State Ordered to Renew Palestinian Access to Route 443 [29.12.09]

On 29 December 2009, the Israeli High Court of Justice (HCJ) issued an important decision on the issue of Palestinian access to Route 443 [1]. The route, which runs across the West Bank to Jerusalem,  was originally constructed for the benefit of the Palestinian population in the West Bank, but also served Israeli travelers (mostly traveling to and from Jerusalem). Since 2002, following a number of lethal terrorist attacks against Israeli travelers on Route 443, the route was closed to Palestinian traffic, and since then has exclusively served Israelis.

In its decision, the HCJ held that the decision to close the route to Palestinian traffic could not be justified under the relevant international humanitarian law provisions related to occupied territories, and that the resulting damage to the Palestinian population of the West Bank was disproportionately high and contrary to Israeli administrative law. The Court allowed the State five months to establish alternative security measures, ordering it to reopen the route to Palestinian traffic at the end of this period.

IDI's Terrorism and Democracy Newsletter presents a summary and brief discussion of the decision.

The petitioners claimed [2] that the closing of Route 443 to Palestinian residents deprives them of the use of the only main road in the area, and compels them to use alternative roads, which makes travel longer, harder, and more expensive. The petitioners claimed that the closure of Route 443 “severely violates basic rights and disrupts the fabric of life of the approximately 30,000 residents of the six petitioning villages. ” The accessibility of the villagers to medical and emergency services was also harmed, because they were practically cut off from Ramallah and, thus, from receiving an education and earning a livelihood as well.

The petitioners also claimed that the exclusion of Palestinian traffic from Route 443 is illegal, since it creates an exclusively Israeli route for Israeli drivers only. By doing so, the military commander over the West Bank exceeded his authority under international humanitarian law (IHL), which refers only to securing military needs, as well as to protecting the interests of the local residents. The petitioners also claimed that the prohibition constitutes racial discrimination[3], collective punishment, and infringement of the Palestinian villagers' human rights (which include the right to free movement, the right to welfare, and the right to education) to a  disproportionately high degree. The petitioners further claimed that in an earlier petition, which dealt with the expropriation of part of the land on which the road was constructed, the State justified the expropriation measure by citing the transportation needs of the local Palestinian population; barring Palestinians from using the road thus negated the original justification for the expropriation[4].

In addition, the petitioners requested the annulment of the policy of barring Palestinian from Route 443 on the grounds that it was enforced without any legal authorization (as the policy was not formalized in a written order). However, following the submission of the petition, on 19 June 2008, the State issued such an order [5].  Nevertheless, the petitioners asked the HCJ to issue a decision on the basis of their other claims.

In addition, the petitioners demanded the opening of the Bituna route (a connecting road between Route 443 and Ramallah; the road has been closed for general traffic during the second intifada although goods can still be moved on it through a checkpoint which allows “back to back” transfers between trucks coming from Ramallah and Route 443). The opening of this route would help facilitate the movement of Palestinian villagers to and from Ramallah.

The main respondent to the petition was the State; however, two Israeli NGOs were allowed to join the petition as respondants –  “Shurat Hadin – Israel Law Center” and “Fence for Life – Public Movement for the Security Fence.”

In its response, the State acknowledged that the route was meant to be used by both Israelis and Palestinians. However, the outbreak of the second intifada dramatically changed the security situation in the area, and the prohibition against Palestinian traffic was required in order to protect the Israelis in the West Bank, including those who only traveled on Route 443. Therefore, the military commander decided to adopt several security measures, including the temporary closure of access roads connecting the Palestinian villages to Route 443, in order to prevent uncontrolled Palestinian traffic on the route. Free access to the road could aid in the execution of terrorist attacks (such as drive by shootings, kidnappings of Israelis, and car bombs).

The State alleged that the petitioners’s claims regarding the injuries caused by the traffic restrictions are exaggerated and unfounded since there are other roads connecting the Palestinian villages with Ramallah. Moreover, as part of the construction of the separation barrier, several “fabric of life” projects are being built in order to improve accessibility between the villages and Ramallah in an effort to minimize the difficulties cause by the road closures.

