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Analysis: Beit Jala case against separation wall potential watershed

Aug. 21, 2014 8:45 P.M. (Updated: Aug. 24, 2014 11:42 A.M.)
By: Raffaele Piccolo
Raffaele Piccolo holds a Bachelor of Laws and Honours Degree of Bachelor of International Studies from the University of Adelaide, Australia. He currently resides in Ramallah, Palestine. Follow him on twitter.

In 2004, the International Court of Justice delivered an opinion in which it unequivocally stated that the route of the Wall (AKA "the Separation Wall," AKA "the Security Fence," AKA "the Security Barrier," AKA "the Apartheid Wall") violated international public law.

Shortly after the opinion was delivered it was observed by former Palestinian foreign minister Nasser al-Kidwa that:

This advisory opinion represents a momentous and pivotal development. It has brought international law -- which for too many years has been sidelined and undermined -- back to the forefront of the dialogue concerning the question of Palestine and the Israeli-Palestinian conflict. And, while the advisory opinion may be considered a victory for the Palestinian people, it is also a victory for all the peoples of the region and for the future of that region.

It is a watershed event that has the potential to elevate the situation in the Middle East to a new level -- one that is based on international law and the ideals of peace and reconciliation. At the same time, the International Court of Justice's ruling is without a doubt a victory for all those who believe in the rule of law and constantly strive to uphold that law and the authority and integrity of the United Nations system.

Unfortunately with the tenth anniversary of the ICJ opinion having just passed it is obvious that the situation in Palestine has hardly changed for the better.

The ICJ opinion did not bring an end to the construction of the wall. Instead many Palestinians have had to painstakingly learn to adjust their living arrangements accordingly; restricted to non-access to lands, confiscation of property, destruction of homes and restricted access to Jerusalem for work, school and/or religious purposes.

Given the lack of improvement in the plight of the Palestinian people, despite the delivery of the ICJ opinion ten years ago, one would expect that others would similarly come to question the reverence with which it is held. However for the most part, this does not appear to be the case. For example, reports on the situation in Palestine seem to make an obligatory reference to the ICJ opinion despite the obvious lack of utility it has for the situation on the ground.

The reverence and hype that still surrounds the ICJ advisory opinion is misplaced. Instead it should be directed to a case that is currently before the Israeli Supreme Court (sitting as the High Court of Justice). This case centers on the Palestinian city of Beit Jala and its local monastery and convent. This case holds the potential to do what the ICJ case failed to do, it holds the potential to bring about an improvement of the situation for Palestinians at the ground level.

Beit Jala is located in the Cremisan Valley and just south of Jerusalem. The city is home to historical and biblical sites and ruins from the respective Roman, Byzantine, Islamic, and Crusader periods. Given its proximity to Bethlehem (1.8km east of Beit Jala) a large proportion of the city's approximately 14,000 reference population is unsurprisingly Christian.

Since Oct. 2002 the Israeli military as issued more than 16 military orders, confiscating land and constructing the Wall to the west of Beit Jala. The sum effect of the military orders is that approximately 2808 dunums (or 62 percent) of the city's agricultural land will be lost.

A further 1,216 dunums (or 71 percent) of the city's open space area could be gone. Finally up to 1,003 dunums (or 95 percent) of the city's forested land may no longer be accessible to the people of Beit Jala.

The main rationale for the construction of the wall near Beit Jala is the same as it has been elsewhere; security. Israel argues that the purpose of the wall is to safeguard the Israeli Jewish population from attack and in particular suicide bombers.

In this in particular Israel drew attention to the regular shootings from Beit Jala to Gilo that occurred during the Second Intifada. Whilst there is no evidence that such a threat currently exists the argument goes that the wall is necessary so as to provide for the security of the populations of Gilo and Har Gilo.

In addition to the obvious loss of agricultural lands and livelihoods for the landowners the Salesian Convent submitted that the wall would impinge upon their ability to practice their faith and deliver low cost education to the 400 students that attended its co-located school.

In particular the convent drew attention to the fact that the wall would disconnect it from the monastery with which it has close ties. The convent was also concerned that the wall (which would be placed on three sides of the school) would lead to the area in effect becoming a military route and hence cause major interruption in schooling. The wall would also limit the opportunity of the school to expand into the future. Finally the convent was concerned that the wall would disconnect it from its lands, a major source of income for its work.

The Salesian Monastery in turn similarly drew attention to the disconnect that the Wall would cause between itself and the convent. Further, it submitted that it would inhibit the ability of local Christians to freely access the monastery for religious instruction.

Despite their opposition to the wall, Beit Jala attempted to find a middle ground. In attempt to provide for the needs of both parties they submitted an alternative route for the wall for consideration. A route which they believed would allow Israel to satisfy its security desires and them to maintain their access to their lands. The alternative route was supported by the Council for Peace and Security, an Israeli organization comprised of former Israeli military personnel committed finding a peaceful solution to the conflict.

Nevertheless the court found in favor of the Israeli military on April 24, 2013. They concluded that the proposed route was the least harmful to Beit Jala and that the harm caused was proportionate to the security benefit to be obtained for Israel (Gilo and Har Gilo). Much of the discussion that underpinned the decision was based upon what the Court found to be short comings in the proposed alternative route.

In particular, the court found one of the major shortcomings of the alternative to be that the fence would come within 200 meters of Gilo. Even though, as the court acknowledged, that in urban settings the fence was constructed much closer to Israeli settlements.

Not disheartened by the outcome and committed to exhausting all options the people of Beit Jala brought a challenge before the Israeli Supreme Court (sitting as the High Court of Justice).

The case came before the court in Jan. 2014. Unlike the Lower Court, this court placed greater weight upon the opinion of the Council for Peace and Security. The court gave the state until April 2014 to provide reasons as to why it had insisted on its particular route rather than the alternative provided by the local landowners and the monastery and convent. In the mean time the court ordered that the construction of the wall be frozen.

The court met again in Aug. 2014. After reviewing the submissions of the state the court directed that it was necessary for Israel to take into account the alternative options for the route of the Wall that had been presented, in particular that would which allow the monastery and convent to remain connected with Beit Jala. The State has until Sept. 4, 2014 to provide an answer.

This does not bring the fight to an end. As counsel for the convent explained:

The case is not yet complete, and a final decision has not yet been given. However, the decision of the court is an indicator of the interest that the court shows in a matter concerning religious freedom and freedom of religion regarding monasteries.

Despite the lack of a definitive answer, it is this case, in contrast to the ICJ advisory opinion, for which the world should wait with baited breath. The decision of the ICJ was instrumental in grabbing the world's attention as to the unfair, discriminatory, and ultimately illegal behavior of the state of Israel.

However, we now know that all the attention that the opinion grabbed and continues to grab is in part underserved. It is underserved as it did not cause Israel to respond or change its policy on the construction of the wall. It did not cause the international community to move beyond rhetoric in improving the plight of the Palestinians. Unfortunately it did not lead to much.

In contrast the efforts of the people of Beit Jala may bring about change on the ground. If the decision is favorable it may actually improve their situation. This case could provide for that watershed moment in the Palestine-Israel conflict that the ICJ opinion failed to deliver.

It is this case that deserves the international community's attention and reverence.

The views expressed in this article are the author's and do not necessarily reflect Ma'an News Agency's editorial policy.
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