This
document is a draft, and is subject to further revision.
Comments, questions and suggestions are all welcomed, and may be directed towards metargem@supreme.court.gov.il
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,
JUDGMENT
President A. Barak
The Commander of the IDF Forces in Judea and
Background
1. Since 1967,
From respondents’ affidavit in answer to an order
nisi we learned that, a short time after the failure of the Camp David
talks, the Israeli-Palestinian conflict reached new heights of violence. In
September 2000, the Palestinian side began a campaign of terror against
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
“Seam Area” program (
(3) In the framework of stage 1 – approval of the
security Fences and obstacles in the “Seam
Area” and in Greater Jerusalem, for the purpose of preventing the
penetration of terrorists from the area of Judea and
(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 “Seam Area” and emphasizes the security need
for the obstacle in the “Seam 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 “Seam 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 “Seam” 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
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
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
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
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. Petitioners' second argument is that the
construction of the Fence in the area is based, in 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
The Route of the Separation
Fence
33.
The focus of this petition is the legality of the route chosen for the
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 he holds in belligerent
occupation, every activity primarily motivated by security considerations. The
discretion of the military commander is restricted by the normative system in
which he acts, 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 that
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 main 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
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
achieve 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.
The 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 recognize both human rights and the needs of the
local population as well security needs from the perspective of the military
commander. Among these conflicting norms, a proper balance must be found. What is that
balance?
Proportionality
36.
The problem of balancing 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, which include 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 these foundational principles, which balances the legitimate
objective with the means for achieving it, is the principle of
proportionality. According to this
principle, 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 applies to all types 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 military needs with 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 the
authority of the military commander in the area with the needs of the local
population. Indeed, the principle
of proportionality as a standard restricting the power of the military commander
is a common thread running through our case law. See Segal, Security
Authority, Administrative Proportionality and Judicial
Review, 1 Iyunei Mishpat 477 (1993).
Thus, for example, this Court examined, by use of the standard of
proportionality, the authority of the military commander regarding “an order
assigning a place of residence.”
See Ajuri; HCJ 9552/03 Abed v. Commander of the IDF Forces in
the
The Meaning of Proportionality and its
Elements
40.
According to the principle of proportionality, the decision of an
administrative body is legal only if the means used to realize its governmental
objective is of proper proportion. The principle of proportionality focuses,
therefore, on the relationship between the objective whose achievement is
attempted, and the means used to achieve it. This principle is a general one. It
requires application. As such, both in international law, which deals with
different national systems – from both the common law family (such as
Canada) and the continental family (such as Germany) – as well as in
domestic Israeli law, three subtests grant specific content to the principle of
proportionality. See J. Schwarze, European Administrative Law 687 (1992);
N. Emiliou, The Principle of Proportionality in European Law; A Comparative
Study (1996); E. Ellis (ed.), The Principle of Proportionality in the Laws of
41.
The first subtest is that the objective must be related to the means. The
means that the administrative body uses must be constructed to achieve the
precise objective that the administrative body is trying to achieve. The means used by the administrative
body must rationally lead to the realization of the objective. This is the “appropriate means” or
“rational means” test. According to
the second subtest, the means used by the administrative body must injure the
individual to the least extent possible.
In the spectrum of means that can be used to achieve the objective, the
least injurious means must be used.
This is the “least injurious means” test. The third test requires that the damage
caused to the individual by the means used by the administrative body in order
to achieve its objectives must be of proper proportion to the gain brought about
by that means. That is the “proportionate means” test (or proportionality “in
the narrow sense.”) The test of
proportionality “in the narrow sense” is commonly applied with “absolute
values,” by directly comparing the advantage of the administrative act with the
damage that results from it.
However, it is also possible to apply the test of proportionality in the
narrow sense in a “relative manner.”
According to this approach, the administrative act is tested vis-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
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 political, considerations. As such, we work under the assumption –
which the petitioners also did not succeed in negating – that the military
commander based the route of the Fence on military considerations which, to the
best of his knowledge, are capable of realizing this security objective. In
addition, we assume – and this issue was not even disputed in the case before us
– that the military commander is of the opinion that the injury to local
inhabitants is proportionate. On
the basis of this factual foundation, there are two questions before us. The
first question is whether the route of the Separation Fence, as determined by
the military commander, is well-founded from a military standpoint. Is there
another route for the Separation Fence which better achieves the security
objective? This constitutes a central component of proportionality. If the
chosen route is not well-founded from the military standpoint, then there is no
rational connection between the objective that the Fence is intended to achieve
and the chosen route (the first subtest); if there is a route which better
achieves the objective, we must examine whether this alternative route inflicts
a lesser injury (the second subtest).
