a fence around jerusalem

8/7/2019 A Fence Around Jerusalem

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T h e J e r u s a l e m I n s t i t u t ef o r I s r a e l Stud ies

A F e n c eA r o u n dJ e r u s a l e m

K o b i M i c h a e lA m n o n R a m o nA s s i s t e d b y : M a y a C h o s h e n a n d I s r a e l K i m h


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The JerusalemInstitute for Israel StudiesThe Teddy K o l l e k Center for Jerusalem Studies

A F e n c e A r o u n d J e r u s a l e mT h e C o n s t r u c t i o n o f t h e S e c u r it y F e n c e

A r o u n d J e r u s a l e mG e n e r a l b a c k g r o u n d a n d i m p l i c a t i o n s f o r t h e c i t y a n d

i t s m e t r o p o l i t a n a r e a

Kobi Michael and Amnon Ramon

2004


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The Teddy K o l l e k Center for Jerusalem StudiesEstablished by:

The Jerusalem Institute for Israel Studies & The Jerusalem FoundationThe JU S Research Series # 100

A F e n c e A r o u n d J e r u s a l e mT h e C o n s t r u c t i o n o f t h e S e c u r i t y F e n c e A r o u n d J e r u sa l e m

G e n e r a l b a c k g r o u n d and i m p l i c a t i o n s f o r the c i t y and its m e t r o p o l i t a n a r e aKobi Michael and Amnon Ramon

This publication was made possible by funds granted byThe Jacob and Hilda BlausteinFoundationThe Frankel Foundation

The Charles H . Revson Foundation

The statements made and the views expressed are solely the responsibilityof the authors

2004, The Jerusalem Institute for Israel StudiesH ay Elyachar House

20 Radak St., 92186 JerusalemIsrael

http://www.jiis.org.il
http://www.jiis.org.il/http://www.jiis.org.il/


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T a b l e of C o n t e n t s

Introduction 5

Chapter One: The Decision-Making Process 9A . Evolution of a concept: Obstacle, security fence, separation fence,

or seam zone? 9B . The decision-making process 10C . Route of the fence: General features 17D . The legal constraints 23E . The debate in Israel 33E The debate in the international arena (including the International

Court of Justice at The Hague) , 41

Chapter Two: The Obstacle around Jerusalem("JerusalemEnvelope") 48

A . Background: Planning of the obstacle in the Jerusalem areaand the question of the route 48

B . Declared considerations and rationale of the route of the fencearound Jerusalem 53

C . Distinctive features of Metropolitan Jerusalem 56Chapter Three: Features of the Obstacle 63

Chapter Four: Route of the Fence around Jerusalem 67

Chapter Five: Impact of the Fence on the Palestinian

Population in Metropolitan Jerusalem 74

Chapter Six: Terminals and Crossing Points 86

Chapter Seven: Construction of the Obstacle Aspectsof Policy, Geography, and Demography 90


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Chapter Eight: Conclusions, Scenario and ThreePossible Sequences of Events

Chapter Nine: Initial Recommendations

103

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L i s t o f I l l u s t r a t i o n s

Illustration 1: Route of the security fence (separation fence) 18Illustration 2: Planned route of the securiy fence and alternatives,

as presented to the Supreme Court 32Illustration 3: Typica l cross-section of the security fence 64Illustration 4: Route of the security fence in the Jerusalem area 67Illustration 5: The security fence in the Kafr Aqeb area (aerial photo) 70Illustration 6: Qalandiya checkpoint 86Illustration 7: The w a l l in the A b u Dis area 88


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The JerusalemInstitute for Israel StudiesThe Teddy K o l l e k Center for Jerusalem Studies

A F e n c e A r o u n d J e r u s a l e mT h e C o n s t r u c t i o n o f t h e S e c u r i t y F e n c e

A r o u n d J e r u s a l e mG e n e r a l b a c k g r o u n d a n d i m p l i c a t i o n s f o r t h e c i t y a n d

i t s m e t r o p o l i t a n a r e a

Kobi Michael and Amnon Ramon

2004


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The Teddy K o l l e k Center for Jerusalem StudiesEstablished by:

The Jerusalem Institute for Israel Studies & The Jerusalem FoundationThe JU S Research Series # 100

A F e n c e A r o u n d J e r u s a l e mT h e C o n s t r u c t i o n o f t h e S e c u ri t y F e n c e A r o u n d J e r u sa l e m

G e n e r a l b a c k g r o u n d and i m p l i c a t i o n s f o r th e c i t y and its m e t r o p o l i t a n a r e aKobi Michael and Amnon Ramon

This publication was made possible by funds granted byThe Jacob and Hilda Blaustein Foundation

The Frankel FoundationThe Charles H . Revson Foundation

The statements made and the views expressed are solely the responsibilityof the authors

2004, The Jerusalem Institute for Israel StudiesH ay Elyachar House

20 Radak St., 92186 JerusalemIsrael

http://www.jiis.org.il
http://www.jiis.org.il/http://www.jiis.org.il/


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T a b l e of C o n t e n t s

Introduction 5

Chapter One: The Decision-Making Process 9A . Evolution of a concept: Obstacle, security fence, separation fence,

or seam zone? 9B . The decision-making process 10C . Route of the fence: General features 17D . The legal constraints 23E . The debate in Israel 33F. The debate in the international arena (including the International

Court of Justice at The Hague) 41

Chapter Two: The Obstacle around Jerusalem("JerusalemEnvelope") 48

A . Background: Planning of the obstacle in the Jerusalem areaand the question of the route 48

B . Declared considerations and rationale of the route of the fencearound Jerusalem 53

C . Distinctive features of Metropolitan Jerusalem 56Chapter Three: Features of the Obstacle .'. 63

Chapter Four: Route of the Fence around Jerusalem 67

Chapter Five: Impact of the Fence on the Palestinian

Population in Metropolitan Jerusalem 74

Chapter Six: Terminals and Crossing Points 86

Chapter Seven: Construction of the Obstacle Aspectsof Policy, Geography, and Demography 90


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Chapter Eight: Conclusions, Scenario and ThreePossible Sequences of Events

Chapter Nine: Initial Recommendations

103

111

L i s t o f I l l u s t r a t i o n s

Illustration 1: Route of the security fence (separation fence) 18Illustration 2: Planned route of the securiy fence and alternatives,

as presented to the Supreme Court 32Illustration 3: Typica l cross-section of the security fence 64Illustration 4: Route of the security fence in the Jerusalem area 67Illustration 5: The security fence in the Kafr Aqeb area (aerial photo) 70Illustration 6: Qalandiya checkpoint 86Illustration 7: The w a l l in the A b u Dis area 88


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I n t r o d u c t i o n

I n A p r i l 2002, following a lengthy series of brutal terrorist attacks, the Minis te r i a lCommittee for National Security (hereafter: the Security Cabinet), headed by PrimeMinister A r i e l Sharon, decided to establish a security fence between Israel and theWest Bank.1 Two months later, the government authorized the route of the fenceas proposed by the security establishment, between Sallem, in the northwest areao f the West Bank, and Kafr Kassem, as w e l l as two sections in the Jerusalem area.Three major sections have been completed since work began in August 2002: thecentral section between Sallem and Elkana, constituting the main part of the fence;the northeastern section, in the Mount G i l b o a region, between Sallem and KibbutzTirat Z v i ; and two sections in the south and north of Jerusalem. In addition, partso f the obstacle were built east of Jersualem.

Both the decision-making process with regard to the fence and the geographicreality and the political consciousness it has created reflect the problematic andcomplex nature of decisions concerning national security in Israel. Morespecifically, this enormous project w i l l have far-reaching consequences for themutual relations between Israelis and Palestinians and between Israel and thePalestinianAuthority, in the shadow of the ongoing violent confrontation betweenthe sides.

The ini t ial conception and incipient planning of the fence date back to thesecond government o f Yitzhak Rabin, when Moshe Shahal, the Minister of InteriorSecurity, initiated planning for the "seam zone." However, the security situationbetween 1995 and 2002 did not generate massive public and political pressure to

1 In this document the terms "security fence," "seam zone," "obstacle" (the official terminology of the security establishment), and "separation/disengagement fence," which iscommonly used by the Israeli media, will be used alternatively. In the international mediathe prevalent term is "wall ." It should be emphasized that the Israeli security establishment also uses several terms interchangeably, as can be seen, for example, on the officialIsraeli websites relating to the fence project. The Defense Ministry's site is called "TheSeamZone" in Hebrew and "The Security Fence" in English.See: w w w . s e a m z o n e . m o d . g o v . i V P a g e s / E N G / d e f a u i t . h t m .

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http://www.seamzone.mod.gov/http://www.seamzone.mod.gov/


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bu i l d a fence. Consequently, the Israeli governments in this period found nojustification to embark on such a project, not least because of their concern that afence would effectively determine the eastern border between sovereign Israeland the West Bank. B y the summer of 2002, however, the fence project was virtuallyforced on the government, as the public demanded an adequate response toPalestinian terrorismwhich had brought about a severe deterioration of the securitysituation and left Israelis feeling highly vulnerable and deeply insecure in everysense.

