HCJ 2056/04
Beit Sourik Village Council
v.
1. The
Government of
2. Commander of
the IDF Forces in the
The Supreme Court Sitting as the High Court of
Justice
[
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
Background
1. Since 1967,
From respondents’
affidavit in answer to order nisi we learned that, a short time after
the failure of the
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:
2. These terror
acts have caused
The Decision to
Construct the Separation Fence
3. The Ministers’ Committee for National
Security reached a decision (on
4. The Government
of Israel held deliberations on the “Seamline Area” program (
(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 (
6. The Ministers’ Committee
on National Security decided (on
A. 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.”
B. Therefore:
1. We approve the construction of
the obstacle for the prevention of terror activities according to the stages
and location as presented today before us by the armed forces (the map of the
stages and location of the fence is on file in the government secretariat).
2. The obstacle that will be erected
pursuant to this decision, like other segments of the obstacle in the “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
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
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
–
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
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
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
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
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.
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
The next hearing of
the petition was on
17. This Court (President A. Barak, Vice-President
E. Mazza, and Justice M. Cheshin) resumed the hearing of the petition (on
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
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
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
21. Parties
presented arguments regarding the environmental damage of the separation fence.
Petitioners submitted, for our review, expert opinion papers (dated
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
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
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
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
29. The Commander of the IDF Forces in the area of
Judea and
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
Order
no. Tav/105/03
50. This order concerns the route beginning east
of the town of
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
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
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
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
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
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
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
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
65. The military commander argued, in response,
that it is impossible to make a change in the route in the area of the
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
69. In addition to the parties’ arguments before
us, a number of residents of the town of
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
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
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
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
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
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
78. Petitioners argue that this part of the route
of the separation fence severely injures the local inhabitants of the
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
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
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
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
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
Vice President
E. Mazza
I concur.
Justice M. Cheshin
I concur.
Held, as stated in the opinion of President A. Barak.
June 30, 2004
