IMRA - Wednesday, June 30, 2004 Text Supreme Court Judgement Regarding The Security Fence (1 of 3)

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Wednesday, June 30, 2004

Text Supreme Court Judgement Regarding The Security Fence (1 of 3)

HCJ 2056/04

Beit Sourik Village Council
v.
1. The Government of Israel
2. Commander of the IDF Forces in the West Bank

The Supreme Court Sitting as the High Court of Justice

[February 29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April
16, 2004; April 21, 2004; May 2, 2004 ]

Before President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin

Petition for an Order Nisi.
For petitioners-Mohammed Dahla
For respondents-Anar Helman, Yuval Roitman

JUDGMENT
President A. Barak

The Commander of the IDF Forces in Judea and Samaria issued orders to take
possession of plots of land in the area of Judea and Samaria. The purpose of
the seizure was to erect a Separation Fence on the land. The question before
us is whether the orders and the Fence are legal.

Background

1. Since 1967, Israel has been holding the areas of Judea and Samaria
[hereinafter - the area] in belligerent occupation. In 1993 Israel began a
political process with the PLO, and signed a number of agreements
transferring control over parts of the area to the Palestinian Authority.
Israel and the PLO continued political negotiations in an attempt to solve
the remaining problems. The negotiations, whose final stages took place at
Camp David in Maryland, USA, failed in July 2000.

From respondents' affidavit in answer to an order nisi we learned that, a
short time after the failure of the Camp David talks, the
Israeli-Palestinian conflict reached new heights of violence. In September
2000, the Palestinian side began a campaign of terror against Israel and
Israelis. Terror attacks take place both in the area and in Israel. They are
directed against citizens and soldiers, men and women, elderly people and
infants, regular citizens and public figures. Terror attacks are carried out
everywhere: in public transportation, in shopping centers and markets, in
coffee houses and in restaurants. Terror organizations use gunfire attacks,
suicide attacks, mortar fire, Katyusha rocket fire, and car bombs. From
September 2000 until the beginning of April 2004, more than 780 attacks were
carried out within Israel. During the same period, more than 8200 attacks
were carried out in the area.

The armed conflict claimed (as of April 2004) the lives of 900 Israeli
citizens and residents. More than 6000 were injured, some with serious
wounds that have left them severely handicapped. The armed conflict has left
many dead and wounded on the Palestinian side as well. Bereavement and pain
wash over us.

In HCJ 7015/02 Ajuri v. IDF Commander, at 358, I described the security
situation:

Israel's fight is complex. Together with other means, the Palestinians use
guided human bombs. These suicide bombers reach every place that Israelis
can be found (within the boundaries of the State of Israel and in the Jewish
communities in Judea and Samaria and the Gaza Strip). They sew destruction
and spill blood in the cities and towns. The forces fighting against Israel
are terrorists: they are not members of a regular army; they do not wear
uniforms; they hide among the civilian Palestinian population in the
territories, including inside holy sites; they are supported by part of the
civilian population, and by their families and relatives.

2. These terror acts have caused Israel to take security precautions on
several levels. The government, for example, decided to carry out 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 terror attacks. See HCJ 3239/02 Marab v. IDF Commander in the West
Bank, at 355; HCJ 3278/02 Center for Defense of the Individual v. IDF
Commander, at 389. These combat operations - which are not regular police
operations, but embody all the characteristics of armed conflict - did not
provide a sufficient answer to the immediate need to stop the terror. The
Ministers' Committee on National Security considered a list of steps
intended to prevent additional terror acts and to deter potential terrorists
from participating in such acts. See Ajuri, at 359. 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.

The Decision to Construct the Separation Fence

3. The Ministers' Committee for National Security reached a decision (on
April 14, 2002) regarding deployment in the "Seam Area" between Israel and
the area. [Note to English translation: the "Seam Area" is roughly the
interface between Judea and Samaria on the one hand, and Israel as per the
1949 armistice agreement on the other.] See HCJ 8532/02 Ibraheem v.
Commander of the IDF Forces in the West Bank. The purpose behind the
decision was "to improve and strengthen operational capability in the
framework of fighting terror, and to prevent the penetration of terrorists
from the area of Judea and Samaria into Israel." The IDF and the police were
given the task of preventing the passage of Palestinians into the State of
Israel. As a temporary solution, it was decided to erect an obstacle in the
three regions found to be most vulnerable to the passage of terrorists into
Israel: the Umm El-Fahm region and the villages split between Israel and the
area (Baka and Barta'a); the Qalqilya-Tulkarm region; and the Greater
Jerusalem region. It was further decided to create a team of Ministers,
headed by the Prime Minister, which would examine long-term solutions to
prevent the infiltration of Palestinians, including terrorists, into Israel.

4. The Government of Israel held deliberations on the "Seam Area" program
(June 23, 2002). The armed services presented their proposal to erect an
obstacle on the "Seam ." The government approved stage 1 of the project,
which provides a solution to the operational problem of terrorist
infiltration into the north of the country, the center of the country and
the Jerusalem area. The obstacle that was approved begins in the area of the
Salam village, adjacent to the Meggido junction, and continues until the
trans-Samaria road. An additional obstacle in the Jerusalem area was also
approved. The entire obstacle, as approved, is 116 km long. The government
decision provided:

(3) In the framework of stage 1 - approval of the security Fences and
obstacles in the "Seam Area" and in Greater Jerusalem, for the purpose of
preventing the penetration of terrorists from the area of Judea and Samaria
into Israel.

