Discretion

HCJ 8414/05

 

 

Ahmed Issa Abdallah Yassin, Bil'in Village Council Chairman

 

v.

 

1.             The Government of Israel

2.             The Military Commander in the West Bank

3.             Green Park Inc.

4.             Green Mount Inc.

5.             The Land Redemption Planning and Development Fund

6.             Ein Ami Enterprise & Development Company Ltd.

7.             The Modi'in Illit Local Council

8.             Heftsiba Construction and Development Ltd.

 

 

The Supreme Court sitting as High Court of Justice

 

[February 18 2007]

 

Before President D. Beinisch, Vice President E. Rivlin & Justice A. Procaccia

 

Petition for an order nisi and an interlocutory injuction

 

For petitioner:                                      Michael Sfard

 

For respondents no. 1 & 2:                Avi Licht

 

For respondents no. 3, 4 & 6:           Renato Jarach, Shira Hay-Am

 

For respondent no. 5:                         Moshe Glick

 

For respondent no. 7:                         Gil'ad Rogel

 

For respondent no. 8:                         Yoram Bar Sela

 

 

JUDGMENT

 

 

President D. Beinisch:

 

                This petition is against Land Sequestration Order no. Tav/40/04 (Boundary Alteration), issued by the military commander for construction of the security fence on land of the Village of Bil'in, east of the settlement of Modi'in Illit in the Modi'in Bloc, in the Judea and Samaria area.

 

 

 

Background

 

1.             Modi'in Illit is an Israeli settlement in the area of Modi'in, lying east of the boundary of the Judea and Samaria area (hereinafter – "area"), north of road 443.  Living in it are approximately 32,000 residents, most of whom are ultra-orthodox.  Near Modi'in Illit are a number of Palestinian villages.  As part of the Israeli Government's program to erect a security fence between Israel and the area, the route of the fence was planned to pass through this area, at "stage C" of the erection of the fence.  The fence in this area separates the Modi'in bloc settlements (Mattityahu, Modi'in Illit and Hashmona'im) from the Palestinian villages of Bil'in, Saffa, Harbata, Dir Qaddis, Ni'lin and Al Midiya.  It is intended to protect the residents of Modi'in Illit, and the residents of the Modi'in bloc and the city of Modi'in which are adjacent to it.  The petition before us opposes the section of the fence being built on land of the village of Bil'in, a Palestinian village east of Modi'in Illit in which approximately 1,700 residents live.  The route of the fence on the land of Bil'in is the continuation of the route passing through the land of Harbata, which is north of Bil'in.  The route continues south on land of the village of Saffa, until it reaches road 443.

 

2.             Three sequestration orders were issued in early 2004 for the purpose of the erection of the fence east of Modi'in Illit: Sequestration Order Tav/27/04 (of March 21 2004); Sequestration Order Tav/40/04 (of April 25 2004); and Sequestration Order Tav/44/04 (of April 25 2004).  In the framework of examining administrative appeals filed by Bil'in residents against the route, the parties held a number of joint meetings and surveys in the field.  On May 13 2004 the residents were informed of the rejection of their appeals.  As a result of the judgment in the Beit Sourik case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) PD 807), the military commander reexamined the fence route, in the light of the standards determined in that judgment.  An amendment of the route was decided upon, by which the section of the fence passing through the Modi'im riverbed (west of Bil'in) would be moved west, so that the river crossing point would be 800 meters from the original crossing point.  The route amendment was presented to the residents in October 2004, and on November 24 2004 an amended order of sequestration was issued – Sequestration Order Tav/40/04 (Boundary Alteration) – which is the order attacked in this petition.

 

3.             The altered fence route that passes through land of the village of Bil'in is 1.7 km. long.  It takes up 260 dunams.  The route is as far as two kilometers from the outermost houses of Modi'in Illit.  It leaves about one half of the land of the village of Bil'in (according to the British Mandate parcellation of the village lands) on the "Israeli" side of the fence.  According to petitioner, the extent of Bil'in village lands which will remain in the "seamline" area between the fence and the boundary of the Judea and Samaria area is approximately 1,980 dunams, part privately owned by Bil'in residents and part village land cultivated by its residents.  According to the data presented by respondents no. 1 & 2 (hereinafter – "respondents"), the route leaves approximately 1,647 dunams of Bil'in village land on the "Israeli" side, according to the British Mandate parcellation of the village land (the total of Bil'in land according to that parcellation is approximately 4,085 dunams).  According to respondents, 678 dunams of the land to remain in the "seamline" area between the fence and the area boundary are privately owned by residents of the village, and the rest are within the boundaries of Israeli planning schemes.  Approximately 196 dunams of the land are cultivated.

 

4.             The route of the fence on Bil'in land makes an eastern flank around areas for which there are planning schemes for the expansion of Modi'in Illit; schemes which are at various stages of planning.  One of the schemes is planning scheme 210/4/2, for construction of a residential neighborhood called "Naot HaPisga" east of Modi'in Illit, north of the Dolev riverbed.  The great majority of the neighborhood is planned to be built on land of the village of Harbata.  The "Naot HaPisga" neighborhood is being built according to a valid planning scheme, and infrastructure work for erecting the neighborhood began in 2004.  2,750 apartment units are planned to be built in the "Naot HaPisga" neighborhood, in high rise buildings.  On the ground, to date, hundreds of apartment units have been built, and land development work has been carried out.

 

5.             There is a planning scheme for constructing an additional residential neighborhood by the name of "East Mattityahu" south of the "Naot HaPisga" neighborhood, on the southern bank of the Dolev riverbed.  The original plan for constructing the neighborhood was detailed planning scheme 210/8, which was approved and about which notice of coming into force was published in 1999.  According to scheme 210/8, 1,500 apartment units have been  planned in "East Mattityahu", on an area of 900 dunams which has been declared "state land".  The main, central part of scheme 210/8 lies in the municipal area of Modi'in Illit, although parts of it stray beyond that settlement's area of municipal jurisdiction.  De facto, until 2004, scheme 210/8 had not begun to be implemented. In the meantime, private developers of "East Mattityahu" and the Modi'in Illit Local Council began to advance an amended scheme for the construction of the neighborhood – scheme 210/8/1, which was supposed to make it possible to double the number of apartment units in the neighborhood to 3,000, by denser construction, while the area of the neighborhood would remain essentially similar to the area according to scheme 210/8.  In February 2004 the settlement subcommittee of the Supreme Planning Council of the Area of Judea and Samaria (hereinafter – "the settlement subcommittee") approved scheme 210/8/1 for deposit, and notice of deposit was published in August 2004.  However, during 2004, when scheme 210/8/1 was being considered by the planning authorities, contracting companies had already begun its implementation on the ground.  It turns out that the developers took the law into their own hands and began to build the neighborhood according to the future scheme 210/8/1 before it had come into force.  As a result, wide scale illegal building work was carried out in "East Mattityahu" starting in 2004.

 

6.             In September 2005, soon after the petition before us was submitted, scheme 210/8/1 was approved to come into force.  Note, in this context, that scheme 210/8/1 is divided into two parts: western phase A, and eastern phase B, including 1,082 apartment units.  In the phase A area building may begin after the approval of the scheme.  However, according to a decision of the Minister of Defense of August 2005, phase B cannot be developed and built in the first stage, and its marketing in the future will be conditional upon receiving additional approval from the Minister of Defense.  De facto, building took place in the western area of the "East Mattityahu" neighborhood, in which hundreds of apartment units were built in three zones: two zones of respondent no. 8 and a zone of respondents no. 3-5.  In one of respondent no. 8's zones, in which building had already begun in 2002, eight buildings have already begun to be inhabited, to various extents.  All of the buildings were constructed according to the planning in scheme 210/8/1 and not scheme 210/8, which was the scheme that was in effect at the time of their construction.

 

7.             Furthermore, as a result of the petition, the State Attorney's Office became aware of various faults in the proceedings to approve scheme 210/8/1, regarding, inter alia, the scheme's deviation from the area of Modi'in Illit's municipal jurisdiction.  In the framework of the preparation of the response to the petition, the State Attorney's Office instructed the respondents not to publish notice of scheme 210/8/1's coming into force, as it was of the opinion that planning proceedings should be commenced anew, from the stage of deposit.  Respondents also decided to reexamine claims of ownership of part of the land to which the scheme applies.  Against that background, an additional petition was submitted by petitioner and the "Peace Now" movement, focusing upon the planning aspect of the "East Mattityahu" neighborhood (HCJ 143/06 of January 4 2006).  In that petition, this Court was asked to annul the approval for coming into force which the settlement subcommittee had granted to planning scheme 210/8/1 in September 2005, and to order action necessary in order to enforce planning and construction law in "East Mattityahu".  As soon as the petition was submitted, an interim injunction was issued (on January 6 2006) ordering immediate halt of any building without a building permit taking place in the area of planning scheme 210/8 and the area of planning scheme 210/8/1.  The Court also ordered immediate cession of any activity to inhabit the buildings in the zone and prohibited transferring possession of additional apartment units in the zone.  Entry into and use of apartment units were also prohibited.  Later (on January 12 2006) an additional provision was added to the interim injunction, according to which all construction work taking place in the zone pursuant to building permits, whether pursuant to the original planning scheme (210/8) or the new planning scheme (210/8/1), was to be halted.  As a result of severe financial difficulty encountered by the Heftsiba company (respondent no. 13 in HCJ 143/06, and respondent no. 8 in the petition before us), a wave of squatting on the part of apartment purchasers occurred at the company's building sites, including the Heftsiba site in the "East Mattityahu" neighborhood.  As a result of that development, the Jerusalem District Court (Judge D. Cheshin) decided on August 6 2007 (in the framework of Bankruptcy Case 4202/07) that "at this point, purchasers are not to be evicted from apartments they entered". On that basis, the Supreme Court decided on August 27 2007, in its hearing of HCJ 143/06, that despite the existence of the interlocutory injunction, "at this point, and as long as all of the facts have not become clear regarding the Heftsiba company and the purchasers' chances of receiving the apartments they bought, or, alternatively, restitution of the consideration they paid for them, the status quo on the ground shall not be altered."  It was further determined that no action would be taken at this point to evacuate the apartment residents who began squatting in Heftsiba apartments from August 1 2007 until August 6 2007. 

 

8.             After the petition before us was submitted, the agencies of the State ordered the annulment of the planning proceedings of scheme 210/8/1 and ordered that they be started again from the very beginning.  Scheme 210/8/1 was redeposited.  That scheme included enclaves of private land belonging to Palestinians from the village of Bil'in.  The new scheme determined, regarding those enclaves, that they are not a part of the scheme, that any construction on or use made of the private enclaves shall cease, and that the status quo ante shall be reestablished by evacuating buildings, building material and any other refuse, and covering said area with garden soil.  In order to allow the initiators of the scheme to fulfill said precondition, work to reestablish the status quo ante in the private "enclaves" was excluded from the interim injunction.  The renewed planning scheme was approved for deposit on February 15 2006, notice of its deposit was published on March 3 2006 (in Hebrew and Arabic language newspapers), and objections to it were heard.  On July 3 2006 the settlement subcommittee made its decision regarding the objections.  Subject to a number of changes in the scheme, and fulfillment of additional conditions in the scheme's bylaws, the committee decided to recommend to the Supreme Planning Council that it carry the scheme into force.  On January 31 2007 the Supreme Planning Council made its decision to carry into force the new version of scheme 210/8/1.  After the decision to carry the scheme into force and after the changes required by the decision had been made in the scheme's provisions, notice of the scheme's coming into force was published in the Hebrew and Arabic press in February 2007.

 

9.             The route of the fence on Bil'in land has been discussed by this Court in a number of previous petitions.  After sequestration orders Tav/27/04 and Tav/40/04 were issued (and after their amendment in November 2004) the Bil'in and Saffa village council chairmen submitted a joint petition against the route of the fence (HCJ 11363/04).  In the framework of that petition an announcement stipulated by all the parties was submitted to the Court.  The stipulated announcement relates, inter alia, to two sections of the fence on Bil'in land: "section C" beginning at the boundary of the land of Bil'in and Saffa and continuing north until the Dolev riverbed, and "section D", from the Dolev riverbed until the boundary of the land of Bil'in and Harbata.  The announcement stated:

 

"C.           From the land of the villages of Saffa and Bil'in, to the path east of the single house [section C], the parties agree that work toward implementation of sequestration order Tav/40/04 shall be carried out.  The width of the area in which construction will carried out shall not, generally, exceed 50 meters.  In carrying out the work, an effort shall be made to minimize harm to agricultural crops, and to keep the route on the western part of the sequestration order zone.  The work shall begin only after the marking of the route on the ground, after respondents give petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, and after receipt of final approval by petitioners' counsel.

 

D.            From the path east of the single house to the boundary of the lands of Bil'in and Harbata [Section D], petitioners shall notify respondents, by December 12 2004 and after respondents have given petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, their reply to the proposal which respondents presented to petitioners' counsel regarding alteration of the route."

 

In accordance with the procedural agreement between the parties, a survey in the field with counsel of the petitioners in HCJ 11363/04 (Ms. Atiyah, adv.) and with representatives of the village of Bil'in was held on December 22 2004.  During the survey Ms. Atiyah was given the map of scheme 210/8.  It appears, from the State's response to that petition, that despite what had been stipulated, Ms. Atiyah did not appear at a meeting with respondents regarding sections C and D and did not relay any written response regarding those sections.  At the opening of the hearing of said petition, it was relayed on behalf of Ms. Atiyah that the petitioners are rescinding their petition, and the petition was abated (on February 16 2005).  The petition having been abated, respondents began implementation of sequestration order Tav/40/04 (Boundary Alteration) and the erection of the fence.

 

10.          After just a few days a number of residents of Bil'in, represented by Ms. Atiya, adv., submitted a new petition (on February 21 2005; HCJ 1778/05).  That petition was based on the argument that the fence construction work had begun without them having been given the right to a hearing and to appeal.  The new petition did not mention the previous petition, which had been abated at the petitioners' request.  At the end of the hearing of that petition, the Court ordered the abatement of the petition due to unclean hands (on March 3 2005).  The Court wrote in the judgment:

 

"The fact of the existence – and abatement – of the petition in HCJ 11363/04 is essential and relates directly to the issue at hand.  Petitioners, and at very least their counsel, are presumed to be aware of the existence of that petition and the proceedings which took place in its framework.  In such circumstances, that lack of mention in the petition before us constitutes truly unclean hands, justifying the abatement of the petition.

