Judgments of the Israel Supreme Court: Fighting Terrorism within ...

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needs of the local population will also be taken into account. The 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, the 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, the respondents were willing to allow changes in certain sections of the separation fence. In certain cases the route was changed de facto. Thus, for example, it was changed next to the town of Har Adar, and next to the village of Beit Sourik. This Court (President A. Barak, Vice-President (ret.) T. Or, and Vice-President E. Mazza) heard the petition (on February 29, 2004). The remainder of the hearing was postponed for a week in order to allow the sides to take full advantage of their right to have their arguments heard and to attempt to reach a compromise. We ordered that no work shall be undertaken on the separation fence in the area relating to the petition until the next hearing. The next hearing of the petition was on March 17, 2004. The petitioners submitted a motion to file additional documents, the most important of which was an affidavit prepared by members of the Council for Peace and Security, which is a registered organisation of Israelis with a security background, including high ranking reserve officers, among them Major General (res.) Danny Rothchild, who serves as president of the Council, Major General (res.) Avraham Adan (Bren), Commissioner (emeritus) Shaul Giv’oli, who serves as the general manager of the Council, and Colonel (res.) Yuval Dvir. The affidavit was signed by A. Adan, S. Giv’oli and Y. Dvir. The council, which sees itself as a nonpartisan organisation, was, it argued, among the first to suggest a separation fence as a solution to Israel’s security needs. The affidavit included detailed and comprehensive comments regarding various segments of this route, and raised its reservations from a security perspective. The claims in the affidavit were serious and grave. After reading them, we requested (on March 17, 2004) the comments of the second Respondent, the Commander of IDF Forces in the area of Judea and Samaria, Lieutenant- General Moshe Kaplinsky. 17. This Court (President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin) resumed the hearing of the petition (on March 31, 2004). Just 20
prior to reconvening, we granted (on March 23, 2004) the petitioners’ motion to amend their petition to include additional orders (“Tav”s) issued by the respondent: Tav/110/03 (concerning the area located north of the Beit Daku village in the Giv’at Ze’ev area); Tav/104/03 and Tav/105/03 (concerning areas located southeast of the town of Maccabim and south of the village of Beit Lakia). After hearing (on March 31, 2004) the parties’ arguments, we decided to issue an order nisi, to the extent relevant to the villages and the petitioners, and to narrow the application of the temporary injunction, such that it would not apply to the segment between Beit Ajaza and New Giv’on, and the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam. We further decided to narrow the injunction, such that the respondent would refrain from making irrevocable changes in the segment north of Har Adar, and in the segment between the villages of A-Tira and Beit Daku. We have noted the respondent’s announcement that if it turns out that the building of the obstacle at these locations was illegal, proper compensation will be granted to all injured parties [see order of March 31, 2004]. We continued to hear the arguments of the parties (on April 16, April 21, and May 2, 2004). The petitioners submitted an alternate route for construction of the separation fence. Additional affidavits were submitted by the Council for Peace and Security and by the respondent. An advisory opinion on the ecological effects of the route of the fence was submitted for review. Pursuant to our request, detailed relief models representing the topography of the area through which the obstacle passes were submitted. The relief models showed the route of the obstacle, as set out by the respondent, as well as the alternate routes proposed by the petitioners. In addition, a detailed aerial photograph of these routes was submitted. 18. Members of the Council for Peace and Security have joined as amici curiae. Pursuant to the agreement of the parties, an additional affidavit (of April 15, 2004) was 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, and was joined to the petition, without decicling whether or not their position was identical to the 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 more susceptible to attack on the forces patrolling it. Building the fence in the manner set out by the respondent will require the 21
Page 1: Judgments of the Israel Supreme Cou
Page 5 and 6: Introduction This volume is a compi
Page 7 and 8: Israel's Security Fence HCJ 2056/04
Page 9 and 10: months after the decision, the gove
Page 11 and 12: eached new heights of violence. In
Page 13 and 14: (4) The fence, like the other obsta
Page 15 and 16: fence, and will be called to locati
Page 17 and 18: to make it possible are illegal. Se
Page 19: they intend to erect permanent chec
Page 23 and 24: and not a security border. The secu
Page 25 and 26: See HCJ 390/79 Duikat v. Government