(4) The Fence, like the other obstacles, is a security measure. Its
construction does not mark a national border or any other border.

(6) The precise and final location of the Fence will be established by the
Prime Minister and the Minister of Defense . the final location will be
presented before the Ministers' Committee on National Security or before the
government.

5. The Ministers' Committee on National Security approved (August 14, 2002)
the final location of the obstacle. The Prime Minister and the Minister of
Defense approved (December 2002) stage 2 of the obstacle from Salam village
east to the Jordan River, 60 km long, and an extension, a few kilometers
long, from Mount Avner (adjacent to El-Mouteelah village) in the Southern
Gilboa range to the village of Tayseer.

6. The Ministers' Committee on National Security decided (on September 5,
2003) to construct stage 3 of the obstacle in the Greater Jerusalem area
(except in the Ma'ale Adumim area). The length of this obstacle is 64 km.
The government, on October 1, 2003, set out its decision regarding stages 3
and 4 of the obstacle:

A. The Government reiterates its decision regarding the importance of
the "Seam Area" and emphasizes the security need for the obstacle in the
"Seam Area" and in "Greater Jerusalem."

B. Therefore:

1. We approve the construction of the obstacle for the prevention of
terror activities according to the stages and location as presented today
before us by the armed forces (the map of the stages and location of the
Fence is on file in the government secretariat).

2. The obstacle that will be erected pursuant to this decision, like
other segments of the obstacle in the "Seam Area," is a security measure
for the prevention of terror attacks and does not mark a national border or
any other border.

3. Local changes, either of the location of the obstacle or of its
implementation, will be brought before the Minister of Defense and the Prime
Minister for approval.

4. The Prime Minister, the Minister of Defense, and the Finance
Minister shall calculate the budget necessary for implementation of this
decision as well as its financial schedule. The computation shall be brought
before the government for approval.

5. In this framework, additional immediate security steps for the
defense of Israelis in Judea and Samaria during the period of construction
of the obstacle in the "Seam Area" shall be agreed upon.

6. During the planning, every effort shall be made to minimize, to the
extent possible, the disturbances to the daily lives of the Palestinians due
to the construction of the obstacle.

The location of this Fence, which passes through areas west of Jerusalem,
stands at the heart of the dispute between the parties.

The Separation Fence

7. The "Seam" obstacle is composed of several components. In its center
stands a "smart" Fence. The purpose of the Fence is to alert the forces
deployed along its length of any attempt at infiltration. 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. Near the
Fence a service road is paved. On the internal side of the electronic Fence,
there are a number of roads: a dirt road (for the purpose of discovering the

tracks 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 constraints, a narrower
obstacle, which includes only the components supporting the electronic
Fence, will be constructed in specific areas. In certain cases the obstacle
can reach a width of 100 meters, due to topographical conditions. In the
area relevant to this petition, the width of the obstacle will not exceed 35
meters, except in places where a wider obstacle is necessary for
topographical reasons. In the area relevant to this petition, the Fence is
not being replaced by a concrete wall. Efforts are being made to minimize
the width of the area of which possession will be taken de facto. Various
means to help prevent infiltration will be erected along the length 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.
Hereinafter, we will also refer to the entire obstacle in the area of the
Seam as the "Separation Fence."

The Seizure Proceedings

8. Parts of the Separation Fence are being erected on land which is not
privately owned. Other parts are being erected on private land. In such
circumstances - and in light of the security necessities - an order of
seizure is issued by the Commander of the IDF Forces in the area of Judea
and Samaria (respondent 2). Pursuant to standard procedure, every land owner
whose land is seized will receive compensation for the use of his land.
After the order of seizure is signed, it is brought to the attention of the
public, and the proper liaison body of the Palestinian Authority is
contacted. An announcement is relayed to the residents, and each interested
party is invited to participate in a survey of the area affected by the
order of seizure, in order to present the planned location of the Fence. A
few days after the order is issued, a survey is taken of the area, with the
participation of the landowners, in order to point out the land which is
about to be seized.

After the survey, a one week leave is granted to the landowners, so that
they may submit an appeal to the military commander. The substance of the
appeals is examined. Where it is possible, an attempt is made to reach
understandings with the landowners. If the appeal is denied, leave of one
additional week is given to the landowner, so that he may petition the High
Court of Justice.

The Petition

9. The petition, as originally worded, attacked the orders of seizure
regarding lands in the villages of Beit Sourik, Bidu, El Kabiba, Katane,
Beit A'anan, Beit Likia, Beit Ajaza and Beit Daku. These lands are adjacent
to the towns of Mevo Choron, Har Adar, Mevasseret Zion, and the Jerusalem
neighborhoods of Ramot and Giv'at Zeev, which are located west and northwest
of Jerusalem. Petitioners are the landowners and the village councils
affected by the orders of seizure. They argue that the orders of seizure are
illegal. As such, they should be voided or the location of the Separation
Fence should be changed. The injury to petitioners, they argue, is severe
and unbearable. Over 42,000 dunams of land of their lands are affected. The
obstacle itself passes over 4,850 dunams of land, and will separate
petitioners from more than 37,000 dunams of land, 26,500 of which are
agricultural lands that have been cultivated for many generations. Access to
these agricultural lands will become difficult and even impossible.
Petitioners' ability to go from place to place will depend on a bureaucratic
permit regime which is labyrinthine, complex, and burdensome. Use of local
water wells will not be possible. As such, access to water for crops will
be hindered. Shepherding, which depends on access to these wells, will be
made difficult. Tens of thousands of olive and fruit trees will be uprooted.

