Administrative Law

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

Before: The Honorable President D. Beinisch, The Honorable Justice
M. Naor, The Honorable Justice U. Vogelman

 

Petitioners in HCJ 4169/10: Yiftach Cohen; Omer Shatz, Itamar Mann

Respondents in HCJ 4169/10: The Minister of Defense; The Minister of the Interior; The Minister of Public Security

 

Petitioners in HCJ 4193/10: Adalah – The Legal Center for Arab Minority Rights in Israel; Public Committee Against Torture in Israel; Physicians for Human Rights

Respondents in HCJ 4193/10: The Minister of Defense; The Military Advocate General; The Israel Prison Service; The Israel Police; The Immigration Authority

 

Petitioners in HCJ 4220/10: Al Jazeera Satellite Network; Othman Al Bukhairi; Abas Naser; Muhammad Fal; Ali Sabri; Andrei Abu Khalil; Jamal Al Shial; Wasima Bin Salah

Respondents in HCJ 4220/10: The Israel Defense Forces; The Minister of Defense; The Minister of Public Security

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

Respondents in HCJ 4221/10: The Israel Police; The Israel Prison Service; The Government of Israel; The Minister of Defense; The Prime Minister

 

Petitioner in HCJ 4240/10: Shurat Hadin – Israel Law Center

Respondents in HCJ 4240/10: The Attorney General; The Prime Minister; The Minister of Public Security; The Minister of the Interior; The Israel Police

 

Petitioners in HCJ 4243/10: 1. Almagor – Terror Victims Association; Y.S. – Navy commando (res.); D.B. – Navy commando (res.) and bereaved brother; Pniel Krichman; Yekira and Zecharia Komemi; Aviva and Rahamim Komemi; Tzila Rahamim; Moshe Keinan; Briana and Shmuel Hilberg

Respondents in HCJ 4243/10: The Prime Minister; The Minister of the Interior; The Attorney General; The Inspector General of the Israel Police

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

For the petitioners in HCJ 4169/10: Itamar Mann; Yiftach Cohen; Omer Shatz

For the petitioners in HCJ 4193/10: Fatima El Ajou

For the petitioners in HCJ 4220/10: Zaki Kamal; Kamal Zaki Kamal

For the petitioner in HCJ 4421/10: Himself

For the petitioner in HCJ 4240/10: Nitsana Darshan Leitner

For the petitioners in HCJ 4243/10: Sharon Avni; Shira Greenberg

For the respondents: The State Attorney Moshe Lador; Osnat Mandel; Dina Zilber; Hila Groni

 

 

Judgment

 

 

President D. Beinisch:

 

 

1.          In view of the control of the Gaza Strip by the Hamas organization, Israel has taken various measures designed to prevent direct access to the Gaza Strip, among them a blockade of the Gaza Strip which, as declared by the State, is designed to prevent the infiltration of weapons and arms to the Hamas organization, which, for years, has carried out acts of shooting and terrorism at Israeli territory for the purpose of harming civilians.

 

2.          In recent weeks, announcements have been publicly made by various organizations, among them organizations that declared themselves to be acting for humanitarian purposes, regarding their intention to arrange a flotilla of ships which, they claimed, were designated to transfer foodstuffs and materials as humanitarian aid to the residents of the Gaza Strip. Israel, for its part, made efforts to prevent the flotilla from reaching the shores of Gaza and breaching the blockade in such manner. The State proposed to the organizers of the flotilla, among others, that the cargo – which was supposed to reach Gaza – be unloaded from the ships and transferred directly to Gaza via Israel. This proposal was rejected.

 

             In the early hours of May 31, a number of ships approached the shores of Israel to implement the flotilla's plan. As decided by the political echelon, the IDF prepared to take measures to prevent the entry of the ships into the Gaza Strip as stated. In the framework of an operation that was designed to stop the ships, soldiers landed on the deck of the ship Mavi Marmara, the largest ship in the flotilla. The soldiers met with a violent and severe response from the flotilla participants on the ship. The soldiers were attacked with knives, clubs and iron rods. Attempts were made to seize the soldiers’ personal weapons and they were violently attacked. One of the soldiers was even thrown off the deck of the ship. The soldiers were forced to respond to defend their lives and, unfortunately, the operation ended with unexpected loss of life - nine people were killed and both soldiers and flotilla participants were injured. The operation concluded with the ships being halted and their passengers removed and detained in Israel.

 

3.          That same morning, when the results of the operation became known, the petition in HCJ 4169/10 was filed with this court (hereinafter: the First Petition), in which four attorneys filed the petition as public petitioners. It should be noted that at the opening of the hearing before us, the petitioners gave notice of the request of attorney A. Feldman, who was among the petitioners, to strike his name from the petition. The petition ascribed grave and illegal acts to the State of Israel and the petitions sought a remedy of habeas corpus to free all the detainees. It is evident in the petition, which was hastily filed, that, notwithstanding the fact that the petitioners knew nothing about the actual events, they were quick to cast the gravest aspersions on the actions of the IDF forces, while using inappropriate language. Notwithstanding that stated, because the relief sought was the release of the detainees, the petition was not stricken in limine at that stage, and the State’s response was requested by the following day.

 

             During the course of that day and the following day, a number of additional petitions were filed with court. In HCJ
4193/10, which was filed on behalf of the Adalah organization and other human rights organizations, the petitioners requested information on the detainees and their whereabouts, as well as details on the injured and the dead. This petition was also filed as a public petition. Another petition (HCJ 4220/10) was filed by the Al Jazeera television network and in the name of journalists acting on its behalf who had been arrested on the ship. This petition requested the release of the network personnel who had participated in the flotilla. It should be noted that during the hearing that we held, it transpired that this petition was superfluous since the petitioners had already been released.

 

4.          On June 1, 2010, the government issued a statement that all the foreign flotilla participants would be released and returned to their countries. After this statement was issued, three additional petitions were filed with this court: HCJ 4221/10, which was filed on behalf of Mr. Yekutiel Ben Yaakov; HCJ 4240/10, which was filed by Shurat Hadin – Israel Law Center; and HJC 4243/10 filed by Almagor – Terror Victims Association. In these three petitions, the remedy sought was to bar the release of the foreign flotilla participants, with the main argument being that these were people who had committed an offense, who were required both for investigating the facts and the circumstances surrounding the incident and for a decision about arraignment for trial.

 

             In view of the remedy sought, which related to the question of the release of a large number of detainees, we conducted an urgent hearing and deliberated all the petitions together before the panel at that session, and within two days of the filing of the First Petition.

 

5.          Before the hearing, the State submitted a written response in which it protested the description of the events in the First Petition and pointed out the distortion of the facts therein. In essence, the State addressed the legality of the blockade and referred to an alternative remedy set forth in the relevant provisions of the Entry into Israel Law, 5712-1952, with regard to the foreign participants in the flotilla and the relevant provisions of the law pertaining to the criminal proceedings of investigation and detention with regard to the Israeli suspects who participated in the event. During the day, proximate to the time of hearing the petitions, the State completed its statement and submitted a decision formulated by the attorney general, which stated that on the day of the event, May 31, 2010, the attorney general ordered the opening of an investigation on suspicion of offenses committed on the deck of the ship Mavi Marmara, including the offense of the grave attack on IDF soldiers, disturbing the peace, endangering the lives of soldiers, seizing weapons and so forth. The attorney general further stated that the next day, the ministerial committee on national security matters convened and conducted a long and exhaustive discussion of the security, political, legal and other aspects of the affair. At the end of the discussion, the senior political echelon recommended “to enable the immediate deportation of all the foreigners who had arrived on the flotilla, who were suspected of committing criminal offenses. This is recommended for clear political reasons pertaining to foreign relations and the security of the State of Israel.” In his decision, the attorney general noted that he had discussed the matter with the state attorney and other senior officials at the Ministry of Justice and other government ministries, at the end of which he decided, as stated, to allow the immediate deportation of all the foreigners from Israel.

 

6.          During the hearing before us, State Attorney Moshe Lador, appeared together with senior attorneys. It should be noted that due to the nature of the proceedings which we conducted, we sought not to address the claims pertaining to the legality of the blockade, nor with the factual events during that grave incident, the full details of which had not been presented to us. Claims pertaining to the detention of Israelis suspected of committing offenses while participating in the flotilla were also not adjudicated before us, as they should be argued in individual hearings on the criminal arrest proceedings before the competent courts. The hearing focused on the urgent remedies sought which pertain to holding the foreign detainees. The state attorney stated that all the foreigners who wished to do so could be released from detention and, in effect, those who had not yet left the country were on their way to the airport. The wounded whose medical condition allowed for it, were also removed to their countries of origin. Apparently, two of the wounded remained in the hospital because their condition did not enable them to be flown back to their country. The state attorney further stated that the names of all the wounded had been submitted to the relevant consulates and, with regard to those who came from countries that do not have diplomatic relations with Israel, the details were provided to the Red Cross. It should be noted that the State did not see fit to acquiesce to the request to provide details in this matter to counsel for the Adalah organization, as the details had been provided to the relevant entities. However, the possibility arose that if a specific, substantive application were to be made to obtain details regarding one of the casualties or the wounded, the State would examine the possibility of providing counsel for the Adalah organization with the requested details. It further transpired that the remaining details requested by the Adalah organization regarding the place in which the detainees were being held were resolved. The Adalah organization’s counsel also made claims with regard to the detainees' ability to meet with attorneys. During the hearing it was made clear that there had been no intention to prevent such a meeting, and many detainees had actually already met with attorneys. Due to the need to release hundreds of people quickly, not all the detainees may have had the opportunity to meet with an attorney.

 

             The position of the attorney general to release all the foreign participants meant that the main remedy sought in the First Petition was already granted. In the course of the arguments, in view of the response of the state attorney and the comments of the court, the petitioners retracted the style of the scathing verbal attack that they had employed in the petition.

 

7.          As stated, three of the petitions were filed against the attorney general’s decision to release the foreign detainees. Each one of the petitioners argued before us at length about the importance of keeping the detainees in Israel for the purpose of conducting an exhaustive investigation regarding the grave events that occurred on the ship, and regarding the need to exercise the full rigor of the law or, at least, to investigate details which, they claim, would constitute defense arguments for the IDF soldiers.

 

             We did not find any ground for intervention in the decision of the attorney general. The decision to release the detainees is in the realm of the attorney general’s discretion. In a long series of judgments, this Court has ruled that the scope of intervention in the attorney general’s discretion in decisions pertaining to investigation or prosecution is limited to exceptional and unusual instances. Due to the unusual nature of the event and the circumstances entailed therein which, aside from the criminal aspects, also encompass political aspects pertaining to the State’s foreign relations, the attorney general was entitled to consider these aspects. The developments that have ensued in the international arena indicate that a particular political sensitivity exists in everything pertaining to the handling of the matter by the enforcement entities. The attorney general noted that he consulted with all the relevant government entities and after taking into account the fact that nine flotilla participants were killed and several dozen were wounded, he reached the conclusion that the public, political and security interests outweigh the interests of criminal enforcement. We did not find in this decision, which was reasoned as stated, and in the considerations underlying it, any cause for intervention.

 

             Wherefore, after we were convinced that the main remedies sought in some of the petitions were superfluous, and in the absence of cause to intervene in the decision of the attorney general, we have decided to deny the petitions.

 

             Given this day, 20 Sivan 5770 (June 2, 2010).

 

 

The President          Justice                 Justice

_________________________

This copy is subject to editorial and textual changes 10041690_N04.doc AB

Information Center Tel; 02-65936666, website www.court.gov.il

CA 1617/04

1. Chim-Nir Flight Services Ltd.

2. Nissim Ben-Ezra

3. Yoav Ben-Zvi

4. Yosef Barel

5. Dov Grodman

6. Shlomo Haber

7. Avraham Werber

8. Ilan Sela

9. Aryeh Etzioni

10. Dov Peleg

11. Baruch Rothman

12. David Shavit

13. Yehoshua Shamrat

14. Gidon Shatil

v

The Tel Aviv Stock Exchange Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[21 February 2007]

Before Deputy President E. Rivlin, Justices E. Arbel, D. Cheshin

 

Appeal of the decision of the Tel Aviv District Court handed down on December 22, 2003, in TA 2367/00 by Judge Dr. O. Modrik.

 

Legislation cited:

Securities Law, 5728-1968, s. 46

 

Israeli Supreme Court cases cited:

CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1997] IsrSC 50(5) 485.
CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [1997] IsrSC 55(1) 634.
CA 467/04 Yetach v. Mifal HaPayis (2005) (unreported).
HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [1978] IsrSC 32(2) 377.
CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [1992] IsrSC 46(2) 441.
CA 6296/00 Kibbutz Malkiya v. State of Israel [2004] IsrSC 59(1) 16.
CA 145/80 Vaknin v. Beit Shemesh Local Council [1982] IsrSC 37(1) 13.
CA 2061/90 Marzeli v. State of Israel - the Ministry of Education and Culture  [1993] IsrSC 47(1) 802.
CA 5586/03 Freemont v. A. (2007) (unreported).
CA 10083/04 Gooder v. Modi’im Local Council (2005) (unreported).
 CA 2625/02 Nahum v. Dornbaum [2004] IsrSC 58(3) 386.
CA 10078/03 Shatil v. State of Israel (2007) (unreported).
CA 915/91 State of Israel v. Levy [1994] IsrSC 48(3) 45.
CA 243/83 Municipality of Jerusalem v. Gordon [1985] IsrSC 39(1) 113, 134-136.
CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. (2006) (unreported).
CA 1678/01 State of Israel v. Weiss [2004] IsrSC 58(5) 167.
CA 1068/05 Municipality of Jerusalem v. Maimoni (2006) (unreported).
HCJ 64/91 Khilef v. Israel Police [1993] IsrSC 47(5) 563.
CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [1999] IsrSC 53(5) 817.
CA 3889/00 Lerner v. State of Israel [2002] IsrSC 56(4) 304.
CA 862/80 Municipality of Netanya v. Zohar [1983] IsrSC 37(3) 757.
CA 1639/01 Kibbutz Maayan Tzvi v. Karishov [2004] IsrSC 58(5) 215.
CA 8526/96 State of Israel v. A. (2005) (unreported).
CA 429/82 State of Israel v. Suhan [1988] IsrSC 42(3) 733.
CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [1993] IsrSC 47(2) 111.
CA 5604/94 Chemed v. State of Israel [2004] IsrSC 58(2) 498.
CA 3108/91 Rabie v. Veigel [1993] IsrSC 47(2) 497.
CA 6970/99 Abu Samara v. State of Israel [2002] IsrSC 56(6) 185.
CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [2005] IsrSC 59(5) 193.
CA 4707/90 Mayorkas v. State of Israel –Ministry of Health (1991) (unreported).
CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [1975] IsrSC 29(2) 31.
HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [2000] IsrSC 54(3) 496.
HCJ 8850/02 Pastinger v. Minister of Justice [2004] IsrSC 58(2) 696.
CA 735/75 Roitman v. Aderet [1976] IsrSC 30(3) 75.
CA 732/80 Arens v. Beit El – Zichron Yaakov [1984] IsrSC 38(2) 645.
LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. (2000) (unreported).
LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [2002] IsrSC 56(4) 612.
MCApp 2236/06 Hamami v. Ohayon (2006) (unreported).
HCJ 731/86 Micro Daf v. Israel Electric Co. [1987] IsrSC 41(2) 463.
CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.
CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [1995] IsrSC 49(3) 196.
LCA 1784/98 Amidar v. Manada  [1999] IsrSC 53(4) 315.
CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam  [2004] IsrSC 58(5) 625.

 

For the appellants – A. Weinroth, O. Bar, D. Zimmerman

For the respondent – Y. Elhawi

 

JUDGMENT

 

Justice E. Arbel

In this appeal of the judgment of the Tel Aviv-Jaffa District Court (Judge Dr. O. Modrik), the Court is asked to rule that the respondent, the Tel Aviv Stock Exchange Ltd. (hereinafter: "the TASE"), is liable for the damages caused to the appellants as a result of the allegedly negligent decisions that it made during the process of the [first] appellant's share offering.

The facts

Appellant 1, Chim-Nir Flight Services Ltd. (hereinafter: “the Company”) is a public company founded in 1991 which provides aviation services. At the beginning of June 1994, the Company sought to offer its shares to the public on the TASE. It submitted a draft prospectus to the Israel Securities Authority and the TASE, in accordance with its obligations under s. 15 of the Securities Law, 5728-1968 (hereinafter: "the Securities Law"). The TASE and the Israel Securities Authority approved the draft in principle, and the Company planned to publish the prospectus on November 30, 1994. It is also relevant to mention that the Company claims that it was of material significance that the share offering be implemented by the end of 1995 in order to qualify for a particular tax benefit. Since the financial markets were in crisis at that time, the Company decided, in consultation with its advisors and the underwriters of the offering, to add a statement to the prospectus to the effect that within no less than one month, and no more than three months from the date on which the shares were listed for trading, the Company’s shareholders would offer to purchase sixty percent of the issued shares from the public at a minimum price proposed at the time of the offering (hereinafter: "the repurchase offer").  
The TASE objected to the inclusion of the repurchase offer in the prospectus, on the grounds that its implementation was liable to reduce the public’s holding of the Company’s shares to below the minimum level specified in reg. 73c of the TASE Regulations (hereinafter: "the Regulations") for public holdings in a new company seeking to list shares for trading on the TASE. This was in accordance with the provisions of s. 46(a)(2) of the Securities Law which states, inter alia, that the TASE may specify, in the Regulations, “the minimum ratio that will be held by the public immediately subsequent to the listing” (hereinafter: "the listing rules"). The TASE therefore decided not to approve publication of the prospectus as long as it contained the repurchase offer. The Company appealed this decision to the Tel Aviv-Jaffa District Court (MA 10/95), which granted the appeal. The court ordered that the inclusion of the repurchase offer in the Company’s prospectus be approved, providing that it stated that the offer would not be implemented until at least two months had elapsed from the date that the shares were listed for trading. The TASE appealed the judgment to this court (in CA 1094/95), which, at the request of the TASE, ordered a stay of execution of the District Court’s decision until a ruling on the appeal would be handed down.

As a result, in light of time constraints that the Company claims it faced, the Company decided to change the prospectus and omit the repurchase offer (hereinafter: "the amended prospectus"). The amended prospectus was approved and the Company’s offering was issued on June 8, 1995.

This court (Justices E. Goldberg, T. Or, and Y. Zamir) dismissed the appeal of the TASE, ruling that the TASE chose to include in its Regulations listing rules that applied at the time of listing the shares for trading, as distinct from rules that would also apply when the shares were being traded on the TASE (hereinafter: "maintenance rules"). Accordingly, it was determined that the phrase “immediately subsequent to the listing” should be interpreted to refer to the time at which the shares reach the purchasers. Therefore, in the absence of maintenance rules or a directive prohibiting the inclusion of a repurchase offer in the prospectus, it was found that the Company had complied with the listing rules. The court also ruled that, under the circumstances, the repurchase offer could not be regarded as detrimental to the regular and proper management of the TASE in any way, since it was based on logical reasoning. Concluding, the court ruled that the TASE had gone too far in its interpretation of the listing rules and that its decision not to approve publication of the prospectus which included the repurchase offer (hereinafter: "the decision of non-approval") did not have a sufficient factual basis. It found that the TASE had not showed foundation for its concern that the Company was attempting to bypass the listing rules through the repurchase offer, or that damage would indeed be caused to trading as a result of this offer (hereinafter: "the judgment in the previous proceeding").

Following the denial of the appeal, the TASE acted to amend the listing rules so that in cases in which a prospectus contains a notice regarding any kind of option or right which the interested party has regarding the offered shares, these shares will not be counted among the quota of shares being offered to the public. The amendment process lasted about two years, and about three years later the TASE added maintenance rules to the Regulations. These rules determined, inter alia, that a decrease in the public’s holdings to less than 7.5% of the issued capital would result in the delisting of the share from trade.

As a result of the judgment in the previous proceeding, the Company, together with thirteen of its shareholders (hereinafter: the appellants) filed suit against the TASE, claiming that as a result of its unreasonable decisions – which led to the deferral of the offering and the need to issue it without the repurchase offer – they had incurred damages amounting to NIS 17 million.

The judgment of the District Court

The lower court divided its deliberations into two questions: that of liability and that of damages. After hearing the parties’ arguments regarding the question of liability, it found that the TASE had not been negligent in making the decisions that led to the delay of the offering, i.e. the decision of non-approval and the decision to apply to the Supreme Court for stay of execution of the District Court’s judgment until after the ruling on the appeal (hereinafter: "the application for stay of execution").

First, the lower Court ruled that the judgment in the previous proceeding created an estoppel by record on two counts: first, because the TASE’s interpretation of the listing rules was incorrect; and secondly, because the decision of non-approval lacked necessary factual basis. Secondly, the lower court rejected the argument of the TASE that it is not liable for damages caused to the appellants as a result of the delay in the offering, since any such damages did in fact result from the court’s decision to grant the application for stay of execution. In this matter, the lower Court ruled that the TASE had not adequately considered the impact of the application for stay of execution on the Company, for the documents it submitted – the affidavit of the Director General of the TASE and the protocols from the Board of Directors’ meetings – did not indicate any discussion of this problem. The lower court also rejected the TASE’s claim that its request to expedite the hearing of the appeal should be viewed as a deliberate effort to minimize the damage caused to the Company, and determined that it had acted, first and foremost, in its own best interest. In light of the above, the District Court found that the TASE acted negligently, out of indifference to the potential damage that could be caused to the Company. As a result its actions should be viewed as the cause of damage resulting from the delay of the offering, if indeed such damage was caused. Thirdly, the lower Court ruled that under the circumstances, the Company’s decision to proceed with the offering without the repurchase offer and not to wait for the outcome of the appeal was justified, and therefore it in no way detracted from the validity of their claim.

Subsequently, the District Court examined for the existence of the basis for the tort of negligence, and determined that the TASE owed the Company a conceptual duty of care.  In the framework of this ruling, the lower court addressed the question of the existence of a “relationship of proximity” between the parties and found that, under the circumstances, such a relationship existed. This finding was based on the purpose of the Securities Law and the nature of the powers exercised by the TASE in this case. The lower Court also examined the status of the TASE as an administrative authority, and ruled that in this case the TASE had not exercised its discretion in a manner that justified limitation of its liability for negligence according to customary law. Indeed, according to the judgment in the previous proceeding, the TASE exercised its authority within the framework of specific existing rules. The District Court further ruled that in light of the TASE’s expert knowledge of the financial market, it could have predicted that the deferral of the offering would have definite financial implications for the Company. It therefore bore a concrete duty of care regarding some of the damages sought. These findings notwithstanding, the Court noted that it was not proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue a dividend to the Company’s shareholders.

The District Court also rejected the TASE’s argument that since it acted with the full agreement and consent of the Israel Securities Authority -  the administrative body which oversees it -  it could not be deemed negligent. The court found that even though the procedures relating to the District Court judgment were executed in complete coordination with the Authority, it was not proven that the decisions to appeal and stay the execution were made in consultation with the Authority, and certainly not at its instruction.

Regarding the basis of negligence, the District Court found that both the decision of non-approval and the application for stay of execution were reasonable under the circumstances. Regarding the decision of non-approval, the court ruled that notwithstanding the determination in the previous proceeding that this decision was erroneous, it should not be inferred that it was also negligent. In order to judge the reasonableness of the decision, the court examined the decision-making process and found that it was based on the exercise of professional discretion, in consultation with the relevant professional bodies, including the Israel Securities Authority. Therefore, under the circumstances, there was no negligence in reaching this decision. The court emphasized that at the time the decision was made, the TASE had no precedent in this kind of matter to guide its decision-making. Therefore, to examine the reasonableness of its decision in light of the judgment in the previous proceeding is an exercise in the wisdom of hindsight. Regarding the factual basis that underlay the decision, the Court found that basing the decision of non-approval on concerns that the Company would circumvent the listing rules and that this circumvention would have a negative impact on trading, did not constitute a breach of the standard of reasonableness in the particular field of expertise. In light of the above, the court ruled that there was no negligence in the decision of non-approval.
Regarding the application for stay of execution, the District Court ruled that the failure of the TASE to consider the damages to the Company caused by its application for stay of execution was not sufficient to establish a breach of its duty of care vis-à-vis the Company. Rather, the question of how the TASE would have exercised its discretion had it taken these damages into account must be examined as well. In this regard, the court found that the TASE’s decision was based on reasons that it considered extremely important, foremost of which was the prevention of damage to share trading, which was also recognized in the court's decision to order the stay of execution.  Therefore, it was determined that even if the TASE had taken the damage to the Company into account, it is reasonable to assume that the consideration of preventing harm to the investor community would nevertheless have convinced it to apply for the stay of execution. The court added that the evidentiary material before it did not show that the Company approached the TASE with a request to refrain from delaying the execution, and it did not inform the TASE of the damage that this could potentially entail. The court therefore ruled:

'You could say that since at the time that the application was filed the TASE had reasonable and serious grounds for its application and since Chim Nir voiced no protest regarding the damage it expected to sustain – the very existence of the application cannot be viewed as a breach of the proper standard of care. Or you could say that the TASE’s failure to consider Chim-Nir’s interest was ‘redeemed’ by the Supreme Court’s consideration of the conflicting interests and its decision to grant the application' (at pp. 31-32 of the judgment).

The Appellants’ Claims

The appellants’ claims center on the lower court’s ruling regarding the reasonableness of the TASE’s decisions. First, they contend that the lower court erred in its ruling that the TASE did not breach its duty of care in its decision of non-approval. They claim that the TASE’s interpretation of the listing rules is not erroneous, but rather that it oversteps the bounds of reasonableness. The appellants base this claim on a number of determinations in the judgment of the previous proceeding, including the determination that the TASE interpreted the existing rules in a manner that deviated from their purpose and that it presented an inconsistent position before the court. Moreover, the appellants claim that the very fact that the TASE reached its decision without sufficient factual basis automatically renders it unreasonable. The appellants further argue that in accordance with the judgment in the previous proceeding, there were grounds to decide that the TASE bears an increased duty of care due to the fact that it is a monopoly.
Secondly, according to the appellants, the determination of the District Court that the TASE did not take the foreseeable damages to the Company into account and thus acted negligently in its application for stay of execution is sufficient to establish a breach of its duty of care vis-à-vis the Company. They claim that the court erred when it proceeded to examine what the TASE would have decided had it acted properly: it should have left this inquiry for the second part of the deliberations, in which the question of the causal connection was to be considered. Moreover, the appellants claim that the lower court’s determination regarding the reasonableness of the decision is inherently flawed. They claim that since it has been established that the TASE did not fully take into account the relevant considerations – in this case, the potential damages to the Company – the decision cannot be reasonable. In any case, the appellants claim that had the TASE properly considered the relative cost of the damages, it would have concluded that it should not request the stay of execution. The appellants support this claim with the testimony of the Director General of the TASE to the effect that he did not anticipate that approval of the Company’s offering would cause great harm, and with the fact that the TASE took its time in formulating the maintenance rules.

The appellants add that no significance should be attached to the fact that the Supreme Court granted the application for stay of execution, since the arguments that were raised were later found to be flawed upon in-depth deliberation. Moreover, they claim that the lower court erred in its determination that they did not inform the TASE of the damages that they were likely to incur. They say that they outlined these damages in the application for stay of execution, and they were even mentioned in the District Court’s decision on the application. Furthermore, according to the District Court’s own ruling, most of the damages were foreseeable by the TASE.

The appellants add that the lower Court erred when it determined that a concrete duty of care does not apply with regard to some of the heads of damages claimed. They maintain that since the court divided the proceedings into the questions of liability and damage, it ought to have examined the actual forseeability of each of the heads of damage in the second stage, after the parties presented evidence on this matter. The appellants claim that it was obvious that the delay of the offering would have ramifications determined by the fluctuations of the market. The appellants also add that the District Court’s judgment in the previous proceeding created an estoppel by record in this matter, since it established that the repurchase offer could have a positive effect on the public’s holdings. In any case, the appellants argue that changing the structure of the offering was a form of damage control and that the TASE bears the burden of proof in actions such as these.

Finally, the appellants maintain that the lower court did not address the claim that they have a right to compensation also by virtue of the administrative wrong that the TASE perpetrated, and this warrants the remand of the case to the District Court to complete deliberations upon this issue.

The Respondent’s Claims

The TASE concurs with most of the determinations of the lower court and maintains that its judgment should be upheld. Moreover, the TASE claims that policy considerations, foremost of which is the importance of the smooth operation of the financial market, necessitates its protection from the pressures of actions and demands by issuing companies. Therefore, it advocates the establishment of a principle whereby the TASE will not be liable for damages caused as a result of its regulatory decisions when it acts in good faith and in accordance with the position of the Israel Securities Authority.
Regarding all aspects of the decision of non-approval, the TASE claims that the process that led to the decision was thorough, serious and based on the opinions of experts in the field. The TASE emphasizes that it did everything in its power to ensure that the decision was correct and reasonable – internal consultations were conducted on several levels; external legal counsel was sought; and even the advice and consent of its overseeing authority – the Israel Securities Authority – was obtained. In addition, the respondent claims that the fact that this issue that had never previously been addressed and that there were no precedents to guide its decision, should be taken into account. Therefore, the respondent claims that even if it were found that its final decision was erroneous, it is nevertheless not a case of negligence. The TASE adds that the decision of non-approval was inherently reasonable, in light of the purpose that underlies the rules of public holdings – the avoidance of a small market for shares that will increase the risk of various kinds of trade manipulations. It maintains that this purpose justifies an interpretation that applies the rules regarding the percentage of the shares that must be publicly held throughout the period of share trading in a manner that will prevent the listing rules from being circumvented. Moreover, the TASE claims that the wording of the listing rules is not unequivocal, and that it can support its proposed interpretation.

Moreover, the TASE maintains that in the judgment in the previous proceeding, the tortious significance of the decision of non-approval was not addressed at all and therefore nothing can be learned from it. The TASE adds that the finding in the judgment regarding the lack of a factual basis for the decision of non-approval relates to the possibility that the Company was attempting to bypass the listing rules. It claims that since it did not base its decision on this possibility, it has no implications for the reasonableness of the decision. Finally, the TASE maintains that the appellants’ claims regarding this matter should be dismissed out of hand, since they themselves conceded during the proceedings in the District Court and in the summations submitted to it, that the decision of non-approval was reasonable.

Regarding the appellants’ claims in relation to the application for stay of execution, the TASE maintains that this is an illegitimate extension of claims, since these matters were not mentioned in the pleadings filed with the District Court. Therefore, it claims that the lower court erred when it ruled on them even though no relevant evidence was submitted. Nevertheless, the TASE agrees with the Court’s final decision that under the circumstances it was not negligent in the application for stay of execution.

The TASE further objects to the lower court’s determination that the principle whereby it cannot be held liable for damage that was caused -  so it alleges -  as a result of a judicial order, is not applicable in this case. It argues that since it acted in good faith, in order to uphold its immediate material interest and to exercise its rights under law, a deviation from the principle that “a judicial order cannot cause damage” is unjustified. The TASE also claims that the District Court was inherently mistaken when it determined that it had not considered the damage that would be caused to the Company as a result of the application for stay of execution, for several reasons: first, the testimony of the Chief Executive of the TASE revealed that the possible damages to the Company had indeed been considered in making the decision; secondly, the TASE acted on its own initiative to expedite the hearing of the appeal in order to enable  the Company to issue its offering at such time as it was still apparently eligible for tax benefits; thirdly, in making the decision the TASE was concerned about significant harm to trading, and this concern was expressed in its amendment of the rules within a relatively short space of time, in order to address the problem.

The TASE further adds that the appellants’ suit for compensation based on administrative negligence should be dismissed, since this claim first arose only during the appeal and, in any case, it is insufficiently specific.

Deliberations

The TASE is a private corporation which is charged with the management of the main arena for trading securities in the State of Israel. The structure of the TASE, as well as its powers, are prescribed by the Securities Law and it is subject to the oversight of the Israel Securities Authority. Whereas the Israel Securities Authority is primarily entrusted with the examination of the disclosures of companies issuing shares based on a prospectus, the TASE deals primarily with questions regarding the ongoing trading of securities, such as the distribution of securities among the public (Joseph Gross, Securities Law and the Stock Exchange, at p. 163 (1973)). The Securities Law provides that the establishment of a stock exchange requires a license, it defines the structure of the TASE’s board of directors, and it lays down guidelines for its powers, to be determined in the Regulations. The TASE Regulations establish the rules for the proper and fair management of the TASE, which include the listing rules alongside other rules, with the primary purpose of protecting the regularity of securities trading (Moty Yamin & Amir Wasserman Corporations and Securities 16 (2006), hereinafter: Yamin Wasserman).
In light of these characteristics, even though the TASE is a private corporation, it has already been ruled that when it exercises the power granted to it by law, it should be viewed as an administrative authority operating in accordance with the principles of administrative law (see for example: CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 507-512; CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [2] at p. 647; Ronen Adini Securities Law 97 (2004) (hereinafter: Adini)). Indeed, under the principles established by legal precedent, the TASE should be viewed as a hybrid body. Its purpose is a public purpose – to conduct the trading of securities; its powers are defined by law; it maintains a monopoly in its field and it provides a public service (see for example: CA 467/04 Yetach v. Mifal HaPayis [3] paras. 16-19 of my judgment; Assaf Harel Hybrid Bodies 37-52 (2008) (hereinafter: Harel)). Accordingly, the courts have examined the TASE’s decisions through the prism of the principles of administrative law, such as the principle of reasonableness, compliance with the principles of natural justice, etc. (HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [4] at p. 377; Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 511-516). At the same time, the activities of the TASE are subject to judicial review. The courts tend to exercise caution in their judicial review of its decisions, in consideration of its professional discretion, insofar as it is exercised in matters regarding which it has special expertise (CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [5], at pp. 447-452). 

The tort of negligence

At the heart of this appeal lies an examination of the liability of the TASE regarding the tort of negligence, pursuant to the provisions of ss. 35 and 36 of the Civil Wrongs Ordinance [New Version]. In order to establish liability under this tort, the claimant must prove the existence of its basic components: a duty of care, negligence and damage caused a result thereof (see for example: CA 6296/00 Kibbutz Malkiya v. State of Israel [6] at p. 20). The District Court’s judgment addressed only the question of liability – and in that context only the duty of care and negligence – and therefore, this appeal does not address the question of damage. At the outset I note that the question at the center of this proceeding is that of negligence. It is on this that the parties have focused most of their arguments, relegating the arguments regarding the duty of care to the sidelines. Nevertheless, I will discuss the basic components of the tort in order.

Duty of care

The question of when a duty of care between a tortfeasor and an injured party will be recognized has aroused extensive debate in the decisions of this Court. In a nutshell, the prevalent approach in our judicial rulings recognizes two stages in establishing the existence of a duty of care. At the first stage, the existence of a conceptual duty of care is examined, based on the question of whether the tortfeasor, as a reasonable person, should have foreseen the occurrence of the damage. The assumption here is that damage that is foreseeable in physical-technical terms is also foreseeable in normative terms, unless considerations of judicial policy counteract the recognition of this duty. At the second stage, the existence of a concrete duty of care is examined, in view of the particular circumstances of the case relating to the particular tortfeasor and the particular injured party (see for example: CA 145/80 Vaknin v. Beit Shemesh Local Council [7], at p. 13; CA 2061/90 Marzeli v. State of Israel - Ministry of Education and Culture, [8], at p. 802. See also from recent years: CA 5586/03 Freemont v. A. [9], para. 8 of my judgment). According to another approach expressed in judicial rulings, there is no distinction between the conceptual and concrete duty of care, but rather the entire question should be examined as a whole (see for example: CA 10083/04 Gooder v. Modi’im Local Council [10], per Justice Rivlin, at para. 7; CA 2625/02 Nahum v. Dornbaum [11], at p. 386, 408; CA 10078/03 Shatil v. State of Israel [12], per  Justice Levy, at paras. 15-17, 30-31). This approach found expression in the judgment in CA 915/91 State of Israel v. Levy [13], at p. 45, where it was determined that a duty of care will be recognized when two basic conditions are met: first, the condition of “adjacency” or “proximity”; secondly, a judicial conclusion that it is just, reasonable and fair that a duty of care be imposed. The first basic condition involves an examination of the connection between the damager and the injured party – which could be a legal or physical connection, connection by virtue of dependence, etc. – which creates the duty of care. In relation to the second basic condition, various aspects of judicial policy are considered (State of Israel v. Levy [13], at pp. 33-70; see also Nahum v. Dornbaum [11], at pp. 408-409).

Without delving deeply into the difference between these two approaches and also without resolving the question of which one is to be preferred, it would appear that in practice, despite their different points of departure – the first approach is perceived as extending the boundaries of the tort of negligence and the second as narrowing them – similar policy considerations are examined in both approaches, in light of which the boundaries of the duty of care are determined (regarding the relationship between the approaches, see for example: Israel Gilad “On ‘Working Premises,’ Judicial Intuition, and Rationalism in Establishing the Limits of Liability in Negligence” Mishpatim 26 at pp. 295, 304-305 (5758), hereinafter: Gilad “On Working Premises”). These include general considerations which relate to imposing a duty of care upon a person – the desire to deter negligent conduct and to compensate the injured party on the one hand, as opposed to concerns for over-deterrence and overloading the courts on the other (see for example: Gilad “On Working Premises,” at pp. 296-297; Nahum v. Dornbaum [11], at p. 409). Similarly, policy considerations relating to the particular character of the damager, in our case an administrative authority, are also examined, as will be described below.

This was summarized succinctly by my colleague, (then) Justice Rivlin, in his judgment in Nahum v. Dornbaum [11]:

'The application of the tort of negligence is, inter alia, a consequence of setting the limits of the duty of care. These limits tend to distinguish those cases in which a person was negligent and in light of policy considerations it is appropriate to impose liability for his actions upon him, from those cases where the damager was indeed negligent, but policy considerations lead the court to conclude that it is not appropriate to impose liability on him' (p. 408).

The TASE’s duty of care

As stated above, it is accepted that the activities of the TASE are examined by the same criteria as those of an administrative authority. Therefore, in determining whether the TASE owed a duty of care to the Company, which sought to list shares for trading, we must refer to judicial rulings that have dealt with the duty of care borne by administrative authorities, just as the lower court did in its deliberations. In principle, administrative authorities, like any other person or corporation, are subject to liability in torts for their activities and they do not enjoy any specific or absolute immunity from suits on grounds of negligence (Israel Gilad, “The Liability of Public Authorities and Public Servants in Torts (Part One)” Mishpat U’Minhal 2 at p. 339, 393 (5755); Yoav Dotan “The Tortious Liability of a Public Servant Exercising Powers of Discretion” Mishpatim 15 at pp. 245, 246-250 (5746) (hereinafter: Dotan); CA 243/83 Municipality of Jerusalem v. Gordon [14], at pp. 134-136; CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 18; Vaknin v. Beit Shemesh Local Council [7], at pp. 124-127). The unique characteristics of the authority, insofar as they find expression in the circumstances of the case before the court, are significant in the context of the policy considerations that limit and define the extent of the duty of care, as noted above. In Shatil v. State of Israel [12], Justice Levy mentioned some of the considerations relevant to the State’s liability in tort, which are applicable to our case:

'On the one hand, recognition of the State’s mission to promote the welfare of its citizens, the desire to prevent the abuse of the immense power that is placed in its hands, and the desire to encourage it to make informed decisions, are all considered.  On the other hand, the concern that government officials will become over-cautious and their ability to act in accordance with considerations relevant to the matter will be impaired is taken into account…; harm to bodies other than this particular damager...; the acceptance that there are certain general risks to which a citizen is exposed in modern society as a result of government activities…; the concern that government activities will be slowed down…, and the concern that governmental bodies, and the legal system that must examine their activities, will be overburdened….    This list is, of course, not closed' (ibid. para. 31).

In addition, in relation to the authority’s actions, the nature of the power granted to it is also considered. In other words, are its powers merely supervisory, or does it control the events that caused the damage? The extent of the discretion exercised by the authority is considered as well (see for example: CA 1678/01 State of Israel v. Weiss [16], at pp. 181-182; CA 1068/05 Municipality of Jerusalem v. Maimoni [17], at paras. 19-22; State of Israel v. Levy [13], at pp. 76-80. For a discussion of the difficulties arising from exceptional discretion as occurred in the Levy case, see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 41; Shatil v. State of Israel [12], per Justice Levy, at  paras.  23-24).

Bearing in mind all of the above, I decided to address the TASE’s claim that it should bear no tortious liability whenever it exercises its regulatory powers in good faith and in accordance with the policy of the Israel Securities Authority. In other words, acting in good faith and in accordance with the policy of the Israel Securities Authority grants it “quasi-immunity” against tortious liability. As noted above, a determination that the TASE will always be immune to negligence suits for certain kinds of activities does not conform to our own approach. Our approach involves examining the existence of the basic conditions of the tort of negligence in the circumstances of the case, while exercising extra caution if the case justifies it, rather than simply declaring that the authority has absolute immunity in some areas. In this respect, President Shamgar’s words in State of Israel v. Levy are particularly apt:

'The comparative model – which negates the duty of care – is unacceptable to me. The negation of a duty of care amounts to immunity. Once the duty is negated, the question of negligence does not even arise. From an  analytical perspective, negating the duty of care under the given circumstances means that the suit will be rejected' ([13], at p. 81. See also e.g. HCJ 64/91 Khilef v. Israel Police [18], at p. 563; CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [19], at p. 817; CA 3889/00 Lerner v. State of Israel [20], at p. 312).

Nevertheless, as will be explained below, I think that the question of whether the TASE acted in good faith and with the assent of the Israel Securities Authority must be examined when assessing the reasonableness of the actions of the TASE. In other words, it must be examined in order to determine whether the basic conditions of negligence exist, which is the central question in this appeal (on this issue, see for example: Ariel Porat, “Torts Law: Negligence in the Rulings of the Supreme Court from a Theoretical Perspective” Yearbook of Israeli Law 1996-1997 (Ariel Rosen-Zvi, ed., 1997)).

