Last week, Israel's High Court of Justice ordered the government to reroute a small portion of the separation barrier it is building between Jews and Palestinians on the grounds that it disproportionately harmed several Palestinian villages and violated "fundamental rights" of the people living in its path. At the same time, the court upheld the legality of the fence itself, ruling that it is a legitimate security measure.
But the timing of the decision raised some eyebrows. The Israeli court knew when it ruled that the International Court of Justice was scheduled, nine days later, to issue a long-awaited opinion on the same subject, and many critics felt the Israeli ruling was designed to mitigate the effect of that upcoming decision.
This view was bolstered by statements of Israeli officials such as Foreign Minister Silvan Shalom, who said: "The fact that Israel is changing the route through an internal decision shows we don't need any external involvement. Now it is obvious to everyone that our judicial system can provide an appropriate response to all Palestinian claims and complaints."
With all due respect to my foreign minister, I believe it is a mistake to try to keep the international community out. Given the highly politicized nature of the fence, only the active involvement of the international community can ensure that the barrier is constructed with regard to international law and the welfare of the Palestinians. The Israeli ruling was an important first step, but it will take substantial international pressure to ensure that it is fairly carried out.
If constructed along the current route, the fence will enclose more than 250,000 Palestinians in 81 communities into dozens of isolated enclaves surrounded by barbed wire, trenches and concrete and will separate farmers from vast tracts of their land (altogether more than 200,000 acres).
Palestinians have petitioned the court against many portions of this route; application of the principle of proportionality as outlined by the court would require voiding these portions as well.
Perhaps the greatest test will come in Jerusalem, where Israel has already begun construction along a route that is particularly disastrous. It follows the municipal boundaries — an arbitrary line drawn by Israel in 1967 — which in several cases run down the middle of busy streets. Now a 20-foot-high concrete wall will separate tens of thousands of people from their schools, jobs, families and healthcare.
Though Jerusalem has been battered by suicide bombings and other attacks over the last three years, I would hope that the Israeli court would rule that here too the harm to innocent civilians is disproportional, and that other security measures must be found.
If the Israeli court does not, I hope that the international court will.
It is obvious to anyone who studies the map that although the barrier was conceived for security reasons, the route is dictated by politics. In Jerusalem, the barrier divides Palestinians from each other, rather than separating Israelis from Palestinians, and does so in order to strengthen Israel's claim to a united Jerusalem as its capital.
On the West Bank, the route snakes deep into occupied territory to include as many settlements as possible on the Israeli side, in order to strengthen Israel's political claim to them.
If the government actually believes that the barrier is essential to protect Israel, it must redraw the route to achieve that original intention: security rather than a land grab. And if — as I fear — the government does not voluntarily apply the high court's principle, the court must be ready to apply its own ruling to the entire route of the barrier.
As Chief Justice Aharon Barak wrote in the court's opinion: "Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for."
Which leaves the international community to say what was left unsaid: Only a route along or inside Israeli territory can fulfill these criteria.
Jessica Montell is executive director of B'Tselem, a Jerusalem-based organization that monitors human rights in the West Bank and Gaza Strip.
Copyright 2004 Los Angeles Times