Furthermore, the State argued that the restrictions imposed by the military commander were necessary for security purposes and did not harm the local population in a disproportionate manner. Hence, the situation involved a lawful act of distinction between populations presenting different levels of security threat, as opposed to unlawful discrimination. The State also denied the petitioner’s assertion that the blocking of the road was designed to serve as collective punishment.

Finally, with regard to the Bituna route, the State claimed that the Bituna checkpoint currently does not have the appropriate infrastructure to allow for the movement of private cars and pedestrians. Moreover, opening  it to private vehicles and pedestrians would increase the threat of terrorist infiltrations into Israel territory and would expose the military personnel at the crossing point to attack.

In its response, Shurat Hadin emphasized the importance of Route 443 as one of the two main roads connecting the Tel-Aviv metropolitan area with Jerusalem, and the fact that Route 443 serves as the only road available to the Israeli towns in the area. Moreover, according to Shurat Hadin, when balancing the discomfort caused to the petitioners with the right to life of the Israelis, who are being protected by the prohibition, the right to life must prevail.  

The HCJ published its decision on 29 December 2009.

The majority opinion of the Court was written by Justice Uzi Vogelman. Justice Vogelman begins his legal analysis by explaining that the West Bank is under “belligerent occupation,” and that the military commander serves as the “long arm of the State.”[6]  Moreover, the military commander is not the ultimate legal authority over the territory, since he obtains his authority from the State, which is bound by several legal frameworks:  the relevant IHL provisions, the local laws that existed in the occupied area prior to the occupation, new legal rules issued by the military administration, and the principles of Israeli administrative law.

According to Justice Vogelman, there are two separate questions that must be addressed. The first question is whether the military commander acted within the scope of his legal authority when he issued the order to close Route 443 to Palestinian traffic. The second question relates to the legality of the military commander's discretion to issue such an order, both under IHL and Israeli administrative law.

With regard to the first question, Justice Vogelman held that the commander's exercise of authority must conform with international law as well and, in particular, with the IHL provisions concerning belligerent occupation –  the 1907 Hague Regulations, the Fourth Geneva Convention,[7]  and the relevant customary provisions of the First Additional Protocol to the Geneva Conventions.[8] Furthermore, when there's a lacuna in IHL, it can be filled by the relevant human rights law provisions.

Article 43 of the Hague Regulations [9] is the most relevant IHL provision, and the question of the commander's authority to set traffic limitations in occupied territories falls within the obligation to restore and ensure public order and safety. This obligation applies not only to the “protected persons” (i.e. the Palestinian residents of the West Bank), but also to the Israeli residents in the area and to the Israelis who drive through the area. Justice Vogelman goes on to stress that the military commander's obligation to protect the lives of the Israeli inhabitants in the West Bank also derives from Israeli law. In addition, Justice Vogelman mentions that in previous decisions, the HCJ held that the military commander has an obligation to ensure traffic safety in the area [10] and, therefore, has the authority to construct roads for security reasons, and may prevent the civilian population from using such roads. [11] Moreover, the military commander is also authorized to consider the safety of the State of Israel, and to protect it in the face of security threats.[12]

The fact that Route 443 was originally constructed for the benefit of the protected Palestinian population conforms with the military commander's authority under Article 43 of the Hague Regulations, and the use of the route by Israelis as well, does not add to or diminish from this legal framework. However, Justice Vogelman stated that had the original purpose of the route been to serve the Israeli population and to offer an alternative route from Tel-Aviv to Jerusalem, the military commander would not have had the authority to order its construction or use.

Although the military commander is authorized to impose limits on the use of such routes, as part of his obligation to secure public order and safety, this does not mean, however, that the military commander can impose a permanent prohibition against Palestinian traffic on a route. Such a prohibition would transform the de facto designation of the route to one meant only for Israeli domestic traffic. This de facto change of designation does not derive from the security considerations actually weighed by the military commander,  but rather constitutes the end result of the  prohibition. Therefore, since the end result creates an order that does not appear to fall within the military commander’s authority, the travel ban cannot remain standing and must be revoked. Justice Vogelman emphasized that in this case, the Court is not facing a situation in which the protected population is prohibited from using a certain road due to immediate security requirements (such as the situation at the outbreak of the second intifada), or for a short period of time; those situations require a separate discussion, and are not covered by the Court’s decision in this petition.