Although the fence originated as a "security necessity," the planners, whocame from the security establishment, were compelled to consider numerous" c i v i l i a n " aspects (including domestic and external political pressure). The vastcomplexity of the project meant that the planners were unable to anticipate all theimplications, consequences, and ramifications of the fence and its operationalregime in many " c iv i l i a n" and security spheres. These inherent difficulties wereoften compounded due to the absence of clear guidance by the political level ,which, subjected to contradictory domestic and international pressures, found itdifficult to decide the route of the fence. A t the same time, it needs to be emphasizedthat the security establishment was the only planning and operational body inIsrael capable of coping with a project on this scale within a reasonable period.

Another result of the complexity of this "national project" was "conceptualconfusion" that characterized the process. From the outset, a number of termshave been used to describe the project, each representing a different rationale. Inpart, the conceptual confusion appears to reflect an inherent tension betweenconsiderations of a strictly security character (as in the terms "security fence" or"separation fence") and political-state considerations, both internal and external,which bring about a blurring of the separation boundary (as in the term "seamzone"). Indeed, as w i l l be seen later, in present-day Israel it is all but impossible todifferentiate between "pure" security considerations (within the Green Line andfor the settlements in Judea and Samaria) and domestic and external political andstate-policy considerations.

Particularly acute problems in planning and building the fence have arisen inand around Jerusalem, one of the most complex and complicated cities in theworld. The major difficulty lies in the fact that in many cases the fence in theJerusalem area does not separate Jewish andArab populations, but instead cuts off6


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Arabs l iv ing in the West Bank from Arabs l iv ing within the municipal boundariesof Jerusalem, despite the close family, social, and economic ties that bind the twogroups.

In light of the fact that the Jerusalem fence project is the most significantIsraeli undertaking in the city since 1967, the Jerusalem Institute for Israel Studiesdecided, in the spring of 2003, to examine the consequences and implications ofthe route of the fence around Jerusalem. In this connection, a special researchteam (consisting of Israel K i m h i , M a y a Choshen, Amnon Ramon, and K o b iMichael) was established to study the tangled issue.

The present document is the first in a series of planned research papers on thesubject of the separation fence and Metropolitan Jerusalem. Its aims are to analyzethe decision-making process underlying the fence and its route, with the focus onmapping and elucidating the main problems that have already arisen and that arel ikely to arise in the future. In the concluding section of the paper we set forththree possible sequences of events in the situation of a fence around Jerusalem.Finally, we offer initial operative recommendations, which w i l l be further developedin the next stage, following an in-depth examination of the problems set forth inthe paper. We hope the paper w i l l assist the policy makers at the various levels tocope with this complex issue and w i l l also shed light on the subject for lay readerswho want to learn more about one of the monumental developments in the historyof Jerusalem since 1967.

W e are grateful to Israel K i m h i and M a y a Choshen, our dedicated partners on theresearch team, and to the interviewees and participants in the discussions conductedby the think tank of the Jerusalem Institute for Israel Studies: Shalom Goldstein,political adviser to the mayor of Jerusalem for East Jerusalem affairs; attorneyDaniel Seidemann; senior officers of the Border Police; Major G i l L i m o n fromthe military legal adviser's office of Judea and Samaria; Colonel (res.) DannyTirza, a senior planner of the fence in Central Command's "Keshet Tzva'im"Directorate; and to Israelis and Palestinians who agreed to be interviewed oncondition of anonymity. Special thanks to the members of the Jerusalem Institutethink tank (particularly Prof. Ruth Lapidoth, who made important comments aboutthe legal section) and to Ora Achimeir and Prof. Yaakov Bar-Siman-Tov, thedirectors of the Jerusalem Institute, who oversaw the study and supported it from

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its inception. We are especially grateful to Ms. Hamutal A p p e l for her work inediting the manuscript and seeing it through the printing process; to the Hebreweditor, Shlomo A r a d ; to the photographers Nati Shohat and Yossi Zamir (Flash90); to the English translator and editor, Ralph Mandel; and to Yair Assaf-Shapiraand Vered Shatil, for preparing the maps.

K o b i M i c h a e l and Amnon RamonNovember 2004

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C h a p t e r O n e : T h e D e c i s i o n - M a k i n g P r o c e s s

A . E v o l u t i o n o f a concep t : O b s t a c le , s e c u r i t y f e n c e , s e p a r a t io n f e n c e ,o r s e a m z o n e ?

Already in 1992-1993, as stabbing attacks on Israelis by Palestinians becamerampant, Israel placed controls on the entry of Palestinians from the West Bankand the Gaza Strip into its territory. However, since early 1995 and the onset of thelarge-scale terrorist attacks that accompanied the Oslo process, Israel had to considerthe creation of a physical obstacle to block the entry of terrorists from the WestBank. At the same time, concern that such an obstacle would predetermine thel imi t of Israel's concessions to the Palestinians has led the political echelon todownplay its political implications.The relentless terrorist attacks, Israel's inabilityto set a f inal policy goal and decide the route of the eastern border, together withinternational pressure on Israel to avoid unilaterally "biting of f parts of the WestBank, prevented systematic thinking and planning in regard to the fence andgenerated "conceptual confusion" reflecting different approaches that are in partself-contradictory.2

The separation fence is being planned and built as a security necessity thatw i l l stop potential terrorists and channel and systematize the entry of Palestiniansinto Israel, while denying entry to individuals on security or criminal groundsC s h a b a h i m " i l legal ly present as such persons are known in the securityjargon). However, it is obvious that the fence w i l l have an enormous impact on therelations between Israel and the Palestinian Authority/state in any future scenario.Indeed, pressure exerted by Israeli public opinion and by the Israeli media inresponse to surging Palestinian terrorism "coerced" the political level to establisha physical obstacle between Israel and the Palestinian Authority, which for thefirst time clearly separated the West Bank and Israel and the two peoples. This is

For an extensive discussion of the historical and conceptual aspects of Israelidisengagement from the "Palestinian entity," see: Dan Schueftan, D i s e n g a g e m e n t : I s r a e la n d the P a l e s t i n i a n E n t i t y , Zmora-Bitan and the University of Haifa, 1999 (Hebrew), pp.21-26, 46-52.

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a major departure from Israeli policy since 1967, which allowed the free movementof the residents of the territories into Israel, and from the Israeli effort (mainlysince 1977) to blur the border by means of the settlement project.

Incontestably, the fence, once completed, w i l l shape not only a new geographicreality but also a new consciousness stemming from the radically different political,social, and economic situation that w i l l actuate the relations between Israel andthe Palestinians in the West Bank and around Jerusalem. In addition, the fencew i l l be of great consequence for relations between the Arabs in Israel and thePalestinians in the territories, and w i l l reduce significantly the ability of the latterto migrate to Israel.

B . T h e d e c i s i o n - m a k i n g pro c es sA t the beginning of 1995, the wave of suicide bombings which began in late 1994,during the Oslo process, and extensive Palestinian criminal activity theft ofcars and of agricultural implements led to the formulation of the "seam zone"plan. The term referred to a geographic strip (340 kilometers long, including theJerusalem area, and ranging in width from a few kilometers to 20 kilometers)along both sides of the Green L ine , which would be utilized to preempt and preventterrorist and criminal activity originating from the West Bank.

O n January 31,1995, ten days after a terrorist attack at the soldiers' hitchhikingstation at Beit L i d junction, the Cabinet instructed the Finance Minister and theInterior Security Minister to set up teams in order to examine ways and means tobring about a separation between the population of sovereign Israel and thePalestinian population in the West Bank and the Gaza Strip, and to consider theeconomic and security implications of such a separation.3 The decision led to theestablishment of a committee headed by Interior Security Minister Moshe Shahal,which drew up a plan based on three principles: Palestinians would be allowed toenter Israel through official crossing points after obtaining an entry permit andundergoing a security check hy the Israel Police; the volume of vehicular traffic

3 State Comptroller, 48th Annual Report, for 1997, and the Accounts of Fiscal 1996, pp.1020-1021.10


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into Israel from the territories would be reduced and a system introduced to ensurethe entry of goods and merchandise in a controlled manner through the officialcrossing points; and potential infiltrators and vehicles would be prevented (as faras possible) from entering Israel outside these points. The committee recommendedthe introduction of permanent and continuous routine-security measures (knownas b a t a s h in the military Hebrew acronym) between the crossing points, this underthe responsibility of the Israel Defense Forces (IDF), and the construction of anobstacle on the access routes to prevent infiltration.

In the Jerusalem region the committee recommended the deployment of policeand Border Police forces to supervise and oversee those entering the city. Morespecifically, the committee recommended the creation of six crossing points forgoods, vehicles, and people seeking to enter the city from the West Bank. Inaddition, the committee said, access routes traversing Jerusalem's area ofjurisdiction should be blocked in order to ensure that traffic passed solely throughthe official crossing points.

