Israeli high court demands radical re-routing of West Bank barrier

By Donald Macintyre in Beit Surik

The Independent

01 July 2004

To describe the unsmiling farmers sitting soberly round the big table in the first floor chamber of the offices of the local majlis - the village council - as celebratory would be a wild overstatement.

Indeed it would be a travesty to say the leading menfolk of this agricultural village were anything but profoundly suspicious of the idea that three Israeli High Court judges, of all people, had achieved something which all the worthy pronouncements of Washington, the EU, and the UN had so far failed to do: mitigation of at least a few of the worst effects of the bitterly controversial separation barrier (450 miles when it is complete) winding round - and in many cases slicing deep into - the occupied Palestinian territories.

For them, at least, all the talk in legal circles of a historic landmark precedent, let alone a serious reverse for the Israeli Army, in a judgement delivered in Jerusalem yesterday by Israel's Chief Justice Aharon Barak was premature. True Chief Justice Barak and his two colleagues had ordered the Army to reroute 30 kilometers of the barrier in a case brought by the villagers themselves and in a judgement which spoke eloquently of the "acute and severe" hardship inflicted by its planned route on the Palestinians who live in Beit Surik and eight neighbouring villages. True, too, the Chief Justice himself had spoken before yesterday of how his ruling would set a benchmark for future petitions against the routeing of the barrier.

But what exactly did it mean, these farmers and civic leaders wanted to know? As the route had been planned the farmers in this village of 3,500 straggling along a ridge in the Judean hills stood to be separated from the their 1,500 acre terraces of olive groves, vineyards, and fruit orchards stretching into the valley below because the barrier would pass within a few dozen metres of their homes. But how many of those acres, they wanted to know, would still be accessible under the alternative plan the court had ordered the Army to bring forward?

True too, their own rather more jubilant - and clearly surprised - lawyer Mohammed Dahla had said persuasively after yesterday's ruling that it had been a "courageous" and "precedent setting" judgement. More important, he went on to say, than the one due to be delivered on the legality of the barrier in ten days time amid a full international fanfare by the International Court of Justice in the Hague because this one would have to be implemented by the Israeli authorities.

A dozen reasons were advanced in the council chamber to fear the worst as well as hope for the best. "It's a good decision, said Hussein al Jamal, head of Beit Surik's little self help society," but we fear it could be a trick so that the Israeli can embellish their image before the Hague judgement." "We need to wait for clarification, we need to see new maps," said his relative Hamad al Jamal, a 60 year old farmer whose family before Israeli independence in 1948 owned 30 acres and who stood to lose four of the remaining five under the Army's route. Tariq al Sheikh added: "Whatever the judgement says, the fence shouldn't be there at all, and if it is it should run exactly along the green line [the 1949-1967 border]. And why haven't we been given the full judgement in Arabic?"

The wording of the judgement, however, suggests Hussein al Jamal has understimated the independence of the Israeli judiciary. The court did not challenge the existence of the barrier, as indeed it had no mandate to do. Nor did it accept the villagers' claim by that the barrier had been designed for political rather security reasons. But quoting an impressive series of precedents, in both domestic and international law, it asserted unequivocally that the Army had failed in their duty of "proportionality" between the needs of security and the rights of the Palestinians. The judges declared: "The route that the military commander established for the security fence... harms the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law... 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. These alternative routes do exist."

At the very least these carefully chosen words - which the Defence and Foreign Ministries insisted yesterday they would respond to with a new plan - strike at the heart of the ruthlessness which the route of the barrier has in many places separated Palestinians from their farmland, markets, jobs and in some cases even schools and hospitals.

Attempts by demonstrators protesting at the route to stop the bulldozers in the neighbouring village of Biddu have already cost three lives, and Mr al-Sheikh warned yesterday that resistance would continue "even if one tree is on the other side of the wall." Jamal Juma a coordinator of protests against the barrier as a whole suggested yesterday that the judgement might "absorb resistance" by allowing people to think that resourse to the law was more successful than it really was. And Hamad al Jamal suggested that if them court had shown the Army's route was wrong, then the 13 Palestinians arrested in the protests should be released. Many Palestinians, including those at Beit Surik remember that in 1980 the Jewish settlement of Alon Morain, near Nablus was built in the end despite a court ruling against confiscation.

But something rather unusual may have happened here to have produced a decision which an exasperated Deputy Defence Minister Zeev Boim complained last night would mean that "now there will be a court appeal on every meter of the fence". Forty residents of the up-market Jewish neghbourhood of Mevassaret Zion, across the valley from Beit Surik, joined the villagers many of whom they know personally, in protesting the route, securing an affidavit from a group of Israeli military experts contesting the claim that the route was all important for security. Even Mr al Sheikh, perhaps the most suspicious of those round the table, acknowledged this had been a help.

It is not yet clear how far the decision will radically alter the route elsewhere including in the bitterly contested section between Ramallah and North East Jerusalem. Legal action had produced a result. How would a reluctant Mr al Sheikh characterize this unexpected decision by Israel's most distinguished judge and his two colleagues? Would "cautious welcome" do it? "Yes, that's about it," he replied.