 

Furthermore, considering the proceedings which took place in HCJ 11363/04, it appears that on the merits as well this petition should not have been submitted.  Petitioners' arguments (via the chairmen of the village councils and their attorneys) regarding the appropriate route in their areas of residence were heard and discussed in a detailed fashion in the framework of respondents' position in HCJ 11363/04, and they were given serious answers which even led to the stipulation of various procedural arrangements.  It is against that background that petitioners chose to retreat from their previous petition and to request its abatement.  The petitioners before us have not presented any justification for renewing the hearing of what are the very same issues, in the framework of their present petitions."

 

Additional proceedings relating to the route of the fence in Bil'in were in HCJ 2874/04.  That petition was originally against the route of the fence on land of the Village of Harbata, north of Bil'in.  On April 26 2005 a motion to amend the petition was submitted, in which petitioners requested the enjoinder of residents of the Village of Bil'in and to direct the petition against the route of the fence on land of the Village of Bil'in as well.  The Court decided to abate the motion to amend the petition "due to laches, due to unclean hands, and due to the fact that Mr. Shabita cannot request amendment of a petition that was submitted by others" (decision of June 14 2005).

 

The Petition and its Hearing

 

11.          The petition before us was submitted on September 5 2005, on behalf of the chairman of the Bil'in Village Council.  Petitioners request the distancing of the fence from the houses of the village, and from the agricultural lands of its residents.  When the petition was submitted, it was decided that it would be scheduled for hearing after judgment in the Alfei Menashe case (HCJ 7957/04 Ma'arabe v. The Prime Minister of Israel (yet unpublished, September 15 2005)), due to the legal question common to the two petitions, dealing with the effect of the Advisory Opinion of the International Court of Justice at the Hague.  The judgment in the Alfei Menashe case having been handed down, the parties were asked to submit their updated positions in the petition.  Respondents no. 3-6, real estate companies dealing in development and construction of the "East Mattityahu" neighborhood (hereinafter – the real estate companies) requested their enjoinder as respondents in the petition.  Petitioner was of the opinion that the enjoinder should be made conditional upon proof by the real estate companies of their rights in the land with which the petition deals.  The petition was heard on February 1 2006, before a panel consisting of President A. Barak and Justices D. Beinisch and E. Rivlin.  Respondents' counsel argued that the petition should be rejected in limine.  He noted that in the previous petitions as well, the respondents had clarified that the route was planned to protect the new neighborhoods to be constructed in Modi'in Illit, and that is within the authority of the military commander.  At the end of the hearing, an order nisi as requested in the petition was issued.  It was further decided to enjoinder the real estate companies, the Modi'in Illit Local Council and the Heftsiba company, which had also built in the "East Mattityahu" neighborhood, as respondents to the petition.  The Court did not see fit to issue an interlocutory injunction.  Nonetheless, it recorded the State's declaration that a gate at the northern edge of "section C" would not be built, and that said area would remain open for free passage until decision of the petition on the merits.

 

12.          After the affidavits of response were submitted, the petition was heard (on May 14 2006) by President A. Barak and Justices E. Rivlin and A. Procaccia.  Colonel (res.) Dan Tirza, who served as the head of the "Color Spectrum" Agency (dealing with the planning of the obstacle route in the "seamline area"), appeared before the Court.  Colonel (res.) Tirza provided a survey of the fence route and the considerations taken into account by the route planners.  Respondents' counsel once again argued for rejection of the petition in limine.  She also emphasized that the original scheme for "East Mattityahu" (210/8) was the basis for the route.  Its boundaries are nearly exactly like those of the new scheme (210/8/1).  The counsel for the real estate companies and the Modi'in Illit council voiced similar positions.  Petitioner's counsel claimed, against those arguments, that the expansion of the "East Mattityahu" neighborhood, in which only 80 families presently live, should not be considered.  Moreover, part of the construction work on the neighborhood was carried out without a permit, and part according to illegal building permits.

 

13.          At the request of petitioner, we held an additional hearing after the retirement of President A. Barak.  In that hearing (on February 18 2007) the parties once more presented their arguments and complaints regarding the route of the fence.  Shortly before the hearing we were informed that the Supreme Planning Committee had decided to carry new scheme no. 210/8/1 into force, and that notice of said scheme's coming into force had been published in the press.  Petitioner's counsel stated before us that at this time, the construction, de facto, is in the western part of the "East Mattityahu" neighborhood.  The eastern part of the scheme, which is to be built at a distance as close as 80 meters from the fence, is at a preliminary stage, prior to tenders and prior to development.  According to the provisions of the scheme, the implementation of the eastern part of the scheme is conditional upon approval by the Minister of Defense.  Respondents' counsel reiterated that the route was planned on the basis of scheme 210/8, and emphasized that the consideration behind it is a security consideration of defense of future residents.  Colonel Ofer Hindi, who presently serves as the head of the "Color Spectrum" agency, also appeared before us at the hearing, stating that an agricultural gate had been built on site, which minimizes the harm to the Palestinian residents and allows them to enter the "seamline area" in order to cultivate their lands.  The construction companies added that now, after approval of the new scheme no. 201/8/1, implementation of the plan to construct "East Mattityahu" is not merely a theoretical issue; it will take place with great speed.

 

14.          On May 8 2007, respondents submitted a request to change the status quo, according to which, as per their commitment, a gate was not built at the northern edge of "section C", which would remain, with their consent, open for free passage until decision of the petition.  They argued that maintaining the open crossing there is not necessary to fulfill the needs of the local farmers, and it constitutes a security risk and requires deploying a relatively large number of soldiers on site.  They thus wished to open the gate three times a day for one half hour, while prohibiting the Palestinians from being in that area at night.  On June 12 2007 we decided that opening the fence every day for an hour and a half, as requested by respondents, would worsen the harm to the residents of Bil'in and significantly detract from their access to their agricultural land and their ability to cultivate it.  Nonetheless, we stated that we accept respondents' position that leaving the gate open during all hours of the day, and especially at night, is not necessary.  Under such circumstances, wishing to minimize the danger to the soldiers stationed at the gate during the night, we determined that the Bil'in gate would remain open for free passage by Bil'in residents from 06:00 until 20:00, until decision of the petition.

 

15.          Note, to complete the picture, that in the meantime petitioner submitted an additional petition, revolving around the status of the property rights in the land upon which "East Mattityahu" is planned (HCJ 3998/06, of May 14 2006).  That was a petition for restrospective annulment of declaration no. 10/91 of January 15 1991 and declaration no. 20/90 of November 25 1990, by the Government and Abandoned Property Commissioner in the Judea and Samaria Area, in which certain areas of the lands of the Village of Bil'in were declared as government land.  It was argued that the declarations should be annulled, due to the fact that they were based upon an act of fraud – a "secret circular deal" between respondents no. 1-2 and respondent no. 4.  That petition was rejected on November 9 2006.  The judgment, by Rivlin J. (Barak P. and Procaccia J. concurring), stated, inter alia:

 

"we have reached the conclusion that a sufficient basis has not been laid before us to prove that a 'circular deal' indeed took place as alleged.  In other words, it was not proven that the declarations attacked in the petition were issued in order to bypass the proceedings determined by law for instilling land rights of the type discussed."

 

The Petitioner's Arguments

 

16.          Petitioner's central claim is that the fence route is not legal, as it was chosen for not security reasons, rather for the benefit of Modi'in Illit, which wishes to expand toward the area east of it.  Including hundreds of dunams east of the built-up area of Modi'in Illit was intended to include territory for future expansion of the settlement, upon territory contiguous with Israel.  The fence does not serve a military need.  It was claimed in the petition that the route of the fence follows the line of planning scheme 210/8/1, part of which is outside of Modi'in Illit's area of municipal jurisdiction, and not the topographic line, or the line of the settlement's houses, or any other line which could be considered to be a security line.  A considerable part of the route passes through the bottom of a slope, which certainly cannot be considered a strategically controlling area.  Petitioner notes that the scheme for the Modi'in Illit bloc also includes the agricultural land in the Dolev riverbed (between the "Naot HaPisga" neighborhood and the "East Mattityahu" neighborhood), which is private land belonging to Palestinian residents.  The "East Mattityahu" neighborhood is part of that scheme.  Thus, the roads in scheme no. 210/8/1 were planned as a part of a system of roads determined by the bloc scheme.  The fence route in its entirety in fact follows the boundaries of the bloc scheme.  Petitioner's concern is that respondents' intention is to take these areas over as well, in order to expand Modi'in Illit.

 

17.          Petitioners further claim that the route of the fence separates the Village of Bil'in from more than one half of its remaining land.  Presently on this land are thousands of olive trees, almond trees and vines.  The land also serves as pastures for sheep herds owned by the residents of the villages.  It constitutes the main source of livelihood for approximately 200 families in Bil'in.  Without it, these families are doomed to lives of poverty.  They further argue that in order to reach their land, the Palestinian residents will have to receive an entry permit into the closed area and pass a gate in the fence.  In light of the intent to construct the "East Mattityahu" neighborhood, the construction of the fence will apparently put an end to the cultivation of the land.  The fence in fact constitutes part of the tactic of taking over the cultivated land of the Village of Bil'in.  The petition also contains arguments against the procedure of declaration of Bil'in land as "state land".  Petitioner argues that it turns out, in retrospect, that the declaration procedure was apparently carried out with the Civil Administration's knowledge that the land is not abandoned or ownerless, and that there is a claim of purchase on the part of Jews.  The procedure was not legal, as the land does not fulfill the conditions determined in the declaration law, and since the declaration was intended to conceal the real essence of the deal. 

 

18.          Regarding preliminary arguments, according to petitioner, Bil'in residents' former counsel (Ms. Atiyah, adv.) signed the stipulations without consulting the residents and without their knowledge, and faulty steps were taken by no fault of their own.  Only in May 2005 did petitioner and the residents of the village find out about the stipulations which their counsel had signed on their behalf, and about the way she conducted the petitions and the reasons they were rejected.  As a result of the sequence of events to date, despite the multiple proceedings, the Court has not adjudicated the substantive questions which arise from the determination of the fence route, and the residents have not had their day in court.  Furthermore, petitioner only recently found out the truth about the motivation behind the determination of the route.  During the period in which the previous proceedings were being conducted, petitioner and the residents of Bil'in had no information regarding the plan to expand Modi'in Illit and to fit it to the route of the fence planned in the area.  The residents of Bil'in were confronted, he claims, by the Civil Administration's determined refusal of the request to give them copies of the Modi'in Illit planning scheme.  Viewing of the scheme was allowed only a few weeks before the current petition was submitted, as a result of a petition pursuant to the Freedom of Information Law which was submitted to the Court of Administrative Affairs in Jerusalem.

 

19.          Petitioner's legal argument is that the construction of the fence on land in Judea and Samaria is unconstitutional, and constitutes a violation of public international law.  The petition relies, inter alia, 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)).  According to that argument, the route was not chosen for security reasons, rather for purely political reasons, and is intended to annex territory for future development of Modi'in Illit to the State of Israel.  Thus it is argued that the fence is being constructed sine vires, or ultra vires.  It is further argued in the petition that the route of the fence is not proportional, as it causes harm of tremendous dimensions to the village and to the fundamental rights of its residents, including property rights, freedom of movement and the freedom to make a living.  It is also claimed that the fence could have been built in a way that would not usurp the land of petitioner and the residents of his village, or violate their rights.

 

Respondents' Position

 

20.          Respondents argue for rejection of the petition in limine due to intense laches, severely unclean hands on the part of petitioner and due to the existence of a valid agreement between respondents and petitioner.  Rejection of the petition on the merits is also requested.  Regarding laches, it is argued that petitioner was aware of the agreements signed by the attorney who was his counsel at the time, at the very latest, after the filing of the State's response to the motion to amend the petition in HCJ 2847/04.  The petition was submitted four months after petitioner knew, by his own admission, the facts regarding the agreements, and almost three months after the decision to reject the motion in HCJ 2847/04.  During that time the building of the fence was taking place in front of the eyes of the residents.  The delay changed respondents' position for the worse.  During those months various work took place in order to construct the fence.  A great amount of money was invested in constructing the fence.  Altering the route now will cause a severe and unreasonable delay in completing the fence, and will require investment of great additional resources.  Regarding section C, respondents argue that estoppel prevents petitioner from raising any arguments whatsoever, in light of the agreement with his counsel on his behalf, according to which the sequestration order in that section can be implemented.  Respondents note that although the agreement was not formally made, the continuation of the proceedings – which focused upon section D – clearly indicates the existence of agreement regarding section C.  Rejection in limine is requested also on the grounds of severely unclean hands.  The argument is based on the claim that in his petition, petitioner did not mention scheme 210/8, which has been in effect since 1999, focusing rather on scheme 210/8/1 which, at the time the petition was submitted, had not been approved.

 

21.          On the merits, respondents argue that the fence route is legal, and is in line with the provisions of international law and the caselaw of this Court.  Under the current security circumstances in the area, there is a necessary security need for the construction of the fence according to the route which has been determined.  The fence is a security means of the highest order, intended to defend the citizens of the State living in the Modi'in bloc, and the security of the State and its inhabitants.  According to respondent's line of thinking, in the framework of the determination of the fence route the military commander is authorized to consider new planning schemes for expansion of Israeli settlements.  The military commander is authorized to take new neighborhoods into account in the process of construction.  He is also authorized to consider valid planning schemes that have real chances of being implemented within a reasonable period, as there is no logic in building the fence and leaving new neighborhoods beyond it.  The weight that can be given to the existence of a planning scheme is not constant.  It is a derivative of the progress in implementing the valid planning scheme.  It depends both upon internal data regarding the population which the neighborhood is intended to serve and external data regarding the extent of harm to the Palestinian residents.