The Fence will separate villages from tens of thousands of additional trees.
The livelihood of many hundreds of Palestinian families, based on
agriculture, will be critically injured. Moreover, the Separation Fence
injures not only landowners to whom the orders of seizure apply; the lives
of 35,000 village residents will be disrupted. The Separation Fence will
harm the villages' ability to develop and expand. The access roads to the
urban centers of Ramallah and Bir Naballa will be blocked off. Access to
medical and other services in East Jerusalem and in other places will become
impossible. Ambulances will encounter difficulty in providing emergency
services to residents. Children's access to schools in the urban centers,
and of students to universities, will be impaired. Petitioners argue that
these injuries cannot be justified.

10. Petitioners' argument is that the orders are illegal in light of
Israeli administrative law, and in light of the principles of public
international law which apply to the dispute before us. First, petitioners
claim that respondent lacks the authority to issue the orders of seizure.
Were the route of the Separation Fence to pass along Israel's border, they
would have no complaint. However, this is not the case. The route of the
Separation Fence, as per the orders of seizure, passes through areas of
Judea and Samaria. According to their argument, these orders alter the
borders of the West Bank with no express legal authority. It is claimed that
the Separation Fence annexes areas to Israel in violation of international
law. The Separation Fence serves the needs of the occupying power and not
the needs of the occupied area. The objective of the Fence is to prevent
the infiltration of terrorists into Israel; as such, the Fence is not
intended to serve the interests of the local population in the occupied
area, or the needs of the occupying power in the occupied area. Moreover,
military necessity does not require construction of the Separation Fence
along the planned route. The security arguments guiding respondents disguise
the real objective: the annexation of areas to Israel. As such, there is no
legal basis for the construction of the Fence, and the orders of seizure
which were intended to make it possible are illegal. Second, petitioners
argue that the procedure for the determination of the route of the
Separation Fence was illegal. The orders were not published and were not
brought to the knowledge of most of the affected landowners; petitioners
learned of them by chance, and they were granted extensions of only a few
days for the submission of appeals. Thus, they were not allowed to
participate in the determination of the route of the Separation Fence, and
their arguments were not heard.

11. Third, the Separation Fence violates many fundamental rights of the
local inhabitants, illegally and without authority. Their right to property
is violated by the very taking of possession of the lands and by the
prevention of access to their lands. In addition, their freedom of movement
is impeded. Their livelihoods are hurt and their freedom of occupation is
restricted. Beyond the difficulties in working the land, the Fence will make
the trade of farm produce difficult. The Fence detracts from the educational
opportunities of village children, and throws local family and community
life into disarray. Freedom of religion is violated, as access to holy
places is prevented. Nature and landscape features are defaced.
Petitioners argue that these violations are disproportionate and are not
justified under the circumstances. The Separation Fence route reflects
collective punishment, prohibited by international law. Thus, respondent
neglects the obligation, set upon his shoulders by international law, to
make normal and proper life possible for the inhabitants of Judea and
Samaria. The security considerations guiding him cannot, they claim,
justify such severe injury to the local inhabitants. This injury does not
fulfill the requirements of proportionality. According to their argument,
despite the language of the orders of seizure, it is clear that the Fence is
not of a temporary character, and the critical wound it inflicts upon the
local population far outweighs its benefits.

The Response to the Petition

12. Respondents, in their first response, argued that the orders of
seizure and the route through which the Separation Fence passes are legal.
The Separation Fence is a project of utmost national importance. Israel is
in the midst of actual combat against a wave of terror, supported by the
Palestinian population and leadership. At issue are the lives of the
citizens and residents of Israel, who are threatened by terrorists who
infiltrate into the territory of Israel. At issue are the lives of Israeli
citizens residing in the area. The construction of the Separation Fence
system must be completed as rapidly as possible. The Separation Fence has
already proved its efficacy in areas where it has been erected. It is urgent
that it also be erected in the region of petitioners' villages. Respondents
claim that a number of terror attacks against Jerusalem and against route
no. 443, which connects Jerusalem and the city of Modi'in, have originated
in this area. The central consideration in choosing the route of the
Separation Fence was the operational-security consideration. The purpose of
the Fence is to prevent the uncontrolled passage of residents of the area
into Israel and into Israeli towns located in the areas. The Separation
Fence is also intended to prevent the smuggling of arms, and to prevent the
infiltration of Palestinians, which will likely lead to the establishment of
terror cells in Israel and to new recruits for existing cells. Additionally,
the forces acting along the obstacle, and Israeli towns on both sides of it,
must be protected. As dictated by security considerations, the area of the
Separation Fence must have topographic command of its surroundings. This is
in order to allow surveillance and to prevent attacks upon the forces
guarding it. To the extent possible, a winding route must be avoided. In
addition, a "security zone" is required to provide warning of possible
terrorist infiltration into Israel. Thus, in appropriate places, in order to
make pursuit possible in the event of infiltration, the Fence must pass
through the area. An additional security consideration is the fact that, due
to construction of the obstacle, attempted attacks will be concentrated on
Israeli towns adjacent to the Fence, which also must be protected.

