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Racial Discrimination – Yes, Apartheid – No: HCJ 3969/06 Al-Harub v. IDF Commander in the West Bank (Judgment of October 22, 2009); HCJ 2150/07 Abu Safiya v. Minister of Defense (Judgment of March 5, 2008)
Court Watch | 3969/06, 2150/07 | 1.2.2010 | Adv. Yossi Wolfson
Twice the Supreme Court of Israel intervened and revoked military orders which had turned roads in the Occupied Palestinian Territories (OPT) into Israelis-only roads on which Palestinians were prohibited from travelling. Such roads have become a hallmark of Israeli apartheid, though they are not necessarily the most profound expression of it. Thus, while the judgments are welcome, it is interesting to examine the justices’ approach to the issue of discrimination and apartheid.

The first judgment – the Deir Samit case[1] was delivered in the matter of Road 3265 in the West Hebron Hills. This is an east-west road connecting the villages at the base of the mountain range to the city of Hebron and the towns of a-Dhahiriyah, Dura and Beit ‘Awwa. There are two small Israeli settlements along this road, with a total of 150 inhabitants. The road was closed to Palestinian movement between the Green Line in the west and the village of Fqeiqis in the east. An intersecting road (which runs north-south) had also been closed off to Palestinian travel but reopened following submission of the petition, without need for court intervention.

The court accepted the state’s claim that the road had been closed off to Palestinians for security reasons. It also accepted that security reasons could justify segregation on the roads

The judgment was delivered by President Beinisch and it is based on the principle of proportionality. The court accepted the state’s claim that the road had been closed off to Palestinians for security reasons. It also accepted in principle the claim that security reasons could justify segregation on the roads. However, the court was unconvinced that there were no measures for protecting Israelis travelling on the road which were less injurious to Palestinians. The injury was not inconsequential, but rather extremely severe such that even without alternative measures, it could not be justified. The court elaborated on the severe harm to the Palestinian population:

The entire routine of thousands of residents has been based, therefore, on the breadth road being a traffic artery on which public buses, taxis, water tankers and commercial trucks with various goods travelled every day. The closure of the road to Palestinian movement has led to the cancellation of the public transportation which served the residents of the villages – both westbound and eastbound. The closure of the road has also led to an increase in water shipping prices and the seclusion of the residents as friends and relatives who do not own cars can no longer reach those who live in the villages and houses along the road. Thus, it is argued, these villages have been transformed from lively communities located on a major traffic artery to isolated and forgotten locales.

An even greater injury is suffered by the Jadallah family – some thirty individuals – who live halfway on the segment of road which is closed off to Palestinian movement. The closure of the road cut off the Jadallah family from nearby villages and large towns, effectively eliminating the only traffic artery leading to their homes. Even if the respondents’ claim that the Jadallah family members are allowed to use the road at any time and without restriction is true, still the injury they suffer by the closure of the road to other Palestinian vehicles – public transportation, water tankers, friends and relatives, remains. Moreover, since, as claimed (and unchallenged by the respondents), the Jadallah family does not own a car, indeed, they cannot effectively leave the area of their home as Palestinian taxis are no longer allowed to travel on the road nor are relatives and friends permitted to use their cars to reach the homes of the Jadallah family or take them in their cars...

In the context of the aforementioned information, one must examine the harm vis-à-vis the benefit. We have not been convinced that the special reason which requires an almost complete closure of the breadth road exists in our case. The closure of the road was designed to provide protection for some 150 Israeli residents who live in the area and use the road, yet it injures the fabric of life of thousands of protected persons.[2]

The second judgment concerns Route 443: a longitudinal road connecting the Judean foothills (Shfela) to Jerusalem through the rural area west of Ramallah.[3] Land expropriations for the purpose of building the road were reviewed in the Jam’iat Iscan Al-Ma’almoun case and sanctioned by the court on the grounds that the road was designated (inter alia) to serve the Palestinian population.[4] Yet over the years the road became a major traffic route from metropolitan Tel Aviv and the country’s central regions to Jerusalem. When Palestinians were barred from using the road in 2002, it became an entirely internal Israeli road, which runs through the OPT while serving traffic coming from Israel and traveling to Israel.

