Analysis: Court Upheld Fence Building for Security Reasons

The court's ruling rests on the principle of proportionality - harm to an individual must not be disproportionate to the benefit gained.

Wednesday's High Court of Justice order to the defense establishment to reexamine the route of part of the separation fence, represents a significant and rare intervention into security considerations on such an essential issue. The ruling rests on the principle of proportionality - harm to an individual must not be disproportionate to the benefit gained.

The justices, understanding the sensitivity of judicial intervention in such cases, stressed that the cabinet itself had decided the route must take Palestinian needs into account.

In October 2003, the cabinet decided that "every effort will be made to minimize, as far as possible, disruptions of the Palestinians' way of life." Nevertheless, it is doubtful if the cabinet expected the court to subject this decision to such careful and detailed scrutiny.

The court upheld the army's right to build the fence for security reasons - though not for political ones. The fence, it said, could not be used to "annex" territory to Israel. Its finding that the fence is indeed being built for security reasons is important in its own right, and will also help the state rebut those in Israel and abroad who claim that the fence is designed to set a political border.

The court then reviewed the legality of the specific route, taking the approach that the army's discretion in lands under "belligerent occupancy" is not unlimited. It gave "great weight" to the defense establishment's opinions regarding the necessary route.

But it stressed that there must be an "appropriate balance" between security needs and the needs of local residents - basing this conclusion both on international law and its own previous rulings.

The ruling's overall message is that security is not a "magic word." The court will accord greater weight to the opinions of the people actually responsible for Israel's security than to outside experts who do not bear this responsibility, but only it can decide whether a given security measure is proportional. This gives the court great power to overrule military security considerations.

The court's finding that, in certain areas, the portion of the fence under consideration violates the "delicate balance" between the army's obligation to provide security and its obligation to provide for the needs of Palestinian residents does not mean the court will overrule the fence's route in other areas.

It intervened in this case only because it found that the harm to local residents was serious and no attempt had been made to provide them with alternative land - in other words, because it found severe infringement on property rights, freedom of occupation and freedom of movement. Thus, while this ruling will guide other panels hearing similar cases, it does not guarantee similar results.

The justices, aware that the ruling raises questions about the limits of the court's intervention, stressed that they would not second-guess the wisdom or utility of the fence; they would only examine the proportionality of the harm done to local residents.

Since the ruling, which has great significance, was given by only three justices, the state could ask for a rehearing with an expanded panel on the limits of judicial intervention in security matters. Alternatively, the Knesset could bar judicial review of the fence's route, but only by passing a Basic Law on the subject.

Wednesday's ruling precedes the International Court of Justice's scheduled ruling on the fence, but it is doubtful that the ICJ will read it. Yet the question of the state's right to build the fence - to which the High Court answered affirmatively - is the same one that the ICJ will examine in its ruling.