 

22.          In this case, in determining the route of the fence, the military commander took into account the need to defend the neighborhood which has been approved for construction pursuant to scheme 210/8, which has high chances of being implemented and in whose area construction has even begun, albeit with grand violations of the provisions of the scheme.  The planning scheme for its construction has been in force since 1999, and its western part is already partially built and inhabited, albeit with illegal construction, as it does not comply with the provisions of the effective scheme for its construction.  Also taken into account was the need to defend the "Naot HaPisga" neighborhood, which is now in advanced stages of construction.  As the aforementioned "East Mattityahu" neighborhood is to be built within the municipal boundaries of Modi'in Illit, and as under the circumstances of time and place there is a most reasonable chance that the fence will remain standing for a considerable number of years after the construction of the new neighborhood, there was nothing preventing the consideration of the fact of the planned construction of the new neighborhood in the framework of determining the route of the fence.  The fact that the developers of the "East Mattityahu" neighborhood took the law into their own hands and chose to commence illegal construction in the area of the neighborhood should not prevent the assigning of appropriate weight, in determination of the route, to the fact that a new neighborhood will be built on site.

 

The Real Estate Companies' Position

 

23.          The real estate companies also voice a series of preliminary arguments regarding severe laches and unclean hands, and claim reliance upon the agreement of December 15 2004 between petitioner and respondents, according to which construction will continue in section C according to the existing route.  They further claim that the relief requested in the petition is indefinite and all-encompassing, and that petitioner has not proven ownership of the relevant land and has not indicated concrete harm to any of the residents of Bil'in.  On the merits, the real estate companies argue that there is no justification for the alteration of the route of the fence.  According to them, they are the owners of the land to which planning scheme 210/8 applies, after the land was purchased legally, at full price, from its Arab owners, many years ago.  However, due to the concern that disclosing the documents of sale in public proceedings would endanger the lives of the sellers of the plots, the real estate companies refrained from attaching the documents which testify to that.  For that reason, claim the real estate companies, the State declared the purchased plots – at their request – as government land, and defined them as "private property under government administration".  A large number of village residents submitted an appeal of that declaration, however, the appeals committee rejected most of the appeals, including that of petitioner, and approved the declaration of the plots as government property, subject to the decision to remove a number of plots from the area declared.  According to the argument of the real estate companies, a large residential neighborhood is being erected on that land – the land of planning scheme 210/8 – which is an inseparable part of Modi'in Illit, and respondents are obligated to protect its residents and include its territory within the fence.

 

24.          The real estate companies further claim that the current route provides a reasonable, if not optimal, solution to the fence's security objectives, and that any movement of the fence westward will frustrate the original objective of the fence and endanger the residents of Modi'in Illit.  They claim that moving the fence westward will violate their proven rights unnecessarily and disproportionately.  In this context, the real estate companies are of the opinion that the present route also takes the fabric of life of the residents of Bil'in into consideration, and emphasize that this route distances the fence from the residents' houses, despite the fact that said distancing involves a concession of necessary topographically controlling points.  According to their argument, most of the land west of the route is owned by Jews; in most of it residential neighborhoods are being erected; there is no essential sign of the fabric of life of the Arab population on the ground; and although trees are planted in the Dolev riverbed, it is evident that the area has been neglected for years, is not taken care of and is not cultivated.  According to their argument, in that state of affairs, the proper balance of interests requires the erection of the fence along its present route, which properly balances between security of the inhabitants of Israel, and specifically of Modi'in Ilit, and the rights and fabric of life of the (Arab and Israeli) residents of the area, including the property rights of the real estate companies.

               

25.          Regarding the faults discovered in scheme 210/8/1, the real estate companies clarify that they had no intention to build without a permit or to show disrespect for the law.  They argue that they had every reason to assume that by the time work reached the relevant stages, they would already have building permits which reflect the new planning.  The suspension of the coming into force of scheme 210/8/1 by the State Attorney's office is what made the construction, technically, "illegal".  If events had followed their intended and expected route, as the Supreme Planning Council has always acted, the real estate companies would today have building permits, and all would be carried out according to law.  The real estate companies further argue that the building violations, to the extent that they indeed exist in the area of scheme 210/8, have no relevance to the route of the fence in the Village of Bil'in.

 

26.          Attached to the response of the real estate companies was the expert opinion of Major General (res.) Dr. Yom Tov Samiya, supporting their claims.  Major General Samiya opined that from the security standpoint, the location of the fence route constitutes the outer edge of the military commander's ability to consider the rights of the local Arab population on the one hand, and to provide security (albeit not optimal) to the residents of Modi'in Illit on the other hand.  The route allows control of the topographically controlling areas necessary for defending Modi'in Illit.  On the other hand stands the most slight harm to the fabric of life of the Palestinians, who will need to pass through an agricultural crossing for three weeks of the year in order to care for the trees and harvest the olives.  The location of the route, at a reasonable distance from the houses of the Israeli settlement, is the preferable situation in terms of the security aspect, as opposed to locating the route on territory which is relatively topographically inferior to Modi'in Illit and Bil'in.  In planning the route (which was altered after the Beit Sourik case), a series of controlling hills were already conceded, leaving them east of the fence.   If the hills are used by the Palestinians as controlling territory, the casualties will be among the Israeli forces patrolling along the fence.  Moving the route west will leave the houses of the "East Mattityahu" neighborhood and the "Naot HaPisga" neighborhood within the effective range of weapons in the possession of terrorist organizations in the area.

 

Discussion

 

27.          Decision regarding the legality of the security fence being erected in the Judea and Samaria area is made on the basis of a two-stage examination.  In the first stage the authority of the military commander is examined, and in the second stage, his discretion in employing his authority is examined (HCJ 1890/03 Municipality of Bethlehem v. The State of Israel, the Ministry of Defense, 59(4) PD 736, 747 (2005)).  The military commander's powers stem from the rules of public international law regarding belligerent occupation, which are entrenched mainly in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations), the annex to Convention (IV) Respecting the Laws and Customs of War on Land. Those regulations reflect customary international law.  The military commander's authority is also entrenched in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  In accordance with the laws of belligerent occupation, the military commander is authorized to order the erection of a security fence in the Judea and Samaria area on the basis of security-military considerations (Beit Sourik; Alfei Menashe; HCJ 5488/04 The a-Ram Local Council v. The Government of Israel (yet unpublished, December 13 2006) (hereinafter – a-Ram)).  He is authorized to take possession of land, including privately owned land, for that purpose.

 

28.          The military commander's authority arises only when the reason behind the decision to erect the fence is a security-military one.  "The military commander is not authorized to order the erection of the security fence if his reasons are political.  The security fence cannot be decided upon on in order to "annex" territory of the area to the State of Israel.  The objective of the separation fence cannot be the drawing of a political border" (Beit Sourik, at p. 828; see also Alfei Menashe, paragraph 15).  According to regulation 53 of the Hague Regulations, it is required that taking possession of property be for the needs of the army of occupation.  According to Article 52 of the Fourth Geneva Convention, it is required that taking possession of property be absolutely necessary by military operation.  The military commander's authority to erect a separation fence also entails authority to erect a fence for the protection of the lives and security of Israelis living in Israeli settlements in the Judea and Samaria area, even though the Israelis living in the area are not "protected persons" as that term is defined in Article 4 of the Fourth Geneva Convention (see Alfei Menashe, paragraphs 18-22; HCJ 3680/05 The Teneh Settlement Committee v. The Prime Minister of Israel (yet unpublished, February 1 2006) paragraphs 8-10, hereinafter – Teneh; HCJ 1998/06 The Beit Arieh Local Council v. The Minister of Defense (yet unpublished, May 21 2006), hereinafter – Beit Arieh; HCJ 1348/05 The Mayor of Salfit v. The State of Israel (yet unpublished, July 17 2006), paragraph 20, hereinafter – Salfit).  The question of the legality of the Israeli settlement in the area does not reflect upon the duty of the military commander to defend the lives and security of the Israeli settlers (Alfei Menashe, at paragraph 20). 

 

29.          The second stage in the examination of the legality of the fence is the examination of the military commander's discretion.  The military commander is not at liberty to make any decision whatsoever that fulfills legitimate security needs.  When determining the route of the fence, he must consider and balance a number of considerations.  The first consideration is the security-military consideration.  By force of that consideration, the military commander is permitted to take into account considerations regarding the defense of the security of the State and the security of the army.  These considerations are considerations of military and security expertise, regarding which the military commander is granted wide discretion.  It is he that is responsible for security.  He has the security expertise, knowledge and responsibility.  The Court grants great weight to his stance (see Beit Sourik, at paragraph 46; HCJ 258/79 Amira v. The Minister of Defense, 34(1) PD 90, 92 (1979); HCJ 390/79 Duikat v. The Government of Israel, 34(1) PD 25 (1979)).  Accordingly, it has been said in our caselaw that "… we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders of, and to maintain the boundaries of, the military commander’s discretion" (Beit Sourik, at pp. 842-843).  The second consideration which the military commander must consider is the welfare of the local population who are "protected persons".  The military commander must protect the human rights accepted in international law as rights of the local population (see Alfei Menashe, at paragraph 24; Teneh, at paragraph 10; Beit Arieh, at paragraph 8).  The third consideration is the safeguarding of the human rights of the Israelis living in the area (see HCJ 1661/05 The Gaza Coast Regional Council v. The Prime Minister, 59(2) PD 481, 560 (2005), hereinafter – Gaza Coast Regional Council; Alfei Menashe, at paragraphs 18-22; Teneh, at paragraphs 8-10; Beit Arieh, at paragraph 8).  That duty draws from the rules of international law and the rules of Israeli law.  In determining the essence of the rights of Israelis living in the area, the character of the area under belligerent occupation and the forces of the military commander are to be considered.

 

30.          The human rights to which the "protected persons" and the Israelis in the area are entitled are not absolute.  As all human rights, they are relative.  They can be restricted.  Some of the restrictions stem from the need to consider the rights of others.  Some of the restrictions stem from the security interest.  The military commander must balance the various considerations, which at times clash with each other.  A central standard in this balancing is "proportionality", which is examined in a three part test.  The first test determines that a link of fit is needed between the objective and the means.  The second test determines that among the means employable in order to realize the objective, the means which causes the least harm should be employed.  The third test determines that the damage caused to the individual by the employed means should maintain a proper proportion to the benefit stemming for it.  Regarding the three components of the proportionality test, it has been noted that "not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a 'zone of proportionality' must be recognized (similar to a 'zone of reasonableness'). Any means chosen by the administrative body that is within the zone of proportionality is proportionate" (Beit Sourik, at p. 840; see also Alfei Menashe, at paragraph 30).

 

The Legality of the Fence on Bil'in Land – the Outline of the Discussion

 

31.          We shall commence our discussion of the legality of the fence on the land of Bil'in with the examination of respondents' preliminary arguments.  Then we shall proceed to examination of the question whether the fence on Bil'in land was erected within the military commander's authority.  That discussion will examine the reasons for the construction of the fence beside Modi'in Illit.  After the examination of authority, we shall progress to examination of the scope of the harm to the local residents, and examine whether that harm is proportional.  We shall conclude our discussion with an examination of the relief which is called for in light of the entire legal analysis.

 

The Preliminary Arguments

 

32.          In their responses, respondents and the real estate companies raise three preliminary arguments: laches, unclean hands and the existence of an agreement with petitioner regarding "section C" of the fence.  Petitioner's counsel notes, in response, that before the petition was submitted, petitioner and the residents of Bil'in had no information regarding the plans for expansion of Modi'in Illit or regarding their fit with the planned fence route in the area.  Only shortly before the petition was submitted did he become aware of scheme 210/8/1 and the illegal construction.  Nor did petitioner know at the time about the scheme for Modi'in Illit.  Thus, petitioner should not be considered to have delayed the filing of the petition, to have unclean hands, or to be silenced by estoppel due to the agreement with his counsel in the previous petitions.  Petitioner's current counsel further claimed in the hearing before us that since the petition was submitted, additional facts have been discovered, justifying, in and of themselves, the reopening of the discussion of the issue.

 

33.          In our opinion, the preliminary arguments cannot lead to the rejection of the petition.  We accept petitioner's argument that the previous contacts and acts regarding the fence at Bil'in took place with only partial information regarding the planning situation of the "East Mattityahu" neighborhood, about the construction work de facto and about the considerations behind the planning of the fence route.  As it appears from the material before us, petitioner's previous counsel had been presented with scheme 210/8 in the past, but not with scheme 210/8/1, according to which construction was actually being carried out.  Thus, great weight is not to be assigned to the procedural agreement regarding "section C" (adjacent to scheme 210/8/1), which did not even reach the status of a formally binding agreement.  Furthermore, in the State's response to HCJ 11363/04, the two new neighborhoods of Modi'in Illit were mentioned only generally, without note of planning scheme numbers. Nor was the name of the neighborhood of "East Mattityahu" mentioned in the response, rather only the names "Naot HaPisga" and "Or Sameach" (paragraph 26 of the State's response to HCJ 11363/04 of January 8 2005.  Moreover, the State's response contained no clue of scheme 210/8's deviation from Modi'in Illit's area of municipal jurisdiction or the construction taking place in the "enclave" of private Palestinian land.  In its response, the State even emphasized that "the land located within the boundaries of the planning scheme are, necessarily, State lands or lands purchased by Israelis" (paragraph 15 of the State's response to HCJ 11363/04 of January 9 2005).  Only as a result of the submitting of the current petitions did the severe faults in scheme 210/8/1 come to light, requiring wide scale amendments and new approval proceedings.  Imprecision was also found in additional information presented before the Court.  Thus, for example, the figure stated by respondents regarding the scope of the land owned privately by Palestinians remaining on the "Israeli" side of the fence rose by 500 dunams, to 678 dunams.  Under such circumstances, when petitioner confronted difficulties in clarifying the relevant basis for the petition; when the data presented before his counsel and before the Court did not reflect the full picture; due to the substantive faults that were discovered over time regarding construction without an approved planning scheme; and due to information regarding the detailed planning scheme which was not relayed – the preliminary arguments raised by respondents and the real estate companies are not to be accepted.  Even if there is fault in the fact that the petition before us does not mention planning scheme 210/8 (which is the formally valid one), and that the arguments revolved around scheme 210/8/1 (according to which the construction was carried out de facto), due to the intensity of the faults discovered in the conduct of respondents and the real estate companies, I am not of the opinion that such a fault can lead to the rejection of the petition in limine, without discussion of it on the merits.

