Much ado about almost nothing

The High Court of Justice ruling authorizing Palestinian vehicles to travel on Route 443 came nearly two years after the justices finished hearing the petition. The High Court apparently wanted, as much as possible, to avoid needing to rule on the sensitive issue of restricting freedom of movement on the route that has become a major road connecting the lowlands and the Modi’in area to the Jerusalem area. Security officials got around the issue without offering a reasonable alternative.

The High Court was ultimately forced to decide, this time without trying to dodge the question, on an issue that centers around a serious blow to Palestinian residents’ freedom of movement – a freedom that was restricted due to the many terror attacks on that road.

Supreme Court President Dorit Beinisch and Justice Uzi Fogelman ruled that the military commander in the area imposed the restriction without formal authorization and used disproportionate means at his own discretion. Even Justice Edmond Levy wrote in his minority opinion that the comprehensive ban on Palestinian vehicles causes disproportionate harm to the Palestinian population, but said the military commander in the area has the authority to impose such a ban. Levy disagreed with his colleagues’ decision that the ban must be lifted within five months. Levy said the military commander should be allowed to come up with an “appropriate solution” without forcing him to abide by a set timetable, although even Levy said a total, comprehensive ban on Palestinian vehicles cannot be upheld.

The judges were divided, then, on the question of whether the military commander was authorized to order a ban, though they all agreed that the commander must not only have the authority to act, but must also act reasonably and proportionately. The uniform principle that arises from the ruling is that damaging individual rights out of security considerations does not preclude judicial review. In other words, “security considerations” is not a magic phrase.

The ruling bolsters the principle of proportionality in administrative law. That principle requires the military commander or anyone in a public position to demonstrate compatibility between the means and ends – to show that there is no alternate, less harmful way to reach the same essential security objective and that the damage caused by infringing on individual freedoms is not greater than the benefits derived from that damage.

All three justices agreed that a total ban on Palestinian vehicles on Route 443 was not the sole possible means to maintain security, and that the benefits of the ban did not bear a reasonable relationship to the harm caused to local residents. Fogelman said the military commander could suggest a proposal allowing Palestinian vehicles on the road only after they underwent appropriate security checks. Levy agreed that an alternative to a total ban must be found.

In the ruling, Beinisch emphasized the message advocated by all three justices: that completely closing the road to Palestinians is disproportionate in the absence of unusual circumstances. She wrote decisively that “the comprehensive closure of the road to Palestinian traffic must not be left standing, and an alternative solution for the passengers’ security must be found.”

Although the authors of the majority opinion did not leave it to the military commander to decide when the alternative solution should be implemented, they left him plenty of maneuvering room regarding the methods to use as an alternative. Fogelman, who wrote the main ruling, skillfully analyzed the various aspects of the issues and said the High Court was not specifying which security arrangements should be put in place, as long as the solution was reasonable and proportionate.

The ruling has generated much ado about almost nothing. The Israel Defense Forces commander in the area retains the authority to determine the nature of the required security checks; this will, in the nature of things, mean a few additional roadblocks to reduce the danger of terror attacks. Now the security forces must create a reasonable balance between security needs and the needs of the Palestinian population, without evasions.