13. Respondents explain that, in planning the route of the Separation
Fence, great weight was given to the interests of the residents of the area,
in order to minimize, to the extent possible, the injury to them. Certain
segments of the Fence are brought before the State Attorney for prior
examination and, if necessary, before the Attorney-General as well. An
effort is being made to lay the obstacle along property that is not
privately owned or agriculturally cultivated; consideration is given to the
existing planning schemes of Palestinian and Israeli towns; an effort is
being made to refrain from cutting lands off from their owners. In the
event of such a cutoff, agricultural gateways will allow farmers access to
their lands. New roads will be paved which will provide for the needs of the
residents. In cases where damage cannot be avoided, landowners will be
compensated for the use of their seized lands. Efforts will be made to
transfer agricultural crops instead of cutting them down. Prior to seizure
of the land, the inhabitants will be granted the opportunity to appeal.
Respondents assert that they are willing to change the route in order to
minimize the damage. Respondents declared, in addition, that they intend to
erect permanent checkpoints east of certain villages, which will be open 24
hours a day, every day of the year, and which will allow the preservation of
the fabric of life in the area. It has also been decided to improve the
road system between the villages involved in this petition, in order to
tighten the bonds between them, and between them and Ramallah. Likewise, the
possibility of paving a road to enable free and speedy passage from the
villages to Ramallah is being examined. All these considerations were taken
into account in the determination of the route. The appeals of local
inhabitants injured by the route are currently being heard. All this, claim
respondents, amounts to a proper balance between consideration for the local
inhabitants and between the need to protect the lives of Israeli citizens,
residents, and soldiers.

14. Respondents claim that the process of seizure was legal. The seizure
was brought to the knowledge of petitioners, and they were given the
opportunity to participate in a survey and to submit appeals. The
contractors responsible for building the obstacle are instructed to move (as
opposed to cutting down) trees wherever possible. This is the current
practice regarding olive trees. Some buildings, in cooperation with
landowners to the extent possible, are taken down and transferred to agreed
locations. Respondents argue that the inhabitants did not always take
advantage of the right to have their arguments heard.

15. Respondent's position is that the orders of seizure are legal. The
power to seize land for the obstacle is a consequence of the natural right
of the State of Israel to defend herself against threats from outside her
borders. Likewise, security officials have the power to seize lands for
combat purposes, and by the laws of belligerent occupation. Respondents do
not deny the need to be considerate of the injury to the local population
and to keep that injury proportionate; their claim is that they fulfill
these obligations. Respondents deny the severity of the injury claimed by
petitioners. The extent of the areas to be seized for the building of the
Fence, the injury to agricultural areas, and the injury to trees and groves,
are lesser - by far - than claimed. All the villages are connected to water
systems and, as such, damage to wells cannot prevent the supply of water for
agricultural and other purposes. The marketing of agricultural produce will
be possible even after the construction of the Fence. In each village there
is a medical clinic, and there is a central clinic in Bidu. A few
archeological sites will find themselves beyond the Fence, but these sites
are neglected and not regularly visited. The educational needs of the local
population will also be taken into account. Respondents also note that, in
places where the Separation Fence causes injury to the local population,
efforts are being made to minimize that injury. In light of all this,
respondents argue that the petitions should be denied.

The Hearing of the Petition

16. Oral arguments were spread out over a number of hearings. During this
time, the parties modified the formulation of their arguments. In light of
these modifications, respondent was willing to allow changes in part of the
route of the Separation Fence. In certain cases the route was changed de
facto. Thus, for example, it was changed next to the town of Har Adar, and
next to the village of Beit Sourik. This Court (President A. Barak,
Vice-President (ret.) T. Or, and Vice-President E. Mazza) heard the petition
(on February 29, 2004). The remainder of the hearing was postponed for a
week in order to allow the sides to take full advantage of their right to
have their arguments heard and to attempt to reach a compromise. We ordered
that no work on the Separation Fence in the area of the petition be done
until the next hearing.

The next hearing of the petition was on March 17, 2004. Petitioners
submitted a motion to file additional documents, the most important of which
was an affidavit prepared by members of the Council for Peace and Security,
which is a registered society of Israelis with a background in security,
including high ranking reserve officers, including Major General (res.)
Danny Rothchild, who serves as president of the Council, Major General
(res.) Avraham Adan (Bren), Commissioner (emeritus) Shaul Giv'oli, who
serves as the general manager of the Council, and Colonel (res.) Yuval Dvir.
The affidavit was signed by A. Adan, S. Giv'oli and Y. Dvir. The society,
which sees itself as nonpartisan, was, it argued, among the first to suggest
a Separation Fence as a solution to Israel's security needs. The affidavit
included detailed and comprehensive comments regarding various segments of
this route, and raised reservations about them from a security perspective.
The claims in the affidavit were serious and grave. After reading them, we
requested (on March 17, 2004) the comments of Respondent, The Commander of
IDF Forces in the area of Judea and Samaria, Lieutenant-General Moshe
Kaplinsky.

