from Haaretz

What really influences the High Court

 

By Amira Hass

There's no way to know what really influenced the High Court justices when they decided last week to cancel 30 kilometers of the separation fence route that cuts through Palestinian areas northwest of Jerusalem. The naked facts presented to them in the petition by Mohammed Dahle? Or the voices around the facts, like the upcoming decision by the International Court of Justice in The Hague, or the photographs of elderly people clutching at trees and boulders while young soldiers scatter them with tear gas.

We've grown up and know that judges, even justices of the highest court in the land, are not disconnected from their surroundings. The legal processing of the facts that are delivered to them is never done in laboratory conditions. They watch TV, maybe even the BBC. Hague, shmague, but as justices at the international level they have to deal with the possibly legal arguments of that court. Maybe Sharon's conclusion, that their ruling presents Israel in all its glory as a democratic state, also guided their decision. But they are also private individuals, who know that their judgments will be examined in legal publications and international conferences.

Therefore it is impossible to know the weight of each consideration - the pure facts on the one hand and the events around them on the other. Several petitions against the fence's northern route were presented in the past by other lawyers. Dahle himself tried, through an appeal to the legal committee, to change the route in Kafr Aqab, whose residents are Jerusalemites but who are imprisoned behind the wall and the Qalandiya checkpoint. The petitioners were all rebuffed. Maybe the facts that were presented convinced the justices that the proper balance between security needs and Palestinian human rights was properly maintained.

But it is also possible to assume that the criteria for "reasonable harm" are what changed over the past year because of the "environmental" elements of the mounting demonstrations and protests, the international media attention to the matter, and The Hague. Every demonstration, every protest, every organized tour along the fence including the tours organized by the Peres Center or the supporters of the Geneva initiative, every appearance by the women of MachsomWatch at a locked gate in the separation fence created a noisy focus in Israeli society. It was noise in the silence of the uniform consensus. No matter how marginal, how distant, how remote, every noisy focus creates small ripples of public attention, and the ripples expand and broaden. Some are bound to have reached the awareness of the justices.

In recent months those noisy focal points have strengthened and multiplied in waves. More elements in Israeli society have begun to ask questions about the route. The justices of the High Court may not have questioned the necessity of the fence nor demanded that Israel build it on the Green Line, on Israeli land instead of Palestinian land. They only related to the harm caused by the fence to individuals, and not to the harm done to their rights as a collective and to the physical infrastructure of their sovereignty.

Nonetheless, given the current forces at play, the positive significance of the decision cannot be disregarded, both with regard to the residents of the petitioning villages and to the chances of success for the campaign against the route in the future. The decision, even though it cannot satisfy those who really are opposed to the Israeli occupation of the West Bank, is a signal that popular struggles can bear some fruit.

Joint Israeli-Palestinian protests and joint Jewish-Arab actions create in Israel particularly loud "noise." Every anarchist risking being shot by an Israeli soldier has parents and cousins; every activist at MachsomWatch has relatives and colleagues at work; every architect from Bamakom, the non-profit organization that provided expert counsel to the petitioners regarding the route of the fence, has a partner and contractors with whom he or she works. Thus broadens the circle of Israeli cognizance of the impossible reality created by the separation barrier. Thus broadens the recognition that there is no "proportionality" to it. Thus changes the environment in which the justices operate.

That's why it was particularly sad to discover in the weekly E-mail message of "the system against the apartheid wall" - a grassroots Palestinian operation - that in their report on the June 26 protest against the separation wall at A Ram, which the police dispersed using extraordinary amounts of force, there was no mention that in addition to the Palestinian demonstrators from the neighborhood affected by the wall there were quite a few Israelis.

It was not the first demonstration attended by Israelis, and Israelis are deeply involved in several ongoing activities against the separation barrier - and not only protests and demonstrations. The exclusion of Israelis can be presented in a negative light: In Israeli society, people are ready to listen to Jewish Israeli arguments (particularly when presented by people with military records) about the Israeli harm being done to the rights of the Palestinians, but they are not ready to listen to Palestinians.

Was it anti-colonialist aversion that made the Israeli participation in the demonstration disappear? After all, this can be presented in a positive light: The joint protest has broken lines that separated people on national and ethnic grounds and created different circles of consensus. The joint protest has brought universal values to the front of the stage, values that military-technologist terminology and ideologies of blood and land are trying to bury.