High Court: Separation fence can be built beyond Green Line
But nine-judge panel also upholds Palestinian petition to re-route barrier in northern West Bank.
The High Court of Justice on Thursday unanimously upheld a petition submitted by Palestinian residents of several West Bank villages and ruled that the state must reconsider within a reasonable timeframe an alternative route for the separation fence in the area of the northern West Bank settlement of Alfei Menashe.
The panel nevertheless rejected a July 2004 ruling by the International Court of Justice in the Hague and ruled that Israel had - for security reasons - the authority in principle to build a separation fence in the West Bank, beyond the 1967 Green Line border.
The petition was submitted by residents of five Palestinian villages in an area known as the Alfei Menashe enclave. The fence separates them from the rest of the West Bank and nearby urban areas - Qalqilyah to the north and Habla to the south - where the residents had received most of their services.
The nine-justice panel, headed by Supreme Court President Aharon Barak, instructed the state to review the fence's route, including where it has already built or is under construction, and adapt it to principles which combine both security needs and Palestinian human rights. The Israel Defense Forces must come up with new solutions that would not adversely affect the quality of life of Palestinian residents as severely as the current route does, the justices ruled.
The panel ruled that according to international law, an army in occupied territory is authorized to erect a fence in order to protect the lives of its own citizens, including settlers. The High Court based its ruling on regulations of the International Court of Justice in The Hague, which constitute an integral part of international law, as well as the constitutional rights of settlers under Israeli law.
This decision rejects the petitioners' stance that Israel does not have the authority to build the fence beyond the Green Line and that the fence was being built for political, not security, reasons.
"The court reached the conclusion that the reason behind the fence is the security consideration of preventing infiltration by terrorists into Israel and Israeli communities," the ruling said. "On the other hand is the consideration of the human rights of the local Arab population."
The justices ruled that the international court's decision should be given legal weight, but that since the judges at The Hague were not presented with the complete evidential basis for Israel's security needs, and did not deal "with the factual basis regarding Israel's security-military need to erect the fence," the international court's ruling does not bind the Israeli High Court of Justice.
The ruling was formulated by the Supreme Court President Aharon Barak with the consent of all the justices on the panel. Justice Edmond Levy agreed, however, only with the outcome of the ruling, but not with its reasoning.
Justice Mishael Cheshin, who also agreed with the High Court's ruling, criticized the International Court's ruling as consisting of an "overwhelming quantity of sentimental basis that does not fit a judicial opinion."
"For this reason the ruling receives a political taint, which any ruling should keep away from," Chechin wrote in his opinion. He also questioned the factual basis of the rinternational court's ruling, arguing that it was "weak," and that "some would say that the court's ruling has no valid basis whatsoever."
Cheshin also lambasted the international court's "blatant, almost complete disregard for the security problems and the terror which have struck Israel." He went on to say that the international court's ruling outraged him and that "it has no ability to illuminate my path to carry out true and just rulings."
The High Court's ruling is likely to have serious repercussions for the actual construction of the separation fence as well as for Israel's foreign policy.
Legal sources have predicted that Prime Minister Ariel Sharon, who is in New York for the meeting of the United Nations General Assembly, will not be able to avoid addressing the High Court's ruling in public.
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