Two trials will contest new Israeli barrier

Israeli human rights lawyers have fired off the first salvoes of a battle to thwart the construction of Israel's separation barrier deep inside the occupied West Bank.

The project "cannot be carried out inside an occupied territory without violating international law," attorney Michael Sfard told Israel's Supreme Court this week during a two-hour opening session.

It came just two weeks before the International Court of Justice in The Hague is due to deliberate the barrier's legality at the behest of the United Nations. Israel says the network of fences and walls is critical to security and is the only way to put an end to relentless suicide bombings on buses, in malls, and in cafes by Palestinians who have infiltrated Israeli towns over the past three years.

The court has a long history of legitimizing policies of deporting Palestinians and demolishing their homes, although legal experts say that in recent years international law has played a larger role in its decisionmaking. This time it is under unprecedented international scrutiny because of the case in The Hague.

Mr. Sfard says he is hoping that a "globalization" of international legal norms in recent years, partly spurred by the activity of the international criminal court, will have an impact on how the Israeli court handles the barrier.

"We live in a different world and I think Chief Justice [Aharon] Barak knows that," Sfard says, citing writings by Mr. Barak that it is preferable for the Israeli Supreme Court to tackle tough issues rather than let them be heard in international courts.

Moreover, Israeli analysts say that Barak and his colleagues have a chance now to influence the Hague deliberations. "It would be an informal influence," says Yuval Yoaz, legal writer for Haaretz." If they issue an injunction, or otherwise demonstrate they are taking this matter very seriously then the Hague court would take into account the deliberations here."

David Kretzmer, a Hebrew University Law professor, says of the Israeli court's historic role: "If you look at the actual decisions, the main function until recently has been to legitimize everything the government authorities wanted to do. But in many cases in which there was no ruling, the government stepped down and changed its stance. The court has had some mitigating influence."

The state concedes harm is being done to tens of thousands of Palestinians, and on the eve of the deliberations began stressing that parts of the route will be changed to lessen the damage. "Everything is dynamic," said Malkiel Blass, the attorney for the state.

Mr. Kretzmer declines to predict how the court will respond to its challenge. He says that "courts everywhere in times of crisis are reluctant to rule against an executive which claims it is taking action to protect the population from violence or war. If the court rules in a certain way, and there is violence, it could be seen as being implicated in it." On the other hand, he says, "the Israeli Supreme Court is sensitive to its place in the international community. It knows its decisions are read, and it wants to show it is acting according to proper legal norms."

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