The High Court of Justice heard on Wednesday two petitions that asked for court
intervention to prevent the West Bank security barrier from being built in a way
that could destroy the shared Palestinian-Israeli Battir cultural landscape site
as well as an ancient Bar-Kochba stronghold.
The emergency petitions were
filed recently by Friends of the Earth’s Middle East division and the village
council of Battir, southwest of Jerusalem.
The Israel Nature and Parks
Authority took FOEME’s side against the IDF and the rest of the government to,
among other things, protect a Bar-Kochba era outpost as important as
That “defection” framed the debate and made it much more
difficult for the state to make arguments for the wall beyond security
When state attorney Chani Ofek tried, in one of three slideshow
presentations by the parties, to show how the plan for the wall would mitigate
harm to the landscape, Justice Metzger rebuked her attempt.
that she could not convincingly claim that there would not be significant harm
to the landscape when the Authority experts were saying the landscape would be
He added, “Now there is no wall, afterwards there
will be a wall,” in explaining concisely why the state could not argue that it
was not changing the landscape significantly.
Mostly, Metzger said, the
state could present arguments about why the wall was necessary to protect the
old Jerusalem-Tel Aviv train-line in the area and why the particular placement
of the wall was the right balance for achieving that goal.
expert Ze’ev Hacohen was given special permission to argue beside Authority
attorney Nirit Aharon (normally only attorneys get to speak) and emphasized the
importance of the ancient Bar-Kochba stronghold which he said would be harmed by
the “utterly deadly” proposed path of the wall.
Hacohen, and the
Authority in its response to the court, said that the Bar- Kochba site was equal
in importance to Masada.
Besides the Authority’s unexpected stance, the
rest of the parties played their standard parts.
Attorney Jihad Nasser
for the Battir village council noted that the site was a cultural award-winning
site which was covered entirely with vegetation and the area’s unique landscape
In other words, said Nasser, there was nowhere that the state
could place the wall in the area that would not substantially damage the
Next, he explained that the land and agricultural way of life
in the area could only be preserved by allowing free movement to the farmers in
the area for them to regularly check the flow and impact of water.
wall would prevent the farmers from caring for the vegetation and would force
them to give up their way of life, Nasser said.
Nasser also questioned
the state’s motivations, saying that the state was placing the wall there as a
political land grab and not for security reasons.
The court bristled at
this suggestion and told Nasser that while he was free to debate what was the
right balance of culture versus security concerns, that it was clear that the
state had “authentic security concerns” and questioning the state’s motivations
would not help.
Attorney Michal Sfard, representing FoEME, noted he had
submitted several expert reports regarding the site’s importance, in addition to
the support for this idea from the Nature and Parks Authority.
that the court’s starting point for the case should be accepting the premise
that the site is important and protected under international law regarding
cultural sites, and then introducing and weighing other
Sfard added that the site was unique because most world
heritage sites are important either because of the nature present or the
The Battir site, he said, is unique because it would be only one
of 25 sites which contain both of those components.
Next, Sfard described
three components to the damage to the site expected by extending the wall in the
He discussed the physical damage from the wall, the damage to the
completeness of the landscape, which has its essence in being part of a whole
and the continuing of the thousands- year-old agricultural way of life, which he
said the wall will end.
Sfard and Nasser also questioned whether the wall
will be needed at all in a few more years if the newer and more efficient
Jerusalem-Tel Aviv train is built.
In some scenarios, at that point, the
old train route, which is very circuitous and already only runs around eight to
ten times per day, may be fazed out.
The court recognized this issue in
questioning the state about whether the short-term security concern truly
overrode the long-term harm to the landscape, particularly where the security
concern may evaporate if the train becomes defunct.
An IDF colonel from
the civil Administration of Judea and Samaria presented the security arguments,
including protecting the train as well as being part of the overall planned
security fence for encircling the Jerusalem area.
The colonel noted that
there has been a spike in violent incidents in the area since around the time of
Operation Pillar of Defense last month.
He also said that in 2008, the
IDF just barely stopped an attack on the train and that investigations have
found that two recent convicted murderers entered Israel to perpetrate their
crimes via the currently unwalled Battir area.
Next, the colonel said
that the IDF had already balanced security concerns with other values such as
the needs of the local population and cultural concerns.
He said that the
IDF has learned through many previous court decisions what the court’s concerns
were and that addressing these concerns is now “part of the IDF’s
The state attorney mostly echoed the points made by the IDF
The court did not rule on the spot and its hard questioning of
both sides suggested that the justices were still in play on a final decision on