Sitting on the Fence

Its ruling on the separation fence is a typical decision: concern for the rights of a handful of residents, while blatantly fleeing from addressing the truly large injustices.

The High Court of Justice has again proved it is unworthy of all the garlands customarily heaped upon it. Its ruling on the separation fence is a typical decision: concern for the rights of a handful of residents, while blatantly fleeing from addressing the truly large injustices.

The court deserves a certain amount of praise for accepting the petition of the 1,200 Palestinians trapped in the Alfei Menashe enclave and ruling that the fence should be moved in this area. However, in determining - contrary to the International Court of Justice in The Hague - that it is permissible to build the fence beyond the Green Line, it is again averting its eyes from the overall picture. This is its way of preserving its enlightened appearance without having to risk establishing bold principles.

The fate of the enclave's residents will improve as a result of the decision, but the Israeli occupation has concurrently won another dose of silent legitimization. These silences by the High Court are like adding fuel to the fire of the occupation, sometimes even more than the intentional actions Israel takes, because the fight against the injustices becomes more difficult when they are cloaked by the honorable robe of the High Court of Justice.

One day, historians will ask where the clear moral voice of the High Court was in facing the horrifying reality created by the Israeli occupation. And the answer will be: The High Court has fled.

Did the justices think they would be fulfilling their duty if they rescued 1,200 residents from incarceration? Was it too much to expect that the Supreme Court would finally say something unequivocal about the whole occupation enterprise, or at least the settlements?

The High Court took about five years to rule on torture, and it has dragged out its decision on targeted killings for three and a half years. This time, it has once again proved it is not "a beacon of justice," but at most a tiny pocket flashlight emitting a dim beam of light. It sits on the fence, tossing a bone to individual rights while legitimizing the entire beast and proving that it lacks one important trait: courage.

It comes as no surprise that nearly everyone, except for the extreme right, is satisfied with the ruling: It is intended to please everyone. Thus, the High Court prefers circuitous formulations: It will give "the appropriate full consideration to the norms of international law as developed and interpreted by the court in The Hague," but "the conclusion of the International Court in The Hague does not obligate Israel." Do you understand this?

To the High Court's credit, one must note that it is not concealing its evasiveness this time: Aharon Barak writes explicitly that this time he will also not address the legality of the settlements. Why not? Barak does not bother to provide an answer. But when the court he heads permits the construction of the fence in the occupied territories, it is indirectly legitimizing the entire occupation. Its stance, which argues that Israel is permitted to defend its residents from any place, whether legal or not, is puzzling. Is there really no connection between the obligation to protect citizens and the question of the legality of their actions?

The justices cannot wash their hands clean: The court was faced with another opportunity to express a stance on a fateful issue, and it again refrained from doing so. The citizens of Israel have been denied the legal assistance they deserve: After 38 years of occupation, they still do not know whether the settlement enterprise is legal.

Isn't it time for the High Court to reveal its opinion on the rulings of international legal institutions, which have declared the settlement enterprise to be in violation of international law and the Geneva Convention? Hasn't the time come to dispel the legal fog under whose cover we have settled more than 200,000 people in land that is not ours?

Justice Michel Cheshin's criticism of the political nature of the court in The Hague is therefore tainted with a bit of pretentious piety: The ruling by our High Court is also a political ruling.

The petition's attorney, Michael Sfard, is very satisfied with the court's ruling. His clients, residents of the place "that is closest to hell," in his words, will now be able to exercise the most basic of human rights - freedom of movement, freedom of occupation and freedom to conduct normal family and social life - as much as this is possible under occupation. This is undoubtedly an achievement. And, at the same time, the High Court's ruling also exposes the inhumanity of whoever planned the fence route. The High Court does not address this explicitly, of course, but perhaps the fence planners and builders will also have to refrain from traveling abroad one day.

When the High Court flees, no one should be surprised if human rights advocates flee to the last option available to them and turn to foreign legal channels. In its evasive ruling on the fence, the High Court has again demonstrated to them that there is no alternative to making a desperate appeal to the world, with all the problems this entails, in order to save us from ourselves and from our elusive court.