 41(1) P.D. 197, 210).

In another case, my colleague Justice D. Beinisch stated:

"We need not decide whether, and to what extent, the international conventions on human rights apply in the Judea and Samaria area . . .  Suffice it to say that in the framework of the military commander's duty to exercise his discretion reasonably, he must also take into account the interests and rights of the local population, including the need to minimize the impingement of its freedom of movement; and that, respondents do not contest" (The Bethlehem Municipality Case (yet unpublished, paragraph 15)).

We shall adopt a similar approach.  Indeed, we need not, in the framework of the petition before us, take a position regarding the force of the international conventions on human rights in the area.  Nor shall we examine the interrelationship between international humanitarian law and international law on human rights (on this question see T. Meron Human Rights and Humanitarian Norms as Customary Law (1989); Human Rights and Humanitarian Law: The Quest for Universality (D. Warner ed. 1997); J. Frowein "The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation" 28 Isr. Y. H. R. 1 (1998); D. Schindler "Human Rights and Humanitarian Law: Interrelationship of the Laws" 31 Am. U. L. Rev. 935 (1982)).  However, we shall assume – without deciding the matter – that the international conventions on human rights apply in the area.

28.       Indeed, in exercising his authority pursuant to the law of belligerent occupation, the military commander must "ensure the public order and safety."  In this framework, he must consider, on the one hand, considerations of state security, security of the army, and the personal security of all who are present in the area.  On the other hand, he must consider the human rights of the local Arab population.  Indeed, "the law of war usually creates a delicate balance between two magnetic poles.  Military necessity on the one hand, and humanitarian considerations on the other (Y. Dinstein "The Authority to Legislate in the Administered Territories" 2 Iyunei Mishpat 505, 509 (5732-5733) [Hebrew]).  I discussed this point in one case, noting:

"The Hague Regulations revolve around two main axes: one – ensuring the legitimate security interests of the occupier in territory held under belligerent occupation; the other – ensuring the needs of the civilian population in the territory held under belligerent occupation" (The Jami'at Ascan Case, at p. 794).

My colleague Justice A. Procaccia similarly noted that The Hague Regulations authorize the military commander to provide for two needs:

"The first need is military, and the other is a civilian-humanitarian need.  The first concerns itself with providing for the safety of the military force holding the area, and the second – with responsibility for maintaining the well being of the residents.  On the latter subject, the military commander is charged not only with preservation of the order and safety of the residents, but also with defense of their rights, and especially the constitutional human rights granted them.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must weigh" (The Hess Case, at p. 455).

29.       These considerations – security needs on the one hand and the needs of the local population on the other – conflict each other.  Thus is usually the case.  Thus certainly is the case regarding the construction of the fence.  What is the military commander to do in this situation?  The answer is that he must create a balance between the conflicting considerations.  Indeed, like in many other areas of law, the solution is not found in "all" or "nothing"; the solution is in locating the proper balance between the clashing considerations.  The solution is not to assign absolute weight to one of the considerations; the solution is to assign relative weights to the various considerations, while balancing between them at the point of decision (see HCJ 953/83 Levy v. The Commander of the Southern District of the Israeli Police, 38(2) P.D. 393).  "In performing his task of preserving order and safety, the commander of the area must ensure, therefore, the critical security interests on the one hand, and protect the interests of the civilian population in the area on the other . . . between these foci of responsibility, a proper balance is needed" (The Hess Case, at p. 456).  Indeed, "The law of belligerent occupation recognizes the military commander's power to preserve the security of the area and to thus defend the safety of his state and its citizens.  However, it makes exercise of this authority conditional upon the proper balance between them and the rights, needs, and interests of the local population" (The Beit Sourik Case, at p. 833).

4.         Proportionality

30.       How shall this balancing be performed?  The answer is that this balancing raises no problem unique to belligerent occupation.  It is a part of a general problem in law (see A. Barak A Judge in A Democratic Society 262 (2004)[Hebrew]).  The solution to it is universal.  It is found, inter alia, in general principles of law, including reasonableness and good faith.  One of these basic principles which balances between a proper and fitting goal and the means for realizing it is the principle of proportionality (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraph 15; The Beit Sourik Case, at p. 836; The Gaza Coast Regional Council Case, paragraph 102 of the opinion of the Court).  This principle draws its strength from international law and from the fundamental principles of Israeli public law.  The principle of proportionality is based on three subtests which fill it with concrete content.  The first subtest calls for a fit between goal and means.  There must be a rational link between the means employed and the goal one is wishing to accomplish.  The second subtest determines that of the gamut of means which can be employed to accomplish the goal, one must employ the least harmful means.  The third subtest demands that the damage caused to the individual by the means employed must be of appropriate proportion to the benefit stemming from it.  Note that "at times there is more than one way to satisfy the proportionality demand.  In such situations, a zone of proportionality (similar to the zone of reasonableness) should be recognized.  Any means which the administrative body chooses from within the zone is proportional" (The Beit Sourik Case, at p. 840).

            5.         The Scope of Judicial Review

31.       In a long line of judgments, the Supreme Court has determined the standards for the scope of judicial review of decisions and acts of the military commander in territory held under belligerent occupation.  This judicial review is anchored in the status of the military commander as a public official, and in the jurisdiction of the High Court of Justice to issue orders to bodies fulfilling public functions by law (§15(3) of Basic Law: The Judiciary).  In determining the scope of judicial review, it was decided on the one hand that the Court does not substitute the discretion of the military commander with its own discretion.  "It is but obvious that the Court does not slip into the shoes of the deciding military official . . . in order to replace the commander's discretion with the discretion of the Court" (Shamgar P. in HCJ 1005/89 Aga v. The Commander of IDF Forces in the Gaza Strip Area, 44(1) P.D. 536, 539).  The Court does not examine the wisdom of the decision, rather its legality (see HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 393).  This is appropriate from the point of view of separation of powers.  On the other hand it was determined that the Court does not refrain from judicial review merely because the military commander acts outside of Israel, or because his actions have political and military ramifications.  When the decisions or acts of the military commander impinge upon human rights, they are justiceable.  The door of the Court is open.  The argument that the impingement upon human rights is due to security considerations does not rule out judicial review.  "Security considerations" or "military necessity" are not magic words (see HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) P.D. 352, 375; HCJ 619/78 "Al Taliyeh" Weekly v. The Minister of Defense, 33(3) P.D. 505, 512; The Jami'at Ascan Case, at p. 809; HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  This is appropriate from the point of view of protection of human rights.

32.       It is between these two edges that the normative outline for the scope of judicial review is determined.  This outline examines whether the actions and decisions of the military commander uphold the law in the area.  When the action can be performed in a number