Sept. 16, 2005 – Israelâ€™s Supreme Court ruled Thursday that the state has the "authority in principle" to erect the separation barrier on occupied Palestinian territory inside the West Bank, once again rejecting the non-binding July 2004 International Court of Justice decision that the West Bank barrier is illegal under international law and must be dismantled.
Meanwhile, Israeli human rights groups released a new report challenging the reasoning behind the supposed security barrier.
The panel of nine High Court judges â€“ led by Supreme Court President Aharon Barak â€“ unanimously upheld, in part, a petition brought by Palestinian residents of several West Bank villages impacted by a particular section of the barrier near the city of Qalqilya.
The judges ruled that the state must consider "various alternatives," including "logistical and infrastructural changes," to the current barrier placement near the Jewish settlement of Alfe Menashe.
According to a translated summary of the Hebrew ruling provided by the Israeli daily Haâ€™aretz, "The state [of Israel] must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfe Menashe, while examining security alternatives which injure the daily lives of the residents of the Palestinian villages in the enclave to a lesser extent."
The court ruling addressed a 13-kilometer stretch of the barrier, which is in the form of a concrete wall eight meters high and adorned with sniper towers. In this area, the wall dips more than four kilometres into occupied territory, snaking around Jewish settlements â€“ themselves illegal under international law â€“ turning Palestinian villages into walled and isolated enclaves separated from the rest of the West Bank and leaving Palestinians subject to an army-issued permit system.
The entire West Bank barrier â€“ a combination of high concrete walls and expansive electronic fences, due to be completed in early 2006 â€“ will be some 700 kilometers in length, most of it situated within Palestinian territory occupied by Israel.
It is not yet clear if the ruling will entail tearing down any segment of the wall near the Israeli settlements, which effectively enclose the Palestinian population in order to protect 5,500 Jewish settlers in the area. Nevertheless, Michael Sfard, the Israeli attorney who represented the villagers in their petition, told Haâ€™aretz that the ruling was significant. "The High Court has saved five Palestinian villages from utter annihilation, because if the fence had been left in place, they would not have been able to continue to exist," he said.
In particular, the petition addressed five Palestinian villages situated around the Alfe Menashe settlement. Completed in August 2003, the barrier around Alfe Menashe divides the Palestinian villages from the West Bank. The Palestinian villagers that filed the petition are required to carry Israeli army-issued "permanent residence cards" in order to be permitted to live in their homes and work their land.
The court ruling also upheld previous domestic and international legal rulings that concluded the West Bank was held by Israel in "belligerent occupation."
The panel of judges interpreted international law, particularly the 1907 Hague Convention, as allowing an occupying army to erect a fence to protect the lives of its citizens, including settlers â€“ outlawed by the later Fourth Geneva Convention â€“ who the Israeli court said are protected by domestic law.
In its July 2004 ruling, the International Court of Justice (World Court) in The Hague, Netherlands held that construction of the barrier is "contrary to international law," in part because it "destroyed and confiscated" property, it greatly restricts Palestinian movement, and it "severely impedes the exercise by the Palestinian people of [the] right to self-determination".
The World Court ruled 14-1 that construction must end immediately, the existing barrier must be dismantled and affected Palestinians must be compensated.
The United Nations General Assembly passed a resolution on July 20, 2004 calling on Israel to respect the World Court ruling. It passed 150-6, with only the United States, Israel, Australia, Micronesia, Marshall Islands and Palau voting against the resolution.
Following the 2004 World Court ruling, Israeli spokesperson and senior advisor to Prime Minister Ariel Sharon, Ra'anan Gissin, said, "I believe that after all the rancour dies, this resolution will find its place in the garbage can of history."
But Israeli Supreme Court President Aharon Barak warned that Israel will ultimately have to confront the World Court ruling. "We do not live on a desert island," Barak said in August 2004.
In this regard, Thursdayâ€™s High Court ruling was anticipated to be precedent-setting, given that the court was forced to deal directly with the World Court decision. Israeli officials have consistently said that they will ignore the non-binding World Court ruling, and adhere only to Israeli High Court decisions.
In this case, the panel of Israeli justices â€“ led by Barak â€“ upheld the governmentâ€™s rejection of the international ruling, saying that it inadequately dealt with Israelâ€™s security needs.
The crux of Thursdayâ€™s petition dealt generally with what Israel calls the "seam zone" â€“ the area of Palestinian villages that fall east of the barrier, between it and the "Green Line" â€“ the internationally recognized border of Israel.
According to the Palestinian Negotiations Support Unit, more than 240,000 Palestinians are or will be trapped in this area, separated from the West Bank but unable to move freely into Israel because they are not citizens. Instead, they are dependent upon a "pass system" to be administered by the Israeli military (IDF).
This area between the barrier and the Green Line is designated a "closed military zone" by Israel, which prohibits anyone from entering the area without the valid IDF-issued permit.
Palestinian villagers in this "seam zone" must cross through designated IDF-administered "gates" in the barrier in order to access their land, services and employment elsewhere in the West Bank.
Also Thursday, the Israeli human rights group B'Tselem has just released a joint report with an architectsâ€™ human rights group, Bimkom â€“ Planners for Planning Rights â€“ which demonstrates that security is not the primary concern in the barrier route, showing instead that illegal settlements' expansion concerns often take priority.
According to the report, "Not only were security-related reasons of secondary importance in certain locations; in cases when they conflicted with settlement expansion, the planners opted for expansion, even at the expense of compromised security."
Titled "Under the Guise of Security," the just-released report includes detailed analysis of the expansion plans for several West Bank settlements, including Alfe Menashe.