HCJ Approves Route of Separation Barrier within Jerusalem Municipal Borders [HCJ 7337/05] [15.3.2010]

On 15 March 2010, the Israeli High Court of Justice (HCJ) published its decision on petitions concerning the route of the separation barrier near the village of Sheikh Se'ad and the construction of a connecting road in the West Bank.[1]  The Court, upon taking into consideration all the relevant factors and the construction of the connecting road, concluded that the planned route of the barrier adequately balances Israel’s security needs and the harm caused by the route to the residents of Sheikh Se'ad. The Court also held that the alternative route proposed by the petitioners would cause even more harm to the local residents.

In this article, we present a brief summary and discussion of this decision as part of the ongoing coverage of developments related to Israel’s counter-terrorism measures by IDI’s Terrorism and Democracy Newsletter.

Sheikh Se'ad is a village in the West Bank that borders on the eastern municipal border of Jerusalem, next to the Jabel Mukabar neighborhood, which is located in East Jerusalem. The 1,500 residents of the village include Palestinians and citizens of Israel.

The route of the separation barrier in question passes through East Jerusalem, which is located within the municipal border of Jerusalem and has been governed by Israeli law since it was annexed on 1967. The confiscation order required to build the separation barrier was issued by the General Director of the Ministry of Defense (and not by the IDF West Bank authorities). According to the plans related to Sheikh Se'ad village area, the barrier would comprise an eight-meter high wall and the residents of the village would only pass into Jerusalem through a crossing point that would be built in the northern part of the village. Moreover, in order to build a new road and to facilitate the residents’ access to the crossing point, the military commander in the West Bank issued a confiscation order pertaining to plots of land within the village.

The construction of this segment of the barrier began on 26 August 2003. On 4 April 2004, the residents of the village lodged an appeal against the confiscation of their land. On 19 March 2006, following a request by the residents of the village, the Administrative Appeal Committee, which was established by the Emergency Land Requisition (Regulations) Law of 1949 to enable lodging objections against land confiscation orders by the Ministry of Defense, accepted the appeal against the planned route. It held that separating the village from the nearby Jabal Mukabar neighborhood would seriously disrupt the villagers’ everyday life. At the same time, the Administrative Appeal Committee concluded that there was an alternative and more proportionate route for the barrier that would simultaneously serve the security needs and minimize the harm caused to the village residents. This alternative route would pass along the eastern side of the village (within the West Bank) and, therefore, would include the village in the "Israeli side" of the barrier. The Committee noted that it has no legal authority to order construction in the West Bank, which is outside of Israel's territory, or to prevent the Israeli government from constructing the barrier within the municipal border of Jerusalem. However, it deemed that the planned route generated disproportionate harm and, therefore, that the State authorities should reconsider this section of the route.

The State filed a petition to the HCJ challenging the Administrative Appeal Committee’s decision.[2]  According to the State, the Committee's decision forces the State to build the barrier within the West Bank, despite the fact that such a course of action is not justified by security necessity. Moreover, the implication of constructing the barrier on the eastern side of the village would be that the Palestinian residents of the village would have to obtain special permits in order to cross the barrier into the West Bank; at the same time, a security fence on the western side of the village would control unauthorized movement into Jerusalem.

The residents of the village filed a separate petition against the confiscation of the land by the military commander in the West Bank.[3]  According to the petitioners, the purpose of the planned connecting road was to facilitate the separation of the village from the Jabel Mukabar neighborhood.

The President of the Court, Justice Dorit Beinisch, who wrote on behalf of the Court, held that since the original route of the barrier was located within the municipal border of Jerusalem, the relevant legal framework is Israeli legislation and the administrative laws that authorize the State to confiscate land to meet security requirements. Moreover, in accordance with previous HCJ rulings, the designation of the route of the barrier must be reasonable and proportionate in nature and must take into account the rights of the people who might get harmed as a result of the construction.[4]

According to Justice Beinisch, all parties to the case accept that the Government has complete legal authority to build the separation barrier within Israel's territory. Moreover, there is a legitimate security justification for the route of the barrier in question – building an obstacle to separate the territory of Israel from the West Bank in order to prevent terrorists from crossing into Israel from the West Bank. Therefore, the main issue in this case concerns the proportionality of the designated route.

