The Road to Injustice

Arriving home in Israel after a semester teaching in New York, I got in a taxi at Ben-Gurion Airport and asked the cabbie to drive me to Jerusalem. "Take the main road, not Route 443," I said. Route 443 runs through the West Bank. When it was transformed from a country road to a highway in the 1980s, Palestinian land was expropriated under the legal fiction that the project's main purpose was to serve Palestinian residents of the area. Since 2002, however, the Israeli army has barred Palestinians from using it. I take 443 only when I must to cover a story.

"I don't like 443 either," the cabbie said. "It's dangerous now that the Supreme Court made them let Arabs use it. " He pronounced "Supreme Court" like a curse. Such antipathy is common among Israeli right-wingers, who regard the Court as a club of bleeding hearts. I prefer a calm driver, especially on a road into the mountains, so I didn't argue politics with him.

Nor did I point out his factual errors: The army hadn't yet opened the road to Palestinians. That's planned for today. Even then, the military will allow so little access to the villagers living near the road that they will have scant reason to use it. All this is in keeping with the Supreme Court's ruling last year, which affirmed Palestinian rights under international law -- and then rendered that affirmation nearly meaningless by allowing the military a free hand in setting new "security arrangements" for the highway.

The fight over Road 443 is representative of the history of Israel's occupation of the West Bank since 1967. The highway is mentioned in the first detailed proposal for Israeli settlement and annexation of parts of the West Bank. The road's expansion was approved as part of plans for settlement in the Jerusalem area. Route 443 can be seen as a long, narrow settlement in itself: a construction project designed to "create facts" and prevent an Israeli withdrawal. The project first violated Palestinians' property rights, then their freedom of movement. The Supreme Court, supposed guardian of human rights, has shown how weak it is when dealing with the politics of occupation.

To tell the story of the road properly, I must tell it out of order, beginning with Chapter II: In the early 1980s the Israel Defense Forces began expropriating Palestinian land to upgrade an existing road leading from Israel's coastal plain though the West Bank hills to the northern outskirts of Jerusalem and the south edge of Ramallah. A group of Palestinian landowners turned to Israel's Supreme Court, arguing that the road was meant to serve Israel. Therefore, they said, the expropriation violated international law on occupation. The army responded that the road would serve the needs of local Palestinians, rendering the expropriation legal. The Court accepted the army's stance. As eminent Israeli legal scholar David Kretzmer concluded in his 2002 book, The Occupation of Justice, "In its decisions relating to the occupied territories, the court has rationalized virtually all controversial actions of the Israeli authorities."

In the court's defense, it didn't know about Chapter I: In July 1967, just after Israel conquered the West Bank, Labor Minister Yigal Allon submitted a plan to the Cabinet for the area's future. Allon argued that to make Israel defensible, it should annex and settle parts of the West Bank. One piece of the Allon Plan was widening the "Jerusalem corridor" -- the part of pre-1967 Israel that connected Jerusalem with the coastal region. To do that, Allon wrote, Israel should keep all the land up to an existing road running north of the "corridor" -- a road roughly following the route that would become 443. While the government never officially adopted the Allon Plan, the blueprint shaped settlement policy for the next decade.

Looking through the settlement files of then-Defense Minister Shimon Peres in the IDF Archives, I found a settlement proposal from the spring of 1976, including a "new access road to Jerusalem … via the Beit Sira junction … to Givon junction." New settlements would be built along the road. A document from June 29, 1976, notes that a ministerial panel had approved the road. The numeric designation "443" came later. When the state told the Supreme Court the road was meant to serve Palestinians, it covered up the facts. When famed activist Justice Aharon Barak wrote his ruling, he took the easy way out: He upheld principles of international law, while avoiding a face-off with the executive branch over a policy of settlement that enjoyed wide public support.

This is disappointing, but not shocking. Courts are loath to set national policy. In a long historical view, their most daring actions are likely to be only a step ahead of public opinion, and a step behind on-the-ground activism for change.

The outbreak of the second Intifada in September 2000 opens Chapter III. Along Route 443, Palestinians attacked Israeli vehicles. By that December, an Israeli had been shot dead on the road. Gradually, the army cut off Palestinian use of the highway by blocking side roads from the villages. In theory, if the highway had really been built for local residents, the army could have taken the opposite tack -- ordering Israelis not to use the road, just as it ordered them not to enter West Bank cities. But Road 443 was a thoroughfare linking Jerusalem with settlements, with the bedroom town of Modi'in inside Israel, and with Tel Aviv. To get to Ramallah, the nearest major town, Palestinians now had to travel tortuous back roads. The ban continued even as Intifada violence faded into a traumatic memory.

Meanwhile, the mayors of six Palestinian villages along the road, represented by the Association for Civil Rights in Israel, asked the Supreme Court to order the army to let them use the road. Last Dec. 29, the Court finally ruled. In principle, it said, the army couldn't convert a highway through occupied territory into a "service road" exclusively for Israeli citizens. The army had five months to make arrangements to let the villagers use 443. At first glance, it seemed that the Court had taken a strong stand. In an e-mail to me that day, though, attorney Limor Yehuda, who represented the villagers, warned me not to celebrate too quickly. The ruling, she said, "leaves a little too much discretion to the military commander" of the area.

That was lawyerly understatement. The army, it turns out, is allowing Palestinians to get on 443 at just two points, where they'll have to pass through checkpoints and be searched. At those locations and two others, they'll be able to exit. Route 443 is a divided highway, and no arrangements have been made for getting to the other side, so those entrances and exits actually only serve one side of the road. Palestinians still won't be allowed to take the highway to the end and turn toward Ramallah. To get there, they'll have to use a side road Israel opened last year -- but which has collapsed in spots since then and was still closed this week.

Earlier this week, the place where the side road from Beit Sira meets the highway was still blocked with concrete cubes. Workmen were putting the finishing touches on a guard booth. A brand-new gray concrete pillbox stood guard over the junction. When the blocks are removed, drivers will be able to turn right, drive a few kilometers up the highway to another village, and take the side road to Ramallah -- if the side road is repaired. Highway 443 will remain the low road to injustice.

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