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

their lands, and a fence which does not separate the two (or which creates
a separation which is smaller and easier to live with). Indeed, we accept that
security needs are likely to cause an injury to the lands of the local inhabitants
and to their ability to use them. International humanitarian law on the one
hand, and the basic principles of Israeli administrative law on the other, require
making every possible effort to ensure that injury will be proportionate. Where
construction of the separation fence demands that inhabitants be separated
from their lands, access to these lands must be ensured, in order to minimize
the damage to the utmost possible.
62. We have reached the conclusion that the route of the separation fence,
which separates the villages of Beit Likia and Beit Anan from the lands
which provide the villagers with their livelihood, is not proportionate. This
determination affects order Tav/103/03, which applies directly to the territory
of the mountain itself, and leads to its annulment. This determination also
affects order Tav/104/03 which applies to the route west of it, which turns
in towards the village of Beit Likia, in order to reach the mountain. The
same goes for the western part of order Tav/84/03, which descends from the
mountain in a southeasterly direction. The eastern part of the latter order was
of no significant dispute between the parties, but as a result of the annulment
of the aforementioned orders, it should be examined anew.
Order no. Tav/107/30 (Until the Hill Northeast of Har Adar)
63. This order applies to the part of the fence route which begins south of
the village of Katane and ends up east of the town of Har Adar. Its length is
about four and a half kilometers. It separates between Har Adar and the villages
of Katane (population: approximately 1,000), El Kabiba (population: 2,000),
Bidu (population: 7,500) and Beit Sourik (population: 3,500). The petitioners
argue that the route of this segment of the fence will cause direct injury to 300
dunams of the village of Katane. 5,700 dunams of the lands of the village will
end up on the other side of the fence (4,000 of them cultivated lands). They
further argue that 200 dunams of the land of the village of El Kabiba will be
directly injured by the fence passing through them. 2,500 dunams will end up
on the other side of the fence (of which 1,500 dunams are cultivated land).
Indeed, then, the separation fence causes severe injury to the local inhabitants.
The fence cuts the residents of the villages off from their lands, and makes their
access to them – access upon which the livelihood of many depends – difficult.
Study of the map attached by the respondents (response of March 10, 2004)
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