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Saturday, November 22, 2014

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Ruling shows IDF policies in W. Bank aren’t capricious

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Israeli military commanders often find themselves between a rock and a hard place.

In the West Bank, they’re required to perform a delicate balancing act between their responsibility for Israelis’ safety and their international law obligations to ensure, as far as possible, normal civil life for Palestinians. The case of Route 443 is the latest to have come to the public’s attention.

Route 443 is a 26-kilometre highway connecting northern Jerusalem to an interchange on the main Tel Aviv-Jerusalem highway. It’s become the second-most-popular route for people travelling to the capital from the country’s central area and connects the burgeoning town of Modi’in to Tel Aviv and Jerusalem.

The highway was completed during the 1990s. Its eastern 14 kilometres run through the West Bank. Privately owned Palestinian lands were expropriated to enable paving parts of it. Until 2000, this segment was used by Israelis and Palestinians alike. It served Palestinians in adjacent towns and villages and provided them quick access to two regional centres, Ramallah and El Bireh. Palestinian buses and taxis freely travelled the road, as did private, commercial, medical and agricultural vehicles.

That ended after the onset of the second intifadah in October 2000. Israeli vehicles travelling on 443 became targets of Palestinian attacks. Stones and Molotov cocktails were daily occurrences. Gunshots fired from passing vehicles or stationary ambushes became common. People were injured. From December 2000 to August 2002, five Israelis were killed along the route.

Commanders reacted by adding patrols and lookout posts. Fences were erected along parts of the road. At one point, tanks were stationed on the hillsides surrounding it.  These measures didn’t suffice, and eventually Palestinian vehicular travel on the highway was limited and later prohibited.

From 2004 to 2007, I served as the Israel Defence Forces’ legal adviser in the West Bank. During this period, we received complaints regarding travel restrictions on 443, claiming that banning Palestinian traffic on the road contravened both international and Israeli domestic law; that the IDF wasn’t properly balancing its obligations under the rules of belligerent occupation, and that 443 had effectively become an internal Israeli road. Some organizations equated Israel’s policy to apartheid.

In July 2007, the Association for Civil Rights in Israel (ACRI), representing leaders of Palestinian villages affected by the travel restrictions, petitioned the Supreme Court. Besides the assertions detailed above, ACRI claimed IDF policy on 443 was disproportionate, because means less harmful to Palestinians could be adopted to ensure Israelis’ safety on the road.

The state replied, explaining the travel restrictions’ military necessity and describing a series of alternative roads paved for Palestinians within the framework of the security barrier project, roads aimed at connecting Palestinian towns and villages adversely affected by 443 travel restrictions and the barrier. These roads shorten travel time from outlying villages to central towns, but don’t provide access as quickly as 443. It added that the IDF was implementing a plan to allow some Palestinian vehicles to travel on the road.

In December, the Supreme Court published its judgment in the case, finding for the petitioners. The majority ruled that the IDF wasn’t authorized to turn 443 into an “internal Israeli” road, reiterating a position that roads paved on expropriated Palestinian lands could benefit both Palestinians and Israelis, but not only the “occupying power,” particularly when such policy would last a long time.

The full panel declared the travel restrictions’ military advantage disproportionate to the harm they inflicted upon Palestinians and that alternatives hadn’t been properly considered. In summation, the majority gave the IDF five months to implement a plan that would safely renew Palestinian travel on 443.

In the obiter of her concurring opinion, Supreme Court President Dorit Beinisch addressed assertions that the IDF’s policy on 443 was tantamount to apartheid. She warned against referring to security measures adopted to protect people travelling on roads as segregation based on improper racial or ethnic grounds, adding that the comparison between preventing Palestinian traffic along 443 and the crime of apartheid was so extreme that it shouldn’t have been raised at all.

IDF commanders must weigh similar matters daily. They don’t always get it right. But rest assured that they don’t act capriciously, and that even sensitive military matters are subject to judicial review.

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