Wednesday, October 27, 2010

Trafic Statistics and Inernational Law

Last weekend a few newspapers in Israel published articles about the notorious Route 443, citing IDF sources who claim that, since the route was reopened to the use of Palestinian cars, in accordance with the Israeli Supreme Court decision, only five Palestinian cars, in average, use it each day (Haaretz in Hebrew, JPost in English). According to the item, sources in the IDF feel frustrated with the fact that 60 million NIS were invested in following the Supreme Court's ruling, mainly in fitting security measures to the mixed use of the route, and they doubt that such an expense was worth the result.
I have to say that, at first, I was pretty surprised by the fact that army officials dare challenging a Supreme Court decision, let alone for its financial cost. The item, that appeared simultaneously in too many media sources to be a reporter's initiative, suggest an IDF criticism directed at the Court for not putting the right price tag on the freedom of movement, or on the free movement itself. 
But, putting aside the troubling notion of an army that claims to know better than to Supreme Court how to balance human rights, isn't there a point to the IDF's claims about balancing expenses with results? 60 million NIS is not a small amount, and proportionality has always been a factor in international and constitutional law. Could it be that the Court really should have not issued a decision that forced the government to spend so much in order to protect so few?
I think that the answer is clearly no, for two reasons. First, the fact that only five Palestinians are using Route 443 every day is due, more than anything else, to the restrictions the IDF is imposing on them while trying to get on and off that road, in the form of checkpoints and blockades. If the IDF itself is the force that is preventing more common use of the road, it simply cannot claim that little use is why the Supreme Court's decision is flawed. Moreover, since the main legal justification of the land appropriations involved in making Route 443 into a highway in the first place was its benefit to local Palestinian population, it seems that alongside the IDF's duty to protect Israeli cars on the road it is also obligated to make it usable to Palestinian cars.
Second, not every financial consideration can be relevant when debating human rights. Although balancing expenses with results should always be a consideration in putting legal obligations on governments, it's clear that not every financial expense should influence the courts' deliberations. For instance, when a court needs to decide whether a government has a duty to provide a free service to its citizens (e.g. free education, free access to water, free health care)  it's relevant to consider how much such a service would cost to the government (and tax payers) before reaching a decision. The courts should definitely acknowledge the limited resources available for allocation by their orders, and not impose a financial obligation that they find unreasonable. But these financial, utilitarian considerations can only be taken into account when they are intrinsic to the right involved, so much that it is the actual right itself. The right to free education, for instance, is the government's duty to provide educational services free of charge. Since education costs money, the right to free education is, in fact, the government's duty to pay for its citizen's education. Whether or not such a right exists should depend, to an extent, on how much that duty would cost.
Freedom of movement, however, is different. The duty it imposes on the government is the duty to refrain from blocking a citizen or resident's movement. This duty is not expensive. The 60 million put into allowing Palestinians free travel on Route 443 did not pay for the governments efforts in refraining from blocking the road. Rather, it was put into balancing the free movement - the right that the Supreme Court found to be illegally infringed - with other important interests, such as security and protection of others (let alone illegitimate interests of Israeli settlement). In fact, rather than enabling free movement, the amounts spent by the IDF were put into security measures that restrict that right. Without even going into whether these restrictions are legitimate or not - they are clearly not intrinsic to the freedom of movement itself. The cost, then, is not the right the Supreme Court ruled on. Therefore, it cannot be a relevant consideration in deliberating the protection of the right itself.
To put it in different words, if someone in the IDF thinks that 60 million NIS is what it costs to follow the Supreme Court's decision, it is up to the IDF to reconsider the measures it decided on. deciding on human rights should be left to the court.

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