The director of budgets in the Finance Minis t ry estimated the overall cost ofthe plan at approximately NIS 2 bi l l ion . Concurrent with the Shahal Committee, acommittee headed by D a v i d Brodet (a former director-general of the FinanceMinistry) examined the plan's economic aspects. Other plans were put forward byCentral Command headquarters and by a committee chaired by the deputy chiefof staff, but none of them became operative.4

O n March 3, 1996, the day on which a suicide bomber blew up a bus on thenumber 18 line in Jerusalem during a spate of terrorist attacks, the governmentreiterated its resolution of January 1995 to bring about a separation between Israeland the territories. The new resolution stated that in order to control and supervisethe entry of vehicles, pedestrians, and goods, orderly crossing points would beestablished in the seam zone (modeled on the Erez checkpoint at the entrance tothe Gaza Strip), with alternative routes of entry to be blocked. In the wake of thisdecision, a plan to protect the seam zone was drawn up by the Planning Branch ofthe General Staff and another plan was prepared by the anti-terrorism unit in the

4 Ibid, pp. 1021-1022.

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Prime Minister's Office (which was established at the beginning of March 1996).5In 1997, the Interior Security Minis t ry decided to deploy Border Police units,which operate within the framework of the Israel Police, along the seam zone. Inaddition, special units were formed to fight crime in the seam zone.6

However, the government decisions and the plans prepared by the variouscommittees were largely unimplemented and failed to meet expectations. In July1996, Yitzhak Mordechai, the Defense Minister in the new government of BenjaminNetanyahu, declared that he opposed the Rabin government's separation plan.The plan was put on hold.7 The State Comptroller's Report for 1997 stated: "Dealingwith the seam zone amounted to no more than making decisions to establishcommittees, which were asked to prepare operative plans, usually in the wake ofterrorist attacks." The report added: "The IDF does not have a concrete responsefor the three paramount problems relating to the seam zone (hostile terrorist activity,criminal activity, i l legal ly present individuals)." Moreover: "In the absence of adecision to implement the plans that were submitted, the IDF cannot provide aresponse that meets the scope and severity of the security and criminal threatsinvolving the seam zone. In the opinion of the State Comptroller, the absence ofsystemic and thorough activity by the security forces, as described in the Report,accords hostile and criminal elements freedom of operation to carry out their actionswithin the State of Israel."8 As w i l l be seen later, this description by the StateComptroller in 1998 of decisions that were made under the pressure of terroristattacks is equally apt for the subsequent process of decision-making about thefence.

5 Ibid, pp. 1022-1023.6 State Comptroller, Report on the Seam Zone, Report N o. 2 (July 2002), pp. 10-12. Thereport also appeared in : State Comptroller,Annual Report 54A for 2003, pp.75-79; hereafter:Seam Zone Report.7 H a a r e t z , Feb. 24, 2004,p. A -4 (all references are to the Hebrew edition of the dailypaper).8 State Comptroller, 48 th Annual Report, for 1997, and the Accounts of Fiscal 1996, p.1031. According to Shalom Goldstein, the political adviser to the mayor of Jerusalem forEast Jerusalem affairs, the situation described in the State Comptroller's Report appliesequally to the activity of the PalestinianAuthority in East Jerusalem, contrary to the interimagreements between Israel and the PalestinianAuthority.12


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W i t h the eruption of the second Intifada at the end of September 2000, terroristattacks in Israel escalated rapidly, to a scale previously unknown. According todata of the Shin Bet (General Security Service), between the end of September2000 and the beginning of July 2002, 83 suicide bombers infiltrated Israel fromthe territories (only one of them from the Gaza Strip). 9 The terrorist attacksheightened public pressure on the government and the security establishment toseal the porous seam zone.

In November 2000, the Prime Minister, Ehud Barak, approved a plan to bui ldan obstacle against vehicles in the M e i Ami-Latrun area and to deploy a numberof Border Police companies for routine-security purposes along the obstacle, at atotal cost of NIS 100 mil l ion . However, in M a y 2001 the Finance Minist ry allocatedonly NIS 15 mi l l i o n for the plan and its implementation was postponed.10

In the meantime, the suicide bombings continued and public pressure for aseparation fence intensified. Against this backdrop, M K H a i m Ramon, a rankingfigure in the Labor Party, established the Movement for Unilateral Separation. InJune 2001, Prime Minister A r i e l Sharon, leading a national unity government (andin the past a bitter foe of the fence concept), ordered the creation of a steeringcommittee under Major General (res.) U z i Dayan, the head of the National SecurityC o u n c i l ( N S C ) , to coordinate and supervise the plan to prevent Palestinianinfiltration via the seam zone. In the wake of the Prime Minister's guideline, theN S C , in conjunction with the IDF and the Israel Police, formulated the SeamZone Plan, which was approved by the Security Cabinet on July 18, 2001. Underthis plan, the IDF was to be responsible for securing the eastern side of the seamzone by means of a "mission command" which would coordinate the activity,while the Border Police would be responsible for the western side. The two bodieswere to coordinate their operations and the number of troops to be deployed in theseam zone would be increased significantly. Another decision was to create anantipersonnel obstacle in selected areas where the risk level was deemed to be

9 Seam Zone Report, p. 12.1 0 Ibid, p. 13. According to Colonel (res.) Danny Tirza (head of Keshet Tzva'imDirectorateand one of the chief planners of the fence), work on the anti-vehicle obstacle began inNovember 2000, with the Defense Ministry executing a plan drawn up by the InteriorSecurity Ministry.

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higher. This decision was effectively the inception of the separation fence. TheSecurity Cabinet's resolution stipulated that the N S C would coordinate planningof the project and identify the aspects necessitating the decision of the politicall e v e l . 1 1

Construction of the anti-vehicle obstacle began after the decision of July 2001.The Public Works Department and the Defense Ministry's construction branchinstalled a safety railing and a metal frame from the northwestern extremity of theWest Bank to the Latrun area. U n t i l A p r i l 2002 hardly any work was done on theantipersonnel obstacle.

O n A p r i l 14, 2002, the Security Cabinet, cognizant of the need to boost thecountry's defensive capability in the face of terrorism in addition to the offensivecampaign then under way in the West Bank, known as Operation DefensiveShield decided to establish a permanent obstacle in the seam zone. Aministerialpanel chaired by the Prime Minister was to examine the implementation of thedecision. The Security Cabinet also decided to establish immediately a temporaryobstacle in three sectors: east of Umm al-Fahm, around Tul K a r m , and inJerusalem.12 To put the decision into practice, the Seam Zone Administration wasestablished under the director-general of the Defense Minis t ry , Major General(res.) Amos Yaron. In addition, the IDF set up a special team under the DeputyC h i e f of Staff, which formulated the comprehensive operational concept and theother implications of building the fence.13

A t the beginning of June 2002, the I D F completed the formulation of the planto bu i ld the first section of the permanent obstacle between the northwesternextremity of the West Bank, at the village of Sallem (northeast of Jenin), and the

1 1 Ibid, p. 16.1 2 Security Cabinet decision 64/B, Section E , cited in a position paper issuedby B'Tselem:"Behind the Obstacle Human Rights Violations as a Result of Israel's SeparationObstacle," March 2003, pp. 6-7 (English version; hereafter: B'Tselem Report).1 3 The division of authority between the various bodies that are engaged in planning theroute of the fence is not always clear. The Seam Zone Administration is described as anoperational body, whereas the Keshet Tzva'im Directorate, which is attached to CentralCommand, deals with the planning aspects of the route.

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settlement of Elkana based on an order of priorities worked out by the securityestablishment. The plan included the establishment of a continuous obstacle aroundJerusalem (hereafter: the Jerusalem Envelope) and an operative proposal to bu i l dits first two sections, in the north and south of the city.

Fol low i ng numerous discussions of proposals and counter-proposals on thesubject, Prime Minister Sharon accepted the proposal of the Defense Minister,Binyamin Ben-Eliezer, for the route of the first section of the separation fence,from Sallem in the north to Kafer Kassem in the south, covering 110 kilometers. 14

O n June 23,2002, the government approved the Seam Zone Administration'splan for the implementation of the first sections of the fence. This followed anunprecedented surge of terrorist attacks against Israeli civilians (Palestinianterrorism claimed 131 Israeli lives in March 2002 alone).15

The decision stemmed first and foremost from pressure "from below" on thepoliticians "to take action." In the light of the politicians' impotence and in theabsence of any other "answer" to Palestinian terrorism, the fence seemed to be a"panacea" and an "electoral asset." Y et no coherent conception existed concerningthe essence of the fence, its geographic features, and its function/operation as partof a comprehensive security approach based on a national security conception anda long-term vision of Israel's national interests.

O n the sensitive question of the route of the fence, the government decided: "Theprecise and final route w i l l be determined by the Prime Minister and the Ministerof Defense." A n y disagreements at lower levels would be brought to the SecurityCabinet for a final decision. 16 Thus an accelerated decision-making process wascreated in which a tiny panel the Prime Minister, the Defense Minister, andthe Interior Security Minister, together with representatives of the IDF and theDefense Minist ry (who propose alternatives to the Prime Minister) is almost

14 H a a r e t z , Feb. 24, 2004, p. A - 4 .1 5 This figure was cited by Major General (res.) U zi Dayan, who at the time was head ofthe NSC , in a conference held at the Hebrew University of Jerusalem onMarch 28, 2004.1 6 Government Decision 2007, B'Tselem Report, p. 7.

