Global Policy Forum

By David Kretzmer*

How did a road which, according to official declarations, was paved for the benefit of the Palestinian population in the West Bank become a road along which that same population is forbidden to travel? The case of Route 443 demonstrates the "logic" of a judicial hypocrisy that has for years characterized Israel's reign over the territories.

From the day the Israel Defense Forces (IDF) first entered the territories, Israeli officials there have invoked the authority of a military commander over occupied territory as the basis for many acts, such as seizing real estate, declaring local territory to be state-owned land, and imposing severe restrictions on the movement of the population. On dozens of occasions, the Supreme Court has ruled that the legal framework which applies in the territories is one of belligerent occupation. Within this framework, the military leader is supposed to base his decisions on two considerations - and on them alone: military needs and the welfare of the local population.

As the Supreme Court ruled in its instructive precedent: "The considerations of the military commander are to secure his own security interests on the one hand, and to secure the interests of the civilian population on the other ... The military commander may not consider the national, economic or social interests of his own country, unless they have implications for his security interest or the interests of the local population. Even the needs of the military are its military needs and not the needs of national security in its broad sense ... An area held under belligerent occupation is not an open field for exploitation for economic or other purposes."

As any clear-minded person can see, these words have nothing in common with the manner in which Israel's authorities actually conduct themselves. Due to the limitations of the legal framework of the High Court of Justice (which relies on affidavits from both sides and does not allow the questioning of witnesses), and perhaps also out of a certain willful blindness - only in rare cases is the gap between the declared framework and the reality on the ground exposed in court.

In the Elon Moreh case, the discrepancy was revealed when the court learned that, contrary to the claims presented in the IDF chief-of-staff's original affidavit, the private land on which the settlement was to be built was seized for political, not military, reasons. The same occurred in a case relating to the separation fence, when it was proved that, contrary to the affidavit submitted in a previous petition, the route of the fence in a certain area was determined not by security considerations, but according to an as-yet-not-approved plan for the enlargement of a nearby Jewish settlement.

There is no better example of the way in which arguments are adapted to fit the formal legal framework that might be called "judicial hypocrisy" than the case of Route 443. In order to build part of the road, which connects Jerusalem to the Ben Shemen interchange, privately owned Palestinian land was appropriated. The authorities knew that they would not be able to defend this move if they admitted that the road was being built as part of the country's highway plan. Therefore, when the landowners petitioned the High Court, the authorities submitted an affidavit claiming that the existing system of roads was outdated. The Palestinian population in the area of Ramallah, Bir Naballah, Judeira, Nabi Samuel, Beit Iksa, Beit Hanina, Biddu, Rafat and Bethlehem, the affidavit claimed, was in need of new roads; the plan was meant to address that need. The court "bought" the argument and ruled that "we have no doubt or hesitation that Israel's considerations and its civil needs were not at the basis of the road plan it is carrying out."

Years pass, and the security situation changes. IDF officials come to the conclusion that Palestinians and Israelis cannot both be allowed to travel along this same road. In light of the affidavit submitted earlier to the High Court, and in light of the court's own ruling, the unavoidable conclusion is that, as unfortunate as this may be, Israelis should not be allowed to travel on the road that was built, let's not forget, for the benefit of the local population. But the military government has, of course, decided otherwise: Israelis will be allowed to travel on the road, while Palestinians - for whom, the court's ruling says, the road was paved - cannot use it, and access to the road from local Palestinian villages will be blocked.

But there is a problem. Once again, there is a petition to the High Court of Justice, and the "judicial hypocrisy" maneuver needs to be repeated. Not that the officials, God forbid, will claim that they lied back then when they declared that the road was built for the benefit of the local population; instead, they will rely on a comment saying that the road plan "will serve not only the local population, but also the inhabitants of Israel and vehicles traveling between Judea and Samaria and Israel." Note that it said "also"; not "only."

Someday, when the history of the occupation is written, Route 443 will be a symbol and an example. It will represent not only the tyranny of the Israeli occupation over the simple Palestinian citizen who wishes to enjoy freedom of movement and other rights that we consider to be self- evident, but also the hypocrisy that has accompanied that regime since its very first day.

About the Author: Prof. David Kretzmer teaches constitutional law and international law at the Hebrew University of Jerusalem and at the Ramat Gan Law School.