JUDGMENTS OF THE
ISRAEL SUPREME COURT:
FIGHTING TERRORISM
WITHIN THE LAW
Volume 2
2004-2005

The Supreme Court of Israel
The Ministry of Foreign Affairs
Jerusalem

This volume is a compilation of several important cases heard by the Supreme Court of Israel on terrorism, security activities and Israeli policy in the West Bank. The previous volume of Judgments of the Israel Supreme Court: Fighting Terrorism within the Law, reported on cases from 1997 to 2004. This successor volume contains cases from 2004 and 2005.

The years 2004 and 2005 were significant in the development of Israel’s security policy. First, Israel disengaged from the Gaza Strip, removing Jewish settlements and its army presence in the area. Second, these years saw a marked increase in the building of a security fence meant to impede terrorist movement into Israel from the West Bank. Diplomatic efforts were undertaken; a summit was held between Israeli Prime Minister Ariel Sharon and Palestinian President Mahmoud Abbas in Sharm el-Sheik, Egypt, on February 8, 2005. Finally, Israel continued implementing steps to protect its citizens from terrorist attacks.

These events led to a number of important cases to be presented in the Israeli High Court of Justice. This volume provides a sample of these decisions. The Beit Sourik (June 2004) and Alfei Menasheh (September 2005) cases analyze the legal requirements and rationale behind the security fence. In the Bethlehem Municipality (February 2005) case, the Court explored conflicting rights related to safe access to Rachel’s Tomb in Bethlehem. The Early Warning (October 2005) case looked at the involvement of local residents in terrorist apprehensions. The Almagor (February 2005) case dealt with the legality of the prisoner release action negotiated in the Sharm el-Sheik summit. The final case (December 2005) examined administrative detention of a Hamas militant caught on his way to commit a suicide bombing.

The High Court of Justice is one of the roles assumed by the Israeli Supreme Court. In this function the Court reviews the activities of public authorities, including the security forces, to ensure they are in line with the law (see section 15(4)(2) of the Basic Law: The Judiciary). This judicial review is exercised as a first instance. This means that the High Court of Justice is the first court to address the case, and it is not a court of appeal. The High Court of Justice is also the last instance. There is no appeal on the Court's rulings, as it is the highest judicial instance in Israel.

Usually the panel is composed of three justices, but for petitions of particular importance, a larger panel with an odd number of justices may preside (to date, up to 15). The High Court of Justice need not adjudicate every dispute brought before it. It has the discretion to establish locus standi (who have the right to initiate a proceeding) and to decide whether a dispute is justiciable (if it is an appropriate case for the Court to address). Over the years the Court has demonstrated a flexible approach regarding locus standi and justiciable doctrines. It has been willing to hear petitions brought by public organizations with no personal interests in the dispute which clearly set out the principle issues of the dispute. The Court has also frequently shown readiness to adjudicate military and security cases. This flexibility forms the basis for the numerous judicial decisions of the Court centering on the war on terror.

The High Court of Justice is ever busy adjudicating petitions lodged against public bodies operating in the State of Israel. In addition, it hears petitions by residents of the West Bank and Gaza Strip brought against the activities of the Israel Defense Forces and other security bodies in these areas, as well as
petitions brought by public organizations (with no personal interests) against these operations. The Court's authority to preside over these cases stems from the view that the security forces operating in the West Bank and Gaza Strip are also public bodies which are subject to the law. This policy, which was
crystallized after the Six Day War of 1967, allows Palestinian residents to petition the Israeli Supreme Court and subjects the operations of Israel in the territories to judicial review. Most of the judgments presented in this booklet are an expression of this judicial review.

Table of Contents

Introduction

Israel's Security Fence
- HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel
- HCJ 7957/04 Zaharan Yunis Muhammad Mara'abe v. The Prime Minister of Israel

Safe Access to Rachel's Tomb
- HCJ 1890/03 Bethlehem Municipality et Al v. The State of Israel - Ministry of Defense

The "Early Warning" Procedure
- HCJ 3799/02 Adalah v. GOC Central Command

IDF Prisoner Release
- HCJ 1671/05 Almagor - Organization of Terrorism Victims v. The Government of Israel

Administrative Detention
- HCJ 11026/05 A v. The Commander of IDF Forces in the Judea and Samaria Areas