The petitionOn 20 March 2005, HaMoked filed a petition in the High Court against the route of the separation wall in the area of ‘Azzun and Nebi Alias. The organization claimed that this section of the route was not intended to meet security needs and was intended to enable expansion of the Zufin settlement to the east. Construction of the wall stole hundreds of dunams of farmland of residents of the two villages, and harmed the residents’ ability to gain a livelihood, given the difficulties they had in reaching their land and working it.
Developments following filing of the petitionIn its response to the High Court, the state admitted that, because of an outline plan for the nearby settlement Zufin, the wall’s route did not run along the border of the settlement, and that the annexed land was designated for Zufin’s industrial area. An earlier petition on this matter had been rejected when the High Court accepted the state’s contention that security reasons dictated the choice of the route in the area. In its response to the current petition, the state added that, if the wall in this area were planned today, the outline plan would not be taken into account. Despite this, and despite the serious harm to the villages’ residents, the state claimed that the route of the wall should not be changed because of the high costs involved in doing so. A hearing on the petition was held on 3 July 2005 and at the end, the Court issued an Order Nisi.
The Court’s decisionUltimately, on 19 February 2006, the state announced that it decided to change the wall’s route in the southeastern section, the section with which the petition dealt. In a concluding hearing on 28 May 2006, the state announced that it consented to dismantle the eastern section of the wall within six months from the day construction of the new route is completed. The state also explained that during the construction of the wall along the new route, additional agricultural gates would be installed in the eastern section and that it would change the arrangements for entering the seam area, so as to make it easier for the petitioners to work their land. Upon completion of the new route of the wall, and until the current wall is dismantled in the western section, the state would install agricultural gates in the eastern section to enable the free movement of the Palestinian residents. In light of the state’s position, the High Court accepted, on 15 June 2006, the petition and made the Order Nisi absolute. The Court ruled that the wall in the eastern section was illegal, and therefore invalid.
In the Court’s decision, President Barak pointed out the state’s grave misconduct:
The petition before us revealed a grave phenomenon. The Supreme Court was not presented with a complete picture in the first petition. The court rejected the first petition based on information only part of what was grounded in fact. The State Attorney’s Office acted properly, for when it was informed about the consideration given to Plan 149/5, it so notified the court, and the Respondents acted properly when, on this background – and in light of our decision in Alfe Menashe – it changed the route of the fence on their own initiative. However, the petition before us points out an event that we can not tolerate, whereby information given to the court does not reflect all the considerations taken into account by the decision-makers. As a result, a petition was rejected, which also the Respondent now agrees should have been accepted. Explanation was provided to us regarding the special circumstances in which the defense officials operated, and which led to the malfunction. We hope that it does not recur.
Therefore, the High Court accepted, as stated, the petition, but stayed invalidation of the route for six months from the day of completion of the new route of the wall. The Court also ordered the state to pay the Petitioners’ expenses in the sum of NIS 50,000.
