West Bank Barrier
(From the Yearbook of International Humanitarian Law)
The case concerned the petition of a Palestinian village council against the seizure of lands belonging to various West Bank villages located North West of Jerusalem for the purpose of constructing a separation barrier designed to curb terror attacks against Israeli citizens. According to the petitioner, the 40 km barrier stretch challenged in the proceedings will span four km2 and would bar the villagers’ access to 37 km2 of agricultural land. The barrier is also expected to hinder movement between the villages and East Jerusalem and create numerous other hardships. The petitioner claimed that the construction of the barrier is unlawful since it is designed to protect Israel’s interests, and not the interests of the local population or those of the occupation forces themselves. It also alleged that the route of the barrier had no military justification but was rather intended to annex West Bank lands to Israel; that the seizure procedures suffered from various irregularities; and that the harm to Palestinian interests was disproportionate to any military benefits that might appertain to the barrier. An Israeli NGO – the Council for Peace and Security – joined the proceedings, as did several residents of the Israeli town of Mevaseret Zion (situated within Israel proper, in proximity to the route of the barrier).
The court’s judgment confirmed the applicability of the laws of belligerent occupation found in the 1907 Hague Regulations and 1949 Fourth Geneva Convention (whose humanitarian rules Israel undertook to apply to the Occupied Territories, notwithstanding its arguments regarding the Convention’s formal applicability) to questions concerning the legality of the barrier, alongside Israeli administrative law. According to these bodies of law, the court held that the military commander may, in principle, erect a security barrier in occupied territories, but his authority is limited: ‘the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other. In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the State. This Court emphasized that the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary. Permanent arrangements are not the affair of the military commander. They stated that the belligerent occupation of the area has gone on for many years which affects the scope of the military commander’s authority but that the passage of time, however, cannot extend the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation.
Since the court accepted the evidence presented by the Israeli military that the barrier’s route was exclusively dictated by military considerations, it declined to strike down the barrier in to: ‘Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centres.’ The court held, however, that the barrier’s route must balance between security needs and the rights of the local population (mainly provided for in Article 46 of the Hague Regulations and Article 27 of the Fourth Geneva Convention), and that the general principle of international law and Israeli administrative law governing that balancing act is the proportionality principle. This test comprises, according to the Court, several sub-tests: a rational link between means and objectives, a least injurious alternative, and proportionality in the ‘narrow sense’, i.e., relations of proportionality between harm and benefits. This last subtest is to be applied in a relative manner, in the light of existing alternatives which might produce better harm-benefit ratios. In applying these standards, the court noted that the military authorities are entitled to deference by virtue of their expertise and ultimate responsible for security.
The Court nullified seven seizure orders (out of the eight orders reviewed) relating to specific land seizure decrees covering some 30 km of the reviewed 40 km of the barrier, by reason of their disproportionate injury upon the rights of the Palestinian villagers in the area. In reaching that conclusion, the Court emphasised that alternative barrier routes exist offering slightly lesser security protection but considerably reduce humanitarian harm. It thus instructed the military authorities to reroute the barrier in the light of the proportionality requirements introduced in the judgment.