The Israeli High Court of Justice and the Apartheid Wall

Israeli High Court of Justice.

With the recent International Court of Justice (ICJ) Advisory Opinion regarding the consequences of the Apartheid Wall, the legality of this enterprise has been much discussed in almost all circles related to the Israeli/Palestinian conflict. On the Zionist side, aside from the usual canard about the “anti-Semitism” of the United Nations and the like, many commentaries have pointed to the recent Israeli High Court of Justice (HCJ) ruling about the wall and declared, in so many words, that this is the only legal ruling that matters. For example, in the recent diatribe against the ICJ by Alan Dershowitz [1] he writes: “The Israeli government has both a legal and a moral obligation to comply with the Israeli Supreme Court’s decision regarding the security fence.”

The interesting thing about this is that if one actually reads the HCJ decision [2], it in fact makes a very strong case against the Wall in general though its ruling only regarded only one small 40 km stretch of the Wall. Unlike the ICJ Opinion which was, as per its mandate, primarily focused on existing international treaties and conventions and Israel’s obligations stemming from them; the HCJ decision was based more on general legal principle.

The Israeli case - Beit Sourik Village Council v. The Government of Israel, Commander of the IDF Forces in the West Bank - was a petition against eight separate land confiscation orders for the building of the Wall. The net result was that seven of these eight confiscation orders were deemed illegal and the one that was upheld was only upheld because the petitioners didn’t really argue against it [4].

Key point that resulted in the declaration that these confiscation orders were illegal was the principle of “proportionality” that was very succinctly defined in the ruling itself. [5] The actual factors taken into account were essentially the same that served as the basis of the ICJ Advisory Opinion, specifically the human impact that the Wall had on the resident Palestinian population [6]. The question and standard, treated as the third element of proportionality, deserves to be recalled in full (citations removed):

“The third subtest examines whether the injury caused to the local inhabitants by the construction of the separation fence stands in proper proportion to the security benefit from the the [sic] security fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:

“The third element is proportionality itself. According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen. The proportion between the benefit and the damage - and it is also possible to say the proportion between means and objective - must be proportionate.

“This subtest weighs the costs against the benefits. According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other. This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations). All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention. The question before us is: does the severity of the injury to local inhabitants, by the construction of the separation fence along the route determine d by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the fence along that route?” [7]

It was on this basis that the HCJ ruled seven of the eight confiscation orders under review to be illegal. Were this same principle to be applied to most of the Wall as it exists today, especially in cases like that of the Qalqilya ghetto, it is pretty reasonable to assume that most, if not all, the Wall would be deemed illegal. Better yet, the proportionality argument is generally accepted in all modern legal systems, unlike the more specific treaty/convention law that the ICJ was forced to focus on.

Of course this is not to say that that the Israeli ruling is a good one. For example, like many Israeli rulings there are political points that are treated as legal ones, such as the false characterization of all Palestinian resistance as “terrorism” [8]. Further the HCJ does justify the Wall in principle though the projected segments reviewed were deemed to be illegal because of the humanitarian impact of the suggested route [9].

Further, citing the usual excuse used by the HCJ in regard to IDF decisions, it seeks merely to review military actions for their illegality, not to actually impose its judgment on the IDF [10]. This is, along with the IDF option of utilizing the Emergency Regulations, one of the methods allowed to the IDF to freely disregard the High Court of Justice when so inclined. As was the case in the famous court ruling against torture, that in fact merely amounted to a slight change in the phrasing of the IDF terminology, i.e. “ticking bomb” justification, the court’s ruling can be safely ignored if the government chooses - for whatever reason - not to enforce it. This is one of the luxuries of being a non-constitutional state; the political executive is under no actual obligation to enforce any law or legal ruling. In the ruling itself, the IDF freely concedes that should some portion of the fence that is already constructed be deemed illegal, they will pay compensation, but there is no mention - much less compulsion - to reverse illegal sections or the Wall or to in fact stop committing the construction even if deemed illegal. [11]

Nevertheless, in order to portray itself as being a state that respects the rule of law, High Court of Justice rulings are usually afforded at least some general consideration. Thus the HCJ ruling in Beit Sourik Village Council v. The Government of Israel, Commander of the IDF Forces in the West Bank, is in fact a rather grave embarrassment since the projected Wall cannot be constructed in the Occupied Palestinian Territories at all without inflicting the same disproportionate - and hence illegal - circumstances on other local Palestinians. So how do they intend to reconcile this ruling with the Wall?

