Court Nixes Route of Fence Near J'lem

The state must reroute 30 kilometers of a 40-kilometer stretch of the separation fence northwest of Jerusalem, the High Court of Justice ruled yesterday.

The state must reroute 30 kilometers of a 40-kilometer stretch of the separation fence northwest of Jerusalem, the High Court of Justice ruled yesterday.

Prime Minister Ariel Sharon will meet with legal and defense officials tonight to discuss the ruling, and is expected to order the defense establishment both to reroute the relevant section and to examine whether, in light of the principles laid down by the court, adjustments must also be made to other sections. Though the ruling, delivered by Justices Aharon Barak, Eliahu Mazza and Mishael Cheshin, applies only to one particular stretch, it obviously has implications for the rest of the fence, as well.

In many parts of the relevant stretch, the fence has already been built, meaning the state will now have to tear it down and compensate local residents for the damage to their lands.

Nevertheless, senior government sources expressed satisfaction with the ruling, noting that the court accepted the state's position in principle: that the fence was a security barrier rather than a political one, and that, therefore, the government has a right to build it in the West Bank, rather than being obligated to build it along the Green Line.

The officials added that Israel will make extensive use of the ruling in its campaign against an upcoming International Court of Justice ruling.

The ruling which, in a nod to the ICJ ruling, was also published in English began by determining that a fence built in the West Bank for security reasons is legal, though one built for political reasons would not be. However, it continued, even a security fence must balance security considerations against the needs of local residents, and this proportionality must be maintained even if it means choosing a route that provides less security.

The ruling related to a section of the fence running near Jerusalem's Ramot neighborhood, Mevasseret Zion, and the settlements of Givat Ze'ev and Har Adar. It made extensive use of aerial photographs and topographical maps, on which the fence's current route and alternatives proposed by the petitioners were sketched.

The court rejected an argument put forward by the Council for Peace and Security, which joined the petitions, that the army's security considerations were flawed. On security matters, it said, the court will always prefer the judgment of the army, which bears bottom-line responsibility for Israel's security.

It also rejected claims by Palestinians and by residents of Mevasseret that the fence was being built not for security reasons, but rather to annex land to Israel. While it agreed that the army would have no right to build a fence for political reasons, such as annexing territory, it found that the actual stretch of fence at issue appeared to be a security barrier rather than a political one.

This finding, however, applies only to that particular stretch of fence, and thus does not prevent petitioners from charging that other stretches of the fence are political.

But the court accepted the petitioners' claim that the current route causes disproportionate harm to local residents. The current route, it wrote, will make access to residents' agricultural lands almost impossible, thereby sabotaging farmers' livelihoods; it will also interfere with residents' freedom of movement and access to nearby cities, including access to medical care, schools and universities. It "injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law," the justices wrote.

While the army is the expert in security matters, the ruling continued, the question in this case is the balance between security needs and humanitarian considerations and that is a legal question, in which the courts are the experts.

"We are aware that in the short term, this judgment will not make the state's struggle against those rising up against it easier," the ruling concluded. "[But] there is no security without law ... Only a separation fence built on a base of law will grant security to the state and its citizens."