HCJ 7957/04 Mara’abe v. The Prime Minister of Israel 1 H.C.J. 7957/04 Petitioners 1. Zaharan Yunis Muhammad Mara%abe 2. Morad Ahmed Muhammad Ahmed 3. Muhammad Jamil Mas%ud Shuahani 4. Adnan Abd el Rahman Daud ,dah 5. Abd el Rahim Ismail Daud ,dah -. .assem Salah Abd el Rahman ,dah 7. The Association for Civil Ri0hts in Israel v. Respondents 1. The Prime Minister of Israel 2. The Minister of Defense 3. The Commander of ID2 2orces in the Judea and Samaria Area 4. The Separation 2ence Authority 5. The Alfei Menashe 4ocal Council The Supreme Court Sittin0 as the Hi0h Court of Justice 5September 12 20046 March 31 20056 June 21 20057 Before President A. Barak, Vice President M. Cheshin, Justice D. Beinisch, Justice A. Procaccia, Justice E. Levy, Justice A. Grunis, Justice M. Naor, Justice S. Joubran & Justice E. Hayut Petition for an Order Nisi 2or Petitioners Michael Sfard Dan Ya8ir 4imor Yehuda 2or Respondents no. 194 Anar Helman Avi 4icht 2or Respondent 5 .aruch Hei8in JUDGMENT President A. Barak: Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four 8ilometers beyond the Green 4ine. Pursuant the military commander%s orders, a separation fence was built, surroundin0 the town from all sides, and leavin0 a passa0e containin0 a road connectin0 the town to Israel. A number of Palestinian villa0es are included within the fence%s perimeter. The separation fence cuts them off from the HCJ 7957/04 Mara’abe v. The Prime Minister of Israel 2 remainin0 parts of the Judea and Samaria area. An enclave of Palestinian villa0es on the "Israeli" side of the fence has been created. Petitioners are residents of the villa0es. They contend that the separation fence is not le0al. This contention of theirs is based upon the jud0ment in The Beit Sourik Case (HCJ 205-/04 Beit Sourik Village Council v. The Government of Israel, 5A(5) P.D. A07). The petition also relies upon the Advisory Cpinion of the International Court of Justice at the Ha0ue (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 I4 M 1009 (2004)). Is the separation fence le0alD That is the Euestion before us. A. The Background and the Petition 1. Terrorism and the Response to It 1. In September 2000 the second intifada bro8e out. A mi0hty attac8 of acts of terrorism landed upon Israel, and upon Israelis in the Judea, Samaria, and GaFa Strip areas (hereinafter G the area). Most of the terrorist attac8s were directed toward civilians. They struc8 at men and at women6 at elderly and at infant. Entire families lost their loved ones. The attac8s were desi0ned to ta8e human life. They were desi0ned to sow fear and panic. They were meant to obstruct the daily life of the citiFens of Israel. Terrorism has turned into a strate0ic threat. Terrorist attac8s are committed inside of Israel and in the area. They occur everywhere, includin0 public transportation, shoppin0 centers and mar8ets, coffee houses, and inside of houses and communities. The main tar0ets of the attac8s are the downtown areas of Israel%s cities. Attac8s are also directed at the Israeli communities in the area, and at transportation routes. Terrorist or0aniFations use a variety of means. These include suicide attac8s ("0uided human bombs"), car bombs, explosive char0es, throwin0 of Molotov coc8tails and hand 0renades, shootin0 attac8s, mortar fire, and roc8et fire. A number of attempts at attac8in0 strate0ic tar0ets ("me0a9terrorism") have failed. Thus, for example, the intent to topple one of the AFrieli towers in Tel Aviv usin0 a car bomb in the par8in0 lot was frustrated (April 2002). Another attempt which failed was the attempt to detonate a truc8 in the 0as tan8 farm at Pi Glilot (May 2003). Since the onset of these terrorist acts, up until mid July 2005, almost one thousand attac8s have been carried out within Israel. In Judea and Samaria, 9000 attac8s have been carried out. Thousands of attac8s have been carried out in the GaFa Strip. More than one thousand Israelis have lost their lives, approximately 200 of them in the Judea and Samaria area. Many of the injured have become severely handicapped. Cn the Palestinian side as well, the armed conflict has caused many deaths and injuries. Ie are flooded with bereavement and pain. 2. Israel too8 a series of steps to defend the lives of her residents. Military operations were carried out a0ainst terrorist or0aniFations. These operations were intended to defeat the Palestinian terrorist infrastructure and prevent reoccurrence of terrorist acts (see HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57(2) P.D. 349, hereinafter – Marab6 HCJ 327A/02 The Center for Defense of the Individual v. The Commander of IDF Forces in the West Bank