Global Policy Forum

By Ethan Bronner

Ali Abu Safia, mayor of this Palestinian village [Beit Sira], steers his car up one potholed road, then another, finding each exit blocked by huge concrete chunks placed there by the Israeli Army. On a sleek highway 100 yards away, Israeli cars whiz by. "They took our land to build this road, and now we can't even use it," Mr. Abu Safia says bitterly, pointing to the highway with one hand as he drives with the other. "Israel says it is because of security. But it's politics."

The object of Mr. Abu Safia's contempt — Highway 443, a major access road to Jerusalem — has taken on special significance in the grinding Israeli-Palestinian conflict. For the first time, the Supreme Court, albeit in an interim decision, has accepted the idea of separate roads for Palestinians in the occupied areas. The Association for Civil Rights in Israel told the Supreme Court that what was happening on the highway could be the onset of legal apartheid in the West Bank — a charge that makes many Israelis recoil.

Built largely on private Palestinian land, the road was first challenged in the Supreme Court in the early 1980s when the justices, in a landmark ruling, permitted it to be built because the army said its primary function was to serve the local Palestinians, not Israeli commuters. In recent years, in the wake of stone-throwing and several drive-by shootings, Israel has blocked Palestinians' access to the road. This month, as some 40,000 Israeli cars — and almost no Palestinians — use it daily, the court handed down its decision, one that has engendered much legal and political hand-wringing.

The one-paragraph decision calls on the army to give a progress report in six months on its efforts to build separate roads and take other steps for the Palestinians to compensate them for being barred from Highway 443. It is the acceptance of the idea of separate road systems that has engendered commentary, although legal experts say there is a slight chance that the court could reconsider its approach when it next examines the issue. "There is already a separate legal system in the territories for Israelis and Palestinians," said Limor Yehuda, who argued the recent case for the civil rights association on behalf of six Palestinian villages. "With the approval of separate roads, if it becomes a widespread policy, then the word for it will be ‘apartheid.' "

Many Israelis and their supporters reject the term, with its implication of racist animus. "The basis of separation is not ethnic since Israeli Arabs and Jerusalem residents with Israeli ID cards can use the road," argues Dore Gold, president of the Jerusalem Center for Public Affairs, a conservative research organization. "The basis of the separation is to keep out of secure areas people living in chaotic areas. If the Palestinian Authority, which has thousands of men under arms, had fought terror, this wouldn't have been necessary."

The court's latest decision is significant because it accepted the idea in principle put forth by the army — that while it had no choice but to ban Palestinian traffic from the road because of anti-Israel attacks on it, some of which it says originated from the surrounding villages, it would build separate roads for the Palestinians. The court has never ruled on the legality of separate roads, despite a growing network of them around the West Bank. If this interim decision reflects its view that such a system is legally acceptable, that represents a big new step. A court spokeswoman said the justices would not comment.

David Kretzmer, an emeritus professor of international law at the Hebrew University in Jerusalem, wrote in an op-ed article in the Israeli newspaper Haaretz of what he called the "judicial hypocrisy" of Israel's reign over the territories manifest in this case. He said that while the changed security circumstances of recent years may have forced a change in the road's mixed use, "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."

For many Israelis, however, the dozens of attacks that have taken place on the road in recent years are reason enough to ban Palestinian traffic there and to limit Palestinians to other routes. In 2001, for example, five Israelis were killed by gunfire on Highway 443 and since then a number of others have been injured from stone-throwing.

Still, the legal case seems more complicated. In The Jerusalem Post, Dan Izenberg wrote that international law and Israeli court decisions were unambiguous on the fact that the road should primarily serve Palestinians rather than Israelis, but that the court was in a delicate position just now because of growing public discontent with it over other issues."The High Court in this case cannot stray too far from the interests of the Israeli public, especially at a time when it has more than its share of enemies," he wrote. "The court knows that Israelis who rely on Highway 443 would not easily accept a ruling that causes them such inconvenience."

Gershom Gorenberg, an Israeli who wrote a book critical of Israeli settlements, runs a blog called South Jerusalem (www.southjerusalem.com) on which he has posted documents from the 1960s and 70s showing that the governments planned to expand the Jerusalem corridor with settlements and a bigger road after conquering East Jerusalem in the 1967 war. In that sense, he says, the government and army were never honest in what they told the Supreme Court about the purpose of Highway 443.

"Think of the road itself as a settlement," he said, "part of the conscious effort to change the character of the area, giving it an Israeli stamp. The point was to make it impossible for Israel ever to return certain parts of the land. It is true that Palestinians had free movement on 443 in the 1980s and 1990s before the restrictions were imposed. But to claim that it was built for them does not line up with the paper trail. The cover story of this road has been blown."

For the 30,000 Palestinians who live in the surrounding villages, lack of access to Highway 443 has been a constant source of difficulty. In one village, A Tira, 14 taxis have permits to travel the road during daylight but locals say that has not eased the burden much.

Each morning, a crowd gathers at the blocked entrance to A Tira, waiting for the Israeli soldiers to open a gate so they can take one of the taxis to Ramallah, the capital of the West Bank. "Ten days ago, my brother had a heart attack and we had trouble transferring him to a Ramallah hospital," lamented Said Salameh, 51, a taxi driver who has a permit for the road, as he stood by the entrance one recent morning. "When the gate closes at night, we can't move outside the village."

Sabri Mahmoud, a 36-year-old employee of the Palestinian Authority, agreed. "I am always late to work because of this," he said. "Our life is controlled by the opening hours of the gate. You feel like you live in a cage."

For many legal commentators in Israel, the most distressing part is that by giving Highway 443 to Israelis and barring Palestinians, Israel is protecting its citizens not from terrorism but from traffic — granting them an alternative to the crowded main Jerusalem road. Ms. Yehuda, the civil rights lawyer, said that the Supreme Court's 1982 ruling specifically stated that if the point of the road was primarily to serve Israelis, then it may not be built. Yet now, she added, "The state is essentially aiming to safeguard the convenience of the service road for Israelis who commute from Tel Aviv and the central plains to Jerusalem and vice versa."