By NITSANA DARSHAN-LEITNER
Last week's High Court ruling opening part of Route 443 to Palestinian traffic has set off a firestorm of criticism in Israeli political circles. In a 38-page decision, the court ruled that by keeping Palestinians off the road, which winds through post-1967 lands on the northwest approach to Jerusalem, the army unfairly discriminated against local Palestinians who should be allowed to use it, fostering among them a "sense of inequality and even associations of improper motives."
The court ordered the army to find "another solution" that would avoid the "sense of discrimination" that the closure entails. While the ruling may at first sound both reasonable and fair, it is in practicality neither and will result in the deaths of additional Israelis.
FIRST, THE history. The IDF's security concerns are far from theoretical. Beginning with the second intifada in 2000, Palestinian terrorists found in 443 an easy target for shootings and other deadly attacks. In just eight months, from December 2000 to August 2001, six Israelis were murdered, and many more wounded, on that very road. The villagers who would use the road today are those who knowingly harbored these terrorists and provided them with an easy escape route. This is why the road was closed to Palestinian traffic in the first place.
Although the Palestinians have failed to mount deadly attacks on 443 since the road was closed to them in 2002, it is not for lack of trying. In the last few years, the IDF has recorded hundreds of violent attacks, from throwing rocks and Molotov cocktails to shootings, along Route 443. Just last month, the army defused a massive roadside bomb along the road. Even with the closure, 443 remains one of the most vulnerable highways to terror.
Second, the road itself. Route 443 is no side street. It is one of the two major arteries connecting Jerusalem with the rest of the country. For many of the more than 100,000 residents living along the stretch from Modi'in to the northern neighborhoods of Jerusalem, it is the only way to get to and from work each day. Although a small part of the road goes through post-1967 territory, the people who use the road are not "settlers," but ordinary Israelis, Arabs and Jews, living their lives.
A great deal of Israelis' sense of day-to-day safety rests on the ability of the army to keep the Palestinians away from the daily lives of ordinary Israeli citizens. The court may consider this discriminatory, but there are good reasons we feel uncomfortable seeing green-and-white license plates on the road beside them: It is from these cars, licensed and registered with the Palestinian Authority, that the drive-by shootings come - like the one that killed Meir Chai, 45, a father of seven, outside Shavei Shomron last week; or like the attacker who popped out of such a car two weeks ago and stabbed Ayala Margalit, 22, as she stood at a bus stop in Gush Etzion. The court's ruling will dramatically undermine the sense of physical security of thousands of Israelis each day.
BUT THE third, and possibly most important, context is that of the High Court's other rulings concerning Judea and Samaria in the last few years. Through a long string of decisions, the court has repeatedly and incrementally cut away from the government's ability to safeguard Israelis from Palestinian terror - whether by repeatedly rerouting the security fence, always to Israel's disadvantage, or by limiting the abilities of soldiers to defend themselves or by interfering with the demolition of the homes of Arab terrorists.
The court claims that these rulings are based on what is known as the "reasonability" test, in which the justices assert the right to overrule any government action they deems unreasonable. When the court started using this test in the 1990s, critics warned that it would inevitably lead to judges imposing their ideology on the country, and replacing their judgment for that of elected officials - a slap in the face to democratic rule, according to which it is the voters, not the unelected judges, who ultimately decide whether their leaders are doing a reasonable job. The 443 ruling proves, again, that the critics were right.
As an attorney for some of the the respondents in the 443 petition, 120 residents of communities like Modi'in, Hashmonaim, Givat Ze'ev and Ramot, and in several other security related petitions to the High Court, it is clear to me that it is always Israel that loses, step by step, control over land whose future would rightfully be left for the parties to negotiate over - effectively creating facts on the ground that will prejudice the outcome in favor of the court's conspicuously ideological bent. The ruling is another step in a prolonged process in which the High Court, salami-style, predetermines the country's future borders, without negotiations, without respect for the democratic process.
BY INSISTING that the feelings of equality of a small number of Palestinians trump the feelings of physical security of a large number of Israelis, it is the court that is fostering a "sense of discrimination," not the IDF. And though the court's decision asserts that the IDF "went beyond its authority" in preserving 443 as an access road for Israelis traveling to and from Jerusalem, it is the court that has gone beyond its authority, in intervening in reasonable judgment calls that are the job of elected officials to make. Even if one argued that since the Palestinians don't vote in Israeli elections, sometimes the courts need to get involved in protecting them from IDF abuse, this should only be done in the most egregious cases.
Now the judges have ruled, and we all know who will pay the price: Some Israeli on his or her way to work, targeted by terrorists who will take advantage of their new, easy access to Route 443, and make their quick getaway.
Blood will be shed, and then, one way or another, the road will be closed again. Why go there?
The writer is the director of Shurat Hadin - Israel Law Center.
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