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

the route of the fence and not the authority to erect it. After reaching this
conclusion, we must now contend with the second question before us – the
question that constituted the main part of the arguments before us. This
question is the legality of the location and route of the separation fence. We
will now turn to this question.
The Route of the Separation Fence
33. The focus of this petition is the legality of the route chosen for
construction of the separation fence. This question stands on its own, and
it requires a straightforward, real answer. It is insufficient 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 held by him
in belligerent occupation, every activity which is primarily motivated
by security considerations. The discretion of the military commander is
restricted by the normative system in which he acts, and 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 which
grants 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 its 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 case law dating back to 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.).
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