What Did Israel’s Supreme Court Rule on the Barrier Route?
Israel’s Supreme Court annulled barrier seizure orders over access harm in 2004. What the judgments, Oslo II and the State Comptroller publish.
40 kilometres of separation obstacle route northwest of Jerusalem were before the Supreme Court of Israel in HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, decided 30 June 2004, and several of the seizure orders covering that route were annulled. The Israeli Supreme Court held that the military commander had authority to build the obstacle for security reasons, and that the route as ordered was disproportionate to the injury it caused to residents of the villages and their access to their land.
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| 40 kilometres | Length of obstacle route covered by the seizure orders before the Court | Israeli Supreme Court, HCJ 2056/04 | Judgment of 30 June 2004 |
| 35,000 | Local inhabitants whose lives the Court found the route injures | Israeli Supreme Court, HCJ 2056/04 | Judgment of 30 June 2004 |
| 4,000 dunams | Land of local inhabitants taken up by the route of the fence itself | Israeli Supreme Court, HCJ 2056/04 | Judgment of 30 June 2004 |
| 1,500 dunams | Cultivated land left on the far side of the fence | Israeli Supreme Court, HCJ 2056/04 | Judgment of 30 June 2004 |
| NIS 20,000 | Costs awarded against the respondents | Israeli Supreme Court, HCJ 2056/04 | Judgment of 30 June 2004 |
| 3 areas | Division of the West Bank into Areas A, B and C, with powers allocated by area | Israel and the PLO, Oslo II | Signed 28 September 1995 |
| 99,500 | Permits to employ Palestinian workers in Israel, the quota approved by the government | State Comptroller of Israel, Annual Report 70C | 2018 |
Beit Sourik annulled barrier segments over harm to access
The Israeli Supreme Court found that the route of the obstacle takes up 4,000 dunams of local inhabitants land, leaves 1,500 dunams of cultivated land on the far side, and injures the lives of 35,000 local inhabitants. In its own words, the fence “cuts the residents of the villages off from their lands, and makes their access to it, access upon which the livelihood of many depends, difficult.” These are the Court’s own findings in a case brought against the Israeli government, and they cover the roughly 40 kilometre segment before it, not the obstacle as a whole.
The judgment has two halves, and they travel together:
- The commander has authority to build the obstacle for security reasons, and the claim that the route served a political rather than a security purpose was rejected.
- Several of the seizure orders were voided as disproportionate, and the commander was required to reconsider the route.
- Costs of NIS 20,000 were awarded against the respondents.
The Court examined the gates and permits, not only the route
The proportionality of the route, and not its length alone, decided the case. The Israeli Supreme Court applied a three part test: a rational connection between the means and the security objective, the least injurious means, and narrow proportionality, the injury standing in proper proportion to the gain. On that test the injury to access, to cultivation and to livelihood on the far side of the route was weighed against the security benefit the State put forward on its own assessment.
The judgment records figures from both sides, and they are not the same figures. The Court’s findings and the petitioners pleaded claims must be attributed to their separate speakers.
| Figure | What it counts | Who stated it |
|---|---|---|
| 4,000 dunams | Land taken up by the route of the fence itself | The Court, as its finding |
| 1,500 dunams | Cultivated land left beyond the fence | The Court, as its finding |
| 4,850 dunams | Land the obstacle passes over | The petitioners, as pleaded |
| Over 37,000 dunams | Land the petitioners said would be separated from them | The petitioners, as pleaded |
| 26,500 dunams | Agricultural land within that separated area | The petitioners, as pleaded |
Source: Israeli Supreme Court, HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, judgment of 30 June 2004. No count of gates, crossing points or opening hours is reproduced among the figures published here.
Who controls movement in Area C under Oslo II?
The Israeli-Palestinian Interim Agreement of 28 September 1995 divides the West Bank into three areas and allocates powers by area. Area A and Area B are defined as populated areas delineated by a red line and shaded on the attached map, and Area C is defined residually, as areas of the West Bank outside Areas A and B. The powers described are Israel’s own, set out in an agreement Israel signed and applied by Israel’s own military and civilian legal tracks.
| Provision | What the Agreement assigns |
|---|---|
| Article XI(2) | All civil powers in Areas A and B, including planning and zoning, transferred to the Council; in Area C, only civil powers not relating to territory |
| Article XIII | Internal security and public order in Area A to the Council; in Area B, public order for Palestinians to the Council, with Israel holding the overriding responsibility for security |
| Article XVII(2) | Territorial jurisdiction of the Council covers West Bank territory except for Area C; personal jurisdiction applies to all persons except Israelis |
| Article XVII(4)(a) | Israel, through its military government, retains authority over areas outside the Council’s territorial jurisdiction, powers not transferred, and Israelis |
Source: Israel and the PLO, Oslo II, signed 28 September 1995, in the text published by the Israeli Ministry of Foreign Affairs. The Agreement prints no percentage for the area of Area C. On the authority exercising those powers, the Israeli Supreme Court held in HCJ 390/79 Dweikat v. Government of Israel, decided 22 October 1979, that the military commander governs the area and that the Hague Regulations bind the military administration there, a holding the Court reached in the Elon Moreh case.