With regard to the second question (the military commander's exercise of discretion), Justice Vogelman noted that the actions of the military commander must be reasonable and proportionate, and that the fact that the actions were conducted according to military necessity and security considerations does not constitute sufficient grounds to deny judicial review of the military commander's decisions. Nevertheless, it should be noted that the HCJ does not pretend to be in the professional shoes of the military commander, or to replace his discretion. The HCJ inspects only the legality and reasonableness of the commander's decisions. When the military commander's decisions harm human rights interests, the HCJ will test the proportionality of such injury according to Israeli administrative law.[13]

In this case, the military commander has to balance three relevant considerations: the rights of the protected persons, the rights of the Israeli inhabitants, and the safety of the Israeli drivers passing through Route 443. This balance must meet the three tests of proportionality under Israeli administrative law: 1) the measures taken must rationally lead to the realization of their objectives (“rational means” test); 2) the measure must injure the individual to the least extent possible (“least injurious means” test); 3) the harm expected from the action should be proportional to the benefit gained from it (“proportionate means” test).  Justice Vogelman accepts that the present case passes the first test. However, with regard to the second test, Justice Vogelman states that it does not seem that the State considered other measures that might cause less injury to the Palestinian inhabitants. With respect to the third test, the Court must weigh the injury to the freedom of movement of the petitioners according to parameters, such as intensity, duration, and the reasons for the implementation of the measure in question. Justice Vogelman concludes that the security benefits gained from the restrictions are not proportionate to the injuries caused to the petitioners as protected persons.

Regarding the issue of the closure of the route without a written order, Justice Vogelman mentioned that such authority should only be invoked when, due to security reasons, there is a need for immediate closure for a short period of time. Otherwise, a written order must be issued.

With regard to the issue of travel through the Bituna checkpoint, Justice Vogelman accepted the State's argument that the nature of the checkpoint (it is currently used only for the transfer of goods) and its location render it vulnerable to terrorist attacks, and that extensive operative changes and the allocation of more personnel would be required in order to allow private traffic and pedestrians to pass through it. Therefore, he agreed that the opening of the checkpoint would entail serious security concerns, and that the Court should not intervene with the wide scope of discretion that the military commander has to address these concerns.

Therefore, Justice Vogelman found that the sweeping ban against Palestinian traffic on Route 443 must be revoked since it is ultra vires (exceeds the powers of the commander), and because of the disproportionate harm it entails. However, this decision does not mean that the military commander cannot impose certain limitations on Palestinian traffic, as long as these limitations are within his authority and the injury caused to protected persons is proportionate. In order to enable the military commander to put into place appropriate security measures, Justice Vogelman announced a five month postponement of the entry into force of the decision.

In her concurring opinion, President D. Beinisch, agreed with Justice Vogelman’s analysis based on  the issues of both authority and proportionality. Justice Beinisch referred to the petitioners' accusations that the prohibition against Palestinian traffic on Route 443 is tantamount to f apartheid, and stated that such prohibitions and measures must be viewed in the context of the relevant circumstances. The warfare tactics used by terrorist organizations necessitate the use of effective counter-terrorism measures, which may result in certain limitations on the freedom of movement and may involve a certain degree of separation between some populations. Such separation must be based only on legitimate security considerations, and not on race or nationality. Under these circumstances, she found the comparison to the crime of apartheid to be inappropriate and opined that the petitioners should not have raised this claim.

