A panel of nine Supreme Court justices on Sunday unanimously rejected all petitions protesting the route of a section of the security barrier north of Jerusalem that will completely surround 20,000 Palestinians in the Bir Naballah enclave while enabling access to the rest of the West Bank via two roads. The Bir Naballah enclave contains five Palestinian towns and villages - the town of Bir Naballah and the villages of Bir Naballah, Al-Jib, El-Judeira and Beit Hanina el-Balad.
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Bir Naballah is most familiar to Israelis as the town in which kidnapped soldier Nachshon Wachsman was held captive by Hamas in 1994. Wachsman was killed by his captors, as was the head of the Sayeret Matkal (elite commando unit) team Capt. Nir Poraz, in a failed attempt to storm the hideout.
The court, headed by retired Supreme Court president Aharon Barak, ruled Sunday that the balance between the degree of security obtained for Jewish residents of Jerusalem and nearby West Bank settlements and the harm to the quality of life caused by the route to the Palestinians was proportional.
In broad terms, the barrier surrounding the Bir Naballah enclave consists of a wall running alongside the western side of Highway 45 (a road segment linking the Begin Expressway to Highway 443) from the southern end at Beit Hanina to the northwestern tip near the Ofer military base, then skirting the eastern edge of Givat Ze'ev, Givon and Har Shmuel, and heading southeast back to the starting point at Beit Hanina.
The arrangements also include new or improved highways linking Bir Naballah with the West Bank near the village of Rafat, south of Ramallah, and linking Al-Jib with Bidu and Beit Surik to the west. These roads will not have barriers and the Al-Bib-Bidu road, which cuts through a narrow corridor linking Givat Ze'ev to the Jerusalem neighborhood of Ramot, will be sunken.
The court estimated that the barrier and the roads built on behalf of the Palestinians will require seizing 1,700 dunams of private Palestinian land out of approximately 22,000 dunams the villages own. Another 7,370 dunams of land, most of it uncultivated, will be located on the "Israeli" side of the barrier.
Among the petitioners were three representing Palestinian interests and two representing Israeli interests. The petitioners representing Bir Naballah charged that the barrier was a "noose around the necks" of the Palestinian residents in the enclave. They said it violated property rights and the ability of the petitioners to earn an income. It would also cut them off from family, friends, and economic, social and cultural services. Furthermore, it would force Palestinians with Israeli identity cards to drive through the Kalandia terminal to enter Israel, instead of reaching Jerusalem directly via existing roads, the petitioners said.
The Givat Ze'ev petitioners said the barrier placed them in an enclave linked to Jerusalem by Highway 436 and a dangerously narrow corridor. The barrier was too close to the settlement and the highway and put residents and motorists in danger, they said.
The court, however, ruled that the route met the test of proportionality, which it had devised in the landmark Beit Surik ruling. The barrier was a logical answer to the security threat posed by terrorists, it was the best alternative to achieve that end and it did so without causing a disproportionate amount of injury to the Palestinians, the court ruled.
The court also rejected an alternative route proposed by the Council for Peace and Security. The council proposed cutting off the Jerusalem "finger" extending northward to include the Kalandiya airfield within the city boundaries. The proposal called for excluding the Palestinian villages within the 1967 municipal boundaries, including Shuafat, Beit Hanina and Atarot, thus creating a contiguous Palestinian area from Bir Naballah to A-Ram and, at the same time, reducing the Palestinian population of Jerusalem.
The court ruled that the "increase in security achieved by preferring the government plan over the Council for Peace and Security plan is in worthy proportion to the [additional] injury to the rights of the Palestinian residents incurred in the government plan."