Area, 57(1) P.D. 3A5. These steps did not provide a sufficient answer to the immediate need to halt the severe terrorist attac8s. Innocent people continued to pay with life and limb. I discussed this in The Beit Sourik Case HCJ 7957/04 Mara’abe v. The Prime Minister of Israel 3 "These terrorist acts committed by the Palestinian side have led Israel to ta8e security steps of various levels of severity. Thus, the 0overnment, for example, decided upon various military operations, such as operation JDefensive IallK (March 2002) and operation JDetermined PathK (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent reoccurrence of terror attac8s . These combat operations G which are not re0ular police operations, rather bear all the characteristics of armed conflict G did not provide a sufficient answer to the immediate need to stop the severe acts of terrorism. The Committee of Ministers on National Security considered a series of steps intended to prevent additional acts of terrorism and to deter potential terrorists from committin0 such acts . Despite all these measures, the terror did not come to an end. The attac8s did not cease. Innocent people paid with both life and limb. This is the bac80round behind the decision to construct the separation fence (Id., at p. A15). A0ainst this bac80round, the idea of erectin0 a separation fence in the Judea and Samaria area, which would ma8e it difficult for terrorists to stri8e at Israelis and ease the security forces% stru00le a0ainst the terrorists, was formulated. 3. The construction of the separation fence was approved by the 0overnment on June 23 2002. At the same time, phase A of the fence was approved. Its len0th is 11- 8m. It be0ins in the area of the Salem villa0e, adjacent to the Me0iddo junction, and continues to the Trans9Samaria Hi0hway adjacent to the El8ana community. An additional obstacle in the Jerusalem area (approximately 22 8m lon0) was also approved. These were intended to prevent terrorist infiltration into the north and center of the country, and into the Jerusalem area. The 0overnment decision stated, inter alia, "(3) In the framewor8 of phase A G to approve construction of security fences and obstacles in the %seamline area% and in the surroundin0s of Jerusalem, in order to decrease infiltrations by terrorists from the Judea and Samaria areas for the purpose of attac8s in Israel. (4) The fence, li8e the other obstacles, is a security means. Its construction does not reflect a political border, or any other border. (5) . (-) The exact and final route of the fence shall be determined by the Prime Minister and the Minister of Defense . the final route shall be presented to the Committee of Ministers on National Security or to the 0overnment." HCJ 7957/04 Mara’abe v. The Prime Minister of Israel 4 After that (December 2002) the construction of phase . of the fence was approved. That phase be0an at Salem villa0e, headin0 east until the Jordan river (approximately -0 8m). This phase also includes an offshoot startin0 at Mt. Avner (adjacent to the villa0e of Al Mutilla) in the southern Gilboa, headin0 south toward Thaisar villa0e. After about one year (on Cctober 1 2003) the 0overnment decided to construct phases C and D of the fence. Phase C includes the fence between El8ana and the Camp Cfer military base, a fence east of the .en Gurion airport and north of planned hi0hway 45, and a fence protectin0 Israeli communities in Samaria (includin0 Ariel, Emanuel, Medumim, Marnei Shomron). Phase D includes the area from the EtFion .loc southward to the southern Hebron area. The 0overnment decision stated, inter alia "(2) The obstacle built pursuant to this decision, li8e its other se0ments in the %seamline area%, is a security means for preventin0 terrorist attac8s, and does not reflect a political border, or any other border. (3) 4ocal alterations of the obstacle route or of construction necessary for the overall plannin0 of the route, shall be brou0ht for approval to the Minister of Defense and the Prime Minister. (4) . (5) . (-) Durin0 the detailed plannin0, all efforts shall be made to minimiFe, to the extent possible, disturbance liable to be caused to the daily lives of Palestinians as a result of the construction of the obstacle." The separation fence discussed in the petition before us is part of phase A of fence construction. The separation fence discussed in The Beit Sourik Case is part of phase C of fence construction. The len0th of the entire fence, includin0 all four phases, is approximately 7-3 8m. Accordin0 to information relayed to us, approximately 242 8m of fence have already been erected, and are in operational use.