In a dissenting opinion, Justice E. E. Levy concluded that since the State is willing to apply a more proportionate solution to the security problem, it should be allowed more time to seek an adequate solution, since the five months afforded to the State in the majority opinion would not suffice to resolve the dangerous situation created by the judgment.  Justice Levy did not agree with Justice Vogelman’s analysis pertaining to the ultra vires nature of the closure order. According to Justice Levy,  it wasn't the military commander, but rather the State, that decided to build the route, which Israeli drivers chose to drive through. The military commander's mission remained the same:  to ensure the safety of traffic on that route and, therefore, his actions were within the scope of his authority.

With regard to the question of proportionality, Justice Levy agreed that the military commander should have employed a different measure that would have caused less injury to the petitioners. Nevertheless, Justice Levy believed that there was no need for the judgment to call for the opening of the route within five months, and that the Court should have instructed the State to present better alternative arrangements within a more appropriate timeframe.

This decision by the HCJ demonstrates some of the difficulties that a democracy faces when struggling with terrorism: the need to protect innocent civilians from terrorist attacks, and the obligation to respect the limits of the rule of law and to cause the least possible injury to the innocent civilians on the other side. Clearly, the Israeli case is more factually complicated as the issue of belligerent occupation and the original reason for the expropriation of land to construct the route are also relevant; moreover, from a legal perspective, the rights of the Palestinian population under IHL enjoy a high degree of legal protection that the interests of Israeli travelers on the road in question.

All these considerations ultimately led the HCJ to reject a formula of balance that sweepingly prioritizes the safety of the Israeli population over the rights and interests of the Palestinian population.

Note that all three Justices agreed that the measures taken by the military commander were disproportionate (under Israeli administrative law) in light of the duration of the prohibition and the availability of possible alternative security measures that would have caused less injury to the Palestinian population in the West Bank. One could speculate what would be the outcome if in five months the State would announce that after a thorough examination of the security options, the only adequate measure available is the continuation of the prohibition against Palestinian traffic on Route 443. This, of course, would not alter the majority opinion with respect to the military commander’s lack of authority to impose this measure under IHL and, therefore, the decision would still stand. As a result, the real implications of the judgment may be that if military considerations inevitably require separation among populations, the interests of the local population should be given “right of way” over those of the Israelis; in that case, the Route should be opened for Palestinian traffic only.

The judgment’s importance may prove in the long run to be the rejection or, at least, the mitigation, of security measures based on the separation of populations. While such measures may minimize friction and offer a relatively high level of security, they tend to be sweeping and to raise problematic historical associations. The court’s rejection of an Israeli road system in the West Bank, the “security risk versus the infringement of human rights” discourse, and the implicit prioritization of protected persons’ interests may serve as important bulwarks against future attempts to impose separation within areas controlled by Israel (as opposed to separation between areas controlled by Israel and areas controlled by the Palestinians, whereby the considerations cited by the court are inapplicable).

1. HCJ 2150/07 Abu Safiya v. Minister of Defense (hereinafter: “HCJ Abu Safiya”) <English synopsis>, <Complete text in Hebrew>.
   
   
2. http://acri.org.il/pdf/petitions/hit2150eng.pdf 
   
   
3. According to the International Convention on the Elimination of all Forms of Racial Discrimination, 1966.
   
   
4. HCJ 393/82, Ja'iyyat Iskan Almu'aliman Almahddudat Almas'uliyyah v. Commander of IDF Forces in Judea and Samaria.
   
   
5. http://acri.org.il/pdf/petitions/hit2150zav.pdf 
   
   
6. HCJ Abu Safiya, paragraph 14.
   
   
7. Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949.
   
   
8. Additional Protocol I of 8 June 1977 to the Geneva Conventions of 12 August 1949.
   
   
9. When the authority of legitimate power has, in fact, passed into the hands of the occupant, the latter shall take all the measures in its power to restore, and ensure, as far as possible, public order and safety, while respecting, unless it is absolutely impossible, the laws in force in the country.
   
   
10. HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria.
    
    
11. HCJ 202/81 Tabib v. Minister of Defense; HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip.
    
    
12. HCJ 5539/05, Atallah v. Minister of Defense.
    
    
13. HCJ 7954/04 Mara'abe et al. v. The Prime Minister of Israel et al.