Analysis: Nothing short of highway robbery

By DAN IZENBERG
If the High Court of Justice were interested exclusively in the rule of law and the search for justice, it would have no choice but to uphold the petition to overturn the army order barring Palestinians from using Highway 443. But the army says it is too dangerous to allow Israelis and Palestinians to travel on the same road. And therein lies the court's dilemma. Tens of thousands of Israelis use Highway 443 to get from the coast to Jerusalem and vice versa. No matter how explicit the law is, the High Court in this case cannot stray too far from the interests of the Israeli public, especially at a time when it has more than its share of enemies. The court knows that Israelis who rely on Highway 443 would not easily accept a ruling that causes them such inconvenience. There is no question that according to international humanitarian law and Israeli judicial decisions, the section of the highway that passes through the West Bank and was built on land expropriated from Palestinians must serve the local Palestinian population. When a Palestinian petitioned the High Court in 1982 against the expropriation of land for the future highway, the state maintained that the road would be built to benefit the Palestinians by replacing an existing narrow and dangerous one. In its verdict on that petition, the court wrote, "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." If the petitioner were correct in charging that the purpose of the road was not for the public good (of the military or local civilians) but for Israel's needs, he would be right in his legal position that such a purpose was alien to what the military commander must consider. Even though it prevents Palestinians from using the road, the state does not deny that it was built for them. Instead, it argues that the situation changed after the beginning of the second intifada and it was no longer possible to allow them to use the road because of the terrorist threat. The state's representative, attorney Michal Tzuk, also denied that the state had conspired all along to expropriate Palestinian land for a superhighway meant to serve Israelis. Beinisch accepted that statement at face value. Beinisch also indicated that it was too late to turn the clock back now, after the highway had become so important to Israeli motorists. That argument could be a circumstantial one. In other words, Beinisch could be saying that circumstances had changed over the years and that Israelis had become so dependent on the road that it could not be taken away from them. She might also have meant that the petition was tardy, an accepted legal criteria for rejecting a petition, no matter what its arguments. However, it would be hard to justify that reasoning in this case because although the army began restricting Palestinian movement on the road in 2002, it did not issue a formal order to do so until four years later. The court also seemed to stress the importance of the fact that the state was planning to build a new, high standard road inside the West Bank as a substitute for Highway 443. Neither she, nor the other members of the court, paid much heed to the fact that building a new road in the West Bank meant expropriating more Palestinians land in addition to the land already expropriated for Highway 443. The state believes that since it is too dangerous for Israelis and Palestinians to travel together on Highway 443, the Palestinians should not use it. International law and previous High Court decisions indicate the opposite conclusion. This is the dilemma the court faces, further complicated by its concern over how the public responds to the decision it makes.