Talking to a Wall

Israel's high court removes a legal brick from the world's most infamous wall.

Earlier this year, when the International Court of Justice concluded three days of hearings on the legality of Israel's West Bank separation wall, the Israeli government declared that it would ignore whatever decision the 15-judge panel handed down. But Prime Minister Ariel Sharon cannot just brush off the ruling delivered by the Israeli Supreme Court this week. While the high court declined to declare the wall illegal, as some had hoped, they did conclude that the planned route was unjust.

The decision -- in which the court has ordered the military to reroute 20 miles of the controversial wall separating Jerusalem from the West Bank -- is a defeat for Sharon and a victory for Palestinian farmers who would have been cut off from their land by the wall. Just as importantly, it is an indication that the blanket justifications offered by Sharon are not as universally embraced as Israeli hawks might have thought.

The Supreme Court sided with Palestinian villagers and residents of a Jerusalem suburb who joined them, ruling that: "The route that the military commander established for the security fence ... injures the local inhabitants in a severe and acute way while violating their rights under humanitarian and international law." The justices went on to say that the military's "current balance between security considerations and humanitarian considerations is disproportionate" and that "reduction in security must be endured for the sake of humanitarian considerations."

While the ruling focused on a small section of the wall, it has set a precedent for more than 20 similar court cases currently pending. Just about a quarter of the wall -- which is expected to stretch for some 480 miles -- has been completed. By, in effect, shredding the argument that Israel's security needs give the military a blank check to build the wall anywhere it sees fit, the Court's decision will force the military to alter some of its planned construction. As Mohammed Dahleh, the lawyer for the Palestinian villagers put it:

"This decision is more important than the one at The Hague because this one will be followed... It says that the wall as it is being built is illegal and there is another way to build it that will give security to Israel but won't violate Palestinian rights."

Indeed, soon after the Court ruling, the military issued a statement that:

"The defense establishment respects the judgment of the Supreme Court concerning those sections of the security fence that require replanning. The replanning of these sections will be based on the proper balance between security and humanitarian considerations."

The Court did not rule that the construction of the wall was itself illegal. It avoided that question, arguing that both sides did adequately address it, and that it would inappropriate for the Court to rule on the matter. The justices rejected the contention of the Palestinian residents that the wall was illegal under international law because the reasons for its construction were political, siding with the military's argument that its construction was security-driven. The government has also pointed out that the court sided with the military in justifying the seizure of land for the wall's construction. But as the Israeli newspaper Maariv points out, "Justice Barak was quoted throughout the deliberations as saying that he would like to enlarge the deliberations to the greater question of the legality of the entire security barrier." And that can't be good news for the government.

The wall, known as the fence, known as the security barrier, has become the world's most controversial barrier since the Berlin Wall. The Israeli government insists that is necessary to secure Israel from suicide bombers from the West Bank, but those affected by it, say that it destroying communities and playing into the hands of extremist groups like Hamaas. The wall has already divided villages, towns, farmers from their farmland, and family members from one another. In this month's issue of Mother Jones, Chris Hedges documents the devastating impact the wall's construction on the town of Qalqiliya:

"Qalqiliya is a ghetto. It is completely surrounded by the wall, with one small Israeli manned checkpoint to let its residents pass into the West Bank or return home. Only those with special Israeli-issued permits can enter the town. Before the wall was built, 42,000 people lived here. Mayor Marouf Zahran says at least 6,000 have left since the Intifada. The unemployment rate is close to 70 percent. … Qalqiliya feels like a plague town, quarantined, which may not be far from the truth. After suicide bombers slipped into Israel from here, Israeli officials reportedly began to refer to it as a 'hotel for terrorists…'

There are hundreds of acres of farmland on the other side of the wall, some of the best in the West Bank, and that land now is harder and harder to reach given the gates, checkpoints, and closures. The 32 farming villages on the outskirts of Qalqiliya are cut off from their land. Olive groves, with trees hundreds of years old, have been bulldozed into the ground. The barrier is wiping out the middle class in the West Bank, the last bulwark here against Islamic fundamentalism. It is plunging the West Bank into the squalor that defines life in the Gaza Strip, where Palestinians are struggling to survive on less than $2 a day. It will create perhaps 80 ghettos."

The outcome of the deep poverty and daily humiliation that the residents of the new ghettos created by the wall are subjected to, should not be a mystery to the Israeli government. Yet Sharon keeps insisting that Israel can somehow seal itself off from suicide bombings, be it via the wall or plans to unilaterally withdraw from the Gaza Strip. The fiction that Sharon perpetuates is that peace can be achieved not by negotiating with the Palestinians, but by acting as if they are not there at all. It is a fiction that many, including Washington Post columnist Charles Krauthammer -- who recently declared that the "Palestinian intifada is over" and that Israel won -- perpetuate. This alleged victory, according to Krauthammer, came about because Israel carried out a series of "targeted assassinations" on leaders of extremist Palestinian groups (though not so targeted when you consider the number of civilians killed in the process) and of course, by building the wall. Krauthammer argues that:

"Arafat failed, spectacularly. The violence did not bring Israel to its knees. Instead, it created chaos, lawlessness and economic disaster in the Palestinian areas. The Palestinians know the ruin that Arafat has brought, and they are beginning to protest it. He promised them blood and victory; he delivered on the blood.

Even more important, they [the Palestinians] have lost their place at the table. Israel is now defining a new equilibrium that will reign for years to come -- the separation fence is unilaterally drawing the line that separates Israelis and Palestinians. The Palestinians were offered the chance to negotiate that frontier at Camp David and chose war instead. Now they are paying the price."

PLO's missteps and its rampant corruption must be acknowledged, but the Israel is only boosting Arafat's popularity by keeping him secluded in Ramallah and throwing out thinly-veiled assassination threats against him. Israel has made martyrs out of the extremist leaders it assassinated, boosting the recruitment efforts of Hamaas & Company. The wall -- inadvertantly -- is serving the same function. Krauthammer's declaration of intifada's end is incredibly premature, as is his insistence of Israel's "victory."

The Sharon government has made it clear that is above negotiating with the Palestinians, but in its ruling, Israel's Supreme Court has made it equally clear that Sharon is not above the law. By recognizing that the country's security considerations do not outweigh the humanitarian ruin inflicted by the wall's construction, the Court marked a victory for Israeli democracy. It can only be hoped that the Court's ruling will force Sharon government's to move beyond its obsession with unilaterism, which is proving as effective as talking to a wall.