The Best Response Is a Court with Clout


Road 443 is an east-west highway that connects Israel’s coastal “Center” with its largest city and capital, Jerusalem. For about thirty kilometers, 443 cuts through a section of the West Bank northwest of Jerusalem, connecting the major town of Modi’in, and also major Palestinian population centers Ramallah and El Bira, to the national highway grid. It is a critical artery, one of just two highways linking the coastal plain and Jerusalem.

In 2002, Palestinian terrorists attacked Israeli cars and planted roadside bombs along the road, leading the IDF to close it to vehicles registered in the Palestinian territories. The closure worked and violence along the road largely disappeared. However this was achieved at a cost: a major highway was cut not only to terrorists, but also to innocent Palestinian traffic.
While the terror raged and suicide bombers blew up Israeli restaurants, the national battle against the terror networks justified the drastic action. But last week, a three-judge panel of Israel’s Supreme Court unanimously concluded that the closure must end, since the infringement on the Palestinians’ freedom of travel has become disproportional to the current threat level. The court ruled that as circumstances have improved, the policy must change.

The overall public response has not been a happy one. Many Israelis fear that mostly innocent Palestinian traffic will almost certainly become a platform for terror operations against them. This fear is not groundless, which explains why the court gave the army five months’ leeway to develop alternative security measures that will enable interception of terror operations without drastically limiting the rights of Palestinians.

In the media, much was made of a point on which the justices split: For Israel to run a road through a territory not under its direct sovereignty (the West Bank has never been annexed) and forbid its use by non-Israelis may be unlawful under Israeli and international law. Consequently two justices (Vogelman and Beinish) asserted that the closure was done outside the bounds of the army’s authority. While this may be an obiter in the 443 case (a finding not essential to the decision and therefore not a precedent), the question is sure to arise again in regard to other components of Israeli government policy in the West Bank.

The ruling will surely become even more controversial if terror attacks follow on or near 443 similar to the recent sniper murder of Rabbi Meir Chai on a different road. Yet even for Israelis and supporters of Israel who disagree with the court’s decision, this is a moment to savor. And it should provide a moment of embarrassment for the obsessive anti-Israel activists from around the world who hound Israeli officials and excoriate Israeli policy without consideration for the real threats Israel faces, and for the various Goldstoners who cooperate with the discredited UN Human Rights Council report against Israel’s operation in Gaza.

In issuing yet another unpopular ruling defying government policy and security worries in the name of Israeli constitutional principles that protect Palestinian rights, the Supreme Court again gave the lie to the blind, hateful worldwide campaign that sees no crime but Israel’s and no criminals but the Jews.

For the Supreme Court, the decision was business as usual. The Israeli governance system is characterized by an activist court, a hard-working human-rights NGO community and a citizenry that responds angrily to reported violations of human rights.

For those who recoiled instinctively from the court’s ruling (many probably without having read it), it is important to note how balanced was the discussion led by the judges. Through careful sifting of evidence, the court majority established that the original closure was a legitimate military decision, honestly targeted - and successful – at saving lives.
Read carefully, the ruling is a moving and document because it demonstrates how Israel’s judges balance real threats to Israelis’ lives with the democratic principles laid out in Israel’s constitutional structure. This balance, this depth and nobility of spirit, is lacking in the one-sided discussions that make up much of the international debate about the conflict.

Were Israel’s enemies to read the ruling, they would notice a particularly sharp rebuke by Chief Justice Dorit Beinish about their abuse of language. In a brief critique of the “apartheid” charge used openly and shamelessly by the petitioners, she wrote:

The equation the petitioners drew between the use of separate roads for security reasons and the policy of apartheid that used to be practiced in South Africa and to its accompanying practices – is unworthy. The policy of apartheid is a most serious crime, in violation of the principles of Israeli law, of international human rights law, and of the prescriptions of international criminal law. We are speaking of a policy of racial segregation and discrimination on the basis of race and ethnicity, based on a series of discriminatory practices whose goal was to create superiority for one specific race and to oppress members of others.

Despite real threat, and in spite of the blind, hypocritical opprobrium Israeli policy faces abroad, this court case offers insight into the real strengths that allow this country to develop and grow under very difficult circumstances. The court implicitly expressed the principle: We will not stop fighting for our safety, or balancing this safety with the rights of the Palestinians, even under conditions of a terror assault upon us.
Copyright 2013/2014 AJC