Arab villagers lose court battle against Jerusalem fence route
Court rules: "the harm caused by the fence's route to the petitioners is reasonable and proportionate in comparison to the great security value that results from the fence along this route."
The High Court of Justice has approved the route of the security fence northwest of the Palestinian village of Walaja - part of the security fence surrounding Jerusalem.
The village, south of the capital and near the "Biblical Zoo" (the Tisch Family Zoological Gardens ) and the neighborhood of Malha, is divided in two. Its northern part falls within the municipal jurisdiction of Jerusalem and the southern part lies under Palestinian control.
In 2010, the village council and the villagers petitioned against the route of the security fence. They argued that the fence infringes on the old cemetery of the village, which has been used by the residents since 1949, and which includes three burial caves.
The villagers also argued that use of the old well, which has been relied on for centuries to water their fields, will also be harmed by the fence route, as the well will be left on the Israeli side of the line.
Moreover, the villagers said that the construction of the fence will damage dozens of dunams of agricultural land, destroy olive and other trees, and that the completion of the fence will leave hundreds of dunams of agricultural land under Israeli jurisdiction and block villagers from access to their properties.
The High Court then issued an injunction requiring the Israeli authorities to cease construction of the fence until further notice.
For its part the state argued that the new cemetery will be in Palestinian territory, while the old cemetery will be on the Israeli side of the fence.
The state also explained that though the well will fall on the Israeli side of the fence, the flow of the water to agricultural land will not be harmed, and the fence will be built 30-40 meters from the well.
As for infringement upon private agricultural land, the state argued that for the construction of the fence it would be necessary to move 43 olive trees and 34 oak trees and that villagers will have access to the fields on the Israeli side of the fence through two gates. The villagers will be required to apply for the necessary permits, which is standard practice.
The state's position was that the route of the fence was reasonable and proportional.
The panel of justices, which included Supreme Court President Dorit Beinisch, and Justices Asher Grunis and Uzi Vogelman, said that in matters of security and defense, it is important to give significant weight to the professional opinion of the military commanders on the ground.
The justices ruled Wednesday that despite the damage caused to the agricultural lands of the villagers by the security fence, its extent is relatively limited compared to what the petitioners claim.
The court also noted that during deliberations, the army clarified that the two gates will be open for several hours, three times a day, which would allow relatively unhindered access to villagers wanting to work their land.
"Against these infringements one must weigh the security value stemming from the construction of the security fence," the justices wrote in their ruling.
"In view of this situation, we believe that the harm caused by the fence's route to the petitioners is reasonable and proportionate in comparison to the great security value that results from the fence along this route."
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