The security
fence:
Israel's justice system upholds Palestinian rights
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Published: 12 April 2005
Briefing Number 138
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Summary: Israel’s security fence
has helped bring about a dramatic reduction in the number
of suicide and other attacks against Israeli civilians.
But Israel is severely limited in the route it selects
for the fence – and not just by international diplomacy.
Israel’s authorities face a barrage of legal actions
brought in its own courts by Palestinian farmers and villagers
(often represented by Israeli civil rights organisations),
challenging the route of the fence. This Briefing highlights
some of these actions.
Critics allege that Israel’s security fence tramples
on Palestinian rights. This Briefing demonstrates a more
complex reality. Palestinian rights, upheld by Israel’s
independent justice system, are frustrating Israel’s
security fence.
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Israeli High Court, June 2004: “take account
of Palestinian needs”
Palestinian residents have the legal right to challenge fence
construction in the Israeli courts. They have exercised this
right, frequently and successfully. As a result the cost of
the fence has increased, its route has been changed many times,
and its completion has been delayed.
On 30 June 2004, in the first and perhaps most influential court
ruling, the Israeli High Court of Justice ruled that a 30km
stretch of the proposed fence should be rerouted in an area
north of Jerusalem, to meet the humanitarian needs of the Palestinian
population. While the court supported Israel’s right to
build the security fence to protect Israeli citizens, the court
also required Israel to take account of Palestinian concerns.
Rerouting or delaying the fence: further court rulings
That decision established a pattern. Since then, a series of
further Israeli court rulings have upheld Palestinian rights
and slowed the construction of the fence. Some of these have
been ‘final’ decisions, and some have been ‘interim’
decisions, intended to give the parties more time to negotiate
a rerouting of the fence. Here are some of these court decisions:-
- On 28 October 2004 an Israeli Deputy Supreme Court Justice
ordered work on the security fence to be stopped near the Palestinian
village of Budrus after an Israeli civil rights group submitted
documents proving that the Israeli army had underestimated the
harm caused to olive trees owned by Palestinian farmers (Jerusalem
Post, 29 October 2004)
- On 5 January 2005 Israel’s Deputy Defence Minister announced
in the Israeli Parliament that changes in the route of the security
fence mandated by past Israeli High Court decisions would cost
Israel around 100million Israeli shekels. The Minister highlighted
that Israeli court decisions had already required seven changes
to the route of the fence (Ha’aretz 7 January 2005)
- On 27 January 2005 the Israeli High Court refused a petition
submitted by the Israeli Army and the Israeli Defence Ministry
to lift a temporary ban on fence construction along a 26-kilometre
stretch of fence north-west of Jerusalem. The Court had rejected
the original route proposed by the Israeli authorities because
of the hardship caused to Palestinian residents (Jerusalem Post,
28 January 2005)
- On 18 February 2005 the Israeli Defence Ministry announced
that overall completion of the fence would be delayed by a year
(until early 2006) because of a series of petitions to the Israeli
High Court by Palestinians (Jerusalem Post, 19 February 2005)
- On 22 February 2005 the Israeli High Court halted construction
of the fence near the Israeli town of Modi’in, following
complaints from three Palestinian residents of a nearby village
(Jerusalem Post, 23 February 2005)
- On 30 March 2005 the Israeli High Court agreed to hear a petition
from the Association of Civil Rights in Israel (‘ACRI’)
demanding that a stretch of fence near the West Bank settlement
of Alfei Menashe should be dismantled altogether, because of the
harm it was allegedly causing to Palestinian residents (Jerusalem
Post, 31 March 2005).
There is every reason to believe that similar court actions
will continue in the future. Several observations can be made:
- Palestinians have ready access to the Israeli courts to challenge
the fence. This is not a right ‘on paper’ only –
but a right with real power
- Palestinian claims have frequently been upheld, while the arguments
of the Israeli army and defence establishment have frequently
been rejected
- Despite the proven effectiveness of the fence at saving lives,
Israel has still applied due legal process to its continued construction,
and
- Successful Palestinian legal actions mean that Israel must
bear huge extra construction costs, as well as delay in implementing
a life-saving measure
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