The lower court ruled, and I agree, that there exists a relationship of proximity or adjacency that in principle justifies the imposition of a conceptual duty of care on the TASE. Actually, the primary role of the TASE is to ensure proper and fair trading for the investor community in general. However, the duty of care that the TASE owes the investor community does not negate the existence of a similar duty towards companies whose securities are traded on it. The statutory powers granted to the TASE, which confer supervisory and controlling powers upon it with regard to these companies, must also be considered. In my opinion, these powers create proximity between the TASE and the companies, justifying the application of a conceptual duty of care. This court’s rulings have on numerous occasions addressed the question of the relationship between the tortious duty of care and the statutory powers of an authority. It has found that “not only does the existence of statutory powers not grant immunity or negate liability or duty, but rather the very fact that statutory powers exist serves as the foundation stone on which the conceptual duty of care is constructed” (Municipality of Jerusalem v. Gordon [14], at p. 134. See also: CA 862/80 Municipality of Netanya v. Zohar [21], at p.  766-767; CA 1639/01 Kibbutz Maayan Tzvi v. Karishov, [22], at pp.  215, 282-283; CA 8526/96 State of Israel v. A. [23], at paras. 32-33; Municipality of Jerusalem v. Maimoni [17], at paras. 21-22).

Thus, for example, it is indisputable that regarding a decision to terminate the trading of a share – a decision that the TASE is empowered to make under s. 46(a)(5) of the Securities Law – the TASE owes a duty to the company whose shares have been removed from trade. The same is true in our case. The powers of the TASE in determining the listing rules for share trading create a supervisory relationship, control and even proximity between it and the companies that seek to join it. Those powers generate the duty of care of the TASE toward the companies. The Director General of the TASE even said as much in his testimony before the District Court on October 10, 2002: “I think that our duty is to consider their interest [of the holders of the controlling interest of the issuing company – E.A.]… …Obviously this does not mean that we should or that someone does ignore the needs, problems or desires of the holders of the controlling interest” (at p. 95 of the transcripts, lines 14-23). Moreover, this court has previously addressed the impact of the TASE’s power to set the Listing Rules for companies whose shares are traded on it:

'The provisions of the regulations that deal with the listing of securities for trading on the TASE [establish] conditions for the listing of securities for trading. These conditions stipulate the ‘rights and obligations’ of the public in this regard… They determine the conditions for screening companies whose shares can be traded on the TASE. This affects the legal status of those companies. It also has an impact on their financial capabilities. It influences their ability to raise capital and finance various activities in this manner. It impacts on the business of those companies' (the Torah Literature Database case, at pp. 509-510).

Regarding the TASE’s claim that judicial policy considerations justify its exemption from the conceptual duty of care, I have found no reason to interfere with the lower court's ruling on this matter either. According to this ruling, which is based on this court’s judgment in the previous proceeding, the TASE was not exercising a regulatory power in this case, but rather, applying the provisions of regulations that it determined itself. This kind of application does not involve extensive considerations of policy in a manner that justifies negation of the duty of care. Similarly, I do not accept the TASE’s claim that the imposition of a duty of care vis-à-vis issuing companies will hinder its operations. This Court’s rulings have rejected these kinds of arguments time and again, in light of the fact that they are not generally founded on a factual basis that justifies the granting of immunity to the authority (see for example: CA 429/82 State of Israel v. Suhan [24], at p. 741; CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at p. 127; Shatil v. State of Israel [12], per Justice Levy, at para. 32). Nevertheless, I will state that due to the TASE’s role as the body regulating the activities of the financial market – which is by nature a speculative market – for the benefit of all investors, I believe that certain weight should be assigned to the concern that following a review of its activities from the a tort law perspective, the TASE will stop taking relevant considerations into account when making various decisions. The case at hand demonstrates that sometimes, the TASE’s duty to the wider investor community is incompatible with its duty to one particular company, and we must ensure that the TASE is able to exercise its powers with confidence for the benefit of all investors. Nevertheless, this concern does not justify blanket immunity from suits for damages. Rather it is indicative of the caution that the court must exercise when it imposes liability in tort on the TASE.

As a marginal point, I will add that I have decided not to address the appellants’ argument regarding the connection between the fact that the TASE is a “monopoly” and the extent of the duty of care imposed on it. In any case, I do that think that this argument has a basis in the judgment in the previous proceeding, as the appellants contend. 

Finally, in order to establish a conceptual duty of care, as well as a concrete one, we must examine the question of the damages that the TASE could have predicted might result from a negligent decision regarding approval of the listing of the shares for trade. In this regard, the lower court determined, as noted above, that the TASE, as a body which specializes in the financial markets, could have predicted that the delay of the offering would cause certain types of damage to the Company, such as the deferral of negotiability, a delay in benefit from the proceeds and the costs involved in producing a new prospectus. At the same time, the Court pointed out that it had not been proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue dividends to the Company’s shareholders.

The question of the foreseeability of different types of damages is a complex one, but I do not think that a decision on this issue is necessary or possible in the context of this appeal. First, since the District Court’s judgment did not address the question of damage, a sufficient factual basis for each of the heads of damage claimed was not presented to it, and certainly not to us. Secondly, since we are dealing with damages that were allegedly caused to the appellants in the course of their activities in the financial markets, we must be extra cautious in issuing a ruling that imposes liability for these damages. Activities in the financial markets are speculative by nature, involving opportunities and risk for investors and issuing companies alike. In this light, there is a real conceptual difficulty in the “abstract” examination of various types of damages and the attempt to attribute these damages directly to the TASE. It must also be considered that the relevant period was a time of crisis in relation to investments in the financial markets (see for example: Adini, at pp. 91-95), and this intensified the uncertainty of financial market activities. These factors are particularly relevant when considering that in our case, two different decisions by the TASE are being examined – the decision of non-approval and the decision to apply for stay of execution – each of which required the TASE to foresee damages of different kinds. As the lower court stated:

         'I will mention that my conclusions intertwine different duties of care relating to different decisions. It is clear that the decision of non-approval per se did necessarily entail the delay of the offering. In any case, the damage caused by the delay of the offering should not be viewed as a component of the concrete duty of care that accompanies the decision of non-approval' (at p. 48 of the judgment, note 23).

   I must emphasize that I do not think that these difficulties in determining the limits of the duty of care and foreseeability will prevent the imposition of liability on the TASE for negligent activities in other cases. For example, it would seem that regarding damages that are not directly dependent on the financial markets, such as the cost of producing a new prospectus, it could be decided that a conceptual and concrete duty of care applies. However, I do not think that this is the case in which to examine that question – both in light of the fact that sufficient factual basis has not been presented before us, and in light of my determinations regarding the basis of negligence, which will be explained below.

In conclusion, therefore, I have found that a conceptual duty of care owed by the TASE to companies listing their shares for trading with it may indeed be recognized in principle. However, the question of the extent of this duty – in relation to damages and other kinds of activities – should be left open for further inquiry and consideration when a suitable case graces the chambers of this Court.

The basis of negligence

Having found that the TASE’s duty of care vis-à-vis the Company may be recognized in principle, even without a comprehensive definition of its extent, we must examine whether this duty of care was breached in the circumstances of the case. As I noted above, the element of negligence, which I will now address, is the central issue of the appeal before us.

In the framework of proving negligence, the question of whether the conduct of the damager was improper, deviating from the manner in which a reasonable person would act under those circumstances, is examined. To this end, an objective standard – i.e. the principle of reasonableness – is invoked to examine the concrete circumstances of the case (see for example: CA 5604/94 Chemed v. State of Israel [26] at pp. 507-508; Gilad "On Working Premises,” at pp. 298-299). In this context, it should be added that the actions of the TASE must be examined, first and foremost, in light of the data and information that it possessed at the time it made the various decisions, and not simply based on the judgment handed down by this court in the previous proceeding, several years after those decisions were made. In this respect, President Barak’s words in Chemed v. State of Israel [26]  are particularly apposite:

'The question is not how a reasonable person who is not faced with the particular circumstances of the case would behave; the question is how a reasonable person who finds himself in the damager’s situation would behave. When an examination of reasonableness of conduct is carried out, naturally after the events took place, the goal is to examine the reasonableness of the conduct at the time that it occurred, in accordance with what was known at that time. The examination should not be in light of post-factum knowledge' (ibid. at p. 507. See also: CA 3108/91 Rabie v. Veigel [27], at p. 513; CA 6970/99 Abu Samara v. State of Israel [28], at p. 189).

In order to examine the TASE’s conduct from the perspective of damages, we might invoke the principle of reasonableness that has been developed as the acid test for the activities of an authority in administrative law. As stated by President Barak in CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [29], at p. 193:

'An unreasonable act on the administrative plane is likely to constitute a negligent act in private law. Sometimes these are two sides of the same coin…. For a breach of administrative law the administrative remedies will apply. For a breach of duty of care in torts, the civil remedies will apply, except that essentially contradictory remedies will not be given nor multiple compensation' (ibid., at pp. 203-204. See also: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42).

Nevertheless, despite the interface between these two concepts of reasonableness, they are not absolutely identical, due to the different goals that underlie them and the different planes on which they are examined (see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42 and the references there). For example, without establishing hard and fast rules on the matter, despite the administrative perspective that the court tends to intervene in the authority’s decisions only when these deviate in an extreme manner from the bounds of reasonableness, it cannot be said that the imposition of tortious liability is reserved only for these extreme circumstances (see for example: Dotan, at pp. 279-281). The differing rationales that lie at the basis of judicial review on the administrative plane, and at the basis of judicial analysis on the civil plane, therefore result in differing degrees of judicial intervention.

In this case, we must examine two acts of the TASE which according to the appellants are responsible for the damage that was allegedly caused to them– the decision of non-approval and the decision to apply for stay of execution. I will state from the outset that I find no reason to interfere with the lower court’s conclusion that in the circumstances of the case, the appellants did not succeed in proving that the TASE was negligent in making these decisions. Below I will explain my reasoning in relation to each of the decisions in turn.

The decision of non-approval

The decision of non-approval was made, as mentioned, based on the provisions of s. 46(a)(2) of the Securities Law, which authorizes the TASE to lay down in its Regulations rules for the listing of shares for trading, including the number of shares that must be held by the public immediately after they are listed. The decision of non-approval was also made on the basis of reg. 73a of the Regulations, which provides that the ratio held by the public shall be no lower than that specified in the guidelines. In the judgment in the previous proceeding this Court ruled that the decision of non-approval was mistaken, but that this error does not suffice to establish that the TASE was negligent. Not every mistaken decision by a body exercising professional discretion – be it an administrative authority or otherwise – is automatically a negligent decision (see for example: CA 4707/90 Mayorkas v. State of Israel –Ministry of Health [30]). In this matter I accept the District Court’s distinction that when examining negligence, significant weight must be attributed to the decision-making process. In exceptional cases, where a decision appears to be obviously and absolutely mistaken, it may be determined that even a decision made according to proper procedure was negligent. However, in this case we are not dealing with a decision of this kind.

In our case, there is no dispute that prior to making the decision, the TASE consulted extensively with all the relevant parties – senior executives at the TASE, the TASE’s Committee for Listing of Securities, the TASE’s Board of Directors, its legal advisors, and the Israel Securities Authority. Like the District Court, I am of the opinion that the decision of non-approval was made following a thorough process of clarification and deliberation, with the participation of all the relevant professional bodies. Therefore, I find that no flaw in the decision-making process can be identified, and not even the appellants themselves have claimed such a flaw.

As mentioned above, the appellants argue that despite this process, the TASE’s decision was unreasonable. Indeed, according to the judgment in the previous proceeding, the TASE deviated from the accepted interpretation of the listing rules and made a decision with insufficient factual basis. The judgment in the previous proceeding – which is obviously the basis of the appellants’ claims – was centered on a different question from that which we seek to clarify in our case, i.e. the question of the TASE’s tortious liability. Therefore, even though the Court’s ruling in the previous proceeding is relevant, a situation whereby a decision on the question of damages is based on “the wisdom of hindsight” must be avoided. It is therefore incumbent upon us to focus on examining the discretion exercised by the TASE at the actual time. In the course of the decision-making process, according to the testimony of the Director General of the TASE and the documents provided, the TASE considered with due seriousness the damages that it thought would be caused to the investor community as a result of the publication of the prospectus as it was, and found that these justified its non-publication (see for example pp. 58, 63, 70, 77-78 of the transcripts of the hearing of October 21, 2002 and also appendices C-F of the TASE’s summation). Indeed, the primary function of the TASE is to ensure that trading is conducted in a proper and fair manner, for the benefit of all investors (see for example: Yamin Wasserman). At the same time, as I will discuss further below, among its considerations the TASE must take into account the impact that its decision will have on the company whose case it is addressing. In this case, in light of all that has been said about the proper conduct of the decision-making process, I am not of the opinion that there are grounds to rule that the discretion exercised by the TASE in “real time” was unreasonable.

I say this particularly in light of the fact that in the course of the decision-making process, the TASE consulted with the Israel Securities Authority, its supervisory authority. Now, I do not think that a position taken by the Israel Securities Authority binds the TASE to the extent of absolving it from all responsibility for the outcome of its decision. The TASE – just like any other authority exercising its powers – has a duty to exercise its discretion notwithstanding the supervising authority’s position (on this issue, see for example: Zamir, at pp. 862-863; Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at pp. 132-133. Also cf: CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [31], at pp. 37-38; Haim Levy, Moshe Smith and Marshall Sarnat The Stock Exchange and Investments in Securities pp. 118-119 (Marshall Sarnat and Joan Dilevsky, eds. 1999)). However, the consultation process, which none of the parties claimed was problematic, is generally an effective and appropriate step in the decision-making process (see also: HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [32] at pp. 510-513; HCJ 8850/02 Pastinger v. Minister of Justice [33], at p. 705). The Israel Securities Authority’s position can constitute an indication of the reasonableness of the decision, as manifested in the opinion of the relevant expert bodies. In our case, the consent of the Israel Securities Authority shows that the decision made was seen as reasonable, correct and professional.

Another factor that I consider important in terms of the reasonableness of the TASE’s decision is the fact that its decision of non-approval was apparently the first time that the TASE had dealt with a purchase offer of the kind that the Company sought to include in its prospectus. However, I accept the lower court's determination, which was founded on the judgment of this court in the previous proceeding, that in making this decision the TASE exercised executive powers, as opposed to regulatory powers, as will be explained below. Nevertheless, even though the TASE exercised its discretion within existing regulations, it had no guidelines regarding the treatment of this repurchase offer. Moreover, it is indisputable that this matter lies at the very heart of the TASE’s operations, and it has the potential to impact both the investor community and the public’s trust in the TASE. Under these circumstances, I am of the opinion that “the tortious range of reasonableness” of the decision should be broader.

In my opinion, this factor also has an impact on the appellants’ claims regarding the making of the decision of non-approval in the absence of a sufficient factual basis. Indeed, in the judgment in the previous proceeding, this court ruled that the TASE’s decision lacked factual basis, and the District Court found that this ruling created an estoppel by record. I see no reason to interfere with this determination, but I also do not think that it affects what I said earlier regarding the reasonableness of the decision, for the following two reasons. First, I found there to be substance in the TASE’s claim that the ruling on the lack of factual basis was made as a marginal point, and it related to the possibility that the decision of non-approval was based on the concern that the repurchase offer was a scam and an attempt to bypass the listing rules. Secondly, in examining the reasonableness of the TASE’s activities from the perspective of torts, I am of the opinion that the extent of the discretion granted to the TASE must be considered also in light of the information required to create a basis for the decision. Thus, even though it is clear that an authority may not base a decision on a flimsy factual basis, there is a range within which an authority is entitled to decide what information is essential in order to make the decision (see for example: Yitzhak Zamir The Administrative Authority Vol. 2 at p. 737 (1996), hereinafter: Zamir). This is its professional expertise. In our case, I do not think that TASE deviated from this range of reasonableness, in light of the fact that the decision was based on professional considerations and information. Moreover, some of the information required for the decision was data related to the operation of the financial markets and the response of the investors to the Repurchase Offer – information which is particularly difficult to obtain in advance (see e.g.: Zamir at p. 758). Under these circumstances, I am of the opinion that basing the decision on a genuine concern for damage that could be caused as a result of the publication of the prospectus as it was, does not overstep the bounds of the tortious range of reasonableness.

In conclusion, for the above reasons, I find that there was no negligence in the TASE’s decision of non-approval.

The decision to apply for stay of execution

As noted above, a significant part of the damages claimed by the appellants is the result of the decision of the TASE to apply for stay of execution of the judgment handed down by the District Court – an application that was granted by this court. The lower court found that even though there was no impediment to examining the TASE’s liability for damages caused by the decision to stay the execution of the judgment, since it did not take into consideration the damages that could be caused to the Company as a result of the application, nevertheless, the TASE did not act negligently in its decision to apply for stay of execution. I accept this determination in principle, but I find that its application in this case is not simple.
As we know, the approach that a judgment or other judicial order could not be the basis for a tort was once dominant in Israeli law, and as such, a litigant acting by virtue thereof was considered to be acting in accordance with legal authority and was thus immune to law suits (see for example: CA 735/75 Roitman v. Aderet [34] at pp. 82-83. See also: Municipality of Jerusalem v. Gordon [14], at p. 144). However, it has been ruled in various cases over the years that the aforementioned immunity will not apply to one who initiated legal proceedings in a negligent manner (CA 732/80 Arens v. Beit El – Zichron Yaakov [35], at pp. 645, 656; Municipality of Jerusalem v. Gordon [14], at p. 145; LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36]; LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [37], at p. 618). Judicial precedent has interpreted the duty of care borne by the litigant in this context as a duty to act reasonably, fairly and in good faith, and most importantly to present the full factual picture required for a decision on the dispute before the court (S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Mazza, at para. 21, and per Justice Türkel, at para. 2).  Türkel’s judgment). It has also been ruled that the degree of good faith required of a party to a process is dependent on the character of the relevant process and the nature of the issue in dispute (MCApp 2236/06 Hamami v. Ohayon [38], at para. 10).
As noted above, the TASE is quasi-public body with professional expertise. As such, it is required to exercise discretion before deciding to file an application with the court to stay the execution of a judgment (on the issue of the duties imposed on these kinds of bodies, see for example: HCJ 731/86 Micro Daf v. Israel Electric Co. [39] at p. 499; CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [40] at p. 491; CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [41] at p. 196; LCA 1784/98 Amidar v. Manada [42] at pp. 335-336; Harel, at pp. 243-256). Within the bounds of this discretion, it must weigh the full gamut of considerations relevant to the matter, including the foreseeable damages to the other party that may result from the stay of execution, even if it cannot always know the full extent and details of the damage. I must stress that I am not of the opinion that the TASE bears a duty to take extraordinary measures to assess damages that are not claimed or presented before it. It must formulate an informed position as to whether the damage it will foreseeably incur outweighs the foreseeable damage to the opposing litigant, based on the information it possesses and its professional expertise, so that it may claim that the balance of convenience is tipped in its favor.

Indeed, one must be cautious in overburdening a litigant with obligations in regard to the initiation of proceedings, since this could violate the basic right of access to the courts (see for example: CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam [43] at p. 625; S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Strasberg-Cohen, at para. 5). Moreover, the litigant in our case represents the public interest of the investor community, which does not have the professional knowledge and expertise possessed by the TASE. On the other hand, I am aware of the difficulties involved in a proceeding during which the court is asked to provide temporary relief when the factual picture before it is not entirely clear and when this relief could violate on the rights of the other litigant (see for example: Dudi Schwartz Civil Procedure at pp. 91-93 (2007)). I am therefore of the opinion that the TASE must consider all the factors – including the damage that will be caused to the Company as a result of the stay of execution – before submitting an application, and it must do so on the basis of the information it possesses. This is based on the assumption that the opposing party will present its arguments in full and will provide the court with a detailed picture of the damages that will be caused to it since, in the nature of things, this information should be in its possession. 

To my mind, the TASE fulfilled its duty in this regard. First, in our case it was not claimed that the TASE breached its obligation to present the court with a full factual basis, or that it requested the stay of execution as a means of harming the Company or in a manner that abused its rights (Adv. Shalom Cohen (Official Receiver) v. Glam [43], at pp. 629-630; Dudi Schwartz “The Application of the Principle of Good Faith in Civil Procedure” Iyunei Mishpat 21 at pp. 295, 329-330 (1988)). On this point, I do not think that the appellants’ claim that the TASE presented misleading or erroneous arguments to the court should be accepted. Indeed, in the final analysis, the TASE’s arguments were rejected in the course of the appeal, but it was not determined – nor proven – that it concealed facts or that it deliberately attempted to mislead the court. As the lower court determined in the final section of its judgment, at the time when it submitted the application, the TASE had reasons which it considered to be highly significant and to justify the application for stay of execution. The foremost of these was concern for the damage that could be caused to the financial markets if companies were able to include in their prospectuses repurchase offers of the kind that the Company had inserted into its prospectus.  In this sense, it seems that the TASE exercised a right granted to it by law in order to protect interests that seemed important to it both at that time and later as well, as demonstrated by the amendment of the listing rules.

Secondly, I am unconvinced that the evidentiary material presented before the lower court shows clearly that the TASE acted out of indifference to the damages that would be caused to the Company as a result of the application. The lower court based its determination that the TASE did not consider the damages that would be caused to the Company primarily on the fact that it did not present satisfactory evidence of internal deliberations concerning these considerations. In my opinion, weight should be attached to the fact that the appellants’ claims regarding negligence in the application for stay of execution were made in a tentative fashion, as noted by the lower court as well (at p. 60 of the judgment). Under these circumstances, I think that the aforementioned lack of evidence does not tip the scales in favor of a ruling that the TASE was negligent in initiating the proceeding to stay execution. Moreover, the court noted that it is possible that the Company did not even notify the TASE of these foreseeable damages (at p. 61 of the judgment). In addition, my impression is that the TASE’s request to expedite the date of the appeal hearing attests to its awareness of the difficulty that the delay could cause the Company, as well as to its willingness to facilitate a speedy decision on the matter. It is possible that the request to expedite the hearing stemmed from the TASE’s own interests, but this does not negate the fact that the Company also benefited as a result. In conclusion, this court – after hearing the arguments of both sides – found that there were grounds to stay the execution of the judgment until a ruling was issued on the appeal. In my opinion, this lends credence to the determination that the decision to apply for stay of execution was reasonable at that time.

Therefore, I do not find that the TASE was negligent in its decision of non-approval or its decision to apply for stay of execution of the judgment.

 

Conclusion

In light of all of the above, even though I believe that a duty of care between the TASE and companies issuing their securities on it should be recognized in principle, I do not find that in the circumstances of this case the extent of this duty can be clearly defined. Similarly, I do not find that the appellants have succeeded in showing that the TASE’s decisions were negligent in a manner that would make it liable for the alleged damages that were caused to the Company as a result of the delay of the offering. I would further add that I have not seen fit to discuss the appellants’ claim for compensation by virtue of the tort of negligence, which was claimed in a general and unsubstantiated fashion.

Therefore, I propose that my colleagues dismiss the appeal and order the appellants to cover the court costs and the respondents' legal costs in the amount of NIS 40,000. Appellant 1 will pay NIS 20,000 and the remainder will be divided equally among appellants 2-14.

                                      

Deputy President E. Rivlin

I concur.

                                       

Justice D. Cheshin

I concur.

                                         

Decided as per the decision of Justice E. Arbel.

 

26 Sivan 5768

 29 June 2008

C.A. 103/63

 

           

JOSEPH BOHAKOV

v.

THE MAYOR, COUNCIL & INHABITANTS OF HERZLIA

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[July 11, 1963]

Olshan P., Manny J. and Halevi J.

 

Administrative Law - forcible removal of fences and execution of work under road construction scheme - objections and protest by land owner - Town Planning Ordinance, 1936, secs. 7, 26 and 27 - Land (Acquisition for Public Purposes) Ordinance, 1943, secs. 5, 7 & 8.

 

            Under a road construction scheme. the local authority planned to construct a road across the appellant's land. Notice was sent to the latter, asking him to vacate the land affected and move the fences and that in default the local authority would do so at his expense. The appellant refused to comply and informed the respondent that he would deny it and its agents access to the land. Some days afterwards, local authority employees tore down the fences involved, uprooted trees and began to lay a road close to the appellant's dwelling. The appellant called the police who did not interfere but merely noted what had occurred. The appellant later repaired the fences but they were pulled down again and in the presence of the police the uprooting of trees and other works continued by the local authority. The appellant sued for vacation of the land, an injunction and damages. He was unsuccessful but leave was given to appeal. He appealed in respect of vacation and the injunction which had been refused.

           

            Held. The rule against self-help and taking the law into one's own hands is basic and absent express provision in that regard may not be departed from. The relevant law only provides for compensation and not for forcibly taking possession of land against the objections of the owner. Possession, even if rightful, can under Israeli law in the given circumstances, be obtained only through court.

           

Israel cases referred to:

(1)        H.C. 37/49 - Zvi Goldstein v Custodian of Absentees' Property, Yaffo and others (1949) 2P.D. 716.

(2)        Cr.A. 48/49 - Emanuel and Mina Kahanovitz v Attorney-General (1949) 2 P.D. 890.

(3)        C.A. 332/60 - Jacob Ben-Ami v Attorney-General and another (1961) 15 P.D. 138.

(4)    C.F. 134/51 Tel-Aviv - Joseph Galinski and others v Mayor, Council and Inhabitants of  Tel Aviv (1952) 7 P.M. 208.

 

 English cases referred to:

(5) Loosemore v Tiverton  and N. Devon  Rly. Co. (1882) 22 Ch.D. 25.

(6) Julius v Bishop of Oxford and another (1880) 5 App. Cas. 214.

 

M. Michalovskii for the appellant

A. Ber for the respondent.

 

MANNY J. The sole question to be decided in this appeal is whether a local planning commission acting under the powers vested in it by sec. 27 of the Town Planning Ordinance, 1936, may forcibly take property against the wish of the owner without being required to apply to the competent court. The lower courts answered this question in the positive and hence this appeal.

 

            The statutory provisions necessary for solving the problem are, so far as pertinent, the following:

           

Sec. 25 of the Town Planning Ordinance, 1936:

 

"At any time after... an outline or detailed town planning scheme has come into force, the Local Commission may proceed to the expropriation of any or all of the lands and buildings mentioned in the scheme as destined for expropriation. Subject to the provisions of sections 27 and 28 of this Ordinance the expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes as though the (Minister of Finance) had certified the scheme to be an undertaking of a public nature."

 

Section 27 of the same Ordinance:

 

"Notwithstanding anything in any other Ordinance contained, it shall be competent for a Local Commission to expropriate without compensation any land which is included in a town planning scheme, and is required for the purposes of constructing, diverting or widening any road, street, playground or recreation ground included in the scheme, provided that not more than one quarter part of the area of the plot of any owner is so expropriated, and it shall be lawful for the Local Commission to enter into immediate possession of such land not exceeding one quarter part as aforesaid, for the purposes aforesaid..."

 

 Sec. 28 of the Ordinance empowers the Local Commission to postpone completion of the expropriation for a period not exceedings two years.

 

Sec. 5 (1) of the Land (Acquisition for Public Purposes) Ordinance, 1943:

 

"Where the (Minister of Finance) intends to acquire any land for any public purpose, he shall cause a notice of such intention to be published in (Reshumot), and such notice shall be in the form A or the form B set out in the Schedule, whichever is appropriate... He shall cause a copy of such notice to be served on any person whose name is entered in the land registers as the owner of, or as a person having an interest in, the land..."

 

Sec. 7 of the same Ordinance:

 

"(1) The (Minister of Finance) may, in a notice given under section 5, or by any subsequent notice given in like manner direct any person having possession of the land to be acquired to yield up possession of the land on or before the expiration of the period specified in the notice on that behalf, which period shall not be less than two months from the date of publication of such notice in (Reshumot) unless the land is urgently required for the public purpose for which it is to be acquired...

 

(2) At the expiration of the period specified in a notice given under subsection (1) the (Minister of Finance) shall be entitled to enter into or upon, and take possession of, the land accordingly."

 

Sec. 8 of this Ordinance:

 

"If the owners or occupiers of the land to be acquired refuse to allow the (Minister of Finance) to enter into possession, the Attorney-General may apply to the court which if satisfied that the (Minister of Finance) is entitled to possession under section 7 shall issue an order commanding possession to be delivered."

 

            The reason which moved the majority in the District Court to give a positive answer to the question posed at the beginning of this judgment appears in the third paragraph of the majority judgment, as follows:

           

"It appears to us that the learned Magistrate was right on this point. Expropriation of property for public purposes requires, indeed, generally an application to court, when the owner of the expropriated property refuses to yield possession. That is the general provision found in section 8 of the Land (Acquisition for Public Purposes) Ordinance, but sections 25 and 27 of the Town Planning Ordinance are designed to exclude expropriations for special purposes, and one of these is the diversion of a road, for which the manner of taking possession is changed. The manner outlined in section 27 is to send thirty day prior notice so as to give the owner the opportunity of applying to court to stop possession being taken. That in brief is the difference: in general the expropriating authority is under duty to apply to the court, when the owner refuses to sell possession, but in the special cases specified in section 27, this duty, or more correctly this right, attaches to the owner."

 

I cannot agree with this conclusion of the District Court.

 

            Section 23 of the Town Planning Ordinance of 1921, which preceded the Town Planning Ordinance of 1936, now in force, provided that

           

"(1) At any time after the date at which the scheme has come into force, the responsible authority may proceed to the expropriation of any or all of the lands and buildings mentioned in the scheme as destined for expropriation.

 

(2) The expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes: Provided that no certificate of the High Commissioner shall be required that the town planning scheme is an undertaking of a public nature."

 

And sec. 7 of the Land (Expropriation) Ordinance, 1927, which was in effect when the Town Planning Ordinance of 1936 was enacted, provided that

 

"If within fifteen days after the service of any such notice (to treat) the person on whom the same is served fails to state the particulars of his claim in respect of any land to which such notice relates or to treat with the promoters as to the amount of compensation to be paid or if the promoters and such persons do not within fifteen days agree as to the amount of such compensation,

 

(a) it shall be lawful for the promoters to enter into immediate possession of the lands referred to in such notice:

 

Provided that, if the owners or occupiers refuse to allow the promoters to enter into such possession, the promoters may apply to the president of the court who, if he is satisfied that the promoters are entitled to possession under this section, shall issue an order under his hand commanding possession to be delivered;..."

 

It follows from sec. 23 of the 1921 Town Planning Ordinance and sec. 7(a) of the 1924 Land (Expropriation) Ordinance that until the enactment of the 1936 Town Planning Ordinance, a Local Commission could not take possession of land against the owner's wish without resort to the courts.

 

            Does sec. 27 of the 1936 Town Planning Ordinance change the position in this regard? I think that it does not, and for the following reasons.

           

(1) As I have already said, when this section was enacted the 1926 Land (Expropriation) Ordinance was in force and according to the provision in sec. 7(a) thereof whenever the owner of land sought to be expropriated refused to deliver possession, the expropriators had to apply to court to obtain an order for delivery of possession. Although sec. 27 of the 1936 Town Planning Ordinance, which permits the Local Commission to enter into immediate possession, after one month's notice in writing to the owner, makes no mention of the matter of applying to court of the above-mentioned proviso, that can be explained by the fact that sec. 25 of the 1936 Ordinance had already directed that the expropriation shall be effected "in accordance with the law in force from time to time concerning the expropriation of land for public purposes."

 

(2) The 1943 Land (Acquisition for Public Purposes) Ordinance - which replaced the 1924 Land (Expropriation) Ordinance - also makes a court application obligatory for obtaining an order for delivery of possession when the other refuses to yield up possession. In subsection 7(2) of the 1943 Ordinance, authorising the expropriators to enter into possession, the word "immediate" which appears in subsection 7(a) of the 1926 Ordinance is omitted, but the omission is of no significance for the reasons set out in the previous paragraph.

 

(3) The rule that a person may not take the law into his own hands is basic to our legal system and consequently, in the absence of clear provision to the contrary, no intention of ousting it may be attributed to the legislature. As Maxwell, The Interpretation of Statutes (9th ed.) pp. 85 - 86, puts it:

 

"It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness...

 

In construing the words of an Act of Parliament, we are justified in assuming the Legislature did not intend to go against the ordinary rules of law, unless the language they have used obliges the court to come to the conclusion that they did so intend."

 

I have been unable to find in secs. 25 and 27 of the 1936 Town Planning Ordinance, or in any other part thereof, any such language which should compel me to conclude that the legislature did indeed intend to depart from the said rule. It seems to me that all that the legislature intended in secs. 25, 27 and 28 of the said Ordinance was to provide for a summary manner of expropriating land without compensation for the purposes of highways and playgrounds and recreation grounds and to empower the Local Commissioner to postpone completion of the expropriation for a period not exceeding two years (a postponement which could not be made under the existing law regarding the expropriation of land for public purposes) and on the other to apply to expropriation the provisions of the existing law to all other matters relating to the carrying out of expropriation.

 

            For these reasons, I would accept the appeal, set aside the judgments of the District and Magistrate's Courts and order the respondent to vacate the land which it seized and refrain from entering or carrying out any work thereon or within its bounds, without a prior order of a competent court.

           

HALEVI J.  The facts giving rise to the present dispute are as follows. On 6 April, 1959 the Tel Aviv Planning Commission gave effect to Detailed Planning Scheme No. 403 regarding the building of a road in the Herzliah area. The scheme was published in Reshumot (No. 699) on 17 September 1959. The road as planned affects parts of several plots of land, and crosses inter alia the north-west part of the appellant's plot. A notice from the local planning commission for Herzliah was sent to the appellant on 29 February 1962, signed by the Mayor and municipal engineer and informing him that the municipality "intends proceeding to the carrying out of the necessary works" for making the planned road and "therefore you are requested, in accordance with section 27 of the Town Planning Ordinance, 1936, to remove all your possessions from the place and move the fence to the correct boundary line in accordance with the plan annexed," and "if, within 30 days from receipt of this letter, you do not carry out the required work, the municipality will do so" and "all expenses will be charged to your account." At the beginning of April 1962, the Mayor of Herzlia and the municipal engineer visited the appellant to influence him to comply with this notice, but he refused, telling them expressly that he also refused to permit the respondent or its employees to enter his plot of land and carry out any road works according to the plan. It should be noted that the plot in question includes the appellant's dwelling and an orange grove fenced with iron network. Municipal employees appeared on 10 April 1962 and broke through the fence on the north-west side of the plot, drove a tractor onto the land, uprooted the trees and leveled the ground there for a road close to the house. The appellant who was then ill in bed was only able to get to the part affected after the fence had been broken. Notwithstanding his protests, the municipal engineers continued their operations and forcibly seized that part of the land. A policeman called by the appellant made a note what was happening but did not intervene. After the municipal employees left the place, the appellant repaired the fence but during one of the following nights the fence was again broken through and the next morning the municipal employees turned up once more, this time accompanied by six policemen to prevent the appellant from interfering with them. They carried on uprooting the trees and leveling the ground. They forcibly occupied the part affected, against the appellant's protests. Finally the appellant took legal proceedings for the respondent to vacate the land and claiming an injunction and damages. The action was dismissed by the learned magistrate and his judgment was upheld by a majority in the District Court, with leave to appeal to this Court.

Appellant's counsel limited the appeal before us to the first two prayers, vacation of the land and an injunction.

 

            The respondent, there is no doubt, seized possession of part of the appellant's plot by threats and force and according to sec. 24 of the Ottoman Magistrates Law the appellant is entitled to a judgment for vacation of the land unless the respondent can show that it had a legal right so to take possession. The respondent relies on sec. 27 of the Town Planning Ordinance which provides that, notwithstanding anything contained in any other Ordinance, a Local Commission may, after serving 30 days written notice to the owner, "enter into immediate possession of such land", provided obviously - and this is not in dispute - that the area affected does not exceed one quarter of the plot of the owner. The question we have to answer is whether the words "it shall be lawful for the Local Commission to enter into immediate possession of such land" entitled the Commission to occupy the land by threats or force, in spite of the owner's refusal and opposition. I agree with the view of my friend, Manny J., that since sec. 27 does not provide explicitly that the Commission may so occupy land, the answer to our question must be in the negative.

           

            The source of "to enter into possession" or "to enter into immediate possession" in this context is English law. Many statutes have been enacted in England in the past 150 years with regard to expropriation of land for different public purposes, including the laying of roads, railways and the like. They vest in "the promoters" (whether private individuals, such as railway companies, or public bodies, such as municipalities) a right of entry on to the land required, after certain conditions have been met. Thus, sec. 85 of the Land Clauses Consolidation Act, 1845, provides that "it shall be lawful for the Promoters... to enter upon and use such Lands", and sec. 2 of the Acquisition of Land (Authorisation Procedure) Act, 1946, that "the acquiring authority may enter on, and take possession of, the land" and subsection (5) thereof that "a power to enter on and take possession of land conferred... under this section may... be exercised without notice to or the consent of any person." To enforce the right of entry, where the owner refuses to allow the promoters to enter or actively hinders them, sec. 91 of the 1845 Act (which has not been repealed even in the special cases of the 1946 Act) provides that "it shall be lawful for the Promoters... to issue their Warrant to the Sheriff to deliver possession... to the Person appointed in such Warrant to receive the same, and upon the Receipt of such Warrant the Sheriff shall deliver Possession of any such Lands accordingly."

           

            Thus English law permits "promoters" who have "a right of entry" under special enactments to take possession without the consent of the owner of the land, but if the owner refuses to give or actively interferes with the taking of possession the law refers the promoters to the sheriff, the court's execution officer, and he takes possession of the land in face of the refusal and against the wishes of the owner or occupier and delivers the land to the promoters or their agents. According to English Common Law, as explained by Agranat J. in Goldstein v Custodian of Absentees' Property (1), the person having "a right of entry" does not need a judgment of court to implement his right; he may take the law into his own hands and obtain the land even by force from anyone not entitled to possession, except that the very act of entry by force or threat of force is a breach of the peace and a criminal offence under the Statute of Forcible Entry of Richard II.  Accordingly, for "promoters" to effect their right of entry without breach of the peace and the commission of a criminal offence, sec. 91 of the said Act enables them to call upon the Sheriff who in such an event is mandated to act without a court order on the strength only of the promoters' warrant.

In Loosemore v Tiverton & Devon Rly Co. (5), the defendant company, having a right of entry under a special Act, actually succeeded in entering on the plaintiff's land in spite of his written refusal to allow them to do so, without any breach of the peace (see pier Fry J. at 37). The plaintiff took action against the company for return of the land, pleading inter alia that in the absence of an application to "the execution officer" under sec. 9 the taking of the land was unlawful.

 

"It is said that the Defendant's entry was void for this reason, that the Plaintiff had, before they entered, notified to them that he should refuse to allow their entry, which it is quite plain that he did on the 5th of July, and it is said that, when the landowner refuses to allow the company to enter, they can enter only through the intervention of the sheriff. For that purpose reference was made to the 91st section of the Land Clauses Consolidation Act... It is said that that authority carries with it an obligation, and that the company could not enter, except with the assistance of the sheriff. Now, in the first place, the words of the section are very plain, 'it shall be lawful' and it has been determined in Julius v Bishop of Oxford (6) after great discussion by the 'House of Lords' that the words 'it shall be lawful' in a statute mean 'it shall be lawful' and nothing more, unless there is something in the context or the circumstances of the case which turns words of permission into words of obligation... In my judgment, therefore, the words create an obligation to set the sheriff in motion only where it would be unlawful to enter without his intervention, that is where the entry would be forcible if the company acted upon their right of entry. In the present case all that had been done was to refuse to allow an entry, he did not in any way obstruct the company's entry of the 6th of July, he was not there, and he did not come on the ground till the 9th of July, and an entry does not become forcible, merely because a person says, I refuse to allow you to enter. In my judgment, the entry was perfectly valid." (ibid., 41­42).

 

It follows from these observations of Fry J. that had the taking of the land been effected by the use or threat of force, that would not only have been a breach of the peace and a criminal offence but also a departure of "the right of entry" vested in the promoters under the special Act. That is also implied by Cripps, Compulsory Acquisition of Land (16th ed.) para. 2 - 122, p. 2077, who in reliance on this case states: "It would seem that the promoters may enter premises without issuing their warrant to the sheriff, although the owner refuse entry, provided they can do so peacefully." Thus also in England, the home of the Common Law, on a conservative view, it is at least doubtful whether "a right of entry", accorded by a variety of expropriation enactments, includes a right to seize land by the use or threat of force.

 

            The law current in Israel regarding the taking of land and its return is fundamentally different from English Common Law. The difference was explained by Agranat J. in Goldstein (1] af 724 - 25. The second part of sec. 24 of the Ottoman Magistrates Law absolutely debars the use of force and requires the person having the right of possession, who forcibly takes land from anyone in occupation without right, to restore the land to the previous occupier: only by going to court may he claim his land. This rule applies equally to the taking of land with the assistance of the police. "A person cannot, by his own power or with the assistance of the police, remove another who occupies his property without right, but he must apply to the competent court and obtain an order for recovery of possession" (ibid., 726). There exists in Israel in addition a criminal prohibition of forcible entry similar to that under the English Statute of Forcible Entry. Sec. 96 of the Criminal Code Ordinance, 1936, lays down that

 

"any person who, in order to take possession thereof, enters on any land... in a violent manner, whether such violence consists in actual force applied to any other person or in threats... is guilty of a misdemeanour. Such misdemeanour is termed forcible entry. It is immaterial whether he is entitled to enter on the law or not."

 

See also Kahanovitz v Attorney-General (3).

 

            It is in the light of the general law applicable in Israel, as also in Palestine when the Town Planning and other relevant Ordinances (the Land (Expropriation) Ordinance and the Land (Acquisition for Public Purposes) Ordinance were enacted, that one must understand and construe sec. 27 of the Town Planning Ordinance. If "the right of entry" vested in expropriators under English law is restricted by a prohibition of the use of force, a fortiori is it under Israeli law. Sec. 27 provides that "it shall be lawful for the Local Commission to enter into immediate possession" but not that, in the event of a refusal by the owner or occupier or his actual opposition to entry, the Commission may take possession by the use of or threat of force or with the assistance of the police.