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alone17 deciding the route of the fence, without in-depth discussion or control bythe c iv i l i an l e v e l . 1 8 In August 2002, the N S C , which according to the decision ofthe Security Cabinet and the Prime Minister was to coordinate the staff work andsupervise the construction of the fence, unilaterally dissociated itself from theseam zone plan, on the grounds that it was "not an operational body."19 In practice,then, as in other sensitive spheres, nearly all the planning and work on the fencehas been left to the security establishment, under the considerable influence of thearmy. There is a noticeable absence of comprehensive and ongoing control andoversight by the c iv i l i an establishment, whose task it is to examine the far-reachingimplications of Israel's largest infrastructure project for national security and thestate's interests. This situation was criticized by the State Comptroller, who noted"the National SecurityCouncil's dissociating itself from the ministerial committee'sdecisions" and the absence of a clear policy decision about which body is in chargeof the fence project. The Comptroller remarked further "that it merits examinationwhether the overall systemic handling of the plan's components includingpoli t ical , legal, economic, informational, demographic, and other civil ian spheres should be concentrated in the hands of the security establishment or entrusted to a

1 7 The fence route was sent to the Cabinet ministers for their perusal and comments andwas also discussed by the Knesset's Foreign Affairs and Defense Committee, but in practicethe influence of the Prime Minister and the Defense Minister was apparently dominant.According to the adviser on East Jerusalem affairs to the mayor of Jerusalem, representativesof the N S C and of Keshet Tzva'im consulted with the mayor and with officials of theJerusalem Municipality and heard out the city's field units concerning the route of theobstacle in the Jerusalem area. The mayor's position was conveyed to the Prime Ministerand the Defense Minister and in several cases influenced the route of the fence, the advisernoted.1 8 On July 14, 2003, the Likud faction in the Knesset decided to suspend the transfer ofNIS 745 million earmarked for the construction of the fence. In the discussion, M K MichaelEitan stated: "N o one has told us what the route is, whether the fence fits into the road mappolicy, or whether such an expensive fence is necessary. None of us knows anything,including the ministers. The route gets changed but no one is consulted" (Zvi Zrahiya andMazal Mualem, "Likud Knesset faction delays fund transfer for separation fence," H a a r e t z ,July 15, 2003).1 9 Seam Zone Report, p. 72.16


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different body."20 Speaking at a meeting of the Knesset's Control Committee, theComptroller observed that the work was proceeding without long-term planningand without "a systemic vis ion, which is essential to achieve the plan's goals." 21

C . R o u t e o f t h e f e n c e : G e n e r a l f e a t u r e sO n August 14,2002, the Security Cabinet met to discuss the route proposed by theSeam Zone Administration and approved the f inal route for the obstacle's firstphase (codenamed by the I D F "Another W a y A " ) . The route covers 118 kilometers,made up of 96 kilometers between Sallem and Elkana and 22.4 kilometers in twosections around Jerusalem: in the north from the IDF's Ofer Camp to Qalandiyacheckpoint, and in the south from the "tunnels road" (which begins adjacent to thePalestinian village of Beit Jalla) to the Etzion B l o c of settlements to KhirbetMazmuriya (east of the new Har Homa neighborhood).22 Subsequently, duringthe work, the stretch of fence between Sallem and Elkana somehow became longer,n o w standing at 138 kilometers, and the two sections of the Jerusalem Envelopetotaled 24 kilometers.23 By the end of July 2003, in accordance with the timetableand despite the hard winter of 2002-2003, work was completed on 123 kilometersalong the Sallem-Elkana route and on 17.8 kilometers of the two Jerusalemsections.24 At the end of February 2004, as the International Court at The Haguebegan deliberations on the fence, the army began to dismantle the section of thefence that had been built east of Baka al-Sharqiya (the security establishment saidthis had nothing to do with the convening of the court at The Hague). Instead of

2 0 Ibid, p. 76.2 1 Z v i Zrahiya, "[State Comptroller] Goldberg criticizes government: 'This isn't the wayto build a fence,'" H a a r e t z , N o v . 1 1 , 2003.2 2 See maps, p p . X X and X X ; and: Mazal Mualem, " I f Sharon wanted a fence," H a a r e t z ,M a y 30, 2003.2 3 Seam Zone Report, p. 76.2 4 See w w w . s e a m z o n e . m o d . g o v . i l / P a g e s / E N G / n e w s . h t m # n e w s 5 . It should be noted thatthere are discrepancies between the data i n the State Comptroller's Report and the officialSeam Zone Fence website.

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the dismantled section, a new fence was built adjacent to the Green L ine , whichseparates Baka al-Sharqiya, which is in the West Bank, from Baka al-Garbiya,which is in Israel.25

I n December 2002, the Prime Minister and the Defense Minister approved thesecond stage of the obstacle ("Another W a y B " ) . This section of the fence followsa route that "envelopes" the communities of the Mount G i l b o a region from Sallemto the outskirts of Beit She'an, covering another 42 kilometers and ly ing veryclose to the Green L i n e . 2 6 Construction of the fence from Sallem eastward toMount Avner (in the G i l b o a region), covering 38.5 kilometers, began in January2003 and was completed in February 2004. The section from Mount Avner to theJordan River is expected to be completed at the end of 2004. 27

The third and fourth stages of the fence, from Elkana southward to Jerusalem,and from Jerusalem to U m m Darj, west of the Dead Sea, were approved i n principleb y the government on October 1, 2003. The section from Elkana to Ofer Camp,north of Jerusalem, is in advanced planning stages, with work here having begun

2 5 S e e : w w w . s e a m z o n e . m o d . g o v . i l / P a g e s / E N G / n e w s . h t m # n e w s l 6 . According to the StateAttorney's Office and "reliable sources" i n the Defense Ministry, additional changes maybe implemented at this section of the fence. See: Arnon Regular, "New route will haltcommerce at Barta'a," H a a r e t z , Feb. 25, 2004; and see the section below on the debateabout the fence in Israel and internationally.2 6 See w w w . s e a m z o n e . m o d . g o v . i l / P a g e s / E N G / r o u t e . h t m ; a n d Amos Harel, "Constructiono f separation fence begins between Gilboa villages and West Bank," H a a r e t z , Jan. 28,2003.2 7 According to Colonel (res.) Danny Tirza, the government d i d not approve the route o f"Another Way B" until October 2003. Implementation was delayed due to budgetarydifficulties caused by the opposition of the chairman of the Knesset's subcommittee forthe defense budget, M K U r i Arie l (National Union). There was serious disagreement amongthe various bodies involved about whether to "stretch" the fence southward from MountAvner toward the village o f Thaisir, i n the West Bank, or to "stretch" it along a route nextto the Green Line to the Jordan River. The Justice Ministry objected to the route fromMount Avner southward ( in the West Bank). T w o routes appear i n the government decisiono f October 2003, but at a later stage it was decided not to implement the route to Thaisir.

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in the middle of November 2003 near the village of Rantis, though it is being heldup in several places due to petitions to the H i g h Court of Justice.28

This section of the fence has become the focus of a fierce debate in bothIsrael and the international community because of pressure being exerted by thesettlers and the right-wing parties to include the large settlements of A r i e l ,Emmanuel, and Kedumim (which are located about 20 kilometers east of the GreenLine) and Karnei Shomron on the western "Israeli" side of the fence. On theother side, left-wing groups, including organizations that oppose the occupationand human rights groups, have led acts of protest and resistance to the fence andits route, involving occasional clashes with the security forces. The Prime Minister,the Cabinet, and the security establishment were subjected to contradictorypressures: the settlers and the right-wing parties demanded that tens of thousandsof settlers not be "abandoned," while the United States and the internationalcommunity adamantly rejected Israel's "annexation" of territory and urged thatthe fence be located on the "Israeli side" of the Green Line . The provisionalsolutionthat was found in this case, after the Security Cabinet and the Cabinet plenumexamined various alternatives, was to bu i ld four "fingers" of fence around thefour settlements, unconnected to the main fence. In addition, each settlement w i l lbe enclosed within its own separate fence. The deviation of the route toward theA r i e l enclave lengthens the fence by about 100 kilometers in a hi l ly area whereconstruction w i l l be extremely difficult.29 In the meantime, implementation ofthis stage has apparently been postponed until 2005. 30 Reports at the beginning ofA p r i l 2004 suggested that according to the "new blueprint," A r i e l and Emmanuelw i l l be encircled by a " l o ca l fence" and that there w i l l be no breach in the main

2 8 According to a lecture delivered by the director-general of the Defense Ministry, AmosYaron, in a conference on the decision-making process regarding the fence, held at theHebrew University on March 28, 2004 (hereafter: Yaron, H U conference). For a detaileddiscussion, see pp. 22-24.2 9 A m i r Rapaport, "Firstpublication: The route of the separation fence," M a ' a r i v , October24, 2003.3 0 Amnon B a z i l a i , "Security establishment: More budgets for fence, roads andambulances," H a a r e t z , Feb. 9, 2004.

