Mara’abe et al. v Prime Minister of Israel et al.

Court	Supreme Court of Israel, Israel
Case number	H.C.J. 7957/04
Decision title	Judgment
Decision date	15 September 2005
Parties	Zaharan Yunis Muhammad Mara’abe Morad Ahmed Muhammad Ahmed Muhammad Jamil Mas’ud Shuahani Adnan Abd el Rahman Daud Udah Abd el Rahim Ismail Daud Udah Bassem Salah Abd el Rahman Udah The Association for Civil Rights in Israel The Prime Minister of Israel The Minister of Defense The Commander of IDF Forces in the Judea and Samaria Area The Separation Fence Authority The Alfei Menashe Local Council
Categories	War crimes
Keywords	belligerent occupation, law of armed conflict, Occupied Territories, Wall in the Occupied Palestinian Territories
Links	Judgment

Summary

As part of the operation to erect a wall in the West Bank, Israel constructed a wall around the Alfei Menashe settlement between 2002 and 2003. This wall also circumscribed five Palestinian villages, the residents of which filed a petition to have the wall removed.

The Supreme Court stated that the military commander of the West Bank had the authority to decide on the erection of a fence, but only if this is necessary for security or military considerations. Also, these security or military considerations had to be proportionate to the infringement on the rights of the Palestinians. In this case, the effects of the wall on everyday life of the residents of the Palestinian villages were so severe that alternatives should have been considered. This had not been the case, the Court stated. Therefore, it ordered the respondents to consider alternatives.

Procedural history

After the petitioners’ appeal against the decision to construct the fence was rejected by the military commander, they submitted their petition to the Supreme Court. The Petitioners contended that the separation fence, surrounding the Israeli settlement Alfei Menashe and five Palestinian villages, was not legal, and that it should be dismantled. According to them, the military commander was not authorised to give orders to construct the separation fence. They based this claim on the Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. They also contended that the separation fence did not satisfy the standards set in earlier Supreme Court case law and that the fence was disproportionate and discriminatory. On the merits, the defendants countered that the military commander is authorised to erect a separation fence and that this particular fence satisfied the previously set standards.

Related developments

In 2009, work was begun to construct a new route for the fence and to no longer circumscribe the Palestinian villages. The work was finished in 2011.

Legally relevant facts

After the second intifada, Israel took several steps, including commencing military operations and erecting a separation fence in the West Bank. The rationale behind this was that this fence would make it difficult for terrorists to strike at Israelis and ease the security forces’ struggle against terrorists (paras. 1-2). As part of this operation, the decision was made on 23 June 2002 to construct a fence around the Alfei Menashe settlement. The construction of the fence was finished in August 2003 and circumscribed not only Alfei Menashe but also five Palestinian villages. This ‘enclave’ is part of what the Israelis have named the ‘seamline area’, which is the area between the fence and the ‘Green line’, the demarcation line set out in the 1949 Armistice Agreements. The enclave could only be entered by Palestinians if they had a permit from IDF forces (para. 7).

Core legal questions

The main question to be answered in this case was whether the separation fence was legal. In order to determine this, the Court assessed the military commander’s authority to order the erection of the separation fence. Also, it discussed its ruling regarding a similar matter in the landmark case of Beit Sourik. Furthermore, it assessed the Advisory Opinion of the International Court of Justice and the effect hereof on the standards set in the Beit Sourik case. Finally, it examined whether the separation fence at the Alfei Menashe enclave satisfied the tests of the law.

Specific legal rules and provisions

Article 15(3) of Basic Law: The Judiciary.
Articles 23(g), 43, 46, 52, 55 of the Regulations Concerning the Laws and Customs of War on Land.
Articles 49(6), 53 and 62(2) of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.

Court's holding and analysis

The Court repeated its previous position that the military commander is authorised to order the construction of a separation fence on territory belonging to Palestinian residents for military or security reasons. The Court reasoned that if the lives of settlers, Israeli citizens, are at risk, it is Israel’s duty to protect them (paras. 21-22). Furthermore, the Court held that the military commander should create a balance between security needs on the one hand and the needs of the local population on the other based on the principle of proportionality (paras. 29-30).

The Court proceeded to examine the fence at Aflei Menashe. It held that the decision to erect the fence was made because of severe threat of terrorism and therefore taken within the framework of the military commander’s authority (para. 98). However, after examining the severe effects of the fence on the daily life of the residents of the Palestinian villages, the Court held that the route of the fence was disproportionate. Specifically, it held that no real effort had been made to examine an alternative route in order to ensure security with a lesser injury to the Palestinian residents (para. 114). Therefore, it ordered the respondents to consider alternatives (para. 116).