The Judgment on the Fence Surrounding Alfei Menashe

An expanded panel of nine justices ordered the state “to reconsider, within a reasonable time, alternatives to the route of the Barrier by Alfe Menashe.” The decision followed the High Court of Justice's finding that the existing route of Barrier disproportionately violates the human rights of Palestinians living in an enclave of five villages. The court directed the state to consider an alternative according to which the Barrier would enclose only the Alfe Menashe settlement and the road linking it with Israel, and not the Palestinian villages. This is the first time that the court has voided a section of the Barrier that has already been built. The court left open the question of what happens if the state concludes that “the existing route is the only route that will provide the minimum degree of security needed.”In its decision, the court ruled that the military commander in the West Bank must protect the lives and ensure the safety of the settlers, and that the Separation Barrier is a lawful means to achieve this goal.

An expanded panel of nine justices of the Supreme Court of Israel handed down its judgment today (September 15 2005) in a petition dealing with the legality of the separation fence in the area of Alfei Menashe. Alfei Menashe is an Israeli community in Samaria, southeast of the Palestinian town of Qalqiliya, approximately 4 km beyond the Green Line. The separation fence by Alfei Menashe was built in August 2003, and surrounds Alfei Menashe and five Palestinian villages, creating an "enclave" which "brings" them over to the "Israeli" side of the fence. The enclave is part of the "seamline area" - the area 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 IDF forces. The petition was submitted by residents of the villages, with support from the village council heads, and by the Association for Civil Rights in Israel. The petitioners argue that the fence is not legal, and that it should be dismantled and rebuilt on the Green Line. In any case, they contend, there is no justification for including the villages in the enclave. In the petition, which relies upon the Advisory Opinion of the International Court of Justice at the Hague, it is 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 territory to the State of Israel. It is 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). That is 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 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 is 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 today is given unanimously. The main opinion was 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, whilst 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 the Judea and Samaria areas are held by Israel in belligerent occupation. The law which applies in these areas is controlled by public international law regarding belligerent occupation. The court held that according to these laws, the military commander is authorized to erect a separation fence in order to protect the lives and safety of Israeli settlers in the Judea and Samaria area, for two reasons: first, regulation 43 of The Hague Regulations authorizes the military commander to take all steps necessary to ensure security. This authority is not conditional upon the question whether Israeli settlement upholds international law - a question on which the Court took no stand. Second, Israelis living in the area held 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 (profession), and their other rights recognized in 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. 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 the 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 expansively discussed the Advisory Opinion, which found that the construction of the fence (the "wall" in its terminology) and the legal regime which accompany it violate international law, as most of the fence passes through the West Bank. The Court found that 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. Despite a common normative basis, the courts reached different conclusions. The difference in legal conclusions stems primarily from the difference in the factual bases upon which each court decided. 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, and that others do not violate those rules. 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; no weight was given to the security-military needs; therefore, there was also no discussion of the question of the impingement's proportionality, or of the margin of appreciation. 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. That did not allow particular and separate analysis of the various segments of the fence. The method of the Supreme Court of Israel is different. The Beit Sourik Case dealt with one segment of the fence (40 km long). In other petitions pending before the Court, other segments are being examined. Up until now, about 90 petitions have been submitted; half of them have come to a close, mostly by agreement by the parties after alterations to the fence route; the others will be decided after this judgment. Regarding the effect of the Advisory Opinion upon the approach of the Supreme Court of Israel regarding the legality of the fence, it was held that the Court shall grant full weight to the rules of international law, as developed and interpreted by the ICJ, which is the highest judicial body in international law. In contrast, the ICJ's conclusion, based upon a different factual basis, is not res judicata and does not obligate the Supreme Court of Israel to determine that all segments of the fence violate international law.

The Court proceeded to a specific examination of the fence at Alfei Menashe. The Court was convinced that the reason behind the decision to erect the fence was not a political one. The decision to erect the fence at Alfei Menashe, which was made in June 2002, was made in light of the severe terrorism situation which has plagued Israel since September 2000. Security-military considerations prevented building the fence on the Green Line. The Court reached the conclusion that the reason behind building the fence is the security consideration of preventing infiltration by terrorists into Israel and into Israeli communities in the Judea and Samaria area. The separation fence is a central security component in the fight against terrorism. The fence is inherently temporary. The decision to construct the fence at the Alfei Menashe enclave was therefore within the framework of the military commander's authority. However, the Court was not convinced that the route of the fence is proportionate. The judgment discusses at length the effect of the fence on the daily life of the residents of the villages in the enclave. Its effect on central components of the fabric of life was examined: education, health, employment, movement, and social connections. The Court held that the fence makes the lives of the enclave residents very difficult. It creates a chokehold around the villages. It severely injures 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, by which the state can make due with a fence on the Green Line. The Court determined that constructing the fence on the Green Line would leave Alfei Menashe on the eastern side of the fence, vulnerable to terrorist attacks. Any route of the fence must take into account the need to provide security to the Israeli residents of Alfei Menashe. However, the Court found that the present route, which incorporates five villages into the enclave, seems strange. The Court was not convinced that there is a security-military reason to include in the enclave the three villages in its southwest part, instead of keeping them beyond the fence. The fact that a planning scheme has been submitted, by which Alfei Menashe will develop toward the southwest part of the enclave, is not a consideration which is to be taken into account. The northern and northwestern part of the enclave, through which runs highway 55 connecting Alfei Menashe to Israel and which includes two additional villages, is also strange. In this context, the Court mentioned the statement of Colonel (res.) Dan Tirza (head of the administration dealing with the planning of the obstacle route in the seamline area), that the location of highway 55 causes security problems and should be viewed as temporary. In this state of affairs, the Court was not convinced that it is necessary, for security-military reasons, to preserve the present northwest route of the enclave. If the route is changed, it will have the additional effect of removing the two fences which separate Qalqiliya and the town of Habla, south of it, thus reconnecting them as one urban bloc. The Court stated that the necessary effort had not been made to find an alternate route which can ensure security and cause less injury to the residents of the villages; nor had such a route been examined in detail. The Court ordered the state to reconsider the existing route, and to examine the possibility of removing the enclave villages - all of them, or some of them - from the "Israeli" side of the fence. As such an alteration cannot be done in one day, the state must consider setting timetables and various sub phases capable of ensuring that the changes in the route are made within a reasonable period.

Thus, the Court issued an order absolute, in the following sense: the state must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the daily lives of the residents of the Palestinian villages in the enclave to a lesser extent.