17. This Court (President A. Barak, Vice-President E. Mazza, and Justice
M. Cheshin) resumed the hearing of the petition (on March 31, 2004). Just
prior to reconvening, we granted (on March 23, 2004) petitioners' motion to
amend their petition such that it would include additional orders issued by
respondent: Tav/110/03 (concerning the area located north of the Beit Daku
village in the Giv'at Ze'ev area); Tav/104/03 and Tav/105/03 (concerning
areas located southeast of the town of Maccabim and south of the village of
Beit Lakia). After we heard (on March 31, 2004) the parties' arguments, we
decided to issue an order nisi, to the extent relevant to the villages and
petitioners, and to narrow the application of the temporary injunction, such
that it would not apply to the segment between Beit Ajaza and New Giv'on,
and the segment between the Beit Chanan riverbed and the ascent to Jebel
Mukatam. We further decided to narrow the injunction, such that respondent
would refrain from making irrevocable changes in the segment north of Har
Adar, and in the segment between the villages of A-Tira and Beit Daku. We
have noted respondents' announcement that if it turns out that the building
of the obstacle at these locations was illegal, proper compensation will be
given to all who suffered injury. See our order of March 31, 2004. We
continued to hear the arguments of the parties (on April 16, April 21, and
May 2, 2004). Petitioners submitted an alternate route for construction of
the Separation Fence. Additional affidavits were submitted by the Council
for Peace and Security and by respondent. An opinion paper on the
ecological effects of the route of the Fence was submitted for our review.
Pursuant to our request, detailed relief models representing the topography
of the area through which the obstacle passes were submitted. The relief
models showed the route of the obstacle, as set out by respondent, as well
as the alternate routes proposed by petitioners. In addition, a detailed
aerial photograph of these routes was submitted.

18. Members of the Council for Peace and Security moved to be joined as
amici curiae. Pursuant to the stipulation of the parties, an additional
affidavit (of April 15, 2004) submitted (by Major General (res.) D.
Rothchild who serves as the president of the Council, as well as by A. Adan,
S. Giv'oli and Y. Dvir) was joined to the petition, without ruling that this
position was identical to petitioners'. In the opinion of the Council
members, the Separation Fence must achieve three principle objectives: it
must serve as an obstacle to prevent, or at least delay, the entry of
terrorists into Israel; it must grant warning to the armed forces in the
event of an infiltration; and it must allow control, repair, and monitoring
by the mobile forces posted along it. In general, the Fence must be far from
the houses of the Palestinian villages, not close to them. If the Fence is
close to villages, it is easier to attack forces patrolling it. Building
the Fence in the manner set out by respondent will require the building of
passages and gateways, which will engender friction; the injury to the local
population and their bitterness will increase the danger to security. Such
a route will make it difficult to distinguish between terrorists and
innocent inhabitants. Thus, the Separation Fence must be distanced from the
Palestinian homes, and transferred, accordingly, to the border of the area
of Judea and Samaria. In their opinion, the argument that the Fence must be
built at a distance from Israeli towns in order to provide response time in
case of infiltration, can be overcome by the reinforcement of the obstacle
near Israeli towns. Distancing the planned route from Israeli towns in
order to seize distant hilltops with topographical control is unnecessary,
and has serious consequences for the length of the Separation Fence, its
functionality, and for attacks on it. In an additional affidavit (from
April 18, 2004), members of the Council for Peace and Security stated that
the commander's desire to prevent direct flat-trajectory fire upon the
Separation Fence actually causes other security problems. Due to this
desire, the Fence passes through areas that, while providing topographical
control, are superfluous, unnecessarily injuring the local population and
increasing friction with it, all without preventing fire upon the Fence.

19. Petitioners, pointing to the affidavits of the Council for Peace and
Security, argue that the route of the Separation Fence is disproportionate.
It does not serve the security objectives of Israel, since establishing the
route adjacent to the houses of the Palestinians will endanger the state and
her soldiers who are patrolling along the Fence, as well as increasing the
general danger to Israel's security. In addition, such a route is not the
least injurious means, since it is possible to move the route farther away
from petitioners' villages and closer to Israel. The concern about
infiltration can be addressed by reinforcing the Fence and its accompanying
obstacles.

20. Respondent recognizes the security and military experience of those
who signed the affidavit. However, he emphasizes that the responsibility
for protecting the residents of Israel from security threats remains on his
shoulders and on those of the security officials. The disagreement is
between experts on security. Regarding such a disagreement, the opinion of
the expert who is also responsible for security bears the greater weight.
Respondent accepts that the border between Israel and Judea and Samaria must
be taken into consideration when establishing the route of the Separation
Fence, in order to minimize injury to residents of the area and to the
fabric of their lives. He argues, however, that this border is a political
border and not a security border, while the security objective of the Fence
is not only to separate Israel from the residents of the area of Judea and
Samaria, but also to ensure a security zone to allow the pursuit of
terrorists who cross the Separation Fence before they enter Israel. The
Fence route must prevent direct fire by the Palestinians, it must protect
the soldiers guarding the Fence, and must also take topographical
considerations into account. In light of all this, it is proper, under
appropriate circumstances, to move the route of the Separation Fence within
the areas of Judea and Samaria. The military commander concedes that moving
the Separation Fence proximate to houses of Palestinians is likely to cause
difficulties, but this is only one of the considerations which must be taken
into account. Reinforcement of the Fence adjacent to Israeli towns does not
provide a solution to the danger of shooting attacks, and does not prevent
infiltration into them. Likewise, such a step does not take into
consideration the engineering issues of moving the route of the Fence.
Regarding the route of the Fence itself, respondent notes that, after
examining the material before him, he is willing to change part of the
route. This is especially so regarding the route adjacent to the town of
Har Adar and east of it, adjacent to the villages of Beit Sourik and Bidu.
The remainder of the route proposed by petitioners does not provide an
appropriate solution to the security needs that the Fence is intended to
provide.