 

The Authority of the Military Commander

 

34.          We shall thus turn to the first component of examination of the legality of the fence, which is the authority component.  The question is whether the reason behind the route of the fence on Bil'in land is a security-military reason, or a political reason as claimed in the petition.  Using the tools at our disposal, we examined the motivation behind the erection of the fence.  We cannot accept the argument that the objective of the fence is to annex territory of the Judea and Samaria area to the territory of Israel and to the settlement of Modi'in Illit.  According to the factual basis which has been laid before us, the motivation for constructing the security fence in the area relevant to the petition is a security one.  The principled decision to construct the fence did not arise as a political idea of annexing territory, rather stemmed from military-security needs, and as a necessary means for defending the State and protecting its citizens.  The decision to construct the fence north and east of the Modi'in bloc and the settlement of Modi'in Illit was made against the background of the reality of severe terrorism which has plagued Israel since September 2000 and created a necessary security need to employ means to protect the lives and wellbeing of the citizens of Israel.  In the framework of those means, the government decided upon the erection of the security fence, whose objective is to frustrate and prevent infiltration of terrorist activity from Judea and Samaria into Israel.  We have already ruled in our caselaw that at the foundation of the decision to construct the fence is a security need, and not a political motivation (Beit Sourik, at p. 830; see also Alfei Menashe, at paragraph 100).

 

35.          Nonetheless, in the case before us it is clearly apparent that the determination of the fence route was significantly affected by the plans to erect new neighborhoods east of Modi'in Illit.  To the extent that the planning schemes considered in determining the route were in advanced stages of implementation and inhabitation, their consideration does not present difficulty, for various reasons.  Thus it is regarding the "Naot HaPisga" neighborhood which is being built according to a valid planning scheme.  Hundreds of apartment units have already been built and have been partially inhabited in that neighborhood.  That neighborhood is part of Modi'in Illit and is in need of defense just like it.  Thus, the fact that one of the considerations in planning the route was the defense of the "Naot HaPisga" neighborhood does not derogate from the authority of the military commander.  However, it turns out that an additional dominant consideration in planning the route was the defense of the "East Mattityahu" neighborhood.  Due to the planning situation of the "East Mattityahu" neighborhood, and the decisive weight which the military commander granted the defense of this future neighborhood, difficulty arises regarding the legality of the route that takes that consideration into account.  As is known, the planning of the route for the security fence should not be based on the desire to include, on the "Israeli" side of the fence, territory intended for expansion of settlements, specifically when the planning schemes are not about to be implemented in the near future (see Alfei Menashe, at paragraph 113; Salfit, at paragraph 29; HCJ 2732/05 The Chairman of the Azoun City Council v. The Government of Israel (yet unpublished, June 15 2006)).  Regarding the "East Mattityahu" neighborhood, it turned out that scheme 210/8/1 replaced, de facto, scheme 210/8 which had been in effect since 1999 but had not been implemented.  The route of the fence thus took into account a planning scheme which had been abandoned, prior to the approval of the new planning scheme.  In that state of affairs, one could not continue to rely on the original planning scheme, which had been abandoned by the developers and the local government, in order to justify the fence route.  It should be emphasized that due to the temporary nature of the fence as a security measure (Alfei Menashe, at paragraph 100), the planning of the route cannot include considerations related to invalid planning schemes, or future schemes which neither have been realized nor are expected to be realized in the near future.  Today as well, despite the fact that scheme 210/8/1 has passed the new approval proceedings, due to the fact that implementation of phase B (the eastern part) is conditional upon approval of the Minister of Defense, there is great doubt whether the fence route can be based upon the desire to include the neighborhood, in its entirety, west of the fence.  The planning aspect of the "East Mattityahu" neighborhood is complex.  It has undergone upheavals since approval of scheme 210/8 and since the planning of the fence route.  The planning scheme's provisions are also complex.  Due to that complexity, and due to the conclusion we have reached on the question of proportionality, we refrain from deciding the question whether the fact that the "East Mattityahu" neighborhood was a decisive consideration in the planning of the route leads to the conclusion that a fault occured regarding the military commander's very authority to order the erection of the fence on Bil'in land, or whether it should be determined that it is a fault in discretion, as opposed to lack of authority.  We thus assume, for the sake of discussion, that the construction of the fence was within the authority granted to the military commander.  We shall progress, then, to the examination of the question whether the use of the authority granted to the military commander was proportionate.

 

The Proportionality of the Route

 

36.          The fence route harms the residents of Bil'in.  That harm is caused as a result of the sequestration of the land for the construction of the fence itself, uprooting of trees located along the route, and sealing off of cultivated agricultural land on the "Israeli" side of the fence.  The fence route takes up 260 dunams.  In addition, the route detaches the residents of Bil'in from hundreds of dunams of private land and cultivated agricultural land.  That land is planted with olive trees, grapevines and almonds, and is also used as grazing land for the sheep herds of the village residents.  For many of the residents of Bil'in it is the source of their livelihood.  Access to this land will be restricted to a crossing at an agricultural gate for permit holders, with all the difficulties that entails.  Respondents do not deny the harm to the residents of Bil'in.  However, their position is that the harm is proportional, due to the necessary security need which includes, in their opinion, protection of the residents who will live in the new neighborhoods east of Modi'in Illit, including the two phases of the "East Mattityahu" neighborhood, a need which can be fulfilled, according to their argument, only by erecting the fence along the route on which it has been constructed.  Respondents note in this context that they intend to lessen the harm to the residents of Bil'in, and that they are also willing to pay compensation and regular payments for use due to the seizing of the land for construction of the fence.

 

37.          Is the harm to the residents of Bil'in proportional?  It appears that the fence withstands the rational link test.  The fence realizes the security objective behind the decision to construct it, which is separation between the Israeli settlements and the Palestinian settlements in the Judea and Samaria area, and protection of Israelis from terrorist attacks.  Does the route of the fence withstand the second subtest – the least harmful means test?  It was claimed before us that the security objective can be attained by using an alternative route which would be closer to the houses of Modi'in Illit, on the basis of the existing fence of the settlement.  At the hearing before us, petitioner further claimed that even if the desire is to include the houses which have been built in the "East Mattityahu" neighborhood on the "Israeli" side of the fence, the fence can still be moved west and the harm to the residents of Bil'in can be reduced.  Respondents' stance is that there is no other reasonable means that can attain the necessary security objective for which the fence was built, while harming the residents of Bil'in to a lesser extent.  That position is based upon their approach, according to which the security objective is defending the residents who will live in the future in the "Naot HaPisga" and "East Mattityahu" neighborhoods.  That position can be accepted, to the extent that it relates to the neighborhood of "Naot HaPisga" which is in advanced stages of construction and inhabitation.  That is not the case regarding "East Mattityahu".  As it appears from our discussion, the route based upon the planning scheme for the construction of "East Mattityahu" raises substantial difficulties.  The point of departure at this time for examining the route of the fence must thus be, as aforementioned, scheme 210/8/1, both in terms of its planning status and provisions, and in terms of its realization de facto.  Planning scheme 210/8/1 is divided into two parts.  Phase A (the western phase) can be realized when the planning scheme comes into force.  Development and marketing of phase B (the eastern phase), however, is conditional upon approval of the Minister of Defense.  It is uncontroversial that more than forty buildings have been built in the "East Mattityahu" neighborhood, including hundreds of apartment units.  Tens of apartments have already been inhabited, but the construction is solely in the western part of the neighborhood.  In the eastern part no development or construction work has been carried out.  That part is yet far from implementation, both normatively and practically.  The future implementation of phase B is not certain whatsoever.  Under such circumstances, we cannot accept the argument that defending the eastern part of the "East Mattityahu" neighborhood is a necessary security objective.  Regarding the eastern part, it is but a future need.  Considering the lack of certainty regarding construction of phase B of the neighborhood, and considering the temporary nature of the fence, it is not at this time absolutely necessary by military operation.  Furthermore, as detailed below, it seems that due to the desire to ensure the future construction of the eastern neighborhood, the fence route was determined in a place which lacks security advantages.

 

38.          Thus, the question requiring decision is whether there is an alternate route that provides protection to the houses being built in the western part of "East Mattityahu" whose harm to the Palestinian residents is lesser.  Respondents did not explain why the security objective behind the decision to construct the fence cannot be attained via a route that would circumvent the western part of "East Mattityahu" but leave Palestinian land in the Dolev riverbed and additional land, as well as the "enclaves" in scheme 210/8/1, outside the fence.  Respondents did not relay data regarding the distance between the fence route and the houses which have already been built in the "East Mattityahu" neighborhood.  Nor was data relayed regarding the distance between the fence route and the boundary of phase A of "East Mattityahu" as it appears from the aforementioned.  Given the factual basis as it was presented to us, the current route of the fence also leads one to wonder about the security advantage it provides.  It is uncontroversial that the route passes mostly through territory which is topographically inferior both to Modi'in Illit and Bil'in.  It leaves a number of hills on the Palestinian side and two hills on the Israeli side.  It endangers the forces patrolling the route.  Against the background of the security outlook presented to us in many other cases, according to which it is important from a security standpoint to construct the fence on topographically controlling territory, the current route leads one to wonder.  In general, the military commander presents the possession of controlling hills as a significant security advantage in many cases regarding fence route planning, but in this case a route has been determined that is at least partially on territory which is inferior vis-à-vis the hills.  This route cannot be explained by anything save the desire to include the eastern part of "East Mattityahu" west of the fence, otherwise it is doubtful whether there is a security-military reason for determining the route of the fence where it is now.  Respondents do not even deny that, stating expressly in their arguments that the route was chosen according to the security objective, including protection of the new neighborhoods to be built in the future, and that the distances of the route from the Israeli settlements were measured in accordance with the lines of the future planning scheme, and not according to existing construction.  Rejection of "option A", which was intended to exclude the Dolev riverbed from the "seamline area" was reasoned by respondents by the argument that "'option A does not provide an appropriate security solution for the residents of the new neighborhoods and the residents of Modi'in Illit, due to its proximity to the housing in the new neighborhoods".  It is to be remembered, as aforementioned, that the intention to develop the eastern part of "East Mattityahu" in the future does not even constitute a consideration to be considered at this point.  Under such circumstances, we have not been persuaded that it is necessary, due to security-military reasons, to maintain the present route that passes through Bil'in land.  We have not been persuaded that without considering planning scheme 210/8 in its entirety, there is no appropriate security alternative for construction of the fence for protecting the residents of Modi'in Illit.  It appears to us that against the background of respondents' clinging to the original scheme 210/8, no detailed examination was made of an alternate route that can ensure the security of the residents in the western part of "East Mattityahu" with less harm to the residents of Bil'in.  All the alternatives considered by respondents were rejected for security reasons regarding the defense of the new neighborhoods, including the two phases of the "East Mattityahu" neighborhood, and in fact the military commander did not even examine any possibility which does not consider, for example, the future phase B of the "East Mattityahu" neighborhood.  It must be remembered that moving the route westward will apparently lead to the construction of the fence on the territory of planning scheme 210/8.  That territory is mostly "state land" and not privately owned Palestinian land, a fact that will also reduce the harm to the Palestinian residents.  Respondents must reconsider the current route, and examine the possibility of an alternate route that is not based upon defending phase B of "East Mattityahu".

 

39.          We have not overlooked the real estate companies' claims that moving the fence west will lead to a violation of their property rights and their economic expectations.  However, these arguments cannot derogate from the conclusion that the respondents must reexamine the route, for a number of reasons.  First, there is a gap between the respondents' stance, according to which the territory upon which the "East Mattityahu" neighborhood is planned to be erected is "state land", and the real estate companies' stance according to which it is private land purchased by them or for them.  In accordance with the ruling of this Court in HCJ 3998/06 Yassin v. The Military Commander in the West Bank (yet unpublished, November 9 2006), the land to which planning scheme 210/8 applies has been declared as government land on the basis of it being "state land" and not on the basis of a claim of ownership by private entities.  That declaration does not, in and of itself, determine or create rights of ownership in the land.  To date there has been no substantive law determination of property rights held by any of the real estate companies.  The discussion of the fence route itself is not the fitting procedural framework to clarify the rights of ownership.  Second, even if we assume for the sake of the discussion that the real estate companies are the owners of the plots of land to which planning scheme 210/8 applies, that cannot prevent moving the fence west.  As security needs are likely to require harming the land of the local residents and their use of it, so are they likely to also require harming land of Israelis and their ability to use it (see, e.g., HCJ 5495/06 Hevrat HaKeren L'Yad Midreshet Eretz Yisrael v. The Minister of Defense (yet unpublished, August 15 2006)).  The proportionality rules in planning the fence route are likely also to leave Israeli residents and Israeli assets on the "Palestinian" side of the fence (see, inter alia, Teneh, HCJ 399/06 Sussia – Agricultural Cooperative Society for Community Settlement Ltd. v. The Government of Israel (yet unpublished, July 6 2006); a-Ram; Bir Nabala; HCJ 1844/06 Rinawi v. The Prime Minister (yet unpublished, June 15 2006)).  The balancing between the various interests – security needs, the rights of the Palestinian residents, and the rights of the Israelis – must be performed by the military commander in the framework of the reexamination of the fence route.

 

40.          In summary, we have not been persuaded that the second subtest of proportionality has been fulfilled in the fence route through Bil'in land.  We have not been persuaded that it is absolutely necessary by military operation to preserve the existing route of the fence which passes through topographically inferior territory on Bil'in land and that there is no worthy security alternative for construction the fence in order to protect the residents of Modi'in Illit.  Respondents must reconsider the existing route and examine an alternative route that can ensure the security of the residents in the western part of "East Mattityahu" and whose harm to the residents of Bil'in will be lesser.  We are aware of the fact that such alteration cannot be made in a day, as it requires taking down the existing fence and building a new fence along certain parts of the route.  Due to the continuing harm to the residents of Bil'in, respondents must perform the reexamination within a reasonable period of time.

