Monday, July 5, 2004

Israel-Palestine, Fig leaf to war crimes by Ïsraeli High Court of ¨Justice 05/07/04

This morning, the hard-fought struggle around "The Separation Wall" was transplanted - from the environment of sun-baked West Bank hills and churning bulldozers and uprooted olive trees and exploding tear gas canisters, and into the exquisitely neat hall of the Supreme Court in Jerusalem. That hall was highly crowded as we waited tensely for the final verdict. A lot has gone into the particular case before the court this morning. Should the wall go up along the planned route, Beit Surik and Bidu and six other villages north-east of Jerusalem stand to lose most of their agricultural land and become an isolated enclave, surrounded and enclosed on almost all sides. The villagers' tenacious struggle and refusal to give up their land, their daily unarmed marches towards the encroaching bulldozers, had already cost five of them their lives - three of these being shot down during a single bloody day at Bidu. This struggle succeeded in arousing the sympathy and solidarity of quite a few Israelis: young anarchists who came day after day to share in their struggle and the risk; the people of Mevaseret Tzion, the Israeli town right across the pre-'67 border from Beit Surik, many of whose inhabitants joined in the appeal against the route of the fence supposedly intended for their own security; the ex-generals organised in "The council for Peace and Security" who presented an affidavit stating, on the basis of their professional reputation, that the route of the fence was wrong from the purely military point of view...

Israelis and Palestinians involved in the struggle were there in big numbers this morning - as were quite a few representatives of the other side, military officers and security operatives with their inevitable sunglasses. Several people had with them this morning's Ha'aretz, in which the editorial enumerated the great hardships caused to Palestinian population by the Wall and called for amelioration, without once mentioning the fact (obviously known to the editors) that the judges were to rule today on the very same issue.

In the last few minutes before the judges' entry, intensive speculation and hot debates between optimists and pessimists flared up. "What do you think? What can we hope for?" asked anxioulsy a young activist who just a few days ago spent time in police detention, following the anti-Wall demo at A-Ram. "Better not expect too much. Very often these kind of case ends in a colorless, vague compromise" warned a grizzled, white-haired lawyer. But when Supreme Court President Aharon Barak filed in a few minutes later, flanked by his colleagues Eliyahu Mazza and Mishael Cheshin, he was sharp and incisive from beginning to end of his presentation.

"We have been presented with an appeal by the inhabitants of several Palestinian villages, disputing eight separate confiscation orders whose purpose is the building of the Separation Fence.

"First, we had to deal with the fundamental issue: does the government has the authority to build a fence within Judea and Samaria and confiscate land for that purpose? It is our definite opinion that, were the fence built in order to achieve political purposes, its building would have been utterly inconsistent with International Law and thus illegal. However, we reject the appellants' contention that such was the government's purpose in building the fence. We see no reason to dispute the state's position that the purpose is purely one of defence against a threat to the security of Israel's citizens, threatened by suicide bombers. But even having the authority to build the fence, the government is duty bound to keep the right balance security needs with the rights and interests of the local population which might get hurt by its erection. The government's duty to act with proportionality, to cause no more damage than absolutely necessary, is laid down explicitly both in International Law and in the Israeli administrative law - and the state did not give proper consideration to that duty. While the security considerations are highly important, due consideration must be given to the fact that the fence damages the daily life of thirty-five thousand local inhabitants. Thousands of dunums [Dunum = about 1/4 acre.Ed.] are taken up by the fence route itself. Tens of thousands dunums more are cut off from their owners. The proposed permits regime, which would give access to the land under restrictive conditions cannot significantly reduce the damage. [Through earlier appeals, the Supreme Court was made aware that in villages where the Separation Fence was already erected, the army is often keeping closed the 'agriculatural gates' which are supposed to give farmers access to their land - in many cases causing irreversible damage to plantings left untended. ed.]. The entire fabric of daily life in around the fence is severally damage.

In light of the above, we rule that the military commander had not taken proper care to balance security needs with the interests and needs of local population, and that he must reconsider and and reduce the damage to these needs and interests (even if it cannot be completely avoided).

While we recognize the state's contention that the original route gives an additional amount of security as compared to the proposed alternative routes, such as the one proposed by the Council for Peace and Security. But this addition is the amount of security is not proportional to the severe damage caused by the proposed route of the fence would cause to the local population - damage which can be significantly reduced by defining a new route. Therefore, the state has not fulfilled its duty of acting with proportionality.

In conclusion, we declare six of the eight confiscation orders subjected to our consideration null and void, we uphold one of them, and we order the state to reconsider the last one in light of the principles we have set forth."

Commentators on the radio soon made the import more plain: 30 kilometers of fence, out of the 40 dealt with in this case, would have to be changed; three kilometers of already erected fence would need to be torn down, and in other section the army would have to make restitution for the damage caused by its "infrastructure work", especially the cutting down of hundreds of olive trees.

In a parting blow, the judges ordered the state to pay the Palestinian appellants twenty thousand Shekels in lawyers' fees - which, in terms of the Supreme Court's etiquette, may be considered a high indication of the court's disapproval of the government's case.
Referense: Search google for ´anarchists against the wall´ + ´ainfos´

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