Court Orders Changes to Modiin Illit-Area Security Fence

The High Court of Justice has ordered the IDF to move a section of the barrier designed to protect Jewish towns and cities in the Modi'in area.

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Nissan Ratzlav-Katz and Gil Ronen,

The High Court of Appeals has ordered the IDF to move a section of the separation barrier designed to protect the Jewish towns and cities in the Modi'in area, where the fence passes through fields belonging to Arabs from the village of Bilin. The decision, handed down on Tuesday, will reduce the amount of land set aside for the expansion of the town of Modi'in Illit (also known as Kiryat Sefer). It will also
The decision will reduce the amount of land set aside for the expansion of... Modi'in Illit.
narrow the community's security corridor, while allowing Bilin residents relatively unimpeded access to their agricultural and herding lands.

The villagers of Bilin, located about half an hour northwest of Jerusalem, filed a petition against the current location of the fence with the assistance of left-wing Israeli, PA Arab and foreign activists. The section of the fence that is to be dismantled and moved is 1.7 km (about 1 mile) long. Besides taking up 260 dunams of the village's land, the village's Council Head claimed the fence cut off the village from 1,700 dunams of its agricultural land.

The cost of every kilometer of fence is estimated at NIS 10 million.

Protest against the Bilin-area fence has been underway for at least two years, including demonstrations near the barrier every Friday. In many instances, the left-wing protests grew violent and led to injuries among police, border guard troops and demonstrators. On one occasion, a soldier lost sight in one of his eyes.

The three-judge panel, Supreme Court President Dorit Beinisch, Justice Ayala Procaccia and Justice Eliezer Rivlin, agreed with the petitioners that the current fence location harms the livelihood of the residents of Bilin, "due to the expropriation of land for construction of the fence itself, the uprooting of trees along the fence's path, and the cutting off of cultivated land on the 'Israeli' side of the fence."

The justices also noted the IDF's position that, while the fence's location and route entail negative consequences for Bilin, "the harm is proportional in light of the imperative security needs, including, in [the army's] view, defense of the residents who will live in the new neighborhoods in eastern Modi'in Illit...." The state also committed to pay rent or compensation for the right to exercise eminent domain over the lands in question.

"We were not convinced," wrote the judges, "that the... condition of proportionality exists in the case of the fence route in the Bilin lands. We were not convinced that it is necessary for security-military reasons to maintain the current route... and that there is no appropriate security alternative for protecting the residents of Modi'in
The High Court ordered the state to reconsider the issue.

In the ruling, President Beinisch explained: "The Military Commander is not free to reach any decision he wants to in order to realize legitimate security needs. When he sets about delineating the fence's route, he must take into account several considerations and balance between them. The first is the security-military consideration. The Commander may make considerations regarding defense of the State and the security of the army. These are considerations of military and security expertise."

Beinisch opined that the State chose a militarily unsuitable route for the fence: "The route passes mostly through topographically inferior territory and it endangers the forces patrolling along it. There is no way to explain [the choice of] this route, unless it stemmed from a desire to include the eastern part of Mattityahu East on the western side of the fence."The High Court ordered the state to reconsider the issue and provide, within a reasonable amount of time, a new route for the security fence that would cause less disruption for the residents of Bilin.

Construction in the Matityahu East neighborhood of Modi'in Illit was halted in January by temporary injunction, when the far-left Peace Now organization and Bilin residents petitioned the High Court against construction by Green Park and the now-bankrupt Heftsiba contracting companies. The petitioners claimed that Matityahu East was being built contrary to zoning codes.

Residents of Bil'in celebrated the ruling Tuesday, playing musical instruments and waving the Palestinian flag. The Israeli pro-Arab group "Peace Now" issued a statement complimenting the court on its decision and claiming that "it proves that the Bil'in villagers' opposition had been justified."

Local residents say that the fence's new route will pass very close to the Jewish homes, enabling any terrorist who passes over or under it to reach a Jewish family within 30 seconds and attack it.