21. Parties presented arguments regarding the environmental damage of the
Separation Fence. Petitioners submitted, for our review, expert opinion
papers (dated April 15, 2004), which warn of the ecological damage that will
be caused by the Separation Fence. The Separation Fence route will damage
animal habitats and will separate animal populations from vegetation,
damaging the ecosystem in the area. The longer and wider the route of the
Fence, the more severe the damage. Therefore, it is important to attempt to
shorten the route of the Fence, and to avoid unnecessary curves. The
building of passageways for small animals into the Fence, such as pipes of
20-30 cm. diameter, should be considered. The Fence will also mar virgin
landscape that has remained untouched for millennia. Respondents replied
with an opinion paper prepared by an expert of the Nature and Parks
Authority. It appears, from his testimony, that there will indeed be
ecological damage, but the damage will be along any possible route of the
Fence. It would have been appropriate to maintain passageways in the
Separation Fence for small animals, but that proposal was rejected by the
security agencies and is, in any case, irrelevant to the question of the
route. From the testimony it also appears that representatives of the
Nature and Parks Agency are involved in the planning of the Fence route, and
efforts are being made to minimize ecological damage.

22. A number of residents of Mevasseret Zion, which is adjacent to the Beit
Sourik village, requested to join as petitioners in this petition. They
claim that the Fence route should be immediately adjacent to the Green Line,
in order to allow residents of the Beit Sourik village to work their land.
In addition, they claim that the gates which will allow the passage of
farmers are inefficient, that they will obstruct access to the fields, and
that they will violate the farmer's dignity. Furthermore, they point out
the decline of relations with the Palestinian population in the area which,
as a consequence of the desire to construct the Separation Fence on its
land, has turned from a tranquil population into a hostile one. On the
opposing side, Mr. Efraim Halevy requested to join as a respondent in the
petition. He argues that moving the route of the Fence adjacent to the
Green Line will endanger the residents of Mevasseret Zion. It will bring the
route closer to the houses and schools in the community. He also points out
the terrorist activity which has taken place in the past in the Beit Sourik
area. Thus, the alternate route proposed by petitioners should be rejected.
He claims that this position reflects the opinions of many residents of
Mevasseret Zion. After reading the motions, we decided to accept them, and
we considered the arguments they presented.

The Normative Framework

23. The general point of departure of all parties - which is also our point
of departure - is that Israel holds the area in belligerent occupation
(occupatio bellica). See HCJ 619/78 "El Tal'ia" Weekly v. Minister of
Defense; HCJ 69/81 Abu Ita v. Commander of the Area of Judea and Samaria;
HCJ 606/78 Ayoob v. Minister of Defense; HCJ 393/82 Jam'iat Ascan Elma'
almoon Eltha'aooniah Elmahduda Elmaoolieh v. Commander of the IDF Forces in
the Area of Judea and Samaria. In the areas relevant to this petition,
military administration, headed by the military commander, continues to
apply. Compare HCJ 2717/96 Wafa v. Minister of Defense (application of the
military administration in "Area C"). The authority of the military
commander flows from the provisions of public international law regarding
belligerent occupation. These rules are established principally in the
Regulations Concerning the Laws and Customs of War on Land, The Hague, 18
October 1907 [hereinafter - the Hague Regulations]. These regulations
reflect customary international law. The military commander's authority is
also anchored in IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War 1949. [hereinafter - the Fourth Geneva Convention].
The question of the application of the Fourth Geneva Convention has come up
more than once in this Court. See HCJ 390/79 Duikat v. Government of
Israel; HCJ 61/80 Haetzni v. State of Israel, at 597. The question is not
before us now, since the parties agree that the humanitarian rules of the
Fourth Geneva Convention apply to the issue under review. See HCJ 698/80
Kawasme v. Minister of Defense; Jam'iyat Ascan, at 794; Ajuri, at 364; HCJ
3278/02 Center for the Defense of the Individual v. Commander of the IDF
Forces in the West Bank Area, at 396. See also Meir Shamgar, The Observance
of International Law in the Administered Territories, 1 Israel Yearbook on
Human Rights 262 (1971).

24. Together with the provisions of international law, "the principles of
the Israeli administrative law regarding the use of governing authority"
apply to the military commander. See Jam'iyat Ascan, at 793. Thus, the
norms of substantive and procedural fairness (such as the right to have
arguments heard before expropriation, seizure, or other governing actions),
the obligation to act reasonably, and the norm of proportionality apply to
the military commander. See Abu Ita, at 231; HCJ 591/88 Taha v. Minister of
Defense, at 52; Ajuri, at 382; HJC 10356/02 Hess v. Commander of the
IDF Forces in the West Bank. Indeed, "[e]very Israeli soldier carries, in
his pack, the provisions of public international law regarding the laws of
war and the basic provisions of Israeli administrative law." Jam'iyat
Ascan, at 810.

