Summary of High Court of Justice Ruling on the Fence Surrounding Alfei Menashe - HCJ 7957/04

An expanded panel of nine justices of the Supreme Court of Israel, sitting as a High Court of Justice, handed down its judgment today (September 15, 2005) in a petition dealing with the legality of the security fence in the area of Alfei Menashe.

Alfei Menashe is an Israeli settlement in Samaria, southeast of the Palestinian town of Qalqiliya, approximately 4 km beyond the Green Line. The security fence by Alfei Menashe was built in August 2003 and surrounds Alfei Menashe and five Palestinian villages, creating an enclave between the fence and the Green Line.

The IDF issued "permanent resident cards" to the residents of the villages, which allow them to live in the enclave and travel from it to the rest of the West Bank and back, through a number of gates in the fence. Palestinians who are not residents of the villages are allowed to enter the enclave if they hold permits from the IDF.

The petition was submitted by residents of the villages and by the Association for Civil Rights in Israel. The petitioners argued that the fence is not legal, and that it should be dismantled and rebuilt on the Green Line. In any case, they contended, there is no justification for including the villages in the enclave.

In the petition, which relied upon the Advisory Opinion of the International Court of Justice at the Hague, it was also argued that the state is not authorized to erect the fence, due to a lack of security-related necessity and due to the creation of de facto annexation of the enclave to the State of Israel.

It was also contended that the fence does not satisfy standards of proportionality which were set in the judgment of the Supreme Court of Israel in The Beit Sourik Case (HCJ 2056/04), due to the fact that the enclave causes great injury to the residents of the villages.

The state responded that there is a security need for the fence at Alfei Menashe, and that there is no justification to dismantle it or change its route. The state did not deny the injury to the Palestinian residents, but claimed it had made a series of improvements in infrastructure and logistics, intended to ease the injury to the residents of the villages, to the extent possible. In light of these improvements, the state was of the opinion that the fence route balances appropriately between the rights of the residents and the security needs, and that that balance is proportionate.

The judgment was given unanimously in an opinion written by President Aharon Barak, in which concurred Vice President Cheshin and Justices Beinisch, Procaccia, Grunis, Naor, Jubran, and Chayut. Justice Levy concurred in the judgment's result. The Supreme Court allowed the petition, in the following sense: it ruled that the state must, within a reasonable period, reconsider the various fence route alternatives at Alfei Menashe, while examining security alternatives which cause less injury to the lives of the residents of the villages in the enclave. In this context, the court ordered examination of the alternative by which the enclave would include only Alfei Menashe and a road connecting it to Israel, while moving the existing road that connects Alfei Menashe to Israel to another location in the south of the enclave.

The court discussed the fact that Judea and Samaria are held by Israel in belligerent occupation under international law, according to which the military commander is authorized to erect a fence in order to protect the lives and safety of Israeli settlers there. Second, Israelis living under Israel's control in belligerent occupation are entitled to the constitutional rights which the Basic Laws and Israeli common law grant to every person within Israel. Thus, among his considerations, the military commander takes into account the Israeli residents' security, lives, property rights, freedom of movement, freedom of occupation, and their other rights recognized under Israeli law.

In determining the route of the fence, the military commander must take two considerations into account. On the one hand is the security-military consideration, by force of which the military commander may take into account considerations regarding defense of the state. On the other hand is the consideration of the human rights of the local Arab population. These considerations clash with each other, regarding the construction of the fence, and the military commander must balance appropriately between them.
The balancing is to be performed according to the principle of proportionality, which is based upon three subtests which give it concrete content. The court referred to the Beit Sourik ruling, by which the question of the legality of the fence according to international law should not be answered sweepingly.  One must examine each segment of the route and check whether it impinges upon the rights of the Palestinian residents, and whether the impingement is proportionate.

In its decision, the court examined the extent to which the Advisory Opinion of the International Court of Justice at the Hague affects the approach of the Supreme Court of Israel regarding the legality of the fence according to international law. The court found that although the normative basis upon which the ICJ and the Supreme Court of Israel in the Beit Sourik case based their decisions was a common one, the courts reached different conclusions due to the difference in the factual bases upon which each ruled.

The ICJ based its judgment upon the factual basis regarding the injury to the rights of the Palestinian residents, without dealing with the factual basis regarding Israel's security-military need to erect the fence. In contrast, in the Beit Sourik case, an extensive factual basis was laid before the court regarding both the impingement upon the human rights of the local residents and the security-military needs. This comprehensive factual basis allowed the court to decide that certain segments of the fence violate rules of international law, while others do not.

The other difference regards the intensity of the impingement upon the rights of the local residents, as the information relayed to the ICJ contained imprecise information. As a result of the factual basis before the ICJ, full weight was placed on the rights violation side of the scales, but no weight was given to the security-military needs; therefore, there was also no discussion of the question of the impingement's proportionality.

The difference between the ways each court holds proceedings also contributed to the difference between the results. The case before the ICJ regarded the entire fence route, and did not allow separate analysis of its various segments. The Supreme Court of Israel deals with individual sections. So far about 90 petitions have been submitted, half of which have been concluded;  mostly by agreement of the parties after alterations to the fence route.

In its ruling, the court asserted that the decision to erect the fence at Alfei Menashe was made to defend Israeli lives against the terrorist attacks that have plagued Israel since September 2000 and that security-military considerations prevented building the fence on the Green Line. However, the court decided that the route of the fence did not meet the criterion of proportionality with regard to the Arab villagers.

The court held that the fence makes the lives of the enclave residents very difficult by creating a chokehold around the villages, thereby harming the entire fabric of life. Against this background, the Court examined the question whether the injury to the residents of the villages in the enclave is proportionate.

The court rejected the petitioners' argument that the state could make due with a fence on the Green Line, saying this would leave Alfei Menashe on the eastern side of the fence, vulnerable to terrorist attacks. However, the court stated that the necessary effort had not been made to find an alternative route that could ensure security and cause less injury to the residents of the villages.

Thus, the court issued an absolute injunction ordering the state, within a reasonable period, to reroute the security fence at Alfei Menashe to minimize the harm it causes residents of the Palestinian villages in the enclave.