 

41.          Due to our determination regarding the second subtest, we could have left to future decision the question whether the fence route fulfills the third proportionality test – the test of proportionality stricto senso.  However, we see fit to state that due to the entirety of the data and the considerations we discussed above, the fence route does not withstand the third proportionality test either.  That test examines the question whether the fence route's harm to petitioners is of proper proportion to the benefit which the construction of the fence on the chosen route entails.  In this case, the chosen route causes severe harm to the residents of Bil'in.  The harm is caused by the seizure of land for constructing the fence, uprooting of trees located along the route, and trapping agricultural land on the "Israeli" side of the fence.  As aforementioned, the route of the fence separates the village of Bil'in from a large part of the land still belonging to the village.  The route of the fence itself takes up approximately 260 dunams; approximately 1,700 additional dunams of its land according to the British Mandate distribution of the land, more than 670 of which are privately owned by residents of Bil'in, remain on the western side of the fence.  On this land there are currently thousands of olive trees, almond trees and grapevines.  The land is also used as grazing land for the sheep herds owned by residents of the village.  They are the main source of income for approximately 200 families in Bil'in.  Respondents do not deny the harm to the residents of Bil'in, yet they are of the opinion that the harm is reasonable and proportional.  They argue that the harm to the residents of the Village of Bil'in is proportional to the necessary security need to defend the inhabitants of Israel in general and the residents of the Modi'in bloc specifically.  We cannot accept that stance.  The construction of the fence on part of the land of Bil'in, and restricting the access of the residents of Bil'in to substantial additional parts of their land, by erecting checkpoints and an agricultural fence for permit holders only, create significant difficulties for the residents of Bil'in, and substantially harm the fabric of their lives.  And on the other hand, the security benefit expected from the present route, which today defends the territory upon which construction has not been carried out, is not comparable to the harm to the "protected persons".  Thus, the chosen route deviates from the balance between security needs and the needs and welfare of the residents of Bil'in.  Although we accept respondents' argument that choosing the route adjacent to the houses of Modi'in Illit does not provide a fitting security solution, respondents' stance was formulated in accordance with the boundaries of the future planning scheme of the "East Mattityahu" neighborhood, and not according to the existing construction on the ground.  As we ruled above, the existence of an intention to develop the eastern part of "East Mattityahu" in the future does not constitute a consideration that can be taken into account at this point, and thus it appears that the harm to the local residents can be lessened by choosing an alternate route which will not take into account territory intended for the future construction of phase B of the "East Mattityahu" neighborhood.  

 

42.          As mentioned above, in the hearings before us, data regarding the proper alternate route to replace the fence route attacked in the petition was not presented to us, and in fact such a route was not even examined by respondents.  Thus, we have decided to make the order nisi an order absolute, as follows: Respondents no. 1 and 2 must, within a reasonable period of time, reconsider an alternative to the route of the separation fence on Bil'in land, which will harm the residents of Bil'in to a lesser extent, and leave the cultivated land on the east side of the fence to the extent possible; in this context, the alternative is to be examined such that the territory of phase A of "East Mattityahu" will remain on the west side of the security fence, whereas the agricultural land in the Dolev riverbed and the land planned for future construction of phase B of the "East Mattityahu" neighborhood will remain on the east side of the fence.  Until completion of the examination of the alternate route, the interlocutory injunction of June 12 2007 shall remain in effect, such that the Bil'in gate shall remain open to passage by Bil'in residents from 6am to 8pm. 

 

Vice President E. Rivlin:

 

I concur.

 

Justice A. Procaccia:

 

I concur.

 

Decided as per the judgment of President D. Beinisch.

 

Given today, 21 Elul 5767 (September 4 2007).

 

 

 

 

 

 

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 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 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 “Seamline Area” between Israel and the area. 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 the Israel: the Umm El-Fahm region and the villages divided between Israel and 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 “Seamline Area” program (June 23, 2002).  The armed services presented their proposal to erect an obstacle on the “Seamline.” 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 “Seamline 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:

 

1. The Government reiterates its decision regarding the importance of the “Seamline Area” and emphasizes the security need for the obstacle in the “Seamline Area” and in “Greater Jerusalem.”

 

2. 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 “Seamline 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 “Seamline 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 “Seamline” 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 refer to the entire obstacle on the “Seamline” 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 their lands are affected. The obstacle itself passes over 4,850 dunams, and will separate between petitioners and more than 37,000 dunams, 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 with all possible speed. 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 to 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 Muktam. 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 desire of the commander of the area to prevent direct flat-trajectory fire upon the separation fence causes damage from a security perspective.  Due to this desire, the fence passes through areas that, though they have 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.  It will be possible to overcome the concern about infiltration 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 the border is a political border and not a security border.  The security objective of the fence is not only to separate Israel from the residents of the area of Judea and Samaria, it must also 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 “Seamline 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 the route 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. Petitioner second argument is that the construction of the fence in the area is based, in a 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 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 the 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 constituted the main part 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 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 held by him in belligerent occupation, every activity which is primarily motivated by security considerations. The discretion of the military commander is restricted by the normative system in which he acts, and 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 which 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 central 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 attain a balance between these different considerations.

 

See also Marab, at 365. Similarly:

 

The obligation of the military administration, defined in regulation 43 of the Hague Regulations, is to preserve the order and the public life of the local population, but to do so while properly balancing between the interests of the population in the territory, and the military and security needs of soldiers and citizens located in the territory.

 

HCJ 2977/91 Thaj v. Minister of Defense, at 474 (Levin, J.).

 

The Hague Convention authorizes the military commander to act in two central areas: one – ensuring the legitimate security interest of the holder of the territory, and the other – providing for the needs of the local population in the territory held in belligerent occupation …. The first need is military and the second is civilian-humanitarian.  The first focuses upon the security of the military forces holding the area, and the second focuses upon the responsibility for ensuring the well being of the residents.  In the latter area the military commander is responsible not only for the maintenance of the order and security of the inhabitants, but also for the protection of their rights, especially their constitutional human rights.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must take into account.

 

Hess, at paragraph 8 (Procaccia, J.).

 

35.  This approach of this Court is well anchored in the humanitarian law of public international law.  This is set forth in Regulation 46 of the Hague Regulations and Article 46 of the Fourth Geneva Convention. Regulation  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.

 

Article 27 of the Fourth Geneva Convention provides:

 

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 …. However, 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 rules are founded upon a recognition of the value of man and the sanctity of his life. See Physicians for Human Rights, at para. 11.  Interpreting Article 27 of the Fourth Geneva Convention, Pictet writes:

 

Article 27 . . . occupies a key position among the articles of the Convention.  It is the basis of the Convention, proclaiming as it does the principles on which the whole “Geneva Law” is founded.  It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women . . . the right of respect for the person must be understood in its widest sense:  it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers, it includes, in particular, the right to physical, moral and intellectual integrity – one essential attribute of the human person.

 

The rules in Regulation 46 of the Hague Regulations and in Article 27 of the Fourth Geneva Convention cast a double obligation upon the military commander:  he must refrain from actions that injure the local inhabitants.  This is his “negative” obligation. He must take the legally required actions in order to ensure that the local inhabitants shall not be injured.  This is his “positive” obligation.  See Physicians for Human Rights. In addition to these fundamental provisions, there are additional provisions that deal with specifics, such as the seizure of land. See Regulation 23(g) and 52 of the Hague Regulations; Article 53 of the Fourth Geneva Convention. These provisions create a single tapestry of norms that recognizes both human rights and the needs of the local population as well recognizing security needs from the perspective of the military commander. Between these conflicting norms, a proper balance must be found.  What is that balance?

 

Proportionality

 

36.  The problem of balancing between security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation.  It is a general problem in the law, both domestic and international.  Its solution is universal.  It is found deep in the general principles of law, including reasonableness and good faith. See B. Cheng, General Principles of Law as Applied By International Courts and Tribunals (1987); T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989); S. Rosenne, The Perplexities of Modern International Law 63 (2002).  One of those foundational principles which balance between the legitimate objective and the means of achieving it is the principle of proportionality.  According to it, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate.  This approach crosses through all branches of law.  In the framework of the petition before us, its importance is twofold: first, it is a basic principle in international law in general and specifically in the law of belligerent occupation; second, it is a central standard in Israeli administrative law which applies to the area under belligerent occupation.  We shall now briefly discuss each of these.

 

37.  Proportionality is recognized today as a general principle of international law. See Meron, at 65; R. Higgins, Problems and Process: International Law and How We Use It 219 (1994); Delbruck, Proportionality, 3 Encyclopedia of Public International Law 1140, 1144 (1997).  Proportionality plays a central role in the law regarding armed conflict.  During such conflicts, there is frequently a need to balance between military needs and humanitarian considerations.  See Gardam,  Proportionality and Force in International Law, 87 Am. J. Int’l L. 391 (1993); Garden, Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J. Int’l L. 285 (1996); Dinstein, Military Necessity, 3 Encyclopedia of Public International Law 395 (1997); Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of  Proportionality ?, 23 Loy. L. A. Int’l & Comp. L. Rev. 329 (2001); Roberts, The Laws of War in the War on Terror, 32 Isr. Yearbook of Hum. Rights. 1999 (2002).  Proportionality is a standard for balancing.  Pictet writes:

 

In modern terms, the conduct of hostilities, and, at all times the maintenance of public order, must not treat with disrespect the irreducible demands of humanitarian law.

 

From the foregoing principle springs the Principle of Humanitarian Law (or that of the law of war):

 

Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy.

 

J. S. Pictet, Developments and Principles of International Humanitarian Law 62 (1985). Similarly, Fenrick has stated:

 

[T]here is a requirement for a subordinate rule to perform the balancing function between military and humanitarian requirements. This rule is the rule of proportionality.

 

Fenrick, The Rule of  Proportionality and Protocol I in Conventional Warfare, 98 Military L. Rev. 91, 94 (1982). Gasser repeats the same idea:

 

International humanitarian law takes into account losses and damage as incidental consequences of (lawful) military operations … The criterion is the principle of proportionality.

 

Gasser, Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts 220 (D. Fleck ed., 1995).

 

38.  Proportionality is not only a general principle of international law. Proportionality is also a general principle of Israeli administrative law.  See Segal, The Cause of Action of Disproportionality in Administrative Law, HaPraklit 50 (1990); Zamir, The Administrative Law of Israel Compared to the Administrative Law of Germany, 2 Mishpat U’Mimshal 109, 130 (1994). At first a principle of our case law, then a constitutional principle, enshrined in article 8 of the Basic Law: Human Dignity and Freedom, it is today one of the basic values of the Israeli administrative law.  See HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, at 435; HCJ 3477/95 Ben-Atiyah v. Minister of Education, Culture & Sports; HCJ 1255/94 Bezeq v. Minister of Communications, at 687; HCJ 3643/97 Stamka v. Minister of Interior; HCJ 4644/00 Tavori v. The Second Authority for Television and Radio;  HCJ 9232/01 “Koach” Israeli Union of Organizations for the Defense of Animals v. The Attorney-General, at 261; D. Dorner, Proportionality, in 2 The Berenson Book 281 (A. Barak & C. Berenson eds., 1999).  The principle of proportionality applies to every act of the Israeli administrative authorities.  It also applies to the use of the military commander’s authority pursuant to the law of belligerent occupation.

 

39.  Indeed, both international law and the fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing between the authority of the military commander in the area and the needs of the local population.  Indeed, the principle of proportionality as a standard restricting the power of the military commander is a common thread running through our case law. See Segal, Security Authority, Administrative  Proportionality and Judicial Review, 1 Iyunei Mishpat 477 (1993).  Thus, for example, this Court examined, by use of the standard of proportionality, the authority of the military commander regarding “an order assigning a place of residence.”  See Ajuri; HCJ 9552/03 Abed v. Commander of the IDF Forces in the West Bank; HCJ 9586/03 Sualmeh v. Commander of the IDF Forces in the Judea and Samaria Region. The standard of proportionality was likewise used to examine his authority to surround towns and position checkpoints on the access roads to and from them, in order to frustrate terror.  See HCJ 2847/03 Alauna v. Commander of the IDF Forces in Judea and Samaria; HCJ 2410/03 Elarja v. Commander of the IDF Forces in Judea and Samaria. The same applied to injury to the property of residents due to combat activities of the IDF (HCJ 9252/00 El Saka v. State of Israel); the establishment of entry routes for Israelis into the area and its declaration as “closed military territory” (HCJ 9293/01 Barakeh v. Minister of Defense); the means employed to protect the safety of worshippers and their access to holy places (Hess); the demolition of houses for operational needs (HCJ 4219/02 Joosin v. Commander of the IDF Forces in the Gaza Strip);  such demolition for deterrence purposes (HCJ 5510/92 Turkman v. Defense Minister, at 219; HCJ 1730/96 Sabih v. Commander of the IDF Forces in the Area of Judea and Samaria, at 364; HCJ 893/04 Farj v. Commander of the IDF Forcers in the West Bank);  the living conditions of detained suspects in the area (HCJ 3278/02 Center for Defense of the Individual v. Commander of the IDF Forces in the West Bank Area; HCJ 5591/02 Yassin v. Commander of Kziot Military Camp); the authority to arrest for investigation purposes and the denial of a meeting between a detainee and an attorney (Marab); the siege of those hiding in holy places (HCJ 3451/02 Almandi v. Minister of Defence, at 36);  and the regulation of the recording and identification of residents of the area (HCJ 2271/98 Abed v. Interior Minister).

 

The Meaning of Proportionality  and its Elements

 

40.  According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize the governmental objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is being attempted, and the means used to achieve it. This principle is a general one. It requires application. As such, both in international law, which deals with different national systems – from both the common law family (such as Canada) and the continental family (such as Germany) – as well as in domestic Israeli law, three subtests grant specific content to the principle of proportionality. See J. Schwarze, European Administrative Law 687 (1992); N. Emiliou, The Principle of Proportionality in European Law; A Comparative Study (1996); The Principle of Proportionality in the Laws of Europe (1999).

 

41.  The first subtest is that the objective must be related to the means. The means that the administrative body uses must be constructed to achieve the precise objective which the administrative body is trying to achieve.  The means used by the administrative body must rationally lead to the realization of the objective.  This is the “appropriate means” or “rational means” test.  According to the second subtest, the means used by the administrative body must injure the individual to the least extent possible.  In the spectrum of means which can be used to achieve the objective, the least injurious means must be used.  This is the “least injurious means” test.  The third test requires that the damage caused to the individual by the means used by the administrative body in order to achieve its objectives must be of proper proportion to the gain brought about by that means. That is the “proportionate means” test (or proportionality “in the narrow sense.”)  The test of proportionality “in the narrow sense” is commonly applied with “absolute values,” by directly comparing the advantage of the administrative act with the damage that results from it.  However, it is also possible to apply the test of proportionality in the narrow sense in a “relative manner.”  According to this approach, the administrative act is tested vis-à-vis an alternate act, whose benefit will be somewhat smaller than that of the former one. The original administrative act is disproportionate in the narrow sense if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act.

