The Israel Supreme Court’s Ruling on the Wall in Beit Sourik

By Arab Media Watch director Victor Kattan 

The Petition

The Decision

The ICJ v. Israel’s Supreme Court

Nine days before the International Court of Justice rendered its advisory opinion on the Wall, Israel's Supreme Court, sitting as a High Court of Justice, had to consider a similar scenario in Beit Sourik Village Council v. the Government of Israel and the Commander of the IDF Forces in the West Bank.

Widely seen as a "test case" in Israel, it was limited to the legality of a small section of the Wall complex to the west and northwest of Jerusalem. The Court had to assess the legaility of an Israeli army order to take possession of plots of land, public and private, in the West Bank to erect the Wall.

The Petition

The petitioners, Palestinian land owners from numerous village councils in the West Bank, argued that the seizure of their land to erect the Wall was illegal.

Approximately 42,000 dunams[i] of their land (of which 26,500 dunams was agricultural land) would be affected by the seizure. They said the Wall would restrict access to their land, since their ability to go from place to place would depend on a bureaucratic permit regime which was "labyrinthine, complex, and burdensome".

They said the use of water wells would not be possible and that access to water for crops would be hindered.

They argued that shepherding, which depends on access to these wells, would be made difficult and that tens of thousands of olive and fruit trees would be uprooted.

The Wall would affect the lives of 35,000 villagers, harming their ability to develop and expand. Access roads to the urban centres of Ramallah and Bir Naballa[ii] would be blocked, therefore access to medical[iii] and other services in East Jerusalem and elsewhere would be hindered.

Ambulances would encounter difficulty in providing emergency services to residents, and children’s access to schools in urban centres, and of students to universities, would be impaired.

The Palestinian petitioners argued that these injuries could not be justified by constructing the Wall on their land because according to international law, their land is considered Occupied Territory, distinct from territory belonging to Israel.

Essentially, they argued that Israel could not build the Wall on their land because this was tantamount to annexing areas to Israel which would violate principles of public international law.

They said the Wall served the needs of the Occupying Power, not the inhabitants of the Occupied Territory (as required by international law).

Military necessity, they said, did not require the construction of the Wall along the planned route.

The military orders seizing their land were not published and were not brought to their attention. Instead the petitioners learned of them by chance, and they were granted extensions of only a few days for the submission of appeals.

Thus, they said, they were not allowed to participate in determining the route of the Wall, and their arguments were not heard. Moreover the Wall, in combination with the checkpoints and closed military zones, affected their freedom of movement and access to work, education and places of worship.

They said the Wall amounted to collective punishment which is prohibited by international law. The injury caused by the Wall's route to the local Palestinian population was disproportionate, since the Israeli army could accommodate its security needs by building the Wall nearer the 1949 armistice lines or in Israel.

The Decision

Israel’s Supreme Court brushed aside questions relating to the applicability of the Fourth Geneva Convention (which prohibits settlement activity), saying in paragraph 25: "The question is not before us now, since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review".

Instead, the Supreme Court decided to focus on the principle of proportionality in international law and Israeli administrative law; namely, whether the liberty of the individual can be restricted on condition that the restriction is proportionate.

Thus the Supreme Court bypassed the fundamental legal issues relating to the Wall's construction which arise from specific provisions specifically set out in the Fourth Geneva Convention and in international covenants relating to human rights that Israel has signed and ratified.

Instead, it looked at the case from a narrow perspective related to Israeli military law.

It found that the Wall had to be moved in several locations because its route did not accord to its definition of proportionality.

The ICJ v. Israel’s Supreme Court

So although the Supreme Court ruled on a similar issue in a similar case to that brought before the ICJ, it:

(a) Only concerned a small section of the Wall;

(b) Did not consider the situation in light of international humanitarian and human rights law and the applicability of the Fourth Geneva Convention;

(c) Did not look at it from the perspective of the Palestinian people's right to self-determination;

These are critical factors in any legal assessment of the situation in the Occupied Palestinian Territories today.

For further reading:

See Israel's Supreme Court Judgement in Beit Sourik Village Council v. the Government of Israel and the Commander of the IDF Forces in the West Bank, 30 June 2004. You can read a draft of this judgement at: http://62.90.71.124/Files_ENG/04/560/020/a28/04020560.a28.pdf