Supreme Court Judgment Regarding the Separation Fence
(June 30, 2004)
This petition was submitted by several Palestinian villages and their inhabitants. It attacks the legality of orders issued by the Israel Defense Forces (IDF) Commander in the West Bank. The orders were to take possession of plots of land for the purpose of erecting a separation fence. The path of the portion of the Fence discussed in the petition is approximately forty kilometers long and located west and northwest of Jerusalem (starting in the west at Maccabim and Beit Sira villages, going through Har Adar, Beit Sourik, and Bidu villages, and ending at Giv'at Ze'ev township and Beit Daku village). The petition attacked the legality of eight separate orders, each referring to several kilometers of the Fence and together comprising the entire forty kilometers at issue.
The Supreme Court delivered today (June 30, 2004) a judgment concerning the challenged portion of the Fence. The judgment was written by President (Chief Justice) A. Barak; Vice-President E. Mazza and Justice M. Cheshin concurred. The Court divided its discussion into two parts, each addressing a separate question. The first question concerns the legal authority of the IDF Commander to build a fence in the West Bank. The second question concerns the proportionality of the Fence's path (i.e., assuming that the IDF Commander has the authority to build the Fence, does the Fence's path reflect a proper balance of security considerations and humanitarian considerations).
Petitioners and respondents did not deal with the question of authority exhaustively. The Court found that this complex question was not adequately developed by the parties and, in its own discussion, referred only to the arguments that the parties did bring. The Court ruled that, were the reasons for building the Fence political, then the Fence would violate public international law. But the Court rejected petitioners' claim that the reasons for building the Fence were political. The Court accepted respondents' claim that the Fence was built for reasons of national security. Those reasons could justify taking possession of plots of land in the West Bank.
Even with the authority to build the Fence, the IDF Commander still has a legal duty to balance properly between security considerations and humanitarian ones. This duty relates to the second question, the question of proportionality, to which the Court devoted the bulk of its discussion. The Court held that the legal duty of proportionality is found in both Israeli administrative law and public international law.
The Court accepted the IDF Commander's position regarding the security aims of the Fence, rejecting the contrary position of the Council for Peace and Security (a private organization composed of retired military commanders that submitted a brief on the appropriate security aims, and hence the proper path, of the Fence). The Court did so because the IDF Commander is accountable to the general public, while the Council is not. The Court ruled, however, that the IDF Commander did not exercise his discretion proportionately. Although he took account of the grave security considerations at stake, he did not take adequate account of the Fence's infringement on the lives of 35,000 local inhabitants. Building the Fence requires seizing thousands of dunams of land. The Fence's current path would separate landowners from tens of thousands of dunams of land, and the planned regime of authorizations to access that land would not substantially reduce the harm. The Fence's current path would generally burden the entire way of life in petitioners' villages. Both petitioners and the Council offered alternative paths. Respondents claimed that those paths would exact substantial costs in terms of national security. The Court held that this reduction in security must be endured for the sake of humanitarian considerations. The additional margin of security achieved by the current path of the Fence is not equal to the current path's additional infringement on the local inhabitants' rights and interests. The current balance between security considerations and humanitarian considerations is disproportionate. The Court ruled that the IDF Commander should reduce the infringement upon the local inhabitants, even if it cannot be totally avoided, by altering the path of the Fence in most areas complained of in the petition.
Given this reasoning, the Court accepted the petition with regard to six of the orders (Order No. 104/03, 103/03, 84/03 (the Western part), 108/03, 109/03, 110/03 (the part concerning Beit Daku village)). Those orders are void due to disproportionality. The petition was denied with regard to one order (Order No. 105/03) concerning the Western part of the path. The last order (107/03), concerning Har Adar village, was returned to respondents for further consideration in light of the principles developed in the judgment.