The Magazine

The Moral The Moral Low Ground

Judges from a variety of unsavory regimes complain about Israel's fence.

Jul 26, 2004, Vol. 9, No. 43 • By MAX BOOT
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THE WORLD COURT'S ruling that the West Bank barrier is illegal and must be torn down has been greeted in Israel with a giant shrug of the shoulders. The court's opinion is only "advisory," and any attempt by the United Nations to enforce it is sure to be vetoed by the United States. The barrier--which the court tendentiously referred to as "the wall" (most of it is actually a chain-link fence)--will continue to go up. Yet the ruling is not without significance, insofar as it contributes to the growing impression around the world that, as the London Independent put it, "the Palestinians have the moral high ground."

They might lose some of that high ground if anyone actually bothered to examine the World Court a little more closely. The International Court of Justice, to give this august body its formal name, is made up of 15 judges selected through the usual horse-trading at the United Nations. Fourteen of them voted against Israel; the one dissenting voice belonged, no surprise, to the one American judge. Who are these 14 pillars of moral rectitude who pronounce such damning judgment on the only full-fledged democracy in the entire Middle East?

The court president, Shi Jiuyong, hails from China, one of the more dictatorial regimes in the world. Though China has been implementing free-market reforms, it continues to deny basic political and religious rights, with large numbers of dissidents held in prisons and labor camps for "crimes" such as advocating free elections or practicing the Falun Gong religion. Israel, needless to say, has complete freedom of speech and religion. And, while Israel wants to annex only a small sliver of the West Bank, China has grabbed all of Tibet. But, with its veto power at the U.N. Security Council, Beijing is able to shield itself from well-deserved international obloquy.

The vice president of the court is Raymond Ranjeva, from Madagascar, which has a better human-rights record than China but is still rated by Freedom House as only "partly free." Since a long period of rule by a military junta ended in 1991, Madagascar has held several elections characterized by what international observers call "irregularities." At least Madagascar is moving in the right direction. Venezuela and Russia, two other countries represented on the court, have been sliding into authoritarianism. The Russian government has practiced a scorched-earth policy in Chechnya that is far more cruel than anything Israel has ever done in the West Bank or Gaza Strip. Yet, like Beijing, Moscow has no fear of censure from the U.N., where it wields veto power.

Sierra Leone, also represented on the court, has suffered from government that, far from being overly repressive, was too weak to stop a decade-long civil war. Until the intervention of British troops in 2000, Sierra Leone had turned into a Lord of the Flies realm where child soldiers raped, maimed, and killed with impunity. Hardly the background, one would think, for lecturing others on how to deal with political violence.

Then there are the two Arab judges, one from Egypt, the other from Jordan. Neither country is remotely as free as Israel. Where is the international condemnation of the Egyptian prison system, in which tens of thousands of suspected Islamist sympathizers have been subjected to torture or summary execution?

There are, to be sure, some World Court judges who come from countries as democratic as Israel. Five of them hail from the European Union: Britain, France, the Netherlands, Germany, Slovakia. To its credit, the E.U. asked the court not to accept this case because "it will not help the efforts of the two parties to re-launch a political dialogue." But judges aren't bound by their countries' positions, and all of the E.U. judges voted against Israel.

The long record of European atrocities against the Jews, from the Inquisition to the Holocaust, might give pause to any European magistrate ruling against measures deemed vital by the Jewish homeland for its self-defense. Nor has anti-Semitism been banished from present-day Europe. As the E.U. itself has documented, the number of anti-Semitic incidents in recent years has reached a post-World War II high. Fire-bombings of synagogues, desecrations of Jewish cemeteries, assaults on men wearing yarmulkes--all now seem shockingly commonplace, especially in France, the country with the largest Jewish population. Far from dispelling the climate of hatred that gives rise to such incidents, the World Court adds to it by conveying the impression that Israel is a rogue state.

It hardly matters to world opinion that the trial was a joke, with Israel refusing to dignify the proceedings by presenting a defense. That the judges received a decidedly one-sided view of this complicated dispute did not deter them from issuing a strongly worded condemnation of the accused. Their opinion assumes that all of the West Bank is illegally occupied territory, whereas U.N. Resolution 242, adopted in 1967, makes clear that Israel's borders must be established as part of "a peaceful and accepted settlement" between the parties. Reading the lengthy opinion, one can easily get the impression that Israel is building the fence to indulge some whim. There is almost no mention of terrorism, much less of the fact that, since September 2000, more than 1,000 Israeli men, women, and children have been murdered by terrorists from the West Bank. As American judge Thomas Buergenthal wrote in his dissent, "The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court."

Though still not complete--about 120 miles out of a planned 437 miles has been built--the fence is already credited by Israeli officials with reducing attacks by 90 percent. A suicide bombing on July 11 that killed one woman was the first in nearly four months--"the longest such stretch since the current round of fighting began," the New York Times noted. And when fewer Israelis die, that means fewer Palestinians die, too, since Israel is not forced to stage retaliatory strikes.

Israeli actions are hardly above criticism. There are legitimate questions to be raised about the route of the security fence. Israel's High Court of Justice recently held that 20 miles of the planned barrier must be moved to lessen the hardship on the Palestinian population. Prime Minister Ariel Sharon is complying with this decree. Can anyone imagine a leader of Russia or China or Egypt taking orders from an independent tribunal on such an important matter of state? Yet, for not bowing before a kangaroo court in The Hague, Israel is now to be branded an international outlaw. That says more about Israel's critics than about Israel itself.

Max Boot, a senior fellow at the Council on Foreign Relations, is a contributing editor to The Weekly Standard and a columnist for the Los Angeles Times.