Under Israeli administrative and constitutional law, there are three sub-tests of proportionality that must be examined. The first is the rational means test – whether the measures taken rationally lead to the realization of their objectives; the second test is the least injurious means test – whether the measures taken harm the individual to the least extent possible; the last test is the strict proportionality means test – whether the anticipated harm from the action is proportional to the benefit gained from it.

President Beinisch held that with regard to the first test, the route of the barrier fully complies with its stated security purpose. The second test, the least injurious means test, which was the grounds for the Administrative Appeal Committee’s decision to revoke the planned route of the barrier since an alternative route through the West Bank exists, is fulfilled by the route designated by the State.

President Beinisch noted that she accepts the State's claim that changing the route and constructing the barrier in the West Bank without a compelling security justification for such rerouting, as suggested by the Committee, would run contrary to the rules of both Israeli and international laws. Moreover, the construction of the barrier on the eastern side of the village would block the village on both sides with a barrier between the village and the West Bank, and a fence to control the movement of people into Jerusalem. As a result, the residents of the village would be subject to a tight regime of permits, restrictions, and obstacles whenever they would want to step out of the borders of the village. Therefore, Justice Beinisch held that she cannot accept the Administrative Appeal Committee’s conclusion that the proposed alternative route would minimize the harm caused to the residents of the village.

Moreover, Justice Beinisch found an alternative solution that would facilitate the movement from the village into Jerusalem without changing the route of the barrier. This solution is based on the proposal of the Committee to construct a fence between the village and Jerusalem with a 24-hour open crossing point. Justice Beinisch held that this solution could apply to the current route of the barrier and, therefore, she revoked the Administrative Appeal Committee’s decision and ordered the State to maintain a gate in the barrier that would be open 24 hours daily so as to enable movement from the village into Jerusalem.

President Beinisch also held that the petition against the requisition of village land to pave a road for the villagers should be rejected, because the planned connecting road would not separate the village from Jabal Mukabar, and would enable easier access to the main towns in the West Bank.

Finally, with regard to the third test of proportionality, Justice Beinisch concluded that as long as the State maintains a 24-hour open gate that would allow the residents of the village who are permitted to enter Jerusalem to do so, the current route would fulfill the third test as well.

This case presents an interesting situation in which the Government planned the route of the barrier through areas that are located in East Jerusalem which are, therefore, governed by Israeli law. The residents of the village in the West Bank, however, claimed that it would be more proportionate to change the route and set it within the West Bank, despite the absence of military necessity to support this rerouting. In her decision, President Beinisch compared the harm to the village under both of the proposed alternatives and held that the current route that had been designated by the State is more proportionate than the one that was proposed by the by the Administrative Appeal Committee.

As in previous decisions,[5] considerations related to the long-term implications of the barrier for the “fabric of life” in the “seam area” take a back seat to security concerns.  While in many cases, the dominance of security considerations supports the routing of the barrier inside the West Bank, in the present case the same considerations point in the other direction.

This case also illustrates the difficulty of constructing the barrier in East Jerusalem, which would separate two Palestinian populations. From the perspective of Israeli law, the distinction between the areas located inside and outside the municipal boundaries of Jerusalem are highly relevant; from an international law, as well as from a humanitarian law perspective, this distinction is less persuasive.

1. HCJ 7337/05 Shakir v. IDF Military Commander in the West Bank, 15 March 2010 <Hebrew>
   
   
2. HCJ 4343/06 State of Israel v. Sheikh Se'ad
   
   
3. HCJ 7337/05 Shakir v. Military Commander in the West Bank
   
   
4. HCJ 5488/04 Alram v. Government of Israel <Hebrew>.
   
   
5. Such as HCJ 11344/03 Salim et. al v. The Military Commander in the West Bank, 9 Sept 2009. For further discussion of this case, see the fifteenth issue of the IDI's Terrorism and Democracy Newsletter.