In another five months, most of Highway 443, which links Jerusalem to Ben-Gurion Airport and Tel Aviv, will be open to Palestinian traffic for the first time in a decade, the High Court of Justice ruled Tuesday in a two-to-one decision.
The ruling triggered furious objections from right-wing MKs and organizations, who warned that it would lead to more terrorist attacks and more killings of Israelis.
The decision came in response to a petition filed by 25 Palestinians living in six villages adjacent to the road. They were represented by attorney Limor Yehuda of the Association for Human Rights in Israel (ACRI).
The ruling applies to a 14-kilometer stretch of Highway 443 located inside the West Bank. The rest of the 25.5-km. road is located in Israeli territory.
The prohibition on the use by Palestinians of the West Bank section of the highway has been a major source of accusations that Israel is conducting a policy of apartheid in the West Bank.
"I was not convinced that the sweeping denial of the right of protected persons [i.e., Palestinians living in the West Bank under belligerent occupation] to use the highway, under the particular circumstances in this case, and especially given that the highway is primarily used for 'internal' Israeli use, properly balances the harm to human rights and security needs," wrote Justice Uzi Fogelman. "The additional security achieved by the total prohibition is outweighed by the total denial of the right of protected persons to travel on the highway, which was [originally] planned for their needs, and paved in part on land expropriated from them."
Fogelman also wrote that according to international law, the military commander did not have the right to expropriate privately owned Palestinian land on behalf of residents of Israel, who were the overwhelming users of the road.
But Fogelman stressed that the decision did not imply that "the military commander must grant free and undisturbed access by the Palestinian villagers to Highway 443. He is allowed to take necessary measures to safeguard security in accordance with the situation at any given time."
Fogelman was supported by Supreme Court President Dorit Beinisch. Justice Edmond Levy disagreed with his colleagues. He said although it was true that the sweeping prohibition on Palestinian traffic on Highway 443 was disproportional under today's circumstances, the court should have given the government more time to devise a new arrangement for travel on the highway. He wrote that the government had indicated it was prepared to consider new rules that would enable Palestinians to use the road in one form or another.
ACRI warmly welcomed the court's decision.
"The High Court of Justice acknowledged today the illegality of the separation system manifested by Route 443," Yehuda said. "We urge the IDF to implement the ruling as soon as possible, enabling freedom of movement for Palestinians: a right that has been severely infringed for nearly a decade."
Right-wing spokesmen said they were angry at the court ruling. "Once again it has been proven that the security of Israeli citizens is worth less than the traveling comfort of the Palestinians," National Union MK Uri Ariel said. "At the same time, however, the ruling obliges the army to allow Jews to travel on roads currently open only to Palestinians, such as the Dolev-Beit Horon road. It is inconceivable that while the High Court meets the Palestinians' demands and enables them de facto free access to every road in the West Bank, Jews are forced to travel on certain roads only."
Meanwhile, Nohi Eyal, chairman of the Legal Forum for the Land of Israel, said, "It is inconceivable that the judges should assume the right to take responsibility for the security of Israeli citizens without being trained or authorized to do so. It is a shame the High Court did not learn a lesson from the incident this week in which a girl was burned on the Neguhot road, which was opened to Palestinians following a High Court ruling."
Eyal called on the state to demand a new hearing of the petition before an expanded court.
Highway 443 was closed to Palestinian traffic in 2002, during the second intifada, after a series of terrorist attacks against Israeli vehicles in which six people were killed. Until then, the road had served as many as 55,000 Palestinians living in several villages along the length of the highway, including Beit Sira, Safa, Beit Ur a-Tahta and Khirbet el-Misbah.
Fogelman wrote that the history of the road helped shape his decision. In the early 1980s, the military commander expropriated land belonging to Palestinian living in the villages to expand Highway 443. When the expropriation was challenged in court, the state explained that the road was being improved on behalf of the Palestinian villagers who used it. At the same time, it did not deny that the road would also be used to link Jerusalem to the coast.
The court rejected the petition but made clear it would have accepted it but for the fact that the army was expropriating the land on behalf of the Palestinians.
"The military government is not permitted to plan and build a road system in territory held in belligerent occupation if the aim is to provide a service road for its own country," the judges wrote, adding that had the petitioner's allegation that the land was being expropriated to serve Israel's interests been correct, the court would have rejected the expropriation.
Although for some time afterward the road was open to both Israelis and Palestinians, 10 years have gone by in which the Palestinians have been barred from using it, Fogelman wrote. Given the history of the road, he rejected the state's argument that since the petition had been filed in 2007, the Civil Administration had built an alternative system of roads to serve the villages and link them with Ramallah.
"The complete removal of the Palestinian residents from a highway that was meant to serve them in favor of Israeli traffic, which primarily provides a link between the coast and Jerusalem - in these special circumstances, the fact that there is an alternative road system is not sufficient," Fogelman wrote.â€¢