un vote on fence, from the scotsman...

un vote on fence, from the scotsman
http://thescotsman.scotsman.com/opinion.cfm?id=796012004

Court ruling is about politics not justice

GEORGE KEREVAN



CONSIDER the following two events and ask yourself if they are related. On Friday, the International Court of Justice at the Hague ruled that Israel’s security fence with Palestine - aimed at keeping out would-be suicide bombers - was illegal. This was seen as a major political victory in Arab and Palestinian quarters. On Sunday, a working day in Israel, a terrorist bomb filled with metal shrapnel was deliberately exploded near a crowded bus stop in Tel Aviv. This was the first successful terrorist attack inside Israel in many months and was claimed by the al-Aqsa Martyrs Brigades, an off-shoot of Yasser Arafat’s Fatah movement. Just coincidence, or did the provocative court ruling help stoke the fires of hatred that saw innocent people in a bus queue cut down by a bomb wrapped in metal bolts?

I should point out that the court has no immediate jurisdiction in the case, and its decision is not binding. It exists as an off-shoot of the United Nations, basically to mediate in disputes between member states. For instance, it has just dealt with a legal wrangle between Germany and the tiny principality of Liechtenstein. However, in the Israeli case, the UN General Assembly, by a majority vote, had asked the court for an advisory opinion on the legality of the security fence, basically as a political swipe at Israel. As has happened before, the court could have said it was too busy with other matters to get involved and a number of countries, including Britain, sensibly urged it not to give a ruling lest it inflamed the situation in the Middle East. However, a majority on the court decided otherwise. Why? While it is true that the international judges are technically independent of their own governments and are normally very experienced in legal practice, they are appointed by votes on the UN General Assembly and the Security Council. In other words, they have a political pedigree. For instance, the Russian, Vladlen Vereshchetin, began his career in the Stalinist days of the 1950s. Judge Abdul Koroma, of Sierra Leone, did his basic law degree in the Soviet Ukraine during the 1960s and has been one of his country’s top ambassadors. The Jordanian judge, Awan al-Khasawneh, is another career diplomat.

When the court began its review of the security fence, it received legal submissions from a number of countries, which it duly spent time examining. Predictably, these were from unbiased, disinterested democracies such as Cuba, North Korea and Syria. There was even a submission from Sudan, denouncing Israel’s lack of regard for human rights. Presumably this was intended as a serious document and was not a practical joke. I ask because the Sudanese government has not had a lot of time lately to reflect on human rights law as it has been too busy murdering 10,000 of its citizens in Darfur because they are black; burning and bombing 376 villages; and forcing about 1.2 million of its people to flee the country. I look forward to the court’s reflections on Darfur should the Third World dictatorships, which form a majority on the General Assembly, ever get round to asking for such an opinion.

Having decided to examine the case for and against the security fence, you might think the court would seek detailed evidence rather than rely on what was submitted to it. You might think it would call its own witnesses and examine whether or not the fence was any use in reducing terror attacks. But you’d be wrong. It merely listened to what was submitted to it by the various political interest groups. In fact, most of its factual information came from an internal UN dossier which largely ignored the terror issue - 20,000 separate attacks on Israeli citizens or settlements since the start of the intifada - and instead concentrated on the geographical line of the fence.

As a result, the American judge, Thomas Buergenthal, dissented from the majority decision. OK, I know that was predictable, but Buergenthal’s written dissent is actually very sympathetic to the Palestinians. However, he makes the valid point that Israel has a legal right to self-defence and the only way you can test if the fence is a disproportionate response to terror is by examining the level of violence directed against Israeli civilians, and deciding whether those parts of the fence that have been constructed have abated the threat. By refusing to examine this crucial evidence, the court more or less willed its verdict.

That said, does the ruling make legal sense? Occupying powers are rightly constrained in what they can do by various Geneva Conventions and UN resolutions. In particular, they are banned from expelling local populations or confiscating land wholesale. This is the nub of the legality, or illegality, of the security fence. It does not run along the so-called Green Line, which was the ceasefire line when the state of Israel was founded. Instead, it is well inside the Green Line, leaving tens of thousands of Palestinians, and a big chunk of the West Bank, behind the fence. The court ruled this was de facto annexation, designed to define a new, permanent Israeli border. It also said the seizing of Palestinian land to build the security fence, and the separation of local Palestinian populations by the barrier, constituted a breach of international human rights law outlawing confiscations and population expulsions.

These are reasonable points. However, the Israelis have always been adamant that the fence is temporary and does not define a permanent border. The court chose not to believe them, which seems to me a blatantly political, rather than legal, decision. In terms of precedent, the Israelis removed a similar fence in southern Lebanon when they withdrew from that country. It is also common knowledge that the building of the fence was opposed tooth and nail by the Sharon government when it was first promoted by the Israeli Left. The fence came about only after persistent demands for it by the families of those Israeli citizens (nearly a thousand of them) killed by suicide bombers. I do not doubt that there are those in Israel who see the fence as a defendable border. But even more are convinced that annexing yet more hostile Palestinians will only bring forward the day when the state of Israel has a majority Arab population, given the high Arab birthrate. So, in principle, the fence is perfectly legal.

However, that still leaves the issue of proportionality: has the particular line of the fence been drawn in such a crude manner that it infringes on the property and human rights of Palestinians? The answer is a resounding yes. Who says so? The Israeli Supreme Court says so. Last month, that court - on which Arab and Jewish judges sit - ruled that a 30-kilometre section of the fence north-west of Jerusalem imposed undue hardship on local Palestinian communities and must be rerouted and the Palestinians paid compensation. That is real justice.

Meanwhile, buoyed by the political gamesmanship in the Hague, the terrorists have struck again. Had the International Court been brave enough to follow the Israeli judges and accepted the raison d’être of the fence but called for its rerouting, it would have done two important things: undermined the terrorists and helped persuade both Israelis and Palestinians to get back to the negotiating table. Instead, expect more shrapnel bombs.