           

            Regarding expropriation under the Town Planning Ordinance generally, sec. 25 provides that "subject to the provision of section 27... the expropriation shall be carried out in accordance with the law in force from time to time concerning expropriation of land for public purposes." This provision refers us to the Land (Acquisition for Public Purposes) Ordinance, and secs. 7 and 8 thereof which touch upon the taking of possession. Whilst sec. 7 is essentially similar to sec. 27 of the Town Planning Ordinance, and in my judgment there is no substantive difference between "to enter into or upon, and take possession of, the land" (sec. 7) and "to enter into immediate possession of such land" (sec. 27), sec. 8 goes on to add the provision, not found in sec. 27, that in the event of the owner or occupier refusing to allow the expropriating authority "to enter into possession" under sec. 7, that authority may apply to the District Court and if the court is satisfied that the authority "is entitled to enter into possession under section 7" it shall order delivery of possession. This section is parallel to sec. 91 of the Land Clauses Consolidation Act of 1845, except that instead of a right to go directly to the sheriff there is here - in accordance with the fundamental difference between English Common Law and the general local law regarding the need in such matters to apply to court - a right to move the District Court by way of motion to order enforcement through the Execution Officer, after proof of the right to take possession. (See Galinski v Tel Aviv Municipality (4)). The respondent's argument which apparently found favour with the Magistrate and the majority in the District Court is that in view of the words "Notwithstanding anything in any other Ordinance contained" in sec. 27 and their non-repetition in sec. 8, the Local Commission need not, nor indeed is allowed to, apply to the Court to enforce its right to take possession in an expropriation under sec. 27. Hence, the conclusion that it was the intention of the legislature that the Commission was entitled, in the event of the owner or occupier refusing to allow it to take possession under sec. 27, to use force, including the police, for that purpose. This reasoning appears to me, with all respect, to be erroneous.

 

            The error, in my opinion, lies in the very view about the nature of "the right to enter into possession" and the relationship between sec. 7 and 8 of the Land (Acquisition for Public Purposes) Ordinance.  Sec. 8 is not intended to restrict the right of possession conferred by sec. 7 but to add to it by providing when necessary for a summary way to effecticate it. A person who reads sec. 7 as giving the expropriator seemingly a right to seize possession by any means, including the use of force against the owner or occupier, will see the provision of sec. 8 as a restriction on this right, that is as a deviation from sec. 7. The conclusion will be that by virtue of the words in sec. 25 of the Town Planning Ordinance, "Subject to the provisions of section 27," and the words in sec. 27, "Notwithstanding anything in any other Ordinance contained," the deviation found in sec. 8 will not apply to the right of possession under sec. 27 and this right will include - as would the right under sec. 7 were it not, in this view, for see. 8 - the right forcibly to obtain possession from the owner or occupier who refuses or opposes it. However, according to the view I favour for the reasons given above, the right itself "to enter into possession" or "to enter into immediate possession" does not, having regard to general Israeli law, include any right to take possession by the use or threat of force towards the owner or occupier. Accordingly the person having the right under sec. 7 - and so also the person having the right under sec. 27 - needs the court's assistance to enforce his right against a contesting owner or occupier. And sec. 8 of the Land (Acquisition for Public Purposes) Ordinance gives him a summary means of achieving this goal: see Ben-Ami v Attorney-General (3). I do not think that the words "Subject to the provisions of section 27"

 and "Notwithstanding anything in any other Ordinance contained" appearing in secs. 25 and 27 or the Town Planning Ordinance, which lays down the priority of sec. 27 over any contrary matter provided in any other Ordinance, negates the right of the Local Commission to apply, even in the case of sec. 27, to the District Court by motion under sec. 8, since that section is not in conflict with sec. 27 regarding the Commission's entitlement to possession but is intended to complete it and add a convenient way for its realisation. In any event, whether the Commission may apply by motion to the District Court or needs to bring an ordinary action for possession in the Magistrate's Court, sec. 27 does not empower it to take possession by the use or threat of force and thus, contrary to the general law of the country, obtain possession from the owner or occupier.

 

            For these reasons, in my judgment, the appeal should be allowed and the two prayers of the appellant granted.

           

OLSHAN P. I agree that the appeal should be allowed.

 

            Appeal allowed

           

            Judgment given on July 11, 1963.

 

 

 

 

 

Petition granted.

23 Kislev 5767.

14 December 2006.

 

 

H.C.J. 7957/04

 

 

Petitioners:                               1.       Zaharan Yunis Muhammad Mara'abe

2. Morad Ahmed Muhammad Ahmed
3. Muhammad Jamil Mas'ud Shuahani
4. Adnan Abd el Rahman Daud Udah
5. Abd el Rahim Ismail Daud Udah
6. Bassem Salah Abd el Rahman Udah
7. The Association for Civil Rights in Israel

 

v.

 

Respondents:                                      1.         The Prime Minister of Israel

2.The Minister of Defense

3.The Commander of IDF Forces in the Judea and Samaria Area

4.The Separation Fence Authority

5.The Alfei Menashe Local Council

 

 

The Supreme Court Sitting as the High Court of Justice

 

[September 12 2004; March 31 2005; June 21 2005]

 

Before President A. Barak, Vice President M. Cheshin, Justice D. Beinisch, Justice A. Procaccia, Justice E. Levy, Justice A. Grunis, Justice M. Naor, Justice S. Joubran  & Justice E. Hayut

 

Petition for an Order Nisi

For Petitioners:                        Michael Sfard

                                               Dan Yakir

                                               Limor Yehuda

For Respondents no. 1-4:        Anar Helman

                                                Avi Licht

For Respondent 5:                  Baruch Heikin

 

 

 

JUDGMENT

 

President A. Barak:

 

Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four kilometers beyond the Green Line.  Pursuant the military commander's orders, a separation fence was built, surrounding the town from all sides, and leaving a passage containing a road connecting the town to Israel.  A number of Palestinian villages are included within the fence's perimeter.  The separation fence cuts them off from the remaining parts of the Judea and Samaria area.  An enclave of Palestinian villages on the "Israeli" side of the fence has been created.  Petitioners are residents of the villages.  They contend that the separation fence is not legal.  This contention of theirs is based upon the judgment in The Beit Sourik Case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) P.D. 807).  The petition also relies upon the Advisory Opinion of the International Court of Justice at the Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 IL M 1009 (2004)).  Is the separation fence legal? That is the question before us.

 

A.        The Background and the Petition

 

            1.         Terrorism and the Response to It

 

1.         In September 2000 the second intifada broke out.  A mighty attack of acts of terrorism landed upon Israel, and upon Israelis in the Judea, Samaria, and Gaza Strip areas (hereinafter – the area).  Most of the terrorist attacks were directed toward civilians.  They struck at men and at women; at elderly and at infant.  Entire families lost their loved ones.  The attacks were designed to take human life.  They were designed to sow fear and panic.  They were meant to obstruct the daily life of the citizens of Israel.  Terrorism has turned into a strategic threat.  Terrorist attacks are committed inside of Israel and in the area.  They occur everywhere, including public transportation, shopping centers and markets, coffee houses, and inside of houses and communities.  The main targets of the attacks are the downtown areas of Israel's cities.  Attacks are also directed at the Israeli communities in the area, and at transportation routes.  Terrorist organizations use a variety of means.  These include suicide attacks ("guided human bombs"), car bombs, explosive charges, throwing of Molotov cocktails and hand grenades, shooting attacks, mortar fire, and rocket fire.  A number of attempts at attacking strategic targets ("mega-terrorism") have failed.  Thus, for example, the intent to topple one of the Azrieli towers in Tel Aviv using a car bomb in the parking lot was frustrated (April 2002).  Another attempt which failed was the attempt to detonate a truck in the gas tank farm at Pi Glilot (May 2003).  Since the onset of these terrorist acts, up until mid July 2005, almost one thousand attacks have been carried out within Israel.  In Judea and Samaria, 9000 attacks have been carried out.  Thousands of attacks have been carried out in the Gaza Strip.  More than one thousand Israelis have lost their lives, approximately 200 of them in the Judea and Samaria area.  Many of the injured have become severely handicapped.  On the Palestinian side as well, the armed conflict has caused many deaths and injuries.  We are flooded with bereavement and pain.

 

2.         Israel took a series of steps to defend the lives of her residents.  Military operations were carried out against terrorist organizations.  These operations were intended to defeat the Palestinian terrorist infrastructure and prevent reoccurrence of terrorist acts (see HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57(2) P.D. 349, hereinafter – Marab; HCJ 3278/02 The Center for Defense of the Individual v. The Commander of IDF Forces in the West Bank Area, 57(1) P.D. 385.  These steps did not provide a sufficient answer to the immediate need to halt the severe terrorist attacks.  Innocent people continued to pay with life and limb.  I discussed this in The Beit Sourik Case:

 

"These terrorist acts committed by the Palestinian side have led Israel to take security steps of various levels of severity. Thus, the government, for example, decided upon various military operations, such as operation “Defensive Wall” (March 2002) and operation “Determined Path” (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent reoccurrence of terror attacks . . .  These combat operations – which are not regular police operations, rather bear all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the severe acts of terrorism. The Committee of Ministers on National Security considered a series of steps intended to prevent additional acts of terrorism and to deter potential terrorists from committing such acts . . . Despite all these measures, the terror did not come to an end.  The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence (Id., at p. 815).

 

Against this background, the idea of erecting a separation fence in the Judea and Samaria area, which would make it difficult for terrorists to strike at Israelis and ease the security forces' struggle against the terrorists, was formulated.

 

3.         The construction of the separation fence was approved by the government on June 23 2002.  At the same time, phase A of the fence was approved.  Its length is 116 km.  It begins in the area of the Salem village, adjacent to the Megiddo junction, and continues to the Trans-Samaria Highway adjacent to the Elkana community.  An additional obstacle in the Jerusalem area (approximately 22 km long) was also approved.  These were intended to prevent terrorist infiltration into the north and center of the country, and into the Jerusalem area.  The government decision stated, inter alia,

 

"(3) In the framework of phase A – to approve construction of security fences and obstacles in the 'seamline area' and in the surroundings of Jerusalem, in order to decrease infiltrations by terrorists from the Judea and Samaria areas for the purpose of attacks in Israel.    

 

(4) The fence, like the other obstacles, is a security means.  Its construction does not reflect a political border, or any other border.

 

(5) . . .

 

(6) The exact and final route of the fence shall be determined by the Prime Minister and the Minister of Defense . . . the final route shall be presented to the Committee of Ministers on National Security or to the government."

 

After that (December 2002) the construction of phase B of the fence was approved.  That phase began at Salem village, heading east until the Jordan river (approximately 60 km).  This phase also includes an offshoot starting at Mt. Avner (adjacent to the village of Al Mutilla) in the southern Gilboa, heading south toward Thaisar village.  After about one year (on October 1 2003) the government decided to construct phases C and D of the fence.  Phase C includes the fence between Elkana and the Camp Ofer military base, a fence east of the Ben Gurion airport and north of planned highway 45, and a fence protecting Israeli communities in Samaria (including Ariel, Emanuel, Kedumim, Karnei Shomron).  Phase D includes the area from the Etzion Bloc southward to the southern Hebron area.  The government decision stated, inter alia:

 

"(2) The obstacle built pursuant to this decision, like its other segments in the 'seamline area', is a security means for preventing terrorist attacks, and does not reflect a political border, or any other border.

 

(3) Local alterations of the obstacle route or of construction necessary for the overall planning of the route, shall be brought for approval to the Minister of Defense and the Prime Minister.

 

(4) . . .

 

(5) . . .

 

(6) During the detailed planning, all efforts shall be made to minimize, to the extent possible, disturbance liable to be caused to the daily lives of Palestinians as a result of the construction of the obstacle." 

 

The separation fence discussed in the petition before us is part of phase A of fence construction.  The separation fence discussed in The Beit Sourik Case is part of phase C of fence construction.  The length of the entire fence, including all four phases, is approximately 763 km.  According to information relayed to us, approximately 242 km of fence have already been erected, and are in operational use.  28 km of it are built as a wall (11%).  Approximately 157 km are currently being built, 140 km of which are fence and approximately 17 km are wall (12%).  The building of 364 km of the separation fence has not yet been commenced, of which 361 km are fence, and 3 km are wall.

 

4.         The separation fence is an obstacle built of a number of components.  "In its center stands a 'smart' fence. The purpose of the fence is to alert the forces deployed along it of any attempt to cross it. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Adjacent to the fence, a service road is paved. On the internal side of the electronic fence, there are a number of roads: a trace road (a strip of sand smoothed to detect footprints of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50–70 meters.  Due to various constraints at certain points along the route, a narrower obstacle, which includes only part of the components supporting the electronic fence, will be constructed.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. . . Various means to help prevent infiltration will be erected along the route of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence" (The Beit Sourik Case, at p. 818).

 

5.         Parts of the separation fence are erected on private land.  Under such circumstances, there is an administrative process of issuing an order of seizure and payment of compensation for the use of the land.  The seizure order can be appealed to the military commander.  If the appeal is rejected, the landowner is given a seven day period to petition the High Court of Justice.  Since issuance of the orders, more than eighty petitions have been submitted to this Court.  Approximately half were withdrawn in light of compromise between the parties.  The other half are being heard before us.  One of those petitions is the petition before us.

 

6.         Since the decision to construct the fence, a constant and continual process of analysis and improvement has been taking place.  This process was intensified, of course, after the judgment in the Beit Sourik Case (given on June 30 2004).  As a result, some segments of the existing route were altered.  The planning of phases not yet constructed was changed.  When necessary, a government decision was made, ordering an alteration of the route of the fence.  Indeed, on February 20 2005, the government decided to alter the fence route.  The decision stated that it came about "after examining the implications of the High Court of Justice's ruling regarding continued work to construct the fence."  The decision further stated:

 

"(a) The government sees importance in the continued construction of the security fence, as a means whose efficacy - in defending the State of Israel and its residents, and in preventing the negative influence a terrorist attack is liable to have on diplomatic moves - has been proven, while ensuring minimization, to the extent possible, of the affect on the daily lives of the Palestinians, according to the standards outlined in the ruling of the High Court of Justice."

 

This decision included additional segments of fence, whose legal examination had not yet been completed (in the area of Western Samaria, Ma'aleh Edumim, and the Judean Desert).  As a result of the government decision, special teams were established to examine the crossings policy and the permit regime.  According to the data relayed to us, part of the separation fence is inside of Israel or on the Green Line (approximately 150.4 km, which are 19.7% of the route).  The part of the fence which is in the Judea and Samaria area leaves about 432 km2, which are about 7.8% of the area of Judea and Samaria, on the "Israeli" (western) side of the fence.  In this area live 8900 Palestinian residents, who will live under a permit regime; and 19,000 Palestinian residents in the Etzion Bloc area, where such a regime will not apply, and it will be possible to enter and exit freely, subject to security check, with no need to acquire permits or licenses of any kind.  It is worth noting that this figure includes the Gush Etzion region (about 1.2% of the area of Judea and Samaria), the "fingers of Ariel" (about 2.0% of the area of Judea and Samaria) and Ma'aleh Edumim (approximately 1.2% of the area of Judea and Samaria).  The staff work and the legal examination regarding these areas have not yet been completed.  Nor have Jerusalem's municipal territory or no-man's-land been included in these figures, since they are not in Judea and Samaria. 

 

7.         All territory left on the "Israeli" (western) side of the fence in the framework of phase A – that is to say, the area between the fence and the State of Israel (hereinafter – the seamline area) – were declared a closed military area, pursuant to Territory Closure Declaration no. S/2/03 (seamline area) (Judea and Samaria), 5764-2003 (of October 2 2003), issued by the Commander of IDF Forces in the Judea and Samaria Area (hereinafter – the declaration).  The seamline area in the phase A area is approximately 87 km2, and about 5600 Palestinians and 21,000 Israeli residents live in it.  The declaration forbade entrance and presence in the seamline area, while determining that the rule does not apply to Israelis or people holding permits from the military commander to enter the seamline area and be present in it. The declaration determined, regarding permanent residents, that people whose permanent residence is in the seamline area will be permitted to enter the seamline area and be present in it, subject to the requirement that they hold a written permit from the military commander testifying to the fact that their permanent place of residence is in the seamline area, and subject to the conditions determined in the permit.  The military commander issued a general permit to enter the seamline area, for holders of foreign passports, holders of permits for work in an Israeli community within the seamline area, and for those who have a valid exit permit from the area into Israel.  After about a half a year (May 27 2004), the declaration was amended (Territory Closure Declaration no. S/2/03 (Seamline Area) (Judea and Samaria) (Amendment no. 1), 5764 – 2004).  According to the amended declaration, the rule forbidding entrance and presence in the seamline area does not apply to permanent residents in the seamline area or those with a work permit from the military commander.  A general permit, for entrance into the seamline area and presence in it for any purpose, was granted to residents of the State of Israel.  Palestinians living in the seamline area were issued a "permanent resident card" testifying that they are permanent residents of the seamline area.  The permits make it possible to live in the seamline area and to move from it into the territories of the area, and back.  Palestinians who are not permanent residents of the seamline area must acquire an entry permit.  Such permits are granted for various reasons, including work, trade, agriculture, and education.

 

            2. The Alfei Menashe Enclave

 

The Alfei Menashe enclave – the topic of the petition before us – is part of phase A of the fence.  The decision regarding it was reached on June 23 2002.  The construction of the fence was finished in August 2003.  The fence circumscribes Alfei Menashe (population approximately 5650) and five Palestinian villages (population approximately 1200): Arab a-Ramadin (population approximately 250); Arab Abu-Farda (population approximately 120); Wadi a-Rasha (population approximately 120); Ma'arat a-Daba (population approximately 250), and Hirbet Ras a-Tira (population approximately 400) (see appendix).  The fence which surrounds the enclave from the north is based, on its western side, upon the fence encircling the city of Qalqiliya (population approximately 38,000) from the south.  This part of the fence passes north of highway 55, which is the enclave's connection to Israel.  The northern part of the fence surrounds Alfei Menashe, Abu-Farda, and Arab a-Ramadin.  The Alfei Menashe enclave is unique for two reasons: First, it is based, in many places, upon the separation fence around the city of Qalqiliya and the villages of Habla and Hirbet Ras Atiyeh; second, the separation fence "brings" over to the "Israeli" (western) side not only Alfei Menashe, but also the five Palestinian villages.

 

9.         There is one crossing and three agricultural gates in the fence surrounding the Alfei Menashe enclave, which connect the enclave to the area.  The central connection between the enclave and the area is via "crossing 109", located on the northern side of the fence, on highway 55.  Crossing 109 is close to the access point to the city of Qalqiliya, in the eastern fence surrounding Qalqiliya called DCO Qalqiliya.  This point is not staffed, except for special cases, and it allows free passage between Qalqiliya and the area.  Crossing 109 allows residents of the enclave to pass by foot and car, subject to security check, to the area and the city of Qalqiliya at all hours of the day.  There are three additional gates in the Alfei Menashe enclave fence, two agricultural, through which one can pass by foot or car.  The three gates are the Ras a-Tira gate (on the western side of the enclave, adjacent to the town of Hirbet Ras Atiyeh); the South Qalqiliya gate, and the Habla gate.  At the time the petition was submitted, the three gates were generally opened three times a day for one hour.  Now, the Ras a-Tira gate opens one hour after sunrise and is closed one hour before sunset.  There is no change in the opening hours of the other gates.  The enclave is connected, with territorial integrity, to Israel (with no checkpoint), and the crossing is made via highway 55, which connects Alfei Menashe to Israel.  The road is mainly used by Israelis traveling to and leaving Alfei Menashe and by Palestinians with permits to enter Israel, or traveling within the boundaries of the enclave.

 

            3.         The Petition

 

10.       The petition was submitted on August 31 2004.  (Original) petitioners are residents of the Ras a-Tira village (petitioners no. 1-3) and the Wadi a-Rasha village (petitioners no. 4-6).  These two villages are located southwest of Alfei Menashe.  Along with them petitioned the Association for Civil Rights in Israel (petitioner no. 7).  At a later phase petitioners' counsel submitted a letter (of March 30 2005) written by the five council heads of the villages in the enclave.  The letter is addressed to the Court.  It expresses support for the petition.  It verifies its content.  At the same time, petitioners' counsel informed us that the village council heads had granted him power of attorney to act in the name of the councils, as petitioners in the petition.

 

11.       Petitioners contend that the separation fence is not legal, and should be dismantled.  They argue that the military commander is not authorized to give orders to construct the separation fence.  That claim is based on the Advisory Opinion of the International Court of Justice at the Hague (hereinafter also "ICJ").  Petitioners also contend that the separation fence does not satisfy the standards determined in The Beit Sourik Case.  On this issue, petitioners argue that the fence is disproportionate and discriminatory.  Respondents ask that the petition be rejected due to a number of preliminary arguments (laches (delay), the "public" nature of the petition, and the lack of a prior plea to respondents).  On the merits, respondents argue that the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case.  The Advisory Opinion of the International Court of Justice at the Hague makes no difference in this regard, since it was based upon a factual basis different from that established in The Beit Sourik Case.  Respondents also contend that the injury to the Palestinian residents satisfies the standards determined in The Beit Sourik Case.

 

            4.         The Hearing of the Petition

 

12.       The petition was heard soon after being submitted, by President A. Barak, Vice President (emeritus) E. Mazza and Vice President M. Cheshin (on September 12 2004).  The Alfei Menashe local council was joined, at its request, as a respondent in the petition.  Further hearing of the petition was postponed, in order to allow the state to formulate its stance.  We noted that postponement of the petition does not prevent respondents from doing all they can to ease the reality of daily life for petitioners under the existing fence route.  The hearing of the petition continued (on March 31 2005) before President A. Barak, Vice President M. Cheshin and Justice D. Beinisch (who replaced Vice President E. Mazza, who retired).  After that, it was decided (on April 21 2005) that the hearing of the petition would take place together with the hearing of HCJ 1348/05 and HCJ 3290/05 (regarding the separation fence around the city of Ariel), and that the hearing of all three petitions would take place before an expanded panel of nine Justices.  The petition was thus heard before an expanded panel (on June 21 2005).  At the commencement of the hearing, it was stipulated that the court would view the hearing as if an order nisi had been granted.  Petitioners presented arguments regarding the fence's injury to the various areas of life in the villages, and extensively discussed their legal arguments regarding the illegality of the fence.  Respondents expanded upon the authority to build the fence and the steps that had been taken in order to ease the residents' lives.  In addition, Colonel (res.) Dan Tirza (head of the administration dealing with the planning of the obstacle route in the seamline area) appeared before us, and surveyed the fence route and the considerations which the route planners confronted.

 

            5. The Discussion Framework

 

13.       The parties' arguments will be examined in five parts.  In the first part we shall discuss the Supreme Court's caselaw regarding the military commander's authority, according to the law of belligerent occupation, to order the erection of the separation fence.  This caselaw was developed by this Court in scores of judgments it has handed down since the Six Day War.  In the second part we shall discuss the way this law was applied, in concrete implementation, in The Beit Sourik Case.  In the third part, we shall discuss the Advisory Opinion of the International Court of Justice at the Hague.  In the fourth part we shall discuss the Advisory Opinion's effect upon the standards in The Beit Sourik Case, and its ramifications for the normative outline as determined by this Court, and for the way this outline was implemented in The Beit Sourik Case.  Finally, we shall examine whether the separation fence at the Alfei Menashe enclave satisfies the tests of the law.

 

B.        The Normative Outline in the Supreme Court's Caselaw

 

            1.         Belligerent Occupation

 

14.       The Judea and Samaria areas are held by the State of Israel in belligerent occupation.  The long arm of the state in the area is the military commander.  He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832).  His power is granted him by public international law regarding belligerent occupation.  The legal meaning of this view is twofold: first, Israeli law does not apply in these areas.  They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case).  In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations).  These regulations are a reflection of customary international law.  The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  The State of Israel has declared that it practices the humanitarian parts of this convention.  In light of that declaration on the part of the government of Israel, we see no need to reexamine the government's position.  We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area, and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions.  As mentioned, seeing as the government of Israel accepts that the humanitarian aspects of The Fourth Geneva Convention apply in the area, we are not of the opinion that we must take a stand on that issue in the petition before us.  In addition to those two sources of international law, there is a third source of law which applies to the State of Israel's belligerent occupation.  That third source is the basic principles of Israeli administrative law, which is law regarding the use of a public official's governing power.  These principles include, inter alia, rules of substantive and procedural fairness, the duty to act reasonably, and rules of proportionality. "Indeed, every Israeli soldier carries in his pack the rules of customary public international law regarding the law of war, and the fundamental rules of Israeli administrative law" (HCJ 393/82 Jami'at Ascan el-Malmun el-Mahdudeh el-Masauliyeh, Communal Society Registered at the Judea and Samaria Area Headquarters v. The Commander of IDF Forces in the Judea and Samaria Area, 37(4) P.D. 785, 810; hereinafter The Jami'at Ascan Case).

 

            2. The Military Commander's Authority to Erect a Security Fence

 

15.       Is the military commander authorized, according to the law of belligerent occupation, to order the construction of a separation fence in the Judea and Samaria area?  In The Beit Sourik Case our answer was that the military commander is not authorized to order the construction of a separation fence, if the reason behind the fence is a political goal of "annexing" territories of the area to the State of Israel and to determine Israel's political border.  The military commander is authorized to order the construction of the separation fence if the reason behind its construction is a security and military one.  Thus we wrote in The Beit Sourik Case:

 

"the military commander is not authorized to order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories in the area to the state of Israel. The purpose of the separation fence cannot be to draw a political border. . . . the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.         . . . The passage of time, however, cannot expand the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation" (Id., at pp. 829-830). 

 

16.       It is sometimes necessary, in order to erect a separation fence, to take possession of land belonging to Palestinian residents.  Is the military commander authorized to do so?  The answer is that if it is necessary for military needs, the military commander is authorized to do so. So we ruled in The Beit Sourik Case:

 

". . . the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if that is necessary for the needs of the army. . . . He must, of course, provide compensation for his use of the land. Of course, . . . the military commander must also consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework, on the condition that it is necessary from a military standpoint.  To the extent that the fence is a military necessity, infringement of private property rights cannot, in and of itself, negate the authority to build it. . . . Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers (Id., at p. 832).

 

It is worth noting that construction of the separation fence is unrelated to expropriation or confiscation of land.  The latter are prohibited by regulation 46 of The Hague Regulations (see HCJ 606/78 Iyub v. The Minister of Defense, 33(2) P.D. 113, 122; hereinafter – The Iyub case).  Construction of the fence does not involve transfer of ownership of the land upon which it is built.  The construction of the fence is done by way of taking possession.  Taking of possession is temporary.  The seizure order orders its date of termination.  Taking of possession is accompanied by payment of compensation for the damage caused.  Such taking of possession – which is not related in any way to expropriation – is permissible according to the law of belligerent occupation (see regulations 43 and 52 of The Hague Regulations, and §53 of The Fourth Geneva Convention: see The Iyub case, at p. 129; HCJ 834/78 Salame v. The Minister of Defense, 33(1) P.D. 471, 472; The Iyub case, at p. 122; HCJ 401/88 Abu Rian v. The Commander of IDF Forces in the Judea and Samaria Area, 42(2) P.D. 767, 770; HCJ 290/89 Jora v. The Military Commander of the Judea and Samaria Area, 43(2) P.D. 116, 118; HCJ 24/91 Timraz v. The Commander of IDF Forces in the Gaza Strip Area, 45(2) P.D. 325, 333 – hereinafter The Timraz Case; HCJ 1890/03 The Bethlehem Municipality v. The State of Israel – The Ministry of Defense (yet unpublished) – hereinafter The Bethlehem Municipality Case; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443, 456 – hereinafter The Hess Case; see also D. Kretzmer "The Advisory Opinion: The Light Treatment of International Humanitarian Law" 99 A.J.I.L. 88, 97 (2005) – hereinafter Kretzmer; N. Keidar "An Examination of the Authority of Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier" 38 Isr. L. Rev. 247 (2005) – hereinafter Keidar).  Pursuant to regulation 52 of The Hague Regulations, the taking of possession must be for "needs of the army of occupation".  Pursuant to §53 of The Fourth Geneva Convention, the taking of possession must be rendered "absolutely necessary by military operation".  G. Von Glahn discussed the legality of taking possession of land, stating:

 

“Under normal circumstances an occupier may not appropriate or seize on a permanent basis any immovable private property but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity” (G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)).

 

The key question is, of course, whether taking possession of land is rendered "absolutely necessary by military operation" (on this question see Imseis "Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion", 99 A.J.I.L. 102 (2005), and Keidar, at p. 247).  This issue is for the military commander to decide.  J.S. Pictet discussed this point, stating:

 

“[I]t will be for the Occupying Power to judge the importance of such military requirements” (J.S. Pictet, Commentary IV Geneva Convention - Relative to the Protection of Civilian Persons in Time of War  302 (1958); hereinafter - Pictet).

 

Of course, the military commander's discretion is subject to judicial review by this Court (see The Timraz Case, at p. 335).

 

17.       In The Beit Sourik Case and preceding case law, the Supreme Court held that the authority to take possession of land for military needs is anchored not only in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention, but also in regulation 23(g) of The Hague Regulations.  The Advisory Opinion of the International Court of Justice at the Hague determined that the second part of The Hague Regulations, in which regulation 23(g) is found, applies only during the time that hostilities are occurring, and that therefore it does not apply to the construction of the fence (paragraph 124).  The International Court of Justice added that the third part of The Hague Regulations – which includes regulations 43 and 52 – continues to apply, as it deals with military government (§125).  This approach of the International Court of Justice cannot detract from this Court's approach regarding the military commander's authority to take possession of land for constructing the fence.  This authority is anchored, as mentioned, in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention.  Regarding the principled stance of the International Court of Justice, we note the following two points: first, there is a view – to which Pictet himself adheres – by which the scope of application of regulation 23(g) can be widened, by way of analogy, to cover belligerent occupation as well (see Pictet, at p. 301; G. Schwarzenberger 2 International Law as Applied by International Courts and Tribunals: the Law of Armed Conflict 253, 314 (1968).  Second, the situation in the territory under belligerent occupation is often fluid.  Periods of tranquility and calm transform into dynamic periods of combat.  When combat takes place, it is carried out according to the rules of international law.  "This combat is not being carried out in a normative void.  It is being carried out according to the rules of international law, which determine principles and rules for the waging of combat" (see HCJ 3451/02 Almandi v. The Minister of Defense, 56(3) P.D. 30, 34; see also HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  In such a situation, in which combat activities are taking place in the area under belligerent occupation, the rules applicable to belligerent occupation, as well as the rules applicable to combat activities, will apply to these activities (see The Marab Case; HCJ 7015/02 Ajuri v. The Commander of IDF forces in the West Bank, 56(6) P.D. 352, and Watkin "Controlling the Use of Force: A Role of Human Rights Norms in Contemporary Armed Conflict" 98 A.J.I.L. 1, 28 (2004)).  Regulation 23(g) of The Hague Regulations will apply in such a situation in territory under belligerent occupation, due to the combat activities taking place in it.  The position of the state, as argued before us, is that the construction of the fence is part of Israel's combat actions.  It is, according to the state's argument, a defensive act of erecting fortifications; it is intended to stop the advance of an offensive of terrorism; it is a defensive act which serves as an alternative to offensive military activity; it is an act absolutely necessary for the for the combat effort.  As mentioned, we have no need to discuss this issue in depth, since the general authority granted the military commander pursuant to regulations 43 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention are sufficient, as far as construction of the separation fence goes.  We are thus able to leave that issue for decision at a later opportunity. 

 

18. The rationale behind the military commander's authority to construct a separation fence for security and military reasons includes, first and foremost, the need to protect the army in the territory under belligerent occupation.  It also includes defense of the State of Israel itself (compare §62(2) of The Fourth Geneva Convention, and HCJ 302/72 Hilo v. The Government of Israel, 27(2) P.D. 162, 178; The Iyub Case, at p. 117; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90; The Beit Sourik Case, at p. 833; Kretzmer, at p. 101).  Does the military commander's authority to construct a separation fence also include his authority to construct a fence in order to protect the lives and safety of Israelis living in Israeli communities in the Judea and Samaria area?  This question arises in light of the fact that Israelis living in the area are not "protected persons," as per the meaning of that term in §4 of The Fourth Geneva Convention (see The Gaza Coast Regional Council Case (yet unpublished, paragraph 4 of the opinion of the Court)).  Is the military commander authorized to protect the lives and defend the safety of people who are not "protected" under The Fourth Geneva Convention?  In our opinion, the answer is positive.  The reason for this is twofold: first, the military commander's general authority is set out in regulation 43 of The Hague Regulations, which determines:

 

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

 

The authority of the military commander is, therefore, "to ensure . . . public order and safety".  This authority is not restricted only to situations of actual combat.  It applies as long as the belligerent occupation continues (see The Timraz Case, at p. 336).  This authority is not restricted only to the persons protected under international humanitarian law.  It is a general authority, covering any person present in the territory held under belligerent occupation.  Justice E. Mazza discussed this, stating:

 

"as far as the need to preserve the security of the area and the security of the public in the area is concerned, the military commander's authority applies to all persons present in the boundaries of the area at any given time.  This determination is a necessary deduction from the military commander's known and clear duty to preserve the security of the area and from his responsibility for preservation of the public peace in his area" (HCJ 2612/94 Sha'ar v. The Commander of IDF Forces in the Judea and Samaria Area, 48(3) P.D. 675, 679).

 

In another case I added:

 

"The Israeli settlement in the Gaza Strip is controlled by the law of belligerent occupation.  Israeli law does not apply in this area . . . the lives of the settlers are arranged, mainly, by the security legislation of the military commander.  The military commander's authority 'to ensure public order and safety' is directed towards every person present in the area under belligerent occupation.  It is not restricted to 'protected persons' only . . . this authority of his covers all Israelis present in the area" (HCJ 6339/05 Matar v. The Commander of IDF Forces in the Gaza Strip (yet unpublished); see also the Hess case, at p. 455).

 

Indeed, the military commander must ensure security.  He must preserve the safety of every person present in the area of belligerent occupation, even if that person does not fall into the category of 'protected persons' (see HCJ 72/86 Zlum v. The Military Commander of the Judea and Samaria Area, 41(1) P.D. 528, 532, hereinafter – The Zlum Case; HCJ 2717/96 Wafa v. The Minister of Defense, 50(2) P.D. 848, 856; HCJ 4363/02 Zindat v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611).

 

19.       Our conclusion is, therefore, that the military commander is authorized to construct a separation fence in the area for the purpose of defending the lives and safety of the Israeli settlers in the area.  It is not relevant whatsoever to this conclusion to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at the Hague.  For this reason, we shall express no position regarding that question.  The authority to construct a security fence for the purpose of defending the lives and safety of Israeli settlers is derived from the need to preserve "public order and safety" (regulation 43 of The Hague Regulations).  It is called for, in light of the human dignity of every human individual.  It is intended to preserve the life of every person created in God's image.  The life of a person who is in the area illegally is not up for the taking.   Even if a person is located in the area illegally, he is not outlawed. This Court took this approach in a number of judgments.  In one case I noted:

 

"The military commander's duty is to protect the security of his soldiers, while being considerate of the safety of the local population.  This population also includes the settlements located in the area.  Their legality is not under discussion before us, and will be determined in the peace treaties which the relevant parties will reach" (HCJ 4364/02 Zindat v. The Commander of the IDF Forces in the Gaza Strip (unpublished), and see also HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished)).

 

In another case I stated:

 

"It is contended before us that the objective of the order is to allow movement between two settlements, and that this objective is not a legal one, as the settlements are not legal.  Not security considerations lie at the base of the order, rather political considerations.  This argument holds no water.  The status of the settlements will be determined in the peace treaty.  Until that time, respondent has the duty to defend the population (Arab and Jewish) in the territory under his military control (HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611; see also The Zlum Case, at p. 532).

 

In a similar vein wrote my colleague, Justice A. Procaccia:

 

"Alongside the area commander's responsibility for safeguarding the safety of the military force under his command, he must ensure the well being, safety and welfare of the residents of the area.  This duty of his applies to all residents, without distinction by identity – Jew, Arab, or foreigner.  The question of the legality of various populations' settlement activity in the area is not the issue put forth for our decision in this case.  From the very fact that they have settled in the area is derived the area commander's duty to preserve their lives and their human rights.  This sits well with the humanitarian aspect of the military force's responsibility in belligerent occupation" (The Hess Case, at p. 460).

 

 

20.       Indeed, the legality of the Israeli settlement activity in the area does not affect the military commander's duty – as the long arm of the State of Israel – to ensure the life, dignity and honor, and liberty of every person present in the area under belligerent occupation (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230, 243 (2005)).  Even if the military commander acted in a manner that conflicted the law of belligerent occupation at the time he agreed to the establishment of this or that settlement – and that issue is not before us, and we shall express no opinion on it – that does not release him from his duty according to the law of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of the Israeli settlers.  The ensuring of the safety of Israelis present in the area is cast upon the shoulders of the military commander (compare §3 of The Fourth Geneva Convention).  Professor Kretzmer discussed this:

 

“[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against a serious violation of IHL”   (Kretzmer, at p. 93).

 

It is also to be noted that the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington D.C. between the State of Israel and the PLO on 28 September 1995, provided that the question of the Israeli settlements in the area will be discussed in the negotiations over the final status (see §17(a) and §31(5)).  It was also provided in that agreement that "Israel shall . . . carry the responsibility . . . for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order" (§12(1)).  This arrangement applies to all the Israeli settlements in the area.  This agreement was granted legal status in the area (see Decree Regarding Implementation of the Interim Agreement (Judea and Samaria)(No. 7), 5756-1995)(see The Gaza Coast Regional Council Case, paragraph 10 of the opinion of the Court, as well as Y. Zinger "The Israeli-Palestinian Interim Agreement Regarding Autonomy Arrangements in the West Bank and Gaza Strip – Some Legal Aspects", 27 Mishpatim 605 (1997) [Hebrew]).

 

21.       The second reason which justifies our conclusion that the military commander is authorized to order the construction of a separation fence intended to protect the lives and ensure the security of the Israeli settlers in the area is this: the Israelis living in the area are Israeli citizens.  The State of Israel has a duty to defend their lives, safety, and well being.  Indeed, the constitutional rights which our Basic Laws and our common law grant to every person in Israel are also granted to Israelis who are located in territory under belligerent occupation which is under Israeli  control.  We discussed that point in The Gaza Coast Regional Council Case:

 

"In our opinion, the Basic Laws grant rights to every Israeli settler in the area to be evacuated.  This jurisdiction is personal.  It is derived from the State of Israel's control over the area to be evacuated.  It is the fruit of a view by which the state's Basic Laws regarding human rights apply to Israelis found outside the state, who are in an area under its control by way of belligerent occupation" (Id., paragraph 80 of the opinion of the Court).

In sum, Israelis present in the area have the rights to life, dignity and honor, property, privacy, and the rest of the rights which anyone present in Israel enjoys (see The Hess Case, at p. 461).  Converse to this right of theirs stands the state's duty to refrain from impinging upon these rights, and to protect them.  In one case, an Israeli wished to enter the area.  The military commander refused the request, reasoning his refusal by the danger to the Israeli from being present in the place he wished to enter.  The Israeli responded that he will "take the risk" upon himself.  We rejected this approach, stating:

"Israel has the duty to protect her citizens.  She does not satisfy her duty merely since citizens are willing to 'take the risk upon themselves'.  This 'taking of risk' does not add or detract from the issue, as the state remains obligated to the well being of its citizens, and must do everything possible to return them safely to the country" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 406.  See also HCJ 9293/01 Barakeh, M.K. v. The Minister of Defense, 56(2) P.D. 509, 515; The Gaza Coast Regional Council Case (yet unpublished, paragraph 111 of the opinion of the Court)).

Thus it is, generally speaking.  Thus it certainly is, when many of the Israelis living in the area do so with the encouragement and blessing of the government of Israel.

22.       Of course, the scope of the human right of the Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right.  At the foundation of this differentiation lies the fact that the area is not part of the State of Israel.  Israeli law does not apply in the area.  He who lives in the area lives under the regime of belligerent occupation.  Such a regime is inherently temporary (see HCJ 351/80 The Jerusalem District Electric Company v. The Minister of Energy and Infrastructure, 35(2) P.D. 673, 690; The Jami'at Ascan Case, at p. 802; The Beit Sourik Case, paragraph 27; The Gaza Coast Regional Council Case, paragraph 8 of the opinion of the Court)).  The rights granted to Israelis living in the area came to them from the military commander. They have no more than what he has - Nemo dat quod non habet.  Therefore, in determining the substance of the rights of Israelis living in the area, one must take the character of the area and the powers of the military commander into account.  This Court discussed that point in The Gaza Coast Regional Council Case, as it examined the impingement of the human rights of the Israelis evacuated from the Gaza Strip:

"In determining the substance of the impingement and the rate of compensation, one must take into consideration the fact that the rights impinged upon are the rights of Israelis in territory under belligerent occupation.  The temporariness of the belligerent occupation affects the substance of the right impinged upon, and thus also, automatically, the compensation for the impingement (Id., paragraph 126 of the opinion of the Court).

While discussing the property right of Israelis evacuated from the Gaza Strip, the Court stated:

"This property right is limited in scope . . . most Israelis do not have ownership of the land on which they built their houses and businesses in the territory to be evacuated.  They acquired their rights from the military commander, or from persons acting on his behalf.  Neither the military commander nor those acting on his behalf are owners of the property, and they cannot transfer rights better than those they have.  To the extent that the Israelis built their homes and assets on land which is not private ('state land'), that land is not owned by the military commander.  His authority is defined in regulation 55 of The Hague Regulations. . . . The State of Israel acts . . . as the administrator of the state property and as usufructuary of it . . . " (Id., paragraph 127 of the opinion of the Court).

The scope of this right and the level of protection of it are not put forth for decision before us.  The Israelis whose lives and security the separation fence is intended to protect are not petitioners before us.  Their security, lives, rights of property, movement, and freedom of occupation, as well as the other rights recognized in Israeli law, are taken into consideration in the petition before us in the framework of the military commander's discretion regarding the need for a separation fence, and regarding its route (see The Zlum Case, at p. 532).

