Judgments of the Israel Supreme Court: Fighting Terrorism within ...

22. A number of residents of Mevasseret Zion, which is adjacent to the Beit
Sourik village, requested to join as petitioners in this petition. They claim that
the fence route should be immediately adjacent to the Green Line, in order to
allow residents of the Beit Sourik village to work their land. In addition, they
claim that the gates which will allow the passage of farmers are inefficient,
as they will obstruct access to the fields, and they will violate the farmers’
dignity. Furthermore, they point out the decline of relations between them and
the Palestinian population in the area which, as a consequence of the desire
to construct the separation fence on their land, has turned from a tranquil
population into a hostile one. On the opposing side, Mr. Efraim Halevy
requested to join as a respondent in the petition. He argues that moving the
route of the fence adjacent to the Green Line will endanger the residents of
Mevasseret Zion. It will bring the route closer to the houses and schools in
the community. He also points out the terrorist activity which has taken place
in the past in the Beit Sourik area. Thus, the alternate route proposed by the
petitioners should be rejected. He claims that this position reflects the opinions
of many residents of Mevasseret Zion. After reading the motions, we decided
to accept them, and we considered the arguments they presented.
The Normative Framework
23. The general starting point of all parties – which is also our starting point
– is that Israel holds the area in belligerent occupation (occupatio bellica).
See HCJ 619/78 “El Tal’ia” Weekly v. Minister of Defense; HCJ 69/81 Abu
Ita v. Commander of the Area of Judea and Samaria; HCJ 606/78 Ayoob v.
Minister of Defense; HCJ 393/82 Jam'iat Ascan Elma’almoon Eltha’aooniah
Elmahduda Elmaoolieh v. Commander of the IDF Forces in the Area of Judea
and Samaria. In the areas relevant to this petition, the military administration,
headed by the military commander, continues to apply. Compare HCJ 2717/
96 Wafa v. Minister of Defense (application of the military administration in
“Area C”). The authority of the military commander flows from the provisions
of public international law regarding belligerent occupation. These rules are
established principally in the Regulations Concerning the Laws and Customs
of War on Land, The Hague, 18 October 1907 [hereinafter – the Hague
Regulations]. These regulations reflect customary international law. The
military commander’s authority is also anchored in IV Geneva Convention
Relative to the Protection of Civilian Persons in Time of War 1949.
[hereinafter – the Fourth Geneva Convention]. The question of the application
of the Fourth Geneva Convention has come up more than once in this Court.
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