HCJ Rejects Petition against the Route of the Separation Barrier [HCJ 3937/07] [04.01.2010]

The Israeli High Court of Justice (HCJ) recently rejected a petition regarding the route of the separation barrier through the town of Beit Sahour, located in the West Bank near East Jerusalem.[1]  The HCJ concluded that the injury caused by the route of the barrier crossing through the town was proportionate to the security considerations applied by the military commander, and that the route was determined on the basis of legitimate security concerns, and not according to political considerations.

In this article, we present a brief summary and discussion of this decision as part of the ongoing coverage of relevant judicial decisions by IDI’s Terrorism and Democracy Newsletter.

In 2002, the IDF's military commander in the West Bank expropriated 70 dunams (approximately 17 acres) of land in the town Beit Sahour and began the construction of the separation barrier in this area. As a result of the designated route, the land of Beit Sahour was separated, leaving 96 dunams (approximately 24 acres) on the side of the barrier that is in close proximity to the Har Homa (Jabal Abu Ghneim) residential neighborhood. In order to facilitate movement in and out of this “enclave”, the IDF built an “agricultural gate”  in the barrier.

The petitioners, who filed their petition on 2007, leveled two claims against the route of the barrier. The first relates to the authority of the military commander. According to the petitioners, the specific route of the barrier was selected for political reasons with the intention of laying the ground for the future annexation of the land remaining on the side of the barrier near Har Homa.

The second claim challenges the exercise of discretion by the military commander in designating the route. The petitioners claimed that the injury caused to them as a result of the barrier's route was disproportionate and, therefore, the route should be modified so that the barrier is built along Jerusalem's municipal border.

In its response, the State claimed that the petition should be dismissed due to the extensive delay between the beginning of the construction of the segment of the barrier in question in 2002 (which was completed in 2003) and the submission of the petition in 2007.

With regard to the petitioners’ first claim, the State emphasized that the military commander's decision was based only on security considerations, and that the designated route was necessary due to the topographic features of the area, since one of the purposes of the barrier is to prevent shootings directed at the residents of Jerusalem, and to allow a certain distance between the barrier and the nearby residential areas to protect residents in situations of hot pursuits of infiltrators.

With regard to proportionality, the State claimed that, in general, the route of the barrier follows the Jerusalem municipal border. However, when required due to security considerations, the military commander made the necessary adjustments in order to lay down another, more appropriate route. The security gains deriving from the existing route are extensive and the injury to the petitioners is not severe, especially since the land in question on the other side of the barrier is uncultivated rocky ground and given that the State built an agricultural gate in order to facilitate movement in and out of this “enclave”.

On 4 January 2010, the HCJ published its decision to reject the petition.

The President of the HCJ, Justice D. Beinisch, who wrote the decision, first addressed the question of the delay in filing the petition. Justice Beinisch held that the four years that had elapsed between the completion of the barrier in the area and the filing of the petition constitute a significant delay; however, due to the need to minimize the harm to the petitioners as a result of the barrier, the HCJ would agree to scrutinize the merits of the petition.

Regarding the authority of the military commander to issue the relevant orders, Justice Beinisch referred to previous HCJ rulings, which upheld the authority of the military commander to expropriate property in order to construct the separation barrier.[2]  However, these rulings also established that such authority only makes allowances for security concerns, and not  political considerations.

President Beinisch noted that the petitioners did not provide any factual basis to support their claim that the purpose of the route in question was political and intended to ultimately transfer more land for the expansion of the Har Homa neighborhood. Moreover, the State succeeded in proving that the current routes are effective and necessary. The proven security justifications include topographic considerations and the creation of a minimal security buffer zone of 300-550 meters between the barrier and the nearest residential buildings in Jerusalem. Therefore, the military commander's considerations constitute legitimate security considerations, which he is authorized to weigh.

With regard to the question of proportionality, Justice Beinisch considered the balance between the security considerations, on one hand, and the rights of the local residents, on the other.  This balance must meet the three tests of proportionality under Israeli administrative law: 1) the measure taken must rationally lead to the realization of their objective (the “rational means” test); 2) the measure must only injure the individual to the least extent possible (the “least injurious means” test); 3) the harm expected from the action should be proportional to the benefit gained from it (the “proportionate means” test). Justice Beinisch held that all three tests were fulfilled in this case. The barrier was constructed at a distance from the municipal border of Jerusalem for legitimate security reasons. With regard to the second test, Justice Beinisch noted that the professional opinion of the military commander regarding the security advantages of the current route had not been refuted. With regard to the proportionate means test, Justice Beinisch accepted the State's claim that the injury to the petitioners is relatively limited compared to the security rationale for the construction of the barrier.

Therefore, Justice Beinisch concluded that the petition should be rejected since the military commander acted within his authority and the chosen route is proportionate. It should be noted that the Justice clarified that the decision is based, inter alia, on the existence of an operational agricultural gate, which allows the movement of the Palestinians in and out of their land.

As in previous decisions, the HCJ emphasized that it is not prone to interfere in operational counter-terrorism decisions adopted by the security forces in the West Bank.[3]  Nevertheless, the court subjects such decisions to scrutiny under the different proportionality tests in order to ensure that the resulting injury is appropriate, unavoidable, and minimal. This strategy of legitimizing the West Bank barrier, while reducing its humanitarian costs, has enabled the HCJ to “square the circle”,  i.e., to apply international humanitarian rules, without openly challenging the broader political implications of the project.

1. HCJ 3937/07 Beit Sahour v. Prime Minister (4.1.10) <Hebrew>
   
   
2. HCJ 2056/04 Beit Sourik v. The Government of Israel (30.6.04); HCJ 7957/04 Mara'abe v. The Prime Minister of Israel (15.9.05)
   
   
3. See HCJ 2150/07 Abu Safiya v. Minister of Defense. For the complete discussion of this case, please see the thirteenth issue of the IDI's Terrorism and Democracy Newsletter.