23.       Israel's duty to defend its citizens and residents, even if they are in the area, is anchored in internal Israeli law.  The legality of the implementation of this duty is anchored in public international law, as discussed, in the provisions of regulation 43 of The Hague Regulations.  In The Beit Sourik Case, this Court did not anchor the military commander's authority to erect the separation fence upon the law of self defense.  The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense.  The reason for this is that §51 of the Charter of the United Nations recognizes the natural right of self defense, when one state militarily attacks another state.  Since Israel is not claiming that the source of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall (paragraph 138 of the Advisory Opinion of the International Court of Justice at the Hague).  Nor does the right of a state to self defense against international terrorism authorize Israel to employ the law of self defense against terrorism coming from the area, as such terrorism is not international, rather originates in territory controlled by Israel by belligerent occupation.  This approach of the International Court of Justice at the Hague is not indubitable (see R. Higgins Problems and Process, International Law and How We Use It 253 (1994); F. Frank "Terrorism and the Right of Self-Defense" 95 A.J.I.L.  839 (2001); J. J. Paust "Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond" 35 Cornell Int'l L.J. 533 (2002); A. C. Arend and R. J. Beck International Law and the Use of Force - Beyond the UN Charter Paradigm (2000)).  It stirred criticism both from the dissenting judge, Judge Buergenthal (paragraph 6) and in the separate opinion of Judge Higgins (paragraphs 33 and 34).  Conflicting opinions have been voiced in legal literature.  There are those who support the ICJ's conclusion regarding self defense (see I. Scobbie "Words My Mother Never Taught Me – 'In Defense of the International Court'" 99 A.J.I.L. 76 (2005). There are those who criticize the ICJ’s views on self-defense (see M. Pomerance "The ICJ's Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial" 99 A.J.I.L. 26 (2005); Murphy "Self-Defense and the Israeli Wall Advisory Opinion: An Ipse, Dixit from the ICJ" 99 I.J.I.L. 62 (2005); Wedgwood "The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self Defence" 99 A.J.I.L. 52 (2005); Gross "Combating Terrorism: Self-Defense, Does it Include Security Barrier – Depends Who You Ask" 38 Corn. Int. L.J. 569 (2005). We find this approach of the International Court of Justice hard to come to terms with.  It is not called for by the language of §51 of the Charter of the United Nations (see the difference between the English and French versions, S. Rosenne 291 General Course on Public International Law 149 (2001)).  It is doubtful whether it fits the needs of democracy in its struggle against terrorism.  From the point of view of a state's right to self defense, what difference does it make if a terrorist attack against it comes from another country or from territory external to it which is under belligerent occupation?  And what shall be the status of international terrorism which penetrates into territory under belligerent occupation, while being launched from that territory by international terrorism's local agents?  As mentioned, we have no need to thoroughly examine this issue, as we have found that regulation 43 of The Hague Regulations authorizes the military commander to take all necessary action to preserve security.  The acts which self defense permits are surely included within such action.  We shall, therefore, leave the examination of self defense for a future opportunity.

            3.         The Military Commander's Considerations in Erecting the Separation Fence and the Balancing Between Them

24.       What are the considerations which the military commander must weigh in determining the route of the fence?  The first consideration recognized by international law is the security-military consideration, by force of which the military commander is permitted to weigh considerations of the security of the state, the security of the army, and the personal security of all present in the area.  Indeed, converse to the human rights of the Israelis stands the military commander's duty and authority to defend them.  The second consideration is, in the context of the petition before us, the good of the local Arab population.  The human dignity of every member of the population, including the local population, must be defended by the military commander.  Indeed, the basic rule is that every member of the local population is entitled to recognition:

"His human dignity, the sanctity of his life, and his status as a free person . . .  one must not take his life or his dignity as a person, and one must defend his dignity as a person . . . the military commander's duty according to the basic rule is twofold: first, he must refrain from acts which hurt the local residents.  That is his 'negative' duty; second, he must take the action necessary to ensure that the local residents will not be hurt.  That is his 'positive' duty" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 394).

The human rights of the local residents include the whole gamut of human rights.  My colleague, Justice A. Procaccia, discussed this point, noting:

"In the framework of his responsibility for the well being of the residents of the area, the commander must also work diligently to provide proper defense to the constitutional human rights of the local residents, subject to the limitations posed by the conditions and factual circumstances on the ground . . . included in these protected constitutional rights are freedom of movement, religion, and worship, and property rights.  The commander of the area must use his authority to preserve the public safety and order in the area, while protecting human rights" (The Hess Case, at p. 461). 

 

25.       Human rights, to which the protected residents in the area are entitled, are not absolute.  As any human rights, they are relative.  They can be restricted (The Limitation of Human Rights in Comparative Constitutional Law (de Mestral ed. 1986); Kiss "Permissible Limitations on Rights" The International Bill of Rights (L. Henkin ed. 1981) 290).  Some of the limitations stem from the need to take rights of other people into account.  Some of the limitations stem from the public interest (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraphs 14 and 15).  Thus, for example, the freedom of movement is not an absolute freedom.  It can be restricted due to national security needs, public order, or the rights and freedoms of others (see § 12(3) of the International Covenant on Civil and Political Rights, 1966).  The person responsible for the public interest in the area is the military commander.

26.       What is the legal source from which the protected persons in the area derive their rights?  It is unanimously agreed that international humanitarian law is the central source of these rights.  This law is established, inter alia, by The Hague Regulations.  Regulation 46 of The Hague Regulations provides as follows:

"Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

   

This humanitarian law is also established in The Fourth Geneva Convention, which protects the rights of "protected persons".  The central provision is established in §27:

"Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. . . . the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."

These provisions have been quoted at times in the judgments of the Supreme Court (see HCJ 256/72 The Jerusalem District Electric Company v. The Minister of Defense, 27(1) P.D. 124; HCJ 302/72 Abu Hilu v. The Government of Israel, 27(2) P.D. 169; HCJ 574/82 Al Nawari v. The Minister of Defense, 39(3) P.D. 449; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 27(2) 349; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(3) P.D. 385; The Beit Sourik Case).

27.       Can the rights of the protected residents be anchored in the international conventions on human rights, the central of which is the International Covenant on Civil and Political Rights, 1966, to which Israel is party (see E. Benvenisti The International Law of Occupation (1993); Dennis "Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation" 99 A.J.I.L. 119 (2005))?  The International Court of Justice at the Hague determined, in its Advisory Opinion, that these conventions apply in an area under belligerent occupation.  When this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions.  In one case, President M. Shamgar relied upon these international sources, stating:

"I enter not, at this point, into the question whether the obligations arising from the various agreements and declarations to be referred to, are legally binding . . . for the concrete purposes before us now, I shall assume that one can view the content of these legal documents as relevant" (HCJ 13/86 Shahin v. The Commander of IDF Forces in the Judea and Samaria Area, 41(1) P.D. 197, 210).

 

In another case, my colleague Justice D. Beinisch stated:

 

"We need not decide whether, and to what extent, the international conventions on human rights apply in the Judea and Samaria area . . .  Suffice it to say that in the framework of the military commander's duty to exercise his discretion reasonably, he must also take into account the interests and rights of the local population, including the need to minimize the impingement of its freedom of movement; and that, respondents do not contest" (The Bethlehem Municipality Case (yet unpublished, paragraph 15)).

 

We shall adopt a similar approach.  Indeed, we need not, in the framework of the petition before us, take a position regarding the force of the international conventions on human rights in the area.  Nor shall we examine the interrelationship between international humanitarian law and international law on human rights (on this question see T. Meron Human Rights and Humanitarian Norms as Customary Law (1989); Human Rights and Humanitarian Law: The Quest for Universality (D. Warner ed. 1997); J. Frowein "The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation" 28 Isr. Y. H. R. 1 (1998); D. Schindler "Human Rights and Humanitarian Law: Interrelationship of the Laws" 31 Am. U. L. Rev. 935 (1982)).  However, we shall assume – without deciding the matter – that the international conventions on human rights apply in the area.

 

28.       Indeed, in exercising his authority pursuant to the law of belligerent occupation, the military commander must "ensure the public order and safety."  In this framework, he must consider, on the one hand, considerations of state security, security of the army, and the personal security of all who are present in the area.  On the other hand, he must consider the human rights of the local Arab population.  Indeed, "the law of war usually creates a delicate balance between two magnetic poles.  Military necessity on the one hand, and humanitarian considerations on the other (Y. Dinstein "The Authority to Legislate in the Administered Territories" 2 Iyunei Mishpat 505, 509 (5732-5733) [Hebrew]).  I discussed this point in one case, noting:

 

"The Hague Regulations revolve around two main axes: one – ensuring the legitimate security interests of the occupier in territory held under belligerent occupation; the other – ensuring the needs of the civilian population in the territory held under belligerent occupation" (The Jami'at Ascan Case, at p. 794).

 

My colleague Justice A. Procaccia similarly noted that The Hague Regulations authorize the military commander to provide for two needs:

 

"The first need is military, and the other is a civilian-humanitarian need.  The first concerns itself with providing for the safety of the military force holding the area, and the second – with responsibility for maintaining the well being of the residents.  On the latter subject, the military commander is charged not only with preservation of the order and safety of the residents, but also with defense of their rights, and especially the constitutional human rights granted them.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must weigh" (The Hess Case, at p. 455).

 

29.       These considerations – security needs on the one hand and the needs of the local population on the other – conflict each other.  Thus is usually the case.  Thus certainly is the case regarding the construction of the fence.  What is the military commander to do in this situation?  The answer is that he must create a balance between the conflicting considerations.  Indeed, like in many other areas of law, the solution is not found in "all" or "nothing"; the solution is in locating the proper balance between the clashing considerations.  The solution is not to assign absolute weight to one of the considerations; the solution is to assign relative weights to the various considerations, while balancing between them at the point of decision (see HCJ 953/83 Levy v. The Commander of the Southern District of the Israeli Police, 38(2) P.D. 393).  "In performing his task of preserving order and safety, the commander of the area must ensure, therefore, the critical security interests on the one hand, and protect the interests of the civilian population in the area on the other . . . between these foci of responsibility, a proper balance is needed" (The Hess Case, at p. 456).  Indeed, "The law of belligerent occupation recognizes the military commander's power to preserve the security of the area and to thus defend the safety of his state and its citizens.  However, it makes exercise of this authority conditional upon the proper balance between them and the rights, needs, and interests of the local population" (The Beit Sourik Case, at p. 833).

 

4.         Proportionality

 

30.       How shall this balancing be performed?  The answer is that this balancing raises no problem unique to belligerent occupation.  It is a part of a general problem in law (see A. Barak A Judge in A Democratic Society 262 (2004)[Hebrew]).  The solution to it is universal.  It is found, inter alia, in general principles of law, including reasonableness and good faith.  One of these basic principles which balances between a proper and fitting goal and the means for realizing it is the principle of proportionality (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraph 15; The Beit Sourik Case, at p. 836; The Gaza Coast Regional Council Case, paragraph 102 of the opinion of the Court).  This principle draws its strength from international law and from the fundamental principles of Israeli public law.  The principle of proportionality is based on three subtests which fill it with concrete content.  The first subtest calls for a fit between goal and means.  There must be a rational link between the means employed and the goal one is wishing to accomplish.  The second subtest determines that of the gamut of means which can be employed to accomplish the goal, one must employ the least harmful means.  The third subtest demands that the damage caused to the individual by the means employed must be of appropriate proportion to the benefit stemming from it.  Note that "at times there is more than one way to satisfy the proportionality demand.  In such situations, a zone of proportionality (similar to the zone of reasonableness) should be recognized.  Any means which the administrative body chooses from within the zone is proportional" (The Beit Sourik Case, at p. 840).

 

            5.         The Scope of Judicial Review

 

31.       In a long line of judgments, the Supreme Court has determined the standards for the scope of judicial review of decisions and acts of the military commander in territory held under belligerent occupation.  This judicial review is anchored in the status of the military commander as a public official, and in the jurisdiction of the High Court of Justice to issue orders to bodies fulfilling public functions by law (§15(3) of Basic Law: The Judiciary).  In determining the scope of judicial review, it was decided on the one hand that the Court does not substitute the discretion of the military commander with its own discretion.  "It is but obvious that the Court does not slip into the shoes of the deciding military official . . . in order to replace the commander's discretion with the discretion of the Court" (Shamgar P. in HCJ 1005/89 Aga v. The Commander of IDF Forces in the Gaza Strip Area, 44(1) P.D. 536, 539).  The Court does not examine the wisdom of the decision, rather its legality (see HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 393).  This is appropriate from the point of view of separation of powers.  On the other hand it was determined that the Court does not refrain from judicial review merely because the military commander acts outside of Israel, or because his actions have political and military ramifications.  When the decisions or acts of the military commander impinge upon human rights, they are justiceable.  The door of the Court is open.  The argument that the impingement upon human rights is due to security considerations does not rule out judicial review.  "Security considerations" or "military necessity" are not magic words (see HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) P.D. 352, 375; HCJ 619/78 "Al Taliyeh" Weekly v. The Minister of Defense, 33(3) P.D. 505, 512; The Jami'at Ascan Case, at p. 809; HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  This is appropriate from the point of view of protection of human rights.

 

32.       It is between these two edges that the normative outline for the scope of judicial review is determined.  This outline examines whether the actions and decisions of the military commander uphold the law in the area.  When the action can be performed in a number of ways, the Court examines whether the act of the military commander is an act that a reasonable military commander could have adopted.  When the decision of the military commander relies upon military knowledge, the Court grants special weight to the military expertise of the commander of the area, upon whom the responsibility for the security of the area is cast (see HCJ 390/79 Duikat v. The Government of Israel, 34(1) P.D. 1, 25; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90, 92; The Beit Sourik Case, at p. 844).  When the decision of the military commander – based upon his military expertise – impinges upon human rights, the proportionality of the impingement will be determined according to the customary tests of proportionality.  In one case I discussed this point, noting:

 

"We assume that the military action performed in Rafiah is necessary from a military standpoint.  The question before us is whether the military action withstands the national and international standards which determine the legality of that action.  The mere fact that the action is called for on the military level does not mean that it is lawful on the legal level.  Indeed, we do not substitute the discretion of the military commander, regarding military considerations.  That is his expertise.  We examine their results on the humanitarian law level.  That is our expertise" (The Physicians for Human Rights Case, at p. 393).    

 

 

These standards – by which this Court has acted for a very long time – apply also regarding the scope of judicial review of the separation fence route at Alfei Menashe.  So we said in The Beit Sourik Case:

 

"The military commander is the expert regarding the military quality of the separation fence route.  We are experts regarding its humanitarian aspects.  The military commander determines where, on hill and plain, the separation fence will be erected.  That is his expertise.  We examine whether this route's harm to the local residents is proportional.  That is our expertise (Id., at p. 846).

 

C. The Beit Sourik Case

 

33.       In The Beit Sourik Case, the legality of the construction of the separation fence west of Jerusalem was discussed.  The length of that separation fence was approximately 40 kilometers.  It was part of phase C of the separation fence (upon which the government decided on October 1 2003).  Most of it was built east of the Green Line.  It includes, in its "Israeli" part, a number of Israeli settlements which were built in the Judea and Samaria area, near the Green Line.  The Supreme Court (President A. Barak, Vice President E. Mazza and Justice M. Cheshin) first discussed whether the military commander is authorized to order the construction of the fence, in light of petitioners' argument that a political consideration, and not a military one, lies at the foundation of its construction.  The Court held that the military commander's authority is limited to military-security considerations.  He is not authorized to take political reasons into account.  The Supreme Court examined the data before it and determined that "according to the factual basis before us, the reason for erecting the fence is a security reason" (Id., at p. 830).  On this issue, the Court relied upon government decisions which stressed its character as a security fence; upon affidavits of the commander of the area, in which the military considerations at the heart of the choice of route were detailed; upon the way the government officials went about things, changing (more than once) the route during the hearings, showing openness to suggestions which were raised, and agreeing (more than once) to move the fence route closer to the Green Line.  Summarizing this issue, the Supreme Court stated:

 

"We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in choosing the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (Id., at p. 831).

 

34.       The second question discussed by the Supreme Court regarded the legality of the orders issued in order to take possession of the land upon which the fence was built.  The various seizure orders were examined on their merits.  The Court found that there had been no defect in the process of issuing the orders or in the process of allowing the submission of appeals.  The Court determined that the military commander is authorized – according to the international law which applies in the area – to take possession of land, needed for military purposes, subject to his duty to pay compensation.  The Court relied upon regulations 23(g) and 52 of The Hague Regulations, and upon §53 of The Fourth Geneva Convention.  The Court held that "the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers" (Id., at p. 832).

 

35.       The third question discussed by the Court was the legality of the route chosen for the construction of the separation fence.  The Court discussed the need to achieve a balance between the security-military needs and the rights of the protected residents.  Regarding the security-military needs, the Court stated that it assigns special weight to the military opinion of the military commander, with whom the responsibility for security lies.  Regarding the rights of the protected persons, the Court relied upon the humanitarian law set out in The Hague Regulations and The Fourth Geneva Convention.  In the discussion of the appropriate balance, a considerable part of the judgment was devoted to the question of proportionality.  A comparison was made between the intensity of harm to security (without the security fence) and the harm to the local residents (caused by the security fence).  The Court held that the test for proportionality is an objective one. "This is a legal question, the expertise for which belongs to the Court" (Id., at p. 841).  Against this background, the Court examined the five segments of the fence (according to the five seizure orders).  Each fence segment was examined separately, as the separation fence's "proportionality varies according to local conditions" (Id., at p. 846).  Also examined, however, was the compound harm caused to the lives of the local population by all the fence segments together.  Some of the fence segments were found to be proportionate.  Others were found to be disproportionate.  The basis of the determination of lack of proportionality was the third subtest of proportionality.  The question posed by this subtest is whether "the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand[s] in reasonable (proper) proportion to the security benefit from the construction of the fence along that route" (Id., at p. 850).  According to that subtest, it was determined, regarding one of the fence segments, that the separation fence "undermines the delicate balance between the duty of the military commander to preserve security and his duty to provide for the needs of the local inhabitants.  This approach is based on the fact that the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under international humanitarian law" (Id., at p. 850).  One fence segment was held to be disproportionate, since "the farmers' way of life is impinged upon most severely. The regime of licensing and gates, as set out by the military commander, does not solve this problem" (Id., at p. 854).  A third fence segment was found to be disproportionate, as it created "a veritable chokehold, which will severely stifle daily life" (Id., at p. 855).  Regarding all fence segments found to be disproportionate, the Court stated that "[t]he injury caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The injury is of far wider a scope. It strikes across the fabric of life of the entire population" (Id., at p. 861).  The result was that those parts of the fence found to be disproportionate were annulled. 

 

36.       After the judgment in The Beit Sourik Case was handed down, the issue went back to the military commander.  He reexamined the route which had been under discussion in that case.  He made alterations to it, which, in his opinion, implement the content of the judgment.  Eight petitions against the legality of the new route are pending.  In seven of them, the Arab residents are petitioning against the new route (HCJ 5683/04 The Beit Sira Village Council et al. v. The Government of Israel; HCJ 426/05 The Bidu Village Council v. The Government of Israel; HCJ 2223/05 Abd el Wahab Kandil et al. v. The Military Commander of the Judea and Samaria Area; HCJ 3758/04 Agraib v. The Government of Israel; HCJ 8264/05 Hadur et al. v. The Military Commander of the Judea and Samaria Area; HCJ 8265/05 Saker Ibrahim Abdalla v. The Military Commander of the Judea and Samaria Area; HCJ 8266/05 Jamal v. The Military Commander).  In one of the petitions, an Israeli settlement petitions against the new route (HCJ 1767/05 The Har Adar Local Council v. The Ministry of Defense).  These petitions are yet pending, as we have been asked to examine – in an expanded panel - the Advisory Opinion of the International Court of Justice at the Hague, and its effect upon the normative outline as set out in The Beit Sourik Case.  It is to these questions which we now turn.

 

D. The Advisory Opinion of the International Court of Justice at the Hague

 

            1.         The Request for an Advisory Opinion and the Proceedings Before the International Court of Justice

 

37.       The General Assembly of the United Nations decided (on December 8 2003) to request an Advisory Opinion of the International Court of Justice at the Hague, regarding the legal consequences arising from the construction of the wall (as the separation fence is called in the decision of the General Assembly).  The language of the decision is as follows:

 

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” (Resolution ES-10/14).

 

 When it received the request for an Advisory opinion, the International Court of Justice notified all states entitled to appear before the Court that they may relay information to it regarding all aspects of the question presented before it.  In this framework, the Secretary-General of the UN submitted a dossier containing documents likely to throw light upon the question before the ICJ (on January 19 2004).  Written statements were filed to the ICJ by a number of states, including Israel.  The ICJ heard oral arguments.  Israel did not request to make oral arguments.  Two questions stood before the ICJ.  The first question was whether it has jurisdiction to give the requested opinion, and if the answer to that question is positive, are there reasons not to exercise that jurisdiction.  The second question was the question posed to it by the General Assembly, on the merits.  The Advisory Opinion was handed down on July 9 2004.

 

38.       The main factual basis upon which the ICJ based its opinion, comes from the dossier filed with the ICJ by the Secretary-General of the UN.  The dossier contains the resolution of the General Assembly requesting the ICJ's Advisory Opinion, as well as the background of the events that led to its adoption by the General Assembly.  The dossier also contains data likely to throw light upon the question posed to the ICJ.  A central source of the information on the separation fence is the report of the Secretary-General of the UN (of November 24 2003; hereinafter - "The Secretary-General's Report"), prepared prior to the UN General Assembly decision, and a written statement updating his report (of January 19 2004; hereinafter - "the Secretary-General’s written statement").  The Secretary-General's Report opens with a survey of government decisions regarding the "barrier" (as the Secretary-General calls it).  It describes the route of the barrier. 

According to this description, approximately 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will end up between the Green Line and the barrier (220,000 of whom in East Jerusalem). When the entire route of the barrier is completed, an additional 160,000 Palestinians will be in isolated enclaves, with the barrier almost completely encircling communities and tracts of land.  The planned route contains 320,000 Israelis (178,000 in East Jerusalem).  As the report continues, the Secretary-General describes the format of the barrier.  He notes that out of 180 km of the barrier already constructed or being constructed, 8.5 km are concrete walls, which the Israeli army sees as "gunfire protection walls".  They are generally found where Palestinian population centers abut Israel, such as the towns of Qalqiliya and Tulkarm, and parts of Jerusalem. The report further describes the phases of construction of the barrier.  Phase A runs 123 km (from the north end to Elkana).  Much of Phase A construction deviates from the Green Line, and incorporates Israeli settlements. According to UN officials' estimations, approximately 56,000 Palestinians have been put into enclaves - encircled areas that open into the West Bank.  Approximately 5300 Palestinians are in "closed areas" between the barrier and the Green Line.  These people require permits or identity cards.  The enclaves include Qalqiliya (population 41,606) and, to its south, a cluster of three villages with about 7300 residents.  Phase B of the barrier is 45 km long, at the northern part of the Green Line to the Jordan Valley.  It does not incorporate any settlements and does not create Palestinian enclaves.  The Secretary-General 's report also describes the plan for the barrier in Jerusalem.  Further on in the report, the route of the barrier from Elkana to the Ofer Camp military base is described.  It includes two "depth barriers" that together create enclaves encompassing 29,000 acres and 72,000 Palestinians in 24 communities.  The route deviates up to 22 km from the Green Line.  It includes a number of large settlements, including about 52,000 settlers in the "Ariel salient".  The government decision does not explain the nature of the barrier around this area.  Last described is the southern part of the barrier, 115 km long, which cuts several kilometers into the West Bank, to encompass the Gush Etzion settlement bloc and the settlement of Efrat.  An enclave is created with around 17,000 Palestinians.  The construction of the fence in this area has not yet begun.

 

39.       The Secretary-General's report describes the way in which land is requisitioned to build the barrier, including the possibility of petitioning the High Court of Justice.  It is noted that the orders expire on December 31 2005, but that they are renewable.  The report also describes the orders closing the area between the Green Line and the barrier ("Closed Areas"), pursuant to which there is no entrance into the closed area, and no one is allowed to be present in it.  This order will affect 73 km2 and 5300 Palestinians, living in 15 communities.  The order introduces a new system of residency status in the closed area.  Only upon issuance of a permit or ID card by IDF will residents of the closed area be able to remain in it.  Israeli citizens and residents can remain in the closed area and move freely to the closed area, from it, and within it, with no need for a permit.  At the date the report was written, most residents of the closed area had received permits for one month, three months, or six months.  All those that have a permit enter and exit through gates which open for 15 minutes, three times a day.  It is mentioned that if the Palestinian residents are denied regular access to their land, jobs and services, there is a concern that they will leave the area.

 

40.       The final part of the Secretary-General's report examines the humanitarian and socio-economic impact of the barrier.  According to the report, the barrier appears likely to deepen the fragmentation of the West Bank, which began with the closure system imposed after the outbreak of hostilities in September/October 2000.  The barrier dramatically increased the damage to the communities resulting from the closure system.  According to a report of the Palestinian Central Bureau of Statistics, the barrier has separated 30 localities from their health services, 22 localities from their schools, 8 localities from their primary water sources, and 3 localities from the electricity network.  The report states that the Palestinians living in the enclaves are facing some of the harshest consequences of the barrier’s construction and route. Thus, for example, the city of Qalqiliya is encircled by the barrier, with entrance and exit possible from only one gate.  Thus the town is isolated from almost all its agricultural land. The villages surrounding it are separated from their markets and services.  Thus, for example, at the UN hospital in Qalqiliya, a 40% drop in caseloads has been noted.  The report further notes that completed barrier sections have had a serious impact on agriculture.  Tens of thousands of trees have been uprooted.  Farmers, separated from their land, and often also from their water sources, must cross the barrier via the controlled gates. Recent harvests have perished due to the irregular opening and closing times of the gates.  According to the Secretary-General's report, the barrier has severely restricted movement and access for thousands of urban Palestinians in Jerusalem.  The wall at Abu Dis has already affected the access to jobs and essential social services, notably schools and hospitals.  The north part of the barrier in Jerusalem has damaged long standing commercial and social connections of tens of thousands of people.  This phenomenon will be repeated along much of the route through Jerusalem.  The report states that some Jerusalem identity card holders are outside the barrier, and some of West Bank identity card holders are within the barrier.  This raises concerns about the future status of residency for Palestinians in occupied East Jerusalem under current Israeli laws. The report states that if Israel persists in construction of the barrier, some of its economic and humanitarian impact can be limited if Israel allows regular movement through a series of 41 gates to Palestinians living east of the barrier who need to access their farms, jobs, or services in the closed area.  Such access cannot compensate for incomes lost from the barrier's destruction of property, land, and businesses.  This raises concerns over violations of the rights of the Palestinians to work, health, education, and an adequate standard of living.  At the end of the report appears a short summary of the positions of the government of Israel and of the PLO. 

 

41.       The Secretary-General's report was prepared before the General Assembly resolution.  After that resolution, the Secretary-General added a written statement updating his report (on January 29 2004).  In the Secretary-General's written statement, the Secretary-General repeated some of the data from his first report, and gave an update regarding the developments in the three months which had passed since it was filed.  The statement reported that at the time of its writing, 190 km of the barrier had been completed, and two main crossing terminals had been built.  The Secretary-General's written statement surveys the various segments of the barrier, according to the phase of construction to which they belong.  Phase A, according to the updated data, 150 km long, includes a double barrier around the Baka Sharqiya enclave.  The written statement notes, regarding this enclave, that according to the original route completed in July 2003, the barrier was erected east of the Green Line, such that the enclave included about 6700 Palestinians.  At the end of November 2003, Israel began to build a new barrier along the Green Line, west of the enclave.  Part of the new barrier passes through the town of Nazlat Issa, where a wall 800 m long has been built.  The United Nations has been informed that the east side of the barrier will eventually be pulled down.  The Secretary-General's written statement further states than south of Tulkarm, on the Green Line, a major crossing terminal is being built, modeled after the Karni crossing in the Gaza Strip.  The written statement notes that Israel has removed the permanent checkpoint at the east entrance to Qalqiliya.  In addition, in mid January 2004, construction started on underpasses connecting Qalqiliya to Habla, under the access road to Alfei Menashe.  Regarding phase B, the written statement mentions the completion of barrier segments running along the Green Line or adjacent to it, from the Gilboa Mountains to the Al Mutilla valley.  In January 2004, construction began on an additional segment, in the direction of the Jordanian border.  A third segment is planned to run south and away from the Green Line, toward the Taysir village.  The written statement notes that Israeli officials informed the UN that this segment may not be completed. The written statement further updates regarding construction of the crossing terminal at Jalameh, north of Jenin, which is to serve as the primary point of entry between Israel and the northern West Bank. The written statement further describes phase C of the barrier, including its three sub-phases (phase C1 – from Elkana to the Ofer Camp military base; phase C2 – the Ariel salient; and phase C3 – "the depth barriers").  Construction has begun of 4 km of phase C1, mostly near the Green Line, out of 40 planned kilometers.  The remainder of the planned route deviates from the Green Line, reaching up to 7 km inside the West Bank.  Phase C3 includes two planned "depth barriers", up to 9 km inside the West Bank – one east of the Ben Gurion airport and the other along the planned highway 45.  It was noted that the exact components of the "depth barriers" had not yet been determined, but that if they are constructed, they will create two enclaves containing 72,000 Palestinians living in 24 communities.  The UN was informed that this segment will to be the last to be built.

 

42.       A considerable part of the Secretary-General's written statement is devoted to the barrier in East Jerusalem.  The statement mentions that construction of the barrier in the southeast of the city had begun at the end of November 2003, along the municipal boundary determined by Israel.  The barrier runs 6 km beyond the Green Line, from El Ezaria to Har Homa.  In residential areas, like El Ezaria, the wall is built to a height of 9 m.  This segment cuts El Ezaria off from Jerusalem, and splits the village of Abu Dis into two.  At least 35,000 people will live east of the barrier along this segment, which has no gates.  The entrance into Jerusalem by those with Jerusalem identity cards will be allowed via a checkpoint beneath the eastern slope of the Mount of Olives.  Another concrete wall has been constructed south of Abu Dis.  The Secretary-General's written statement also spoke of a number of roads which are planned or being constructed adjacent to the barrier around Jerusalem, which will result, inter alia, in the separation of Palestinian traffic from Israeli traffic.  The written statement concludes with a description of the obstacle planned in the north of Jerusalem, which will separate the Al-Ram village from Jerusalem.  The UN was informed that changes in the route of highway 45 in this area are being considered.  Finally, the written statement noted that the government of Israel was continuing to erect the barrier along the route approved by the cabinet (on October 1 2003).  Moreover, noted the written statement, additional components, such as crossing terminals, roads, underpasses, and gates were being constructed. 

 

43.       In addition to the two reports of the Secretary-General, the dossier included two reports by special rapporteurs, appointed by the Commission on Human Rights, which were filed prior to the General Assembly decision.  One report (of September 8 2003) discussed the question of human rights violations in the occupied Arab territories, including Palestine.  Its author is Mr. John Dugard (hereinafter – "the Dugard report").  The second report (of October 31 2003) discusses "the right to food".  Its author is Jean Ziegler (hereinafter – "the Ziegler report").  We shall briefly discuss each of the two reports. 

 

44.       The Dugard report opens and closes with the finding that the fact must be faced, that what we are presently witnessing in the West Bank is a visible and clear act of territorial annexation under the guise of security.  The report describes the process of building the wall.  It points out that Palestinians between the wall and the Green Line will effectively be cut off from their land and workplaces, schools, health clinics, and other social services.  As a result, many Palestinians are leaving their homes and moving into the Palestinian territory beyond the wall.  There is a real concern of the creation of a new generation of refugees or internally displaced persons.  In the opinion of the rapporteur, the construction of the wall is nothing other than de facto annexation of territory.  The construction of the wall should be seen in the context of the building of settlements and the annexation of East Jerusalem.  Settlements in East Jerusalem and the West Bank are the principal beneficiaries of the wall, and approximately half of the 400,000 settler population will be incorporated on the Israeli side of the wall.  This data, along with the high cost of the wall, confirm the permanent nature of the wall.  Therefore, beyond the fact that the wall violates Palestinians' freedom of movement, restricts their access to education and health facilities, and results in the unlawful taking of Palestinian property, the wall also violates two of the most fundamental principles of international law: the prohibition on the forcible acquisition of territory, and the right to self determination.  The construction of the wall creates facts on the ground.  Despite the refrain from use of the term, the wall is annexation for all intents and purposes.  Thus the prohibition against forcible acquisition of territory – a prohibition mentioned in many international conventions, including the UN Charter - is violated.  This prohibition applies irrespective of whether the territory is acquired as a result of an act of aggression or in self-defense.  The building of the wall violates the Palestinians' right to self determination.  The realization of the right to self determination requires territorial sovereignty.  The construction of the wall substantially reduces the already small territory within which the Palestinians can exercise their right to self determination.  Israel responded to the Dugard report (on April 2 2004).

 

45.       Ziegler calls the security fence an "apartheid fence".  The building of the wall constitutes a violation of the obligation to respect the Palestinians' right to food, since it cuts the Palestinians off from their agricultural land, water wells, and other means of subsistence.  The report mentions that the fence route deviates considerably from the Green Line, and is a de facto annexation of territory on Israel's part.  The report presents data from the "B'tselem" organization, according to which 72,200 Palestinians in 36 communities will be cut off from their lands.  128,500 people in 19 communities will be put in enclaves and almost completely imprisoned by the winding route of the wall, including 40,000 residents of Qalqiliya.  11,700 people in 13 communities will be trapped in military closed areas between the wall and the Green Line, cut off from the Palestinian areas, but forbidden from entering Israel.  As a result of the construction of the wall, Israel will effectively annex most of the west aquifer system which provides 51% of the West Bank water resources.  As a result of their detachment from means of existence, many residents will be forced to leave their homes.  According to the estimate, between 6000 and 8000 residents have already left the area of Qalqiliya.  The report refers to the government's position that residents will be allowed to appeal the expropriation of lands.  However, the writer notes that all appeals made to the military Appeals Committee at the time of writing have been rejected, although the area expropriated was reduced in some of the cases.  In any case, the report adds, the speed at which the wall is being built (work continues 24 hours a day) makes it difficult to allow for proper judicial process.  The rapporteur concludes with a finding that if the wall continues to be built as planned, it will bite off almost half of the area remaining for the future Palestinian State.  Thus, the possibility of establishing a viable Palestinian state will be eliminated, and the Palestinians right to food will be denied.  Israel responded to the Zeigler report (on November 26 2003).

 

            2.         The ICJ's Jurisdiction and Discretion

 

46.       The International Court of Justice held, in the first part of its opinion, that it has jurisdiction to give the requested opinion, and that that jurisdiction is a discretionary power.  The ICJ further held that it sees no compelling reason for it not to give the opinion.  In this context, the opinion held that the ICJ has sufficient information and evidence to enable it to give the requested opinion.  This information is from the dossier submitted to the ICJ by the UN Secretary-General, written statements submitted to the ICJ by a number of states, Israel's written statement which, although limited to the question of jurisdiction and judicial propriety, included observations on other matters, including Israel's security concerns.  Additional documents issued by Israel on that issue, which are in the public domain, also stood before the ICJ.  This part of the Advisory Opinion was given by a majority of ICJ judges, with Judge Buergenthal dissenting.  According to the opinion of Judge Buergenthal, the ICJ should have exercised its discretion and declined to render the requested Advisory Opinion, since it did not have before it the requisite factual bases for its sweeping findings.  Judge Higgins and Judge Kooijmans noted in separate opinions, that they agree with the ICJ's opinion regarding exercise of jurisdiction with considerable hesitation.  Judge Higgins noted that she gave her vote in favor of the ICJ's finding that the building of the wall violates international law, since the wall undoubtedly has a significant negative impact upon portions of the population of the West Bank, without it being able to be excused on the grounds of military necessity.  On this issue, Israel did not explain to the ICJ why its legitimate security needs can  be met only by the route selected.  Judge Owada noted that the ICJ is lacking material explaining Israel's side of the picture, especially regarding the question why and how the wall, as it is actually planned and implemented, is necessary and appropriate. 

 

 

 

            3.         The Legality of the Fence in International Law

 

47.       The second part of the opinion is devoted to answering the question posed to the ICJ by the General Assembly.  The ICJ briefly described the historic background, beginning with the establishment of the British mandate at the end of the First World War and ending with the political agreements between Israel and the PLO in the 1990's.  The ICJ concluded this analysis with its conclusion that the territories between the Green Line and the eastern boundary of mandatory Palestine were occupied by Israel in 1967, and are held by her pursuant to customary international law, as an occupying power.  Following this introduction, the ICJ proceeded to analysis of the factual basis before it.  It referred, on this issue, to the Secretary-General's report and to his written statement.  At the conclusion of the analysis, the ICJ noted that 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will lie between the Green Line and the wall.  If the full wall should be completed, an additional 160,000 Palestinians would live in almost completely encircled communities, described as enclavcs.  Nearly 320,000 Israeli settlers (178,000 of whom in East Jerusalem) would be living in the area between the Green Line and the wall.  It was further stated that the area between the Green Line and the wall had been declared as a closed area.  Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli authorities. Most residents have received permits for a limited period.  Israelis may remain in, or move freely to, from and within the Closed Area without a permit.  Access into and exit from the closed area are possible through access gates, which are open for short and infrequent periods. 

 

48.       Following the description of the factual basis, the ICJ proceeded to determining the principles of international law relevant to the examination of the legality of the actions taken by Israel.  The ICJ referred to §2(4) of the Charter of the United Nations, which prohibits use or threat of force.  The ICJ also referred to the principle of self determination.  The ICJ further determined that The Hague Regulations have become part of customary international law.  The Fourth Geneva Convention apply as well.  The ICJ further found that the international conventions on human rights also apply to the occupied Palestinian territory.  In this context, the ICJ held that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on the Rights of the Child apply in the area. 

 

49.       Against the background of this normative outline, the ICJ proceeded to examine the question whether the building of the wall is in breach of rules and principles of international law.  The ICJ noted, in this context, the rule prohibiting acquisition of territory by force, the international recognition of the Palestinian people's right to self determination, and its position that the Israeli settlements in areas occupied in 1967 are illegal, as they are contrary to the terms of §49(6) of The Fourth Geneva Convention.  Against this background, the ICJ noted the factual findings presented before it, according to which most Israelis and most of the Israeli settlements are expected, when the wall is completed, to be on its "Israeli" side.  This fact, held the ICJ, raises concern of de facto annexation of the territory on the "Israeli" side of the wall, as well as concern of promoting forced transfer of Palestinians from the seamline area to the "Palestinian" side of the wall.  All these severely impinge upon the Palestinian's right to self determination, a right which Israel must respect.  Judge Higgins, in her separate opinion, criticized the ICJ's finding that the fence impedes upon the Palestinian's right to self determination.  Judge Kooijmans noted, in his separate opinion, that the ICJ would have done well to have left the question of self determination to the political process.

 

50.       At this point, the ICJ proceeded to examine a number of specific provisions of humanitarian law and of human rights law, which appear in international conventions.  In this analysis, the ICJ relied upon the Commission on Human Rights' two rapporteurs' reports.  On this issue, the ICJ held: first, that there is no justification for building the wall in regulation 23(g) of The Hague Regulations, as this regulation is included in the second part of the regulations, which does not apply; second, the building of the fence is contrary to the provisions of regulations 46 and 52 of The Hague Regulations, and of §53 of The Fourth Geneva Convention.  Third, the fence restricts the Palestinians' freedom of movement.  That restriction is aggravated by the fact that the gates where passage is permitted are few in number, and their opening hours are restricted and unpredictably applied.  Thus, for example, the city of Qalqiliya, with a population of 40,000, is encircled by the wall, and the residents can enter it or exit from it through one military checkpoint, which is open from 7am until 7pm.  Fourth, the building of the wall damages agricultural produce and many water wells, which are the principle means of subsistence for many Palestinians.  Fifth, the wall makes difficult many Palestinians' access to health, education, water, and electricity services, while effectively annexing most of the western aquifer system in the area.  The wall has caused many businesses to shut down.  Last, as a result of the building of the wall, many Palestinians will likely be forced to move from their present place of residence to another place of residence.  These repercussions, together with the establishment of Israeli settlements in the area, tend toward a change of the area's demographic composition.

 

51.       In light of the ICJ's holdings regarding the breach of international law resulting from the building of the wall, the ICJ examined whether there are legal sources which derogate from the application of that law or qualify its application.  The ICJ held that there are no such sources.  It was held that The Hague Regulations and The Fourth Geneva Convention do not qualify the prohibition of transfer of civilian population into the occupied territory.  Regarding the qualification in The Geneva Convention regarding military necessity, it was determined that this qualification may apply in periods in which there is no active combat, but the ICJ was not persuaded that such necessity exists in this case.  Nor did the ICJ find that any of the recognized qualifications in international human rights conventions apply.  Israel did not qualify her duties pursuant to these conventions in the relevant context, and the exemptions in them do not arise in these circumstances.  Nor was the ICJ persuaded that Israel's actions in building the wall were taken for the purposes of promoting the general welfare (as required by §4 of The International Covenant on Economic, Social and Cultural Rights).  Judge Kooijmans commented, in his separate opinion, that even if the wall was being built for the military purpose of defending the legitimate rights of the Israeli citizens, it would fail the test of proportionality. 

 

52.       The ICJ summed up this aspect of its opinion by saying:

 

“To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments” (paragraph 137 of the opinion).

 

This conclusion was criticized by the dissenting judge, Judge Buergenthal.  He noted that the ICJ's opinion failed to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security. On this subject, the ICJ ignored Israel's position.  The ICJ determined that it was "not convinced" that the route of the wall was chosen for security reasons, without showing why it was not so convinced.  Therefore, according to Judge Buergenthal, the conclusions of the ICJ are not convincing.  Judge Owada also noted in his separate opinion that the ICJ did not have before it the material explaining the Israeli side of the picture regarding the security necessity of the fence.  Judge Owada wrote, that even if such material cannot prevent the conclusion that international humanitarian law has been breached, presentation of such material is important for fairness in the proceedings.

 

53.       The ICJ proceeded to examine the argument that justification for the building of the wall is to be found in Israel's right to self defence, as provided in §51 of the Charter of the United Nations.  It was determined that §51 recognizes the existence of an inherent right of self-defence in the case of armed attacks by other states. However, Israel does not claim that the attacks against it are imputable to a foreign state.  Even the Security Council's resolutions (no. 1368 and 1373 of 2001), which recognized certain aspects of war against terrorism as included in §51 of the charter, do not justify the construction of the wall, since Israel is arguing that the attack against it originates in territory in which it exercises control, and not in territory beyond its control, as was the case in those resolutions.  The ICJ found that §51 of the charter has no relevance in the case.  This approach of the ICJ spurred the criticism of a number of judges.  Dissenting Judge Buergenthal did not accept the ICJ's position that only when a state is attacked by another state, is it entitled to exercise its right to self defence.  In his opinion, the terrorist attacks upon Israel from the territory under belligerent occupation grant Israel the right to self defence.  Judge Higgins as well, in her separate opinion, distanced herself from the ICJ's position regarding self defence.  In her opinion, there is nothing in the text of §51 of the Charter of the United Nations which stipulates that self-defence is available only when an armed attack is made by a State. Judge Higgins also failed to understand the ICJ’s view that an occupying power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory – a territory which it has found not to have been annexed and is certainly ‘other than’ Israel. However, she did not vote against the ICJ's opinion on this issue, both since she was unconvinced that non-forcible measures (such as the building of a wall) fall within self-defence under Article 51 of the Charter, and since the building of the fence, even if it can be seen as an act of self-defence, would need to be justified as necessary and proportional. Those justifications, according to Judge Higgins, have not been explained. Judge Kooijmans noted in his separate opinion, in this context, that a state has the right to defend itself against international terrorism.  He opined that Israel does not have this right, since the terrorism against her originates in territory held by her.

