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Thursday, September 15, 2005
The Judgment on the Fence Surrounding Alfei Menashe - HCJ 7957/04

The Judgment on the Fence Surrounding Alfei Menashe - HCJ 7957/04
Israel Government Press Office 15 September 2005

An expanded panel of nine justices of the Supreme Court of Israel handed
down its judgment today (September 15 2005) in a petition dealing with the
legality of the separation fence in the area of Alfei Menashe. Alfei
Menashe is an Israeli community in Samaria, southeast of the Palestinian
town of Qalqiliya, approximately 4 km beyond the Green Line. The separation
fence by Alfei Menashe was built in August 2003, and surrounds Alfei Menashe
and five Palestinian villages, creating an "enclave" which "brings" them
over to the "Israeli" side of the fence. The enclave is part of the
"seamline area" - the area between the fence and the Green Line. The IDF
issued "permanent resident cards" to the residents of the villages, which
allow them to live in the enclave and travel from it to the rest of the West
Bank and back, through a number of gates in the fence. Palestinians who are
not residents of the villages are allowed to enter the enclave if they hold
permits from IDF forces. The petition was submitted by residents of the
villages, with support from the village council heads, and by the
Association for Civil Rights in Israel. The petitioners argue that the
fence is not legal, and that it should be dismantled and rebuilt on the
Green Line. In any case, they contend, there is no justification for
including the villages in the enclave. In the petition, which relies upon
the Advisory Opinion of the International Court of Justice at the Hague, it
is argued that the state is not authorized to erect the fence, due to a lack
of security related necessity and due to the creation of de facto annexation
of the enclave territory to the State of Israel. It is also contended that
the fence does not satisfy standards of proportionality which were set in
the judgment of the Supreme Court of Israel in The Beit Sourik Case (HCJ
2056/04). That is due to the fact that the enclave causes great injury to
the residents of the villages. The state responded that there is a security
need for the fence at Alfei Menashe, and that there is no justification to
dismantle it or change its route. The state did not deny the injury to the
Palestinian residents, but claimed a series of improvements in
infrastructure and logistics, intended to ease the injury to the residents
of the villages, to the extent possible. In light of these improvements,
the state is of the opinion that the fence route balances appropriately
between the rights of the residents and the security needs, and that that
balance is proportionate.

The judgment today is given unanimously. The main opinion was written by
President Aharon Barak, in which concurred Vice President Cheshin, and
Justices Beinisch, Procaccia, Grunis, Naor, Jubran, and Chayut. Justice
Levy concurred in the judgment's result. The Supreme Court allowed the
petition, in the following sense: it ruled that the state must, within a
reasonable period, reconsider the various fence route alternatives at Alfei
Menashe, while examining security alternatives which cause less injury to
the lives of the residents of the villages in the enclave. In this context,
the Court ordered examination of the alternative by which the enclave would
include only Alfei Menashe and a road connecting it to Israel, whilst moving
the existing road that connects Alfei Menashe to Israel to another location
in the south of the enclave.

The court discussed the fact that the Judea and Samaria areas are held by
Israel in belligerent occupation. The law which applies in these areas is
controlled by public international law regarding belligerent occupation. The
court held that according to these laws, the military commander is
authorized to erect a separation fence in order to protect the lives and
safety of Israeli settlers in the Judea and Samaria area, for two reasons:
first, regulation 43 of The Hague Regulations authorizes the military
commander to take all steps necessary to ensure security. This authority is
not conditional upon the question whether Israeli settlement upholds
international law - a question on which the Court took no stand. Second,
Israelis living in the area held under Israel's control in belligerent
occupation are entitled to the constitutional rights which the Basic Laws
and Israeli common law grant to every person within Israel. Thus, among his
considerations, the military commander takes into account the Israeli
residents' security, lives, property rights, freedom of movement, freedom of
occupation (profession), and their other rights recognized in Israeli law.
In determining the route of the fence, the military commander must take two
considerations into account. On the one hand is the security-military
consideration, by force of which the military commander may take into
account considerations regarding defense of the state. On the other hand is
the consideration of the human rights of the local Arab population. These
considerations clash with each other, regarding the construction of the
fence. The military commander must balance appropriately between them. The
balancing is to be performed according to the principle of proportionality,
which is based upon three subtests which give it concrete content. The
Court referred to the Beit Sourik ruling, by which the question of the
legality of the fence according to international law should not be answered
sweepingly. One must examine each segment of the route and check whether it
impinges upon the rights of the Palestinian residents, and whether the
impingement is proportionate.

