Exposing a Legal Fiction

The problem with Highway 443 can be attributed to the unwillingness of Israeli society to understand that the way it has administered the territories since 1967 is founded on hypocrisy, fraud and a trampling of rights.

Last week's ruling by the High Court of Justice, determining that the state has to open Highway 443 to Palestinian traffic, only served to expose the gap that has existed for the past 42 years between, on the one hand, the legal framework, which obligates military commanders in the territories and determines their authority there, and, on the other, the manner in which local authorities in the field operate. In the petition that attorney Limor Yehuda submitted in the name of both residents of the villages abutting the road and the Association for Civil Rights in Israel, she succeeded in making the court recognize this gap, and in exposing the iniquity of the local authorities. She convinced the High Court that the need to guarantee proper juridical procedure and preserve the principles of the legal framework in areas determined by the court itself - necessitated its involvement.

In dozens of rulings handed down since the 1970s, the court has made it clear that the legal regime that applies to the territories is one of "belligerent occupation," and that the status of the State of Israel there is one of an occupying power. Such a regime is by nature temporary. The commander who operates under the auspices of the occupying power has a wide range of authority, but he can use that authority for two purposes only: for the good of the local population, or for military necessities. As former court president Aharon Barak stated in the ruling that serves as a precedent in such cases: "The military commander is not permitted to consider the national, economic or social interests of his own state, unless they have an implication for security in the region, or for the local population. Even the needs of the army are military and not national security needs in the broader sense ... An area that is under belligerent occupation is not open territory for economic or any other kind of exploitation."

In practice, the local authorities never took it upon themselves to accept the limits of the legal framework as laid down by the High Court, and never operated in accordance with them. But this inevitably constitutes a problem: What happens when the decision of a commander is reviewed by the High Court? The authorities adopted a simple solution: In each case they would adapt the facts to meet the legal framework, and would then ask the court to rule on the basis of the "legal reality" that they constructed for the purposes of the hearing, though it didn't necessarily reflect the reality on the ground. This is how they comported themselves in responding to the petitions filed on the separation fence, and also how they operated when they confiscated land for the paving of Highway 443.

The central goals in the planning of the highway were the creation of an artery from the coastal plain to northern Jerusalem, and access to it for the Jewish settlements that were to be built in the area. The legal framework, however, forbids the confiscation of land unless it is intended to benefit the indigenous population. Hence, when the case came to the court, the authorities claimed that the road had been planned in order to improve the transportation infrastructure for the local population, in particular for the residents of Ramallah, Bir Naballah, Al-Jadira, Nebi Samwil, Bethlehem and other Palestinian towns. They admitted that the route would also serve Israelis, but explained that this would be possible only because the expropriation was being undertaken for a legitimate purpose - namely, to benefit the local population.

In light of the affidavit submitted by the state, the court accepted the position of the local authorities, and approved the expropriation. In its latest ruling, however, the court understood that, in light of what had been declared in the past, the judicial approval it had given for the expropriation and the legal framework that it itself had outlined - it had no alternative but to determine that the military commander had no authority to prohibit use of the highway to those for whom it was (supposedly) paved in the first place. Any other ruling would have made a mockery of the judicial process and made the court an accomplice to the fraud perpetrated by the authorities. Unfortunately, the prosecutor's office didn't grasp this point when the petition was submitted, and didn't inform the authorities that it would be unable to defend the decision to close the road to Palestinians.

After it handed down its ruling, the court was attacked for having the audacity to take at face value the legal framework of "belligerent occupation," and to rule in accordance with it. Why, people wondered, couldn't the justices have found a way to circumvent the law and allow the authorities to steal another resource of the residents of the territories?

As in many other cases, the problem should not be laid at the feet of the Supreme Court justices. They ruled the way they had to rule. Rather, the problem can be attributed to the unwillingness of Israeli society to understand that the way it has administered the territories since 1967 is founded on hypocrisy, fraud and a trampling of rights. The High Court just revealed the tip of the iceberg.

David Kretzmer is professor emeritus of public law and international law at the Hebrew University of Jerusalem.