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

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first court to address the case, and it is not a court of appeal. The High Court of Justice is also the last instance. There is no appeal on the Court's rulings, as it is the highest judicial instance in Israel. Usually the panel is composed of three justices, but for petitions of particular importance, a larger panel with an odd number of justices may preside (to date, up to 15). The High Court of Justice need not adjudicate every dispute brought before it. It has the discretion to establish locus standi (who have the right to initiate a proceeding) and to decide whether a dispute is justiciable (if it is an appropriate case for the Court to address). Over the years the Court has demonstrated a flexible approach regarding locus standi and justiciable doctrines. It has been willing to hear petitions brought by public organizations with no personal interests in the dispute which clearly set out the principle issues of the dispute. The Court has also frequently shown readiness to adjudicate military and security cases. This flexibility forms the basis for the numerous judicial decisions of the Court centering on the war on terror. The High Court of Justice is ever busy adjudicating petitions lodged against public bodies operating in the State of Israel. In addition, it hears petitions by residents of the West Bank and Gaza Strip brought against the activities of the Israel Defense Forces and other security bodies in these areas, as well as petitions brought by public organizations (with no personal interests) against these operations. The Court's authority to preside over these cases stems from the view that the security forces operating in the West Bank and Gaza Strip are also public bodies which are subject to the law. This policy, which was crystallized after the Six Day War of 1967, allows Palestinian residents to petition the Israeli Supreme Court and subjects the operations of Israel in the territories to judicial review. Most of the judgments presented in this booklet are an expression of this judicial review. 6
Israel's Security Fence HCJ 2056/04 Beit Sourik Village Council v. 1. The Government of Israel 2. Commander of the IDF Forces in the West Bank The case of Beit Sourik has its origins in September 2000, when the second intifada broke out. Since that date, armed Palestinian groups planned and executed numerous terrorist attacks in Israel, the West Bank and the Gaza Strip. In thousands of attacks, especially suicide terror bombings, groups such as Hamas, Islamic Jihad and the Fatah killed more than 1,000 Israelis and wounded thousands more. The attacks that took place within Israel were mostly committed by terrorists crossing into Israel unhindered and illegally from the West Bank. In response, Israel took countermeasures geared up to stop attacks. In the wake of lost life and hardened emotions, the Israeli government decided on June 23, 2002 to build a barrier – a security fence – between the West Bank and Israel. The barrier serves as a temporary measure to provide security against the thousands of armed attacks, however it severely affects the lives of many Palestinians. Many petitioners challenged the building of the barrier – both in general and in specific sections. One of the first petitions challenged the building of a barrier in the area of Beit Sourik, a Palestinian village located on the western side of the West Bank. The Court delayed all other decisions on what come to be known as The Fence Cases pending the general guidance of Beit Sourik. In June 2004, the Court handed down Beit Sourik, the seminal ruling reviewing the legality and proportionality of the fence under international and Israeli law. This case announced the legal standards by which the Court will judge the future cases. 7
Page 1: Judgments of the Israel Supreme Cou
Page 5: Introduction This volume is a compi
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 and 34: person and the inviolable character
Page 35 and 36: Gasser, Protection of the Civilian
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
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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
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worship, because Bethlehem had turn
Page 153 and 154:
of Jerusalem’s municipal border.
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of movement would be impinged upon
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in which it attaches to the tomb. I
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decision to pave the road and erect
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worshippers from terrorist attacks,
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intention to alter the route, and e
Page 165 and 166:
Freedom of religion and worship . .
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private and public property and fre
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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
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The "Early Warning" Procedure HCJ 3
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Supreme Court Justice Beinish, conc
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A. The Petition and the Course of i
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for any military acts such as 'the
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efore there is a need to use force,
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more people regarding the use of Pa
Page 195 and 196:
14. Petitioners argue that one can
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17. Respondents contend that the us
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21. Just as it is clear that an arm
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a zone in which combat activity is
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the family members living in the ho
Page 205 and 206:
of the very protected resident who
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accompanied by armed army forces, t
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Prisoner Release HCJ 1671/05 Almago
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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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