The second question is whether the route of the Fence is proportionate.
Both of these questions are important for the examination according to
proportionality. However, they also
raise separate problems regarding the scope of judicial review. My colleague, Justice M. Cheshin, has
correctly noted:
Different subjects require, in and of themselves,
different methods of intervention.
Indeed, acts of state and acts of war do not change their character just
because they are subject to the review of the judiciary, and the character of
the acts, according to the nature of things, imprints its mark on the methods of
intervention.
HCJ 1730/96 Sabih v. Commander of IDF forces in the
Area of
The Military Nature of the Route of the Separation
Fence
46.
The first question deals with the military character of the route. It
examines whether the route chosen by the military commander for the Separation
Fence achieves its stated objectives, and whether there is no route that
achieves this objective better. It raises issues within the realm of military
expertise. We, Justices of the
Supreme Court, are not experts in military affairs. We will not examine whether the military
commander’s military opinion corresponds to ours – to the extent that we have an
opinion regarding the military character of the route. So we act in all
questions that are matters of professional expertise, and so we act in military
affairs as well. All we can determine is whether a reasonable military commander
would have set out the route as this military commander did. President Shamgar regarded this idea,
noting:
It is obvious, that a court cannot “slip into the shoes”
of the deciding military official … In order to substitute the discretion of the
commander with the discretion of the Court, we examine the question whether, in
light of all of the facts, the employment of the means can be viewed as
reasonable.
HCJ 1005/89 Aga v. Commander of the IDF Forces in the
The Supreme Court, sitting as the High Court of Justice,
reviews the legality of the military commander’s discretion. Our point of
departure is that the military commander, and those who obey his orders, are
civil servants holding public positions.
In exercising judicial review, we do not turn ourselves into experts in
security affairs. We do not substitute the security considerations of the
military commander with our own security considerations. We take no position regarding the way
security affairs are run. Our task
is to guard the borders and to maintain the boundaries of the military
commander’s discretion …. It is true, that “the security of the state” is not a
”magic word” which makes judicial review disappear. Thus, we shall not be
deterred from reviewing the decisions of the military commander … simply because
of the important security considerations anchoring his decision. However, we shall not substitute the
discretion of the commander with our own discretion. We shall check the legality
of the discretion of the military commander and ensure that his decisions fall
within the “zone of reasonableness.”
Id., at 375;
see also HCJ 619/78 “Al Tal’ia” Weekly v. Defense Minister, at
512; Jam’iat Ascan, at 809; Barake, at 16.
47.
The petition before us is exceptional in that opinions were submitted by
the Council for Peace and Security. These opinions deal with the military
aspect of the Separation Fence. They were given by experts in the military and
security fields, whose expertise was also recognized by the commander of the
area. We stand, therefore, before
contradictory military opinions regarding the military aspects of the route of
the Separation Fence. These
opinions are based upon contradictory military views. Thus, for example, it is the view of the
military commander that the Separation Fence must be distanced from the houses
of Jewish towns, in order to ensure a security zone that will allow the pursuit
of terrorists who succeed in penetrating the Separation Fence, and that
topographically controlling territory must be included inside the Fence. In order to achieve these objectives,
sometimes one cannot escape the need to build the Separation Fence proximate to
the houses of the local inhabitants. In contrast, the view of military experts
of the Council for Peace and Security is that the Separation Fence must be
distanced from the houses of local inhabitants, since proximity to them
endangers security. Topographically controlling territory can be held without
including it in the route of the Fence.
In this state of affairs, are we at liberty to adopt the opinion of the
Council for Peace and Security? Our answer is negative. At the foundation of
this approach is our long-held view that we must grant special weight to the
military opinion of the official who is responsible for security. Vice-President
M. Landau J. dealt with this point in a case where the Court stood before two
expert opinions: that of the Major
General serving as Coordinator of IDF Activity in the Territories and that of a
reserve Major General. Thus wrote the Court:
In such a dispute regarding military-professional
questions, in which the Court has no well founded knowledge of its own, the
witness of respondents, who speaks for those actually responsible for the
preservation of security in the administered territories and within the Green
Line, shall benefit from the assumption that his professional reasons are
sincere reasons. Very convincing
evidence is necessary in order to negate this assumption.