25. This petition raises two separate questions. The first question: is
the military commander in Judea and Samaria authorized, by the law applying
to him, to construct the Separation Fence in Judea and Samaria? An
affirmative answer to this question raises a second question concerning the
location of the Separation Fence. Both questions were raised before us in
the petition, in the response, and in the parties' arguments. The parties,
however, concentrated on the second question; only a small part of the
arguments before us dealt with the first question. The question of the
authority to erect the Fence in the area is complex and multifaceted, and it
did not receive full expression in the arguments before us. Without
exhausting it, we too shall occupy ourselves briefly with the first
question, dealing only with the arguments raised by the parties, and will
then move to focus our discussion on the second question.

Authority to Erect the Separation Fence

26. Petitioners rest their assertion that the military commander does not
have authority to construct the Fence on two claims. The first is that the
military commander does not have the authority to order construction of the
Fence since his decision is founded upon political - and not military -
considerations.

27. We accept that the military commander cannot order the construction of
the Separation Fence if his reasons are political. The Separation Fence
cannot be motivated by a desire to "annex" territories to the state of
Israel. The purpose of the Separation Fence cannot be to draw a political
border. In Duikat, at 17, this Court discussed whether it is possible to
seize land in order to build a Jewish civilian town, when the purpose of the
building of the town is not the security needs and defense of the area (as
it was in Ayoob), but rather based upon a Zionist perspective of settling
the entire land of Israel. This question was answered by this Court in the
negative. The Vice-President of this Court, Justice Landau, quoted the
Prime Minister (the late Mr. Menachem Begin), regarding the right of the
Jewish people to settle in Judea and Samaria. In his judgment, Justice
Landau stated:

The view regarding the right of the Jewish people, expressed in these words,
is built upon Zionist ideology. However, the question before this Court is
whether this ideology justifies the taking of the property of the individual
in an area under control of the military administration. The answer to that
depends upon the interpretation of article 52 of the Hague Regulations. It
is my opinion that the needs of the army mentioned in that article cannot
include, by way of any reasonable interpretation, national security needs in
broad meaning of the term.

In the same spirit I wrote, in Jam'iyat Ascan, at 794, that

The military commander is not permitted to take the national, economic, or
social interests of his own country into account . . . even the needs of the
army are the army's military needs and not the national security interest in
the broad meaning of the term.

In Jam'iyat Ascan, we discussed whether the military commander is authorized
to expand a road passing through the area. In this context I wrote, at 795:

The military administration is not permitted to plan and execute a system of
roads in an area held in belligerent occupation, if the objective is only to
construct a "service road" for his own country. The planning and execution
of a system of roads in an occupied territory can be done for military
reasons . . . the planning and execution of a system of roads can be done
for reasons of the welfare of the local population. This planning and
execution cannot be done in order to serve the occupying country.

Indeed, the military commander of territory held in belligerent occupation
must balance between the needs of the army on one hand, and the needs of the
local inhabitants on the other. In the framework of this delicate balance,
there is no room for an additional system of considerations, whether they be
political considerations, the annexation of territory, or the establishment
of the permanent borders of the state. This Court has emphasized time and
time again that 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. See Jam'iyat
Ascan, at 800. The passage of time, however, cannot extend the authority of
the military commander and allow him to take into account considerations
beyond the proper administration of the area under belligerent occupation.

28. We examined petitioners' arguments, and have come to the conclusion,
based upon the facts before us, that the Fence is motivated by security
concerns. 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 express 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 "Seam Area," is a
security measure for the prevention of terror attacks and does not mark a
national border or any other border." (decision of October 1, 2003).

29. The Commander of the IDF Forces in the area of Judea and Samaria
(respondent no. 2), Major General M. Kaplinsky, submitted an affidavit to
the Court. In his affidavit he stated that "the objective of the security
Fence is to help contend with the threat of Palestinian terror.
Specifically, the Fence is intended to prevent the unchecked passage of
inhabitants of the area into Israel and their infiltration into Israeli
towns located in the area. Based on this security consideration we
determined the topographic route of the Fence." (affidavit of April 15,
sections 22-23). The commander of the area detailed his considerations for
the choice of the route. He noted the necessity that the Fence pass through
territory that topographically controls its surroundings, that, in order to
allow surveillance of it, its route be as flat as possible, and that a
"security zone" be established which will delay infiltration into Israel.
These are security considerations par excellence. In an additional
affidavit, Major General Kaplinsky testified that "it is not a permanent
Fence, but rather a temporary Fence erected for security needs." (affidavit
of April 19, 2004, section 4). We have no reason not to give this testimony
less than full weight, and we have no reason not to believe the sincerity of
the military commander.

30. Petitioners, by pointing to the route of the Fence, attempt to prove
that the construction of the Fence is not motivated by security
considerations, but by political ones. They argue that if the Fence was
primarily motivated by security considerations, it would be constructed on
the "Green Line," that is to say, on the armistice line between Israel and
Jordan after the War of Independence. We cannot accept this argument. The
opposite is the case: it is the security perspective - and not the political
one - which must examine a route based on its security merits alone, without
regard for the location of the Green Line. The members of the Council for
Peace and Security, whose affidavits were brought before us by agreement of
the parties, do not recommend following the Green Line. They do not even
argue that the considerations of the military commander are political.
Rather, they dispute the proper route of the Separation Fence based on
security considerations themselves.

31. We set aside seven sessions for the hearing of the petition. We heard
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 several locations. Respondents were open to our suggestions.
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 it, 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 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.