No Israeli body here publishes an obstacle or permit-denial count
The State Comptroller of Israel audited the staff officers of the Civil Administration between September 2018 and June 2019 and published counts of the administering machinery: 25 staff officers serving as the government ministries professional representatives, and 314 employees, of whom 202 are Israeli civil servants and 112 are Palestinian employees. The same audit records 99,500 permits to employ Palestinian workers in Israel in 2018, which is the quota the Israeli government approved on its own decision, not a count of permits issued, used or refused. None of the Israeli publications used on this page carries a count of checkpoints, road gates, earthmounds, roadblocks, closures or permit refusals.
The figure of 793 movement obstacles that circulates on this question is the count of the United Nations Office for the Coordination of Humanitarian Affairs, published by a United Nations office rather than by an Israeli body.
Which figures here may not be added together?
The 4,000 dunams and the 1,500 dunams are the Court’s findings on one roughly 40 kilometre segment of route, and neither describes the obstacle as a whole. The petitioners pleaded figures recorded in the same judgment are claims of a party, not findings, and the two sets must never be merged or summed. The 99,500 is an approved employment quota for 2018 and may not be restated as permits issued or as people who crossed. The State Comptroller’s 202 and 112 sum exactly to the audited total of 314. Oslo II prints three aquifer totals, area definitions and clause allocations, and no share of West Bank territory, so any percentage for Area C belongs to whoever measured it.
Questions readers ask about this record
Which court decided the Beit Sourik case?
The Supreme Court of Israel, sitting as the High Court of Justice, decided HCJ 2056/04 on 30 June 2004, with President A. Barak writing and Vice President E. Mazza and Justice M. Cheshin concurring.
Did the Court rule the separation obstacle unlawful?
No. The Israeli Supreme Court held that the military commander has authority to build the obstacle for security reasons, and voided particular seizure orders because the route was disproportionate.
How much land did the Court say the route takes up?
The Israeli Supreme Court found that the route takes up 4,000 dunams of local inhabitants land and leaves 1,500 dunams of cultivated land beyond the fence.
How many people did the Court say the route injures?
The Israeli Supreme Court stated that the route injures the lives of 35,000 local inhabitants in the villages northwest of Jerusalem.
What test did the Court apply?
The Israeli Supreme Court applied a three part proportionality test: rational connection, least injurious means, and injury standing in proper proportion to the gain.
Who has authority over movement in Area C?
The Interim Agreement of 28 September 1995 records that Israel, through its military government, retains authority over areas outside the Council’s territorial jurisdiction, which includes Area C.
Does Oslo II say what share of the West Bank is Area C?
No. The Interim Agreement defines Areas A and B by a red line and shading on the attached map and defines Area C residually, and prints no territorial percentage anywhere.
Which body governs the West Bank in Israeli law?
The Israeli Supreme Court held in HCJ 390/79, decided 22 October 1979, that the military commander governs the area and is bound by the Hague Regulations as customary international law.
Does the State Comptroller count checkpoints?
The State Comptroller’s Annual Report 70C audits the staff officers and the administering bodies and publishes no count of checkpoints, gates or closures.
Whose count is the figure of 793 movement obstacles?
That count is published by the United Nations Office for the Coordination of Humanitarian Affairs, and it is that office’s own count rather than an Israeli one.
What does the 99,500 permit figure cover?
The State Comptroller reported 99,500 permits to employ Palestinian workers in Israel for 2018, the quota approved by the Israeli government, which is a quota rather than permits issued or used.
How many people work in the Civil Administration?
The State Comptroller recorded 314 employees in the Civil Administration in 2019, of whom 202 are Israeli civil servants and 112 are Palestinian employees.
Sources
- Israel and the PLO, 1995. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II). Articles XI, XIII and XVII, in the text published by the Israeli Ministry of Foreign Affairs, gov.il. Official or primary record.
- Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979. Cardozo Israeli Supreme Court Project. Court judgment.
- Israeli Supreme Court, 2004. HCJ 2056/04 Beit Sourik Village Council v. Government of Israel. Judgment of 30 June 2004. Cardozo Israeli Supreme Court Project. Court judgment.
- State Comptroller of Israel, 2021. Staff Officers in the Civil Administration in the Judea and Samaria Region. Annual Report 70C, English abstract, pages 55 to 59. mevaker.gov.il. State audit report.
