Supreme Court Rejects Petition against Opening Route 443 to Palestinian Traffic [HCJ 3607/10] [27.6.2010]

On 27 June 2010, the Israeli Supreme Court, sitting as the High Court of Justice (HCJ), rejected a petition [1] against the opening of Route 443 to the movement of Palestinian vehicles.  This petition followed a previous decision by the HCJ in December 2009, which ruled that the continued closure of the road to Palestinian traffic could not be justified and gave the State five months to enact security measures and reopen the route to Palestinian vehicles. [2]

Route 443, a highway that traverses Palestinian areas as it runs between Jerusalem and Tel Aviv, was closed in effect to Palestinian traffic in 2002, following attacks against Israeli motorists during the second Intifada. According to the new Court decision, the Military Commander’s choice to allow Palestinians to use this road, subject to security checks, strikes a reasonable balance between the competing sets of rights and security concerns. In addition, the court decided that there is no need for it to interfere in the Military Commander’s exercise of discretion.

In this issue, IDI's Terrorism and Democracy Newsletter presents a summary and brief discussion of this decision as part of our coverage of judicial decisions relevant to the legality of counter-terrorism measures.

On 29 December 2009, the HCJ issued a decision striking down the complete ban that the West Bank Military Commander imposed on the travel of Palestinian vehicles on Route 443. According to the HCJ, the decision of the Military Commander was both ultra vires (beyond its powers) and disproportional. The Military Commander was given five months to establish appropriate security arrangements for the movement of Palestinian vehicles on the highway.

Following this decision, the highest ranking officials within the security, legal and administrative communities arrived at a new arrangement that would enable the movement of Palestinian vehicles while maintaining the security of all travelers on the route. In accordance with this arrangement, the IDF established two check points that allow Palestinian vehicles to get on and off the highway 24 hours a day, after passing a security inspection. Two additional crossing points were established to enable vehicles to exit the road, although no vehicles would be allowed to enter the highway from these points. The movement of Palestinian vehicles remained prohibited in the Eastern-most segment of Route 443, in the section leading to Jerusalem and the town of Giv'at Ze'ev (a Jerusalem suburb located in the West Bank).

As a result of this new arrangement, a petition to the Israeli HCJ was filed by Shurat HaDin—an Israeli NGO that provides legal representation for victims of terror—and by several other Israeli citizens who frequently commute on Route 443.  The petitioners claimed that the new arrangement endangered the lives of travelers on the highway and the lives of Israelis residing in its vicinity. In support of the claim, the petitioners submitted a written expert opinion by retired IDF General Uzi Dayan, which claimed that the Military Commander's new arrangement is problematic and will most likely result in bloodshed and, eventually, in policy reversal. According to the petitioners, the new check points do not fully guarantee security and their existence will not prevent the introduction of weapons into the area by Palestinians. The petitioners thus argued that the new arrangement disproportionately infringes on the right to life of Israeli commuters.

In its reply, the State claimed that the new travel arrangements for Route 443 conformed to the previous ruling of the HCJ on the issue. Moreover, the State asserted that when establishing the new arrangements, the authorities took into account the danger to travelers and tried to find the best possible solutions to minimize those threats. The State thus claimed that the petitioners failed to prove that the new arrangements were unreasonable. It also claimed that the petitioner failed to suggest an alternative solution that would enable movement of Palestinian vehicles while maintaining the security of Israeli travelers on the highway.

On 27 June 2010 the HCJ published its decision rejecting the petition.

After reviewing the arguments of the petitioners (including the expert opinion of General Dayan) and the arguments of the State, the HCJ held that there was no reason to interfere with the discretion exercised by the Military Commander in deciding upon the new travel arrangements. The new arrangements were established pursuant to the previous ruling of the HCJ, considered all the relevant issues, and found the balance between the need to facilitate Palestinian travel and the need to preserving the security of travelers on the route. As long as the Military Commander takes only the appropriate considerations into account, the HCJ will not interfere with his decisions lightly. In addition, the HCJ held that since the Military Commander is the state official who bears responsibility over the area in which the road is located, he is entitled to a large measure of discretion with regard to security matters.

The Court accepted the State’s position that the Military Commander took into account only relevant considerations and tried to balance conflicting needs by establishing appropriate new arrangements. One of the considerations taken into account was the fact that Route 443 is a main artery that connects between the Tel-Aviv area and Jerusalem and is therefore considered to be a primary target area for terror attacks. While protecting the security of travelers, the new arrangements impose only minimal limitations on Palestinians traveling on the Route and allows them to satisfy most of their travel needs.

The HCJ acknowledged that the balance that was struck entails both a certain level of risk and certain limitations on the Palestinians. However, the Court accepted the Military Commander’s view that the balance that was struck is reasonable.

In this decision, the HCJ reaffirmed that the Military Commander of an occupied territory has a large amount of discretion in formulating counter-terrorism policies. Once the Commander shows that relevant considerations have been taken into account, and that each consideration has been assigned weight in the decision making process, the HCJ will rarely interfere with his security decisions.

It remains questionable, however, whether the ultimate outcome in the case of Route 443 represents a correct application of the international law of belligerent occupation (i.e. the laws governing occupied territories). The “horizontal balancing” between the rights of Israeli and Palestinian travelers on this highway may lead, in effect, to limited use of this route by Palestinian travelers. This would, in effect, reverse the original designation of Route 443 by the Israeli authorities as a road intended to serve Palestinian travel needs.

1. HCJ 3607/10 Shurat HaDin v. Ministry of Defense, 27.6.2010 <Hebrew>
   
   
2. HCJ 2150/07 Abu Safiya v. Ministry of Defense. For further discussion, see the thirteenth issue IDI'S Terrorism and Democracy Newsletter.