 

54.       Finally, the possibility of basing the building of the wall upon customary international law regarding "state of necessity" was rejected.  The ICJ stated that this doctrine allows such acts only if they are the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction. The construction of the wall on its present route does not meet this condition.  The ICJ writes:

 

"The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population.  It has the right, and indeed the duty, to respond in order to protect the life of its citizens.  The measures taken are bound nonetheless to remain in conformity with applicable international law" (paragraph 141).

 

In this context, Judge Higgins noted, in her separate opinion, that the ICJ should have said that defense of civilians is not only the duty of the occupying state, but is also the duty of those seeking to liberate themselves from occupation (paragraph 19).

 

55.       At the conclusion of its opinion, the ICJ detailed the normative results stemming from it.  The ICJ held that the construction of the wall is contrary to international law. The ICJ further held that Israel is under an obligation to terminate its breaches of international law, and to cease forthwith the works of construction of the wall. Israel must dismantle all that she built, and repeal or render ineffective forthwith all acts relating thereto. According to the Advisory Opinion, Israel is under an obligation to make reparation for all damage caused by the construction of the wall. It was further determined, on the international plane, that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall.  Judge Kooijmans voted against this final conclusion regarding the duty of the states.

 

E.        The Advisory Opinion of the International Court of Justice at the Hague and The Beit Sourik Case

 

            1.         The Legal Status of the Advisory Opinion

 

56.       The opinion of the ICJ – as its title testifies, and in contrast to a judgment by the same court – is an Advisory Opinion.  It does not bind the party who requested it.  As the ICJ itself noted in its opinion (paragraph 31), it does not bind the states.  It is not res judicata (see S. Rosenne The Perplexities of Modern International Law 122 (2002)).  However, the opinion of the International Court of Justice is an interpretation of international law, performed by the highest judicial body in international law (S. Rosenne 3 The Law and Practice of the International Court, 1920-1996 1754 (3^rd ed. 1997)).  The ICJ's interpretation of international law should be given its full appropriate weight.

 

            2.         The Difference Between the Conclusions of the Advisory Opinion of the ICJ and of The Beit Sourik Case

 

57.       The basic normative foundation upon which the ICJ and the Supreme Court in The Beit Sourik Case based their decisions was a common one (see Watson "The 'Wall' Decisions in Legal and Political Context" 99 A.J.I.L. 6 (2005); hereinafter – Watson).  The ICJ held that Israel holds the West Bank (Judea and Samaria) pursuant to the law of belligerent occupation.  That is also the legal view at the base of The Beit Sourik Case.  The ICJ held that an occupier state is not permitted to annex the occupied territory.  That was also the position of the Court in The Beit Sourik Case.  The ICJ held that in an occupied territory, the occupier state must act according to The Hague Regulations and The Fourth Geneva Convention.  That too was the assumption of the Court in The Beit Sourik Case, although the question of the force of The Fourth Geneva Convention was not decided, in light of the State's declaration that it shall act in accordance with the humanitarian part of that convention.  The ICJ determined that in addition to the humanitarian law, the conventions on human rights apply in the occupied territory.  This question did not arise in The Beit Sourik Case.  For the purposes of our judgment in this case, we assume that these conventions indeed apply.  The ICJ held that the legality of the "wall" (the "fence" in our nomenclature) shall be determined, inter alia, by regulations 46 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention.  This was also the position of the Supreme Court in The Beit Sourik Case.  The ICJ held that as a result of the building of the "wall", a number of rights of the Palestinian residents were impeded.  The Supreme Court in The Beit Sourik Case also held that a number of human rights of the Palestinian residents had been impeded by the building of the fence.  Finally, the ICJ held that the harm to the Palestinian residents would not violate international law if the harm was caused as a result of military necessity, national security requirements, or public order.  That was also the approach of the Court in The Beit Sourik Case.

 

58.       Despite this common normative foundation, the two courts reached different conclusions.  The ICJ held that the building of the wall, and the regime accompanying it, are contrary to international law (paragraph 142).  In contrast, the Supreme Court in The Beit Sourik Case held that it is not to be sweepingly said that any route of the fence is a breach of international law.  According to the approach of the Supreme Court, each segment of the route should be examined to clarify whether it impinges upon the rights of the Palestinian residents, and whether the impingement is proportional.  It was according to this approach, that the fence segments discussed in The Beit Sourik Case were examined.  Regarding some segments of the fence, it was held that their construction does not violate international law.  Regarding other segments of the fence, it was held that their construction does violate international law.  Against the background of this difference, two questions arise: The first, what is the basis of this difference, and how can it be explained?  The second, how does the explanation of the difference between the conclusions of the two courts affect the approach of the Supreme Court of Israel regarding the question of the legality of the separation fence according to international law generally, and the question of the legality of the separation fence in the Alfei Menashe enclave, specifically?  We shall discuss each of these two questions separately.

 

            3.         The Basis of the Difference Between the Conclusions of Each of the Two Courts

 

59.       The basis of the main difference between the legal conclusions of the International Court of Justice at the Hague and the judgment in The Beit Sourik Case can be found in the ICJ's concluding passage.  We discussed this passage (see paragraph 52, supra).  In light of its importance, we shall quote it again:

 

"To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.  The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.  The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments" (paragraph 137).

 

From this passage – as well as the rest of the opinion – it appears that, based on the data before the ICJ, it was not persuaded that the route of the wall – which severely impedes the rights of the Palestinian residents – is necessary for achieving the security objectives which Israel contended.  In contrast, the Supreme Court in The Beit Sourik Case ruled that there is a military necessity to erect the fence.  However, it ruled that some discussed segments of the fence route violate the Palestinian residents' rights disproportionately.  What is the basis of this difference between the two judgments?

 

60.       The answer to that question is that the main difference between the legal conclusions stems from the difference in the factual basis laid before the court.  This difference was affected, in turn, by the way the proceedings are conducted and by the legal problem before the court.  We shall discuss this difference.

 

            4.         The Difference in the Factual Basis

 

61.       The main difference between the two judgments stems primarily from the difference in the factual basis upon which each court made its decision.  Once again, the simple truth is proven: the facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur).  The ICJ drew the factual basis for its opinion from the Secretary-General's report, his written statement, the Dugard report, and the Zeigler report.  The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other.  In addition, The Supreme Court received an expert opinion by military experts who requested the opportunity to present their position as amici curie.  Despite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great.  This difference is what ultimately led to the contrary legal conclusions.  In what is this difference manifested?   

 

62.       The first difference, and the most important one, regards the security-military necessity to erect the fence.  This necessity was presented expansively before the court in The Beit Sourik Case.  The State laid out before the Court the full data regarding the terrorism which has plagued Israel since September 2000; regarding the character of this terrorism, which spares no means, including "human bombs" which explode in buses, in shopping centers, and in markets; regarding the thousands killed and injured; regarding the various military action taken in order to defeat the terrorism ("Defensive Wall" in March 2002; "Determined Path" in June 2002), which did not provide a sufficient solution to it; regarding the additional plans which were suggested, yet rejected due to legal reasons (see, e.g., The Ajuri Case) or were of no avail.  Against this background came the decision to construct of the fence.  From the evidence presented before the Court, the conclusion arose that the decision to erect the fence was not the fruit of a political decision to annex occupied territory to Israel.  The decision to erect the fence arose out of security-military considerations, and out of security-military necessity, as a necessary means to defend the state, its citizens, and its army against terrorist activity.  Against this background, we wrote, in The Beit Sourik Case:

 

"We examined petitioners’ arguments.  We have come to the conclusion, based upon the facts before us, that the reason the fence is being erected is a security reason. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that 'the fence, like the additional obstacles, is a security measure.  Its construction does not reflect a political border, or any other border' (decision of June 23, 2002).  'The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the 'Seamline Area,' is a security measure for the prevention of terrorist attacks and does not mark a political border or any other border” (decision of October 1, 2003)" (p. 830).

 

Later in our judgment, we dealt with the affidavit submitted to us by the military commander:

 

"In his affidavit he stated that 'the objective of the security fence is to allow effective confrontation of the array of threats stemming from Palestinian terrorism.  Specifically, the fence is intended to prevent the unchecked passage of residents of the area into Israel and their infiltration into certain Israeli communities located in the area. The choice of the topographic route was derived from the security consideration' (affidavit of April 15 2004, sections 22-23). The commander of the area detailed his considerations behind the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings; that it pass through a route as flat as possible, which will allow surveillance of it; and that a 'security zone' be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit which was submitted to us, Major General Kaplinsky testified that 'it is not a permanent fence, but rather a fence erected temporarily, for security needs' (affidavit of April 19 2004, section 4).  We have no reason to give this testimony less than its full weight, and we have no basis for not believing in the sincerity of the military commander's testimony" (p. 830).

 

We concluded our discussion on this question, stating:

 

"We devoted seven sessions to the hearing of the petition.  We intently listened to the explanations of officers and workers who handled the details of the fence.  During our hearing of the petition, the route of the fence was altered in a number of locations. Respondents showed openness to various suggestions which were made. Thus, for example, adjacent to the town of Har Adar, they agreed to move the fence passing north of the town to the security zone closer to the town, and distance it from the lands of the adjacent village of El Kabiba.  We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are  political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in determining the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (p. 831).

 

63.       The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion.  Only one line is devoted to it in the Secretary-General's report, stating that the decision to erect the fence was made due to a new rise in Palestinian terrorism in the Spring of 2002.  In his written statement, the security-military consideration is not mentioned at all.  In the Dugard report and the Zeigler report there are no data on this issue at all.  In Israel's written statement to the ICJ regarding jurisdiction and discretion, data regarding the terrorism and its repercussions were presented, but these did not find their way to the opinion itself.  This minimal factual basis is manifest, of course, in the opinion itself.  It contains no real mention of the security-military aspect.  In one of the paragraphs, the opinion notes that Israel argues that the objective of the wall is to allow an effective struggle against the terrorist attacks emanating from the West Bank (paragraph 116).  That's it.  In another paragraph, the ICJ discusses the force of §53 of The Fourth Geneva Convention, according to which it is prohibited for an occupier state to harm local property, "except where such destruction is rendered absolutely necessary by military operations".  Regarding that, the ICJ stated:

 

“[O]n the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations” (paragraph 135).

 

Further on, the ICJ discussed human rights according to the international conventions.  It notes that the conventions allow restriction of human rights.  In this context, the ICJ mentioned the freedom of movement (§12 of The International Covenant on Civil and Political Rights).  It noted that pursuant to §12(3) of that convention, it is permissible to restrict the freedom of movement, if the restriction is necessary for the defense of national security or public order (ordre public). The ICJ ruled out these restrictions' application to the wall, since:

 

 “On the basis of the information available to it, the Court finds that these conditions are not met in the present instance” (paragraph 136).

 

The ICJ concluded its position, holding:

 

“[T]he Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” (paragraph 137).

 

Finally, the ICJ discussed the necessity defense.  The ICJ analyzed the elements of this defense, noting:

 

“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interest of Israel against the peril which it has invoked as justification for the construction” (paragraph 140).

 

64.       This minimal factual basis regarding Israel's security-military necessity to erect the fence did not go unnoticed by the judges of the ICJ.  The dissenting judge, Judge Buergenthal, noted in his opinion:

 

“I am compelled to vote against the Court’s finding on the merits because the Court did not have before it the requisite factual bases for its sweeping findings” (paragraph 1).

 

Judge Buergenthal mentioned the possibility that, on the basis of all the facts, the conclusion would be that the building of the wall violates international law; however, in his opinion,

 

“[To] reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subject, cannot be justified as a matter of law. The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings basely touches on that subject” (paragraph 3).

 

In his separate opinion, Judge Kooijmans stated his opinion that:

 

“[T]he present Opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique reference to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose” (paragraph 13).

 

A similar attitude can be found in the separate opinion of Judge Owada.  He notes that the ICJ had ample material before it regarding the humanitarian and socioeconomic effect of the building of the wall.  In contrast,

 

“What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate” (paragraph 22).

 

Judge Owada quotes the statement in the Advisory Opinion that, on the basis of the material before the ICJ, it is not convinced that the fence route is necessary for achieving the security objectives (pargraph 137 of the Advisory Opinion), and adds:

 

“It seems clear to me that here the Court is in effect admitting the fact that elaborate material on this point from the Israeli side is not available, rather than engaging in a rebuttal of the arguments of Israel on the basis of the material that might have been made available by Israel on this point” (paragraph 23).

 

65.       We need not determine, nor have we a sufficient factual basis to determine, who is to blame for this severe oversight.  Is it the dossier of documents submitted to the ICJ?  Is it the oversight of the State of Israel itself, or was it the ICJ's unwillingness to use the data submitted to it by Israel and other data in the public domain?  Or maybe it is the method of examination, which focused on the fence as a totality, without examining its various segments (see paragraph 70, infra)?  Whatever the reason may be, the reality is that the ICJ based its opinion on a factual basis regarding impingement of Palestinian residents' rights, without the factual basis regarding the security-military justification for this impingement.  In contrast, in The Beit Sourik Case, an expansive factual basis was laid before the court, both regarding the impingement upon the local residents' human rights and regarding the security-military needs.  This comprehensive factual basis made it possible for the Court to decide that certain parts of the separation fence violate the rules of international law, and that other parts of the fence do not violate those rules.  Thus, we have the first explanation for the difference between the conclusions of the ICJ and the conclusions of this Court in The Beit Sourik Case.

 

66.       The other difference between the two judgments regarding the factual basis regards the scope of the impingement of the local residents' rights.  This impingement stood at the foundation of both judgments.  However, the factual basis was different.  In The Beit Sourik Case, the petitioners brought various data regarding the scope of the impingement of their rights due to the construction of the fence on their lands.  The State brought its own data.  The Court examined the different positions.  It examined each part of the route before it, separately.  On the basis of the totality of the evidence before it, the scope of the impingement of the local residents' rights was established.  This impingement was by no means a light one.  Thus wrote the Court:

 

"Having completed the examination of the proportionality of each order separately, it is appropriate that we lift our gaze and look out over the proportionality of the entire route of the part of the separation fence which is the subject of all of the orders. The length of the part of the separation fence to which the orders before us apply is approximately forty kilometers. It impinges upon the lives of 35,000 local residents. Four thousand dunams of their lands are taken up by the fence route itself, and thousands of olive trees growing along the route itself are uprooted.  The fence cuts off the eight villages in which the local inhabitants live from more than 30,000 dunams of their lands. The great majority of these lands are cultivated, and they include tens of thousands of olive trees, fruit trees, and other agricultural crops. The licensing regime which the military commander wishes to establish cannot prevent or substantially decrease the extent of the severe injury to the local farmers.  Access to the lands depends upon the possibility of crossing the gates, which are very distant from each other and not always open. Security checks, which are likely to prevent the passage of vehicles and which will naturally cause long lines and many hours of waiting, will be performed at the gates. These do not go hand in hand with a farmer’s ability to work his land. There will surely be places where the security fence must cut the local residents off from their lands. In these places, passage which will reduce the injury to the farmers to the extent possible should be ensured" (p. 860).

 

Later in the judgment the Court held:

 

"The damage caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The damage is of a wider scope. It strikes across the fabric of life of the entire population. In many locations, the separation fence passes right by their homes. In certain places (like Beit Sourik), the separation fence surrounds the village from the west, the south and the east.  The fence directly affects the ties between the local residents and the urban centers (Bir Nabbala and Ramallah). These ties are difficult even without the separation fence. This difficulty is multiplied sevenfold by the construction of the fence" (p. 861).

 

Against this background - and balancing with the security-military needs – it was decided which fence segments illegally violate the rights of the local population according to international law, and which fence segments are legal.

 

67.       The ICJ based its factual findings regarding impingement upon the local residents' rights, upon the Secretary-General's report and his supplemental documents, and upon the Dugard report and the Zeigler report (see paragraph 133 of the opinion).  In their arguments before us, State's counsel noted that the information relayed to the ICJ in these reports is far from precise.  We shall discuss some of these arguments of the State:

 

(a)        The ICJ quotes data relayed by a special committee, according to which 100,000 dunams of agricultural land were seized for construction of the first phase of the obstacle.  The State contends that this figure is most exaggerated.  According to its figures, the area seized for the construction of phase A of the fence is 8300 dunams, 7000 of which is private land.

 

(b)        the reports upon which the ICJ relied describe a cutoff between the residents of the seamline area and the other parts of the West Bank.  According to figures presented to us, that is not precise, as a regime of permits allows entry and exit from the seamline area.

 

(c)        The opinion quotes the Zeigler report, according to which Israel is annexing most of the western aquifer system, which supplies 51% of the water consumption of the territories, by erecting the obstacle.  The State claims that this is completely baseless.  It was mentioned before us that in the framework of the interim agreement between Israel and the PLO, detailed arrangements regarding the water issue were stipulated.  The construction of the fence does not affect the implementation of the water agreements determined in the agreement.

 

(d)       A number of paragraphs in the opinion discussed the city of Qalqiliya.  The ICJ quotes the Dugard report, according to which the city is sealed off from all sides.  Residents are allowed to exit and enter through one military gate which is open from 7am to 7pm.  This conclusion contradicts the Secretary-General's written statement, according to which there is no checkpoint at the entrance to the city.  The State adds that two open access roads now lead to the city of Qalqiliya.  Part of the obstacle east of the city was dismantled.  Parts of the Dugard report and the Zeigler report, according to which 6000 to 8000 residents left the city of Qalqiliya and 600 stores were closed in that city, were mentioned in the opinion.  The State contends that since April 2004, approximately 90% of the stores which closed have been reopened.  Regarding residents' leaving, in the State's opinion, it is very difficult to reach a clear cut conclusion on this issue.  The ICJ's opinion held, on the basis of the Secretary-General's report, that as a result of the building of the wall, a 40% drop in caseload at the UN hospital in Qalqiliya had been recorded.  From a graph submitted to us by the State it appears that the number of hospitalization days in 2004 is higher than that of 2002.  The conclusion is that it cannot be said that the separation fence brought to a decrease in the number of hospitalized patients.  The graph also shows that in 2003 there was a considerable rise in the number of beds in hospitals.  In addition, a new private hospital was opened in Qalqiliya in 2003, and the Palestinian Authority also opened a hospital in 2002.  In the opinion of the State, it is reasonable to assume that the opening of the new hospitals affected the caseload of the UN hospital in Qalqiliya.

 

68.       The difference between the factual bases upon which the courts relied is of decisive significance.  According to international law, the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other.  We have a scale before us: on one side rests the impingement upon the rights of the local residents, and on the other side rest the security and military considerations.  Delicate and sensitive balancing between the two sides of the scale, taking into account the need to ensure the proportionality of the security measures' impingement upon the local residents' rights, and taking into account the margin of appreciation given the state, brings about the appropriate solution.  In The Beit Sourik Case, data were laid before the Court on both sides of the scale.  In certain parts of the route discussed before the court, the considerations regarding the impingement upon human rights prevailed.  At other parts of the route, the security-military needs prevailed.  Not so was the opinion of the ICJ.  As a result of the factual basis presented to the ICJ, full weight was placed on the rights-infringement side; no weight was given to the security-military needs, and therefore the questions of the proportionality of the impingement or of the margin of appreciation were not discussed at all.  The result was the ICJ's conclusion that Israel is violating international law.  The different factual bases led to different legal conclusions.  This stands out especially in the case of those parts of the ICJ's opinion dealing with Qalqiliya.  On one side of the scale, the ICJ placed the severe impingement of the rights of Palestinians in Qalqiliya.  Even if we remove the imprecision of these figures, the remainder is sufficient to indicate a severe impingement of their rights.  On the other side of the scale, the ICJ did not place – due to the factual basis laid before it – any data regarding the security and military considerations.  It was not mentioned that Qalqiliya lies two kilometers from the Israeli city of Kfar Saba; that Qalqiliya served as a passage point to Israel for suicide bomber terrorists, primarily in the years 2002-2003, for the purpose of committing terrorist attacks inside of Israel; that the Trans-Israel highway (highway 6), whose users must be protected, passes right by the city; that the majority of the fence route on the western side of the city runs on the Green Line, and part of it even within Israel; that since the fence around Qalqiliya was built – including the wall on the western side which borders upon highway 6 – terrorist infiltrations in that area have ceased.

 

69.       The difference in the factual bases was affected by the difference between the proceedings which took place in the ICJ and the proceedings in The Beit Sourik Case (see Weston, at p. 24).  In the proceedings before the ICJ, the injured parties did not participate. Israel was not party to the proceedings.  There was no adversarial process, whose purpose is to establish the factual basis through a choice between contradictory factual figures.  The ICJ accepted the figures in the Secretary-General's report, and in the reports of the special rapporteurs, as objective factual figures.  The burden was not cast upon the parties to the proceedings, nor was it examined.  In contrast, the parties to the proceedings in The Beit Sourik Case stood before the Court.  An adversarial process took place.  The burden of establishing the factual basis before the court was cast upon the parties.  The parties' factual figures were examined and made to confront each other, as the factual basis which would determine the decision was established.  The proceedings themselves lacked strict formalities, and allowed the parties to make suggestions for alternative routes, which were examined by the other party, and the fence route was altered during the hearings themselves.  All these aspects had an effect on the legal conclusions reached by the ICJ and the Supreme Court of Israel in The Beit Sourik Case (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230 (2005)).

 

70.       We would especially like to point out an important difference in the scope of examination.  Before the ICJ, the entire route of the fence was up for examination.  The factual basis which was laid before the ICJ (the Secretary-General's report and written statement, the reports of the special rapporteurs) did not analyze the different segments of the fence in a detailed fashion, except for a few examples, such as the fence around Qalqiliya.  The material submitted to the ICJ contains no specific mention of the injury to local population at each segment of the route.  We have already seen that this material contains no discussion of the security and military considerations behind the selection of the route, or of the process of rejecting various alternatives to it.  These circumstances cast an unbearable task upon the ICJ.  Thus, for example, expansive parts of the fence (approximately 153 km of the 763 km of the entire fence, which are approximately 20%) are adjacent to the Green Line (that is, less than 500 m away).  An additional 135 km – which are 17.7% of the route – are within a distance of between 500 m and 2000 m from the Green Line.  Between these parts of the route and the Green Line (the "seamline area") there are no Palestinian communities, nor is there agricultural land.  Nor are there Israeli communities in this area.  The only reason for establishing the route beyond the Green Line is a professional reason related to topography, the ability to control the immediate surroundings, and other similar military reasons.  Upon which rules of international law can it be said that such a route violates international law?  Other parts of the fence are close to the Green Line.  They separate Palestinian farmers and their lands, but the cultivated lands are most minimal.  Gates were built into the fence, which allow passage, when necessary, to the cultivated lands.  Can it be determined that this arrangement contradicts international law prima facie, without examining, in a detailed fashion, the injury to the farmers on the one hand, and the military necessity on the other?  Should the monetary compensation offered in each case, and the option of allocation of alternate land (as ruled in The Beit Sourik Case (Id., at p 860)) not be considered?  There are, of course, other segments of the fence, whose location lands a severe blow upon the local residents.  Each of these requires an exacting examination of the essence of the injury, of the various suggestions for reducing it, and of the security and military considerations.  None of this was done by the ICJ, and it could not have been done with the factual basis before the ICJ.   

 

71.       Of course, prima facie, the ICJ could have determined, that on the basis of the examination of the totality of the fence, it had reached the conclusion that the motivation behind its construction is political and not security-based, and that the intention of the government of Israel in erecting the fence was its desire to annex parts of the West Bank which lay on the "Israeli" side of the fences.  The ICJ did not, however, do so; nor was a factual basis placed before it, which would have enabled it to do so.  The ICJ came extremely close to such an approach, stating:

 

“Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature . . . it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated regime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation” (paragraph. 121).

 

However, this statement – which expressed grave concerns – is not a positive finding that the fence is political, and that its objective is annexation.

 

72.       The method of the Supreme Court of Israel was different.  The Beit Sourik Case dealt with five segments of the separation fence, approximately forty kilometers long.  Other segments of the fence have been discussed by the Supreme Court in other petitions, which were examined by various panels of Supreme Court justices.  Since the construction of the separation fence, about 90 petitions have been submitted to the Supreme Court.  The hearing of 44 petitions has been completed.  In most of them the parties succeeded, after negotiations, and usually after amendments were made to the route as requested by the Palestinian petitioners, to reach a compromise, so that no legal decision on the merits was needed.  Approximately 43 petitions are still pending before the Court.  In most the arguments have been completed, and they are waiting for our decision regarding the effect of the Advisory Opinion of the ICJ upon the ruling of the Supreme Court of Israel.  They examine the legality of the route of the fence.  These petitions can be divided into three main types: the first type of petition is a petition by farmers for the impingement upon their rights caused by the fact that the separation fence separates them from their lands.  The Beit Sourik Case itself belongs to this type.  The second type is a petition regarding the large blocs of settlements, which in some instances create enclaves of communities which are cut off from their urban infrastructure, or impede Arab farmers' access to their lands.  The petition before us belongs to this type.  The third type includes petitions regarding the fence route around Jerusalem.

 

            5.         The Effect of the Advisory Opinion of the International Court of Justice at the Hague upon the Rulings in The Beit Sourik Case

 

73.       Our point of departure was that the basic normative foundation upon which the ICJ and the Supreme Court based their judgments is a common one.  Despite that, the two courts reached different conclusions.  The ICJ held, in its opinion, that the route of the wall contradicts international law, as a majority of it passes through the West Bank.  The Supreme Court in The Beit Sourik Case ruled in its judgment that a sweeping answer to the question of the legality of the fence according to international law should not be given, and that each segment of the fence route should be examined separately.  Against this background, it was decided in The Beit Sourik Case, that part of the route discussed in that petition sits well with international law and that part of it violates international law.  We asked ourselves: what is the explanation for this difference?  We answered that question by saying that the difference stems from the factual basis that was laid before the ICJ, which was different from that which was laid before the Court in The Beit Sourik Case.  We also noted that the difference in the model of proceedings also contributed to the different results.  Against this background, we must answer the following question: what is the effect the Advisory Opinion of the ICJ on the future approach of the Supreme Court on the question of the legality of the separation fence according to international law, as determined in The Beit Sourik Case?

 

74.       Our answer is as follows:  the Supreme Court of Israel shall give the full appropriate weight to the norms of international law, as developed and interpreted by the ICJ in its Advisory Opinion.  However, the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law.  The Israeli Court shall continue to examine each of the segments of the fence, as they are brought for its decision and according to its customary model of proceedings; it shall ask itself, regarding each and every segment, whether it represents a proportional balance between the security-military need and the rights of the local population.  If its answer regarding a particular segment of the fence is positive, it shall hold that that segment is legal.  If its answer is negative, it shall hold that that segment is not legal.  In doing so, the Court shall not ignore the entire picture; its decision will always regard each segment as a part of a whole.  Against the background of this normative approach – which is the approach set out in The Beit Sourik Case – we shall now turn to examining the legality of the separation fence in the Alfei Menashe enclave.

 

F.         The Separation Fence at the Alfei Menashe Enclave

 

            1.         The Enclave

 

75.       The Alfei Menashe enclave is an 11,000 dunam area (see the appendix to this judgment).  It includes Alfei Menashe (population 5650) and five Palestinian villages (Arab a-Ramadin (population approximately 180); Arab Abu Farde (population approximately 80); Wadi a-Rasha (population approximately 180); Ma'arat a-Dara (population approximately 250) and Hirbet Ras a-Tira (population approximately 400); total population of the five villages is approximately 1200).  The enclave is located on the "Israeli" side of the separation fence.  It is part of the seamline area.  The enclave and Israel are territorially contiguous, meeting at highway 55.  Exit from the enclave into the area, by car and foot, is through one crossing ("crossing 109") to Qalqiliya.  This crossing is open at all hours of the day.  The separation fence also includes three gates (the Ras a-Tira gate; the South Qalqiliya gate; and the Habla gate).  At first, we shall discuss petitioners' arguments and the state's response in detail.  Then, we shall examine the arguments and the answers to them according to the standards determined in The Beit Sourik Case.

 

            2.         Petitioners' Arguments

 

76.       Petitioners expand upon the severe damage to the fabric of life of the residents of the five Palestinian villages within the enclave.  These are small villages which are unable to provide necessary services such as employment, medical care, education, and community services by themselves.  Thus, for example, the schools attended by enclave residents are located in Palestinian communities outside the enclave, with the exception of the elementary school of Ras a-Tira and a-Daba.  The fence cuts the residents of the villages off from the Palestinian communities which provide them necessary services.  The fence traps the residents of the villages inside of an enclave cut off from the Palestinian population in the West Bank.  The residents of the villages are unable to enter a Palestinian community outside the enclave without passing through the gates in the fence or a checkpoint (crossing 109).  Residents who wish to travel from the villages of the enclave to the adjacent towns of Habla and Ras Atiyeh are forced to pass long and wearying roads, which require travel by car, just to get to a place which in the past was reachable by foot.  Petitioners note that the availability of cars for enclave residents, especially for women, is most minimal.

 

77.       According to petitioners, the enclave has caused mortal injury to all areas of life – freedom of movement; employment and commerce; health; education; family, community, and social ties; religious services; and more.  Almost all of the Palestinian residents of the enclave have lost their sources of income since the construction of the fence.  The fence cuts the residents of the villages off from pastures, hothouses, and agricultural lands.  The regime of permits has turned the enclave into a place that non residents do not enter.  The residents of the enclave are thus denied the possibility of holding social events in their villages.  As for the future, the fence has destined the five villages to economic, social, and cultural destruction. 

 

78.       Soon after the petition was filed, petitioners submitted an expert opinion on the subject of planning, prepared by the nonprofit society known as "Bimkom – Planners for Planning Rights," which works to strengthen the ties between civil and human rights and the Israeli planning system.  The expert opinion was prepared by four architects and urban planners.  They reached the conclusion that the current route of the fence critically injures the Palestinian population living in the Alfei Menashe enclave.  Prior to the construction of the fence, the Palestinian villages in the enclave relied upon the array of villages and cities in the Qalqiliya district and in the West Bank.  The fence route chopped the area into three enclaves (the Qalqiliya enclave, the Habla and Hirbet Ras Atiyeh enclave and the Alfei Menashe enclave which includes the five Palestinian villages), and caused immediate damage to the system of spatial interrelations which existed prior to construction of the fence.  The fence was constructed without any spatial planning logic.  The fence cuts off main roads and access roads, crosses through built areas, chops up contiguous cultivated agricultural lands, and separates villages from their agricultural lands.  As a result of the construction of the fence, two villages have even been cut off from the wells which provide them and their agricultural lands with water.  The fence and associated permit system make access to regional civil services very difficult, and damage economic potential and existing social structure.

 

79.       According to the expert opinion, the fence has a substantial effect on the Palestinian villages' continued functioning in all areas of life.  As far as economy and employment are concerned, hundreds of dunams of the villages and thousands of dunams of the cultivated agricultural lands, mostly olive groves, were expropriated for the construction of the fence.  The fence cut off farmers' access to markets in Habla and Qalqiliya.  It also decreased access to all sources of employment in the West Bank.  In the area of employment there is, therefore, a substantial rise in unemployment, and a trend of finding undesirable jobs requiring no skills in Alfei Menashe.  In the area of education, the fence makes students' access to schools in Habla and Ras Atiyeh very difficult, and within a year a substantial rise in dropout level was noted in the education system.  In the area of health, only partial and irregular health services are now provided in the villages.  The fence cut the villages off from health and medical services, and access of emergency vehicles from the Habla area has been cut off.  In terms of family and social ties as well, the fence's damage has been severe.  The permit regime cuts enclave residents off from their relatives and friends, from ceremonies and family events, and threatens to disenfranchise them of their status and connections in Palestinian society.  As time goes on, this is likely to lead to abandonment of the villages and the cessation of the present communities' existence.       

 

80.       Petitioners' legal argument is that the construction of the fence surrounding the Alfei Menashe enclave, built completely in the area, violates the principles of public international law and is illegal.  Petitioners' position is based upon two main pillars: ultra vires and lack of proportionality.  First it is contended that respondents have no authority to erect the fence around the enclave, both due to the lack of security necessity and due to the creation of de facto annexation of the enclave territory to the State of Israel.  The arguments on this issue rely, inter alia, upon the Advisory Opinion of the ICJ.  Petitioners further argue that the enclave was not created for military or national security reasons, and not even for the security needs of Alfei Menashe residents.  The construction of the fence around the enclave was intended to put Alfei Menashe west of the fence, and make it territorially contiguous to the State of Israel.  It is an act whose entire purpose is to move the effective border of the state, and it is not legal according to the laws of belligerent occupation.  According to petitioners, the decision to erect the fence on the present route was made under pressure from the residents of Alfei Menashe and of the residents of the Matan community, who requested that a road alternative to highway 55 not be built near it.  According to the original plan, highway 55 was to be left east of the fence, and thus security officials decided to pave a new road to connect Alfei Menashe with Israel via the Matan community.  However, in light of Matan residents' opposition to the new road, the fence route was altered so that highway 55 would be included in the enclave.  Petitioners contend that the fence does not serve a military need.  Military necessity does not include defense of settlement residents.  Petitioners argue that leaving the Palestinian villages west of the fence does not fit the military need, as presented by army officials.  The fence creates a long term change, whose meaning is practical annexation of the lands in the enclave to an area in absolute control of the State of Israel.  Cutting the ties between the residents living in the enclave and those living beyond it creates a new geopolitical entity.

 

81.       Petitioners' second argument is that the enclave – according to the route upon which it was created – is disproportionate.  The enclave creates a wide scale impingement upon the basic rights of protected civilians.  It seriously impinges upon property rights, freedom of movement, and rights to make a living, to education, to health, to food, to dignity and honor, and to equality.  International law, like Israeli law, includes the condition that impingement of rights be proportionate.  Petitioners add that international human rights law also applies to the petition, and that the prohibitions upon violation of petitioners' basic rights flow from it as well.  Petitioners contend that the fence route around the enclave causes damage which is disproportionate, both due to the fact that it is unnecessary for achieving its declared objective, and due to the lack of any serious interest which would justify it.  It is contended that the fence route around the enclave does not satisfy any of the three subtests of proportionality.  The first subtest (fit between the injury and the objective) is not satisfied, since there is no rational connection between construction of the fence and an Israeli security goal.  The second subtest (the least harmful means) is not satisfied, as it is possible to realize the legitimate objective of defending the residents of Israel by pushing the fence back to the Green Line.  Petitioners claim that a fence along the Green Line would serve the security objectives better, since it would be much shorter, straight and not winding, and would leave a considerable Palestinian population east of the fence.  The third subtest (proportionality in the strict sense) is not satisfied, since the impingement upon petitioners' rights is not proportional to the danger which it is intended to confront.  The injury to the residents of the villages is all-encompassing; moving the fence to the Green Line, on the other hand, will not bring about any decrease in security. 

 

82.       Petitioners' third argument is directed against the legal regime put into force in the enclave, which requires non Israeli residents to hold permits.  Petitioners contend that the legal regime in the seamline area is a discriminatory regime based upon nationality, and is therefore to be annulled.  The enclave regime creates legal classes according to ethnicity, and only obfuscates itself with security claims.  The very existence of the permit regime is a shameful and illegal legal situation, of formalized discrimination on the basis of ethnic-national background.

 

83.       The remedy requested by petitioners is that the separation fence be dismantled and moved to the Green Line.  To the extent that Alfei Menashe needs a separation fence, such a fence can be built around that community, on the basis of the existing fence around it.  In any case – so argue petitioners – there is no justification for including the enclave villages inside of it.

 

            3. The State's Response

 

84.       In its first response to the petition (of September 9 2004), respondents announced that as a result of the judgment in The Beit Sourik Case, staff work is being done in order to examine the patterns of life in the seamline area.   They announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area.  Improvements in the arrangements will decrease the injury to the residents and affect the balancing point between the rights of the residents and the security needs.  Respondents requested that the proceedings in the petition be stayed, in order to allow them to formulate their position.  In these circumstances, it was contended that the petition, as a petition demanding the dismantling of the fence, is prima facie an early petition, and that it is appropriate to wait for the formulation of final decisions.  However, respondents emphasized that the decisive need for the existence of a fence in this area leads to the conclusion that, in any case, no order to dismantle the fence in the Alfei Menashe area should be issued.

 

85.       In a supplementary statement by respondents (of December 5 2004), they raised a number of preliminary arguments for rejecting the petition.  The first argument claimed that the petition suffered from severe laches (delay).  According to respondents, petitioners' request to dismantle the fence a year and a half after its construction was completed, when its dismantling will cause severe damage to respondents, suffers from most serious laches.  Petitioners had many opportunities to voice their claims against the route.  They were served the land seizure orders at the end of 2002 and the beginning of 2003, and they had the opportunity to submit appeals.  Regarding the objective element of the law of laches, dismantling the fence will cause most severe security damage, as well as severe economic damage.  On the other hand, the injury to petitioners is not as severe, as it can be moderated and minimized to a large extent by various improvements which are being made, and will yet be made, by respondents.  The second preliminary argument raised by respondents regards the petition's character as a "public petition," at a time when there are specific potential petitioners who refrained from petitioning.  Petitioners are residents of two of the five villages in the enclave.  From the petition itself it appears that residents of the other three villages refused to join the petitioners.  The specific petitioners, as well as the Association for Civil Rights in Israel (petitioner no. 7) are not authorized to speak in the name of all of the enclave residents.  Third, it is argued that the petition should be preliminarily rejected due to a lack of prior plea directly to respondents.  Although the Association for Civil Rights in Israel wrote to the Prime Minister and the Minister of Defense prior to the petition, requesting that they order alteration of the fence route at the segment under discussion, these pleas were most compact, and most of the arguments in the petition weren't mentioned in them at all.

 

86.       On the merits, respondents argue that there is no justification for altering the Alfei Menashe route.  The fence indeed changed the reality of life for the residents of the villages left on the Israeli side of the fence.  This stems from the decisive security need to defend the citizens of Israel against terrorist attacks.  The injury to the residents of the villages is proportionate, considering the decisive security need to leave the fence where it is.  Respondents noted that just prior to construction of the fence, the military commander's civil administration collected data regarding the enclave residents and their way of life, and that on the basis of the collected data, they issued permits to the residents of the enclave which enable them to live in the enclave and move to the area from it, and back.  Today, there are approximately 1200 permits in force, held by the residents of the enclave.  Respondents informed us that the permits are soon to be replaced with permanent identity cards for seamline area residents, which will be valid as long as the declaration is in force.  Approximately 1065 entrance permits have also been issued, for workers of international organizations, infrastructure workers, traders, educators, medical services, and similar purposes.  The Commander of IDF Forces in the area recently decided that the various permits will be replaced by a uniform permit, valid for a two year period (the current permits are valid for a period up to three months).  The permits allow entry into the enclave through four gates.

 

87.  In their response, respondents discussed a list of infrastructure and logistic improvements intended to relieve the situation of the residents of the villages to the extent possible.  First, crossing 109, located at the north end of the enclave near the eastern entrance to Qalqiliya, is open constantly, all day long.  Permanently on site is a representative of the coordination and liaison administration, whose role is to handle problems which may arise.  Second, the eastern entrance to Qalqiliya (DCO Qalqiliya) is open to free movement, and at present, no checkpoint operates there (except in the case of a security alert).  Thus, those wishing to enter or exit Qalqiliya are spared the prolonged wait at the city entrance.  Exit from the enclave through passage 109 and through the entrance into Qalqiliya are thus free.  Third, close to the time the petition was submitted, an underpass connecting Habla to Qalqiliya was opened under highway 55.  Fourth, The Commander of IDF Forces decided to keep the agricultural fence at Ras a-Tira, which connects the enclave to Habla and Ras Atiyeh, open longer, so that the gate will be open to travel by foot and car during most hours of the day.  For that purpose, a specialized military force will be allocated, which will also ensure more precise opening hours of the two additional agricultural gates.  Fifth, respondents are running transportation, funded by the civil authority, of all pupils living in the enclave who go to school beyond it.  Sixth, a permanent staff of doctors, equipped with entrance permits, visits the enclave villages through crossing 109, according to a regular schedule.  In the case that urgent medical care is needed, it is possible to travel to Qalqiliya and other areas through crossing 109, which is open at all hours of the day.  Seventh, the coordination and liaison administration, in coordination with an international organization by the name of ANERA, commenced a project to connect the villages of Ras a-Tira and Hirbet a-Daba to the water system.  The rest of the villages also enjoy regular supply of water.  Eighth, approval has been given, in principle, for a plan to improve the access road from the villages to crossing 109 and for a plan to improve the road which goes along highway 55, in order to make it passable and safe for wagons.       

 

88.       Respondents further noted in their response that most of the enclave residents' agricultural lands are inside the enclave itself, and that the fence does not have any effect on residents' access to them.  Farmers whose lands are located in the Habla and Ras Atiyeh area are able to reach their lands through the agricultural fences.  Moreover, a large part of enclave residents make their living in the community of Alfei Menashe.  The possibility of working in Alfei Menashe has not only not been decreased by the construction of the fence; it has been improved.

 

89.       In respondents' supplementary response (of June 19 2005), respondents presented their general position regarding the construction of the security fence on lands in the area, including such construction for the purpose of protecting the Israeli communities in the area.  Respondents also presented their position regarding the effect of the Advisory Opinion of the International Court of Justice at the Hague (of July 9 2004) upon the petition before us.  Regarding the state's position on the implications of the Advisory Opinion on the issue of the fence, respondents referred to their position in HCJ 4815/04 and HCJ 4938/04 (discussing the separation fence at the village of Shukba and the village of Budrus).  We discussed this position in the part of our present judgment which was devoted to the Advisory Opinion of the International Court of Justice at the Hague.

