Israel’s High Court Puts a Dent in West Bank Barrier

JERUSALEM —  Israel’s Supreme Court ruled Wednesday that a hotly disputed 18-mile section of the massive separation barrier Israel is building in the West Bank violated “many fundamental rights” of Palestinians living in its path and ordered that its route be changed.

Legal experts called the decision far-reaching, saying it opened the way for similar challenges all along the planned 437-mile barrier, which is about one-quarter complete. The government said it would abide by the court’s decision and craft an alternative route in the sector covered by the ruling.

Stopping short of directly ordering the government to make the barrier’s path conform with the so-called Green Line, Israel’s pre-1967 de facto frontier, the court declared that the route, rather than the barrier itself, was unlawful.

“Were the separation fence to pass along Israel’s border, [the petitioners] would have no complaint,” Chief Justice Aharon Barak wrote for a unanimous three-judge panel.

Although limited in its immediate scope, the ruling represents a potentially major setback for the government of Prime Minister Ariel Sharon, which has mapped out a route for the barrier that runs deep into the West Bank.

Critics charge that the fence is meant to lay the groundwork -- literally -- for Israel’s eventual annexation of large Jewish settlement blocs in the West Bank, even as Sharon is pushing forward a plan to relinquish the Gaza Strip.

In the stony, sunbaked hills just north of Jerusalem, news of the high court decision triggered wild rejoicing in a string of eight Palestinian villages that lie along the disputed stretch of barrier.

“I’m going to sacrifice a lamb -- I am thanking God with all my heart,” said Fatima abu Eid, a weathered 60-year-old in the brightly embroidered dress of a Palestinian village woman. Her family home in the hamlet of Biddu lies yards from a 25-yard-wide gash in the hillside, where an olive grove had already been razed and concrete foundations sunk into the earth.

The barrier route passing by Biddu and nearby villages has been the scene of nearly daily demonstrations for months. Earlier this year, two Palestinian protesters were shot dead in a stone-throwing confrontation with Israeli troops.

“It’s a landmark ruling, no doubt about that,” said Mohammed Dahleh, a lawyer for the villagers, who were joined in their petition by several dozen residents of a neighboring Israeli community. “It’s a very important outcome.”

Palestinian leaders, however, said the ruling did not go far enough. Palestinian Authority Prime Minister Ahmed Korei, speaking to reporters in the West Bank city of Ramallah, said the barrier was an “act of aggression” and should not be built at all.

The high court judgment comes nine days before the International Court of Justice in The Hague is to hand down an advisory ruling on the barrier’s legality. Although the decision of the Netherlands tribunal, which is affiliated with the United Nations, will be nonbinding, Israel fears that an adverse ruling could lead to wider involvement by the world body in efforts to halt or curtail the project.

Palestinians have for months denounced the barrier as the baldest of land grabs. The U.N. said in a report last year that by pursuing the planned route, Israel would expropriate 14% of the West Bank.

The court ruling stunned Israel’s military establishment, which had been given broad authority to determine the barrier’s route based on security assessments. Judicial intervention in matters of military doctrine is highly unusual in Israel, particularly in times of armed conflict.

The Defense Ministry issued a terse statement pledging to make changes to the route in line with the justices’ decision, while noting that the court had explicitly affirmed Israel’s right to build the barrier.

“The defense establishment respects the judgment of the Supreme Court concerning those sections of the security fence that require replanning,” it said.

The barrier -- a combination of fortified fences and high concrete walls, augmented by trenches, watchtowers and patrol roads -- is credited with bringing about an 80% drop in attacks carried out inside Israel by Palestinian militants this year. The last suicide bombing in Israel proper was 3 1/2 months ago.

The route, however, has stirred furious debate, even within the ranks of Sharon’s government. Among others, Justice Minister Tommy Lapid has for months advocated a route that would run along or close to the Green Line, Israel’s border before the 1967 Middle East War.

“The court has the final word in Israel, and we welcome the decision, which has taken into consideration all positions: security, humanitarian and others,” Lapid said. “The decision is binding for all.”

Hard-liners are already advocating administrative measures to circumvent the justices’ authority in future cases. Cabinet minister Uzi Landau, of Sharon’s conservative Likud Party, called the high court’s ruling a case of “excessive and exaggerated judicial activism.”

“When the court deviates from its jurisdiction, the elected executive authority must carry out policies for which it was granted the mandate of the public,” Landau said.

The ruling marked the first time the Supreme Court had made a meaningful foray into the legal battle over the barrier. Previously, both it and lower courts granted temporary stays and injunctions in more than 20 similar petitions, but had not offered any substantive judgment on the project’s merits.

The justices’ 47-page opinion argued that the 35,000 Palestinians living near the stretch of barrier in question would suffer harm that was out of proportion to Israel’s gain if the project went ahead as planned.

“The devastating wound it inflicts upon the local population far outweighs its benefits,” the court said. “The separation fence violates many fundamental rights of the local inhabitants, illegally and without authority.”

The court argued that by cutting off villagers’ access to more than 7,500 acres of cultivated land and seizing other territory for the construction, the barrier would destroy an agrarian way of life that had changed little through the centuries.

“Use of local water wells will not be possible ... access to water for crops will be hindered,” the justices wrote. “Shepherding, which depends on access to these wells, will be made difficult. Tens of thousands of olive and fruit trees will be uprooted.... The livelihood of many hundreds of Palestinian families, based on agriculture, will be critically injured.”

The court also cited the villagers’ prospective lack of access to employment opportunities, medical care and education, among other restrictions.

In unusually sharp language, the justices took issue with the wide-ranging powers exercised by the Israeli army in confiscating West Bank land for the project.

“The problem of balancing between security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation,” the opinion said. “It is a general problem in the law, both domestic and international. Its solution is universal, found deep in the general principles of law, including reasonableness and good faith.”

Of the 18-mile section of the barrier in question, two miles have already been built, and construction is in various stages along the remainder.

Israeli media reports said rerouting this part of the project would cause a delay of at least three months and an extra cost of about $2.5 million.

Though passions over the barrier are unlikely to cool any time soon, some observers called the ruling an affirmation of Israel’s democracy.

“I think every Israeli citizen should be proud of this ruling,” said the country’s preeminent legal affairs commentator, Moshe Negby.

“Our courts are open and available to Palestinians from the territories seeking to protect their rights. In this respect, I think the ruling is much to Israel’s credit and honor.”