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Mara’abe v. Prime Minister of Israel

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
Geoffrey R. Watson
Geoffrey R. Watson
Affiliation:
The Catholic University of America
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Extract

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).

Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.

In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.

Type
International Decisions
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 895 - 901
Copyright
Copyright © American Society of International Law 2006

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References

1 HCJ 7957/04 (High Ct. Justice Sept. 15, 2005), at <http://elyonl.court.gov.il/eng/home/index.html.

2 HCJ 2056/04 (High Ct. Justice June 20,2004), 43ILM 1099 (2004). For more on Beit Sourik Village Council, see, e.g., Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 19–26 (2005).Google Scholar

3 (Int’l Ct. Justice, July 9, 2004), 43 ILM 1009 (2004). For more on the advisory opinion, see, for example, the recent Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99 AJIL 1 (2005).

4 A map of the Alfei Menashe enclave appears at the end of the Court’s opinion (“Qalqiliya” is spelled “Kalkiliya” on the map). For Israel’s latest official maps of the barrier as a whole, see <http://www.securityfence.mod.gov.il/Pages/ENG/route.htm.

5 Hague Regulations, annexed to the Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

6 Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75UNTS287.

7 Article 46 of the Hague Regulations provides: “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.”

8 Article 43 of the Hague Regulations provides: “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.”

Article 52 provides, in part: “Requisitions in kind and service shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation . . . . Contributions in kind shall as far as possible be paid for in cash . . . .”

9 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, para. 124.

10 See Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Isr.-PLO, Arts. 12(1), 17(l)(a), 31(5), 36 ILM 551 (1997).

11 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, para. 139.

12 President Barak also rejected three procedural objections advanced by Israel. The Court held that the claim was not barred by laches (that is, delay); that the petitioners had standing; and that they had satisfied the requirement that they make a prior “direct plea” to the government for redress of their grievance (paras. 95–97).

13 See Dan, Izenberg, High Court Raps State for Concealing Info in Fence Petition; Orders Barrier Rerouted, Excludes 1,000 Dunams, Jerusalem Post, June 16, 2006, at 6.Google Scholar

14 See, e.g., Iain, Scobbie, Words My Mother Never Taught Me—”In Defense of the International Court,’ 99 AJIL 76, 80 (2005)Google Scholar (approving the outcome, but observing that at times “the reasoning is rather abrupt, almost to the point of taciturnity”).

15 Cf. Oliver Wendell, Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897)Google Scholar (expressing skepticism that legal issues “can be worked out like mathematics from some general axioms of conduct” or that disagreement simply means some judges “were not doing their sums right”).

16 Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam).

17 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2684 (2006).