The Israeli Supreme Courts Rebukes State on Rerouting of Separation Barrier - HCJ 2732/05

In a decision published by the Israeli High Court of Justice (HCJ) on 5 October 2009, the Court rejected a contempt of court motion brought against the Government of Israel for delays in the implementation of a Court order to modify the route of the separation barrier. However, in an unusual move, the Court rebuked the Government for its conduct and delays in the execution of its order.

In this article, we present a short discussion of the decision, which is part of the IDI Terrorism and Democracy Newsletter's ongoing coverage of issues related to the West Bank separation barrier – a key counter-terrorism measure employed by Israel.

On 15 June 2006, the HCJ published a decision[1] that revoked a specific military ruling concerning the route of the separation barrier in order to diminish its adverse  effects on several Palestinian villages. The decision was issued with the agreement of the Israeli Government, and offered a new route that minimizes the harm caused to the villages in question. According to the Court order, the existing barrier would be destroyed within six months of the completion of the modified route.

In September 2008, more than two years after the HCJ delivered its decision, a motion for contempt was submitted to the HCJ.[2] According to the motion, despite the Court's decision to order the State to complete the modification and the destruction of the existing segment of the barrier as soon as possible, and notwithstanding the fact that all the administrative procedures required to begin the construction of the barrier on the new route had been completed, no action was taken on the ground to comply with the Court order and to build the fence according to the new route.

On 24 September 2009, after the submission of the motion, the State began the construction of the new route and thereafter started destroying the old route. As a result, on 5 October 2009, the Court dismissed the motion (with the consent of the petitioners). Nevertheless, in its decision to dismiss the petition, the President of the HCJ, Justice Dorit Beinisch, rebuked the State for delaying the implementation of the Court order, which was carried out only after the submission of the motion.

President Beinisch stressed that the decisions of the Court are not to be considered mere recommendations, and that they must be implemented in the most prompt and effective manner possible under the appropriate circumstances.

This case raises some concerns about the underlying role of the law in the decision making process to determine the route of the separation barrier. The HCJ had rebuked the State in previous cases for failing to meet substantive legal criteria (lack of proportionality) and procedural problems (failure to fully reveal all the information related to the selection of specific routes). The present decision indicates "foot-dragging" by the State in the implementation of the Court decisions concerning the route of the barrier. The circumstances surrounding this case present doubts about the Israeli authorities’ actual commitment to the "rule of law" in the West Bank, as dictated by Israeli courts. This is unfortunate especially given the current claims made by the Israeli government concerning the adequacy of relying on local investigations and judicial procedures in enforcing international humanitarian law.

1. HCJ 2732/05 Head of Azon City Council et al. v. The Government of Israel, 15.6.2006 <Hebrew>.
   
2. www.hamoked.org.il/items/6656_eng.pdf (unofficial translation).