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

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administrative law which applies to the area under belligerent occupation. We shall now briefly discuss each of these. 37. Proportionality is recognized today as a general principle of international law. See Meron, at 65; R. Higgins, Problems and Process: International Law and How We Use It 219 (1994); Delbruck, Proportionality, 3 Encyclopedia of Public International Law 1140, 1144 (1997). Proportionality plays a central role in the law regarding armed conflict. During such conflicts, there is frequently a need to balance between military needs and humanitarian considerations. See Gardam, Proportionality and Force in International Law, 87 Am. J. Int’l L. 391 (1993); Garden, Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J. Int’l L. 285 (1996); Dinstein, Military Necessity, 3 Encyclopedia of Public International Law 395 (1997); Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of Proportionality ?, 23 Loy. L. A. Int’l & Comp. L. Rev. 329 (2001); Roberts, The Laws of War in the War on Terror, 32 Isr. Yearbook of Hum. Rights. 1999 (2002). Proportionality is a standard for balancing. Pictet writes: In modern terms, the conduct of hostilities, and, at all times the maintenance of public order, must not treat with disrespect the irreducible demands of humanitarian law. From the foregoing principle springs the Principle of Humanitarian Law (or that of the law of war): Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy. J. S. Pictet, Developments and Principles of International Humanitarian Law 62 (1985). Similarly, Fenrick has stated: [T]here is a requirement for a subordinate rule to perform the balancing function between military and humanitarian requirements. This rule is the rule of proportionality. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Military L. Rev. 91, 94 (1982). Gasser repeats the same idea: International humanitarian law takes into account losses and damage as incidental consequences of (lawful) military operations … The criterion is the principle of proportionality. 34
Gasser, Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts 220 (D. Fleck ed., 1995). 38. Proportionality is not only a general principle of international law. Proportionality is also a general principle of Israeli administrative law. See Segal, The Cause of Action of Disproportionality in Administrative Law, HaPraklit 50 (1990); Zamir, The Administrative Law of Israel Compared to the Administrative Law of Germany, 2 Mishpat U’Mimshal 109, 130 (1994). At first a principle of our case law, then a constitutional principle, enshrined in article 8 of the Basic Law: Human Dignity and Freedom, it is today one of the basic values of the Israeli administrative law. See HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, at 435; HCJ 3477/ 95 Ben-Atiyah v. Minister of Education, Culture & Sports; HCJ 1255/94 Bezeq v. Minister of Communications, at 687; HCJ 3643/97 Stamka v. Minister of Interior; HCJ 4644/00 Tavori v. The Second Authority for Television and Radio; HCJ 9232/01 “Koach” Israeli Union of Organizations for the Defense of Animals v. The Attorney-General, at 261; D. Dorner, Proportionality, in 2 The Berenson Book 281 (A. Barak & C. Berenson eds., 1999). The principle of proportionality applies to every act of the Israeli administrative authorities. It also applies to the use of the military commander’s authority pursuant to the law of belligerent occupation. 39. Indeed, both international law and the fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing between the authority of the military commander in the area and the needs of the local population. Indeed, the principle of proportionality as a standard restricting the power of the military commander is a common thread running through our case law. See Segal, Security Authority, Administrative Proportionality and Judicial Review, 1 Iyunei Mishpat 477 (1993). Thus, for example, this Court examined, by use of the standard of proportionality, the authority of the military commander regarding “an order assigning a place of residence.” See Ajuri; HCJ 9552/03 Abed v. Commander of the IDF Forces in the West Bank; HCJ 9586/03 Sualmeh v. Commander of the IDF Forces in the Judea and Samaria Region. The standard of proportionality was likewise used to examine his authority to surround towns and position checkpoints on the access roads to and from them, in order to frustrate terror. See HCJ 2847/03 Alauna v. Commander of the IDF Forces in Judea and Samaria; HCJ 2410/03 Elarja v. Commander of the IDF Forces in Judea and Samaria. The same applied to injury to the property of residents due to combat activities of the 35
Page 1: Judgments of the Israel Supreme Cou
Page 5 and 6: Introduction This volume is a compi
Page 7 and 8: Israel's Security Fence HCJ 2056/04
Page 9 and 10: months after the decision, the gove
Page 11 and 12: eached new heights of violence. In
Page 13 and 14: (4) The fence, like the other obsta
Page 15 and 16: fence, and will be called to locati
Page 17 and 18: to make it possible are illegal. Se
Page 19 and 20: they intend to erect permanent chec
Page 21 and 22: prior to reconvening, we granted (o
Page 23 and 24: and not a security border. The secu
Page 25 and 26: See HCJ 390/79 Duikat v. Government