Page 27 and 28: a system of roads can be done for r
Page 29 and 30: y local inhabitants, and that this
Page 31 and 32: The obligations and rights of a mil
Page 33 and 34: person and the inviolable character
Page 35 and 36: Gasser, Protection of the Civilian
Page 37 and 38: injury to the individual must do so
Page 39 and 40: starting point is the assumption, w
Page 41 and 42: the area. We stand, therefore, befo
Page 43 and 44: of that activity. The fact that the
Page 45 and 46: will be affected by the route of th
Page 47 and 48: Our answer to this question necessi
Page 49 and 50: of the two villages to its lands, b
Page 51 and 52: eveals that along this part of the
Page 53 and 54: seen, it is possible to lessen this
Page 55 and 56: lives of the local inhabitants caus
Page 57 and 58: 76. Is the damage caused to the loc
Page 59 and 60: Order no. Tav/110/03 81. This order
Page 61 and 62: We are aware that this decision doe
Page 63 and 64: infrastructure” - limiting its ab
Page 65 and 66: HCJ 7957/04 1. Zaharan Yunis Muhamm
Page 67 and 68: grenades, shooting attacks, mortar
Page 69 and 70: (2) The obstacle built pursuant to
Page 71 and 72:
to us, part of the separation fence
Page 73 and 74:
allows residents of the enclave to
Page 75 and 76:
judgments that were handed down sin
Page 77 and 78:
16. It is sometimes necessary, in o
Page 79 and 80:
are occurring, and that therefore i
Page 81 and 82:
a necessary deduction as the milita
Page 83 and 84:
Even if the military commander acte
Page 85 and 86:
The rights granted to Israelis livi
Page 87 and 88:
the point of view of a state's righ
Page 89 and 90:
shall be protected especially again
Page 91 and 92:
preservation of the order and safet
Page 93 and 94:
78 “Al Taliyeh” Weekly v. The M
Page 95 and 96:
issuing the orders or in the proces
Page 97 and 98:
D. The Advisory Opinion of the Inte
Page 99 and 100:
Gush Etzion settlement bloc and the
Page 101 and 102:
of Nazlat Issa, where a wall 800 m
Page 103 and 104:
data, along with the high cost of t
Page 105 and 106:
3. The Legality of the Fence in Int
Page 107 and 108:
the wall, many Palestinians will li
Page 109 and 110:
uilding of a wall) fall within self
Page 111 and 112:
Beit Sourik Case. The ICJ held that
Page 113 and 114:
data is wide and deep. This differe
Page 115 and 116:
minimal factual basis is manifest,
Page 117 and 118:
necessary for achieving the securit
Page 119 and 120:
the information relayed to the ICJ
Page 121 and 122:
upon highway 6 - terrorist infiltra
Page 123 and 124:
However, this statement - which exp
Page 125 and 126:
is approximately 1,200). The enclav
Page 127 and 128:
threatens to disenfranchise them of
Page 129 and 130:
3. The State's Response 84. In its
Page 131 and 132:
opened under highway 55. Fourth, Th
Page 133 and 134:
which will be decided in the perman
Page 135 and 136:
time, surveys along the planned rou
Page 137 and 138:
The seamline area is intended to bl
Page 139 and 140:
the separation fence had not yet be
Page 141 and 142:
living primarily from growing sheep
Page 143 and 144:
the Ras a-Tira gate, the Habla gate
Page 145 and 146:
een shot on it from the direction o
Page 147 and 148:
Justice A. Procaccia I concur in th
Page 149 and 150:
characterize the factual aspect of
Page 151 and 152:
worship, because Bethlehem had turn
Page 153 and 154:
of Jerusalem’s municipal border.
Page 155 and 156:
of movement would be impinged upon
Page 157 and 158:
in which it attaches to the tomb. I
Page 159 and 160:
decision to pave the road and erect
Page 161 and 162:
worshippers from terrorist attacks,
Page 163 and 164:
intention to alter the route, and e
Page 165 and 166:
Freedom of religion and worship . .
Page 167 and 168:
private and public property and fre
Page 169 and 170:
freedom located at the highest leve
Page 171 and 172:
p. 369; H.C.J. 4044/93 Salomon, at
Page 173 and 174:
person to leave the country is diff
Page 175 and 176:
“separation obstacle” route sep
Page 177 and 178:
Reduction in the severity of the ne
Page 179 and 180:
19. Petitioners further argue that
Page 181 and 182:
that the solution chosen by respond
Page 183 and 184:
The "Early Warning" Procedure HCJ 3
Page 185 and 186:
Supreme Court Justice Beinish, conc
Page 187 and 188:
A. The Petition and the Course of i
Page 189 and 190:
for any military acts such as 'the
Page 191 and 192:
efore there is a need to use force,
Page 193 and 194:
more people regarding the use of Pa
Page 195 and 196:
14. Petitioners argue that one can
Page 197 and 198:
17. Respondents contend that the us
Page 199 and 200:
21. Just as it is clear that an arm
Page 201 and 202:
a zone in which combat activity is
Page 203 and 204:
the family members living in the ho
Page 205 and 206:
of the very protected resident who
Page 207 and 208:
accompanied by armed army forces, t
Page 209 and 210:
Prisoner Release HCJ 1671/05 Almago
Page 211 and 212:
HCJ 1671/05 Almagor - Organization
Page 213 and 214:
ecommendations for release were not
Page 215 and 216:
is unreasonable. The demand that tw
Page 217 and 218:
taking risks. That, it seems to me,
Page 219 and 220:
Palestinian Islamic organization, H
Page 221 and 222:
HCJ 11026/05 A v. 1. The Commander
Page 223 and 224:
easonable basis for the assumption
Page 225 and 226:
grants the military commander the a
Page 227:
decision is reasonable, and that th
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