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

the obstacle upon the mountain will prevent its taking by terrorists. The
respondent surveyed the relevant area, and came to the conclusion that the route
proposed by the petitioners is considerably topographically inferior, and will
endanger the forces that will patrol along the fence. In order to reduce the injury
to the local inhabitants, the military commander decided that agricultural gates
be built. One daytime gate will be built south of Beit Likia. Another daytime
gate will be built three kilometers from it (as the crow flies), north of Beit
Anan. Specific requests by farmers will be examined on their merits. Owners of
land seized will be compensated, and olive trees will be transferred rather than
uprooted. The route has even taken into consideration buildings built illegally
by Palestinian inhabitants in the area, since there was not enough time to take
the legal steps necessary for their demolition. We were further informed that it
was decided, during the survey which took place onsite with the participation of
the petitioners’ counsel, to make a local correction in the route of the obstacle,
adjacent to the village of Chirbet Abu A-Lahm, which will distance the
obstacle from the houses of the village. We originally prohibited (on February
29, 2004) works to erect the separation fence in the part of the route to which
the abovementioned orders apply. During the hearing (on March 31, 2004),
we ordered the cancellation of the temporary injunction with respect to the
segment between the Beit Chanan riverbed and the ascent to Jebel Muktam.
56. From a military standpoint, there is a dispute between experts
regarding the route that will realize the security objective. As we have noted,
this places a heavy burden on the petitioners, who ask that we prefer the
opinion of the experts of the Council for Peace and Security over the approach
of the military commander. The petitioners have not carried this burden. We
cannot – as those who are not experts in military affairs – determine whether
military considerations justify laying the separation fence north of Jebel
Muktam (as per the stance of the military commander) or whether there is
no need for the separation fence to include it (as per the stance of petitioners’
and the Council for Peace and Security). Thus, we cannot take any position
regarding whether the considerations of the military commander, who wishes
to hold topographically controlling hills and thus prevent “flat-trajectory”
fire, are correct, militarily speaking, or not. In this state of affairs, there is
no justification for our interference in the route of the separation fence from
a military perspective.
57. Is the injury to the local inhabitants by the separation fence in this
segment, according to the route determined by the respondent, proportionate?
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