High Court Tells Israel to Shift Part of Barrier

Joseph Berger
The New York Times
July 1, 2004

Israel's Supreme Court ordered the army on Wednesday to remove a small portion of the barrier it is building along the West Bank and to reroute other sections to reduce the harm imposed on Palestinians cut off from lands they need. The unanimous decision by the three-judge panel asserted that Israel has a genuine security reason for building the barrier and can expropriate land in the West Bank for it. But it said the army ''has a legal duty to balance properly between security considerations and humanitarian ones.''

The barrier's planned path along a 20.5-mile section, the court ruled, could not be justified because of the suffering it would cause.
A court summary of the ruling said, in part: ''The fence's current path would separate landowners from tens of thousands of dunams [quarter-acres] of land, and the planned regime of authorizations to access that land would not substantially reduce the harm. The fence's current path would generally burden the entire way of life in petitioners' villages.''

It added that while the ruling might reduce security for Israelis, ''this reduction in security must be endured for the sake of humanitarian considerations.'' The decision, affecting eight Palestinian villages with 35,000 residents northwest of Jerusalem, sets a precedent for how Israel can complete the fence, which is one quarter built. When complete, the barrier is to run 437 miles from the northern West Bank, wrap around some settlements deep in the West Bank, and stretch to the area's southern rim. The barrier consists mostly of an electronic fence with coils of razor wire, adjoining trenches and guard towers, but about 5 percent consists of concrete walls rising 20 feet.

The ruling did not address whether the fence can extend deep into Palestinian territory to Israeli settlements. But legal experts said the court would closely scrutinize any challenged sections to make sure they conform to principles set today. The decision brought a measure of satisfaction in Beit Sourik, the hardscrabble Palestinian village whose village council was the chief petitioner in the case. Its farmers protested that they would be cut off from most of the terraced land on which they grow olives, grapes and figs.

''We looked at the wall as a catastrophe for our village because we have high unemployment'' and rely on farming, the mayor, Muhammad Kandil, said in an interview in his office. ''They want to confiscate and steal the land. Security is a pretext.'' There was also glee in an adjoining town, Mevasseret Zion, whose Israeli residents had joined the Palestinians in arguing that a barrier between them would increase animosity and thus lessen safety. Just last week, children from the two towns joined together to fly kites as a sign of the friendly relationship that could be damaged.

The Ministry of Defense said it would abide by the ruling and reroute 18.6 miles of the 25-mile contested section of the fence. It will also destroy or move 1.9 miles already built. The ministry had contended that it drew the route to leave enough distance and take in the right topographical features to stop potential gunfire from Beit Sourik or to detect the approach of a suicide bomber. It is likely that in a new route for the fence, some farmland will still be taken, but the petitioners say it will be a lot less than planned.

Israel says that the barrier is strictly a security measure, intended to prevent Palestinian suicide bombings and other attacks, and that it could be moved or torn down later. Palestinians denounce it as land confiscation that is greatly disrupting their lives and complicating efforts to establish a Palestinian state. The Bush administration has said that it does not object to the barrier in principle, but believes that it should be on, or very close to, the borders Israel had before the 1967 war, when Israel captured the West Bank and the Gaza Strip.
The International Court of Justice at The Hague is expected to issue an advisory ruling on the legality of the fence on July 9 and a debate in the General Assembly should follow. Israeli officials reject the court's authority on the question.

In an interview, Silvan Shalom, Israel's foreign minister, took heart in the fact that the Israeli court ''accepted the necessity of building the security fence for security concerns and rejected the claims that the fence was being built for political reasons.'' The court ruling, he said, ''shows the fence is moveable because we are a democracy.'' But he vigorously defended the barrier, saying it had ''saved hundreds of hundreds of lives of Israelis'' and resulted in a ''huge decline in the number of terror attacks.''

Until June 15, there were 38 legal complaints brought against the barrier, but Wednesday's ruling, according to court officials, was the first major decision. Moshe Negbi, who teaches law at Hebrew University, said the court tried to strike a balance between security and human rights. On the one hand, he said, it ''did give approval to the idea of the fence'' and did not accept the argument that the fence was merely built for political reasons or to expand Israeli land at the expense of the Palestinians. On the other hand, the court ruled that infringement on Palestinian life ''has to be proportional to the security needs,'' and that in this case, ''the hardships were disproportional.''

The court analysis was quite specific, asking which West Bank hill could present particular perils to nearby Israeli residents and how much land was required to forestall an attack. Mr. Negbi said the decision was not a surprise because the court had often thrown out army policies that it felt violated Palestinian civil rights. In recent years, it forbade harsh physical measures during interrogations and barred many deportations of relatives of suicide bombers from the West Bank to Gaza. Wednesday's decision, written by Chief Justice Aharon Barak, ended with an eloquent assertion of the quandary faced by the judges. It said that while they recognize they are making the army's task harder, they believe that in the end, conscience and law must prevail because ''there is no security without law.''

Israel's High Court: 'No Security Without Law'

The New York Times
July 1, 2004

Following is an excerpt from the Israeli Supreme Court's decision on Wednesday, written by Chief Justice Aharon Barak:

Our task is difficult. We are members of Israeli society. 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 of the killing and destruction wrought by terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by 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.

But we are judges. When we sit in judgment, we are subject to judgment. We act according to our best conscience and understanding. Regarding the state's struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit.

There is no security without law. Satisfying the provisions of the law is an aspect of national security. I discussed this point in HCJ 5100/94, the Public Committee Against Torture in Israel v. the Government of Israel, at 845:

''We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy: she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties.''
That goes for this case as well. Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for.