The judgment in the Route 443 case, marked by its organized logical order, was written by Justice Vogelman. Justice Vogelman goes back to basic principles: the territory traversed by Route 443 is held by Israel as a territory under “belligerent occupation”. All the powers held by the military commander of the territory originate in the law of occupation. The law of occupation obliges the military commander to protect public order and safety, including the safety of all within the territory: both the protected population and the Israelis who have settled in the territory or pass through it. It also allows the military commander to take into consideration the need to prevent attacks on Israel from within the territory. For the purpose of all the above, he may impose travel restrictions on the road. However, the power to impose travel restrictions for security reasons cannot include a power to prevent Palestinian travel on the road where the practical result thereof is the conversion of the road into an internal service road for the State of Israel. An occupying power may not build a road in an occupied territory, if its sole purpose is to serve its own national interests. The same holds true for security measures (even if they are taken for purely security related motivations) that have the same effect. International law grants power to restrict travel on roads for security reasons and also defines its limits: “An arrangement which yields this result”, writes Justice Vogelman, “exceeds the power of the military commander and is inconsistent with the principles of international law pertaining to belligerent occupation”.[5] The order preventing Palestinian travel on Route 443 was thus revoked on the grounds that it was ultra vires. Beyond requirement, Justice Vogelman also addresses the issue of proportionality. He describes the injuries to the Palestinian population’s freedom of movement and concludes that the injury is disproportionate: less injurious measures can be found and there is no justification for the severe harm to Palestinian residents whom the road was originally designed to serve.

As one can see, the issue of segregation on the roads was decided in both cases without the court relying on the principle of equality at all. In Deir Samit, the court struck a balance between security needs and the Palestinian residents’ freedom of movement and daily lives which depend on this freedom of movement. In that case, the petitioners argued that there was also a violation of equality and the state responded, yet the court chose to quote the arguments on this issue without reviewing them at all. In Route 443, Justice Vogelman found that: “In the present case, the injury, as aforesaid, is to the petitioners’ freedom of movement”,[6] and entirely ignored the arguments regarding wrongful discrimination, a faint mention of which can be found, if one looks with a fine toothed comb, in the summary he presented of the parties’ arguments.

One of the characteristics of legal discourse is the ability to break reality into particles and ignore the wider, overall picture

The court’s election to strike down segregation on the roads without referring to the charged issue of discrimination is, in my opinion, a legitimate one. The court must reach a just result and provide detailed grounds for it. It is under no obligation to examine the issue from every possible theoretical angle when a ruling may be reached using a simple, smooth road. It does not have to negotiate a legal minefield.

And yet, President Beinisch decided to slightly deviate from this tactic and added a lengthy side note on the issue of equality, discrimination, ethnic separation and apartheid.

Even as we consider that complete separation between populations traveling on the roads is an extreme and undesirable result, we must remain cautious and reserved when it comes to defining security measures taken to protect travelers on the road as separation based on unacceptable foundations of racial and national considerations. The comparison made by the petitioners between the use of separate roads for security reasons and the apartheid policy implemented in South Africa in the past and the actions associated therewith, is inappropriate. Apartheid is a grievous crime. It contradicts the fundamental tenets of the Israeli legal system, international human rights laws and the provisions of international criminal law. It is a policy of racial separation and discrimination on the basis of race and national origin. It is based on a number of discriminatory practices designed to engender supremacy by members of one race and oppression of members of another. The great distance between the security measures taken by the State of Israel in defending against terrorism and the unacceptable practices of the apartheid policy oblige refraining from any comparison or use of the dire phrase. Not every instance of distinguishing between people under any circumstances necessarily constitutes wrongful discrimination, and not every instance of wrongful discrimination constitutes apartheid. It seems that the very use of the term “apartheid” diminishes the grievous nature of this crime, which the entire international community has joined forces to eradicate, and which we all deplore. Therefore, comparing the prevention of movement by Palestinian residents along Route 443 to the crime of apartheid is so extreme and exaggerated that there was no room to raise it at all.[7]

The language is harsh and defensive. President Beinisch does not just reason why the measures implemented by Israel in the OPT do not meet the definition of apartheid, she delegitimizes the very comparison and states that it should not have been made in the first place – more than a hint to potential petitioners on such matters. The debate about whether Israel's conduct in the OPT falls under the definition of apartheid is not a negligible, outlandish debate that can be simply dismissed. It is taking place in major legal scholarship forums around the world and it is based on serious opinions. President Beinisch has a reasoned opinion on this issue, but she does not settle for expressing it. She attempts, instead, to shut down the debate and silence anyone who dares utter the word “apartheid”, at least in her courtroom. Why Beinisch chooses to silence the debate rather than engage in it requires an explanation. Arguments are sometimes silenced not because they are patently baseless, but because they touch a sore spot.