Page 27 and 28: a system of roads can be done for r
Page 29 and 30: y local inhabitants, and that this
Page 31 and 32: The obligations and rights of a mil
Page 33: person and the inviolable character
Page 37 and 38: injury to the individual must do so
Page 39 and 40: starting point is the assumption, w
Page 41 and 42: the area. We stand, therefore, befo
Page 43 and 44: of that activity. The fact that the
Page 45 and 46: will be affected by the route of th
Page 47 and 48: Our answer to this question necessi
Page 49 and 50: of the two villages to its lands, b
Page 51 and 52: eveals that along this part of the
Page 53 and 54: seen, it is possible to lessen this
Page 55 and 56: lives of the local inhabitants caus
Page 57 and 58: 76. Is the damage caused to the loc
Page 59 and 60: Order no. Tav/110/03 81. This order
Page 61 and 62: We are aware that this decision doe
Page 63 and 64: infrastructure” - limiting its ab
Page 65 and 66: HCJ 7957/04 1. Zaharan Yunis Muhamm
Page 67 and 68: grenades, shooting attacks, mortar
Page 69 and 70: (2) The obstacle built pursuant to
Page 71 and 72: to us, part of the separation fence
Page 73 and 74: allows residents of the enclave to
Page 75 and 76: judgments that were handed down sin
Page 77 and 78: 16. It is sometimes necessary, in o
Page 79 and 80: are occurring, and that therefore i
Page 81 and 82: a necessary deduction as the milita
Page 83 and 84: Even if the military commander acte
Page 85 and 86:
The rights granted to Israelis livi
Page 87 and 88:
the point of view of a state's righ
Page 89 and 90:
shall be protected especially again
Page 91 and 92:
preservation of the order and safet
Page 93 and 94:
78 “Al Taliyeh” Weekly v. The M
Page 95 and 96:
issuing the orders or in the proces
Page 97 and 98:
D. The Advisory Opinion of the Inte
Page 99 and 100:
Gush Etzion settlement bloc and the
Page 101 and 102:
of Nazlat Issa, where a wall 800 m
Page 103 and 104:
data, along with the high cost of t
Page 105 and 106:
3. The Legality of the Fence in Int
Page 107 and 108:
the wall, many Palestinians will li
Page 109 and 110:
uilding of a wall) fall within self
Page 111 and 112:
Beit Sourik Case. The ICJ held that
Page 113 and 114:
data is wide and deep. This differe
Page 115 and 116:
minimal factual basis is manifest,
Page 117 and 118:
necessary for achieving the securit
Page 119 and 120:
the information relayed to the ICJ
Page 121 and 122:
upon highway 6 - terrorist infiltra
Page 123 and 124:
However, this statement - which exp
Page 125 and 126:
is approximately 1,200). The enclav
Page 127 and 128:
threatens to disenfranchise them of
Page 129 and 130:
3. The State's Response 84. In its
Page 131 and 132:
opened under highway 55. Fourth, Th
Page 133 and 134:
which will be decided in the perman
Page 135 and 136:
time, surveys along the planned rou
Page 137 and 138:
The seamline area is intended to bl
Page 139 and 140:
the separation fence had not yet be
Page 141 and 142:
living primarily from growing sheep
Page 143 and 144:
the Ras a-Tira gate, the Habla gate
Page 145 and 146:
een shot on it from the direction o
Page 147 and 148:
Justice A. Procaccia I concur in th
Page 149 and 150:
characterize the factual aspect of
Page 151 and 152:
worship, because Bethlehem had turn
Page 153 and 154:
of Jerusalem’s municipal border.
Page 155 and 156:
of movement would be impinged upon
Page 157 and 158:
in which it attaches to the tomb. I
Page 159 and 160:
decision to pave the road and erect
Page 161 and 162:
worshippers from terrorist attacks,
Page 163 and 164:
intention to alter the route, and e
Page 165 and 166:
Freedom of religion and worship . .
Page 167 and 168:
private and public property and fre
Page 169 and 170:
freedom located at the highest leve
Page 171 and 172:
p. 369; H.C.J. 4044/93 Salomon, at
Page 173 and 174:
person to leave the country is diff
Page 175 and 176:
“separation obstacle” route sep
Page 177 and 178:
Reduction in the severity of the ne
Page 179 and 180:
19. Petitioners further argue that
Page 181 and 182:
that the solution chosen by respond
Page 183 and 184:
The "Early Warning" Procedure HCJ 3
Page 185 and 186:
Supreme Court Justice Beinish, conc
Page 187 and 188:
A. The Petition and the Course of i
Page 189 and 190:
for any military acts such as 'the
Page 191 and 192:
efore there is a need to use force,
Page 193 and 194:
more people regarding the use of Pa
Page 195 and 196:
14. Petitioners argue that one can
Page 197 and 198:
17. Respondents contend that the us
Page 199 and 200:
21. Just as it is clear that an arm
Page 201 and 202:
a zone in which combat activity is
Page 203 and 204:
the family members living in the ho
Page 205 and 206:
of the very protected resident who
Page 207 and 208:
accompanied by armed army forces, t
Page 209 and 210:
Prisoner Release HCJ 1671/05 Almago
Page 211 and 212:
HCJ 1671/05 Almagor - Organization
Page 213 and 214:
ecommendations for release were not
Page 215 and 216:
is unreasonable. The demand that tw
Page 217 and 218:
taking risks. That, it seems to me,
Page 219 and 220:
Palestinian Islamic organization, H
Page 221 and 222:
HCJ 11026/05 A v. 1. The Commander
Page 223 and 224:
easonable basis for the assumption
Page 225 and 226:
grants the military commander the a
Page 227:
decision is reasonable, and that th
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