In the decision, the Court examined the extent to which the Advisory Opinion
of the International Court of Justice at the Hague affects the approach of
the Supreme Court of Israel regarding the legality of the fence according to
international law. The Court expansively discussed the Advisory Opinion,
which found that the construction of the fence (the "wall" in its
terminology) and the legal regime which accompany it violate international
law, as most of the fence passes through the West Bank. The Court found
that the normative basis upon which the ICJ and the Supreme Court of Israel
in The Beit Sourik Case based their decisions was a common one. Despite a
common normative basis, the courts reached different conclusions. The
difference in legal conclusions stems primarily from the difference in the
factual bases upon which each court decided. The ICJ based its judgment
upon the factual basis regarding the injury to the rights of the Palestinian
residents, without dealing with the factual basis regarding Israel's
security-military need to erect the fence. In contrast, in The Beit Sourik
Case, an extensive factual basis was laid before the Court, regarding both
the impingement upon the human rights of the local residents and the
security-military needs. This comprehensive factual basis allowed the Court
to decide that certain segments of the fence violate rules of international
law, and that others do not violate those rules. The other difference
regards the intensity of the impingement upon the rights of the local
residents, as the information relayed to the ICJ contained imprecise
information. As a result of the factual basis before the ICJ, full weight
was placed on the rights violation side of the scales; no weight was given
to the security-military needs; therefore, there was also no discussion of
the question of the impingement's proportionality, or of the margin of
appreciation. The difference between the ways each court holds proceedings
also contributed to the difference between the results. The case before the
ICJ regarded the entire fence route. That did not allow particular and
separate analysis of the various segments of the fence. The method of the
Supreme Court of Israel is different. The Beit Sourik Case dealt with one
segment of the fence (40 km long). In other petitions pending before the
Court, other segments are being examined. Up until now, about 90 petitions
have been submitted; half of them have come to a close, mostly by agreement
by the parties after alterations to the fence route; the others will be
decided after this judgment. Regarding the effect of the Advisory Opinion
upon the approach of the Supreme Court of Israel regarding the legality of
the fence, it was held that the Court shall grant full weight to the rules
of international law, as developed and interpreted by the ICJ, which is the
highest judicial body in international law. In contrast, the ICJ's
conclusion, based upon a different factual basis, is not res judicata and
does not obligate the Supreme Court of Israel to determine that all segments
of the fence violate international law.

The Court proceeded to a specific examination of the fence at Alfei Menashe.
The Court was convinced that the reason behind the decision to erect the
fence was not a political one. The decision to erect the fence at Alfei
Menashe, which was made in June 2002, was made in light of the severe
terrorism situation which has plagued Israel since September 2000.
Security-military considerations prevented building the fence on the Green
Line. The Court reached the conclusion that the reason behind building the
fence is the security consideration of preventing infiltration by terrorists
into Israel and into Israeli communities in the Judea and Samaria area. The
separation fence is a central security component in the fight against
terrorism. The fence is inherently temporary. The decision to construct
the fence at the Alfei Menashe enclave was therefore within the framework of
the military commander's authority. However, the Court was not convinced
that the route of the fence is proportionate. The judgment discusses at
length the effect of the fence on the daily life of the residents of the
villages in the enclave. Its effect on central components of the fabric of
life was examined: education, health, employment, movement, and social
connections. The Court held that the fence makes the lives of the enclave
residents very difficult. It creates a chokehold around the villages. It
severely injures the entire fabric of life. Against this background, the
Court examined the question whether the injury to the residents of the
villages in the enclave is proportionate. The Court rejected the
petitioners' argument, by which the state can make due with a fence on the
Green Line. The Court determined that constructing the fence on the Green
Line would leave Alfei Menashe on the eastern side of the fence, vulnerable
to terrorist attacks. Any route of the fence must take into account the
need to provide security to the Israeli residents of Alfei Menashe.
However, the Court found that the present route, which incorporates five
villages into the enclave, seems strange. The Court was not convinced that
there is a security-military reason to include in the enclave the three
villages in its southwest part, instead of keeping them beyond the fence.
The fact that a planning scheme has been submitted, by which Alfei Menashe
will develop toward the southwest part of the enclave, is not a
consideration which is to be taken into account. The northern and
northwestern part of the enclave, through which runs highway 55 connecting
Alfei Menashe to Israel and which includes two additional villages, is also
strange. In this context, the Court mentioned the statement of Colonel
(res.) Dan Tirza (head of the administration dealing with the planning of
the obstacle route in the seamline area), that the location of highway 55
causes security problems and should be viewed as temporary. In this state
of affairs, the Court was not convinced that it is necessary, for
security-military reasons, to preserve the present northwest route of the
enclave. If the route is changed, it will have the additional effect of
removing the two fences which separate Qalqiliya and the town of Habla,
south of it, thus reconnecting them as one urban bloc. The Court stated
that the necessary effort had not been made to find an alternate route which
can ensure security and cause less injury to the residents of the villages;
nor had such a route been examined in detail. The Court ordered the state
to reconsider the existing route, and to examine the possibility of removing
the enclave villages - all of them, or some of them - from the "Israeli"
side of the fence. As such an alteration cannot be done in one day, the
state must consider setting timetables and various sub phases capable of
ensuring that the changes in the route are made within a reasonable period.

Thus, the Court issued an order absolute, in the following sense: the state
must, within a reasonable period, reconsider the various alternatives for
the separation fence route at Alfei Menashe, while examining security
alternatives which injure the daily lives of the residents of the
Palestinian villages in the enclave to a lesser extent.

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