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."
The trials differ in that The Hague's verdict is nonbinding but potentially carries heavy moral weight while the Israeli court's ruling will be binding. That, in effect, could have a physical impact on the barrier's course and composition.
The existing and planned 406 miles of twisting and winding barrier consist of electronic fences, walls, ditches, and other obstacles.
The network already separates tens of thousands of Palestinians from their lands, jobs, and schools. When completed, it promises to affect the lives of 875,000 Palestinians, or 38 percent of the West Bank's population, according to the B'tselem human rights group. Eighty-one communities will be surrounded on all sides or trapped between the barrier and Green Line, according to B'tselem.
The human rights lawyers' case is not aimed at the barrier's very existence. It targets the fact that it was built in the West Bank rather than along the Green Line border that separated Israel and the West Bank before the 1967 Middle East war. The resulting damage to Palestinians, Sfard says, violates provisions of international law that prohibit harming property, movement, and livelihood of people under occupation.
"Life is not easy for the Palestinians [affected]," wrote Mr. Blass. "But, he added, "we cannot forget that life on Aza Road in Jerusalem is also not easy," he wrote of the site of a cafe bombing. "Sipping a cup of coffee in the Moment Cafe in Jerusalem can result in death."
Sfard, arguing on behalf of the Israeli human rights group HaMoked, concedes that he has qualms about his own role in the proceedings. If the court proves reluctant to collide head on with the Sharon government, he fears becoming a window dressing, helping to offer a perhaps dubious stamp of legality before or amid the Hague deliberations
"My question is whether I become an accomplice to a system that in most cases rejects the petitions," he says.
HaMoked and the Association for Civil Rights in Israel are asking the court to issue an injunction forcing the state to explain why the barrier is not being built along the Green Line and they want the court to nullify the army's new regimen of passes and permits for Palestinians in the area between the Green Line and the barrier. They stress the same area is being left fully open to Jews and foreign tourists, creating what HaMoked says is an "apartheid" situation that amounts to a "crime against humanity" under the Rome Declaration that legislated the International Criminal Court.
The state counters that it is the Palestinians who are imbued with racism.
"The [military] orders were promulgated after the Palestinians carried out hundreds of lethal terrorist attacks of a clear racist character against Israel and Israelis and therefore they stem from real security considerations that necessitated distinguishing between Palestinians and other human beings transiting in the area," says the state response.
"Fence for Life," a group that has joined the state's response, says in a statement that court intervention could delay or thwart the barrier's completion, "thus gravely endangering the security and well- being of Israeli residents."
The justices said at the close of Monday's session that they would decide within days whether to issue the injunction.