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

allow surveillance of it. Therefore its route needs to be as flat as possible, and a
“security zone” needs to be established which will delay infiltration into Israel.
These are security considerations par excellence. In an additional affidavit,
Major General Kaplinsky testified that “it is not a permanent fence, but rather
a temporary fence erected for security needs.” (affidavit of April 19, 2004,
section 4). We have no reason not to give this testimony less than full weight,
and we have no reason to doubt the sincerity of the military commander.
30. The 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 rather by political considerations. 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 Israel and
Jordan after the War of Independence. We cannot accept this argument. The
determining factor is the security merits of the route not the political merits,
without regard for the location of the Green Line. The members of the Council
for Peace and Security, whose affidavits were brought before us by agreement
of the parties, do not recommend following the Green Line. They do not
even argue that the considerations of the military commander are political.
Rather, they dispute the proper route of the separation fence based on security
considerations themselves.
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. The respondents were open to our suggestions. Thus, for example,
adjacent to the town of Har Adar, they agreed to move the fence passing north
of the town to the security zone closer to it, and distance it from the lands of the
adjacent village of El Kabiba. We have no reason to assume that the objective
is political rather than security-based. Indeed, the petitioners did not carry the
burden and did not persuade us that the considerations behind the construction
of the separation fence are political rather than security-based. Similarly,
the petitioners did not carry their burden, and did not persuade us that the
considerations of the Commander of the IDF Forces in the area, in choosing the
route of the separation fence, are not military considerations, and that he has not
acted to fulfill them in good faith, according to his understanding.
32. The petitioners’ second argument is that the construction of the fence
in the area is based, in a large part, on the seizure of land privately owned
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