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24 July 2006: High Court errs in denying petition against separation barrier around Ariel

On 17 July 2006, the High Court of Justice rejected a petition that Palestinian residents of villages around the Ariel settlement had filed opposing the section of the separation barrier that surrounds the settlement. The barrier's route in that area, referred to as "the fingers," penetrates deep into the West Bank and places, in addition to Ariel, fourteen settlements on the "Israeli" side of the barrier. The government has so far approved construction of five sections of the fingers-area barrier, including a section that surrounds Ariel on three sides (north, east, and south). According to the government's decision, connection of these sections with other parts of the barrier depends on "legal approval."

One of the major consequences of including Ariel on the "Israeli" side of the barrier is to create a wedge separating seven villages north of the settlement, in which some 25,000 Palestinians live, from the district's major town, Salfit (which has 10,000 residents), where they go to meet various needs. To construct the barrier, Israel took control of more than 1,000 dunams of lands [one square kilometer], most of it private land, and uprooted hundreds of olive trees. In the area south of Ariel, the barrier separates Salfit from 3,200 dunams of its land, some of which is privately-owned farmland and some rocky land used for grazing or are wanted for the planned expansion of Salfit.

The High Court of Justice made a grave error in rejecting the petition. Its mistake results, in part, from its acceptance of three main arguments raised by the state.

  The only consideration in leaving Ariel on the "Israeli" side of the barrier was to protect the settlement from the threat of terror

The High Court accepted this contention and rejected the Palestinian residents' contention that the state's decision resulted from a desire to establish facts on the ground in advance of annexing the settlement. The High Court ignored many statements of senior state officials, the prime minister and foreign minister among them, that the separation barrier would be the state's border in the framework of a unilateral withdrawal. Even if these statements do not in themselves negate security as a consideration in setting the route, it should have raised a doubt that security was the sole reason.

2) The barrier's route around Ariel was chosen only for security reasons and there is no reasonable alternate route

This contention relates primarily to the section south of Ariel, where most of the land belonging to Salfit's residents is situated. Among other things, the High Court accepted the defense establishment's position that "Placing the fence alongside the town [Ariel] will not provide security forces with sufficient time to capture terrorists who are liable to penetrate the town, before they reach the residents' homes" (Section 25 of the judgment). For these reasons, the High Court held that infringement of the Palestinian farmers' right to access to their land, and of their right of property, is proportionate.

However, in its response to the petition, the state admitted that, in setting the route, it took into account an unapproved plan to expand Ariel. The plan covers land between the settlement and Salfit that is left on the "Israeli" side of the barrier. The state argued that this consideration was of lesser importance than the security considerations. The High Court completely ignored the substantial contradiction in the state's argument, at least as regards the space between the barrier and the houses of the settlement to enable "the capture of terrorists who are liable to penetrate the town." The space intended for this purpose must be open space to enable pursuit of the infiltrators, so it cannot be a residential area, as the state plans call for.

3) The Palestinian residents' claims of injury to their fabric of life are "premature"

The state argued that the government had not yet given final approval to linking the barrier surrounding Ariel on three sides to the rest of the barrier, and therefore the Palestinian residents' contentions regarding the injury the barrier's route will cause their fabric of life, including access of residents of the villages north of Ariel to Salfit, are "premature."

The High Court's decision ignores the fact that, although the link has not received "legal approval," the state has unequivocally declared its intention to place Ariel on the "Israeli" side of the barrier, for which reason it approved a specific route. Based on past experience, the moment that the question of linking the existing barrier to the other sections becomes relevant, the state will argue, as it has in other cases, that a non-contiguous barrier is ineffective, and that the harm to the Palestinian fabric of life is proportionate. There is little likelihood that the government will reverse its decision and decide to leave Ariel on the "Palestinian" side of the barrier and surround it with a separate barrier.

The very establishment of Israeli settlements in the West Bank violates international humanitarian law. Given that the breach is ongoing, actions taken to perpetuate the settlements are illegal. Such actions must be distinguished from other actions that are made solely to protect the settlers' lives, which are legitimate in principle. In the petition regarding the barrier around Ariel, like many other petitions relating to settlements and the breach of human rights resulting from their establishment, the High Court accepted without challenge all the state's arguments, though they were refuted in court. In doing so, the High Court granted, once again, a cloak of legality to Israel 's improper policy.