Abstract of the Judgment Regarding the Separation Fence
[HCJ 2056/04] - From The Court Administration Spokesperson's Office

[IMRA: For full text:
Text Supreme Court Judgement Regarding The Security Fence (1 of 3)
www.imra.org.il/story.php3?id=21369
Text Supreme Court Judgement Regarding The Security Fence (2 of 3)
www.imra.org.il/story.php3?id=21370
Text Supreme Court Judgement Regarding The Security Fence (3 of 3)
www.imra.org.il/story.php3?id=21371 ]

This petition was submitted by several Palestinian villages and their
inhabitants. It attacks the legality of orders issued by the Israel Defense
Forces (IDF) Commander in the West Bank. The orders were to take possession
of plots of land for the purpose of erecting a separation fence. The path
of the portion of the Fence discussed in the petition is approximately forty
kilometers long and located west and northwest of Jerusalem (starting in the
west at Maccabim and Beit Sira villages, going through Har Adar, Beit
Sourik, and Bidu villages, and ending at Giv'at Ze'ev township and Beit Daku
village). The petition attacked the legality of eight separate orders, each
referring to several kilometers of the Fence and together comprising the
entire forty kilometers at issue.

The Supreme Court delivered today (June 30, 2004) a judgment concerning the
challenged portion of the Fence. The judgment was written by President
(Chief Justice) A. Barak; Vice-President E. Mazza and Justice M. Cheshin
concurred. The Court divided its discussion into two parts, each addressing
a separate question. The first question concerns the legal authority of the
IDF Commander to build a fence in the West Bank. The second question
concerns the proportionality of the Fence's path (i.e., assuming that the
IDF Commander has the authority to build the Fence, does the Fence's path
reflect a proper balance of security considerations and humanitarian
considerations).

Petitioners and respondents did not deal with the question of authority
exhaustively. The Court found that this complex question was not adequately
developed by the parties and, in its own discussion, referred only to the
arguments that the parties did bring. The Court ruled that, were the
reasons for building the Fence political, then the Fence would violate
public international law. But the Court rejected petitioners' claim that
the reasons for building the Fence were political. The Court accepted
respondents' claim that the Fence was built for reasons of national
security. Those reasons could justify taking possession of plots of land in
the West Bank.

Even with the authority to build the Fence, the IDF Commander still has a
legal duty to balance properly between security considerations and
humanitarian ones. This duty relates to the second question, the question
of proportionality, to which the Court devoted the bulk of its discussion.
The Court held that the legal duty of proportionality is found in both
Israeli administrative law and public international law.

The Court accepted the IDF Commander's position regarding the security aims
of the Fence, rejecting the contrary position of the Council for Peace and
Security (a private organization composed of retired military commanders
that submitted a brief on the appropriate security aims, and hence the
proper path, of the Fence). The Court did so because the IDF Commander is
accountable to the general public, while the Council is not. The Court
ruled, however, that the IDF Commander did not exercise his discretion
proportionately. Although he took account of the grave security
considerations at stake, he did not take adequate account of the Fence's
infringement on the lives of 35,000 local inhabitants. Building the Fence
requires seizing thousands of dunams of land. The Fence's current path
would separate landowners from tens of thousands of dunams of land, and the
planned regime of authorizations to access that land would not substantially
reduce the harm. The Fence's current path would generally burden the entire
way of life in petitioners' villages. Both petitioners and the Council
offered alternative paths. Respondents claimed that those paths would exact
substantial costs in terms of national security. The Court held that this
reduction in security must be endured for the sake of humanitarian
considerations. The additional margin of security achieved by the current
path of the Fence is not equal to the current path's additional infringement
on the local inhabitants' rights and interests. The current balance between
security considerations and humanitarian considerations is disproportionate.
The Court ruled that the IDF Commander should reduce the infringement upon
the local inhabitants, even if it cannot be totally avoided, by altering the
path of the Fence in most areas complained of in the petition.

Given this reasoning, the Court accepted the petition with regard to six of
the orders (Order No. 104/03, 103/03, 84/03 (the Western part), 108/03,
109/03, 110/03 (the part concerning Beit Daku village)). Those orders are
void due to disproportionality. The petition was denied with regard to one
order (Order No. 105/03) concerning the Western part of the path. The last
order (107/03), concerning Har Adar village, was returned to respondents for
further consideration in light of the principles developed in the judgment.