Analysis: Barrier route's day in court

Tzufin is not the only case in which the state lied to the High Court of Justice.

By DAN IZENBERG
June 21, 2006 00:34
4 minute read.
fence awesome 298 ap

fence awesome 298.88 ap. (photo credit: AP)

Defense Minister Amir Peretz is reportedly angry at Col. (res.) Danny Tirza, whom he fired on Monday as head of planning for the Separation Barrier Authority, because the High Court of Justice found last week that he had lied to it about the reasons for the route of the barrier around the Jewish settlement of Tzufin, northeast of Kalkilya. In 2002, when residents of two neighboring villages, Azun and Nebi Elias, petitioned against the route of the barrier, which veered far off to the north and east of the settlement's houses, Tirza insisted that it had been determined for security reasons only. Three years later, however, the human rights organization Hamoked: Center for the Defense of the Individual petitioned again, charging that the route had been determined not just to protect the settlers of Tzufin, but also to enclose vast empty tracts of land within the settlement's jurisdiction that did not even have planning approval. In its response, the state admitted that the petitioners were right. In its decision on the Hamoked petition, Supreme Court Justice Aharon Barak wrote that "in the petition before us, we have discovered a very grave development. The full picture was not put before us in the first petition [of 2002.] The court rejected that petition on the basis of information which was only partially true." This decision has apparently put Tirza in hot water with Peretz. But Tirza's real problem may not be that he lied to the court about some of the reasons for the Tzufin barrier route, but that he got caught at it red-handed. This is the inevitable conclusion that one comes to after reading a study, "Under the Guise of Security," published several months ago by the B'tselem and Bimkom human rights organizations. According to the highly detailed study, there are at least 12 instances in which the route of the fence was determined in order to enable the future expansion of Jewish settlements rather than for pure security considerations. These settlements include Tzufin, Alfei Menashe, the Jerusalem neighborhood of Neveh Ya'acov (regarding an area adjacent to the neighborhood, outside the municipal boundary), the Modi'in Illit bloc, Rehan, Sal'it, Oranit, Ofarim, Ariel, Kedumim, Gevaot and Eshkolot. One could almost say there was something disingenuous about the court's anger at Tirza for not telling the whole truth about Tzufin. The fact is that the High Court has already handed down a landmark ruling in favor of petitioners in the case of Alfei Menashe. There, too, it was obvious that the route of the barrier was determined in order to enclose several undeveloped areas inside the city's jurisdiction, including some which did not have an approved outline plan. The state's determination to include these empty tracts on the "Israeli" side of the barrier meant that five Palestinian villages, with a total population of 1,100, were cut off from the West Bank. Even though the court ordered the state to dismantle the barrier and rebuild it in such a way that the Palestinian villages would be on the West Bank side, it did not address the question of whether it was legal for the fence to protect non-existent settlers. Nor did it criticize the state, or Tirza, for not telling it the whole truth about the reasons for the route chosen. In the meantime, the court is yet to come to grips with its most difficult challenge on this issue - the question of the Modi'in Illit bloc. The bloc consists of four settlements: Modi'in Illit, Hashmonaim, Matityahu and Menora. The four contiguous communities include a total population of more than 32,000, the vast majority of whom live in Modi'in Illit. The state and private developers have big plans for the bloc. Surrounding the built-up areas on the west, north, northwest, east and south are no less than five major development projects, only some of which have been approved by the planning authorities. The biggest is Matityahu East, a neighborhood of Modi'in Illit that is to include 3,000 housing units. The barrier encloses virtually all of these neighborhoods, including those that have not been approved by the planning authorities and those where construction has not yet begun. The petitioners in these cases have charged that the route of the barrier was determined not only for security reasons but for reasons of settlement expansion. The court faces a particularly difficult situation in Matityahu East, where private construction companies have begun building apartment buildings, and apartment owners have even moved into some of them even though there is no outline plan for the neighborhood and the buildings were constructed without permits. It will be interesting to see whether the court will find that the state did not tell the whole truth about the reasons for the route of the barrier in Matityahu East and other empty neighborhoods as it did in Tzufin. Or will the court close its eyes to that fact if the state insists that security was the only factor in determining the barrier route? Perhaps we will then know whether the court reprimanded Tirza in the Tzufin petition because he did not tell it the whole truth or whether it was because the state openly admitted it, thus leaving the court no other choice.


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