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Feb. 22, 2004
Editorial: Moot court
Just as the previous bombed-out bus was being unveiled in the Hague for display outside the International Court of Justice, another suicide bomber murdered eight Israelis, possibly more, on another Jerusalem bus. There could be no more acute reminder of the necessity of the fence that the UN has already declared illegal, a pronouncement the ICJ seems set to rubber-stamp.
The most appropriate answer the court could give to this latest atrocity is to follow the advice of the many nations that called on it not to issue an opinion, because doing so would harm the prospects for peace, the standing of the court, or both.
The European Union collectively (on behalf of 25 nations), and Canada, the Czech Republic, Germany, the Netherlands, United Kingdom, and the United States individually, among others, have specifically asked the ICJ to abstain from rendering an opinion. All of these submissions should be seen as life preservers thrown to the judges, begging them to save the court from the politicization that has befallen so many international bodies.
The UN General Assembly has long ago lost any sense of shame at its systematic ganging up against one nation, a democracy under siege by terrorism. Instead of running to Israel’s defense, as its charter would indicate, UN members have, more often than not, "joined the jackals," as the late Daniel Patrick Moynihan described the process in 1981.
More than it must rule on Israel’s security fence, the court must decide whether to allow itself to be captured by a certain bloc of dictatorships — as were the General Assembly, the UN Human Rights Commission, the Durban Conference, and even the contracting parties of the Geneva Convention — or whether it will wall itself off from the politicization that has been inflicted upon those other bodies.
It will not be easy for the judges, even with substantial backing from member states, to resist the temptation to rule on such a controversial international issue. We fear they will succumb, and compound the travesty by ruling against Israel.
The Palestinians and the host of Arab nations behind them have gone so far as to argue that the onslaught against Israel does not constitute a "military attack.‘ (If that is the case, why do they otherwise routinely call terrorist attacks ’military operations"?) These countries claim that Israel cannot invoke its right to self-defense under Article 51 of the UN Charter, as if the murder of 1,000 Israelis over the past 40 months were a sort of nuisance crime.
This is risible. Other countries, however, have argued that Israel does have a right to defend itself, and even to build a fence, but not on "Palestinian territory." Actually, the Geneva Convention explicitly recognizes the right to build defenses even in occupied territories, if militarily necessary. But the West Bank and Gaza are not occupied parts of another state; they are disputed territory whose last internationally recognized sovereign was the British Mandate.
Israel’s legal grounds are strong, but its logical, moral, and political grounds are even stronger. The logical place to put the fence is not along the 1949 cease-fire boundary (the Green Line), but eastward, so the maximum of Israelis would be on the Israeli side, and the maximum of Palestinians would be on the Palestinian side. It is possible to argue where the best line lies, but the Green Line is not it.
The Palestinians argue that, because the fence is not on the Green Line, it is a land grab. But what they are essentially arguing is the right to fulfill their total territorial demands without giving up terrorism or making peace with Israel.
The fence is entirely a consequence of the Palestinian resort to terrorism and refusal to negotiate peace. The international community has lectured Israel for years on the need to trade land for peace. If the court sides with the Palestinians, it would not only be negating Israel’s rights under the charter, but saying that Israel must give up land for terrorism, leaving nothing to negotiate.
Israel’s government will do what it must to secure the lives of its citizens. This is its most basic obligation. If the court now chooses to rule against Israel, it will do nothing to impede the progress of the fence. But it will debase itself as a source of authority, legitimacy, and respect.
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