Dangerous Separation: An Ecosystem and Way of Life in the West Bank at the Brink of Destruction

Author:Elana Katz-Mink
Position:J.D. Candidate, May 2014, at American University, Washington College of Law
by Elana Katz-Mink*
Residents of the Palestinian village of Battir practice an ancient
agricultural technique dating back to the Roman Period a few
miles from Jerusalem, Bethlehem, and the Green Line.1 Agri-
cultural terraces, which were developed to take advantage of natural
mountain springs, cover 2,000 hectares around the village where resi-
dents cultivate produce for their livelihoods and sustenance.2 Over the
centuries, the terraces have increased the land’s fertility, preserving the
area’s agricultural heritage and environmental integrity.3
Israel is currently planning to build the separation wall on the edge
of Battir, separating farmers from their fields.4 If the wall is constructed,
residents face the specter of abandoning their way of life and severely
restricting their movement, while at the same time the hydrology and
ecology of the area will become severely imperiled. 5 In early December,
the Israeli Supreme Court (ISC) issued an interim decision ordering the
Israeli Defense Ministry (IDM) to submit plans for an alternate route
for the wall within ninety days, indicating that the Court is not willing
to let Israeli’s security interests override consideration of environmental
impacts and the rights of Battir’s residents.6
Construction of the separation wall began in 2003 to address Israeli
security.7 Israel legitimized construction of the wall through a series of
decisions beginning with Beit Sourik Village Council v. The Government of
Israel.8 In Beit Sourik, the ISC ordered portions of the wall rerouted due to
minimal Israeli security gains as compared to the disproportionate impact
on Palestinian rights and interests.9 Despite this order, the court held that
the construction of the wall was legally authorized based on its interpreta-
tion of belligerent occupation laws that supported Israel’s efforts to secure
Jewish-Israeli rights against Palestinian terror attacks.10 The International
Court of Justice (ICJ) then issued an advisory opinion contradicting the
ISC, holding that construction was contrary to international law because:
(1) Israeli settlements were a breach of international law; (2) the wall was a
‘fait accompli’ future border;11 and (3) construction impeded Palestinians’
basic rights to work, health, education, and adequate standards of living.12
The ICJ determined that Israel had to cease present and dismantle past
construction, and make reparations for construction-related damages.13
Israel rejected the ICJ’s opinion and has ruled in contravention on numer-
ous occasions, clinging to the Beit Sourik precedent.14
In 2007, Battir brought suit against IDM to change the wall’s pro-
posed route to protect agricultural areas.15 IDM argued that the wall was
necessary for security, but that a gate would allow Battir residents to access
their fields.16 Battir then filed a claim with the ISC, but suspended it early
this year as the Finance Ministry considered their request to reroute the
wall around the agricultural lands.17 The Finance Ministry advisory com-
mission has not yet ruled,18 but construction plans were halted by the ISC,
which ordered the state to quickly respond to the appeal.19
While many attempts to stop or reroute construction of the wall have
failed, two nearby villages have succeeded in stopping construction of
other portions.20 The Palestinian village of Bilin won its challenge before
the ISC in 2007.21 In Bilin, residents, along with Israelis (Arabs and Jews
from Mevasseret) and other activists, held weekly demonstrations that
drew considerable global media attention.22 There, the ISC determined
that the wall was not being built for security reasons.23 The court accepted
an alternate route for the wall and ordered the dismantling of what had
been built.24 In a similar case, the Palestinian village of Wadi Fuqin won
its legal battle on environmental grounds.25 There, the neighboring Israeli
community understood that the wall would deprive Wadi Fuqin of its
agricultural livelihood and threaten security by breeding hostility between
Palestinians and Israelis.26 In response, 300 Israeli residents from neigh-
boring Tzur Hadassah signed a petition against construction.27 Using evi-
dence that the wall would cause hydrological and ecological destruction
to the area, together with the petition, Wadi Fuqin succeeded in its appeal
to the ISC and successfully stopped construction.28
In continuing its legal battle, Battir has several options. Arguments
based on human rights and the effectiveness of the wall have not proven
persuasive to the ISC.29 Both the Wadi Fuqin and Beit Sourik outcomes
demonstrate that support of Jewish-Israeli neighbors can help secure a
positive outcome. Unfortunately, Battir does not have such a clear ally
nearby, though residents could seek support from residents of Aminadav.30
Nonetheless, Battir has an environmental avenue open following publi-
cation of a paper by the Israel Nature and Parks Authority (INPA) con-
demning construction of the wall in Battir and finding significant threats
to hydrology and ecology in the area.31 Further, INPA emphasized the
wall’s potential destructiveness to the area’s unique ag ricultural practices
and livelihoods.32 Based on INPAs findings, Battir’s best hope for legal
success rests on evidence that the wall will threaten Israeli water and
ecological security. In a water-starved region, this legal basis may prove
extremely persuasive as Israel is forced to confront how its actions affect
one of its biggest security concerns: access to fresh water.33
The ISC’s interim decision ordering IDM to produce a plan for an
alternate route is a temporary win for the residents of Battir. The decision
includes a requirement for IDM to consider the environmental impact on
the area in its alternate route plan.34 UNESCO’s expedited consideration of
Battir’s application to be a World Heritage Site—recognizing the rarity of
Battir’s agricultural terraces—bolstered its case in the ISC.35 This month’s
decision suggests that the ISC is no longer willing to blindly give more
weight to IDM’s invocation of national security over environmental and
justice issues. No matte the final outcome, it is increasingly clear that con-
struction of the wall will bring environmental degradation, hydrological
destruction, and further insecurity to both sides. The ISC’s order for study
of ecological implications of construction36 indicates that the strength of
environmental objections to the wall’s constr uction is growing despite the
absence of historically important Jewish-Israeli participation.
*Elana Katz-Mink is a J.D. Candidate, May 2014, at American University, Wash-
ington College of Law. continued on page 70