 

42.  It is possible to say that the means used by an administrative authority are proportionate only if all three subtests are satisfied.  Satisfaction of one or two of these subtests is insufficient. All three of them must be satisfied simultaneously. Not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a “zone of proportionality” must be recognized (similar to a “zone of reasonableness.”) Any means chosen by the administrative body that is within the zone of proportionality is proportionate.  See Ben-Atiyah, at 13; HCJ 4769/95 Menachem v. Minister of Transportation, at 258.

 

43.  This principle of proportionality also applies to the exercise of authority by the military commander in an area under belligerent occupation.  Thus, for example, in Ajuri, the question arose whether restricting the area in which one can live – in that case, the transfer of local inhabitants from the area of Judea and Samaria to the Gaza Strip – was proportionate. Regarding the proportionality test, as applied in that case, I wrote:

 

Like the use of any other means, the means of restricting the area in which one can live must be also be used proportionately. The individual’s offense must be proportionate to the means employed by the authorities … an appropriate link is necessary between the objective of preventing danger from the person whose living area is restricted, and the danger if this means is not employed … it is necessary that the injury caused by the means employed be minimal; it is also necessary that the means of restricting the living area be of proper proportion to the security benefit to the area.

 

Id., at 373.

 

The  Proportionality of the Route of the Separation Fence

 

44. The principle of proportionality applies to our examination of the legality of the separation fence. This approach is accepted by respondents.  It is reflected in the government decision (of October 1, 2003) that “during the planning, every effort shall be made to minimize, to the extent possible, the disturbance to the daily lives of the Palestinians due to the construction of the obstacle.” The argument that the damage caused by the separation fence route is proportionate was the central argument of respondents.  Indeed, our point of departure is that the separation fence is intended to realize a security objective which the military commander is authorized to achieve.  The key question regarding the route of the fence is: is the route of the separation fence proportionate? The proportionality of the separation fence must be decided by the three following questions, which reflect the three subtests of proportionality. First, does the route pass the “appropriate means” test (or the “rational means” test)?  The question is whether there is a rational connection between the route of the fence and the goal of the construction of the separation fence.  Second, does it pass the test of the “least injurious” means?  The question is whether, among the various routes which would achieve the objective of the separation fence, is the chosen one the least injurious.  Third, does it pass the test of proportionality in the narrow sense?  The question is whether the separation fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the fence. According to the “relative” examination of this test, the separation fence will be found disproportionate if an alternate route for the fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route. 

 

The Scope of Judicial Review

 

45.  Before we examine the proportionality of the route of the separation fence, it is appropriate that we define the character of our examination. Our point of departure is the assumption, which petitioners did not manage to negate, that the government decision to construct the separation fence is motivated by security, and not a political, considerations.  As such, we work under the assumption – which the petitioners also did not succeed in negating – that the considerations of the military commander based the route of the fence on military considerations that, to the best of his knowledge, are capable of realizing this security objective. In addition, we assume – and this issue was not even disputed in the case before us – that the military commander is of the opinion that the injury to local inhabitants is proportionate.  On the basis of this factual foundation, there are two questions before us. The first question is whether the route of the separation fence, as determined by the military commander, is well-founded from a military standpoint. Is there another route for the separation fence which better achieves the security objective? This constitutes a central component of proportionality. If the chosen route is not well-founded from the military standpoint, then there is no rational connection between the objective which the fence is intended to achieve and the chosen route (the first subtest); if there is a route which better achieves the objective, we must examine whether this alternative route inflicts a lesser injury (the second subtest).  The second question is whether the route of the fence is proportionate. Both these questions are important for the examination of proportionality.  However, they also raise separate problems regarding the scope of judicial review.  My colleague Justice M. Cheshin has correctly noted:

 

Different subjects require, in and of themselves, different methods of intervention.  Indeed, acts of state and acts of war do not change their character just because they are subject to the review of the judiciary, and the character of the acts, according to the nature of things, imprints its mark on the methods of intervention.

 

HCJ 1730/96 Sabih v. Commander of IDF forces in the Area of Judea and Samaria, at 369. We shall examine, therefore, the scope of intervention for each of the two questions before us, separately.

 

The Military Nature of the Route of the Separation Fence

 

46.  The first question deals with the military character of the route. It examines whether the route chosen by the military commander for the separation fence achieves its stated objectives, and whether there is no route which achieves this objective better. It raises problems within the realm of military expertise.  We, Justices of the Supreme Court, are not experts in military affairs.  We shall not examine whether the military commander’s military opinion corresponds to ours – to the extent that we have a opinion regarding the military character of the route. So we act in all questions which are matters of professional expertise, and so we act in military affairs as well. All we can determine is whether a reasonable military commander would have set out the route as this military commander did.  President Shamgar dealt with this idea, noting:

 

It is obvious, that a court cannot “slip into the shoes” of the deciding military official … In order to substitute the discretion of the commander with the discretion of the Court, we examine the question whether, in light of all of the facts, the employment of the means can be viewed as reasonable.

 

HCJ 1005/89 Aga v. Commander of the IDF Forces in the Gaza Strip Area, at 539. Similarly, in Ajuri, I wrote:

 

The Supreme Court, sitting as the High Court of Justice, reviews the legality of the military commander’s discretion. Our point of departure is that the military commander, and those who obey his orders, are civil servants holding public positions.  In exercising judicial review, we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders and to maintain the boundaries of the military commander’s discretion …. It is true, that “the security of the state” is not a ”magic word” which makes judicial review disappear. Thus, we shall not be deterred from reviewing the decisions of the military commander … simply because of the important security considerations anchoring his decision.  However, we shall not substitute the discretion of the commander with our own discretion. We shall check the legality of the discretion of the military commander and ensure that his decisions fall within the “zone of reasonableness.”

 

Id., at 375; see also HCJ 619/78 “Al Tal’ia” Weekly v. Defense Minister, at 512; Jam’iat Ascan, at 809; Barake, at 16.

 

47.  The petition before us is exceptional in that opinions were submitted by the Council for Peace and Security. These opinions deal with the military aspect of the separation fence. They were given by experts in the military and security fields, whose expertise was also recognized by the commander of the area.  We stand, therefore, before contradictory military opinions regarding the military aspects of the route of the separation fence.  These opinions are based upon contradictory military views.  Thus, for example, it is the view of the military commander that the separation fence must be distanced from the houses of Jewish towns, in order to ensure a security zone which will allow pursuit after terrorists who have succeeded in passing the separation fence, and that topographically controlling territory must be included in the route of the fence.  In order to achieve these objectives, there is no escaping the need to build the separation fence proximate to the houses of the local inhabitants. In contrast, the view of military experts of the Council for Peace and Security is that the separation fence must be distanced from the houses of local inhabitants, since proximity to them endangers security. Topographically controlling territory can be held without including it in the route of the fence.  In this state of affairs, are we at liberty to adopt the opinion of the Council for Peace and Security? Our answer is negative. At the foundation of this approach is our long-held view that we must grant special weight to the military opinion of the official who is responsible for security. Vice-President M. Landau J. dealt with this point in a case where the Court stood before two expert opinions, that of the Major General serving as Coordinator of IDF Activity in the Territories and that of a reserve Major General. Thus wrote the Court:

 

In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.  Very convincing evidence is necessary in order to negate this assumption.

 

HCJ 258/79 Amira v. Defense Minister, 92.

 

Justice Vitkon wrote similarly in Duikat, in which the Court stood before a contrast between the expert opinion of the serving Chief of the General Staff regarding the security of the area, and the expert opinion of a former Chief of the General Staff.  The Court ruled, in that case, as follows:

 

In security issues, where the petitioner relies on the opinion of an expert in security affairs, and the respondent relies on the opinion of a person who is both an expert and also responsible for the security of the state, it natural that we will grant special weight to the opinion of the latter.

 

HCJ 390/79 Duikat v. Government of Israel.

 

Therefore, in our examination of the contrasting military considerations in this case, we give special weight to the fact that the commander of the area is responsible for security.  Having employed this approach, we are of the opinion – the details of which we shall explain below – that petitioners have not carried their burden, and have not convinced us that we should prefer the professional expert opinion of members of the Council for Peace and Security over the security stance of the commander of the area.  We are dealing with two military approaches.  Each of them has military advantages and disadvantages.  In this state of affairs, we must place the expert opinion of the military commander at the foundation of our decision.

 

The  Proportionality of the Route of the Separation Fence

 

48. The second question examines the proportionality of the route of the separation fence, as determined by the military commander. This question raises no problems in the military field; rather, it relates to the severity of the injury caused to the local inhabitants by the route decided upon by the military commander. In the framework of this question we are dealing not with military considerations, but rather with humanitarian considerations. The question is not the proportionality of different military considerations.  The question is the proportionality between the military consideration and the humanitarian consideration.  The question is not whether to prefer the military approach of the military commander or that of the experts of the Council for Peace and Security. The question is whether the route of the separation fence, according to the approach of the military commander, is proportionate. The standard for this question is not the subjective standard of the military commander. The question is not whether the military commander believed, in good faith, that the injury is proportionate.  The standard is objective.  The question is whether, by legal standards, the route of the separation fence passes the tests of proportionality.  This is a legal question, the expertise for which is held by the Court. I dealt with this issue in Physicians for Human Rights, stating:

 

Judicial review does not examine the wisdom of the decision to engage in military activity.  In exercising judicial review, we examine the legality of the military activity. Therefore, we assume that the military activity that took place in Rafah was necessary from a military standpoint.  The question before us is whether this military activity satisfies the national and international standards that determine the legality of that activity.  The fact that the activity is necessary on the military plane, does not mean that it is lawful on the legal plane.  Indeed, we do not substitute our discretion for that of the military commander’s, as far as it concerns military considerations.  That is his expertise.  We examine the results on the plane of the humanitarian law.  That is our expertise.

 

 

 

Id, paragraph 9.

 

From the General to the Specific

 

This oversight applies to the case before us. 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.

 

 

49.  The key question before us is whether the route of the separation fence is proportionate.  The question is:  is the injury caused to local inhabitants by the separation fence proportionate, or is it is possible to satisfy the central security considerations while establishing a fence route whose injury to the local inhabitants is lesser and, as such, proportionate?  The separation fence which is the subject of this petition is approximately forty kilometers long.  Its proportionality varies according to local conditions. We shall examine its proportionality according to the various orders that were issued for the construction of different parts of the fence.  We shall examine the legality of the orders along the route of the fence from west to east (See the appendix to this decision for a map of the region.) This route starts east of the town of Maccabim and the Beit Sira village. It continues south to the town of Mevo Choron, and from there continues east to Jerusalem.  The route of the fence continues to wind, and it divides between Israeli towns and Palestinian villages adjacent to it. It climbs Jebel Muktam in order to ensure Israeli control of it.  As such, it passes the villages of Beit Likia, Beit Anan, and Chirbet Abu A-Lahm. After that, it advances east, separating Ma’aleh HaChamisha and Har Adar from the villages of Katane, El Kabiba, and Bidu. The fence continues and circles the village of Beit Sourik, climbing northward until it reaches route 443, which is a major traffic route connecting Jerusalem to the center of the country. In its final part, it separates the villages Bidu, Beit Ajaza, and Beit Daku from Har Shmuel, New Giv’on, and Giv’at Ze’ev.

 

Order no. Tav/105/03

 

50.  This order concerns the route beginning east of the town of Maccabim and west of the village of Beit Sira, and ending northeast of the town of Mevo Choron. This segment was not the subject of substantial dispute by the parties.  Respondent informed us that the north tip of the route, which is subject to this order, as well as the southern tip, were changed (see map submitted to us by the parties, of March 31 2004). Thus, the injury to the cultivated lands proximate to it was reduced. Petitioners raised no arguments regarding the route itself, and the village of Beit Sira was not joined as a petitioner.  Members of the Council for Peace and Security did not mention this order in their affidavits. In light of all this, to the extent that it relates to this order, the petition is denied,.

 

Order Tav/104/03; Order Tav/103/03; Order Tav/84/03 (The Western Part of the Order)

 

51.  These orders apply to more than ten kilometers of the fence route. This segment of the route surrounds the high mountain range of Jebel Muktam.  This ridge topographically controls its immediate and general surroundings. It towers over route 443 which passes north of it, connecting Jerusalem to Modi’in. The route of the obstacle passes from southwest of the village of Beit Likia, southwest of the village of Beit Anan, and west of the village of Chirbet Abu A-Lahm.  Respondent explains that the objective of this route is to keep the mountain area under Israeli control.  This will ensure an advantage for the armed forces, who will topographically control the area of the fence, and it will decrease the capability of others to attack those traveling on route 443.

 

52. Petitioners painted a severe picture of how the fence route will damage the villages along it.  As far as the Beit Anan village (population: 5500) is concerned, 6000 dunams of village land will be affected by the fact that the obstacle passes over them. 7500 dunams of land will end up beyond the fence (6000 dunams of which are cultivated land). Ninety percent of the cultivated land seized and affected is planted with olive and fruit trees.  18,000 trees will be uprooted.  70,000 trees will be separated from their owners.  The livelihood of hundreds of families will be hurt. This damage is especially severe in light of the high unemployment rate in that area (approaching 75%).  As far as the Beit Likia village is concerned (population: 8000), 2100 dunams will be affected by the route of the obstacle.  Five thousand dunams will end up beyond the fence (3000 dunams of which are cultivated land).

 

53.  Respondents dispute this presentation of the facts.  They argue that the extent of damage is less than that described by petitioners.  As for the village of Beit Anan, 410 dunams (as opposed to 600) will be seized, and 1245 cultivated dunams will end up on the other side of the obstacle (as opposed to 6000).  Respondents further argue that 3500 trees will be uprooted (as opposed to 18,000).  However, even according to respondent, the damage to the villages is great, despite certain changes which respondents made during the hearing of the petition in order to relieve the situation of the local inhabitants.

