Israel's Supreme Court orders changes to West Bank barrier

Route illegally harms Palestinians by slicing through land, ruling says

July 01, 2004|By Peter Hermann | Peter Hermann,SUN FOREIGN STAFF

JERUSALEM - Israel's Supreme Court ruled yesterday that part of the barrier the Israeli army is building in the West Bank illegally harms Palestinians by cutting them off from their land. It ordered army officials to alter the barrier's route, even if it reduces security for Israel.

The decision dealt a blow to Israel's Defense Ministry, which has described the planned barrier of more than 400 miles as a deterrent against militants wanting to launch attacks on Israel. Supporters of the barrier called the court ruling a victory for terrorists, while opponents praised the court for upholding the property rights of Palestinian villagers.

Though the ruling applies only to an 18-mile section of the wall northwest of Jerusalem, Israeli officials said they expect a flood of petitions challenging other portions based on the principles issued by the court.

The ruling by Israel's highest court came nine days before the International Court of Justice at The Hague is expected to rule on the legality of the barrier. Israel has claimed that the world court has no jurisdiction over the barrier.

Israel's Defense Ministry issued a statement promising to adhere to the Supreme Court decision and redraw the route.

"The route disrupts the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants," the three-judge panel wrote in a 36-page opinion.

"The route harms the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law," the court said. "This route has created such hardship for the local population that the state must find an alternative that may give less security but would harm the local population less."

The Palestinian villages that filed the court petition include Beit Sourik, Bidu, el-Kabiba and Beit A'anan - all of which are north and northwest of Jerusalem, near the Israeli communities of Mevasseret Zion, Ramot and Givat Zeev.

Palestinian residents said that they would be separated from about 9,000 acres of farmland and that their ability to move from one village to another and into Jerusalem would "depend on a bureaucratic permit regime which is labyrinthine, complex and burdensome."

Mohammed Dahleh, a Palestinian lawyer who argued the case for the villagers, called the ruling a victory for people with few resources. "The appellants in this case were poor farmers, whose lives would have been turned around overnight and would have become like refugees or prisoners in their homeland," he said.

Contractors began building the barrier - a combination of fences, concrete walls, ditches and trenches - in August 2002. About 125 miles of the estimated 432-mile project have been completed.

The barrier cuts through Palestinian property and divides farmers from their fields, children from schools, patients from hospitals and family members from each other. In some places, it dives deep into the West Bank to encompass Jewish settlements, which has drawn criticism from the United States.

In their opinion, the judges rejected claims by Dahleh that the fence was being built for political rather than security reasons. They also ruled that international law allows the army - in an "area under belligerent occupation" - to confiscate private property.

But the court said that seizures must be proportionate to overall objectives. The judges wrote that in the part of the barrier being considered, the army can reroute the fence to cause minimal harm to Palestinians and still meet security goals.

Still, the judges agonized over their decision. "We are members of Israeli society," they wrote. "Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror.

"We are aware that in the short term, this judgment will not make the state's struggle against those rising up against it easier," the ruling said. "Only a separation fence built on a basis of law will grant security to the state and its citizens. Only a separation route based on a path of law will lead the state to the security so yearned for."

Danny Tirza, an Israeli army reserve colonel and chief planner of the barrier, told Israeli radio that government lawyers failed to present a comprehensive case.

"It could be very well that our main mistake was that we believed that the court was aware of the thousand people killed and the thousands injured by Palestinian terror," he said. "Today a crushing victory was given to the Palestinian Authority by an Israeli court."

Tirza said every effort is made to work with Palestinians affected by the barrier. "We worked individually with each village, with each single house, with each field and with every problem," he said.

Cabinet minister Danny Naveh, a member of the right-wing Likud Party, called on parliament to approve emergency legislation prohibiting any changes in the barrier route. "Preventing the murder of women and children has more weight than a certain harm to the quality of life of the Palestinian population," he said.

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