Whose fence is it anyway?

February 9, 2005

While the state remains silent, the High Court of Justice shapes its future borders by ruling where the separation fence should be built

"Concern for human rights is the focus of the humanitarian considerations that a military commander is obligated to take into account when his exercising his authority," Justice Ayala Procaccia recently ruled. "In determining the route [of the fence], it is appropriate to consider relevant information including `data about the area,' such as the impact of the route on roads and means of access, as well as the location of the gates planned for the fence, the distance between them and the locations of the homes and workplaces of local residents, and the likely impact of that on their access to and freedom of movement in the area."

These things were said some two months ago in a ruling in the case of Abd al-Rahman Ibrahim Abu Tor, a resident of the village of Um Tuba in eastern Jerusalem, who together with several neighbors and residents of the village of Sur Baher submitted a petition against the planned route of the fence in their area. Despite the flood of petitions submitted to the High Court of Justice relating to the fence, this ruling, issued unanimously by Procaccia and justices Miriam Naor and Esther Hayut (who rejected the petition), is one of the few rulings on the matter with the reasoning behind it explained; most of the petitions are rejected with laconic or technical explanations.

The Abu Tor case was carefully reviewed by the State Prosecutor's Office, just like the Beit Surik case of June 2004, the most comprehensive and principled ruling relating to the fence issued thus far by the High Court of Justice. In that case, the justices defined the criteria of the obligation to use the principle of relativity in selecting the route of the fence.

All of this is likely to change soon. When it comes to the separation fence, the legal arena in the High Court of Justice is heating up anew: next week the State Prosecutor's Office will submit to the court, after months of delays and postponements, the document detailing the state's position on the ruling of the International Court in the Hague, at the request of High Court justices.

Moreover, there are several "principled" petitions relating to the fence pending before the court that attack the very authority of the state to build a separation fence in an area held in "a fighting capacity." Contrary to the way in which the public perceived the Beit Surik ruling, the High Court of Justice did not decide on the question of jurisdiction; rather it only ruled on the matter of relativity, in essence ruling that the argument heard in that context was partial. Therefore all the justices did was to refrain from disqualifying the state's argument that it is authorized to build a fence for security purposes.

And as if to illustrate the convergence on the High Court of Justice, residents of the villages involved in that earlier petition regarding Beit Surik recently submitted a petition to the High Court of Justice again.

The ruling disqualified, as may be recalled, a section of some 30 kilometers of the route of the fence that was planned to run between northern Jerusalem in the east and Modi'in in the west, and as a result, representatives of the State Prosecutor's Office, the IDF and the fence administration met to plan a new route for the fence there. However this route is also not enough for the residents of the villages. This time they are headed by the village council of Biddu, and Beit Surik shifted to second place; last month they again appealed to the High Court of Justice, via Attorney Mohammed Dahla.

The petitioners attacked a 26-kilometer section of the fence from Biddu in the east to Beit Likiya in the west.

When the petition was submitted, Justice Selim Jubran issued an interim order barring the continuation of construction work there, and the discussion focused on the state's request to annul the order. A statement issued some two weeks ago by the State Prosecutor's Office to the High Court of Justice stated: "The significance of the order barring continuation of the work is causing higher costs that amount to at least several tens of thousands of shekels a day, due to the shutdown of heavy mechanical equipment brought in to the area."

The gist of the state's petition is that "after the ruling in the Beit Surik case, some essential changes were made in the route of the security fence drastically reducing the amount of private Palestinian lands that the fence separated from their owners."

Yesterday, justices Aharon Barak, Mishael Cheshin and Dorit Beinisch annulled the order in several places, and in other sections instructed that work could resume pursuant to a response to the objections presented by the petitioners to the Civil Administration.

Attorneys Avner Hellman and Yuval Roitman of the State Prosecutor's Office note that the new route obeys the principle established by the Beit Surik ruling, whereby the route should be determined in accordance with the principal of relativity, even if the balance between the various rights leads to the selection of a route that is not optimal in terms of security.

In the vicinity of the mountain ridge of Jebel Mukatem, for example, the state argues, "In light of the ruling, there were considerable changes made in the route. Our position is that this change severely damages security and the route chosen was coerced."

The High Court of Justice ordered that the fence be taken off the ridge and a route near the Green Line was chosen "that waives the strategic and security advantage of having the fence run along the top of the ridge."