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fence in the region of the settlements. That is , the fence w i l l fol low a continuousroute, while the four settlements w i l l be enclosed separately.31

Another contentious subject between Israel and the United States was theIsraeli "annexation" of territories east of B en Gurion International Airport, closeto Highway 443, which connects the M o d i ' i n area via Ma'aleh Beit Horon tonorth Jerusalem. Washington objected to this plan and dispatched a special envoyto examine Israel's argument that the annexed areas are vi ta l to protect air trafficto and from Israel's major airport. However, the Americans were apparently notpersuaded.32

The plan was to bu i ld a double fence east of the airport, in order to hamperpotential attacks on planes. Under this plan, the Palestinian villages in this areawould have been "imprisoned" between two fences one abutting the GreenLine and the other 9 kilometers east thereof.33

However, at the end of February 2004 the coordinator of the fence project,Brigadier General Eran Ophir (head of logistics in the IDF's Technological andLogistics Directorate), stated that the idea of building deep obstacles to protectB en Gurion Airport and the M o d i ' in-Jerusalem highway (Highway 443) was beingshelved "because of concern about trapping tens of thousands of Palestinians."34A ruling by the H i g h Court of Justice at the end of June 2004 (see below) apparentlybrought about the annulment of the plan to create enclaves around the airport andHighway 443.

In the Jerusalem region (which we w i l l consider in detail below), the fencew i l l more or less run along the boundary of the city's area of jurisdiction as setshortly after the Six Day War (at the end of June 1967). However, two areas Shuafat refugee camp (adjacent to the Pisgat Ze'ev neighborhood) and K a f r Aqebvillage (in the north of the city) w i l l be "excluded" and again find themselves

3 1 According to an editorial in H a a r e t z , Apr i l 4, 2004.3 2 Aluf Benn, "US to examine necessity of fence in airport area," H a a r e t z , Sept. 24,2003.3 3 See note 30, above.3 4 See note 31, above. The obstacle in the region of Highway 443 will be discussed later.

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on the "Palestinian side" of the fence. As noted, the fence around Jerusalem issingular, because in many places it does not separate Jewish and Arab areas butinstead cuts off the Arab neighborhoods of East Jerusalem from the Arabneighborhoods and villages in the West Bank, which are under the c iv i l i an controlof the PalestinianAuthority. Large-scale deviations from the boundary of municipalannexation were planned for the area immediately north of Jerusalem in order toenable Israeli control of the northern access road to the city (Highway 443 and theplanned Highway 45) and the incorporation of Givat Ze'ev and the surroundingJewish settlements. As noted, at the end of February 2004 it was announced thatthe plan to bu i l d deep obstacles around Highway 443 was being scrapped. To theeast of the city, the political level has not yet made a final decision about whetherto include the city of Ma'aleh Adumim and the other settlements in the area (Kedar,Mishor Adumim, K fa r Adumim, Adam, and others) within the "Israeli" area ofthe fence. Colonel Ti r za said in early March 2004 that at this stage no fence orw a l l w i l l be built along a 2.3 kilometer stretch of the Jerusalem-Ma'aleh Adumimroad.35

Planning of the section of the fence from Jerusalem southward to the settlementof Carmel and to Umm Draj, east of the Dead Sea, has not yet been completed andconstruction has not begun. According to the preliminary plan, there w i l l be alarge-scale deviation from the Green Li n e in this area around the Etzion B l o c , andthe settlements there (including the town of Efrat) w i l l effectively be co-opted tothe Jerusalem region. The plan stipulates that in the area of southern Mount Hebronthe settlements of Eshkolot, Tene, and Susya w i l l end up on the "Israeli side" ofthe fence. Construction of this section is scheduled for 2005; in the meantime, theresidents of the Jewish communities close to the Green Li n e are complaining aboutwidespread infiltration and robberies committed by Palestinians who have targetedthis area following the completion of the sections of the fence further north.

The route approved by the full Cabinet, from Elkana to Carmel and UmmDraj, is about 530 kilometers long 200 kilometers longer than the Green Li n eitself.36

3 5 Amnon Barzilai : "Official in charge of route: We won't build eastern fence," H a a r e t z ,March 10, 2004. The question of the Ma'aleh Adumim enclave will be discussed later.3 6 See note 28, above.

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Various statements made by Prime Minister Sharon indicate the existence ofplans to establish a "separation obstacle" on the eastern slopes of the Samaria andJudea hi l l s as w e l l . This would cut off the area controlled by the PalestinianAuthority from the Jordan Rift Valley and the Judean Desert, which w i l l remainunder Israeli sovereignty. However, detailed planning of this part of the obstaclehas apparently not yet begun. It should be emphasized that the United States (andthe entire international community) is vigorously opposed to the Prime Minister'sdeclarations and intentions concerning the eastern fence, which in Washington'sopinion w i l l turn the West Bank into a virtual prison enclosed by a fence on allsides. In early March 2004, Colonel (res.) Ti rza stated: "Israel w i l l not bui ld aseparation fence in the eastern part of the WestBank because of the political damageliable to accrue."37

D . The l e g a l c o n s t r a i n t s 38The bulk of the seam zone obstacle is being built in the Judea and Samaria Region(JSR), with only small sections earmarked for the municipal area of Jerusalem,which Israel considers part of its sovereign territory. These entities are subject toa different legal system, different legislation, and different regulations. JSR wascaptured by Israel in June 1967 and since then has been under a regime of "militaryoccupation," or "belligerentoccupation,"as it is known in legal terminology. Itis administered by the Mil i t a ry Commander the major general in charge of theterritorial command according to the rules of international law that apply to

3 7 See note 36, above.3 8 This complex subject deserves more extensive treatment. W ithin the present framework,we will describe in brief the major developments and their implications. The JerusalemInstitute for Israel Studies plans to publish a separate study, which will address the legalaspects of the fence's construction. Our description of the main points of the securityestablishment's position is based on a lecture by Major G il Limon from the military legaladviser's office of Judea and Samaria, at a conference on the subject held at the JerusalemInstitute for Israel Studies on September 24, 2003. Another lecture delivered by MajorLimon was recently published as a booklet, "The Separation Zone: A MultidisciplinaryView" (edited by Frances Raday and Yuval Shany), by the Concord Research Center at theLaw School of the College of Management (Tel Aviv 2004), pp. 70-74.

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"occupied territories." The regulations for administering such territories are setforth in the Fourth Geneva Convention Relative to the Protection of Civ i l i an Personsin Time of War, 1949 (third chapter), and in the Hague Regulations of 1907,especially the highly detailed third chapter.

In practice, the legal system presently in effect in JSR is "nourished" by foursources:(a) The laws that existed before the Israeli occupation (i.e., the Jordanian laws)(b) Israel's security legislation (promulgated by the Mil i t a ry Governor).(c) Israeli administrative law (such as the right to be heard by the High Court ofJustice).(d) The laws relating to occupation in international law.

Israel, citing the acts of hostility and the armed confrontation that has existed inthe territories since September 2000, maintains that from a certain point of viewthe rules of warfare are also in effect there. The Supreme Court has endorsed thisposition, but it is unlikely to be accepted by legal experts abroad. Indeed, it was

not accepted in the opinion rendered by the International Court of Justice in TheHague on July 9, 2004.

Under the Israeli approach, the authority of the Mil i t a ry Commander of theregion who under international law is the ruler in Judea and Samaria derivesprincipally from two branches of the law: the "laws of belligerent occupation"and the "laws of warfare," which have been increasingly invoked as hostilitieshave intensified in the past three and a half years. The third element of influence isIsraeli administrative law (the right to a hearing by the High Court of Justice).

The situation in JSR is highly unusual. It has been defined, in legal terms, bythe Judge Advocate General's Corps as "armed conflict short of war," in thecourse of which the military commander wields powers stemming from the lawsof warfare. According to this approach, the construction of the fence can be seenas a type of use of force which under the laws of warfare and the laws relating tooccupation is justified as self-defense the right that accrues to Israel to protectitself against threats originating in the administered area. The use of force derivesfrom the "laws of belligerent occupation" and is part of the general authority

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possessed by the military commander, as explicitly cited in A r t i c l e 43 of the HagueRegulations: "to restore, and ensure, as far as possible, public order and safety" inthe administered area. According to the opinion rendered by the court in The Haguein July 2004, only the laws of occupation apply to the territories, and self-defenseis permitted only against an attack from the outside by a foreign state.

Generally speaking, it can be said that the construction of the obstacle entails theuse of two powers that adversely affect two cardinal rights of the Palestinians.One is the power to requisition land in order to bui ld the physical obstacle; theother is restrictions on movement deriving from the fact that large sections of theobstacle are located deep inside the administered area. However, it is important toemphasize that according to the Judge Advocate General's Corps, these rights (ofthe Palestinians) are neither absolute in the given situation nor inalienable: theycan be abridged if security needs so require.

Israel's authority, as wielded through the military commander for the purposeof constructing the obstacle, does not transfer ownership of the land to the state.The land continues to be owned privately, with the army abrogating to itself solelythe right to use it temporarily. The condition of military need restricting theseizure of land solely for military purposes significantly affects the army'sability to seize a ll the land it requires to bu i l d the obstacle. Indeed, this restrictiondefines the considerations that are relevant in regard to the physical andinfrastructure aspects of planning the route of the obstacle. Considerations thatare not directly related to the security of the region or to threats Israel faces fromthe region are held to be irrelevant and nonviable, and therefore may not be invokedin requisitioning land for the construction of the obstacle.

