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Barrier in West Bank Is Legal, Israel Court Rules

The justices' finding includes an order that the fence in one area be reworked to free five Palestinian villages enclosed by it.

September 16, 2005|Ken Ellingwood | Times Staff Writer

JERUSALEM — The Israeli Supreme Court on Thursday upheld the nation's right to build a separation barrier on land inside the West Bank, though it ordered the government to reconfigure a section because it left five Palestinian villages isolated.

In a 9-0 ruling, justices rejected the reasoning of the International Court of Justice in The Hague, which last year deemed portions of the barrier in the West Bank illegal because they amounted to a de facto annexation by Israel and infringed on the rights of Palestinians left cut off from schools, work and family members.

The high court said the International Court of Justice did not adequately consider Israel's security needs in rendering its judgment, a nonbinding advisory opinion delivered to the United Nations General Assembly in July 2004.

"The ICJ based its opinion on a factual basis regarding impingement of Palestinian residents' rights, without the factual basis regarding the securitymilitary justification for this impingement," the Israeli court wrote.

The Supreme Court could have joined the World Court in finding the barrier illegal, which would have thrown into disarray the Israeli government's project.

The planned 450-mile barrier, a combination of fences, concrete walls, patrol roads and trenches snaking in and around the West Bank, is about one-third completed.

Israel says the completed sections have proved an effective way to prevent Palestinian suicide bombers from entering Israel from the West Bank. But Palestinian officials say the barrier is a way for Israel to craft new borders on its own and seize land that the Palestinians seek for an independent state.

Mark Regev, a spokesman for the Israeli Foreign Ministry, said the Supreme Court ruling recognized the barrier's role as a security safeguard.

"The fence isn't going up in a vacuum," Regev said. "It's going up in the context of an all-too-real terrorist threat."

Saeb Erekat, the chief Palestinian negotiator, said the ruling would pave the way for further Israeli construction inside the West Bank and impede future peace efforts.

"This is really an unfortunate event for the peace process," Erekat said.

The ruling came as Israeli Prime Minister Ariel Sharon, in New York for a United Nations summit, said in a speech to the General Assembly that it was up to the Palestinians to take the next step toward peace after Israel's withdrawal from the Gaza Strip.

"Now it is the Palestinians' turn to prove their desire for peace," Sharon said. "The most important test the Palestinian leaders will face is in fulfilling their commitment to putting an end to terror and its infrastructures, eliminate the anarchic regime of armed gangs and cease the incitement and indoctrination of hatred toward Israel and the Jews."

In a long and lyrical speech, Sharon said that Israel recognized Palestinians' right to their own state. But he said Israel would not relinquish Jerusalem, its "undivided and eternal capital."

On the sidelines of the U.N. gathering, Israeli Foreign Minister Silvan Shalom met Thursday with his counterpart from Qatar as part of a broader effort to improve relations with Arab and Muslim countries. On Tuesday, Shalom met for the first time with the foreign minister of Indonesia, the most populous Islamic country.

Sharon shook hands Wednesday with Pakistani President Pervez Musharraf, in a further sign of evolving relations between Israel and that Muslim nation.

The Israeli court decision came in a case challenging an eight-mile segment of the barrier that partially encircles a Jewish settlement called Alfe Menashe, which sits in the northwestern West Bank a couple of miles from Israel, and five Palestinian villages.

The petition, filed by village officials and the Assn. for Civil Rights in Israel, argued that the sections of the barrier inside the West Bank were illegal, citing the findings of the international jurists. In any case, the petitioners said, the five Palestinian villages should not have been enclosed within the pocket created by the barrier.

Israel rejected the conclusions of the World Court, saying that the panel lacked jurisdiction and that its findings were motivated by politics. Israel offered a written statement in those proceedings but did not make an argument at hearings in The Hague in February 2004.

But Israeli officials have said they would abide by the decisions of the Supreme Court. The government had to reroute the barrier after the high court last year ruled that an 18-mile section near Jerusalem caused undue hardship to Palestinians living there.

Thursday's ruling, which cited the Supreme Court's earlier decision, said the barrier around Alfe Menashe had created a chokehold on the five nearby villages by cutting them off from the rest of the West Bank.

The justices said harm to the Palestinians outweighed security benefits provided by the barrier.

The court ordered the Israeli government to look for another route that would leave the Palestinian villages outside the Alfe Menashe enclave.

Michael Sfard, a lawyer representing the villages, told Israel Radio that the ruling "saves five Palestinian villages from near-certain extinction because they could not have continued to exist much into the future if this section of the fence would have continued to exist."

Analysts said the ruling could influence the outcome in dozens of other pending petitions that challenge segments of the barrier.

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Times staff writer Maggie Farley at the United Nations contributed to this report.

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