With a fence running near Beit Surik, the state claims, it would have been willing "to reduce considerably the security benefits derived from building the fence and even take substantial risks as a result of moving the route of the fence closer to the homes in Mevasseret, by giving up on the controlling areas that are north of Mevasseret, even though such a move would entail security threats to the homes on the extreme edges of Mevasseret."

The neighborhood was not imprisoned

The question of balancing between the rights of Palestinians and Israelis also arose in the ruling issued last week in the Bethlehem municipality's petition regarding the separation fence in the vicinity of Rachel's Tomb. The petition was submitted two years ago due to the state's plan to extend the separation fence to encompass Jerusalem, some 500 meters south of Jerusalem's municipal boundary, in order to protect access to Rachel's Tomb for Jewish worshipers.

During the inquiries into the petition, justices Beinisch, Eliezer Rivlin and Hayut twice sent the state to make changes in the planned fence and to reduce each time the damage caused to Palestinian residents affected by the construction of the fence opposite their homes on Hebron Road, the main street of Bethlehem.

At first, an entire neighborhood was to have been imprisoned by the planned walls, but in the end changes were made and as a result, the justices rejected the petition and ruled that the damage to be incurred by residents would be negligible. The State Prosecutor's Office representative, Attorney Avi Licht, declared that following the Beit Surik ruling, here too eventually "a route was chosen that provides a security response that is not maximal, in the aim of preventing local residents from being left beyond the obstacle."

Beinisch establishes in her ruling a balance between Jews' right to ritual practices, which stems from freedom of religion, and the Palestinians' freedom of movement and right to ownership, and chooses wording that indicates that the right of Jews to worship at Rachel's Tomb is a right that should not be harmed, and on the other hand, the rights of the Palestinian petitioners should also "be taken into account."

"The Jewish worshipers have a basic right to freedom of worship at Rachel's Tomb," says Beinisch. "In the framework of choosing ways of exercising this right, the state must take into account the basic rights of the Palestinians and balance between these rights appropriately."

All of the proceedings, which happened at the High Court of Justice's initiative or for other reasons, make the Supreme Court into the body that in practice is determining where the separation fence will run. For its own reasons, the State Prosecutor's Office adopted security rhetoric as a reason justifying the construction of the fence, and the High Court justices followed in its wake adopting this line. However, it is clear to all that the separation fence also has other purposes, or at least other implications. Apart from the legal realm, there are also those who openly state that the fence will indicate the future border of the state of the Israel. So the High Court justices are not only deciding where the fence will stand, they are also in effect determining the borders of the state.

"If the High Court of Justice had been around in 1948, it would have taken us back at the end of the War of Independence to the partition plan borders," says MK Yuval Steinitz (Likud), the chairman of the Knesset's Foreign Affairs and Defense Committee. "The way in which the High Court of Justice is determining the route of the separation fence, by clinging to the narrow consideration of terrorism versus Palestinian welfare, shows that the High Court of Justice would in 1948 certainly have ruled that the capture of Acre, the Jerusalem corridor and the Negev are not relative and therefore Israel must return at the end of the War of Independence to the untenable borders of the partition plan. Even if the trigger for building the fence was security-related, it cannot be built stupidly, while ignoring the political considerations. How can we ignore the fact that the fence has political significance, and that it will be difficult to claim territories remaining to the east of it in future negotiations? The fact that the High Court of Justice is determining our future border is a completely outrageous absurdity in terms of security issues and utterly mistaken in terms of its democracy."

On the other hand, there are those who think the High Court of Justice is the only body in the Israeli governing fabric that can and must criticize the decisions made regarding the separation fence.

"Clearly any fence built will affect freedom of movement, and also other rights such as freedom of occupation and the right to an education, because people will have a hard time getting to their workplaces and to their schools," says Moshe Negbi, Channel 1's legal commentator. "Who will check whether the right to life, which is the security need behind the construction of the fence, justifies the damages? The only authority that can do so is the only authority that is not dependent on a majority vote in a democratic regime - and that is the court. It is true that the court is using the term security in vain here, because it is refraining from checking whether security is the real motive for building the fence. But I understand its difficulty, because even if the state is lying about the security reasons, the High Court of Justice has no clear proof of it."

SOURCE: Haaretz

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