HCJ 258/79 Amira v.
Defense Minister, 92.
Justice Vitkon wrote similarly in Duikat, in which the Court was faced with a conflict between the expert opinion of the serving Chief of the General Staff regarding the security of the area, and the expert opinion of a former Chief of the General Staff. The Court ruled, in that case, as follows:
In security issues, where the petitioner relies on the opinion of an expert in security affairs, and the respondent relies on the opinion of a person who is both an expert and also responsible for the security of the state, it natural that we will grant special weight to the opinion of the latter.
HCJ
390/79 Duikat v. Government of
Therefore, in our examination of the contrasting military considerations in this case, we give special weight to the fact that the commander of the area is responsible for security. Having employed this approach, we are of the opinion – the details of which we shall explain below – that petitioners have not carried their burden, and have not convinced us that we should prefer the professional expert opinion of members of the Council for Peace and Security over the security stance of the commander of the area. We are dealing with two military approaches. Each of them has military advantages and disadvantages. In this state of affairs, we must place the expert opinion of the military commander at the foundation of our decision.
The
Proportionality of the Route of the Separation
Fence
48. The second question regards the proportionality of the route of the Separation Fence, as determined by the military commander. This question raises no problems in the field of military considerations. Rather, it relates to the severity of the injury caused to the local inhabitants by the route decided upon by the military commander. Within the context of this question, we are dealing not with military considerations, but rather with humanitarian considerations. The question is not the proportionality of different military considerations. The question is the proportionality between the military consideration and the humanitarian consideration. The question is not whether to prefer the military approach of the military commander to that of the experts of the Council for Peace and Security. The question is whether the route of the Separation Fence, according to the approach of the military commander, is proportionate. The standard for this question is not the subjective standard of the military commander. The question is not whether the military commander believed, in good faith, that the injury was proportionate. The standard is objective. The question is whether, by legal standards, the route of the Separation Fence passes the tests of proportionality. This is a legal question, the expertise for which is held by the Court. I dealt with this issue in Physicians for Human Rights, stating:
Judicial review does not examine the wisdom of the decision to engage in military activity. In exercising judicial review, we examine the legality of the military activity. Therefore, we assume that the military activity that took place in Rafah was necessary from a military standpoint. The question before us is whether this military activity satisfies the national and international standards that determine the legality of that activity. The fact that the activity is necessary on the military plane does not mean that it is lawful on the legal plane. Indeed, we do not substitute our discretion for that of the military commander’s, as far as it concerns military considerations. That is his expertise. We examine the results on the plane of the humanitarian law. That is our expertise.
Id, paragraph 9.
This oversight applies to the case before us. The military commander is the expert on the military aspects of the Fence's route. We are the experts of the humanitarian aspects of the route. The military commander can determine the geographical placement of the Fence—across mountain or plane. This is his expertise. We review whether the military commander's route inflicts disproportionate injury upon the local inhabitants. This is our expertise.
From
the General to the Specific
49. The key question before us is
whether the route of the Separation Fence is proportionate. The question is: is the injury to local inhabitants by
the Separation Fence proportionate, or is it is possible to satisfy the main
security concerns while establishing a Fence route whose injury to the local
inhabitants is lesser and, as such, proportionate? The Separation Fence that is the subject
of this petition is approximately forty kilometers long. Its proportionality varies according to
local conditions. We shall examine its proportionality according to the various
orders that were issued for the construction of different parts of the
Fence. We shall examine the
legality of the orders along the route of the Fence from west to east (See the
appendix to this decision for a map of the region.) This route starts east of
the town of
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's route. This segment of the route surrounds the high
mountain range of Jebel Mukatam.
