This week's High Court decision found a weak link in the separation fence, ruling that the Defense Ministry's concerns do not supersede the human rights of the Palestinian inhabitants.

1. Dressing the Land in Concrete

On Monday afternoon, Netzah Mashiah, director of the separation fence project, said that most of the objections to it are political. In other words, that they come from Israelis and not necessarily from Palestinians.

Mashiah was sitting in a narrow room in a makeshift building in the backyard of the Defense Ministry in Tel Aviv. There is an ironic contrast between the temporariness and asceticism of Mashiah's office and the massive dimensions and permanence of the project he is overseeing. Not even two days later, on Wednesday morning, the High Court of Justice ruled that the petition submitted to it had substantial justifications and ordered that the route of the fence be altered. Mashiah, along with other official spokespeople for the Defense Ministry, said that they would obey the judges' decision.

Before the High Court issued its ruling, senior Defense Ministry officials did not hesitate to assert that the fence is a metaphor for the struggle against the occupation and that it would benefit (!) the Palestinians. Their explanation: The growing barrier (with a planned length of approximately 600 kilometers at a cost of NIS 8 or 9 billion) would reduce the Israeli military presence in the Palestinian territories, do away with checkpoints and improve the security situation so that Palestinians would be able to resume working inside Israel. Yes, they acknowledged, the planned route does take in Palestinian lands, but the planners came up with ideas aimed at minimizing the hardship: 100 gates to allow access to agricultural lands, 30 checkpoints, including several terminals for the passage of merchandise. As the Israeli technocrats see it, the fence is designed to be effective and to get up and running quickly; its impact on the daily lives of the Palestinian population, and on their feelings and human dignity - is dwarfed by the objective the planners have set for themselves.

And this is precisely the weak link through which the High Court found a place to intervene: It ruled that the considerations of the Defense Ministry bureaucrats do not supersede the human rights of the Palestinian inhabitants.

Justices Aharon Barak, Eliahu Mazza and Mishael Cheshin essentially gave full - some would say excessive - backing to the state's argument for the necessity of the fence along the determined route. The justices accepted the state's claim that the fence is being built solely for security reasons and rejected the petitioners' argument that there was a political component in the determination of its route. The justices also gave precedence to the expert opinions from IDF officials regarding the route of the fence over the conclusions of the experts (including high-ranking reservists) whom the petitioners presented.

The justices found a basis to intervene in just one aspect of the decision-making process regarding the fence's construction: the planners' indifference to the needs of the residents of affected Palestinian villages. "Proportionality" is the relevant legal term here. The justices found that "a proportional relationship does not exist between the degree of the harm to local inhabitants and the security benefit emerging from the construction of the separation fence along the route determined by the military commander." And further: "The route separates inhabitants from their lands and harms them in a severe manner while violating their rights according to international humanitarian law and Israeli administrative law."

The fence epitomizes Israel at the start of the 21st century. It is a massive, crude and destructive response to genuine distress. It embodies the modern Israeli spirit: the power to get things done, financial resources, good intentions and apathy all wrapped up in one. The fence basically amounts to an admission by the state that it is unable and unwilling to reach an agreement with the Palestinians. It is clothing the land in a dress of concrete and cement in a way that the pioneers, who sang this popular song 70 and 80 years ago never imagined in their wildest nightmares. It is a declaration of Israeli society's intention to close itself off behind ghetto walls, to give up on a connection with its neighbors and to disregard, because of an excessive sense of power, their needs and troubles.

2. The Texture of Life

Two days from now, the first terminal in the separation fence is due to be inaugurated. It is one of 30 checkpoints that will be built along the length of the fence, where the passage of Palestinians from one side to another can be monitored. In the eyes of the planners, this is the height of technological sophistication: A temporary structure with magnetic gates and biometric identification equipment, accessways, inspection counters and baggage conveyor belts.

The process planned for the inspection points is meant to distinguish between "good Palestinians" and "bad Palestinians" (the copyright on this linguistic usage belongs to the Defense Ministry). The "good" ones will be issued magnetic cards that will enable them to get through the terminal as quickly as possible; the "bad" ones will be detained for more inspection and questioning. The "bad" ones are those who are included on Shin Bet lists or those whose magnetic cards set off the sophisticated scanner and start it beeping.

