The location of the security fence: Palestinian villagers succeed in top Israeli court
Published: 23 September 2005 Briefing Number 156	Click to Print

Summary:  In a significant new court ruling, Israel’s top judges have upheld Israel’s right to defend its citizens against terror attacks by erecting its security fence. But at the same time they have held that Israel’s needs must be balanced against the interests of Palestinian villagers affected by the location of the fence.  On the facts of the particular case, the Israeli state has been ordered by the Court to tear down a stretch of the fence around the Israeli settlement of Alfei Menashe, and devise a fresh route (at Israel’s own cost). These events refute the claim that Israel’s security fence tramples over Palestinian human rights.  Israel’s courts and the rule of law in the country have yet again served to protect the rights of Palestinian villagers.

The route of the fence around the Israeli settlement of Alfei Menashe

Part of Israel’s security fence was positioned in 2004 so as to create a small enclave round the mid-sized Israeli settlement of Alfei Menashe in the centre of the West Bank. Within that enclave live 1,200 Palestinians in several villages. As a result, they have become separated from Palestinians living nearby, and complain of being “trapped” on the wrong side of the fence.
  
Palestinian residents of those villages brought an action in the Israeli courts demanding that the fence around Alfei Menashe be torn down.

On 15 September 2005, a nine-member Israeli High Court, led by Supreme Court President Aharon Barak and comprising leading judges in the country,  handed down its ruling.

The Court upheld the legality of the security fence. But they also agreed with the Palestinian villagers that the section of the fence around Alfei Menashe should be torn down. Israeli planners were instructed to devise an alternative route, and the Court also set out guidelines for how these matters should be addressed in the future.

According to press reports, there are 43 outstanding Court petitions by Palestinians regarding other sections of the fence. This Court decision is certain to provide a precedent which may be applied in those future proceedings.   

Here are the main aspects of the decision:-

• Israel has a right to build the fence and protect all its citizens:  The security fence extends beyond Israel’s so-called ‘Green Line’, to protect the majority of settlers living in the West Bank. The Court held that this was lawful, pointing out that Israel has a legal duty and a right under international law to protect the lives of settlers (regardless of whether they are considered to be residing there lawfully or not).
  
  
• In positioning the fence, Israel must balance its security needs with the interests of Palestinian civilians:  The location of the fence must take into account Israel’s requirement to prevent terror attacks, but also the human rights of Palestinians affected by its route. These two requirements must be balanced together.   
  
  
• The section of fence round Alfei Menashe must be torn down and rerouted: In the circumstances of this case, the Court concluded that Israel had got the balance out of proportion, and had paid insufficient attention to Palestinian needs.  It ordered that the stretch of fence around Alfei Menashe be torn down, and that planners should devise an alternative route (all at Israel’s own cost).
  
  
• Each stretch of fence can be individually assessed: The Court indicated that in the future individual stretches of fence could be assessed by means of this balancing exercise. 
  
  
• The International Court of Justice Opinion of 2004 was based on incomplete facts and defective: The Court was highly critical of the Advisory Opinion of the International Court of Justice, issued in July 2004 (see Beyond Images Briefing 101).  The Court observed that the judges responsible for that Opinion made almost no reference to the terrorism against Israel which had prompted Israel to build the fence in the first place, and therefore could not properly weigh up Israel’s security interests against Palestinian rights.

Conclusion:

Israel’s top judges have once again served to protect the rights of Palestinian villagers.

At the same time, the judges have upheld Israel’s right to defend all its citizens against terror attacks by erecting its security fence.

These events demonstrate Israeli democracy and the rule of law in the country.

Critics invariably allege that Israel’s security fence tramples over Palestinian human rights. But the reality is different. Palestinian rights, upheld by Israel’s independent justice system, have again reshaped the route of the security fence.

Sources:  Reports in Jerusalem Post, Ha’aretz (16/17 September 2005)

Related Beyond Images Briefings

The security fence: Israel’s justice system upholds Palestinian rights (Briefing 138, 12 April 2005)

Israel’s security fence: criticisms of the International Court of Justice – by the British judge (Briefing 101, 6 August 2004)

The case for Israel’s security fence (Briefing 73, 10 December 2003)