This ridge topographically controls its immediate and general
surroundings. It towers over Route 443 which passes north of it, connecting
52. Petitioners painted a severe picture of how the Fence's route will damage the villages along it. As far as the Beit Anan village (population: 5500) is concerned, 6,000 dunams of village land will be affected by the fact that the obstacle passes over them. 7,500 dunams of land will end up beyond the Fence (6000 dunams of which are cultivated land). Ninety percent of the cultivated land seized and affected is planted with olive and fruit trees. 18,000 trees will be uprooted. 70,000 trees will be separated from their owners. The livelihood of hundreds of families will be hurt. This damage is especially severe in light of the high unemployment rate in that area (approaching 75%). As far as the Beit Likia village is concerned (population: 8000), 2100 dunams will be affected by the route of the obstacle. Five thousand dunams will end up beyond the Fence (3000 dunams of which are cultivated land).
53. Respondents dispute this
presentation of the facts. They
argue that the extent of damage is less than that described by petitioners. As for the
54. Petitioners attached the affidavit
of the Council for Peace and Security (signed by Major General (res.) D.
Rothchild, Major General (res.) A. Adan (Bren), Commissioner (ret.) S. Giv’oli,
and Colonel (res.) Y. Dvir), which relates to this segment. According to the
affidavit, the seizure of Jebel Mukatam does not fit the principles established
for the building of the Fence.
Effective light weapon fire from Jebel Mukatam upon Route 443 or upon any
Israeli town is not possible.
Moving the Fence three kilometers south, adjacent to the Green Line, will
place it upon topographically controlling territory that is easy to defend. They argue that not every controlling
hill is necessary for the defense of the Separation Fence. Jebel Mukatam is one example of
that. Moreover, the current route
will necessitate the construction and maintenance of agricultural gates, which
will provoke unnecessary and dangerous fury from the local population,
embittered by the damage inflicted upon them. Petitioners presented two alternate
proposals for the route in this area.
One passes next to the border of the area of
55. Respondent stated, in his response
to the affidavit of members of the Council for Peace and Security, that he did
not intend to change the route of the Fence that goes through this area. He claims that IDF’s control of Jebel
Mukatam is a matter of decisive military importance. It is not just another
topographically controlling hill, but rather a mountain overlooking the entire
area. He reiterated his position
that the current route would decrease the possibility of attack on travelers on
Route 443, and that erecting the obstacle upon the mountain will prevent its
taking by terrorists. Respondent
surveyed the relevant area, and came to the conclusion that the route proposed
by petitioners is considerably topographically and thus strategically inferior
and will endanger the forces that will patrol along the Fence. In order to reduce the injury to the
local inhabitants, the military commander decided that agricultural gates be
built. One daytime gate will be built south of Beit Likia. Another daytime gate will be built three
kilometers from it (as the crow flies), north of Beit Anan. Specific requests by farmers will be
examined on their merits. Owners of
land seized will be compensated, and olive trees will be transferred rather than
uprooted. The route has even taken into consideration buildings built illegally
by Palestinian inhabitants in the area, since there was not enough time to take
the legal steps necessary for their demolition. We were further informed that it was
decided, during the survey that took place onsite with the participation of
petitioners’ counsel, to make a local correction in the route of the obstacle,
adjacent to the village of Chirbet Abu A-Lahm, in order to distance the obstacle
from the houses of the village. We
originally prohibited (on
56. From a military standpoint, there is a dispute between experts regarding the route that will realize the security objective. As we have noted, this places a heavy burden on petitioners who ask that we prefer the opinion of the experts of the Council for Peace and Security over the approach of the military commander. The petitioners have not carried this burden. We cannot – as those who are not experts in military affairs – determine whether military considerations justify laying the Separation Fence north of Jebel Mukatam (as per the stance of the military commander) or whether there is no need for the Separation Fence to include it (as per the stance of petitioners’ and the Council for Peace and Security). Thus, we cannot take any position regarding whether the considerations of the military commander—who wishes to hold topographically controlling hills and thus prevent “flat-trajectory” fire—are correct, militarily speaking, or not. In this state of affairs, there is no justification for our interference in the route of the Separation Fence from a military perspective.
57. Is the injury to the local inhabitants by the Separation Fence in this segment, according to the route determined by respondent, proportionate? Our answer to this question necessitates examination of the route’s proportionality, using the three subtests. The first subtest examines whether there is a rational connection between the objective of the Separation Fence and its established route. Our answer is that such a rational connection exists. We are aware that the members of the Council for Peace and Security claim, in their expert opinion, that such a connection does not exist, and that the route proposed by them is the one that satisfies the “rational connection” test. As we stated, we cannot accept this position. By our very ruling that the route of the Fence passes the test of military rationality, we have also held that it realizes the military objective of the Separation Fence.