32. Petitioners' second argument is that the construction of the Fence in
the area is based, in large part, on the seizure of land privately owned by
local inhabitants, that this seizure is illegal, and that therefore the
military commander's authority has no to construct the obstacle. We cannot
accept this argument. We found no defect in the process of issuing the
orders of seizure, or in the process of granting the opportunity to appeal
them. Regarding the central question raised before us, our opinion is that
the military commander is authorized - by the international law applicable
to an area under belligerent occupation - to take possession of land, if
this is necessary for the needs of the army. See articles 23(g) and 52 of
the Hague Convention; article 53 of the Fourth Geneva Convention. He must,
of course, provide compensation for his use of the land. See HCJ 606/78
Ayoob v. Minster of Defense; HCJ 401/88 Abu Rian v. Commander of the IDF
Forces in the Area of Judea and Samaria; Timraz. Indeed, on the basis of
the provisions of the Hague Convention and the Geneva Convention, this Court
has recognized the legality of land and house seizure for various military
needs, including the construction of military facilities (HCJ 834/78 Salama
v. Minister of Defense), the paving of detour roads (HCJ 202/81 Tabib v.
Minister of Defense; Wafa), the building of fences around outposts (Timraz),

the temporary housing of soldiers (HCJ 290/89 Jora v. Commander of IDF
Forces in Judea and Samaria), the ensuring of unimpaired traffic on the
roads of the area (Abu Rian), the construction of civilian administration
offices (HCJ 1987/90 Shadid v. Commander of IDF Forces in the Area of Judea
and Samaria), the seizing of buildings for the deployment of a military
force, (HCJ 8286/00 Association for Civil Rights in Israel v. Commander of
the IDF Forces in the Area of Judea and Samaria). Of course, regarding all
of these acts, the military commander must 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. The infringement of property rights is insufficient, in and of
itself, to take away the authority to build it. It is permitted, by the
international law applicable to an area under belligerent occupation, to
take possession of an individual's land in order to erect a separation fence
upon it, on the condition that this is necessitated by military needs. To
the extent that construction of the Fence is a military necessity, it is
permitted, therefore, by international law. Indeed, the obstacle is intended
to take the place of combat military operations, by physically blocking
terrorist infiltration into Israeli population centers. The building of the
obstacle, to the extent it is done out of military necessity, is within the
authority of the military commander. Of course, the route of the Separation
Fence must take the needs of the local population into account. That issue,
however, concerns the route of the Fence and not the authority to erect it.
After reaching this conclusion, we must now contend with the second question
before us: the question that constitutes the bulk of the arguments before
us. This question is the legality of the location and route of the
Separation Fence. We will now turn to this question.

The Route of the Separation Fence

33. The focus of this petition is the legality of the route chosen for the
construction of the Separation Fence. This question stands on its own, and
it requires a straightforward, real answer. It is not sufficient that the
Fence be motivated by security considerations, as opposed to political
considerations. The military commander is not at liberty to pursue, in the
area he holds in belligerent occupation, every activity primarily motivated
by security considerations. The discretion of the military commander is
restricted by the normative system in which he acts, which is the source of
his authority. Indeed, the military commander is not the sovereign in the
occupied territory. See Oppenheim, The Legal Relations Between an Occupying
Power and the Inhabitants, 33 Law Q. Rev., 363, 364 (1917); Y. Dinstein, The
Law of War 210 (1983). He must act within the law that establishes his
authority in a situation of belligerent occupation. What is the content of
this law?

34. The law of belligerent occupation recognizes the authority of the
military commander to maintain security in the area and to protect the
security of his country and her citizens. However, it imposes conditions on
the use of this authority. This authority must be properly balanced against
the rights, needs, and interests of the local population:

The law of war usually creates a delicate balance between two poles:
military necessity on one hand and humanitarian considerations on the other.

Dinstein, Legislative Authority in the Administered Territories, 2 Iyunei
Mishpat 505, 509 (1973)

This Court has emphasized, in its case law since the Six Day War, that
"together with the right to administer comes the obligation to provide for
the well being of the population." HCJ 337/71 Al-jamaya Al-masihiye L'
alararchi Elmakdasa v. Minister of Defense, at 581 (Sussman, D.P.).

The obligations and rights of a military administration are defined, on one
hand, by its own military needs and, on the other, by the need to ensure, to
the extent possible, the normal daily life of the local population.

HCJ 256/72 Jerusalem District Electric Company v. Defense Minister, at 138
(Landau, J.).

This doctrine . does not have to result in the restriction of the power to
tax, if this power is necessary for the well being of the area and due to
its needs, since a proper balance between those considerations and the needs
of the ruling army is a central and constant consideration of a military
administration.

Abu Ita, at 270 (Shamgar, V.P.) (emphasis in the original).

In J'mayat Ascan, at 794, I myself similarly wrote, more than twenty years
ago, that:

The Hague Regulations revolve around two main axes: one - the ensuring of
the legitimate security interests of the holder of a territory held in
belligerent occupation; the other - the ensuring of the needs of the local
population in the territory held in belligerent occupation.

In HCJ 72/86 Zaloom v. The IDF Commander for the Area of Judea and Samaria,
at 532, I held:

In using their authority, respondents must consider, on one hand, security
considerations and, on the other hand, the interests of the civilian
population. They must achieve a balance between these different
considerations.