According to the Israeli approach, international law grants the M i l i t a r yCommander's powers vis-a-vis the loca l population as w e l l as obligations."Seizureorders" are published for the loca l population as part of a procedure known inIsraeli administrative law as the "right to a hearing," with the aim of gettingfeedback from those who are adversely affected, thus ensuring that the state andthe Mil i ta ry Commander have all the pertinent information for deciding on landseizures, including information which was not known when the route of the obstaclewas planned. In many cases, new information, which became available after thepublication of requisition orders, brought about changes in the route and thus

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reduced the damage to the loca l population. The major problem facing the Israelijudicial system is finding the proper balance between self-defense and the right tolife of Israelis, and the property rights and freedom of movement of the Palestinians.

The same two rights use of land and freedom of movement are alsoinfringed in cases where sections of the obstacle are built in Israeli territory,including Jerusalem. In such cases, the security establishment must ensure thatthe abridgment of these rights does not violate the country's Basic Laws(specifically, the Basic L a w on Human Dignity and Freedom). Such infringementsmust meet the "test of proportionality" not exceeding what is necessitated bysecurity needs (in practical terms, the state must be able to defend its actionsagainst petitions to the H i g h Court of Justice).

The case of Jerusalem has several distinctive features. First, there is the problemof the East Jerusalem population, who carry Israeli ID cards but reside outside theJerusalem area of jurisdiction, in Judea and Samaria. They have a singular legalstatus permanent residents of Israel who are not citizens and reside outside theterritory of the state. From the strictly legal point of view, no obligation exists tofind the easiest or the shortest way for this group to enter Jerusalem, as their entryinto Jerusalem constitutes a passage between two separate legal entities. At thesame time, the Israeli authorities understand the importance of enabling this passage.The planners of the fence have stated that they took this necessity into account inplanning the route of the obstacle and in itsconstruction, with considerable attentionbeing paid to the crossing points and terminals.

A l s o problematic is the status of the East Jerusalem residents who l ive withinthe Jerusalem area of jurisdiction (to which Israel has applied its sovereignty) butw i l l find themselves on the "Palestinian side" of the obstacle (notably Shuafatrefugee camp and Kafr Aqeb). Clearly Israel has a greater commitment towardthis group than it does toward residents of East Jerusalem who l ive outside thecity in Judea and Samaria.

Y et another distinctive trait of the Jerusalem area involves the boundaries ofresponsibility between the police and the IDF. Previous government decisionsstipulated that the I D F is responsible for security in the territories outside the Stateof Israel the We,st Bank and the Gaza Strip and the police are responsible forsecurity within Israel. The singularity of Jerusalem, obliging coordination between

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security within Israel in the Jerusalem area of jurisdiction and perimetersecurity in the Jerusalem Envelope in the West Bank, necessitated a change in thesectors of responsibility between the two bodies. Thus, inthe new situation thepolice w i l l have operational responsibility for the Jerusalem Envelope, part ofwhich lies outside the city's municipal boundaries. A t the same time, it is importantto emphasize that from the legal aspect all the police forces operating in JSR aresubordinate to the Mil i ta ry Commander (the head of Central Command).

The state's legal position, as presented by the Judge Advocate General's Corps,is being contested in a series of petitions to the H i g h Court of Justice (some ofwhich were still pending at this writing)39 dealing with l oc a l matters such as theroute of the fence in certain sections, the hours in which the crossing points w i l lbe open, cases in which the fence cuts through villages and infringes freedom ofmovement, and instances in which farmers are cut off from fields that constitutethe source of their livelihood. The court hearings on these petitions are causingserious delays in many parts of the Jerusalem Envelope. Indeed, these delaysprompted some politicians (including M K Y uv a l Steinitz [Likud] , chairman of theKnesset's Foreign Affa i r s and Defense Committee) to complain about "foot-dragging" by the H i g h Court.4 0

A t the end of February 2004, the H i g h Court ordered a one-week suspensionof work on the fence in northwest Jerusalem, between the Jewish suburb ofMevasseret Tzi o n and the Palestinian villages of Beit Sourik, B i d u , and others.The order was issued in response to a petition to the court fi led by the residents of

3 9 A first, limited, hearing on two petitions against land seizure orders issued by the ID Fcommander in JSR for the construction of the seam zone obstacle was held in HCJ [HighCourt of Justice] 8172/02, Ibrahim and others v. Commander of IDF forces in theWest Bank and in HC J 8532/02, Salameh v. Commander of IDF forces inWest Bankandothers. In the judgment handed down by Justice Dorit Beinisch, on October 14, 2002(unpublished), the Supreme Court chose not to intervene in the considerations of the securityestablishment, after the state, in its response, described the efforts that were being made tominimize the damage that the obstacle will cause the residents of the region. As will beseen, in the past few months additional petitions have been submitted and are pendingbefore the High Court.4 0 GideonAlon , "Steinitz: High Court wrong in acceding to Arab petitions against fence,"H a a r e t z , March 26, 2004.

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the Palestinian villages together with 30 residents of Mevasseret T z i o n and a fewfrom Har Adar, a nearby settlement just across the Green Line (another 200 localJews signaled their support by signing a petition protesting the route of the fencei n the Mevasseret T z i o n area). The petitioners' lawyers argued that the route ofthe fence was i l legal and severely affected the villagers' right to property. "Therei s no justification for the mortal blow to the livelihood of the villagers and forcutting them o f f from 7,000 o f the 8,000 dunams [4 dunams=l acre] o f the farmlandsthey own," the petition stated. In its response the state said: "The concern is thatthe obstacle w i l l not prevent a l l infiltrations, and therefore a security zone is neededto enable hot pursuit of terrorists."41 In a hearing held on March 11, 2004, thePresident of the Supreme Court, Justice Aharon Barak, took the unusual step ofcalling on the head of Central Command, Major General Moshe Kaplinsky, tobehave in the controversy over the route of the fence in the B i d u - B e i t Sourik area"not as head of a territorial command but as a military governor." He urged thegeneral to invoke humanitarian considerations in order to minimize the damage tothe Palestinian residents in the Jerusalem area.42 At the hearing the petitionersfrom Mevasseret T z i o n presented an affidavit from the C o u n c i l for Peace andSecurity, an organization that includes many former senior members o f the securityestablishment, arguing against the route o f the fence. The H i g h Court recommendedthat the representatives of the security establishment heed the advice of the retiredgenerals and gave a l l the sides an extension in order to reach a compromise.43 TheH i g h Court petitions caused delays i n the construction of the fence between Elkana

Yuval Yoaz and Gideon A l o n , "High Court suspends work on fence in northwestJerusalem for a week," H a a r e t z , March 1, 2004. The director-general of the DefenseMinistry, Major General (res.) AmosYaron, w as implicitly critical o f the High Court delays:see Yaron, H U conference.

4 2 A m i r Rapaport, Ilil Shahar and Shmuel Mittelman, "Mofaz to Powell: It's importantf o r [ U S ] to support disengagement," M a ' a r i v , March 12, 2004. See also: H C J 10356/02,YoavHess v. Commander of ID F forces inWest Bank (not yet published), which dealswith the legality o f the actions taken a n d the discretionexercised b y the Military Commandero f JSR in connection with land seizures and the demolition of some homes along the"worshippers' path" to the Tomb of the Patriarchs in Hebron.4 3 Lily Galil i , "Br ig . Gen. Shaul and attorney Mohammed in the same jeep," H a a r e t z ,March 19, 2004.28


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and Jerusalem and in the Jerusalem Envelope, with the result that these sectionsmay not be completed by the end of 2004.44

More comprehensive criticism of the planned route of the fence was voicedi n February 2004, shortly before the start of the hearings on the subject at theInternational Court in The Hague. In a petition to the Supreme Court, the Centerf o r the Defense of the Individual assailed the decision of principle to bu i l d thefence deep inside the West Bank. 4 5 The petitioners argue that "a colossalconstruction project such as that of the separation wa l l , the effects of which on theoccupied c iv i l i an population, on the economy of the occupied territories and ona l l aspects of c iv i l i an life conducted therein, are far-reaching and long-term...violates the principles of international law and is categorically prohibited by thelaws of belligerent occupation, insofar as its route runs inside the occupiedterritory and materially modifies the fabric of civ i l ian life i n the occupied territory,isolating i n fact considerable portions o f the occupied population, creating hermeticenclaves and constituting a de-facto annexation of parts of the occupied land"(emphasis i n the original). The center added: "The physical injury to the inhabitantso f the enclaves goes hand in hand with the corruption of the law designed toadminister the seam zone... The web of the Declaration and the Orders has spun,i n the seam zone, a legal apartheid, which is intolerable, i l legal and'immoral. Inother words, the discriminatory and oppressive topographical structure stands upona shameful normative infrastructure, unprecedented in Israeli law" (emphasis inthe original).

