In Beit Sourik the Israeli High Court of Justice struck down most of the
planned route for the security fence to be established north of Jerusalem.
The Court ruled that the military commander did not properly balance the
contribution of this route to the security of the State and the extent of
the injury to the rights of the Palestinian inhabitants of the area. It was
therefore ruled that this route did not comply with the requirement of
proportionality in its strict sense. At the same time, the Court rejected
the claim of the petitioners that the motive underlying the determination of
the fence's route was a desire to establish a border (a political
consideration) and not a security consideration.
This article criticizes the Court's line of reasoning. I argue that the
Court erred in striking down the planned route of the security fence on the
ground of not fulfilling the requirement of proportionality in the strict
sense. The vague nature of this requirement may cause judicial decisions to
assume a subjective character, thus violating the democratic principle
according to which fundamental decisions should be determined by the
people's elected representatives. Given the suspicious circumstances that
had led to the determination of the fence's route, the Court should have
applied a different kind of reasoning. Instead of balancing the State's
security issues and the Palestinians rights, the Court should have carefully
scrutinized whether the security purpose was authentic. Judicial review,
based on these premises, increases governmental transparency and thus better
complies with democratic principles.