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

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 village will end up on the other side of the Fence (4000 of them
cultivated lands). They further argue that 200 dunams 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 position 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 would be so steep that it would not allow
passage of vehicles there. Regarding the part of the route that passes north
of Har Adar, respondent agrees that it would 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 the inhabitants of Katane and
El-Kabiba from 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
remedy 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) that 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). Investigation
into 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 rebutted by respondents - it appears that 500 dunams 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 end those relations. 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 crosses to the east of the Bidu village, 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 this village will be damaged by the
construction of the obstacle. 2400 dunams 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 real threat of weapon 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 that 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 that 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 shows 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 or to their access to these lands. The injury is of far
wider scope. It is 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 impedes the access of
the local inhabitants to the urban centers (Bir Nabbala and Ramallah). This
access is impeded even without the Separation Fence. This difficulty is
increased sevenfold by the construction of the Fence.

85. The task of the military commander is not easy. He must delicately
balance security needs with 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 struck by ruthless terror. We are aware of the
killing and destruction wrought by 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

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