Additional petitions were f i led at the end of January 2004 by the Associationf o r C i v i l Rights in Israel ( A C R I ) . These deal with the regime of permits in theseam zone between the separation fence and the 1949 armistice line, and ca l l forthe crossing points to be open 24 hours a day. 46

4 4 Yuval Yoaz, "Affidavit to High Court: Part of the fence route has no security benefit,"H a a r e t z , March 18, 2004. See also pp. 22-24.4 5 From H C J 9961/03, Center for the Defense of the Individual v. Government ofIsrael and others, which is quoted on the center's website:

w w w . h a m o k e d . o r g . i l / n e w s j n a i n _ e n . a s p ? i d = 2 5 . A l l citations here are from this source.4 6 The petitions are summarized in English at w w w . a c r i . o r g . i l / e n g l i s h - a c r i / e n g i n e /

2 9
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More limited criticism of the legal methods resorted to by the state for seizingland for military purposes (in this case, for building parts of the fence in Israeliterritory) was voiced in early December 2003 by Judge Daniel Ernst of T e l A v i vMagistrate's Court, who acted as a one-person panel concerning appeals against"emergency land seizures" for building the fence.47 He found the mechanism forsetting compensation and the amount of compensation being offered by the statef o r land requisitioned for security purposes (for a three-year period) relating to thefence in the amount of N I S 12,000 per dunam, 5 percent of the value of theland to be inappropriate and unworthy and to constitute a constitutionalinfringement of the landowners' property title. Judge Ernst also criticized the state'sinvoking of the Emergency Land Seizure Law, 1949, which enables it to seizeland during an emergency for up to three years. "The state is burying its head inthe sand and ignoring the need to carry out appropriate actions in good time," hewrote, because in three years the fence w i l l have to be removed immediately,possibly contradicting security needs. To obviate a constitutional vacuum, JudgeErnst noted, the state should act speedily to formulate new legislation as a permanentsolution, including a mechanism to set proper compensation for land expropriation.

A dramatic development i n the judicial sphere, which w i l l have a major impacto n the route of the fence, occurred on June 30, 2004, when the H i g h Court ofJustice handed down its judgment i n a petition submitted by residents o f the villageso f Beit Sourik, B i d u , and others (with the assistance of the C o u n c i l for Peace andSecurity) in regard to the route in northwest Jerusalem.48

T h e justices Supreme Court President Aharon Barak, E l i a h u M a z z a , andMishael Cheshin disqualified 30 kilometers of the 40 kilometers between

s t o r y . a s p ? i d = 1 5 5 a n d w w w . a c r i . o r g . i l / e n g l i s h - a c r i / e n g i n e / s t o r y . a s p ? i d = 1 5 8 . T h e full textsi n Hebrew appear at w w w . a c r i . o r g . i l / h e b r e w - a c r i / e n g i n e / s t o r y . a s p 7 i d - 7 9 1 andw w w . a c r i . o r g . i l/ h e b r e w - a c r i/ e n g in e / s to r y . a s p ? i d - 7 7 5 .4 7 Asaf Bergerfreund, "Judge: Compensation for fence appropriations inappropriate,"H a a r e t z , D e c . 5, 2003. The citations here are from this source.4 8 H C J 2056/04; published in English translation on the Internet site of the SupremeCourt, at h t t p : / / 6 2 . 9 0 .7 1 . 1 2 4 / e n g / v e r d i c t / f r a m e s e t S r c h . h t m l . A l l citations from the judgmentare from this source.

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Maccabim and Givat Ze'ev, and ruled that the state must present an alternativeroute. The judgment includes three key points:1) The security establishment and the army have the authority to construct the

fence (even across the Green Line) for military reasons, but not for politicalreasons (i.e., in order to "annex" territories to Israel). This point sides withthe position taken by the state and is of considerable importance in the contextof the debate in the international community and in Israel over the route ofthe fence, which is "chewing of f areas of the West Bank.

2) The Mil i ta ry Commander of the region is obliged to strike a balance betweensecurity considerations and the rights of the residents, and must choose a"proportionate" route which balances between the two, even if it accords alower level of security than a different possible route.

3) The majority of the route presented by the security establishment betweenMaccabim and Givat Ze'ev is not "proportionate," because it impingesexcessively on the rights of the l oc a l residents.

In par. 82 of the judgment, Justice Barak sums up the court's position:Having completed the examination of the proportionality of each orderseparately, it is appropriate that we lift our gaze and look out over theproportionality of the entire route of the part of the Separation Fencewhich is the subject of this petition. The length of the part of the SeparationFence to which these orders apply is approximately forty kilometers. Itcauses injury to the lives of 35,000 l oc a l inhabitants. 4000 dunams oftheir lands are taken up by the route of the Fence itself, and thousands ofolive trees growing along the route itself are uprooted. The Fence separatesthe eight villages in which the local inhabitants l ive from more than 30,000dunams of their lands. The great majority of these lands are cultivated,and they include tens of thousands of olive trees, fruit trees and otheragricultural crops. The licensing regime which the military commanderwishes to establish cannot prevent or substantially decrease the extent ofthe severe injury to the l oc a l farmers.

In par. 84 Justice Barak elaborates on this and emphasizes the harm that w i l l bedone to the Palestinians' fabric of l i fe:

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Illustration 2: Planned route of the securiy fence and alternatives, as presented to the Supreme Court

Source: Supreme Court website: h t t p : / / 6 2 . 9 0 . 7 1 . 1 2 4 / f i l e s _ e n g / 0 4 / 5 6 0 / 0 2 0 / a 2 8 / 0 4 0 2 0 5 6 0 . a 2 8 . p d f
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The injury caused by the Separation Fence is not restricted to the lands ofthe inhabitants or to their access to these lands. The injury is of far widerscope. It is the fabric of life of the entire population. In many locations,the Separation Fence passes right by their homes. In certain places (likeBeit Sourik), the Separation Fence surrounds the village from the west,the south and the east. The Fence directly impedes the access of the l oca linhabitants to the urban centers (B i r Nabbala and Ramallah). This accessis impeded even without the Separation Fence. This difficulty is increasedsevenfold by the construction of the Fence.

In conclusion (par. 85), the judgment asserts:The task of the military commander is not easy. He must delicately balancesecurity needs with the needs of the l oca l inhabitants. W e were impressedby the sincere desire of the military commander to find this balance, andhis willingness to change the original plan in order to reach a moreproportionate solution. W e found no stubbornness on his part. Despite allthis, we are of the opinion that the balance determined by the militarycommander is not proportionate. There is no escaping, therefore, arenewed examination of the route of the Fence, according to the standardsof proportionality that we have set out.

In the light of this, it is entirely clear that the criteria la id down by the H i g h Courtof Justice w i l l deeply affect the future route of the fence and may even bring aboutchanges in sections of the fence that have already been built.

Underlying the judgment is the approach of Justice Barak to the effect that"There is no security without law" and that " O n l y a Separation Fence built on abase of law w i l l grant security to the state and its citizens."

E . The debate i n I s r a e lThe building of the separation fence is the largest construction and infrastructureproject in Israel's history. Its cost is NIS 10.5 m i l l i o n per kilometer, and buildingthe entire planned 600 kilometers (twice the length of the Green Line) w i l l costNIS 7 b i l l ion (by comparison, the security fence along the northern border is just

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70 kilometers long).4 9 Some 13 m i l l i o n cubic meters of earth were displaced inhalf a year on the first section of this vast and unprecedented engineering feat (ascompared with 9.5 m i l l i o n cubic meters on the Trans-Israel Highway in fiveyears).50

Yet despite the immense importance, far-reaching consequences, and massivecost of the project, it did not generate significant discussion in Israel until late in2003, when the United Nations General Assembly decided to refer the subject tothe International Court of Justice at The Hague and U S pressure began to mountagainst the chosen route of the fence. Unt i l then the discussion in Israel had focusedmainly on whether certain settlements would be on its western or eastern side.According to the official declarations, the route of the obstacle is a function ofsecurity considerations, though archaeological and environmental considerationswere also taken into account, as was the desire to cause minimal damage to the"fabric of l i fe" of the Palestinian population. However, an examination of thefirst section of the obstacle between Sallem and Elkana (which has alreadybeen completed) and its planned continuation shows that a major considerationin deciding the route was to ensure that settlements close to the Green Li n e andmore distant relatively large settlements (such as A l f e i Menashe and Elkana) wouldbe on the western side of the fence; "humanitarian" considerations relating to thePalestinians were shunted aside.

According to B'Tselem, A C R I , and other human rights organizations, andmuch of the Israeli left, the fact that the obstacle is cutting into the West Bank andthe injustices it is causing w i l l only intensify Palestinian hate for Israel, encourageIslamic radicalization and terrorism, and make any future political settlement highlyproblematic. These groups argue that the fence is not separating Israelis fromPalestinians but is cutting Palestinians off from other Palestinians. It is separatingfarmers from their land, the il l from their physicians, and schoolchildren fromtheir schools. The fence is not solving any security problem but is creating enclaves

4 9 According to a different estimate, the cost of the fence will be NIS 10 billion. TheFinance Ministry considered imposing a special tax (for example, on diesel oil) to underwritepart of the project. See note 31, above.5 0 Mazal Mualem, "27 kilometers of a different fence," H a a r e t z , May 9, 2003.34


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of Palestinian villages that resemble vast human lockups, which w i l l become centersof hatred and ferment which w i l l only increase the number of those taking part interrorism against Israel.51 Overall, this view is today accepted by most of the leadersof Meretz and the Labor Party. They want the fence to be built along the GreenLine (or as close to it as possible) as part of an agreed Israeli-Palestinian settlementor as a unilateral Israeli move against terrorist infiltration of Israel. It should beemphasized that the first section of the fence, from Sallem to Elkana (most ofwhich lies inside the West Bank, and in certain stretches is six to seven kilometerseast of the Green Line) , was approved during the tenure of Binyamin Ben-Eliezer,then the leader of the Labor Party, as Defense Minister.