 

90.       The state's position is that the construction of the fence is a security act par excellence.  It is intended to provide a temporary solution to the terrorism offensive, both in Israel and in the area.  It is intended to provide a solution to existing and future threats of terrorism, until it will be possible to reach a stable and reliable political arrangement.  Respondents clarify that the contacts underway between Israel and the new Palestinian Authority leadership do not remove the need for construction and completion of the obstacle.  According to respondents, the present route of the obstacle is temporary.  The seizure orders, issued for the purpose of obstacle construction within the area, are restricted to a definite period of a few years.  The obstacle is not a permanent one.  It is intended to protect the residents of Israeli communities in the area as well.  The obstacle itself provides defense not only to the community itself, but also to the access roads to it and to its surroundings.  However, the selected route is not the ideal route from a security standpoint.  That is the case, due to the duty to protect the conflicting interests of the Palestinian residents, who are harmed by the construction of the obstacle due to seizure of lands, harm to agriculture, restrictions of movement, and impediment of daily life.  Respondents recognize this harm, and are working to minimize it to the extent possible, both at the time of construction of the obstacle and by protecting the residents' fabric of life after its construction.

 

91.       Respondents claim that the military commander is authorized to defend the Israeli communities in the area both pursuant to international law and pursuant to internal Israeli administrative and constitutional law.  Israel's right – which is also her duty – to defend her citizens, is the fundamental legal source which grants it the right and the duty to defend its citizens living in the area.  Respondents are of the opinion that the construction of the obstacle satisfies the restrictions in the law of belligerent occupation.  The military commander is required, pursuant to rules of international law, to protect all present in the area held under belligerent occupation, and that includes Israeli citizens living in the area or traveling on the roads in the area.  The duty of the military commander to protect those present in the occupied territory is not limited to those defined as "protected" in The Fourth Geneva Convention.  This duty is not conditional upon the legal status of the Israeli communities in the area in terms of international law, which will be decided in the permanent status agreement between Israel and the Palestinian Authority.  Respondents note that the political agreements between Israelis and Palestinians also leave the authority to protect the Israeli citizens in the area in the hands of the State of Israel, until the issue is arranged in the permanent status agreement.  The internal security legislation in the area also reflects Israel's responsibility for the security of the Israelis in the area.  On this point, respondents refer to §6 of the Interim Agreement Implementation Proclamation (Judea and Samaria)(No. 7).  An additional source of the duty to protect the Israelis in the area is the Israeli administrative law and the Basic Laws of the State of Israel.  The state claims that the military commander is obligated to protect the basic rights of Israeli citizens (both those pursuant to the Basic Laws and those stemming from "common law").  Exercise of the authority must be proportionate.  The military commander is therefore authorized to protect Israeli citizens in the area, and even to impinge upon other rights for that purpose, as long as the impingement is a proportional one which stems exclusively from the security purpose.        

 

 

            4.         Petitioners' Response to Respondents' Response

 

92.       Petitioners informed us, in their response, that the planned alterations to the enclave do not provide a real solution to the hardships which enclave residents confront.  Most of the changes are cosmetic, and a few of them are of low significance.  The most significant change is the decision to lengthen the opening ours of the Ras a-Tira gate, but at the time the response was submitted, it had not yet been implemented.  Petitioners ask us to reject all of the preliminary arguments raised by respondents.  They argue that there is no justification for rejecting the petition as a "public petition".  Among petitioners are private people, and the damage described in the petition is caused to them personally, in addition to the similar damage caused to their neighbors.  Regarding lack of prior direct plea, petitioners state that petitioner no. 7's letters (of March 10 2004 and July 19 2004) contained the main arguments against the route, and these pleas are to be seen as worthy ones.  Petitioners also ask that we reject the argument regarding laches.  There was no subjective delay, as the petitioners' awareness of the damage came about only after daily life in the enclave had entered a regular pattern.  Regarding objective delay, the only damage in this case is economic damage, and it is lesser in severity and weight than the violations of basic rights and of the rule of law.

 

            5.         The Alfei Menashe Local Council's Response

 

93.       The Alfei Menashe Local Council was joined as a respondent to the petition, at its own request.  It argues that the fence does not harm the Palestinian residents, and certainly not in the way described by petitioners.  Regarding the security aspect, the fence should be left in its present place, where it is able to provide security for the residents of Alfei Menashe and harms the Palestinian residents only minimally.  The Local Council wished to present a different picture regarding the reality of life for the Palestinian residents in the enclave, especially that of the residents of the a-Ramadin tribe.  It was claimed that Alfei Menashe is an honorable source of employment for many of the residents of the villages.  Employment problems, to the extent that they exist, are not the result of the fence or its location.  It was further claimed that the issue of movement from the village of Habla and the city of Qalqiliya, and that of medical services, are not a problem for the members of the a-Ramadin tribe.

           

            6. The Outline of the Discussion of the Legality of the Alfei Menashe Enclave

 

94.       We shall commence our discussion of the legality of the Alfei Menashe enclave with an examination of the state's preliminary arguments.  Then, we shall proceed to examine the question whether the construction of the separation fence around the enclave was intra vires.  This discussion will examine the reasons behind the construction of the fence generally, and the route determined for it at Alfei Menashe, specifically.  After examining the question of authority, we shall proceed to examine the scope of the damage to the local residents.  Against this background we shall examine whether this damage is proportional.  We shall conclude our discussion with an examination of the appropriate remedies as a result of the legal analysis.

 

            7.         The Preliminary Arguments

 

95.       In its response, the state raised three preliminary arguments.  The first is a claim of laches (delay) in petitioning the Supreme Court.  The state argues that construction of the separation fence in the Alfei Menashe enclave was concluded approximately a year and a half prior to the filing of the petition.  Petitioners could have attacked the land seizure orders which were served to them at the end of 2002 and the beginning of 2003.  At the same time, surveys along the planned route were held for the residents, and they were given the opportunity to appeal the route.  Even after that – previous to or during fence construction work – it was possible to petition this Court.  In petitioners' response to the state's response, petitioners state that their awareness of the damage came about only after daily life in the enclave entered its regular pattern.  In any case, due to the severe affront to the rule of law, the laches claim should not be accepted.  In our opinion, petitioners are right.  We accept their claim that they could not assess the scope of the impingement upon their rights before life in the Alfei Menashe enclave entered a regular pattern.  Only when the permit regime had been formulated; only when the opening and closing hours of the gates had been set; only when the cutoff from health, education, and commerce institutions in Qalqiliya and in Habla began to take their toll – only then was it possible to know what the scope of the damage was.  In fact, even at the time the petition was filed, the pattern of life in the enclave had not yet reached its final format.  Respondents themselves announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area, and in that context they even claimed that "the petition is early".  In this state of affairs, the fact that petitioners waited for the formulation of the regular pattern of life in the seamline area does not provide a basis for a claim of laches.

 

96.       Respondents' second preliminary argument regards petitioners' standing, as it arises from the petition itself.  Petitioners no. 1-3 are residents of Ras a-Tira, and petitioners no. 4-6 are residents of Wadi a-Rasha.  Petitioner no. 7 is the Association for Civil Rights in Israel.  The state argues that the petition shows that the three other villages (Hirbet a-Daba, Arab a-Ramadin, and Arab Abu Farda) refused, for undisclosed reasons, to join as petitioners in the petition.  Under these circumstances, it is doubtful that petitioners represent all of the residents of the two villages.  They certainly do not represent the other three villages.  The petition regarding the latter villages is a public petition.  The state contends that such a petition should not be allowed, as individual potential petitioners exist, yet refrain, for undisclosed reasons, from petitioning the Court.  We have no need to examine this argument, seeing as petitioners' counsel noted before us in oral argument that he possesses a letter (of March 30 2005) written by the five council heads of the enclave villages.  In this letter, they authorize counsel to act on their behalves in the petition before us.  Thus this issue was solved.  We can therefore leave the open the question whether it was impossible to suffice ourselves with the petitioners before us, for further hearing of the petition.

 

97.       The third preliminary argument is that petitioners did not make a direct plea to respondents before their petition to the Court.  This argument is rejected.  As it appears from the material before us, petitioner no. 7 (The Association for Civil Rights in Israel) wrote (on March 10 2004 and July 19 2004) to the Prime Minister and the Minister of Defense.  In these pleas, that petitioner raised the main points of its opposition to the fence route at the Alfei Menashe enclave, emphasizing the severe injury to the residents of the villages (in the first letter) and the disproportionate level of injury (in the second letter, written after The Beit Sourik Case).  This is sufficient to satisfy the direct plea requirement.

 

            8. The Authority to Erect the Separation Fence in General, and at the Alfei Menashe Enclave, Specifically

 

98.       The military commander is authorized to order the construction of the separation fence in the Judea and Samaria area, if the reason behind it is a security-military one.  He is not authorized to order the construction of the fence, if the reason behind it is a political one (see The Beit Sourik Case, at p. 828).  In The Beit Sourik Case we examined - using the legal tools at our disposal - the motivation behind the government decision.  We reached the conclusion, on the basis of the data before us, that the motivation behind construction of the fence is not political.  That is our conclusion in the petition before us as well.  Here as well, we have been persuaded that the decision to erect the fence was made in light of the reality of severe terrorism which has plagued Israel since September 2000.  Justice D. Beinisch discussed this in a case dealing with the northeast segment of the fence, in the area surrounding the territory discussed in this petition:

 

"The decision to erect the separation fence was made on April 14 2002 by the Council of Ministers on National Security, in order 'to improve and reinforce the operational assessments and capabilities in the framework of confronting terrorism, and in order to frustrate, obstruct, and prevent infiltration of terrorism from Judea and Samaria into Israel'.  This decision was approved after a government debate on June 23 2002, in which the decision was made to erect a 116 kilometer long obstacle, particularly in sensitive areas through which terrorists – sowing destruction and blood – often passed in order to commit terrorist attacks. The final route of the obstacle was selected by security and military officials, in cooperation with relevant professionals, and was approved by the Committee of Ministers on National Security on August 14 2002.

 

The seamline area is intended to block passage of suicide bombers and other terrorists into the State of Israel.  According to the view of the security and military officials responsible for this subject, the creation of a seamline area is a central component of the fight against terrorism originating in the Judea and Samaria area.  To the extent that the obstacle will not create a hermetic seal against terrorist infiltration, the purpose of the obstacle is to delay the infiltration into Israel for a period of time which might allow security forces to reach the point of infiltration, and thus create a geographic security area which will allow the combat forces to pursue the terrorists before they enter the state.

 

There is no doubt that the creation of a seamline area injures the Palestinian residents in that area.  Agricultural land is being and will be seized for construction of the obstacle, which is liable to harm residents' ability to utilize their lands; their access to the land is also liable to be impeded.  Such harm is a necessity of the hour, and it is a result of the combat situation in the area which has continued for more than two years – a situation which has cost many human lives" (HCJ 8172/02 Abtasam Muhammad Ibrahim v. The Commander of IDF Forces in the West Bank (unpublished)).

 

99.       We asked state's counsel why the separation fence cannot be built on the Green Line.  We understood from the state's response, that security and military considerations prevented that possibility.  Their response was based upon three considerations:  first, the Green Line "passes under a mountain ridge located east of the line.  The line is crossed by many east-west riverbeds.  In many of its segments, there is thick vegetation.  This topography does not allow attainment of the obstacle's goals by a route which passes only within Israel.  Erecting the obstacle exactly on the border line of the Judea and Samaria area does not allow for defense of the soldiers patrolling it, who in many cases would be in disadvantaged topographic positions.  Nor does such a route allow surveillance of the Judea and Samaria area, and would leave IDF forces in a situation of operational disadvantage, in comparison with terrorists waiting on the other side of the obstacle" (paragraph 64 of the state's response of February 23 2005); second, "at many segments, Israeli communities and other important locations inside of Israeli territory are in close proximity to the boundary of the Judea and Samaria area.  For example, the communities of Kochav Yair, Tzur Yigal, Matan, Maccabim, Mevasseret Tzion, the neighborhood of Ramot in Jerusalem, et cetera.  Laying the route inside of Israel would require constructing the obstacle on the fences of these communities and locations with no alert zone to allow security forces to arrive prior to infiltration.  Such an alert zone is necessary to allow hitting terrorists liable to cross the obstacle, before they commit their attack.  Such a route would allow sabotage of locations by way of gunfire from beyond the obstacle (Id., id.); third, the separation fence is intended to protect Israelis living in Judea and Samaria as well.  The fence is also intended to protect other important locations, such as roads and high voltage lines.

 

100.     On the basis of all the material at our disposal, we have reached the conclusion that the reason behind the decision to erect the fence is a security consideration, of preventing terrorist infiltration into the State of Israel and into the Israeli communities in the area.  The separation fence is a central security component in Israel's fight against Palestinian terrorism.  The fence is inherently temporary.  The seizure orders issued in order to erect the fence are limited to a definite period of a few years.  So it also appears from the government decisions, whose reliability we have no basis for doubting, including the decision of February 20 2005, which brought about a change in the separation fence route as a result of the judgment in The Beit Sourik Case.  This change was especially apparent in phases C and D of the separation fence, which had not yet been constructed, or was in stages of construction.  So it also appeared from the affidavits submitted to us and from the rest of the material at our disposal.  Thus, for example, according to the figures of the General Security Service, in the (approximately) 34 months between the outbreak of the armed conflict and until the completion of the first part of the separation fence, the terrorist infrastructure committed 73 mass murder attacks in the Samaria area, in which 293 Israelis were killed, and 1950 injured.  Since the completion of the separation fence – that is, the year between August 2003 and August 2004 – the terrorist infrastructure succeeded in committing five mass murder attacks, in which 28 Israelis were killed and 81 injured.  Comparison between the year prior to commencement of work on the separation fence (September 2001 – July 2002) and the year after construction of the fence (August 2003 – 2004) indicates an 84% drop in the number of killed and a 92% drop in the number of wounded.  The respondents brought to our attention an example of the security efficacy of the separation fence.  The Islamic Jihad organization wished to detonate a suicide bomber from the Jenin area at a school in Yokneam or Afula.  The suicide bomber and his guide left Jenin in the early morning, and intended to reach Wadi Ara, and from there, Afula or Yokneam.  In the pre-separation fence era the terrorists' job was easy.  The seamline area was wide open, and one could easily reach Wadi Ara.  This route is now sealed.  Therefore, the terrorist had to travel to Wadi Ara through a much longer route, through an area where the separation fence had not yet been constructed, a detour which lengthened the route from 27 km to 105 km.  The long detour allowed the security forces to gather intelligence, arrange the forces and locate the two terrorists en route.  After they were caught, the explosive belt was located, and the attack was avoided.  This is only one of various examples brought to our attention.  They all indicate the security importance of the fence and the security benefit which results from its construction. 

 

101.     Such is the case regarding the separation fence generally.  Such is also the case regarding the separation fence route around the Alfei Menashe enclave.  The decision regarding that segment of the fence was made by the government on June 23 2002.  It is a part of phase A of the separation fence.  It appears, from the interrogation of various terrorists from Samaria – so we were informed by respondents' affidavit (paragraph 14) – that the separation fence in this area indeed provides a significant obstacle which affects the ability of the terrorist infrastructure in Samaria to penetrate terrorists into Israel.  It also appears from the interrogations that, due to the existence of the obstacle, terrorist organizations are forced to seek alternative ways of slipping terrorists into Israel, through areas in which the obstacle has not yet been built, such as the Judea area.  We examined the separation fence at the Alfei Menashe area.  We received detailed explanations regarding the route of the fence.  We have reached the conclusion that the considerations behind the determined route are security considerations.  It is not a political consideration which lies behind the fence route at the Alfei Menashe enclave, rather the need to protect the well being and security of the Israelis (those in Israel and those living in Alfei Menashe, as well as those wishing to travel from Alfei Menashe to Israel and those wishing to travel from Israel to Alfei Menashe).  Our conclusion, therefore, is that the decision to erect the separation fence at the Alfei Menashe enclave was made within the authority granted to the military commander.  We shall now proceed to examination of the question whether the authority granted to the military commander to erect the security fence has been exercised proportionately.  We shall deal first with the fabric of life in the Alfei Menashe enclave.  Then we shall examine whether the injury to the local residents' lives is proportionate.

 

 

            9.         The Scope of the Injury to the Local Residents

 

102.     Respondents accept that "the security fence erected in the Alfei Menashe area altered the reality of life for the residents of the villages west of the fence" (paragraph 44 of the supplementary statement of December 5 2004).  There is disagreement between petitioners and respondents regarding the scope of this injury.  We shall discuss a number of central components of the fabric of life, including education, health, employment, movement, and social ties.

 

103.     Petitioners claim that most of the children in the enclave villages attend the elementary, middle, and high schools located in Habla and Ras a-Atiyeh, that is to say, on the other side of the separation fence.  Prior to construction of the fence, the children were driven to school by their parents.  Some of the children (from the villages adjacent to Habla) even walked to school by foot.  Now, in order to reach school, they must pass through the gates in the fence.  Respondents informed us, regarding this issue, that the civil administration funds regular transportation of all the pupils from the enclave villages to school and back.  Of course, parents cannot reach their children during school hours, and the children cannot return to their villages on their own.

 

104.     There are no hospitals or clinics in the enclave villages.  Medical services were previously provided in Qalqiliya and Habla.  There is a government hospital in Shchem (Nablus).  Petitioners argued before us that prior to construction of the fence, doctors from Qalqiliya or Habla would visit the villages, and village residents would travel to them to Qalqiliya or Habla, within a few minutes.  After the construction of the separation fence, one must prearrange a visit with a doctor, who must pass through one of the fences, during fence opening hours.  There is no solution in the case of an urgent medical situation.  Entrance by ambulances from Qalqiliya or Habla requires coordination which takes many hours.  In their response, respondents state that permits have been issued to a permanent staff of doctors, who visit the enclave villages according to a regular schedule.  Ambulances enter on a basis of need, through coordination with a coordination officer available 24 hours a day. 

 

105.     Petitioners claim that the construction of the separation fence had a severe effect upon the employment status of the residents of the enclave villages.  About ten percent of the lands of the village of Ras a-Tira are on the other side of the fence.  Eight dunams of hothouses belonging to residents of the village of Wadi a-Rasha are located on the other side of the separation fence.  The residents of the village of Arab a-Ramadin make their living primarily from growing sheep.  The fence separates the village and its pasture grounds.  The residents of the village of a-Daba make their living from agriculture (production of olive oil, and vegetable and other seasonal crop growing).  The fence separates the village from its agricultural lands.  The residents of the village of Abu-Farda made their living from cattle and goat commerce.  After construction of the fence, the village was cut off from the pasture grounds and the customers, who are unable to reach it.  The residents of the village had no choice but to sell the cattle.  Some residents of the villages worked as Palestinian Authority officials in Qalqiliya.  Due to the separation fence, they have difficulty reaching their place of work.  Many of the workers who worked in agriculture lost their jobs, due to their inability to reach their jobs at the times necessary for agriculture.  They have found jobs as workers in Alfei Menashe.  In their response, respondents mention that the residents of the villages are able to get to the cities and villages of the West Bank through the crossing and gates in the separation fence.  Farmers can pass through the agricultural gates at Habla and Ras a-Tira.  Respondents add that most of the agricultural lands of enclave residents are located within the enclave itself.  A significant part of the families living in the villages of the enclave make their living from work in the Alfei Menashe community.

 

106.     Petitioners claim that the separation fence severely damages the ties between the enclave villages and Qalqiliya and Habla.  Prior to the construction of the fence, it was possible to reach Qalqiliya within a few minutes.  After construction of the fence, and resulting from the need to pass through the gates, the journey takes many hours.  Moreover, a permit to pass through the gates by car is granted only to a car owner who is a resident of the enclave.  Relatives and friends are not allowed to receive a permit.  Most residents of the villages have no car of their own, and as a result – and due to fact that one can not be assisted by the car of a relative or friend – most residents of the villages are bound to their villages.  This also causes damage – regarding the village of Arab a-Ramadin – to religious services.  There is no mosque in that village.  The residents of the village used to pray in the mosque in Habla, which was walking distance from the village.  The fence now separates the village from the mosque.  Considering the fact that there are only five cars in the village, residents of the village have no practical possibility of attending prayer on Fridays and holidays.  In addition, the fence separates the residents of the villages from their relatives and friends.  It is difficult to invite guests to various ceremonies (like weddings and funerals), as entry requires a permit, which is not given at all, or given only a long time after the request date. 

 

107.     Petitioners argue that the separation fence has brought financial and social destruction to the Arab residents of the Alfei Menashe enclave.  It has created a cutoff between the residents and their agricultural lands and all the services necessary for normal life.  Petitioners contend that "due to the construction of the fence, the lives of hundreds of people have turned into miserable lives, sentenced to a economic, social, and cultural withering" (paragraph 4 of the petition).  Petitioners claim that the residents' freedom of movement, and rights to family life, health, education, equality, subsistence, and human dignity and respect have been impinged upon.  These impingements are not proportionate, and legally, they are destined to be annulled.

 

108.     Respondents recognize that the separation fence impinges upon the rights of the Arab residents of the Alfei Menashe enclave.  However, respondents' position is that the general regime in practice in the seamline area, and the new arrangements regarding crossings and gates, have generally turned the injury to the Palestinians, and specifically to the residents of the villages in the enclave, into proportionate ones.  On this subject, we were informed that in July 2004 the declaration was amended, so that permanent residents of the seamline areas were issued a "permanent resident card".  The holder of such a card needs not hold a permit in order to enter into the seamline area or to stay in it.  In order to preserve the fabric of life in the seamline area, checkpoints, allowing passage from one part of the separation fence to the other, have been established.  The checkpoints are manned every day of the year, all day long.  In addition, the agricultural fences have been opened, allowing farmers to pass from their place of residence to their fields.  The gates are open three times a day, for regular, published periods of time.  When these times are insufficient, they can be extended.  The gates are open for a longer time during periods of intensive agricultural cultivation, like during the olive picking season.

 

109.     In the separation fence at the Alfei Menashe enclave there are one crossing and three gates.  The crossing ("crossing 109") is open at all hours of the night and day, every day of the year.  Enclave residents can pass through it, after a security check, by foot or by car, to Qalqiliya and all other parts of Judea and Samaria, whether for employment purposes or for any other reason.  From Qalqiliya, it is possible to continue on to Judea and Samaria with no additional checkpoint.  It should also be mentioned that a new underpass connecting Qalqiliya to Habla has been opened.  It passes under highway 55, which leads to Alfei Menashe.  Movement through this underpass is unrestricted.  In addition to the underpass, there are three gates in the enclave: the Ras a-Tira gate, the Habla gate, and the South Qalqiliya gate.  The Ras a-Tira gate connects the enclave to Habla and to Ras a-Atiyeh.  It was decided that it would be open from one hour after sunrise until one hour before sunset.  Both other gates are open three times a day for one hour.  The farmers can reach their lands through these gates.

 

            10.       The Proportionality of the Injury to the Local Residents

 

110.     Is the injury to the residents of the enclave villages proportionate?  According to the caselaw of this Court – and in the footsteps of comparative law – proportionality is tested according to three subtests.  The first subtest holds that the injury is proportionate only if there is a rational connection between the desired objective and the means being used to achieve that objective.  The second subtest determines that the injury is proportionate only if there is no other less injurious means which can achieve the desired objective.  The third subtest holds that the injury is proportionate only if the impingement upon human rights is of appropriate proportion to the benefit reaped from it.  We applied this standard in The Beit Sourik Case.  Is it satisfied in the case before us?

 

111.     Petitioners contend that the first subtest (rational connection) is not satisfied in the Alfei Menashe enclave.  That is since the current route "annexes, de facto, the residents of the five villages that found themselves in the enclave, into Israel; and instead of creating the that 'separation' (which is, to our understanding, the essence of the fence's security doctrine), it creates a reality in which hundreds of Palestinians find themselves west of the fence, without any checkpoint or gate between them and the cities of Israel.  Therefore, it is difficult to see how the impingement upon the rights of the residents of the villages promotes the security of the State of Israel, of the IDF, or even of Alfei Menashe, none of which are separated from the residents of the villages; au contraire" (paragraphs 140-141 of the petition).  We cannot accept this argument.  The separation fence creates a separation between terrorists and Israelis (in Israel and in the area), and from that standpoint, the required rational connection exists between the objective and the means for its attainment.

 

112.     Is the second subtest (the least injurious means) satisfied?  Is it possible to ensure the security of Israelis through a different fence route, whose impingement upon the rights of the local residents would be a lesser one?  Petitioners answer this question in the affirmative.  According to their argument, it is possible to protect the Israelis through a fence constructed on the Green Line. We cannot accept this argument. In their arguments before us, respondents correctly noted that construction of the separation fence on the Green Line would leave Alfei Menashe on the eastern side of the fence.  It would be left vulnerable to terrorist attacks from Qalqiliya, Habla, and the remaining cities and villages of Samaria.  Movement from it to Israel and back would be vulnerable to acts of terrorism.  Indeed, any route of the fence must take into account the need to provide security for the 5650 Israeli residents of Alfei Menashe.

 

113.     Against this background arises the question whether the security objective behind the security fence could not be attained by changing the fence route such that the new route would encircle Alfei Menashe, but would leave the five villages of the enclave outside of the fence.  Such a route would create a natural link between the villages of the enclave and Qalqiliya and Habla.  It would create a link to the array of civil services which were provided to the residents prior to the construction of the fence.  Most of the injuries to the residents of the villages would be avoided.  Indeed, the lives of the residents under to the present route are difficult.  The enclave creates a chokehold around the villages.  It seriously damages the entire fabric of life.  The alteration to the route, which will remove the villages from the enclave, will reduce the injury to the local residents to a large extent.  If it is not possible to remove all five villages from the enclave, is it possible for most of them to be removed from it?  Indeed, based upon the factual basis as presented to us, the existing route of the fence seems strange.  We shall begin with the southwest part of the enclave.  We are by no means persuaded that there is a decisive security-military reason for setting the fence route where it presently is.  Why is it not possible to change the route in a way that the three villages in this part (Wadi a-Rasha, Ma'arat a-Daba, and Hirbet Ras a-Tira), or most of them, remain outside of the fenced enclave?  There is a planning scheme, which has been filed, for the development of Alfei Menashe in the direction of the southwestern part of the enclave.  But as Mr. Tirza, who presented the enclave map to us, stated before us, that is not a consideration which should be taken into account.  We shall now turn to the northern and northwestern part of the enclave.  Why should the villages of Arab a-Ramadin and Arab Abu-Farde not remain outside of the fence?  A main consideration in this issue might be the need to defend highway 55, which connects Alfei Menashe to Israel.  On this issue, Mr. Tirza noted that the location of highway 55 raises security problems.  Israelis have been shot on it from the direction of Qalqiliya.  We learned from the material before us, that according to the original plan, the segment of highway 55 which connects Alfei Menashe to Israel was to be cancelled.  Instead, a new road was supposed to be paved, which would connect Alfei Menashe to Israel, southwest of the enclave, adjacent to the Matan community inside the Green Line.  Petitioners argue – an argument which is supported by the material they submitted to us – that this plan was not approved due to the opposition of the Matan community, who thought that it would harm its quality of life.  Mr. Tirza noted before us that the road connecting Alfei Menashe to Israel (highway 55) should be viewed as a temporary road.  In this state of affairs, we were by no means convinced that it is necessary, for security-military reasons, to preserve the northwest route of the enclave.  If this route will indeed be altered, it will have an additional implication, in that it will be possible to cancel the two gates separating Qalqiliya and Habla, and reconnect them into a large urban bloc, as it was in the past, and not make due only with the new underpass which connects them.

 

114.     Thus, we have by no means been convinced that the second subtest of proportionality has been satisfied by the fence route creating the Alfei Menashe enclave.  It seems to us that the required effort has not been made, and the details of an alternative route have not been examined, in order to ensure security with a lesser injury to the residents of the villages.  Respondents must reconsider the existing route.  They must examine the possibility of removing the villages of the enclave – some or all of them – from the "Israeli" side of the fence.  Of course, this alteration cannot be done in one day, as it requires the dismantling of the existing fence (in the northern part, the northwestern part and the southwestern part) and the building of a new fence, while canceling highway 55 which connects Alfei Menashe to Israel and buiding a new road southwest of Alfei Menashe.  Respondents must examine, therefore, the preparation of timetables and various sub-phases, which can ensure the changes to the route within a reasonable period.

 

115.     Has the third condition of the proportionality test (narrow proportionality) been satisfied?  In order to answer this question, we must determine whether the existing route of the separation fence at the Alfei Menashe enclave has an alternative route which provides Israelis (in Israel and Alfei Menashe) the required level of security.  If such an alternative route exists, we must examine the intensity of injury to the fabric of life of the village residents.  Thus, for example, if it is possible, according to the security considerations, to reduce the route of the fence so that the enclave will contain only Alfei Menashe, then there is no doubt that the additional security provided by the existing route (compared to the alternate route) does not measure up to the additional injury which the existing route (compared to the alternate route) causes to the local residents (for "relative" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840).

 

116.     And what will be the case if examination of the alternative route leads to the conclusion that the only route which provides the minimum required security is the existing route?  Without it, there is no security for the Israelis.  With it, there a severe injury to the fabric of life of the residents of the villages.  What will the case be in such a situation ("absolute" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840)?  That is the most difficult of the questions.  We were not confronted with it in The Beit Sourik Case, since we found that there was an alternative which provides security to Israelis.  How shall we solve this difficulty in the case before us?  It seems to us that the time has not yet come to confront this difficulty, and the time may never come.  We hope that the examination of the second of the proportionality subtests will allow the alteration of the fence route, in the spirit of our comments, so that a new route can be found, whose injury to the lives of the local residents will be much lesser than that caused by the current route.  We can therefore leave the examination of the satisfaction of the third subtest open, while focusing the examination at this time upon the second condition, that is, examination  of the possibility of reducing the area of the enclave.

 

            Therefore, we turn the order nisi into an order absolute in the following way:  respondents no. 1-4 must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent.  In this context, the alternative by which the enclave will contain only Alfei Menashe and a connecting road to Israel, while moving the existing road connecting Alfei Menashe to Israel to another location in the south of the enclave, should be examined.

 

 

Justice D. Beinisch:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice A. Procaccia:

 

I concur in the judgment of my colleague, President A. Barak.

 

 

Justice E. Levy

 

I concur in the result of the judgment of my colleague, the President.

 

 

Justice A. Grunis:

 

I agree that the petition is to be allowed, as proposed by my colleague, President A. Barak.

 

 

Justice M. Naor:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice S. Jubran:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice E. Chayut:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Vice President M. Cheshin:

 

I read the comprehensive opinion of my colleague President Barak, impressive in scope and depth, and I agree with his legal decision, and with the way he traveled the paths of the facts and the law until he reached the conclusions he did.  Usually I would not add anything to my colleague's words – as we all know that often, he who adds, actually detracts – however, I found the decision of the International Court of Justice at the Hague to be so objectionable, that I said to myself that I should take pen to paper and add a few words of my own.

 

2.         International law has undergone many welcome revolutionary changes in recent decades.  I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course).  Public International Law was not seen by us – we the students – as worthy of the title "law", and the institutions of the international community, including the International Court of Justice, received the same treatment.  The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title "law".  That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court.  Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts.  Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court.  For we have no lack of political forums.

 

3.         I read the majority opinion of the International Court of Justice at the Hague, and, unfortunately, I could not discover those distinguishing marks which turn a document into a legal opinion or a judgment of a court.  Generally, and without going into piecemeal detail, there are two main parts to the judgment of a court, and likewise, to an opinion of the ICJ: one part lays a basis of facts which were properly proven before the tribunal, and upon this basis is built the other part - the legal part.  Thus is also the case with the opinion of the ICJ before us, one part of which is the factual part, and the other part – which builds itself on the first part – is the legal part.  Regarding the legal part of the opinion of the ICJ, I shall not add to what my colleague the President wrote.  We have seen that there are no essential disagreements between us and the ICJ on the subject of law, and that is fortunate.  However, if that is the case regarding the legal part, regarding the factual part – the part which is the basis upon which the judgment is built – I should like to disagree with the ICJ.

 

4.         As we saw in my colleague's survey, the factual basis upon which the ICJ built its opinion is a ramshackle one.  Some will say that the judgment has no worthy factual basis whatsoever.  The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment.  The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment.  Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion.  I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible.  And if all that is not enough, there is the ICJ's almost complete ignoring of the horrible terrorism and security problems which have plagued Israel - a silence that the reader cannot help noticing – a foreign and strange silence.  I can only agree with Judge Buergenthal, and partly with Judge Higgins, Judge Kooijmans, and Judge Owada, that the factual basis upon which the judgment was built is inadequate to the point that it is inappropriate to pass judgment upon it, even by way of opinion.  As Judge Buergenthal wrote (paragraph 1 of his opinion):

 

". . . I am compelled to vote against the Court's findings on the merits because the court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case . . ."

 

Thus also further on in his opinion (see paragraph 64 of the President's judgment).  I am sorry, but the decision of the ICJ cannot light my path.  Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father's  household.

 

 

Decided according to the judgment of President A. Barak.

 

Given today, September 15 2005.

 

 

             

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petition granted.

21 Kislev 5767.

12 December 2006.

HCJ 1074/93

1.       Attorney-General

2.       Bezeq, the Israel Telecommunication Corporation Ltd

v.

1.       National Labour Court, Jerusalem

2.       General Federation of Labour in Israel

3.       Bezeq Employees’ Joint Representation

4.       All Bezeq Employees

 

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

Before Justices D. Levin, M. Cheshin, Ts. E. Tal

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court.

 

Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest.

In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike.

 

Petition granted.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 4.

 

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

Labour Court Law, 5729-1969, s. 30(a).

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, s. 1.

Resolution of Labour Disputes Law, 5717-1917, ss. 2, 5A, 5B, 37A, chapter 4.

Telecommunications Law, 5742-1982, ss. 50, 51, 60.

 

Israeli Supreme Court cases cited:

[1]      HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1995] IsrSC 49(1) 573.

[2]      HCJ 51/69 Rudenitsky v. Great Rabbinical Court [1970] IsrSC 24(1) 704.

[3]      HCJ 550/89 Attorney-General v. Parole Board [1989] IsrSC 43(2) 739.

[4]      HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[5]      HCJ 2148/94 Gilbert v. Chairman of Commission of Enquiry for examining the Massacre in Hebron [1994] IsrSC 48(3) 573.

[6]      CA 506/88 Shefer (a minor) v. State of Israel [1994] IsrSC 48(1) 87; [1992‑4] IsrLR 170.

[7]      HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [1985] IsrSC 39(3) 141.

[8]      CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [1987] IsrSC 41(3) 169.

[9]      CA 25/71 Feinstein v. High School Teachers’ Association [1971] IsrSC 25(1) 129.

[10]    HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

[11]    HCJ 1520/91 Wilensky v. National Labour Court [1992] IsrSC 46(5) 502.

[12]    HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv Labour Court [1985] IsrSC 39(3) 13.

[13]    HCJ 289/79 Israel Ports Authority v. National Labour Court [1980] IsrSC 34(2) 141.

[14]    ALCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.

[15]    HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [1962] IsrSC 16 2101; IsrSJ 4 191.

[16]    HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17]    HCJ 453/94 Israel Women’s Network v. Government of Israel [1948] IsrSC 48(5) 501; [1992-4] IsrLR 425.

 

Labour Court cases cited:

[18]    NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [1977] IsrLC 8 421.

[19]    NLC 52/4-3 (unreported).

[20]    NLC 36/4-5 Ginstler v. State of Israel [1976] IsrLC 8 3.

[21]    NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [1986] IsrLC 17 264.

[22]    NLC 52/4-37 United Mizrahi Bank Ltd v. Bank Mizrahi Workers Union [1992] IsrLC 25 53.

 

English cases cited:

[23]    Mercury Communication v. Scott-Garner [1984] Ch. 37 (C.A.).

 

Dutch cases cited:

[24]    Re Keijzer v. Peters N.V. 3 I.L.L.R. 306 (1977).

[25]    N. V. Dutch Railways v. Transport Unions FNV, FSV and CNV 6 I.L.L.R. 3 (1986).

 

Finnish cases cited:

[26]    Metal Industry Employers’ Federation v. Metal Workers Union 9 I.L.L.R. 522 (1988).

 

For the first petitioner — M. Rubinstein, director of the Civil Department at the State Attorney’s Office.

For the second petitioner — S. Bechor.

For the second respondent — A. Mei-Tal, R. Kariv.

For respondents 3-4 — A. Feingold.

 

 

JUDGMENT

 

 

Justice D. Levin

1.    We have before us a petition of the first and second petitioners against the judgment of the National Labour Court in NLC 53/4-4,[*] in which the National Labour Court allowed the appeal of respondents 2-4 and held that an injunction should not be given against the respondents in a strike that they held, since according to its ruling, the strike was legitimate.

The facts relevant to the case

The main facts are not in dispute, but clear details of them, as set out by his honour the President of the National Labour Court in his judgment, are necessary in order to consider the dispute and its solution properly and precisely.

2.    The second petitioner (hereafter — Bezeq) operates under a licence granted to it under the Telecommunications Law, 5742-1982, and it is a ‘public service’ within the meaning thereof in chapter four of the Resolution of Labour Disputes Law, 5717-1957. Sections 50 and 51 of the Telecommunications Law granted Bezeq exclusivity in various fields of operation, and the following is the wording of those sections:

‘50. A general licence to carry out telecommunications operations or to provide national telecommunications services on a national telephone network or to provide international telecommunications services on an international telephone system shall only be given to one company; for this purpose, “national telephone network” — a national cable infrastructure, wireless installations and telecommunications installations by means of which telephone services and additional telecommunications services are provided to the public.

51. (a) A special licence shall not be given with regard to the equipment that the Ministry of Telecommunications dealt with before the passing of this law in the Knesset (hereinafter — the equipment of the Ministry) or with regard to identical equipment that may replace it.

(b) A special licence shall not be given with regard to equipment similar to the equipment of the Ministry that will replace it or that is designated to replaced it, until the Minister has consulted with the company and decided, after considering inter alia the interest of the company in carrying out the action or in providing the service to which the licence refers, that the public interest requires the licence to be given to whoever asked for it.’

3.    The Government decided to limit this exclusivity by opening up various sectors in the field of telecommunication services to competition. First this was done by a decision of the Minister of Telecommunications at that time, and shortly before the dispute before us this intention was expressed in the draft State Economy Arrangements (Legislations Changes for Achieving Budget Targets) Law, 5753-1992, which states in section 26:

‘In section 50 of the Telecommunication Law, 5742-1982, the words “or to provide international telecommunications services on an international telephone system” shall be deleted, and at the end shall be added “but a mobile radio-telephone network shall not be regarded as part of the national telephone network”.’

4.    Respondents 2-4, under the leadership of the second respondent (hereafter — the General Federation), opposed these changes on the grounds that revoking the exclusivity will affect the terms of employment of Bezeq employees and lead to the dismissal of many of them. Their request was to enshrine in an agreement, before revoking the exclusivity, the question of the rights of employees, both those who would continue to work for Bezeq and those who would be forced to leave it as a result of that change.

The General Federation based its main arguments on that fact that when the Telecommunications Law was passed, the commencement of the law was made conditional, inter alia, on the signing of a collective agreement with regard to the rights of Bezeq’s employees, and the transfer of employees from the civil service to the employment of Bezeq (s. 60 of the Telecommunications Law).

5.    On 14 May 1992, the Federation of Clerks delivered to the Chief Director of Labour Relations and to Bezeq a ‘Notice of a Strike’, stating that the notice was given under sections 5A and 5B of the Resolution of Labour Disputes Law.

6.    On 12 July 1992, Bezeq employees began sanctions in accordance with the decision of Bezeq’s Workers Council, and several days later, on 20 July 1992, the Central Committee of the General Federation approved, for the second time, ‘a labour dispute at the Bezeq Corporation, because of the granting of licences to private enterprises and the transfer of work to contractors, a reduction in the definition of the general licence and a privatization of the “Bezeq” corporation.’

7.    On 16 July 1992, Bezeq applied to the Tel-Aviv-Jaffa Regional Labour Court in an application for a temporary and permanent injunction to stop the sanctions. On 17 July 1992, an order was given as requested, and this was extended several times.

8.    It should be mentioned, just as the National Labour Court emphasized at the beginning of its judgment in a condemnation of their behaviour, that despite the temporary injunction given against them, Bezeq’s employees carried out sanctions that compelled Bezeq to ask the court twice for orders under the Contempt of Court Ordinance (LC 53/48-2; LC 53/48-3), and an order was even made in this respect. Again, after judgment was given in the main proceeding, which was the subject of the appeal to the National Labour Court, Bezeq was compelled to commence contempt of court proceedings.

This behaviour of Bezeq’s employees deserves strong condemnation, and we will refer to it and mention it below.

9.    A further fact that is relevant in this case is the determination that before the hearing of the appeal before the National Labour Court, the sanctions taken by the employees stopped.

10. As stated, the General Federation appealed the decision of the Tel-Aviv-Jaffa Regional Labour Court to the National Labour Court in Jerusalem, which allowed the appeal and set aside the judgment of the Regional Labour Court and the injunction given by it, in so far as it related to the General Federation being forbidden from declaring the strike.

The judgment of the Regional Labour Court

11. After it considered the matter on its merits and in depth, the Regional Labour Court found that the strike of the Bezeq employees was not legitimate, since the reason for it could not be the subject of a collective agreement. In addition, the Regional Labour Court held that the strike was ‘not protected’, with all that this implies, as set out in chapter four of the Resolution of Labour Disputes Law.

In its judgment, the Labour Court considered the ‘balance of convenience’, and on this basis it held that the general public, and also the Bezeq company itself, should be spared substantial harm. The Labour Court therefore ordered the Bezeq Employees’ Representation to maintain full industrial quiet and refrain from a strike or sanctions, and it also ordered the General Federation to order the Bezeq Employees’ Representation and its employees to work fully and without interruption.

The appeal to the National Labour Court

12. The General Federation appealed the judgment of the Regional Labour Court. In essence, the General Federation argued that the strike was declared lawfully and held lawfully, and that it should not be regarded as a  ‘political strike’ or an  ‘unprotected strike’. In its opinion, the strike does not contradict the ‘industrial quiet’ clauses in the binding agreements.

The National Labour Court considered in depth the many and complex questions that were raised before us, and held, unanimously, but for different reasons, that the appeal should be allowed, and that the judgment of the Regional Labour Court, including the injunction in it, in so far as it related to the prohibition against a strike being declared by the General Federation, should be overturned (paragraph 25 of the judgment of his Honour President M. Goldberg).

