Dan Izenberg
The Jerusalem Post
October 23, 2009 - 12:00am

The High Court of Justice on Thursday accepted a petition filed by the Association of Civil Rights in Israel and ordered the state to cancel an order prohibiting Palestinians from driving on a road linking small villages near Hebron to the larger towns that provide them with vital services.

It gave the state three months to make the necessary preparations before the ban was lifted.

ACRI attorney Limor Yehuda, who filed the petition on behalf of officials of three towns and villages affected by the military order and the head of an extended family living beside the road, welcomed the decision but said that the court had "missed an opportunity" to overrule the order on the grounds that it discriminated against Palestinians according to ethnic-national criteria.

"The decision is problematic because of what it did not address: the lack of a categorical interdiction on the system of segregation and discrimination that is becoming more entrenched in the West Bank," said Yehuda. "The ruling did not address the legality of such an immoral and extreme practice." Yehuda told The Jerusalem Post that the policy of segregation and discrimination against Palestinians in the West Bank does not only apply to the road system, although ACRI has filed another petition against an army order prohibiting Palestinians from using a 15-kilometer section of Highway 443, which passes through the West Bank.

ACRI has also petitioned the High Court against the system of entry permits that Palestinians must obtain to access their lands that are situated in the West Bank, but on the "Israeli side" of the security barrier. Israelis may enter these areas freely.

She also said that Israel discriminates in its administration of the West Bank by maintaining separate legal systems for Palestinians, who live under military and Jordanian law, and Jewish settlers, who live under Israeli law.

"It is regrettable that the court did not say something substantial and clear about this practice," Yehuda said.

Instead, the court reached its decision on the basis of the principle of proportionality.

The army banned Palestinian traffic on a small east-west road linking the Palestinian town of Beit Awa and neighboring villages to Dura and Hebron. Originally, it also prohibited Palestinian pedestrians and motorists from crossing the intersection where the road meets a north-south main artery, Highway 354.

The ban was imposed to protect 150 residents of the Jewish settlement of Neguhot and a nearby illegal outpost, both located some four kilometers from the Beit Awa intersection.

The petition was filed in 2006. In between then and the ruling handed down on Thursday, the army lifted the ban on the intersection, thus allowing most of the Palestinians to travel freely. Nevertheless, an estimated 4,000 villagers continued to suffer because they could not travel on the road. The army defended its decision to ban Palestinian travel on security grounds.

But the court ruled that the army had not seriously considered other ways, less damaging to the Palestinians' rights, to protect the settlers. Furthermore, it said the security benefits stemming from the ban were outweighed by the harm caused to the Palestinians.

Although the petitioners presented many arguments against the travel prohibition, the one that was most important to them was expressed in the statement, "We are confronted with military orders based on a policy of separation and discrimination on national-ethnic grounds constituting unjustified and shameful discrimination which violate the fundamental principles of administrative and constitutional law in Israel and international law." Since the court refused to address this argument, it is difficult to know how it will rule in the other cases where the petitioners have made similar charges.

This is true, for example, in the case of Highway 443, which the court is expected to rule on soon. Unlike the small road in the case of Beit Awa, Highway 443 is a main highway linking Jerusalem with the coast.

Tens of thousands of Israelis use the road daily. The army imposed the travel ban against Palestinians on Highway 443 for security reasons, the same argument it used in Beit Awa.

Whatever decision the court comes to, and it appears to leaning towards upholding the travel prohibition in this case, it is almost certain to use the same reasoning, based on the principle of proportionality that it used in the Beit Awa case, and again refuse to address the charges of discrimination and segregation.

Shlomo Vaknin, in charge of security for the Council of Jewish Communities of Judea, Samaria and the Gaza Strip, said opening the road "endangered lives" because it could lead to terror attacks against Israeli drivers.

Created in 1998 and located in the South Hebron Hills 2.5 kilometers away from the pre-1967 border, the Negahot settlement is home to 170 people. In 2003, a Palestinian infiltrated the settlement and killed a seven-month old baby and a 30-year old man.

South Hebron Hills Council head Tzvika Bar-Hai said it was sad that the court felt the settlers' right to life carried less weight than the Palestinians' quality of life.

"Opening the road is a mistake. It would be irresponsible for the army to do so," he said.


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