22 Oct. '09: High Court orders opening of road closed to Palestinian travel for eight years

Justices do not nullify the policy prohibiting Palestinians to travel on some roads in the West Bank intended only for Israelis

Today, 22 October, the High Court of Justice accepted the petition filed by the heads of the Deir Samet and Dura village councils, the Beit ‘Awwa municipality, Badawi Muhammad, and the Association for Civil Rights in Israel, ruling that closing the road in the Beit ‘Awwa area to Palestinians, on grounds that the closing was necessary to ensure the safety of settlers living in the area, was unlawful. The court gave the army three months to find an alternate solution.

The road involved is a major thoroughfare in the Beit ‘Awwa area, in Hebron District, which has been closed to Palestinian travel since 2001. Some 150 settlers living in the Negohot and Mitzpeh Lachish settlements, both unauthorized outposts under the government’s classification, continued to freely travel along the road.

The prohibition on Palestinian travel completely disrupted the daily routine of the 45,000 Palestinians living in the area. Along with the severe infringement of the right to freedom of movement, the closing also infringed other rights. Some of the local villages lack basic infrastructure and are completely dependent on nearby towns. To reach them, most of the residents relied on public transportation. Closing of the road to all vehicles, including public transportation, changed their lives. Furthermore, some of the villages have no running-water systems, and the residents have to buy water from tankers. With the road closed, it was very hard to transport water to the residents’ homes, causing a significant increase in the cost of drinking water. Palestinians who once lived on a main traffic artery found themselves isolated from relatives and friends, who had difficulty getting to their homes.

The most serious harm was suffered by the thirty-member Jadallah family (see the attached video), which lives on the section of the road that was closed. The family was severed from villages and towns following closing of the road, which is the only road leading to their homes.

In the court’s opinion, written by Supreme Court President Dorit Beinisch, the justices held that closing of the road to tens of thousands of Palestinians to safeguard 150 settlers was disproportionate. The justices stated that the military commander did not choose a means that causes the least possible infringement of the Palestinian residents’ rights, and that no serious examination was undertaken of an alternate solution to such an extreme measure.
The justices further stated that the harm in closing the road was greater than its benefit, and for this reason as well, it must be opened.

Closing of the road was intended to provide protection to some 150 Israeli residents who live there and use the road, while, on the other hand, it harmed the fabric of live of thousands of protected residents… The closing of the road to Palestinian travel so as to prevent access from the Beit ‘Awwa junction to the village of Fuqiqis directly affected rural residents of the area – their life routine was disrupted, simple daily actions became complicated and complex.

Taking into account these facts, the justices ruled that the army must permit Palestinian travel on the road:

Closing the road to Palestinian vehicles in the manner described above severely infringes the rights of the local residents in a disproportionate manner. This situation violates the duty of the military commander to ensure the welfare of the local population and enable them to live normal lives, and also taking into account security needs, of which we are aware, it does not meet the test of proportionality in its narrow meaning. The security advantage attained from closing the road in the way it was done does not bear a reasonable relationship to the harm to the local residents. Furthermore – and no less important -  as we pointed out above, we were not convinced that other security means were examined that could significantly reduce these infringements, even if it might entail a certain harm to the security component. In accordance with the consistent approach of this court, also if security needs require the using means that might harm the local population, every effort must be made to ensure that this harm is proportionate.

The court’s judgment is significant, in part, because the justices made it clear that security considerations alone are not sufficient to justify infringement of human rights. The military commander, the justices emphasized, must prove that the decision meets the test of proportionality and that the decision is reasonable.
 
Opening the road following the judgment will significantly ease the daily lives of tens of thousands of Palestinians, and B'Tselem welcomes the decision.

However, the decision does not nullify the policy that prohibits Palestinians from traveling along some roads in the West Bank, setting them aside for Israelis only. This policy is racist and the High Court should have explicitly nullified it, for the reason that it relates to all Palestinians as a security threat, even if they are not suspected of anything, only because of their nationality. The rules of this policy have never been published, and closing of the roads is based on the absolute discretion of the defense establishment, which does not have to explain its decisions.  This policy breaches international law.

There is no dispute that Israel has the duty to protect its citizens, even when they live in settlements or in “unauthorized outposts.” However, it is not allowed to use the illegal presence of settlers to justify infringement of Palestinian rights. Israel is the occupying power in the West Bank and the Palestinians are deemed “protected persons” under international humanitarian law. Israel’s primary duty, as the occupying state, is to protect this population and ensure its welfare.