Occupation

Volume 94 Number 885 Spring 2012Opinion of the ICJ. It has since become standard fare in the Court’s separationbarrier decisions. 88The Abu Safiyeh case concerned an order by the military commander onthe West Bank prohibiting use of a highway – Highway 443 – by Palestinianvehicles. 89 In a previous case in which expropriation of land for part of this highwaywas under review, the Court had accepted that the object of building the highwaywas to benefit the local Palestinian population. 90 The order prohibiting use of thehighway by Palestinian vehicles was imposed after a number of drive-by attacks andshootings on Israeli vehicles on the road, some of which ended in death and injuryof Israeli drivers and passengers. After dragging its feet on the issue for some time,the HCJ ruled that in totally excluding Palestinian vehicles from use of the roadthe commander had exceeded his authority. It also held that, in any event, even ifthe commander had the authority to exclude Palestinian vehicles, his decision toplace an absolute ban on use of the highway by such vehicles failed to meet demandsof proportionality. 91 One might have thought that, since the road had ostensiblybeen built for the good of the local Palestinian population, and that ensuring thewelfare of that population must guide the commander in his decisions, the Courtwould have ruled that the commander was duty-bound to allow all Palestinianvehicles to use the highway, and, if possible, to make the necessary securityarrangements that would also allow Israeli vehicles to travel on it. The Court didnothing of the sort. It merely declared that the order placing an absolute prohibitionon use of the highway by Palestinian vehicles was unlawful and was thereforeinvalid. It left it to the military commander to make a new order that would providesecurity to Israeli drivers who used the highway. 92 The implied assumption was thatIsraeli vehicles could continue to use the highway and that limited provision wouldbe made to allow some Palestinian vehicles to use the highway. Fundamentally, then,88 See, e.g., HCJ 3680/05, Tene Local Committee v. Prime Minister of Israel (2006), para. 8, available inHebrew at: http://elyon1.court.gov.il/files/05/800/036/A13/05036800.a13.htm (last visited 22 May 2012);HCJ 11651/05, Beit Aryeh Local Council v. Minister of Defence (2006), para. 8, available in Hebrew at:http://elyon1.court.gov.il/files/05/510/116/A05/05116510.a05.htm (last visited 22 May 2012); HCJ 2577/04, Al Hawaji et al., v. Prime Minister et al. (2007), para. 31, available in Hebrew at: http://elyon1.court.gov.il/files/04/770/025/N56/04025770.n56.htm (last visited 22 May 2012). In all these decisions, the Courtrepeated that ‘the authority of the military commander to construct the separation barrier includes hisauthority to construct a barrier to protect the lives and security of Israelis who reside in Israeli settlementsin the area of Judea and Samaria, even though the Israelis residing in the area are not protected persons, asthis term is defined in article 4 of the Fourth Geneva Convention’ (Tene Local Committee case, para. 8).89 HCJ 2150/07, Ali Hussein Mahmoud Abu Safiyeh, Beit Sira Village Council Head, et al., v. Minister ofDefence et al., Judgment, 29 December 2009, available at: http://elyon1.court.gov.il/files_eng/07/500/021/m19/07021500.m19.pdf (last visited 22 May 2012).90 Jami’at Ascan case, above note 5.91 Abu Safiyeh case, above note 89.92 Ibid., para. 39. The Court suspended the declaration that the prohibition on use of the highway byPalestinian vehicles was invalid for a period of five months, in order to allow the commander to make newarrangements. Because of strict security checks at road-blocks, the new order promulgated by the militarycommander following the Court’s judgment still resulted in severe restrictions on use of the highway byPalestinian vehicles. See B’Tselem (The Israeli Information Center for Human Rights in the OccupiedTerritories), ‘Route 443 – West Bank road for Israelis only’, available at: http://www.btselem.org/freedom_of_movement/road_443 (last visited 22 May 2012).225