State may destroy Bar Kochba era site for barrier

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 Masada.

That “defection” framed the debate and made it much more difficult for the state to make arguments for the wall beyond security concerns.

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.

Metzger said 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 substantially harmed.

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.

Authority 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 style.

In other words, said Nasser, there was nowhere that the state could place the wall in the area that would not substantially damage the landscape.

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.

The 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.

Sfard said 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 considerations.

Sfard added that the site was unique because most world heritage sites are important either because of the nature present or the culture.

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 area.

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 DNA.”

The state attorney mostly echoed the points made by the IDF colonel.

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 the issue.