A disgraceful ruling

The U.N. legal arm, the International Court of Justice, recently ruled that the Israeli security fence, built to curtail terrorist attacks that have killed and maimed thousands, is illegal under international law. This decision is a travesty and represents one of the worst examples of the profound politicization of international law and U.N. hatred of Israel.

The ICJ ruling was in response to a request for an “advisory opinion” by the U.N. General Assembly — perhaps the most anti-Israel institution on the planet, with the exception of the PLO and its terrorist allies. The court could, and should, have refused to answer the question, both because of its obviously political nature and because the judges lacked a proper factual record. Given the fact that it was asked to rule on a critical aspect of the most difficult, controversial and longstanding international dispute the world faces, the court should have remained silent. To paraphrase French President Jacques Chirac, the court missed a good opportunity to shut up.

In any event, the judges ruled against Israel 14 to 1, with the American judge casting the lone dissenting vote. The majority opinion was slipshod and probably the most biased pronouncement ever to be issued by the ICJ. The court’s discussion of the facts was one-sided, at best. For example, in describing Israel’s creation in 1948, the court asserted that the Arab states rejected the U.N.- approved partition of Mandate Palestine because it was “unbalanced.” In fact, of course, history teaches that those states refused to recognize the partition because they rejected the notion of a Jewish state at all ?- at least in the Middle East. In addition, the court effectively ignored the attempts by Israel’s neighbors to wipe it from the map, as well as the decades of vicious terrorist attacks it has suffered.

The court’s legal analysis was similarly defective. It focused entirely on the hardships the fence has caused for the Palestinian population, even though the relevant international legal norms, including the Geneva Conventions, fully support the deployment of measures to ensure the safety of Israeli soldiers and civilians. Some balance must be struck between those two imperatives, but the court put its thumb on the Palestinian side of the scale. In addition, the court’s opinion is almost entirely bereft of any discussion of the actual practice of states, which is the single most important indication of what international law requires. Here, of course, state practice clearly demonstrates that many countries, when confronted by a dangerous insurgency, have resorted to the building of fences, ditches and other obstacles. Indeed, the United States has been doing just that in Iraq.

Without doubt, however, the ICJ’s worst folly was its assertion that the inherent right of self-defense, which is based on centuries-old norms of customary international law and explicitly recognized by Article 51 of the U.N. Charter, is not available to Israel in this case because it is not being attacked by a sovereign state. Not only is this view not based on the language of the U.N. Charter or international practice, but it flies in the face of post-September 11 Security Council resolutions that expressly acknowledge the U.S. right to engage in self-defense against al Qaeda.

Overall, the opinion brings discredit to the court and once again demonstrates the extent to which international law continues to lose its legal character and has become an instrument of statecraft by anti-American and anti-Israeli forces. Israel is fully justified in ignoring this decision, and the United States should support it in that decision.