The judgment of the National Labour Court

13. The National Labour Court referred to the definition of strikes in case-law, and held that it ought to be changed, even if this involved a deviation of the National Labour Court from its own rulings. This is what was said:

‘In these days, when the legislator intervenes more than ever in employment terms that are determined or that may be determined in agreements or collective agreements… and has become an active partner in determining the terms of employment of all employees, particularly in the public sector… it is highly questionable whether the definition of the term “strike”, as reflected in case-law, can be allowed to stand as it is.’[†]

The court went on and held, for the purpose of the term  ‘unprotected strike or work stoppage’, as defined in section 37A of the Resolution of Labour Disputes Law, that:

‘… it is proper that a strike in the civil service directed against a change, that may significantly affect the terms of employment of the employees in a certain enterprise, and which is intended to ensure the rights of the employees as a result thereof, as long as it is not against the law, should not fall into the category of an “unprotected strike” in the civil service, even if it is not the employer who initiated the change.’[‡]

Therefore the National Labour Court reached the conclusion, in the majority opinion written by the learned President, that the question as to whether we are dealing with a  ‘political strike’ should be answered in the negative.

The National Labour Court held, at the end of the hearing, that not every strike that is not against the Government as sovereign, rather than as employer, is a  ‘political strike’, and in consequence thereof it decided that the strike carried out by the Bezeq employees was not an  ‘unprotected strike’ within the meaning thereof in the Resolution of Labour Disputes Law.

14. In order to complete the picture, alongside the reasoned judgment of the majority of the panel of the National Labour Court we should mention the minority judgment of the learned Vice-President, Justice S. Adler, who, although he agreed with the outcome, did so for reasons that are entirely different from those of the majority. The learned Vice-President was of the opinion that the strike in this case was a  ‘mixed strike’, partly political and partly economic, and it was mainly political in nature, since:

‘… its tangible and immediate purpose is to change the policy of the Government and the Knesset…’[§]

The agreement of the learned Vice-President to cancel the order made against the General Federation was based merely on the fact that the order had achieved its purpose, and the employees had returned to work. When the appeal of the General Federation was allowed in the National Court, the petitioners submitted this petition, which is now before us.

The main arguments of the petitioners

15. The petitioners recognize the fact that labour law is within the expertise and sole jurisdiction of the Labour Court. They are also aware of the ruling, which was made by this court and which had been upheld more than once, that the High Court of Justice does not sit as a court of appeals on the judgments of the National Labour Court, and it will intervene in the judgments of the National Labour Court only when it transpires that there is a substantial mistake of law, and justice requires us to intervene in order to correct it (HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1], at p. 584, and the many citations set out in the judgment).

Notwithstanding, they are of the opinion that the case before us does indeed fall into the category of rare and special cases where our intervention is justified.

16. According to the petitioners, in the ruling made by the National Labour Court in its judgment there is a fear that a mistake of law may become entrenched and undesirable norms may be adopted in a most important subject, which is one of the foundations of collective labour law and labour relations in the economy. The petitioners argue that a strike directed at the government to achieve political aims, when the employer is usually a third party who cannot agree to the demands, has been called a ‘political strike’ in Israeli case-law, and it is considered a forbidden strike. In the opinion of the petitioners, the strike which is the subject of the case before us is indeed of this kind, and it follows that it does not fall within the sphere of labour law, since its purpose is to achieve objectives that are not legitimate ones in the field of labour law. In addition, the petitioners argue that the provisions of section 37A of the Resolution of Labour Disputes Law distinguish between an unprotected strike relating to salary and social benefits, and a strike which is not of this kind, but this is only with regard to the formal terms stipulated in the law and not in order to expand the concept of the strike and to grant legitimacy to a ‘legal strike’. According to them, the strike still needs to be within the field of labour law and within the framework of a labour dispute, it must be directed against the employer and it must relate to terms of employment or labour relations which are not salary or social benefits — for these two subjects are only some of the matters that may be the basis for a labour dispute, as defined in section 2 of the Resolution of Labour Disputes Law. In this respect, the petitioners argue that a change of the general licence of the Bezeq Corporation and the legislation proceedings for amending the Telecommunications Law are not a part of ‘work conditions’ and they are not a part of ‘labour relations’, since they cannot be the subject of a collective agreement within the meaning of this term in the Collective Agreements Law, 5717-1957. Finally, the petitioners point out that the conclusion of the National Labour Court, in so far as it relates to the widening of the freedom to strike, has no parallel in foreign law.

The main arguments of the respondents

17. The respondents argue that the judgment of the National Labour Court, which is the subject of this petition, was made lawfully and it is right and just on the merits. Therefore, there is no reason for this court to set it aside.

18. The respondents argue before us that it should not be assumed that organized opposition of employees to a harmful action of the Government should not be regarded as a strike, but rather as a forbidden act, merely because the initiative for the harmful act does not proceed from the direct and formal employer. They argue that in the prevailing legal situation in public services, the formal employer has almost no power in matters relating to the determination of employment terms and employees’ salaries, and therefore the formal distinction with regard to the identity of the direct employer cannot be implemented in the present circumstances.

The respondents further argue that just as every citizen and every group of citizens may demonstrate against the implementation of any Government policy, as part of their basic rights in our democratic regime, so too employees have the freedom to associate in order to protect their place of work and their livelihood. They argue that the only practical expression of this freedom to associate is the freedom to strike, i.e., not to work.

Therefore, in view of the aforesaid, the respondents ask the court to cancel the show cause order, to dismiss the petition and not to intervene in the judgment of the National Labour Court.

Preliminary arguments

19. This is the factual and legal background to this petition, on the basis of which a show cause order was issued, and our deliberation will be based on this. But first I must remove from our path two preliminary arguments raised before us by counsel for the General Federation, according to which we are asked to dismiss this petition in limine.

20. First, the General Federation argues before us that section 30(a) of the Labour Court Law, 5729-1969, does not grant the first petitioner (hereafter — the Attorney-General) the authority to challenge the decision of the National Labour Court before this court. It further argues that the petition under discussion raises an academic question that is dead and buried, since the dispute that is the subject of the strike under consideration has already been resolved.

The two arguments should be rejected.

21. With regard to the argument of the General Federation that section 30(a) of the Labour Court Law does not give the Attorney-General the authority to challenge the decision of the National Labour Court before this court, the answer is as follows. Indeed the text of the aforesaid section 30(a) grants the authority to intervene in proceedings before the Labour Court, and it is with this that we are concerned, but what is stated does not imply what the Attorney-General does not have authority to apply to this court.

First, when the Attorney-General became a party in the National Labour Court, he acquired standing both before the court with procedural jurisdiction and also before the court with review jurisdiction. No impropriety should be attached to the fact that this standing should continue to exist also before us as the highest court of review, in order to examine the arguments of the Attorney-General that were rejected in a lower court, which in this case is the National Labour Court.

Second, it seems to me that it is fitting that the Attorney-General, as the person who represents the public interest, should petition the High Court of Justice in cases where he thinks that one of the branches of government has erred in a matter which he thinks is of supreme public importance. This approach is based on two lines of reasoning: first, the Attorney-General has the authority to become a party to a petition filed by someone else, by attending, as in the present case, in the High Court of Justice, by virtue of section 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version] (for recognition by this court of a proceeding of attendance that was similar in its circumstances, see: HCJ 51/69 Rudenitsky v. Great Rabbinical Court [2], at p. 711; HCJ 550/89 Attorney-General v. Parole Board [3]).

Third, opening the doors of this court even to a ‘public petitioner’ who can show a general public interest that justifies proper consideration applies a priori to the Attorney-General within the framework of his authority (see Dr Z. Segal, The Right of Standing in the High Court of Justice, Papyrus, second edition, 1994, at pp. 71, 268-270; and also diverse case-law: HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 2148/94 Gilbert v. Chairman of the Commission of Enquiry for examining the Massacre in Hebron [5]).

22. With regard to the argument about the academic nature of the question under discussion, the remarks of the Vice-President of the Supreme Court, Justice Elon, in CA 506/88 Shefer (a minor) v. State of Israel [6], at p. 98 {179}, are apt:

‘Usually we do not become involved in deciding an issue that is purely academic. But there is no rule that does not have exceptions… This is because usually… the decision must be given without delay, as required by the nature of the case and the facts, and the reasons relate to the heart of the matter and the reasoning for it, so that we will know and have established the law on each of the issues before us when it arises and comes before us once more.’

Or, as Justice Barak chose to express it in HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [7], at p. 146:

‘It is true that this court does not consider questions that are not practical, and it does not give an opinion that is merely academic on questions of theoretical application, but this rule does not apply when the nature of the event, to which the petition refers, is such that the judicial determination of it may come after the event has taken place, but there is a reasonable likelihood that similar events will happen in the future…’

So we see, and the experience of life teaches us, that legal issues of a special and flexible nature from the past that appeared academic at the time became important and urgent practical questions at a later date. For this reason, both because of the direct relevance of the questions that are at the heart of the structure of the constitution and labour law in Israel, and also because of the doubt as to whether this dispute and ones like are merely events of the past, I think it appropriate to consider in detail the question before us.

The freedom to strike

23. In order to decide whether the sanctions taken by the employees in this case should be considered a ‘strike’, within the definition of this term for the purposes of labour law, we must first consider the status of this ‘institution’.

24. It would appear that there is no longer any basis to question the lofty and protected status of the freedom to strike. More than once we has emphasized that:

‘… the “right” to strike has acquired for itself a firm foothold in Israeli legislation and case-law’ (CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [8], at p. 190).

            In the eloquent language of Justice H. Cohn in CA 25/71 Feinstein v. High School Teachers’ Association [9], at p. 131:

‘It may be said that there is nothing further from the mind of the Israeli legislator than the desire to eliminate the institution of the strike: if an English judge, in a recent decision, described the strike as a ‘holy cow’, then here it should be regarded at least as a kind of revered tradition, such that it can no longer be questioned.’

Moreover, in an age where we are guided, both in legislation and in case-law, by the Basic Law: Human Dignity and Liberty — and its constitutional values — it would appear that the ‘strike’, which we have always considered to be included among the basic freedoms not written in the statute book and which was described as something that ‘in essence belongs not to the sphere of “rights” but to the sphere of  “freedoms” which are subject to binding restrictions...’ (See NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [18]; NLC 52/4-17 (unreported) [19]; NLC 53/4-4[**]), will in the future find refuge in the value of ‘human dignity’ that is enshrined in this basic law (sections 1, 2 and 4 of the Basic Law: Human Dignity and Liberty, and for more detailed analysis, see the book of (Vice-President) Prof. A. Barak, Legal Interpretation, vol. 3, “Constitutional Interpretation”, Nevo, 1994), and also his article ‘Human Dignity as a Constitutional Right’, 41 Hapraklit, 1993-1994, 271, at p. 279).

It is clear, then, that the focus of our consideration is a freedom that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time. Nonetheless, and precisely for this reason, when we are required to determine which acts of protest adopted by workers in their struggle will find refuge under the protection of the ‘strike’, the courts and labour courts must look to the definition of ‘the strike’, with its changing facets and nuances.

Definition of the ‘strike’ — the status of a strike against the sovereign authority

25. In their petition, the representatives of Bezeq and the Attorney-General reiterated their initial and fundamental argument that they argued before the National Court, that an indispensable condition for a concerted action of employees to be recognized as a ‘strike’ for the purpose of labour law is that it is declared within the framework of a struggle to achieve employees’ demands from an employer — with regard to their terms of employment. Counsel for the petitioners argues that this condition is not fulfilled in our case, where the demands of the Bezeq employees are not directed at their employer — the Bezeq Corporation — at all, but at the Government. In their opinion, since this is the case, the actions taken do not fall within the definition of a ‘strike’, and certainly these actions should not be granted legitimacy.

Indeed, as his honour, the learned President of the National Labour Court, Justice Goldberg, pointed out in his judgment:

‘… not infrequently have the Labour Courts, and the civil courts, expressed themselves in such a way that it may be understood that only a strike against an employer, in matters that are a subject for collective bargaining and a collective agreement, is a “strike” within the meaning thereof in labour law.’[††]

See the development of this definition: NLC 36/4-5 Ginstler v. State of Israel [20], at p. 15; NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [21], at p. 269; HCJ 525/84 Hativ v. National Labour Court [10], at p. 702; NLC 52/4-37 United Mizrahi Bank Ltd v. Mizrahi Bank Workers Union [22], at pp. 62-63.

26. One might ask why we need all this repeated study and examination of the nature of a ‘strike’, when we have established the traditional nature of the definition of the ‘strike’, which is directed against the employer only, whereas in the case before us it is directed against the sovereign authority? To this questioner we will reply that there are sound reasons for this investigation and examination, for we are not divorced from the people and we are charged with seeing the current reality of our times, which changes and varies continually, both in general and also in the field of labour relations. So it would appear that it was not an accident that the legislator chose not to define the term ‘strike’, except in chapter 4 of the Resolution of Labour Disputes Law. It is clear that by doing this the legislator expressed the opinion that:

‘… the concept strike is not one that has a single meaning, which applies at all times, for every purpose and in every situation of a development of labour relations and labour law’ (NLC 36/4-5 [20], at p. 27).

And in the words of Justice Goldberg (President of the National Labour Court) in one of his articles:

‘… it may be good that this matter has been left to the discretion of the courts, for the reason that the needs and situations in the area of labour relations and labour law are dynamic and changing, and a statutory definition, which by its very nature is inflexible, does not change with the passage of time, and may well become a burden when the courts are required to apply the law…’ (M. Goldberg, ‘The Strike in Statute, Collective Agreements and Case-law’, Hapraklit, Special edition celebrating 25 years of the Bar Association, 1987, at pp. 51-52, cited in NLC 53/4-4, 25, supra[‡‡]).

27. We cannot ignore the changes that have been taking place for some time in the field of labour relations in the Israeli economy. It is clear that the Government is both an active and influential factor in the field of labour relations and in the negotiations about labour agreements. This interventionism has many, different causes, and it will suffice if we mention that, in addition to being one of the largest employers in the economy, the State intervenes in the field of labour relations as an active and highly influential factor in ‘package deals’, in wages, taxes and pricing policy.

In this respect, the following remarks, which reflect a familiar reality, are correct:

‘… the fact that the Government has become an active partner in negotiations regarding work conditions, justifies the expansion of the employees’ protest base, so that it may extend also to attack the policy of the additional partner to the negotiations and not merely the employer, as was the case in the past, which reflected the reality that prevailed then’ (Prof. R. Ben-Israel, ‘The Political Strike’, Iyyunei Mishpat, 1986-1987, 609, at p. 624).

It is therefore proper to consider this development when we seek to formulate an up-to-date approach to the important issue in the case before us.

            The political strike — classification and status

28. At the heart of the petition before us lies the argument of the Attorney-General that the strike was directed against a specific provision in the Telecommunication Law, 5742-1982, which granted the Bezeq Corporation a monopoly in certain fields. The policy adopted by the State in putting forward the aforesaid draft law to correct the situation in a very limited manner was intended to bring about a measure of change in an undesirable monopolistic situation, and provide for the possibility of free competition in the field of international telephone services and mobile telephone services.

Opposition to this policy, when it is in the process of being legislated in the Knesset, is, in the State’s view, a manifestly political strike, which is regarded by Israeli case-law as a strike that undermines our democratic process, and as such should be regarded as a strike that is not legitimate. This approach, to the extent that it relies on a proper factual basis, finds support in our case-law, and I need only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10] and his decisive approach:

‘The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such’ (ibid., at pp. 703-704).

This approach of the President has won widespread approval, and it is supported by the opinions of scholars in Israel and abroad (see Professor F. Raday’s article: ‘Political Strikes and Fundamental Change in the Economic Structure of the Workplace’, 2 Hamishpat, 1995, at pp. 159-177).

29. This issue is a delicate one and a very significant one in labour relations and labour law, as they have developed and crystallized in democratic countries. The distinction between a purely political strike, which is considered not legitimate, and an economic strike, which is recognized as a proper strike, is recognized and accepted by the different legal systems, but over time the two extreme forms of strike have been joined by an additional method of protest directed mainly at the sovereign power, which is a quasi-political strike that relies on a factual basis that is made up of a mixture of facts and goals.

Comparative law — conceptual distinctions

30. The law of the international democratic community, which has a long tradition in the field of labour relations, tends to distinguish between the ‘economic strike’, directed at the sovereign to achieve objectives in collective bargaining relating to work conditions, and the ‘purely political strike’, directed against the sovereign for the purpose of achieving political goals. This conceptual distinction is vague and rudimentary, for when considering questions relating to ‘political strikes’, the law in the aforesaid countries has generally shown that it is prepared occasionally to recognize a strike against the sovereign as an ‘economic strike’. Therefore, where employees have started a strike against the sovereign — whether government or legislator — and their goals are directed against the direct intervention of the sovereign in their employment conditions and immediate rights, such as: freezing their wages (in Holland — Re Keijzer v. Peters (1977) [24]) or reducing their salary (in Holland — N.V. Dutch Railways v. Transport Unions FNV, FSV and CNV (1986) [25], at p. 8), their strike was recognized as an economic strike, even though, as stated, it was directed at the sovereign. On the other hand, where the strike was directed against the sovereign and targeted a policy that sought to make a fundamental economic, structural change, such as tax reforms (Finland — Metal Industry Employers’ Federation v. Metal Workers Union (1988) [26]) or privatization processes (in England — Mercury Communication v. Scott-Garner (1984) [23]), the claim that the strike was economic and not political was rejected.

31. The implied conclusion, by way of analogy but in the proper context, is that a dichotomous distinction between a ‘pure political strike’, on the one hand, and an ‘economic strike’, on the other, is no longer applied in the law of the international community mentioned above, and it certainly cannot provide fitting solutions to the diverse labour disputes in a developing economy like that of the State of Israel. We can see how important is the purpose of the strike and how important are the objectives that the strike attempts to achieve. Therefore the interpreter must ascertain the purpose and objectives of the strike, and after he establishes its purpose, he will decide his position with regard to the legitimacy of that strike, even if it is aimed directly at the sovereign.

In this respect, the remarks of Justice Adler in the minority opinion of the judgment which is the subject of this petition are important. Judge Adler accepted the ruling in Mercury Communication v. Scott-Garner [23], supra, holding that:

‘… an additional tool for defining the scope of the strike within the framework of labour law is “the predominant purpose of the dispute”.’[§§]

            A strike and a quasi-political strike

32. It follows that, in the reality prevailing in Israel as established above, there are grounds to distinguish between three types of strikes, which differ in their substance, their significance and the binding legal outcome in each of them. The first is the one defined as an economic strike, which involves a strike usually directed at the employer who wants to harm the rights of the employees, or who refuses to improve their terms of employment. This strike may be directed also at the government, when it acts in its capacity as employer, or when it wishes to intervene, by using its executive power, in order to change existing arrangements in labour relations between employees and employers or to prevent such arrangements. Such a strike is accepted as a legitimate strike.

The second is a purely political strike that is directed at the government, not in its capacity as employer, but as the body responsible for determining general economic policy that is not acceptable to employees who think that such a policy will limit them and harm their ability to struggle to achieve their rights as employees. This is a strike that is considered illegitimate, in that it attempts to undermine the authority of the government to determine economic policy with a wide perspective of the general public interest, and to force it to accept the employees’ demands; this is a strike that tries to intervene in legitimate legislation proceedings within the authority of the legislature, not by methods of persuasion acceptable in our democratic system, but by forceful intervention which tries to impose on the legislator what is unacceptable to it. This strike is not legitimate, and there is a justification for preventing it.

The third is a quasi-political strike, which falls between the two extremes that have been mentioned. It is about this that I would like to make some remarks. In these cases, which fall within the range that I have described, the test of  ‘the predominant purpose’ becomes doubly important, since we are dealing with those cases where the employees are striking over an issue that is not directly related to their terms of employment in the narrow sense, but it affects them directly. Thus, when the proposed test shows and attests that there is indeed a direct effect on employees’ rights, even if they striking against the government, labour law will arise and give their strike the title of a ‘quasi-political strike’, which shall entitle the employees to the right to hold a short protest strike only, without such a case being classified as one of the two ends of the spectrum, since it is in a class of its own.

In this respect, it is appropriate to adopt the remarks of Prof. F. Raday, in her article, supra, at p. 163, that:

‘The right to strike over matters unrelated to terms of employment in the narrow sense, is completely different from the right to hold an economic strike. It is not possible to regard this as an instrument of economic pressure in conducting collective bargaining, for this would confer legitimacy on strikes against the employer or the government with regard to matters that are not subjects for collective bargaining. It should be regarded as a right of the citizen to freedom of speech and protest. Therefore it is limited to a protest strike only —to a brief action, which is not designed to put economic pressure on the employer. This right of a protest strike on broad socio-economic matters that directly affect workers may be regarded as the creation of a concept of a right to a quasi-political strike, which allows a protest act only.’

The same idea is expressed by Prof. Ben-Israel, in her article, supra, at p. 621:

‘… The proposed standard is, in one respect, that we are dealing with government policy that has an effect on the working sector, but in this context the effect must be direct, whereas an indirect effect is insufficient. An additional restriction arises from the case-law of the Committee of the International Labour Organization (ILO), which is that we are dealing with a strike that is designed to express a protest only, and is not designed to breach the peace.’

From the general to the particular

33. Should the strike before us be classified as an economic strike, entitled to the protection of labour law, as the National Labour Court ruled? In my opinion, this is not the case, and I do not accept the conclusions of the National Labour Court. I will explain my position.

34. With respect to the classification of the strike — if the General Federation wishes to rely upon the economic strike and to argue that the present strike is such, and to rely upon the protections conferred on such a strike, then it has the task, as the representative of the striking workers, of persuading the court that the policy of opening different fields of telecommunications services up to competition, as this is expressed in the Government’s draft legislation, will directly harm employees and their terms of employment, in the narrow sense. In my opinion, convincing and well-founded evidence that restricting Bezeq’s monopoly may cause direct and immediate harm to Bezeq’s employees has not been presented at all, either before the National Labour Court or even before us. Therefore, I am prepared to rely on the determination of Vice-President Adler, when he indicated that:

‘The facts submitted… have not shown a clear, certain or immediate effect that the new law will have on the terms of employment, the wages or the continued employment of Bezeq’s employees. It is possible that they will suffer, but it is also possible that they will benefit from the competition, if Bezeq competes successfully… The effect of the draft law on Bezeq’s employees is neither certain nor tangible, since there is no direct threat to the places of work of Bezeq’s employees, there is no direct intention to change their terms of employment, and there is no threat to reduce the corporation’s manpower. The opposite is true — Bezeq’s employees enjoy job security by virtue of statute and by virtue of collective agreements that apply to them.’

Therefore the inescapable conclusion is that the correct classification of this strike, according to its objectives and background, is, at most, a ‘quasi-political’ strike, which only justifies a protest demonstration that can be expressed, as stated, in a protest strike of short duration.

I emphasize the words ‘at most’, because were it not for the expectation that Bezeq’s employees have of exclusivity and an everlasting and unchangeable monopoly — expectations deriving from the provisions of sections 50, 51 and 60 of the Telecommunications Law, it is in my opinion highly questionable whether a change in the law could be regarded in any way, even prima facie, as having a direct and material influence on the employees’ terms of employment. From a review of the facts of the case and the provisions of the said law, I can determine that these feelings and expectations of the employees are unfounded. But I can understand that when the employees’ hope — albeit a mistaken one — was disappointed, a genuine fear took root in their minds that a change in the law would harm their terms of employment in some way. For this reason, I would tend to place this strike in the category of the quasi-political strike, with the consequences elucidated above.

35. It seems to me that even section 37A of the Resolution of Labour Disputes Law will lead us to the same conclusion with regard to the nature of the strike before us, and its proper classification. The term ‘strike or unprotected strike’ is defined in section 37A of the Resolution of Labour Disputes Law, in the following terms:

‘A “strike or work stoppage” — any one of the following:

(1) A strike or work stoppage of employees in public service, at a time when they are subject to a collective agreement, except for a strike that is unrelated to wages or social benefits, and the national centre of the competent trade union has declared or authorized it;

(2) …

(3) …’

In our case, where Bezeq is a  ‘public service’ within the meaning of this term in the Resolution of Labour Disputes Law, we must consider the meaning of the words ‘except for a strike that is unrelated to wages or social benefits’. With regard to the interpretation of this phrase, Prof. Ben-Israel expressed her opinion as follows:

‘Two types of strike may be justified by the exception [‘that is unrelated to wages or social benefits’]:

(a) Sympathy strikes…

(b) Strikes of a certain political character…’ (see Prof. R. Ben-Israel, The Strike, Sadan, 1987, 194) (square parentheses added).

Even if we adopt this interpretation, which I do not reject, we would still find ourselves bound by the spirit of section 37A, which seeks to ensure the uninterrupted supply of essential public services. For this reason, I believe that in providing an exception for ‘the unprotected strike’, the legislator is only prepared to recognize the quasi-political protest strike, and to protect it within its narrow limits. When the protest of Bezeq’s employees took on the form of a general and prolonged strike, it significantly exceeded the quasi-political strike in its scope and objectives, and it became a political strike in the full sense of the term. For this reason, it is illegitimate and unprotected, contrary to the approach of the National Labour Court.

When will this court intervene in a judgment of the National Labour Court?

36. The respondents argued several times that we should not intervene in the ruling of the National Labour Court, for this is not an appropriate case for intervention. Only recently we reemphasized that:

‘We do not sit as a court of appeals on the judgments of the Labour Court, and therefore this court will not consider petitions that are manifestly of an appellate nature, and it will usually consider intervening in the rulings of the National Labour Court when two conditions are fulfilled… i.e., the existence of a significant mistake of law and the existence of considerations of justice that require our intervention…’ (see, for fuller treatment, HCJ 3679/94 [1], at p. 584, where the ruling in Hativ v. National Labour Court [10] was upheld).

Counsel for the petitioners is aware that labour law is the expertise of, and within the exclusive jurisdiction of, the Labour Court, and the intervention of this court in their decisions is limited, exceptional and requires cautious treatment. Nonetheless, their opinion is that in the present case, if the innovative ruling in the judgment of the National Labour Court continues to exist, a material mistake of law with regard to norms that should be applied to the issue of the ‘political strike’ will become entrenched, and this is a very important issue that reaches the foundations of collective labour law and collective labour relations.

This position has merit. The question of the ‘political strike’ raises, as stated, questions that reach the foundations of collective labour law, and yet many aspects of it are vague and unclear. The rulings on this subject, both those given by the Labour Courts and those found in judgments issued by this court, are few, and they relate to the special circumstances of one case or another. Therefore there were reasons for the National Labour Court, but also for this court, to consider this question in depth, with all its fundamental aspects.

When there exists a real, substantial difference of opinion on this issue, which is innovative, multi-faceted and of general application, the binding law ought to be determined by us:

‘For we should remember this: the ultimate responsibility for the development of case-law within the framework of the law is entrusted to the highest and final instance in the court system, namely the Supreme Court’ (A. Barak, ‘The High Court of Justice and the Labour Court — An explanation from the viewpoint of Jurisprudence’, The Bar-Niv Book — Selected Articles in Labour Law, Ramot, A. Barak eds., 5747, 103, 116).

In the words of Justice Cheshin in HCJ 1520/91 Wilensky v. National Labour Court [11], at p. 519:

‘This court, in which we sit, is the one that bears the burden and the responsibility, and if we do not speak succinctly and clearly, we will not be able to absolve ourselves by passing the responsibility onto others by relying on the intention of the legislator. We are the guarantors — and we are expected to determine the law.’

See, for fuller treatment and comparable cases: HCJ 3679/94 [1], supra; HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv-Jaffa Regional Labour Court [12], at p. 19; HCJ 289/79 Israel Ports Authority v. National Labour Court [13], at p. 159, etc..

Conclusion

As stated above, I have determined that the essence of the strike at issue is mainly a protest by Bezeq employees against a general, socio-economic policy, which is directed at on opening up the Israeli economy to competition and privatization. This policy is legitimate and even desirable. It does not constitute direct intervention in the freedom of negotiations or the employment conditions of the employees and it is truly concerned with the general public interest.

Where the sovereign decides that social and economic conditions justify changes in economic policy, whether by means of privatization of public services or by divesting certain bodies of their monopoly, we must recognize its right and authority to implement such a policy. The strike of the employees who dispute this policy because of an unfounded fear that their rights as employees will be affected may, at most, be classified as a short-term, quasi-political protest strike, but nothing more.

37. For these reasons, the petition has merit and we grant it. We are making the show cause order absolute, in the sense that we are reinstating the outcome which the Regional Labour Court reached in its judgment, but for the above reasons.

In the circumstances of the case, there will be no order for costs.

 

 

Justice M. Cheshin

1.    I agree, but I thought I should raise two points.

First point: classification

2.    The needs of society and the methods of governing the modern State — whether in relations between the State and the individual, or between individuals inter se — present us with social and economic conditions that refuse to fit into the legal models of the past. Models used in the past to decide legal disputes can no longer be applied in their old form, and legal classifications that were once all-embracing are collapsing and falling. This is not unprecedented. This phenomenon is encountered in every branch of law.

Only recently we were required to deal with the institution of the cooperative house, and we said that it was difficult to fit it into the traditional classifications of property law (see ALCA 7112/93 Tzudler v. Yosef [14], at p. 562):

‘The cooperative house (which is called “condominium” in some jurisdictions) is an invention of modern law, and it originates in the physical and social conditions of modern society. From the viewpoint of traditional property law, the cooperative house is a kind of hybrid: the “apartments” in the cooperative house are owned separately… and alongside these the “common property” is jointly owned by all the owners. The provisions of joint ownership of the general law do not apply to the common property in the cooperative house… and the provisions of the chapter in the law on cooperative houses are unique to cooperative houses. The arrangement provided by law for the cooperative house restricts the right of the apartment owners to act both with regard to the common property and with regard to the apartments that they own, and in this we can see the normative uniqueness of the cooperative house and the arrangements that apply to it… Indeed, the cooperative house is an institution that is sui generis, which is in some ways like one thing and in other ways like another, and it adamantly refuses to fit into any of the traditional models of property law. Moreover, the cooperative house refuses to be classified only in property law, and it has elements that go beyond property law. These creative elements in the cooperative house — elements that go beyond property law — include, inter alia…’

An example which is closer to the matter at hand may be found in the traditional distinction between private law and public law. This distinction has, to a large degree, been blurred recently. With respect to certain legal issues, its value has greatly diminished, and its strength has almost been depleted. In the words of Justice H. Cohn in HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [15], at p. 2109:

‘… in the national and public economy of today, there is no longer any practical benefit in the accepted distinction between the commercial or civilian acts of any authority of the State or a local authority, and their executive or public acts.’

See also HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [16].

3.    This is also the case in the matter before us, namely, with regard to the traditional dichotomous classification of the strike as either an  ‘economic strike’, within the narrow field of employee-employer relations, or a  ‘political strike’ (if this is indeed a ‘strike’). For reasons that we shall not consider at length (which include the ever-increasing intervention of the State in the conditions of economic life, and the greater awareness of civil rights, and these are perhaps the main reasons), the courts, academics and practitioners in the field of social sciences have found that the traditional classification can no longer provide proper solutions for social and economic conditions, which life and the development of law in a modern State have shown us. This unsatisfactory nature of the traditional models naturally led to a need to try and find new models, whether by improving the existing models or by designing new models that fit the needs of our times. Apparently we are currently in a period of transition, from the model of the past to the model of the present. This leads to the various proposals for new (or reconstituted) models, and this leads to different opinions among academics and lawmakers. As long as we have the comforting protection of a universally accepted classification, the resolution of issues may appear simple and clear, and resolving disputes may appear to be routine (even if it is not so). But during a transition stage from one period to another, nerve-endings are exposed, the search for creative elements that transcend the law becomes urgent and vexing, and disagreements between opposing outlooks are revealed with increasing intensity.

4.    My colleague suggests that we adopt the remarks written by Professor Raday with regard to the issue of ‘quasi-political’ strikes, and he goes on to mention in the same context the remarks of Professor Ben-Israel. The comments of these two authorities — each in her own way — appear beneficial and useful as models for examination and determination, but I believe that we should take care not to adopt one model only, a model that may provide us with a fitting solution for one set of facts, but may be ineffective with respect to another set of facts (we note that a  ‘quasi-political’ strike is, by definition, supposed to give expression not (only) to the right to work and earn a livelihood, but (mainly) to civil rights). In our case, I have not the slightest doubt that the strike of the employees has gone beyond the framework of a strike that should be recognized as legitimate. A strike of the kind that we have seen in this case is capable of dealing a mortal blow to the infrastructure of a democratic society, obliterating fundamental values of social morality and destroying the norms of coexistence. We know where it begins, but who knows where it may end? In this respect, I can only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10], at pp. 703-704, cited by my colleague in paragraph 28 of his judgment.

Second point: the right (or freedom) to strike and human dignity

5.    My colleague states (in paragraph 24 of his judgment) that since the advent of the Basic Law: Human Dignity and Liberty, the right (or freedom) to strike ‘will in the future find refuge in the value of “human dignity” that is enshrined in this Basic Law’. My colleague goes on to say that ‘the focus of our consideration is a liberty that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time’. No one would dispute that the freedom to strike is one of the inalienable assets of the Israeli legal system. I would also agree that the freedom to strike and its status are on an elevated level, equal to that of statute. Notwithstanding, since we do not need to decide this now, I would not say that it is self-evident that the freedom to strike springs naturally from ‘human dignity’ in the Basic Law: Human Dignity and Liberty, and that its status today is that of a constitutional right. In HCJ 453/94 Israel Women’s Network v. Government of Israel [17], our colleague, Justice Zamir, says the following at p. 536 {468}:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that recognize many aspects of the Basic Law. This is particularly true with regard to the right to dignity. The same is true of law books. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, supposedly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it”.

I would like to restrain myself, in this context, from obiter dicta that find their way between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a binding part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of “do not raise or disturb it until it is required”.’

In that case, the court considered the principle of equality, and Justice Zamir thought that it was possible to decide the dispute that arose between the litigants without also deciding that ‘the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty as part of the value of human dignity, and it has, therefore, a super-legislative status’ (ibid.). This was true with respect to the principle of equality, and it is also true, in my opinion, with respect to the freedom to strike in our case. Let the remarks of Justice Zamir be heard as if they sprung forth from my lips.

 

 

Justice Ts. E. Tal:

I agree with the judgment of the honourable Justice D. Levin. Like my colleague, Justice Cheshin, I too wish to emphasize the harm to the foundations of democracy that results from a strike that is not an economic strike against an employer, whereby a group of workers tries to bring the legislature to its knees by force. I would leave undecided the question whether the right to strike is currently enshrined in a basic law.

 

 

Petition granted.

10 Nissan 5755.

10 April 1995.

 

 

[*]   General Federation v. Bezeq, the Israel Telecommuncation Corporation Ltd IsrLC 25 367.

[†]           Ibid., at p. 377.

[‡]           Ibid., at pp. 378-379.

[§]           Ibid., at p. 386.

[**]         IsrLC 25 367.

[††]         Ibid., at p. 376.

[‡‡]         IsrLC 25 367.

[§§]         Ibid., at p. 390.

HCJ 6924/98

Association for Civil Rights in Israel

v

1.  State of Israel

2.  Minister of National Infrastructures

3.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[9 July 2001]

Before Justices M. Cheshin, I. Zamir, D. Beinisch

 

Objection to an order nisi issued March 14, 1999.

 

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

 

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order nisi is to be made absolute in the sense that the respondents are ordered to weigh, in accordance with what was detailed in the judgment, whether it is possible to appoint an additional Arab as a member in the Israel Lands Council.

 

 

Basic Laws cited:

Basic Law: Israel Lands ss. 1, 2.

Basic Law: Human Dignity and Liberty s. 1.

 

Legislation cited:

Israel Land Administration Law, 5720-1960, ss. 1, 2, 4A.

Israel Lands Law, 5720-1960.

Israel Land Administration Law (Amendment) 5755-1995, s. 5.

Government Corporations Law 5735-1975, ss. 18A, 18A1, 60A

Women’s Equality of Rights Law 5711-1951.

Equal Pay for Female and Male Employees Law, 5724-1964.

Equal Employment Opportunities Law 5748-1988, s. 2.

Authority for Advancement of Women Law, 5758-1998.

Civil Service Law (Appointments), 5719-1959, ss. 15A, 15A (b), 15A (b) (2).

National Insurance Law [Consolidated Version] 5755-1995, ss. 20, 22.

Employment Service Law, 5719-1959, s. 42.

Patient’s Rights Law 5756-1996, s. 4.

 

Draft legislation cited:

         Draft Proposal for the Israel Land Administration Law, 5720-1960 

         Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.

         Draft Proposal for the Israel Land Administration Law (Amendment no. 3), 5758-1998.

         Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.

         Draft Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.

          

Israeli Supreme Court cases cited:

[1]      HCJ 6698/95 Ka’adan v. Israel Land Administration Authority, IsrSC 54(1) 258. [2000] IsrLR 51.

[2]      HCJ 453/94 Israel Women’s Network v. Government of Israel, IsrSC 48(5) 501; [1992-4] IsrLR 425.

[3]      HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, IsrSC 52(3) 630.

[4]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 54(2) 164; [2000] IsrLR 133.

[5]      HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority, IsrSC 25(2) 741.

[6]      HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[7]      HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa, IsrSC 42(2) 309.

 

Israeli books cited:

[8]      Y. Weisman, Property Law – General Part (1993).

[9]      U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them (1992).

[10]    I. Zamir, Administrative Power (Volume A. 1996).

 

Israeli articles cited:

[11]    D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ Iyunei Mishpat 21 (1998) 613.

[12]    I. Zamir, M. Sobel ‘Equality before the Law,’ Mishpat U’Memshal E (2000) 165.

[13]    F. Radai, ‘As to Affirmative Action’ Mishpat U’Memshal C (1995-1996) 145.

[14]    A. Rubinstein, ‘On the Equality for Arabs in Israel’ Kiryat Hamishpat A (2001) 17.

 

Foreign books cited:

         [15] D. Kretzmer The Legal Status of the Arabs in Israel (Boulder, 1990).

 

Other:

[16]    State Comptroller – Annual Report 44 for the Year 1193 and for the Accounting Year 1992 (1994).

[17]    Declaration of the Establishment of the State of Israel.

[18]    Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services (1989).

[19]    The Regime of the State Israel – Book of Sources (Y. Galnor, M. Hafnung eds., 1993).

 

For the petitioner – Hadas Tagari.

For the respondents – Osnat Mendel, Head of High Court of Justice Department, State Attorney’s Office.

 

 

JUDGMENT

 

Justice I. Zamir

1.    The Association for Civil Rights in Israel (hereinafter: ‘the petitioner’) asks the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance (hereinafter: ‘the respondents’) to nullify the appointment of some of the Government representatives in the Israel Lands Council and to appoint in their place, Arabs as members of the Council.

The Law

2.    The law which establishes the Israel Lands Council (hereinafter: ‘the Council’) is the Israel Land Administration Law, 5720-1960 (hereinafter: ‘the law’).  Section 3 regulates the appointment and the role of the Council in stating:

‘The Government will appoint an Israel Lands Council which will establish the land policy according to which the Administration will operate, will supervise the actions of the Administration, and will approve its budget proposal that will be established in the law’.

The composition of the Council was established in section 4A as follows:

‘4A(A) The Minister, who will be the chairperson, and members whose numbers will not be less than eighteen and not more than twenty four, which the Government will appoint, by proposal of the ministers, will serve in the Council, as detailed below:

(1)  Half of the Council members will be on behalf of the Government, and half will be on behalf of the Jewish National Fund and by its proposal;

(2) (a)  At least half of the members on behalf of the Government will be State employees, holding senior positions in the government offices connected to the matter, and the remainder will be individuals from academia and representatives of the public;

(b)  The members on behalf of the Jewish National Fund will be members of the Board of Directors, employees of the Jewish National Fund or individuals from academia; the Jewish National Fund is also permitted to propose one representative on behalf of the Jewish Agency;

(3) Members of the council who hold positions not in civil service nor in the service of the Jewish National Fund, and who in these positions have an interest in land policy (hereinafter – interest holder in land policy), will not make up more than a third of the number of the Council members, and of them no more than one half will hold positions in the agricultural sector.

(B) The Government will be given details as to the qualifications of the candidates, including their curriculum vitae, their education, their dealings in the past and present, their experience, and any other detail which is substantive and relates to the matter.

(C)  The Minister, with the approval of the Council, will appoint a substitute for the Chairperson from among its members.

(D)  Notice as to the appointment of the members of the Council will be published in the register.

 

Additional clauses in the law establish provisions as to limitations on appointing members to the Council, the period of tenure, the conclusion of the tenure, the appointment of alternates for a member of the Council, protocols in the Council and more.

The minister who today serves as the Chairperson of the Council is the Minister of National Infrastructures.

The two ministers that according to section 4A(a) of the law propose to the Government the names of the candidates for appointment to the Council are today the Minister of Finance and the Minister of National Infrastructures.

3.    The law also establishes the Israel Lands Administration (hereinafter: ‘the Administration’).  Section 2 of the law establishes that the Government will set up the Administration which will ‘administer the Israel Lands’; that it will appoint the Director of the Administration and that the Administration employees will be civil servants.  The authority of the Administration is sweeping authority that is almost not regulated by the law.  However, section 4 of the law establishes that the Director of the Administration will submit to the Council a report of the activities of the Council at least once a year, and it is clear that the Administration must act according to the policy established by the Council, and that it is subject to the supervision of the Council.  See section 3 of the law, supra, paragraph 2.

As to the Administration see HCJ 6698/95 Ka’adan v. Israel Land Administration Authority [1] (hereinafter: ‘the Ka’adan case’) at pp. 269-272.

4.    Israel Lands which are subject to administration by the Administration, were defined in the Basic Law: Israel Lands.  Section 1 of the basic law establishes that Israel Lands are ‘the lands in Israel, of the State, of the Development Authority or of the Jewish National Fund.’  This section further establishes that the ownership of Israel Lands will not be transferred, whether by sale or by any other means.  However, section 2 of the basic law, removes from the application of the prohibition types of lands and types of transactions which have been established for this purpose in the law.  Such transactions were established in the Israel Lands Law, 5720-1960.  As to the Basic Law: Israel Lands and as to Israel lands in general see Y. Weisman, Property Law – General Part [8], p. 195 and on.

In actuality, Israel Lands include more than 90% of all the lands in the State.  See Weisman in his book supra [8] at p. 193.  If so, it is clear that the land policy determined by the Council and the oversight of the Council over the Administration has enormous influence over all that relates to development of the Land both from a national and from a private aspect.  See D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ [11].  From here it is also clear that there is great importance to the composition of the Council.

