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

The Court rejected the view that security considerations are outside
court review. “The military is the expert regarding the military value of
the separation fence,” the Court admitted, but “we are experts regarding its
humanitarian aspects.”
The Court considered two questions in its review: first, does the military
have the authority under law to build a barrier in and around the West Bank;
second, whether the route of the barrier unjustly violates the human rights of
the inhabitants of the West Bank.
To this case, the Court applied the international law of belligerent
occupation and the law of armed conflict, or international humanitarian law,
including the Fourth Geneva Convention and the Hague Regulations.
Under these legal doctrines, the Court found that the military is authorized,
under established international conventions, to build a barrier in the
occupied territory that protects the security of both Israelis and Palestinians.
Notwithstanding this ruling, the military would have no authority to build
a fence for political purposes. Therefore, the only justified purpose of the
fence is the security purpose. Specifically, the international law of belligerent
occupation, codified in the Hague Regulations, gives the occupying military
the right and the duty to ensure security. The Court accepted the claim of the
state that the barrier was meant for security purposes and was not motivated
by political considerations of land annexation.
The Court went on to scrutinize the specific route of the fence around
Beit Sourik by examining the proportionality of the infringment subject to
a three test – requiring the military to show that the fence rationally served
the declared security purpose, that the path chosen minimized the infringment
upon human rights, and that the remaining infringment of human rights was
justified by the benefit.
Thus, the Court established the legal standard governing future challenges
to the route of the barrier. As the opinion makes clear, the Court found that
part of the route of the barrier injured the rights of local Palestinians without a
sufficiently justified security need. The court ordered a rerouting of the fence.
Beit Sourik had an immediate and major effect on the Israeli government's
proposed barrier and upon its eventual route. On February 20, 2005, several
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