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Israel Supreme Court Rules Security Fence Not Political, Does Not Violate International Law

(Israel Supreme Court/IMRA) Excerpts from the Judgment (HCJ 2056/04): Petitioners...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 opposite is the case: it is the security perspective - and not the political one - which must examine a route based on its security merits alone, without regard for the location of the "green line." It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual's land in order to erect a separation fence upon it, on the condition that this is necessitated by military needs. To the extent that construction of the Fence is a military necessity, it is permitted, therefore, by international law. Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers. (Part I) It is the view of the military commander that the Separation Fence must be distanced from the houses of Jewish towns, in order to ensure a security zone that will allow the pursuit of terrorists who succeed in penetrating the Separation Fence, and that topographically controlling territory must be included inside the Fence....In contrast, the view of military experts of the Council for Peace and Security is that the Separation Fence must be distanced from the houses of local inhabitants, since proximity to them endangers security....Are we at liberty to adopt the opinion of the Council for Peace and Security? Our answer is negative. At the foundation of this approach is our long-held view that we must grant special weight to the military opinion of the official who is responsible for security. The question is: is the injury to local inhabitants by the Separation Fence proportionate, or is it possible to satisfy the main security concerns while establishing a Fence route whose injury to the local inhabitants is lesser. The gap between the security provided by the military commander's approach and the security provided by the alternate route is minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a Fence which does not separate the two (or which creates a separation which is smaller and possible to live with). Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. (Part II) We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror....As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy - it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one arm tied behind its back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of its security stance. (Part III)
2004-07-01 00:00:00
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