58. The second subtest examines whether it is possible to attain the security objectives of the Separation Fence in a way that causes less injury to the local inhabitants. There is no doubt – and the issue is not even disputed – that the route suggested by the members of the Council for Peace and Security causes less injury to the local inhabitants than the injury caused by the route determined by the military commander. The question is whether the former route satisfies the security objective of the security Fence to the same extent as the route set out by the military commander. We cannot answer this question in the affirmative. The position of the military commander is that the route of the Separation Fence, as proposed by members of the Council for Peace and Security, grants less security than his proposed route. By our very determination that we shall not intervene in that position, we have also determined that there is no alternate route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants. In this state of affairs, our conclusion is that the second subtest of proportionality, regarding the issue before us, is satisfied.
59. The third subtest examines whether the injury caused to the local inhabitants by the construction of the Separation Fence stands in proper proportion to the security benefit from the Security Fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:
The third element is proportionality itself. According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen. The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.
Zamir, id., at 131.
This
subtest weighs the costs against the benefits. See Stamka, at 776. According to this subtest, a decision of
an administrative authority must reach a reasonable balance between communal
needs and the damage done to the individual. The objective of the examination is
to determine whether the severity of the damage to the individual and the
reasons brought to justify it stand in proper proportion to each other. This judgment is made against the
background of the general normative structure of the legal system, which
recognizes human rights and the necessity of ensuring the provision of the needs
and welfare of the local inhabitants, and which preserves “family honour and
rights” (Regulation 46 of the Hague Regulations). All these are protected in the framework
of the humanitarian provisions of
60. Our answer is that there relationship between the injury to the local inhabitants and the security benefit from the construction of the Separation Fence along the route, as determined by the military commander, is not proportionate. The route disrupts the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. This approach is based on the fact that the route which the military commander established for the Security Fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law. Here are the facts: more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the Separation Fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter. The separation is not hermetic: the military commander announced that two gates will be constructed, from each of the two villages, to its lands, with a system of licensing. This state of affairs injures the farmers severely, as access to their lands (early in the morning, in the afternoon, and in the evening), will be subject to restrictions inherent to a system of licensing. Such a system will result in long lines for the passage of the farmers themselves; it will make the passage of vehicles (which themselves require licensing and examination) difficult, and will distance the farmer from his lands (since only two daytime gates are planned for the entire length of this segment of the route). As a result, the life of the farmer will change completely in comparison to his previous life. The route of the Separation Fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired. The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe.
61. These injuries are not proportionate. They can be substantially decreased by an alternate route, either the route presented by the experts of the Council for Peace and Security, or another route set out by the military commander. Such an alternate route exists. It is not a figment of the imagination. It was presented before us. It is based on military control of Jebel Mukatam, without “pulling” the Separation Fence to that mountain. Indeed, one must not forget that, even after the construction of the Separation Fence, the military commander will continue to control the area east of it. In the opinion of the military commander – which we assume to be correct, as the basis of our review – he will provide less security in that area. However, the security advantage reaped from the route as determined by the military commander, in comparison to the proposed route, does not stand in any reasonable proportion to the injury to the local inhabitants caused by this route. Indeed, the real question in the “relative” examination of the third proportionality subtest is not the choice between constructing a Separation Fence which brings security but injures the local inhabitants, or not constructing a Separation Fence, and not injuring the local inhabitants. The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the Separation Fence should surround Jebel Mukatam) is proportionate to the additional injury resulting from his position (with the Fence separating local inhabitants from their lands). Our answer to this question is that the military commander’s choice of the route of the Separation Fence is disproportionate. The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a Fence which does not separate the two (or which creates a separation which is smaller and possible to live with). Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. Where construction of the Separation Fence demands that inhabitants be separated from their lands, access to these lands must be ensured, in order to minimize the damage to the extent possible.
62. We have reached the conclusion that
the route of the Separation Fence, which separates the villages of Beit Likia
and Beit Anan from the lands which provide the villagers with their livelihood,
is not proportionate. This
determination affects order Tav/103/03, which applies directly to the territory
of the mountain itself, and leads to its annulment. This determination also affects order
Tav/104/03 which applies to the route west of it, which turns in towards the
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 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
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 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
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
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
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 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
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.