 

54.  Petitioners attached the affidavit of the Council for Peace and Security (signed by Major General (res.) D. Rothchild, Major General (res.) A. Adan (Bren), Commissioner (ret.) S. Giv’oli, and Colonel (res.) Y. Dvir), which relates to this segment. According to the affidavit, the seizure of Jebel Muktam does not fit the principles set out for the building of the fence.  Effective light weapon fire from Jebel Muktam upon route 443 or upon any Israeli town is not possible. Moving the obstacle three kilometers south, adjacent to the Green Line, will place it upon topographically controlling territory that is easy to defend.  They argue that not every controlling hill is necessary for the defense of the separation fence.  Jebel Muktam is one example of that.  Moreover, the current route will necessitate the construction and maintenance of agricultural gates, which will create superfluous and dangerous friction with the local population, embittered by the damage inflicted upon them.  Petitioners presented two alternate proposals for the route in this area.  One passes next to the border of the area of Judea and Samaria.  This route greatly reduces the damage to the villages of Beit Likia and Beit Anan.  The route of the other proposal passes near the Green Line, south of the route of the first proposal.  This route does not affect the lands of these villages or the lands of the village of Chirbet Abu A-Lahm. 

 

55.  Respondent stated, in his response to the affidavit of members of the Council for Peace and Security, that it was not his intention to change the route of the fence that goes through this area.  He claims that IDF forces’ control of Jebel Muktam is a matter of decisive military importance. It is not just another topographically controlling hill, but rather a mountain looking out over the entire area.  He reiterated his stance that the current route will decrease the possibility of attack on travelers on route 443, and that erecting the obstacle upon the mountain will prevent its taking by terrorists.  Respondent surveyed the relevant area, and came to the conclusion that the route proposed by petitioners is considerably topographically inferior, and will endanger the forces that will patrol along the fence.  In order to reduce the injury to the local inhabitants, the military commander decided that agricultural gates be built. One daytime gate will be built south of Beit Likia.  Another daytime gate will be built three kilometers from it (as the crow flies), north of Beit Anan.  Specific requests by farmers will be examined on their merits.  Owners of land seized will be compensated, and olive trees will be transferred rather than uprooted. The route has even taken into consideration buildings built illegally by Palestinian inhabitants in the area, since there was not enough time to take the legal steps necessary for their demolition.  We were further informed that it was decided, during the survey which took place onsite with the participation of petitioners’ counsel, to make a local correction in the route of the obstacle, adjacent to the village of Chirbet Abu A-Lahm, which will distance the obstacle from the houses of the village.  We originally prohibited (on February 29, 2004) works to erect the separation fence in the part of the route to which the abovementioned orders apply.  During the hearing (on March 31, 2004), we ordered the cancellation of the temporary injunction with respect to the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam.

 

56. From a military standpoint, there is a dispute between experts regarding the route that will realize the security objective.  As we have noted, this places a heavy burden on petitioners, who ask that we prefer the opinion of the experts of the Council for Peace and Security over the approach of the military commander. The petitioners have not carried this burden.  We cannot – as those who are not experts in military affairs – determine whether military considerations justify laying the separation fence north of Jebel Muktam (as per the stance of the military commander) or whether there is no need for the separation fence to include it (as per  the stance of petitioners’ and the Council for Peace and Security).  Thus, we cannot take any position regarding whether the considerations of the military commander, who wishes to hold topographically controlling hills and thus prevent “flat-trajectory” fire, are correct, militarily speaking, or not. In this state of affairs, there is no justification for our interference in the route of the separation fence from a military perspective.

 

57. Is the injury to the local inhabitants by the separation fence in this segment, according to the route determined by respondent, proportionate?  Our answer to this question necessitates examination of the route’s proportionality, using the three subtests.  The first subtest examines whether there is a rational connection between the objective of the separation fence and its established route. Our answer is that such a rational connection exists. We are aware that the members of the Council for Peace and Security claim, in their expert opinion, that such a connection does not exist, and that the route proposed by them is the one that satisfies the “rational connection” test.  As we stated, we cannot accept this position.  By our very ruling that the route of the fence passes the test of military rationality, we have also held that it realizes the military objective of the separation fence.

 

58.  The second subtest examines whether it is possible to attain the security objectives of the separation fence in a way that causes less injury to the local inhabitants.  There is no doubt – and the issue is not even disputed – that the route suggested by the members of the Council for Peace and Security causes less injury to the local inhabitants than the injury caused by the route determined by the military commander.  The question is whether the former route satisfies the security objective of the security fence to the same extent as the route set out by the military commander.  We cannot answer this question in the affirmative. The position of the military commander is that the route of the separation fence, as proposed by members of the Council for Peace and Security, grants less security than his proposed route. By our very determination that we shall not intervene in that position, we have also determined that there is no alternate route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants.  In this state of affairs, our conclusion is that the second subtest of proportionality, regarding the issue before us, is satisfied.

 

59.  The third subtest examines whether the injury caused to the local inhabitants by the construction of the separation fence stands in proper proportion to the security benefit from the the security fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:

 

The third element is proportionality itself.  According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen.  The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.

 

Zamir, id., at 131.

 

This subtest weighs the costs against the benefits. See Stamka, at 776.  According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other.  This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations).  All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention.  The question before us is: does the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the fence along that route?

 

60.  Our answer is that there relationship between the injury to the local inhabitants and the security benefit from the construction of the separation fence along the route, as determined by the military commander, is not proportionate. The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation 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 humanitarian international law. Here are the facts:  more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the separation fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter.  The separation is not hermetic: the military commander announced that two gates will be constructed, from each of the two villages, to its lands, with a system of licensing.  This state of affairs injures the farmers severely, as access to their lands (early in the morning, in the afternoon, and in the evening), will be subject to restrictions inherent to a system of licensing.  Such a system will result in long lines for the passage of the farmers themselves; it will make the passage of vehicles (which themselves require licensing and examination) difficult, and will distance the farmer from his lands (since only two daytime gates are planned for the entire length of this segment of the route).  As a result, the life of the farmer will change completely in comparison to his previous life.  The route of the separation fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired.  The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe.

 

61.  These injuries are not proportionate.  They can be substantially decreased by an alternate route, either the route presented by the experts of the Council for Peace and Security, or another route set out by the military commander. Such an alternate route exists.  It is not a figment of the imagination.  It was presented before us.  It is based on military control of Jebel Muktam, without “pulling” the separation fence to that mountain.  Indeed, one must not forget that, even after the construction of the separation fence, the military commander will continue to control the area east of it.  In the opinion of the military commander – which we assume to be correct, as the basis of our review – he will provide less security in that area.  However, the security advantage reaped from the route as determined by the military commander, in comparison to the proposed route, does not stand in any reasonable proportion to the injury to the local inhabitants caused by this route.  Indeed, the real question in the “relative” examination of the third proportionality subtest is not the choice between constructing a separation fence which brings security but injures the local inhabitants, or not constructing a separation fence, and not injuring the local inhabitants.  The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the separation fence should surround Jebel Muktam) is proportionate to the additional injury resulting from his position (with the fence separating local inhabitants from their lands). Our answer to this question is that the military commander’s choice of the route of the separation fence is disproportionate.  The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a fence that separates the local inhabitants from their lands, and a fence which does not separate the two (or which creates a separation which is smaller and possible to live with).  Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. Where construction of the separation fence demands that inhabitants be separated from their lands, access to these lands must be ensured, in order to minimize the damage to the extent possible.

 

62.  We have reached the conclusion that the route of the separation fence, which separates the villages of Beit Likia and Beit Anan from the lands which provide the villagers with their livelihood, is not proportionate.  This determination affects order Tav/103/03, which applies directly to the territory of the mountain itself, and leads to its annulment.  This determination also affects order Tav/104/03 which applies to the route west of it, which turns in towards the village of Beit Likia, in order to reach the mountain.  The same goes for the western part of order Tav/84/03, which descends from the mountain in a southeasterly direction. The eastern part of the latter order was not a matter of significant dispute between the parties, but as a result of the annulment of the aforementioned orders, it should be examined anew.

 

Order no. Tav/107/30 (Until the Hill Northeast of Har Adar)

 

63.  This order applies to the part of the fence route which begins south of the village of Katane and ends up east of the town of Har Adar.  Its length is about four and one half kilometers.  It separates between Har Adar and the villages of Katane (population: approximately 1000), El Kabiba (population: 2000), Bidu (population: 7500) and Beit Sourik (population: 3500).  Petitioners argue that the route of this segment of the fence will cause direct injury to 300 dunams of the village of Katane.  5700 dunams of the lands of the village will end up on the other side of the fence (4000 of them cultivated lands).  They further argue that 200 dunams of the land of the village of El Kabiba will be directly injured by the fence passing through them.  2500 dunams will end up on the other side of the fence (of which 1500 dunams are cultivated land).  Indeed, then, the separation fence causes severe injury to the local inhabitants. The fence cuts the residents of the villages off from their lands, and makes their access to it – access upon which the livelihood of many depends – difficult. Study of the map attached by respondents (response of March 10 2004) reveals that along this part of the route, two gates will be built. One gate can only be used by pedestrian traffic. It is located at the western edge of this part of the route (south of the village of Katane). A second gate is a daytime gate located south of the hill which topographically controls the town of Har Adar from the northwest, and west of the village of Bidu.  Respondent argues that the gates will allow the passage of farmers to their lands.  Compensation  will be paid to those whose lands are seized. Thus a proper balance will be struck between security needs and the needs of the local population.

 

64.  After submission of the petition and examination of the arguments raised in it, respondents changed the route of the separation fence in this area. This part of the route, which passes north of Har Adar, will be closer to the security systems already existing in that town. Respondents stated that, as a result of this correction, the solution to security problems will be an inferior one, but they will reduce the injury to the local population and provide a reasonable level of security. Petitioners, however, claim that these changes are insufficient.  The stance of the Council for Peace and Security, as per its first affidavit (signed by Major General (res.) Avraham Adan (Bren), Commissioner (res.) Shaul Giv’oli and Colonel (res.) Yuval Dvir), is that the separation fence should be integrated into the existing fence of the town of Har Adar.  Moving the fence to a location adjacent to the village of Katane (west of Har Adar) will cause severe injury to the local inhabitants and will suffer all of the same aforementioned problems of a fence proximate to houses of Palestinians. Placing the fence side by side with the existing security systems west of Har Adar will not increase the danger of fire upon Har Adar. That is since it is already possible to fire upon it from the adjacent villages.  Moreover, the current route, which passes next to Palestinian buildings, will endanger the forces patrolling along it, and will increase the concerns regarding false alarms.

 

65.  The military commander argued, in response, that it is impossible to make a change in the route in the area of the village of Katane. From the operational standpoint, the proposal will allow terrorists free access all the way to the houses at the western edge of  Har Adar. Nor can a change be made in the route from the engineering standpoint, since the patrol road that must pass along the fence will be so steep that it will not allow movement of vehicles there. Regarding the part of the route which passes north of Har Adar, respondent agrees that it will be possible to integrate it with the existing defense perimeter of Har Adar (partially, in the area of the pumping facility of the town).  Respondents are not prepared to make any additional changes to the remainder of the route in this segment.  The military commander argues, in addition, that the proposal of the Council for Peace and Security regarding the part of the route which passes east of Har Adar cannot be accepted. That proposal would leave a hill located northeast of the town, which topographically controls it and the surroundings, outside of the defended area.  Nonetheless, he testified that, after meetings with petitioners and members of the Council for Peace and Security, it was decided that slight changes would be made in the segment which passes alongside the northeast hill. As a result, the obstacle will be distanced further from the road and from the homes of the local inhabitants in the area (see para. 60 of military commander’s affidavit of April 15 2004).  Respondent also stated that order of seizure Tav/37/04, which amends the route accordingly, has already been issued. In our decision (of March 31 2004) we held that respondents shall refrain from making irreversible changes in the segment north of Har Adar.

 

66.  From the military standpoint, there is a dispute between the military commander (who wishes to distance the separation fence from Har Adar) and the experts of the Council for Peace and Security (who wish to bring the fence closer to Har Adar). In this disagreement on military issues – and according to our approach, which gives great weight to the position of the military commander responsible for the security of the area – we accept the security stance of the military commander. Against this background, the question arises:  is this part of the route of the separation fence proportionate?

 

67.  Like the previous order we considered, this order before us also passes the two first subtests of proportionality (rational connection; the least injurious means).  The key question here concerns the third subtest (proportionality in the narrow sense).  Here too, as in the case of the previous order, the injury by the separation fence to the lives of more than 3000 farmers in the villages of Katane and El-Kabiba is severe.  The rights guaranteed them by the Hague Regulations and the Fourth Geneva Convention are violated. The delicate balance between the military commander’s obligation to provide security and his obligation to provide for the local inhabitants is breached. The fence separates between the inhabitants of Katane and El-Kabiba and their lands east and west of Har Adar, while instituting a licensing regime for passage from one side of the fence to the other. As a result, the farmer’s 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.  The difficulties we mentioned regarding the previous order apply here as well. As we have seen, it is possible to lessen this damage substantially if the route of the separation fence passing east and west of Har Adar is changed, reducing the area of agricultural lands lying beyond the fence. The security advantage (in comparison to the possible alternate route) which the military commander wishes to achieve is not proportionate to the severe injury to the farmers (according to the route proposed by the military commander).  On this issue, attempts to find an appropriate solution were made during the hearing of the petition. These attempts must continue, in order to find a route which will fulfill the demands of proportionality. As a result of such a route, it may be that there will be no escaping some level of injury to the inhabitants of Katane and El-Kabiba, which should be reduced to the extent possible. As such, since the parties must continue to discuss this issue, we have not seen fit to make a final order regarding Tav/107/03.

 

The Eastern Tip of Order no. Tav/107/03 and Order no. Tav/108/03

 

68.  This order applies to the five and a half kilometer long segment of the route of the obstacle which passes west and southeast of the villages of Beit Sourik (population: 3500) and Bidu (population: 7500).  A study of this part of the route, as published in the original order, reveals that the injury to these villages is great.  From petitioners’ data – which was not negated by respondents – it appears that 500 dunams of the lands of the village of Beit Sourik will be directly damaged by the positioning of the obstacle. 6000 additional dunams will remain beyond it  (5000 dunams of which are cultivated land), including three greenhouses. Ten thousand trees will be uprooted and the inhabitants of the villages will be cut off from 25,000 thousand olive trees, 25,000 fruit trees and 5400 fig trees, as will as from many other agricultural crops. These numbers do not capture the severity of the damage.  We must take into consideration the total consequences of the obstacle for the way of life in this area.  The original route as determined in the order leaves the village of Beit Sourik bordered tightly by the obstacle on its west, south, and east sides. This is a veritable chokehold, which will severely stifle daily life. The fate of the village of Bidu is not much better. The obstacle surrounds the village from the east and the south, and impinges upon lands west of it.  From a study of the map attached by the respondents (to their response of March 10, 2004) it appears that, on this segment of the route, one seasonal gate will be established south of the village of Beit Sourik.  In addition, a checkpoint will be positioned on the road leading eastward from Bidu.

