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

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 Israel. The purpose
of the separation fence cannot be to draw a political border. In the Duikat
case, this Court discussed whether it is possible to seize land in order to build
a Jewish civilian town, when the purpose of the building of the town is not the
security and defense needs of the area (as it was in Ayoob), but rather based
upon a Zionist perspective of settling the entire land of Israel. This question
was answered by this Court in the negative. The Vice-President of this Court,
Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin),
regarding the right of the Jewish people to settle in Judea and Samaria. In his
judgment, Justice Landau stated:
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
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