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From the field

30 Dec. '09: High Court: Military commander is not authorized to ban Palestinian travel on Route 443

On 29 December  2009, the High Court of Justice ordered, by majority opinion, cancellation of the ban on Palestinian movement along the section of Route 443 that lies beyond the Green Line. Justice Uzi Fogelman, who wrote the majority opinion, held that the military commander is not authorized to impose such a ban, and additionally, that it is not proportionate. The justices give the military commander five months to formulate an alternate solution that will provide security to Israelis using the road.

In the past, the relevant section of the road was a main traffic artery in the southern part of Ramallah District. Over the years, the route was widened and changed, and in the 1980s, Israel repaved it. The widening of the road was accomplished by expropriating public and private land  of Palestinians from the adjacent villages. In its response to the petitions filed by the Palestinian landowners, the High Court held that these expropriations were legal inasmuch as the road was intended to also serve the Palestinian residents.

The physical obstacle between the village of Beit Ur al-Fauqa and Route 443. Photo: B’Tselem
The physical obstacle between the village of Beit Ur al-Fauqa and Route 443. Photo: B'Tselem

In 2000, following the outbreak of the second intifada, the army placed various restrictions on Palestinian travel on the road. In 2002, following several cases of Palestinian gunfire at Israeli vehicles on the road, in which six Israeli citizens and one resident of East Jerusalem were killed, the army banned Palestinians from using the road, by vehicle or on foot, for whatever purpose, including for transport of goods or for medical emergencies.

The ban severely harmed residents of the Palestinian villages for whom the road is the main traffic artery to Ramallah, the commercial center on which the villagers also rely for health services and schools. Closing of the road also affected the Palestinians ability to gain a livelihood: more than 100 small shops in villages along its route closed, among them floor-tile establishments, flower shops, furniture stores, and restaurants. Israel built a few alternate roads for Palestinians, which it refers to as “fabric of life” roads, but these were narrow and did not meet the local population's needs.

Route 443 now serves as a convenient alternative to the crowded Route 1, and has become a major traffic artery for Israelis travelling between Tel Aviv and Modi'in and Jerusalem. The road is 25 kilometers long, 14 of which are in the West Bank.

In March 2007, residents of six of the villages along the route, represented by the Association for Civil Rights in Israel, petitioned the High Court of Justice to remove the obstructions that had been placed to prevent access from the villages to the road, and to cancel the ban on Palestinian travel on the road. On 29 December 2009, two years and nine months after the petition was filed, the court gave its decision.

The court's majority decision, written by Justice Fogelman, first examined whether the military commander had the authority to ban Palestinian travel on the road. In doing so, the justice focused on the consequences of the ban: Route 443 currently serves only Israelis and is used for internal travel between the center of the country and Jerusalem. Justice Fogelman pointed out that, based on previous High Court decisions, “the military commander did not have the authority to build the road in the first place, had that been the objective underlying the action.” In summarizing his comments, the justice explained:

The situation resulting from the sweeping travel ban on the villages' residents is that it is no longer a road that serves the local population, but a “service road” of the occupying state. An arrangement with such a result exceeds the military commander's authority, and contravenes international law on belligerent occupation. The result of our comments to this point is that the travel restrictions imposed by the military commander cannot, in their present format, remain and are cancelled. (Emphasis in the original)

Despite this decisive determination, Justice Fogelman continued and examined whether the total ban is proportionate. He held that, without doubt, the military commander must safeguard the security of Israelis travelling on the road, and is authorized to impinge on the freedom of movement of Palestinians for this purpose. However, a total ban on Palestinian travel is not the only possibility available to the military commander, and no alternatives were considered that would also enable protection of Israeli travelers while reducing the infringement of Palestinian rights. The justice held that the “fabric of life roads” that Israel built do not render the ban proportionate, in that they still “do not give proper weight to protections of the latter's rights as ‘protected persons.' ”  Therefore, he held, “I was not convinced that sweeping denial of use of the road by the protected claimants…, especially when the road is primarily used as an ‘internal' road within Israel, offers the correct balance between harm to the individual's rights and security needs.”

Supreme Court President Dorit Beinisch, who concurred with Justice Fogelman's opinion, added that excluding one population group from using the road raises “a feeling of inequality and even associations of forbidden motives.” For this reason, the military commander must reduce the cases in which he specifically chooses such a sweeping policy. Nevertheless, the president emphasized, the policy of closing roads to Palestinians is not a policy of apartheid, which is a serious crime that contravenes Israeli and international law, and noted that, “not every distinction between persons, in all circumstances, is necessarily forbidden discrimination, and not every forbidden discrimination is apartheid.”

To enable the military to formulate an alternative arrangement, the High Court ordered that the judgment will take force in five months' time. During this period, the army must establish alternate arrangements for Palestinian travel on the road. Justice Fogelman emphasized: “Our comments to this point are not a determination that the military commander must allow free and unhindered access of residents of the villages to Route 443.” However, every restrictions imposed on the Palestinian population must meet the principles specified in this judgment.

The judgment is welcomed because it places clear limitations on the military commander and prevents him from misusing his authority.  However, the court provides the military commander with relatively broad discretion in instituting future travel arrangements on Route 443.

Justice Fogelman's opinion unequivocally states that the military commander's authority is limited only to occupied territory, and that Israel is not allowed to exploit the territory to advance its economic interests. This determination is relevant with respect to many spheres of activity in which Israel exploits resources of the West Bank for its own purposes. For example, Israeli companies use the West Bank for mining stone for construction work inside Israel. The Mountain Aquifer, which is the common, major water resource of Israel and the Palestinians, lies mostly under the West Bank, but Israel takes 80 percent of the aquifer's water for its needs. As a result, the average Palestinian receives a quarter of the water that an average Israeli receives. Also, while Israel develops tourism along the Dead Sea, which is part of the West Bank, it prohibits Palestinians to do the same.

Israel must implement the principles set forth in the court's judgment also in these matters and cease exploiting West Bank resources for its own purposes.