Attorney Daniel Seidemann, who represents several of the H i g h Courtpetitioners against the route of the fence in Jerusalem, and various left-wing groupsfind a similarity between the route of the fence s l ic ing into the West Bank, PrimeMinister Sharon's disengagement plan under which the settlement blocs in theWest Bank that are relatively close to the Green Li n e would be "annexed" to Israel(concurrent with the evacuation of the settlements in the Gaza Strip and northernSamaria) and previous ideas broached by Sharon about a long-term interimsettlement between Israel and the Palestinians. The right-wing camp and the settlersare of course opposed to the fence because of its political implications. They deploreIsrael's separation from most of the historic heartland of Judea and Samaria andthe "abandonment" of the isolated settlements located "deep in the territory" tothe east of the planned route of the obstacle.

A t the same time, the majority of the L i k u d party's leaders and cabinet ministers(including some who previously opposed the fence) finally decided to support theconstruction of the fence along the current route, and object to any change thatmight leave one or another settlement on its eastern side. The fence, they maintain,

5 1 See, for example, the advertisement published by A C R I in the Jerusalem weekly KolH a 'ir on January 30,2004, headlined: "Separation fence or human lockup?" A t the end ofMarch 2004, the director-general of the Defense Ministry stated that the majority of theenclaves would be eliminated when the fences on their eastern sides were opened towardthe urban centers of the West Bank, and would be closed only in a state of emergency. SeeYaron, H U conference.

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to the route, 44 percent thought it should fol low the Green Li n e and only 13 percentthat it should be decided according to the government's considerations.54

The findings of the Peace Index for February 2004 (when the deliberations atThe Hague took place)55 were little different from the previous October. The newelement i s the Jewish public's unwavering support for the fence almost irrespectiveo f the suffering it is inflicting on the Palestinians by cutting them off from theirfields and causing difficulties of access in the West Bank. Thus, only 31 percentbelieve that this suffering should be taken into account in deciding the route of thefence, as against 64 percent who think this is a secondary consideration, if notaltogether negligible. A s k e d about protests against the fence or its route, asmanifested in demonstrations by Israeli and Palestinian activists (including thegroup called "Anarchists Against the Fence") which began in early 2004, a largemajority of the Israeli public (71 percent) supports the right of protest, provided iti s done by legal means; 26 percent oppose such protest, even if it is legal; and 4percent have no opinion. Fu l ly 92 percent oppose i l legal protests against the fence.

Public groups such as Fence for Life and the Public C o u n c i l for B u i l d i n g theSecurity Fence are acting as lobbies for a "fence now" in order to stop Palestinianterrorism without waiting for general agreement about the route. On the otherside, organizations such as T a ' a y u s h A r a b - J e w i s h P a r t n e r s h i p , Yesh G v u l ("Therei s a L imi t " ) , G u s h S h a l o m ("Peace B l o c " ) and international peace activists areagainst a route that deviates from the Green Li n e or oppose the fence as such. Oneo f the most active of the protest groups is Anarchists Against the Fence, whosedemonstrations have in some cases ended in violence.

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More recently (from the beginning of 2004), it would appear that the deliberations atThe Hague, international pressure (mainly by the United States), and the humanitarianproblems that have arisen i n connection with the first section o f the fence have heightenedpublic consciousness in Israel about its route.5 5 EphraimYaar a n d Tamar Herman, " T w o o f every three Jews think the suffering causedb y the fence is secondary or negligible," H a a r e t z , March 9, 2004, p. B - 3 .5 6 This group, which numbers several dozen activists, has been one o f the most vociferousand most consistent in its opposition to the fence. Its members do not balk at activelyengaging Israeli soldiers and Border Police. On December 26, 2003, one of the group'smembers, G i l Na'amati, an Israeli J e w , was shot and seriously wounded by Israeli forces

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The official Israeli position emphasizes terrorism as the prime reason thatforced Israel to bu i ld the fence and cites Israel's right and duty to defend itself,while blurring the question of the route and its political implications.57

Hovering in the background of the public debate is the feeling that there is noreal alternative to the fence in the struggle against Palestinian terrorism and thedemographic threat. The sense is that, given its limited political maneuverability,the present Israeli government cannot "abandon" settlements that are relativelyclose to the Green L ine , b u i l d the fence closer to that line, or agree to a meaningfulIsraeli "concession" involving the Palestinian neighborhoods in East Jerusalem.Among broad swaths of Israeli public opinion one can discern a longing for afence that would make it possible for Israel to "disengage" from Palestinianterrorism and from the severe problems entailed in Israel's presence in the territoriesand the warfare there.

Incipient indications of official Israeli agreement to change the route of thefence (including sections already built) were apparent in January-February 2004.58The new approach apparently had several causes: international pressure (mainlyby the United States) ahead of the deliberations of the International Court of Justice(ICJ) at The Hague in late February (see below); the petitions of principle thatwere submitted to the H i g h Court of Justice by the Center for the Defense of theIndividual and by A C R I ; pressure by the State Attorney's Office on the bodies incharge of building the fence in practice; and the serious humanitarian difficultiesthat cropped up in operating the first section of the fence, between Sallem andElkana.

in a demonstration. The event generated wide reverberations and apparently intensifiedPalestinianprotestsagainst the fence (especially by villagers in the Bidu-Beit Sourik area,near Jerusalem, and in other areas along the Elkana-Jerusalem route). See the editorial"Anarchists are not marked for death," H a a r e t z , Apr i l 15, 2004, and the article by AvivLavie in H a a r e t z Magazine, "The war of the fence," Apr i l 16, 2004.5 7 A s, for example, on the website of the Israeli Foreign Ministry:

h t t p : / / s e c u r i t y f e n c e , m f a . g o v . i l .5 8 See: A l u f Benn, "Prime Minister admits: Fence harms Palestinian life," H a a r e t z , Jan.19, 2004.

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The preparations for the I C J deliberations and the Israeli H i g h Court o f Justicehearings revealed confusion and conflicting viewpoints within the Israeligovernment. The Minister of Justice, Yosef Lap id , who took part in a number ofthe Cabinet sessions i n which the security establishment route was approved, calledf o r the route's revision in order to strengthen the Israeli position at the ICJ andformulated a proposal of h i s own.5 9 Defense Minister Shaul Mofa z and other L i k u dministers objected to any changes in the government-approved route, and the StateAttorney (who was then also the acting Attorney General) submitted to thegovernment an opinion concerning legal difficulties that would arise in defendingthe route of certain sections of the fence (especially those that cut deeply into theWest Bank) in the H i g h Court of Justice.60

These developments led to an official declaration by attorney M a l c h i e l Balas,the state's representative in a H i g h Court hearing (February 9, 2004), that thegovernment was now rethinking and reconsidering the planned route of the fenceas decided on in October 2003 and that changes might even be made in sections ofthe fence that had already been built (as noted earlier, changes had already beendecided at Baka al Sharqiya, and also at the village of Khirbet Jabara). AttorneyBalas added: " A l s o under consideration is a change in the seam zone regime[referring to the area between the fence and the Green Line] with the aim offacilitating as far as possible the lives of the Palestinians who reside there." Healso noted: " W e are drawing lessons from the experience that has been accumulatedi n the sections where the fence is already built everything is dynamic..." Priorto the hearing, a representative o f the State Attorney's Office told H a a r e t z explicitlythat the state was examining the possibility of moving the fence westward, towardthe Green Line , thus eliminating some of the Palestinian enclaves, and that thefence would not be built along the route decided on by the government in October2003. However, the changes in question are point-specific and no extensive staffwork has been undertaken about the possibility of moving all or part of the fence

5 9 Mazal Mualem, "Shinui's map for separation fence: No enclaves, 200 kilometersshorter," H a a r e t z , Jan. 16, 2004.6 0 See note 58, above, and: Alu f Benn, "Why didn't they ask Arbe l earlier?," H a a r e t z ,Jan. 19, 2004.

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that has already been built westward.61 In the meantime, on the day the I C J hearingsopened, work began (as noted above) on dismantling an eight-kilometer stretch o fthe fence east of Baka al Sharqiya, which had separated that West Bank villagefrom the T u l K a r m District of the Palestinian Authority. This move was criticizedi n a Cabinet meeting by Finance Minister Netanyahu and Foreign Minister Si lvanShalom. 6 2

A l s o critical of the route of the fence was the head of the National SecurityC o u n c i l , Major General (res.) G i o r a E i l an d . Speaking at an open internationalconference on "Security P o l i cy " held i n M u n i c h on February 8,2004, Ei land termedthe fence "essential, legitimate, and temporary," but acknowledged that the plannershad failed to forecast the full scale of i t s impact on the lives of innocent Palestinians.H e added that Israel was obliged to study the full implications of the fence and totake effective steps to improve the situation, including changes in the originalroute in several sections.63

These developments

a fence around jerusalem

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