Judgments of the Israel Supreme Court: Fighting Terrorism within the Law Volume Two 2004-2005 Contents Introduction 5 Israel's Security Fence 7 HCJ 2056/04 Beit Sourik Village Council 7 v. The Government of Israel HCJ 7957/04 Zaharan Yunis Muhammad Mara'abe 62 v. The Prime Minister of Israel Safe Access to Rachel's Tomb 150 HCJ 1890/03 Bethlehem Municipality et Al 150 v. The State of Israel - Ministry of Defense The "Early Warning" Procedure 183 HCJ 3799/02 Adalah 183 v. GOC Central Command, IDF Prisoner Release 209 HCJ 1671/05 Almagor - Organization of Terrorism Victims 209 v. The Government of Israel Administrative Detention 218 HCJ 11026/05 A 218 v. The Commander of IDF Forces in the Judea and Samaria Areas Introduction This volume is a compilation of several important cases heard by the Supreme Court of Israel on terrorism, security activities and Israeli policy in the West Bank. The previous volume of “Judgments of the Israel Supreme Court: Fighting Terrorism within the Law,” reported on cases from 1997 to 2004. This successor volume contains cases from 2004 and 2005. The years 2004 and 2005 were significant in the development of Israel’s security policy. First, Israel disengaged from the Gaza Strip, removing Jewish settlements and its army presence in the area. Second, these years saw a marked increase in the building of a security fence meant to impede terrorist movement into Israel from the West Bank. Diplomatic efforts were undertaken; a summit was held between Israeli Prime Minister Ariel Sharon and Palestinian President Mahmoud Abbas in Sharm el-Sheik, Egypt, on February 8, 2005. Finally, Israel continued implementing steps to protect its citizens from terrorist attacks. These events led to a number of important cases to be presented in the Israeli High Court of Justice. This volume provides a sample of these decisions. The Beit Sourik (June 2004) and Alfei Menasheh (September 2005) cases analyze the legal requirements and rationale behind the security fence. In the Bethlehem Municipality (February 2005) case, the Court explored conflicting rights related to safe access to Rachel’s Tomb in Bethlehem. The Early Warning (October 2005) case looked at the involvement of local residents in terrorist apprehensions. The Almagor (February 2005) case dealt with the legality of the prisoner release action negotiated in the Sharm el-Sheik summit. The final case (December 2005) examined administrative detention of a Hamas militant caught on his way to commit a suicide bombing. The High Court of Justice is one of the roles assumed by the Israeli Supreme Court. In this function the Court reviews the activities of public authorities, including the security forces, to ensure they are in line with the law (see section 15(4)(2) of the Basic Law: The Judiciary). This judicial review is exercised as a first instance. This means that the High Court of Justice is the 5 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 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 8 months after the decision, the government ordered that the security fence be built in such a way as to minimize “the effect on the daily lives of Palestinians, according to the standards outlined in Beit Sourik.” Numerous petitioners sought orders finding parts of the barrier disproportionate, and several have prevailed, altering the route of the fence. At the same time that the Israeli Supreme Court decided Beit Sourik, the International Court of Justice at the Hague considered the matter of the barrier as well, reaching a different conclusion. In the case of Alfei Menashe (HCJ 7957/04), the next case in this volume, given on September 15, 2005, the Israeli Court explains how the ICJ reached a different conclusion using different legal and factual bases.