 

69.  In addition to the parties’ arguments before us, a number of residents of the town of Mevasseret Zion, south of the village of Beit Sourik, asked to present their position. They pointed out the good neighborly relations between Israelis and Palestinians in the area and expressed concern that the route of the fence, which separates the Palestinian inhabitants from their lands, will put those relations to an end.  They argue that the Palestinians’ access to their lands will be subject to a series of hindrances and violations of their dignity, and that this access will even be prevented completely.  On the other hand, Mr. Efraim Halevi asked to present his position, which represents the opinion of other residents of the town of Mevasseret Tzion.  He argues that moving the route of the fence southward, such that it approaches Mevasseret Tzion, will endanger its residents.

 

70.  As with the previous orders, here too we take the route of the separation fence determined by the military commander as the basis of our examination. We do so, since we grant great weight to the stance of the official who is responsible for security.  The question which arises before us is: is the damage caused to the local inhabitants by this part of the separation fence route proportionate?  Here too, the first two subtests of the principle of proportionality are satisfied. Our doubt relates to the satisfaction of the third subtest.  On this issue, the fact is that the damage from the segment of the route before us is most severe. The military commander himself is aware of that.  During the hearing of the petition, a number of changes in the route were made in order to ease the situation of the local inhabitants.  He mentioned that these changes provide an inferior solution to security problems, but will allow the injury to the local inhabitants to be reduced, and will allow a reasonable level of security.  However, even after these changes, the injury is still very severe.  The rights of the local inhabitants are violated. Their way of life is completely undermined.  The obligations of the military commander, pursuant to the humanitarian law enshrined in the Hague Regulations and the Fourth Geneva Convention, are not being satisfied.

 

71.  The Council for Peace and Security proposed an alternate route, whose injury to the agricultural lands is much smaller. It is proposed that the separation fence be distanced both from the east of the village of Beit Sourik and from its west.  Thus, the damage to the agricultural lands will be substantially reduced.  We are convinced that the security advantage achieved by the route, as determined by the military commander, in comparison with the alternate route, is in no way proportionate to the additional injury to the lives of the local inhabitants caused by this order.  There is no escaping the conclusion that, for reasons of proportionality, this order before us must be annulled. The military commander must consider the issue again.  He must create an arrangement which will avoid this severe injury to the local inhabitants, even at the cost of a certain reduction of the security demands. The proposals of the Council for Peace and Security – whose expertise is recognized by the military commander – may be considered.  Other routes, of course, may be considered.  This is the military commander’s affair, subject to the condition that the location of the route free the village of Beit Sourik (and to a lesser extent, the village of Bidu) from the current chokehold and allow the inhabitants of the villages access to the majority of their agricultural lands.

 

Order no. Tav/109/103

 

72.  This order applies to the route of the separation fence east of the villages of Bidu, Beit Ajaza and Beit Daku.  Its length is approximately five kilometers. As we take notice of its southern tip, its central part, and its northern part, different parts of it raise different problems. The southern tip of the order directly continues from the route of order no. Tav/108/03, to the area passing west of the town of Har Shmuel. This part of the fence passes east of the village of Bidu, and it is the direct continuation of the part of the separation fence considered by us in the framework of order no. Tav/108/03.  The fate of this part of order no. Tav/109/03 is the same fate as that of order no. Tav/108/03.  As such, the separation fence will be moved eastward, so that the inhabitants of the village of Bidu will be able to continue the agricultural cultivation of the part of their lands east of this part of the fence.

 

73.  The central part of the separation fence in this order passes west of the town of Har Shmuel and east of the village of Bidu, until it reaches New Giv’on, which is east of it, and the village of Beit Ajaza which is west of it.  The separation fence separates these two towns.  The route causes injury to the agricultural lands of the village of Bidu and to the access to them.  The route also impinges upon the lands of the village of Beit Ajaza.  We were informed that 350 dunams of the lands of this village will be damaged by the construction of the obstacle.  2400 dunams of the lands of the village will be beyond it (2000 dunams of it cultivated land).  In addition, the route cuts off the access roads that connect the villages to the urban center of Ramallah and to East Jerusalem   In the affidavit of the Council for Peace and Security (of April 4 2004) it was mentioned that the current route will allow the local inhabitants to reach Ramallah only via a long and difficult road. Petitioners proposed that the route of the fence pass adjacent to the town of Har Shmuel, to the road connecting the Ramot neighborhood to Giv’at Ze’ev, and to the southern part of the town of New Giv’on.  Thus, free access to the agricultural lands in the area will be possible.  Petitioners also proposed pressing the route up against the western part of New Giv’on, and thus distancing it a bit from the village of Beit Ajaza.

 

74.  The route proposed by petitioners is unacceptable to respondent.  He argues that it does not take into account the palpable threat of weapons fire upon Israeli towns and upon the road connecting Ramot with Giv’at Ze’ev.  Neither does it consider the need to establish a security zone which will increase the preparation time available to the armed forces in the event of an infiltration.  Respondent argues that pushing the separation fence up against the Israeli towns will substantially endanger those towns.  The military commander is aware of this, and therefore testified before us that a gate will be established at that location in order to allow the inhabitants’ passage to their lands.  East of the village of Bidu, a permanent checkpoint will be established, which will be open 24 hours a day, 365 days a year, in order to allow the preservation of the existing fabric of life in the area and ease the access to the villages.  It was further decided to take steps which will improve the roads connecting the villages to one another, in order to allow the continued relations between these villages, and between them and Ramallah. In addition, respondent is examining the possibility of paving a road which will allow free and fast access from the villages to the direction of Ramallah. In his affidavit (of April 20 2004), respondent testified (paragraph 22 of the affidavit) that, until the completion of said road, he will not prevent passage of the inhabitants of the villages in this petition to the direction of Ramallah; rather, access toward the city will be allowed, according to the current arrangements.

 

75.  According to our approach, great weight must be given to the military stance of the commander of the area.  Petitioners did not carry their burden and did not convince us that we should prefer petitioners’ military stance (supported in part by the expert opinion of members of the Society for Peace and Security) over the stance of the commander of the area.  We assume, therefore, that the position of the commander of the area, as expressed in this part of order no. Tav/109/03, is correct, and it forms the basis for our examination.

 

76.  Is the damage caused to the local inhabitants by this part of the route of the separation fence proportionate?  Like the orders we considered up to this point, the question is: is the security advantage gained from the route, as determined by the commander of the area, compared to other possible alternate routes, proportionate to the additional injury to the local inhabitants caused by this route, compared to the alternate routes?  Here, as well, the picture we have already dealt with reappears. The route of the fence, as determined by the military commander, separates local inhabitants from their lands.  The proposed licensing regime cannot substantially solve the difficulties raised by this segment of the fence. All this constitutes a severe violation of the rights of the local inhabitants. The humanitarian provisions of the Hague Regulations and of the Fourth Geneva Convention are not satisfied. The delicate balance between the security of the area and the lives of the local inhabitants, for which the commander of the area is responsible, is upset. There is no escaping, therefore, the annulment of the order, to the extent that it applies to the central part of the fence.  The military commander must consider alternatives which, even if they result in a lower level of security, will cause a substantial (even if not complete) reduction of the damage to the lives of the local inhabitants.

 

77.  We shall now turn to the northern part of order no. Tav/109/03.  The route of the gate at this part begins in the territory separating New Giv’on from the village of Beit Ajaza.  It continues northwest to the eastern part of the village of Beit Daku.  In our decision (of March 31 2004), we determined that respondents shall refrain from making irreversible changes in the segment between Beit Tira and North Beit Daku.  There is no dispute between the parties regarding the part of the fence which separates New Giv’on and Beit Ajaza.  This part of the fence is legal.  The dispute arises regarding the part of the separation fence which lies beyond it.

 

78.  Petitioners argue that this part of the route of the separation fence severely injures the local inhabitants of the village of Beit Daku.  The data in their arguments show that 300 dunams of village lands will be directly damaged by the passage of the obstacle through them. 4000 dunams will remain beyond the obstacle (2500 of them cultivated). The affidavit submitted by the Council for Peace and Security states that the route of the obstacle should be moved a few hundred meters northeast of the planned location, in order to reduce the effect on local inhabitants.  Petitioners presented two alternate routes for the obstacle in this segment.  One route passes through the area intended for expansion of the town of Giv’at Ze’ev known by the nickname of “The Gazelles’ Basin,” where a new neighborhood is already being built.  A second alternate route draws the obstacle closer to its present route, northeast of it.

 

79.  Respondent objects to the route proposed by petitioners and by the Society for Peace and Security.  He explains that there is great importance to the control of a high hill located east of the village of Beit Daku. This hill topographically controls New Giv’on, Giv’at Ze’ev and “The Gazelles’ Basin.” The route of the fence was planned such that it would not obstruct the road connecting the villages of Beit Daku and Beit Ajaza.  In addition, the route passes over ridges of the hill which are of relatively moderate gradient, whereas the other ridges which descend from it are steep. In respondent’s opinion, moving the fence northwest of its current route will allow terrorist activity from the high hill, and thus endanger the Israeli towns and the army forces patrolling along the obstacle. In addition, the fact that the route proposed by petitioners is steeper raises complex engineering problems, whose solution will demand multiple bends in the route that will seriously damage the crops located at the foot of the hill.

 

80.  As with other segments of the separation fence, here too we begin from the assumption that the military-security considerations of the military commander are reasonable, and that there is no justification for our intervention.  The question before us, therefore, is: is the route of the separation fence, which actualizes these considerations, proportionate?  The main difficulty is the severe injury to the local inhabitants of Beit Daku. The fence separates them from considerable parts (4000 dunams, 2500 of which are cultivated) of their lands. Thus, a disproportionate injury is caused to the lives of the people in this location.  We accept – due to the military character of the consideration – that the high hill east of the village of Daku must be under IDF control.  We also accept that “The Gazelles’ Basin” is a part of Giv’at Ze’ev and needs defense just like the rest of that town.  Despite all that, we are of the opinion that the military commander must map out an alternate arrangement – one that will both satisfy the majority of the security considerations and also mitigate, to the extent possible, the separation of the local inhabitants of the village of Daku from their agricultural lands.  Such alternate routes were presented before us. We shall not take any stand whatsoever regarding a particular alternate route. The military commander must determine an alternative which will, provide a fitting, if not ideal, solution for the security considerations, and also allow proportionate access of Beit Daku villagers to their lands.

 

Order no. Tav/110/03

 

81.  This order continues the route of the separation fence northwest of Beit Daku.  This part starts out adjacent to the east part of the village of A-Tira, and ends up at route 443, east of Beit Horon.  The village of A-Tira is not a party to the petition before us, and we will not deal with its inhabitants. As far as it affects the lands of Beit Daku, this order must go the way of Tav/109/03, which we have already discussed.

 

Overview of the Proportionality of the Injury Caused by the Orders

 

82.  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 this petition. The length of the part of the separation fence to which these orders apply is   approximately forty kilometers. It causes injury to the lives of 35,000 local inhabitants. 4000 dunams of their lands are taken up by the route of the fence itself, and thousands of olive trees growing along the route itself are uprooted.  The fence separates 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 the farmer’s ability to work his land. There will inevitably be areas where the security fence will have to separate the local inhabitants from their lands. In these areas, the commander should allow passage which will reduce, to the extent possible, the injury to the farmers.

 

83.  During the hearings, we asked respondent whether it would be possible to compensate petitioners by offering them other lands in exchange for the lands that were taken to build the fence and the lands that they will be separated from. We did not receive a satisfactory answer. This petition concerns farmers that make their living from the land. Taking petitioners’ lands obligates the respondent, under the circumstances, to attempt to find other lands in exchange for the lands taken from the petitioners. Monetary compensation may only be offered  if there are no substitute lands.

 

84. The injury caused by the separation fence is not restricted to the lands of the inhabitants 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. 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 links between the local inhabitants and the urban centers (Bir Nabbala and Ramallah). This link is difficult even without the separation fence. This difficulty is multiplied sevenfold by the construction of the fence.

 

85.  The task of the military commander is not easy.  He must delicately balance between security needs and the needs of the local inhabitants. We were impressed by the sincere desire of the military commander to find this balance, and his willingness to change the original plan in order to reach a more proportionate solution.  We found no stubbornness on his part. Despite all this, we are of the opinion that the balance determined by the military commander is not proportionate.  There is no escaping, therefore, a renewed examination of the route of the fence, according to the standards of proportionality that we have set out.

 

Epilogue

 

86. Our task is difficult.  We are members of Israeli society.  Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror.  We are aware of the killing and destruction wrought by the terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state’s struggle against those rising up against it easier. But we are judges. When we sit in judgment, we are subject to judgment.  We act according to our best conscience and understanding.  Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit.  There is no security without law. Satisfying the provisions of the law is an aspect of national security. I discussed this point in HCJ 5100/94 The Public Committee against Torture in Israel v. The Government of Israel, at 845:

 

We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome  her difficulties.

 

That goes for this case as well.  Only a separation fence built on a base of law will  grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for.

 

The result is that we reject the petition against order no. Tav/105/03. We accept the petition against orders Tav/104/03, Tav/103/03, Tav/84/03 (western part), Tav/107/03, Tav/108/03, Tav/109/03, and Tav/110/03 (to the extent that it applies to the lands of Beit Daku), meaning that these orders are nullified, since their injury to the local inhabitants is disproportionate.

 

Respondents will pay 20,000 NIS in petitioners’ costs.

 

 

Vice President E. Mazza

I concur.

 

Justice M. Cheshin

I concur.

 

Held, as stated in the opinion of President A. Barak.

June 30, 2004