Netzah Mashiah sounds proud and satisfied as he displays the new terminal: It looks like any international terminal - yellow and gray predominate in the color scheme - where the guiding principle is to keep up a constant flow of people, with minimal human contact. Thus, the Israeli terminal is supposed to make the Palestinians forget their situation. Several more terminals, with a capacity to handle 1,000 vehicles a day, are also due to be opened. Vehicles will not be able to pass between Israel and the territories, but a system of roads and tunnels, which the Defense Ministry planners are already working on, will enable Palestinians to reach the terminals, unload their goods (or cross through the transit point) and then make use of a fleet of trucks, buses and taxis that will be waiting on the Israeli side.

The gates and terminals are the Israeli answer to the harsh international criticism triggered by the construction of the fence along the route chosen by the government. In the cold terminology of the Defense Ministry, the attention that is supposed to be given to Palestinian hardship is referred to as "the texture of life." As they say, "From the first planning stages, and also in wake of Palestinian complaints, we've taken the texture of life into account."

The High Court decided this week that the "texture of life" section in the Defense Ministry's plans is not sufficient. It acknowledged the system of gates and special procedures that the Defense Ministry designed and built in order to ease life for the Palestinians, but said that this was not adequate. Twenty agricultural gates are currently in operation, through which Palestinian villagers can get from their homes to their fields. The gates are opened twice a day, morning and evening, for just 30-45 minutes each time. A Palestinian who wishes to return home during the day is pretty much out of luck.

In this the High Court upheld the arguments of Israeli human rights organizations and foundations that were established to fight the route of the fence. B'Tselem argued that the fence was meant to be used to annex territory to Israel and to exert pressure on Palestinians to abandon their lands. According to its statistics, 25 percent of Palestinians who wish to pass through the fence are defined as "prevented from entering." By its calculations, the fence in its current route is infringing on the rights of over 800,000 people, including 200,000 Palestinian residents of East Jerusalem, who will be cut off from the cities of the West Bank. B'Tselem also argued that 28,000 dunams of Palestinian land was confiscated for the purpose of building the fence and that approximately 850,000 dunams were caught between the fence and the Green Line. The human rights organization quoted Defense Ministry director-general Amos Yaron's remarks at a meeting at Hebrew University several weeks ago, when he described the route of the fence as a preset blockade: namely, that it allows the Palestinians conditional freedom of mobility, but the moment a security need arises, the fence can be closed within five minutes. The High Court did not accept the petitioners' claims that the part of the route under discussion was determined by political rather than security reasons, but it warned that the fence must not be constructed for political reasons and that it cannot be used for the purpose of annexation. "The objective of the fence cannot be to outline a political border," the justices ruled.

The government now must figure out how to reconcile the High Court's position and its decision to keep Ariel and other settlements deep in Palestinian territory to the east of it (Kedumim, Karnei Shomron, Imanuel) inside the fence. The route of the fence in this area has not yet been brought before the High Court's consideration and, as of now, it's unclear whether the state will be able to persuade the justices that political considerations did not play a part in its delineation. This week (before the High Court handed down its ruling) in Netzah Mashiah's office, they were saying that this area is home to 50,000 Israelis and just one Palestinian family.

3. Assaulting the Beacon

Before the government starts looking for ways to get around the High Court decision, it should get well acquainted with the reports being received by the Foreign Ministry about the anticipated outcome of the International Court of Justice's ruling on the matter of the fence, which is expected next week.

The presumption is that the international tribunal's ruling will not be a comfortable one for Israel and that Palestinians are gearing up to translate it into a major diplomatic campaign. Information piling up in Jerusalem indicates that the Palestinians will call for an emergency session of the UN General Assembly and of the Security Council to get them to pass resolutions against Israel. The government has decided not to argue its case in The Hague and the other day some of its spokespeople even expressed the fond hope that the High Court ruling would render intervention by the International Court superfluous. But this hope will surely be dashed. The High Court also cited the international conventions to which Israel is obligated, which are supposed to protect human rights in occupied territory.

Israel's response to the anticipated diplomatic assault from the Palestinians and the Arab countries will be a publicity campaign to explain why the fence is necessary for security reasons. The PR will also highlight Israel's readiness to move and dismantle fences when possible, as it did with Egypt and on the Lebanese border. Israel will argue that the Palestinian Authority is exploiting the ruling in The Hague in order to avoid complying with the international community's demand that it institute reforms in the structure of its security forces and exert stricter control over them.

In the Foreign Ministry, they've been saying lately that the Israeli diplomatic effort will seek to portray the High Court as the beacon of justice and enlightenment (though they neglected to explain how this view can be reconciled with assaults on the court by right-wing ministers).