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Wednesday, June 30, 2004
Text Supreme Court Judgement Regarding The Security Fence (2 of 3)

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). 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 the authority of the military commander in the area with 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 damage to residents' property by 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 the area's designation 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 its
governmental objective is of proper proportion. The principle of
proportionality focuses, therefore, on the relationship between the
objective whose achievement is 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); E. Ellis (ed.), 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 that 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 that 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--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 that 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 political, considerations. As such, we work
under the assumption - which the petitioners also did not succeed in
negating - that the military commander based the route of the Fence on
military considerations which, 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 that 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 of these
questions are important for the examination according to 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 that achieves this objective better. It raises issues within the realm
of military expertise. We, Justices of the Supreme Court, are not experts
in military affairs. We will not examine whether the military commander's
military opinion corresponds to ours - to the extent that we have an opinion
regarding the military character of the route. So we act in all questions
that 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 regarded 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 that will allow the pursuit of terrorists who succeed in
penetrating the Separation Fence, and that topographically controlling
territory must be included inside the Fence. In order to achieve these
objectives, sometimes one cannot escape 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 was faced with
a conflict 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 regards the proportionality of the route of the
Separation Fence, as determined by the military commander. This question
raises no problems in the field of military considerations. Rather, it
relates to the severity of the injury caused to the local inhabitants by the
route decided upon by the military commander. Within the context 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 to 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 was 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.

This oversight applies to the case before us. The military commander is the
expert on the military aspects of the Fence's route. We are the experts of
the humanitarian aspects of the route. The military commander can determine
the geographical placement of the Fence-across mountain or plane. This is
his expertise. We review whether the military commander's route inflicts
disproportionate injury upon the local inhabitants. This is our expertise.

From the General to the Specific

49. The key question before us is whether the route of the Separation
Fence is proportionate. The question is: is the injury to local
inhabitants by the Separation Fence proportionate, or is it is possible to
satisfy the main security concerns while establishing a Fence route whose
injury to the local inhabitants is lesser and, as such, proportionate? The
Separation Fence that 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 Israeli villages
from adjacent Palestinian villages. It climbs Jebel Mukatam 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 portion, 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 northern 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
nearby cultivated lands 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's route.
This segment of the route surrounds the high mountain range of Jebel
Mukatam. 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's route will
damage the villages along it. As far as the Beit Anan village (population:
5500) is concerned, 6,000 dunams of village land will be affected by the
fact that the obstacle passes over them. 7,500 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 Fence (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 that respondents
made while the petition was being heard in order to relieve 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 Mukatam does not fit the principles established for the building of
the Fence. Effective light weapon fire from Jebel Mukatam upon Route 443 or
upon any Israeli town is not possible. Moving the Fence 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 Mukatam is one example of that. Moreover, the current route will
necessitate the construction and maintenance of agricultural gates, which
will provoke unnecessary and dangerous fury from 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 he did not intend to change the route
of the Fence that goes through this area. He claims that IDF's control of
Jebel Mukatam is a matter of decisive military importance. It is not just
another topographically controlling hill, but rather a mountain overlooking
the entire area. He reiterated his position that the current route would
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 and thus strategically 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 that 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, in order to 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 Mukatam.

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 Mukatam (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 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 disrupts 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 Mukatam, 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 Mukatam) 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)

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