The Jerusalem Post provided the answer to this question on July 14: “A petition against the appropriation of land for construction of the security fence near the Kissufim road in the Gaza Strip was turned down Tuesday by the High Court of Justice. The petition was submitted by Palestinian residents of the al-Karara village in the Gaza Strip. According to IBA news, the ruling also cancels a freeze order on construction in the area.” [12] Since the HCJ ruling only related to one small segment of the Wall, and the determination has already been made, the HCJ can now simply refuse to accept further petitions, based on the argument that the IDF should be assumed to be taking the same proportionality concerns into account in other areas. That is, in so many words, it seems unlikely that there will be an option of legal appeal to any other segments of the Wall, based on the assumption that the IDF will act in “good faith” taking the previous ruling into consideration. Thus, yet agai n, we have another High Court of Justice ruling that can be safely ignored.

Make no mistake about it, the Israeli High Court of Justice is no friend to Palestinians living in the Occupied Palestinian Territories. Nevertheless, when Zionists and others choose to counter the ICJ Advisory Opinion citing the HCJ ruling, one can - in all honesty - point out that if the HCJ ruling was in fact applied to the entire Wall, most of it would be illegal even under Israeli law. Of course this won’t happen, and even if it did the IDF is under no obligation to comply anyway, nevertheless, for the scoundrels out to justify the legality of the Wall, the High Court of Justice ruling is certainly no help.

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  • BY TOPIC: Israel’s Apartheid Wall

    John Sigler is an activist with the Colorado Palestine Solidarity Campaign, the Association for One Democratic State, and the Jewish Friends of Palestine project.

    Endnotes
    1. Dershowitz, Alan. “Comment: Israel follows its own law, not bigoted Hague decision”, Jerusalem Post commentary, July 11, 2004.
    2. HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel, Commander of the IDF Forces in the West Bank. June 30, 2004. This can be found online by going to 62.90.71.124/eng/verdict/framesetSrch.html and entering june 30, 2004 as the date perimeters on the search form.
    3. HCJ 2056/04, op.cit. Paragraph 82: “The length of the part of the separation fence to which these orders apply is approximately forty kilometers.”
    4. HCJ 2056/04, op.cit. Paragraph 50: “Petitioners raised no arguments regarding the route itself, and the village of Beit Sira was not joined as a petitioner. Members of the Council for Peace and Security did not mention this order in their affidavits. In light of all this, to the extent that it relates to this order, the petition is denied.”
    5. HCJ 2056/04, op.cit. Paragraph 40-44.
    6. Compare the issues raised in the HCJ determinations that the confiscation orders were illegal (paragraphs 51 to 85) with the core issues cited in the ICJ opinion (paragraph 133).
    7. HCJ 2056/04, op.cit. Paragraph 59.
    8. HCJ 2056/04, op.cit. Paragraph 1: “The forces fighting against Israel are terrorists: they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including inside holy sites; they are supported by part of the civilian population, and by their families and relatives.”
    9. HCJ 2056/04, op.cit. Paragraph 86: “Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for.”
    10. HCJ 2056/04, op.cit. Paragraph 86, citing the earlier HCJ 1005/89 Aga v. Commander of the IDF Forces in the Gaza Strip Area, at 539: “We take no position regarding the way security affairs are run. Our task is to guard the borders and to maintain the boundaries of the military commander’s discretion …. It is true, that “the security of the state” is not a “magic word” which makes judicial review disappear. Thus, we shall not be deterred from reviewing the decisions of the military commander … simply because of the important security considerations anchoring his decision. However, we shall not substitute the discretion of the commander with our own discretion. We shall check the legality of the discretion of the military commander and ensure that his decisions fall within the “zone of reasonableness.”
    11. HCJ 2056/04, op.cit. Paragraph 17: “We have noted respondents’ announcement that if it turns out that the building of the obstacle at these locations was illegal, proper compensation will be given to all who suffered injury.”
    12. “High court rejects anti-fence petition”, Jerusalem Post, 14 July 2004, By JPost.com Staff.