Beinisch's objection to defining Israel's conduct in the OPT as apartheid is based on the definition of this term in international law. Part of the definition of apartheid is that the discrimination between population groups is carried out in order to preserve the domination of one racial group and systematically oppress the other.[8] The defense presented by Beinisch is that the actions which allegedly cause discrimination (or distinction) between Palestinians and Israelis are not designed for the purposes of domination and oppression but for the protection of Israelis from murderous terrorism.

One of the characteristics of legal discourse is the ability to break reality into particles and ignore the wider, overall picture. It may be that such a reductionist point of view helps to accept a claim that a specific measure is taken for pure security reasons (just like a second, third and fourth purportedly unrelated measures were). However, is the picture painted by the court itself in the judgment consistent with Beinisch’s defense? In Deir Samit, the court ruled that the military commander entirely disrupted the fabric of life of thousands of Palestinians in order to protect 150 Israeli settlers, all this while alternative means for protecting the latter’s safety were available. In Route 443, the court ruled that the military commander turned a road meant to serve Palestinian needs into an internal service road for the State of Israel, while severely violating the Palestinian population’s freedom of movement. Considering at least the practical outcome, does this picture not amount to systematic domination and oppression by one group over another? Can it not be said, in the context of Israel's control over the OPT, that the purpose of the discrimination is the preservation of one group's domination over the other? Does the fact that Palestinians’ rights were given almost no weight compared to Israelis' rights not indicate, at least, that the orders reviewed by the court were issued in an environment where thought processes are afflicted by racism – an environment which has taken shape over decades and which the court itself had a role in shaping?

Perhaps the sole purpose of the above quoted paragraph from Beinisch’s judgment was to counterbalance the paragraph that preceded it so that no one could say that the Israeli court accuses Israel of racial discrimination. So writes Beinisch in the first paragraph:

Despite the understanding for the security need, the use of such security measures, which cause complete separation between different populations in terms of using the roads and deny an entire population use of a road do give rise to a sense of inequality and even an association with unacceptable motives. The result of excluding a certain population group from using a public resource is very grave. Therefore, the military commander must do everything possible to minimize situations such as these and prevent the grave harm and the feelings of discrimination that accompany it.[9]

Very cautiously, as if walking on egg shells, Beinisch alludes to the abyss below. Is it really just “feelings”? Is it really just an “association”? Maybe the hidden message is: “in two judgments we managed to locally avert the disgrace, while circumventing the explosive arguments about discrimination and apartheid. The state had better undo the remaining apartheid roads on its own, without the court having to walk this minefield once again”. And so, the demand to silence the discourse about apartheid is also directed at the state, as a warning of the dangers that lie in arguments about apartheid. If this is the message, it is more than a little naïve. So far, all we have heard were ideas about how to circumvent the judgment and prohibit Palestinian travel on the roads once again. We have not heard of a single additional road the military has opened for Palestinian travel on its own initiative, in the spirit of the court’s suggestion.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.

HCJ 3969/06 Al-Harub, Deir Samit Village Council Head v. IDF Commander in the West Bank (2009), judgment of October 22, 2009.
Ibid,. paras. 30-32 of the judgment.
HCJ 2150/07 Abu Safiya, Beit Sira Village Council Head v. Minister of Defense (2009), judgment of December 29, 2009.
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983; see also commentary on this judgment.
See above note 3, para.26 of the opinion of Justice Vogelman.
Ibid., para. 32 of the opinion of Justice Vogelman.
Ibid., para. 6 of the opinion of President Beinisch.
Art. 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).
See above note 3, para. 5 of the opinion of President Beinisch. (02) 627 1698   (02) 627 6317

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