HCJ 2150/07
Abu Safiya v.
Minister of Defence
Date of
judgment: 29 December 2009
Synopsis
Road 443 was closed to the traffic of Palestinian vehicles
in 2002, as a result of the security situation and following attacks that took
place along the route of the road. From then until now, the road has been
closed to the traffic of Palestinian vehicles. The issue of this petition is the
request of the petitioners, who are inhabitants of several villages located near
road 443, that the Court should order the respondents, including the Minister
of Defence and the IDF Commander in the territory, to allow free traffic of
Palestinians, on foot and by car, on road 443.
The Supreme Court granted the petition in part. The
majority opinion, which was written by Justice U. Vogelman, held that although the
military commander is competent to impose traffic restrictions by virtue of his
duty to preserve public order and security on traffic routes in Judaea and
Samaria, his authority does not extend to imposing a permanent and complete ban
on the traffic of Palestinian vehicles on the road. This is because a complete
ban makes the road one that is used solely for ‘internal’ Israeli traffic -
between the centre of
Justice E.E. Levy was of the opinion that the military commander
acted within the scope of his authority when he decided to close the road to
Palestinian traffic as a result of the serious terrorist attacks in which
Israelis were murdered on and near the road. Notwithstanding, Justice Levy held
that the security measures and their proportionality should be examined in
accordance with current circumstances, and in the prevailing circumstances of a
relative calm in the security position, an absolute closure on a permanent
basis was not a proportionate measure. Since it was proved that the military
commander himself was of the opinion that an absolute closure should be avoided
and that he wished to find a more proportionate solution, there was no reason,
in Justice Levy’s opinion, to grant an absolute order in the petition, and it
would be better to allow the military commander to propose a suitable solution.
In any case, Justice Levy emphasized, five months was not a sufficient period
of time for the proper implementation of the judgment, and the result might be
perilous.
President Beinisch agreed with the opinion and reasoning
of Justice Vogelman, both with regard to the lack of authority and with regard
to the question of proportionality, and emphasized that in practice the three
justices all agreed that the sweeping closure of road 443 to Palestinian
traffic was not currently proportionate, and that an alternative solution
needed to be found to protect the safety of persons travelling on the road.
President Beinisch added that the freedom of movement is a basic human freedom,
and that every effort should also be made to uphold it in the territories that
are held by the State of Israel under a belligerent occupation. She therefore
held that the military commander should refrain, in so far as possible, from
adopting such an extreme measure as an absolute ban on the use of a certain
road by the protected inhabitants, which caused serious suffering to a whole
population and disrupted their lives. Notwithstanding, President Beinisch
warned against referring to security measures adopted in order to protect
persons travelling on the roads as segregation based on improper reasons of
race and ethnicity, and she held that the comparison made by the petitioners
between preventing the traffic of Palestinian inhabitants along road 443 and
the crime of Apartheid was so extreme and radical that there was no basis for
raising it at all.