On the Israeli 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.
download the full ruling on the wall from Israeli High Court of Justice [pdf 2.6 MB]
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.
[3]
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 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.
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
http://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.
