The Supreme Court Sitting as the High Court of Justice
[February 29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April 16, 2004; April 21, 2004; May 2, 2004 ]
Before President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin
Petition for an Order Nisi.
For petitionersâ€”Mohammed Dahla
For respondentsâ€”Anar Helman, Yuval Roitman
President A. Barak
The Commander of the IDF Forces in Judea and Samaria issued orders to take possession of plots of land in the area of Judea and Samaria. The purpose of the seizure was to erect a Separation Fence on the land. The question before us is whether the orders and the Fence are legal.
1. Since 1967, Israel has been holding the areas of Judea and Samaria [hereinafter â€“ the area] in belligerent occupation. In 1993 Israel began a political process with the PLO, and signed a number of agreements transferring control over parts of the area to the Palestinian Authority. Israel and the PLO continued political negotiations in an attempt to solve the remaining problems. The negotiations, whose final stages took place at Camp David in Maryland, USA, failed in July 2000.
From respondentsâ€™ affidavit in answer to an order nisi we learned that, a short time after the failure of the Camp David talks, the Israeli-Palestinian conflict reached new heights of violence. In September 2000, the Palestinian side began a campaign of terror against Israel and Israelis. Terror attacks take place both in the area and in Israel. They are directed against citizens and soldiers, men and women, elderly people and infants, regular citizens and public figures. Terror attacks are carried out everywhere: in public transportation, in shopping centers and markets, in coffee houses and in restaurants. Terror organizations use gunfire attacks, suicide attacks, mortar fire, Katyusha rocket fire, and car bombs. From September 2000 until the beginning of April 2004, more than 780 attacks were carried out within Israel. During the same period, more than 8200 attacks were carried out in the area.
The armed conflict claimed (as of April 2004) the lives of 900 Israeli citizens and residents. More than 6000 were injured, some with serious wounds that have left them severely handicapped. The armed conflict has left many dead and wounded on the Palestinian side as well. Bereavement and pain wash over us.
In HCJ 7015/02 Ajuri v. IDF Commander, at 358, I described the security situation:
Israelâ€™s fight is complex. Together with other means, the Palestinians use guided human bombs. These suicide bombers reach every place that Israelis can be found (within the boundaries of the State of Israel and in the Jewish communities in Judea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. The forces fighting against Israel are terrorists: they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including inside holy sites; they are supported by part of the civilian population, and by their families and relatives.
2. These terror acts have caused Israel to take security precautions on several levels. The government, for example, decided to carry out various military operations, such as operation â€œDefensive Wallâ€ (March 2002) and operation â€œDetermined Pathâ€ (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent terror attacks. See HCJ 3239/02 Marab v. IDF Commander in the West Bank, at 355; HCJ 3278/02 Center for Defense of the Individual v. IDF Commander, at 389. These combat operations â€“ which are not regular police operations, but embody all the characteristics of armed conflict â€“ did not provide a sufficient answer to the immediate need to stop the terror. The Ministersâ€™ Committee on National Security considered a list of steps intended to prevent additional terror acts and to deter potential terrorists from participating in such acts. See Ajuri, at 359. Despite all these measures, the terror did not come to an end. The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the Separation Fence.