Composition of the Council

5.    The law that established the Council and the Administration in 1960 – did not state a word about the composition of the Council. How so?  As stated in the explanatory notes to the Draft Proposal for the Israel Land Administration Law, 5720-1960, at that time the covenant between the State and the Jewish National Fund (hereinafter: ‘JNF’), was about to be signed, and it contained provisions as to the Council and the Administration (hereinafter: ‘the Covenant’).  The legislator made due with the fact that the composition of the Council would be coordinated in the Covenant.  And indeed, that Covenant that was signed on November 28, 1961 and published in the Yalkut Pirsumim 5728-1968, no. 1597, arranged the composition of the Council.  According to the Covenant, the number of the members in the Council would be thirteen, and half less one would be appointed by proposal of the JNF.

Over the years the number of Council members was increased on three occasions, until it reached twenty-seven.  The number was increased, as stated by the State Comptroller, without the need for this being clarified and with the numerical relationship between members from the JNF and other members being maintained.  See State Comptroller – Annual Report 44 for the Year 1993 and for the Accounting Year 1992 [16] at pp. 224-225.

6.    The situation in fact was not satisfactory.  It raised criticism on the part of the State Comptroller.  See said Annual Report of the State Comptroller [16] at p. 221 and on.  Following the report of the State Comptroller a private Draft Law (on behalf of three members of Knesset) was submitted to the Knesset which was primarily intended to arrange the composition and the functionality of the Council:  Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.  In the explanatory notes to the Draft Law (p. 179) it was stated:

‘The actions of the Administration in all that relates to Israel lands take place via an internal legislative body which is the Council of the Administration.  This Council operates by power of undefined arrangements, primarily internal, and in a manner which deviates from the proper order and the proper administration.

In report 44 of the State Comptroller, criticism was expressed . . .  in that report the State Comptroller revealed that in fact a majority that is connected in one way or another to the agricultural sector in actuality controls the Council and its various committees.  Indeed, the law does not relate to the need to give expression in the Council to one sector or another, but it would be preferable, if there were not in the Administration Council a majority for a specific economic group.’

On the basis of this Draft Law, the Israel Land Administration Law (Amendment) 5755-1995 (hereinafter: ‘the amending law’) was passed.  The amending law added section 4A to the law, which regulates the composition of the Council, and additional sections which related to the Council.  See supra paragraph 2.  In accordance with section 5 of the amending law, the period of tenure of the Council members ended in February 1997, and the Government was meant to appoint new members to the Council in accordance with the amending law.

7.    Looking toward the appointment of new members to the Council the petitioner, in February 1997 approached the respondents in a letter.  In the letter, it said, inter alia, as follows:

‘The actions of the Council have great impact over various sectors in the population, and in fact the composition of the Council, has to date reflected the interests of various sectors of the public.  However, this representation did not apply as to the Arab population, and as said today not even one Arab member has been included in the Council.  Therefore, we turn to you with a request that in the Council that is to be appointed there will be appropriate representation of Arab members, of appropriate professional experience and qualifications.

We are of the view that the situation that has existed to date, according to which there is no representation for the Arab population in the body that determines the policy of the Administration, is illegitimate at its core.  The Arab population which is about a fifth of the State’s population has unique interests on the subject of lands, interests which are not represented by other entities.  The principle of equality necessitates that this population will be granted appropriate representation in the Israel Lands Council.  Half of the members of the Council – twelve out of twenty four – are representatives of the government, of which at least six are senior civil servants, and the rest (up to six) are individuals from academia and representatives of the public.  This diverse composition that the law established, and in particular the membership of about six members who are individuals from academia and representatives of the public, was intended to enable flexibility in determining the composition of the Council, flexibility that would ensure proper representation for diverse publics.’

8.    On March 21 1997, the Government decided to appoint eighteen members to the Council: of them nine on behalf of the Government, all civil servants who represent various government offices, and nine on behalf of the JNF.  Among the members that were appointed there was not a single representative of the public nor was there a single Arab member.

On June 15, 1997 Dan Meridor, the then Minister of Finance wrote to the petitioner and said as follows: ‘I am of the view that there is nothing to prevent the appointment of Arab citizens to the Israel Lands Council.  Your proposal will be taken into account in my considerations, at the time of making a decision as to the inclusion of additional [members] to the Administration Council.’

In the meantime, as arises from the pleadings, five additional members have been appointed (at an unknown date), of which three are on behalf of the Government and two on behalf of the JNF, and among them there is not one Arab member.

Since the quota of members on behalf of the Government as established in section 4A of the law was filled, no available space remained for an Arab member in the Council.  ‘There is therefore no other recourse’ so wrote the legal counsel of the Ministry of National Infrastructures on July 26, 1998 to the petitioner ‘but to amend the law in order to create more spaces for representatives of the public.’

9.    On June 15, 1998, a government sponsored draft law was published which proposed to increase the maximum number of members in the Council from twenty-four to thirty: Draft Israel Land Administration Law (Amendment no. 3), 5758-1998.  In the explanatory notes to this draft law (p. 374) it was stated: ‘. . . with the goal of ensuring representation on behalf of the public in the Israel Lands Council, it is proposed to establish that the number of representatives on behalf of the Government who are civil servants will  not be greater than twelve.’

The legal counsel in the Ministry of National Infrastructures announced to the petitioner that the Minister intends to act, after the draft law becomes law, to appoint a representative from among the Arab public out of the quota of representatives of the public in the Council.

However, the draft law, although it passed a first reading in the Knesset (on July 7, 1998), was never submitted for a second or third reading, and it is impossible to know if and when it will be made into law.

The petition

10.  This being so, the petitioner filed the petition to this Court, in which it requests that the Government nullify the appointment of some of the Government representatives on the Council and appoint in their stead Arab members in a proportion which constitutes an appropriate representation of the overall Council members.

After an initial hearing on the petition the Court issued an order nisi (on March 14, 1999).  The response to the petition was submitted in two levels: the level of principle and the level of practice.  On the level of principle, the respondents claimed that the Government on whose behalf half of the members are appointed must appoint senior civil servants who will represent the government offices which have a connection to the matter and will act to implement the land policy of the Government.  Moreover, the respondents claim that even if the Government appoints representatives of the public to the Council, it is not clear that it must give ‘appropriate representation’ to the Arab population.  In any event, according to their claim, there is no need for the Court to make a determination on this question in the level of principle, as the question is standing before a resolution in the practical level.

In the practical level, the respondents gave notice that the government intends to appoint an Arab member to the Council in the near future even if the Draft Israel Land Administration Law (Amendment no. 3) (supra paragraph 9) is not passed.  In the view of the respondents, the appointment of an Arab member to the Council out of the maximum quota of six representatives of the public is an appropriate representation of the Arab population in the Council.

11.  Indeed, after a time, the Government decided (on May 14, 1998) to appoint Mr. Salah Suleiman as a representative of the public who represents the Arab sector in the Council.  However, following the request of the Attorney General to conduct a re-examination of the question of Mr. Suleiman’s political affiliation the Government decided to limit the appointment to a period of about half a year.  Later (in the month of January 2001) the Government extended the appointment for an additional half a year until the month of July 2001.

In a supplementary notice by the State Attorney’s office (from April 5, 2001) it was stated that the Attorney General directed the legal counsels from the various government offices which relate to the matter to prepare for the appointment of an Arab member to the Council, who would replace Mr. Suleiman, in the month of July, 2001.  Even at the time of the hearing it was said to the Court by the counsel for the respondents that the Government intends to appoint an Arab member to the Council when the period of tenure of Mr. Suleiman ends.

Based on what has been stated, the Court presumes that when the time comes an Arab member will be appointed as a representative of the public in the Council in the place of Mr. Suleiman.

12.  The respondents, who object to the claim that they have a legal duty to give appropriate representation to the Arab population on the Council, are of the opinion that even if there is such a duty imposed on them they have fulfilled it by appointing one Arab representative of the public to the Council.  Is this indeed so?  The question what the duty to give appropriate representation necessitates where such a duty is imposed is a difficult question.  The answer depends to a great extent on the context, including the statutory provisions, the identity of the entity, the essence of its role, and the other circumstances of the given case.  See HCJ 453/94 Israel Women’s Network v. Government of Israel (hereinafter: ‘the first Israel Women’s Network case’) at pp. 527-528.

However, be the duty to give appropriate representation what it may be, in the given case it is clear that the appointment of one Arab member as a representative of the public out of a maximum quota of six representatives of the public on the Council fulfills the duty of appropriate representation of the Arab population among the representatives of the public on the Council.

Therefore it becomes unnecessary to discuss and determine in this petition the question if indeed a duty is imposed on the respondents to give appropriate representation to the Arab population among the representatives of the public on the Council.

13.  The petitioner is not satisfied with the appointment of one Arab among the representatives of the public to the Council.  It claims that the Government has a duty to give the Arab population appropriate representation not only among the representatives of the public but in the Council in its entirety.  In the Council there are twenty four members.  One Arab member is not considered, according to its claim, appropriate representation for the Arab population which makes up about one fifth of the population in Israel.  Therefore, it requests that additional Arab members be appointed to the Council.

Indeed, the petitioner, who is aware that the law requires the appointment of half of the members of the Council on behalf of the JNF, does not ask for the appointment of Arab members on behalf of the JNF.  The explanation for this is, apparently, that the JNF is a Jewish organization which is obligated, by its articles of incorporation to purchase lands for the settlement of Jews in the land of Israel.  However, the petitioner asks for the appointment of additional Arab members on behalf of the Government in order to reach an appropriate representation of the Arab population in the Council.  It claims that such representation is necessitated by the principle of equality.

The question that is before the Court is therefore whether the principle of equality necessitates the appointment of additional Arabs as members of the Council.

Principle of equality

14.  As to the importance of the principle of equality it is no longer necessary to go on at length.  In the words of Justice M. Cheshin ‘It is a first among principles in royalty, head and shoulders above all the other principles.’ HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs (hereinafter: ‘the Second Israel Women’s Network case’) [3] at p. 650.  As to equality in general see I. Zamir, M. Sobel ‘Equality before the Law’ [12]. 

The Court has given a broad meaning to the principle of equality in a large number of decisions and has applied it to almost every type of distinction between people on the basis of irrelevant considerations.  Thus, for example, a distinction between people who seek to receive a subsidy based on the place they live or the date of application may be considered a violation of the principle of equality.  However, the original meaning of the principle of equality, and it appears that it is also the precise definition, is a narrower definition.  In this meaning, which is also accepted in other countries, the principle of equality relates to a limited list of defined grounds which can be called the classic grounds of equality, and Justice M. Cheshin calls them generic grounds of equality.  These are for example, religion, race, nationality and gender: every person is entitled to equality without distinction as to religion, race, nationality and gender.  The principle of equality in this sense, as distinguished from the broad sense, is considered in many states, and is worthy of being considered, a constitutional right.  Not without a reason did the Declaration of the Establishment of the State of Israel [17] note the obligation of the State to keep up ‘total social and political equality of rights for all its citizens without distinction as to religion, race and gender.’

Violation of the principle of equality in the narrow sense is considered particularly severe, and so said Justice M. Cheshin in the Second Israel Women’s Network case [3] (at pp. 658-659):

‘An additional example of generic discrimination [in addition to the discrimination against a woman for being a woman. I.Z.] is the discrimination against a person for the color of their skin or for their race.  Generic discrimination, as has already been said, is discrimination which mortally wounds human dignity.’

See also the Ka’adan case [1] (supra paragraph 3) at pp. 275-276.

15.  Such is also discrimination against an Arab for being an Arab, and it is the same if the discrimination is based on religion or nationhood.  It is a violation of the principle of equality in the narrow sense.  Therefore, it carries particular severity. 

The principle of equality in this sense is the soul of democracy.  Democracy demands not only one vote for one person in elections, but also equality for all at all times.  The real test for the principle of equality is anchored in the treatment of the minority: religious, national or other.  If there is no equality for the minority there is no democracy for the majority.

This is also so as relates to equality toward Arabs.  However, the difference between the question of equality toward Arabs and the question of equality toward others is not to be ignored.  Thus, for example, is the question of equality toward women.  This question is not unique to the State of Israel.  It is universal.  Discrimination against women in the State of Israel like in other states stems primarily from prejudicial opinion.  The struggle against such opinion has been taking place for some time with determination in Israel, based on broad social consensus, and it is achieving a significant amount of success.  So too, as an additional example, is the struggle for equality of people with disabilities.  This struggle, as well, takes place on a broad foundation of understanding and empathy.  These struggles do not awaken, at least in an open realm, fundamental resistance or emotional recoil.  This is not so with the question of discrimination against Arabs.  Indeed in the legal realm there is no fundamental difference between the question of equality toward the Arab population and the question of equality toward another group.  In that realm the question of equality is the question of equality toward a religious or national minority, be it what it may be.  This too is a universal question and it too has a universal answer.  The answer is that a religious or national minority, and especially such a minority, is entitled to equality.  However, in the practical realm in the State of Israel there is a special significance to the question of equality toward Arabs.  This question is connected to a complex relationship that has developed between Jews and Arabs in this country over a long period of time.  Despite this, and perhaps particularly because of this, there is a need for equality.  The equality is vital to life together.  The good of society and in the real calculation the good of every individual in society necessitate nurturing the principle of equality between Jews and Arabs.  In any event, this is the dictate of the law, and therefore it is the duty of the Court.

And President Barak said as follows in the Ka’adan case [1] (supra paragraph 3, at pp. 282).

‘The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter home (see the Law of Return-5710-1950), but once a person is lawfully at home, he enjoys equal rights with all other household members. . .  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state.’

16.  According to the principle of equality there is, inter alia, a duty to allocate State resources in an equal manner to Arabs as to Jews. See HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [4] (hereinafter: ‘the Adalah case’).  Civil service jobs also constitute resources of the state.  These are particularly important resources, as they carry with them the possibility of impact on many issues, including on the distribution of monetary and other resources.  Therefore, the principle of equality necessitates that state jobs are allocated without discrimination between Jews and Arabs.  The meaning is that a person’s appointment to a state job is not to be prevented just because he is an Arab.

However, does this also mean that the Arab population is entitled to appropriate representation in civil service and associated entities, such as, for example, the Israel Lands Council?

The duty of appropriate representation

The principle of equality in its common meaning, both the narrow meaning and the broad meaning, does not necessitate appropriate representation.  Indeed there is a connection between the principle of equality and appropriate representation, but there is also a difference between them.  The principle of equality in its common meaning is fundamentally a passive concept: it may prohibit a person from taking into account irrelevant considerations such as religion, nationality, race or gender.  On the other hand appropriate representation is at its core an active concept: it may require a person to act to reach appropriate representation, including taking into account considerations such as religion, nationality, race or gender as a relevant consideration.

The essence of appropriate representation is expressed in the first Israel Women’s Network case [2] (supra paragraph 12).  Section 18A of the Government Corporations Law 5735-1975 stood at the center of this case.  And this is the language of the section:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both genders.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the gender that is not properly represented at that time on the board of directors of the corporation.’

In the decision, Justice Mazza clarified that the duty established in section 18A to give proper expression to representation of both genders, is a duty of affirmative action.  Affirmative action is generally directed at correcting a social distortion that has harmed equality.  In said case it stems from the reality of sub-equality in the representation of women in boards of directors of government corporations and is directed at advancing equality between the genders on these boards of directors.  Therefore, said Justice Mazza, affirmative action, while it appears to harm equality because it preferences members of a certain group on the basis of considerations of religion, nationality, race, gender and the like, in fact is derived from the principle of equality and serves as a means to achieve equality.  As to affirmative action see F. Radai, ‘As to Affirmative Action’ [13]; Zamir and Sobel, in said article [12] at pp. 200-204.

18.  Is there a place to analogize the first Israel Women’s Network case [2] and the present case?  In this case, like in the first Israel Women’s Network case [2] the petitioner is not asking the court to direct the respondents to act in the appointment of members according to the common meaning of equality, as the petitioner is not making the claim that the Government rejected a candidate for membership in the Council because he is an Arab.  But what? The petitioner is requesting that the Court order the respondents to act in appointment of members to the Council by way of affirmative action toward the Arab population.  The Court so ordered in the first Israel Women’s Network case [2] since women had weak representation in the boards of directors of government corporations; in the petitioner’s opinion, it is to be similarly ordered in this case, since Arabs have weak representation in civil service, and included in this in the Council.

Despite this, there is no room for analogy between the first Israel Women’s Network case [2] and the present case.  In the first Israel Women’s Network case [2] a duty was imposed on affirmative action in order to advance the appropriate representation of women in an explicit statutory directive, meaning in section 18A of the Government Corporations Law.  On the other hand in the present case there is no such an explicit provision which requires appropriate representation of Arabs in the Council.  There is therefore no statute that provides a foundation for the petitioner’s claim that there is a duty to provide the Arab population appropriate representation in the Council.

19.  The petitioner claims, however, that the duty to give the Arab population appropriate representation in the Council does not require an explicit statutory directive, but it exists by power of the principle of equality.  The basis for this claim is the decision in the second Israel Women’s Network case [3] (supra paragraph 14).  How is the second Israel Women’s Network case [3] different from the first Israel Women’s Network case [2]?  In the second Israel Women’s Network case [3] the Court applied the duty of appropriate representation to women even without an explicit statutory directive.

In the second Israel Women’s Network case [3] the appointment of a deputy to the Director of the National Insurance Institute was discussed.  At that time the Director of the National Insurance Institute had eight deputies including a woman who was on vacation, apparently for the purpose of retirement.  After the position of one of the deputies was vacated the Minister of Labor and Welfare decided to appoint a certain person, a man and not a woman, to the position that was vacated, for a trial period.  The petitioner asked that this appointment be nullified and that the minister be obligated to appoint a woman to the position that was vacated in order to advance the representation of women among the Deputy Directors of the National Insurance Institute.

The Court examined statutes and case law as to the principle of equality of the genders, including the requirement of appropriate representation of women in civil service, and the applicability of statutes and case law to the management of the National Insurance Institute.  As the Court noted, at first came the Declaration of the Establishment of the State of Israel [17], which declared the obligation of the State to fulfill complete political and social equality of rights without difference as to religion, race and gender.  Later came the Women’s Equality of Rights Law 5711-1951, and statutes which required equality between the genders in the work area, including, Equal Pay for Female and Male Employees Law, 5724-1964, Equal Employment Opportunities Law 5748-1988,  and Authority for Advancement of Women Law, 5758-1998.  Alongside the statutes the Court ruled clearly that every administrative authority is required, even without a statutory provision, to fulfill the equality between genders.  Against this background Justice M. Cheshin (Ibid [3] at p. 658) said as follows:

‘Statutes we have brought and case law we have surveyed have seemed to us as points of light, and the light is the light of equality, equality for man and woman in each and every matter.  We will go from one point of light to another, and the doctrine of equality will reveal itself before us in its full glory.’

On this foundation of statutes and case law against discrimination on the basis of gender statutory provisions grew which required affirmative action in order to advance appropriate representation of women in public service.  Section 18A of the Government Corporations law requires ‘appropriate expression’ for the representation of women in the Boards of Directors of government corporations, and section 60A of this statute requires that it will also be so with certain entities (detailed in the addendum to the law) that were established by statute, such as the Council for Film Critique and the National Council for Planning and Construction.  Section 15A of the Civil Service Law (Appointments) 5719-1959, requires ‘appropriate expression’ for the representation of women ‘among the employees in civil service’.  This requirement also applies to the appointment of employees to local councils.  See ibid [3] at p. 661.  And since section 22 of the National Insurance Law [Consolidated Version] 5755-1995 establishes that appointments of employees of the Institution will be according to the rules established for appointment of civil servants, the duty of appropriate representation of women, as established in section 15A of the Civil Service Law (Appointments), also applies to the appointment of employees in the National Insurance Institute.  Justice M. Cheshin summarized the statutory provisions and said (at pp. 662-663):

‘These representation directives were not intended only to instruct about themselves.  They came to instruct about a new direction in the Israeli legal system, a direction which we have not recognized or known in the past.  A new and good wind has begun to blow among Israeli statutes. . .  We have likened legal provisions which deal with equality for women and prohibit their discrimination as points of light.  We have drawn a line between all the points of light and here a doctrine in the law of the land has revealed itself before us, a doctrine whose force goes beyond the particular legal provisions.  Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created, whose ramifications reach far. . .  all the representation directives, despite the differences between them, constitute – each to itself – a crystallization of that matter and express the same core principle.  And the principle is: the provision of appropriate representation to women and men in public bodies as a need made necessary by the principle of equality.’

However, as it turned out, the legal provisions as to appropriate representation for women, while they cover the majority of the civil service, they leave islands here and there that are not covered.   This is so, among others, in the National Insurance Institute.  Indeed the duty of appropriate representation for women, as determined in section 15A of the Civil Service Law (Appointments) applies to the appointment of employees of the Institute, as said in section 22 of the National Insurance Law [Consolidated Version]; however, ‘surprisingly’, in the words of Justice M. Cheshin, this duty does not apply to the appointment of the management of the Institute, meaning the Director, the Assistant Director, and the deputies, that according to section 20 of the law are appointed by the Minister.  See ibid [3] at pp. 646,648.  Why and how? There is no explicit or clear answer to this.  Absent a reason the answer that apparently appears is that this is none other than a happenstance omission, meaning a deficiency in the law and not negative regulation.  This being so the power of the doctrine as to appropriate representation of women in public service is great enough to fill in the blank and also apply itself to the management of the Institute for National Insurance.  And indeed this is how the Court ruled in the second Israel Women’s Network case [3].

Appropriate representation for Arabs

20.  Therefore, is there room to make an analogy between the second Israel Women's Network case [3] and the present case?  At the time the petition was filed the answer, apparently, was in the negative.  The statutory provisions and case law which required equality for women, and in particular appropriate representation in public service via affirmative action, were several fold more numerous and heavier than the statutory provisions and case law which required equality for Arabs.  The cumulative weight of the statutory provisions and case law which required equality for women gave a basis to say, as the Court said in the second Israel Women's Network case [3], that ‘a doctrine whose force goes beyond the particular legal provisions’ (Ibid, at p. 622) had been created as to appropriate representation of women in public entities.  See supra paragraph 19.  On the other hand the cumulative weight of statutory provisions and case law which required equality for Arabs was much smaller.  In this situation there was not, apparently, a basis to say that a similar doctrine was created as to the appropriate representation of Arabs in public entities.

21.  Even if this is the case, claims the petitioner, in any event there is a need for a doctrine as to appropriate representation of Arabs in public entities, as the Arab population suffers generic discrimination which violates human dignity.  The petitioner presents data: although Arabs constitute close to a fifth of the total residents in the State, the proportion of Arab employees in civil service is only approximately 4.2%; among the senior employees in civil service the proportion of Arab employees is only about 1% and there are government offices in which the proportion of Arab employees is even lower.  The petitioner relies for this matter on various sources.  See, inter alia: U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them [9], and in particular at pp. 142-143 as well as D. Kretzmer The Legal Status of the Arabs in Israel [15].

The respondents have not presented (apparently because they did not see a need to present from a legal standpoint) data as to the relative proportion of Arabs in civil service.  But they also did not deny the data that the petitioner presented.  Indeed, words of truth are apparent in the petitioner’s claim.  In the Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services [18] from the year 1989 (which was appointed by the public-professional committee, known as the Koverski Committee, for overall examination of the civil service and of entities supported by the State budget) data was presented as to the relative proportion of minorities employed in eight government offices.  It was found that the proportion of minorities of the overall employees was approximately 5%, and apparently even lower.  The conclusion, as stated in the report, is ‘that the proportion of minorities employed in civil service is generally low and at times even very low’.  See select sections of this report in the book The Regime of the State of Israel – A Source Book, at p. 346.

Recently, Mr. Elyakim Rubinstein, Attorney General, wrote in a published article that ‘the representation of the Arab minority in civil service and public service is far less than their part in the population, and stands at single digit percentages only,’ and he mentioned a government decision from 1993, following a recommendation of the Koverski Committee, to advance educated Arabs at senior levels of civil service by way of creating job openings exempt from the duty of a tender: A. Rubinstein, ‘On the Equality for Arabs in Israel’ [14] at p. 21.

In the second Israel Women's Network case [3] Justice M. Cheshin stated, (at p. 664) as to the representation of women in public entities that ‘the phenomenon that appears to us is this, that the place of women is missing in public entities to a degree and in circumstances that the laws of statistics would have difficulty explaining without adding to the system the element of discrimination as well’.  Is there no place to say so as well as to the representation of Arabs in public entities?

22.  Be the answer what it may be, and be the explanation what it may be, the situation today is different from the situation that was.  It is different first and foremost because of the growing awareness as to the existing situation and the need to change the situation.  And indeed, lately there has been a change.  The change found expression in moderate improvement of representation of the Arab population in civil service, and it found striking expression in new statutes.  A few years only after the statutory provisions as to appropriate representation of women in public service – section 18A of the Government Corporations Law and section 15A of the Civil Service Law (Appointments) – were passed, the legislator came along and also applied these provisions to the appropriate representation of Arabs.  Following this the great gap that existed in legislation between the duty of equality toward women and the duty of equality toward Arabs in all that relates to representation in public entities was almost closed.  Therefore, it now needs to be examined, against the present day legal situation, if there is a basis to say that a doctrine has been created as to appropriate representation of Arabs in public service similar to the doctrine that was created, as determined in the second Israel Women's Network case [3], as to appropriate representation of women.  What arises from this examination?

23.  Most of the legal sources which require equality for women, including appropriate representation for women in public service, also require in the same breath equality, including appropriate representation, for Arabs.

One can open with the Declaration of the Establishment of the State of Israel [17] which speaks of the responsibility of the State to fulfill complete social and political equality of rights without differences as to ‘religion, race, or gender’.  Moreover, the declaration also called to Arabs in Israel, in the height of the War of Independence, to preserve the peace and take part in building the State on the basis of full and equal citizenship ‘and on the basis of appropriate representation in all its institutions, temporary and permanent’.  It is proper to emphasize: appropriate representation in all its institutions.  As has been ruled, the Declaration represents the ‘I believe’ of the State, and therefore it serves the Court as a source for statutory construction.  Moreover, section 1 of the Basic Law: Human Dignity and Liberty declares that the basic rights of a person in Israel ‘will be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel’.

Indeed, the Court has spoken in many decisions, in which it relied on the principle of equality, in one breath on equality in terms of gender and equality in terms of religion and nationality.  Thus, as one example among many, in HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority [5] at p. 743, Justice H. Cohn stated:

‘. . . it is the law (although for now still unwritten) that any discrimination on the grounds of race, gender, religion, belief, political or other view, or the like, is prohibited to any authority operating by law.’

Accordingly, the court noted the duty of the State to act with equality to Arabs, inter alia, in the allocation of resources of the State.  See lately the Adalah case [4] supra paragraph 15; HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport [6].

24.  Similarly in legislation.  Generally it is common in legislation which requires equality to bind together the prohibition to discriminate on grounds of gender with the prohibition to discriminate on the grounds of religion, race or nationality.  See for example: Employment Service Law, 5719-1959, s. 42; Equal Employment Opportunities Law 5748-1988, s. 2; Patient’s Rights Law 5756-1996, s. 4.

25.  Most important of all, in the present matter, after the legislator saw fit to impose an obligation to advance appropriate representation of women in public service, it saw the need after a few years to impose the same duty toward Arabs.  In March 2000 a private draft law was submitted to the Knesset on this issue: Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.  In the explanatory notes of the draft law (at p. 345) it was said that ‘the number of directors from among the Arab population in Government Corporations is very low’; it was therefore proposed to add to the Government Corporations law a provision which would establish, similar to the appropriate representation of women that was established in section 18A of the law, a duty of appropriate representation for the Arab population.  On the basis of this draft proposal section 18A1 was added to the Government Corporations Law, and this is its language:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of the Arab population.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors from among the Arab population.

(c) For purposes of this section ‘the Arab population’ – includes the Druze and Circassian population’

On October 24, 2000, the Attorney General issued a guideline to the Prime Minister and cabinet members as to the implementation of this section.  See this guideline as an addendum to said article by Rubinstein [14] at p. 29.  Inter alia, the Attorney General states in the guideline as follows:

‘It cannot be denied that the said statutory amendment came against the background of a dearth of appointments from among the Arab population for roles of the said type.  This provision therefore comes to achieve a result that it is appropriate to reach for, in these entities and others, by power of basic rules of equality and fairness, even without this being anchored in Knesset legislation.’

And he concludes the guideline with a call to the Prime Minister and the members of the cabinet to fulfill the duty of appropriate representation according to this provision, inter alia, in order to prevent a ground for disqualifying the appointment.

Does the duty of appropriate representation according to this provision also apply to the Israel Lands Council?  The answer is in the negative.  The Council is not a government corporation, as it is defined in the Government Corporations Law.  Indeed according to section 60A of this law the duty of appropriate representation also applies to entities established by statute, and they are detailed in an addendum to this statute.  However the Council is not counted among the entities detailed in the addendum to the law.  The result is that section 18A1 of the law which requires appropriate representation for the Arab population, does not apply to the Council.

26.  Approximately a year ago the Government submitted the Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.  In the explanatory notes to this draft proposal (at p. 496) it was said as follows:  ‘The Arab population, including the Druze population and the Circassian population in the State, although it constitutes almost a fifth of the State’s population, is represented in civil service only at the rate of about 5% of the totality of the government employees, and among the senior position holders in civil service at an even lower rate.’  Therefore, it was stated in the explanatory notes, in continuation of the legislative trend which found expression in the addition of section 18A1 to the Government Corporations Law, it is proposed to establish, in a statute, provisions as to appropriate representation in civil service for the Arab population.  On the basis of this draft proposal section 15A of the Civil Service Law (Appointments) was amended.  The language of the section today is as follows:

‘(a)  Among the employees in civil service, including all the professions and the ranks, in each office, and support unit, appropriate expression will be given, under the circumstances, for the  representation of members of both genders, of people with disabilities, and of members of the Arab population, including the Druze and Circassian (in this law – appropriate representation).

(b)  The Government will operate to advance appropriate representation among the employees in civil service in accordance with the objectives it will set, and for this purpose, inter alia –

(1)  The office or support units which relate to the matter, as well as the Civil Service Commission, each in their field, will undertake the necessary means under the circumstances which can enable and encourage appropriate representation. . .

(2)  The Government may designate job openings in which, to the extent possible, will be employed only candidates who are qualified for the job, from among a group which is entitled to appropriate representation according to the provisions of subsection (a) which is not appropriately represented, as the Government shall determine.

(3)  The Government may order, as to a job opening or a group of job openings or a rank or a group of ranks, which will be detailed in the order, and for a period that will be determined, the granting of preference to candidates from among the group that is entitled to appropriate representation according to the provisions of subsection (a) that is not represented in an appropriate manner, where they have similar qualifications to the qualifications of other candidates. . .

(c) The provisions of this section will apply to all manner of acceptance to employment and advancement in employment according to this statute, including appointment by way of a tender, employment without a tender and appointment in fact.’

The section goes on to establish provisions which do not relate to the matter discussed in the petition as to fulfilling the duty to provide appropriate representation.

27.  It is clear that section 15A of the Civil Service Law (Appointments) establishes a duty of affirmative action for the Arab population in appointments to civil service.  However, the section is not simple.  It raises various questions.  There is no need to discuss them in this petition.  In this petition it is a sufficient question whether the section requires granting appropriate representation to members of the Arab population in the Israel Lands Council.

The Civil Service Law (Appointments) regulates appointments in civil service.  However the Israel Lands Council is not part of the civil service.  Most of the members in the Council are also not civil servants, but representatives of the public or representatives of JNF.  Indeed, the Council is by its composition and its substance, a satellite body, outside of the government mechanism, similar to other public councils, investigative committees, administrative tribunals and more.  As to satellite bodies see I. Zamir, Administrative Power (Volume 1) [10] at p. 411 and on.  It appears that section 15A does not apply to satellite bodies including the Israel Lands Council.

28.  However, even if section 15A of the Civil Service Law (Appointments) does not directly apply to the Israel Lands Council, it still has indirect weight on the question whether it is appropriate to grant appropriate representation to the Arab population in the Council. As in fact, this section joins up as an additional component to a network of legal sources which oblige equal treatment of the Arab population.  See supra paragraphs 22-25.  The cumulative weight of all of these is very similar to the cumulative weight of legal sources which require equal treatment of women.  Therefore, the conclusion also has to be similar.  As to the legal sources which require equality to women, Justice M. Cheshin in the second Israel Women's Network case [3] said that these sources are similar to ‘points of light’, and that ‘Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created’ (Ibid, at p. 662) as to appropriate representation for women in public entities.  See supra paragraph 19.  Similarly, it is to be said as to legal sources which require equal treatment of Arabs: alongside the doctrine which requires granting appropriate representation to women they create a doctrine which requires granting appropriate representation to Arabs in public service.  What is the duty which stems from this doctrine?

29.  The Court gave the answer in the second Israel Women's Network case [3].  There, the Court ruled that the duty of appropriate representation of women, according to section 15A of the Civil Service Law (Appointments), applies to all the employees of the National Insurance Institute, except for members of the Institute’s management.  See supra paragraph 19.  Here, the duty of appropriate representation of women, people with disabilities, and members of the Arab population, according to that section, applies to all the employees of the Israel Lands Administration, excluding members of the Council.  There, the Court ruled that the doctrine as to appropriate representation for women also extends over the appointment of the members of the management of the National Insurance Institute.  By power of that doctrine, the Court further ruled, that there is a duty on the Minister when coming to appoint a Deputy Director of the Institute to work toward advancing the representation of women.  What does this mean?  This does not mean that there is a duty on the Minister to appoint a woman to this job.  But rather what?  In the words of Justice M. Cheshin (Ibid, at p. 671):

‘It is imposed on the Minister to fulfill his duty according to the doctrine, the duty to act in order to give appropriate representation to women: to make an effort and to diligently work toward finding suitable candidates to fill the job of deputy director in the National Insurance Institute.’

Justice M. Cheshin noted (Ibid, at p. 670) that there exists a difference between the duty to grant appropriate representation according to section 15A of the Civil Service Law (Appointments) and the duty to grant appropriate representation according to the doctrine.  What is the difference?  The duty the statute imposes in section 15A, is not just to act but to achieve a result: the result is ‘appropriate expression’ for the representation of women, of people with disabilities, and of members of the Arab population.  It is clear that a result depends on action: the authorized authority must act to achieve appropriate representation.  For this purpose the statute establishes various means, such as designating positions for employing candidates from among the group entitled to appropriate representation according to section 15A(b)(2) of the Civil Service Law (Appointments).  As long as there is not appropriate representation the authorized authority has the burden to prove that it has done all that is necessary and possible by law under the circumstances to achieve appropriate representation.

On the other hand the duty imposed based on the doctrine relates primarily to the discretion of the authorized authority.  The authority authorized to make an appointment is obligated, like any administrative authority as to any power, to consider all the relevant considerations and give each relevant consideration the appropriate weight.  Generally, religion, nationality and race are irrelevant considerations, and therefore the authorized authority is prohibited from taking them into consideration for purposes of using the power.  However, as to appointment to public service, belonging to the Arab population, is, by force of the doctrine, a relevant consideration.  Accordingly, not only is the authorized authority entitled to bring it into account, but it even is required to bring it into account as one of the relevant considerations and give it the appropriate weight.  There is no great innovation here.  The principle of equality is in any case, and without connection to the doctrine, a relevant consideration that the authorized authority must bring into account when it makes an appointment. See HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa [7]. And still there is innovation in the doctrine.  The innovation is in the substance of the relevant consideration.  According to the doctrine the relevant consideration says that in an appointment to public service it is not sufficient to act with equality toward an Arab candidate but it is also necessary to act with affirmative action toward an Arab candidate with the goal of providing the Arab population with appropriate representation in public service.  See Zamir and Sobel in their article [12] at pp. 200-204.  However, this consideration is still only one from among the relevant considerations.  The authority must weigh all the relevant considerations, and particularly the personal fitness of the candidate to fill the role, in order to reach the proper balance.  However, in the framework of the balancing, the candidate’s belonging to the Arab population is, as long as appropriate representation has not been achieved, a relevant consideration in the candidate’s favor.  This is the affirmative action required by the doctrine in order to fulfill the principle of equality toward the Arab population.

In fact, the difference between the duty imposed by the statute and the duty imposed by the doctrine may be hazy.  But is exists first of all in the fundamental realm, and additionally in the practical realm.  Inter alia, the provisions established in section 15A(b) of the Civil Service Law (Appointments) such as designating jobs in order to advance the appropriate representation, apply only to the duty imposed by the statute.

The present case

30.  What is the conclusion that arises from all that has been said, as to the present case.  Section 4A of the Israel Land Administration Law, establishes that the Government will appoint, by proposal of the ministers, half of the members (in fact, twelve members) in the Israel Lands Council and among them at least half (in fact six) ‘civil servants, holding senior positions in the government offices connected to the matter. . .’ see supra paragraph 2.  This authority is subject to the doctrine.  According to the doctrine it is incumbent on every minister who proposes a candidate for membership in the Council to weigh, inter alia, the need to also give appropriate representation to the Arab population in the Council and to give this consideration appropriate weight.  For this purpose the Minister must inquire whether there is among the senior office-holders in his office an Arab candidate substantively qualified for appointment as a member of the Council.  If there is such an individual, and there is no good reason to deny his candidacy or to prefer another candidate over him, it is proper to propose him for appointment as a member of the Council.

A similar duty is imposed on the Government when it receives the proposals of the Ministers for appointment of members in the Council and must decide on an appointment.  It must consider the question whether there is in these proposals to provide appropriate representation to the Arab population.  If not, it must inquire if nonetheless there is no practical possibility to find a worthy Arab candidate among the senior office-holders in the government offices which relate to the matter in order to advance the appropriate representation of the Arab population.

31.  It is a question what the duty to give appropriate representation to the Arab population in a certain entity requires, and in this case – the Council.  The answer may change depending on the circumstances of the case.  Appropriate representation is not a formal duty, but a substantive duty, that has purpose and an objective.  Therefore it is not correct to say that section 18A of the Government Corporations Law, which requires giving appropriate expression in the Boards of Directors of Government Corporations to women, requires that in every such Board of Directors the women will be half of the overall members.  But it also is not to be said that the symbolic presence of one woman is sufficient in order to fulfill the duty of appropriate expression.  The required extent of representation is dependent on the context.  See the first Israel Women's Network case [2] (supra paragraph 12), at pp. 527-528.  It is also to be said thus as to appropriate representation of the Arab population in Boards of Directors of Government Corporations, as is required by section 18A1 of the Government Corporations Law.  This section does not require that the number of Arab members in every Board of Directors of a Government Corporation will be one fifth of the overall members.  Similarly it is also to be said as to the duty to give appropriate representation in civil service whether for women, whether for members of the Arab population or for persons with disabilities.

The question of what constitutes appropriate representation in a specific entity is dependent, inter alia, on the substance of the entity, including the practical importance of the entity in terms of the group entitled to appropriate representation.  Accordingly, it appears that the importance of representation and the force of representation in the Israel Lands Council are greater as to members of the Arab population than as to, for example, people with disabilities.  The Government and the ministers that relate to the matter are to also bring this consideration into account in the process of appointing members to the Council.

32.  In the present case, the statute establishes that civil servants are not to be appointed as members in the Council unless they are ‘senior’ civil servants in the offices which relate to the matter.  The petitioner presumes that there are no such Arab employees.  The Court does not know if this presumption has a basis.  In any event, this is not sufficient to exempt the ministers who relate to the matter and the government from the duty to employ their discretion in a manner that is intended to advance, if possible, the appropriate representation of the Arab population.  If indeed it turns out that among the ‘senior’ civil servants in the government offices there is not a single Arab employee who will be qualified for appointment as a member of the Council, then this is proof of a distorted situation, which s. 15A of the Civil Service Law (Appointments) and s. 18A1 of the Government Corporations Law were intended to repair.  However, repair of the distorted is a process, and as is the way of such processes it takes time.  In such a case there is no recourse but to wait until there will be senior civil servants in the government offices which relate to the matter, as is necessitated by s. 15A of the Civil Service Law (Appointments).  The Court is not entitled to take, or order the Government to take, a short cut, in contradiction of a statutory provision.  However, according to the law the government must take the road at the appropriate speed.

If it turns out that today there is not among the senior government employees in the government offices which relate to the matter a single qualified Arab employee who is qualified to be appointed as a member of the Council, it is appropriate that the Government also consider the possibility of appointing an additional Arab from among individuals in academia and public representatives which the Government is qualified to appoint as members in the Council.

33.  The petitioner requested that the Government nullify the appointment of some of the members in the Council in order to enable the appointment of Arabs in their place in a manner that will constitute appropriate representation for the Arab population.  However, as the petitioner recently notified the Court, and the respondents affirmed, several Council members recently retired, and of the quota of twelve members who are appointed to the Council on behalf of the Government today only six members are serving in the Council.  Meaning, the Government is now authorized to appoint six additional members to the Council.  Indeed, as the respondents’ counsel notified the Court several days ago, the Minister of National Infrastructures sent the Minister of Finance a proposal for the appointment of six additional members to the Council on behalf of the Government.

The respondents’ counsel did not note in the notice who the candidates are who were proposed by the minister.  However, since the notice does not state otherwise, one would think that there is not an Arab among the candidates.  The notice also does not state that there is not among the senior office-holders in the government offices which relate to the matter an Arab who is qualified to be appointed as a member of the Council.  This being so, the ministers have a duty to consider anew the list of candidates in light of what has been said in this judgment.

Summary

34.  In summary, the Government has appointed during the time of the hearings in the petition an Arab as a representative of the public in the Israel Lands Council, and it has taken upon itself to appoint, upon the conclusion of his tenure, an Arab as a representative of the public in his place.

Now the Government is to appoint an additional six representatives on its behalf as members of the Council.  As to the appointment of these members I propose making the order nisi absolute, which orders the respondents to weigh, according to what has been stated in this judgment, if it is possible to appoint an additional Arab as a member in the Israel Lands Council.

The respondents will bear the court costs of the petitioner in a total sum of 10,000 NIS.

 

 

Justice M. Cheshin

I agree.

 

 

Justice D. Beinisch

I agree.

 

It has been decided as per the decision of Justice Zamir.

 

18 Tamuz 5761

9 July 2001

      

 

 

 

 

 

 

 

"[n]o person can deny, first that we are talking about an orderly decision-making process and second, that prioritization is necessary in the circumstances of the health services basket."

HCJ 7721/96 Union of Insurance Assessors v. the Inspector of Insurance 55(3) PD 625, 650 (2001).