Scale down that wall, Mr. Sharon
Israel's high court insists on reducing neighborly harm

by Helen Schary Motro
Sunday, July 4, 2004

In telling its government last week to shift part of the barrier it is building along the West Bank, the decision from Israel's Supreme Court rang out.

"Our task is difficult. We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror.

"But we are judges. When we sit in judgment, we are subject to judgment. . .. There is no security without law."

With those words, Chief Justice Aharon Barak struck down as impermissible the directives of his government in its fight against terrorism. The high court ordered Ariel Sharon's government to reduce the harm imposed on Palestinians.

For the perpetrators of Sept. 11, the concepts of due process, equal protection -- even the rule of law itself -- are laughable phrases devoid of meaning.

But as Barak said, "A democracy must sometimes fight with one hand tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties."

His words were not directed at the right of detainees in Guantanamo to have access to the American courts, nor at the right of an American classified as an enemy combatant to have access to counsel and a hearing.

But Wednesday's decision by Israel's Supreme Court in the case of Beit Sourik Village Council v. the Government of Israel was as historic in its affirmation of the rule of law in the face of terror as were the U. S. Supreme Court decisions in Rasul v. Bush and Hamdi v. Rumsfeld two days earlier.

There is no parallel between the Israeli Palestinian struggle and the al Qaeda attacks upon America. What can be equated is the method by which both the American and the Israeli judicial systems ruled that their respective societies must conduct their response.

As a desperate reaction to the seemingly unstoppable barrage of terror attacks upon Israeli population centers, Israel began erecting a separation barrier to prevent Palestinian infiltration. But if even the partially constructed fence has achieved its purpose of decreasing attacks, the court found that its proposed route wreaks havoc with the lives of Palestinians through whose lands it passes.

The petition filed by eight Palestinian villages challenging a specific section of fence was joined by several residents of an adjoining Israeli town who claimed it would destroy decades of good neighborliness.

Within minutes of the court's decision, silence fell all along the construction sites of the fence as the ignition was turned off in every single bulldozer. The burden now falls on the government to devise a less intrusive route, even, as the court said, if it do so at the cost of some security.

Just as I was proud as an American to hear Justice Sandra Day O'Connor avow that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," so was I equally proud as a person living in Israel to hear Barak declare: "The obligations of the military commander, pursuant to the humanitarian law enshrined in the Hague Regulations and the Fourth Geneva Convention, are not being satisfied."

These decisions exemplify that separation of power and judicial review are precious and potent tools of a democracy. They reiterate that the executive cannot both act and expect to be the arbiter of its actions.

The American and Israeli high court decisions result in the democracies having to fight with one hand behind their backs, but they make the body politic all the more healthy.

Barak is "convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit." He is right.

Helen Schary Motro, an American writer and lawyer teaching at the Tel-Aviv University Faculty of Law, is the author of the forthcoming "Maneuvering between the Headlines: An American Lives through the Intifada."

©2004 San Francisco Chronicle