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Judging the Fence

With its spurious ruling last week on the legality of Israel’s West Bank security fence, the International Court of Justice has created an unnecessary complication in the search for Middle East peace and undermined its own credibility as an arbiter of international law.

The truth is that the damage to the court is graver than the damage to Israel and the peace process. After all, the court’s ruling against the placement of the fence on Palestinian territory largely echoes, in clumsy and legally questionable terms, the far more pragmatic decision handed down a week earlier by Israel’s own Supreme Court. If the justices in The Hague had left the matter to the Israeli legal system, they would have advanced the cause of Palestinian rights and avoided what will prove a major embarrassment to the cause of world peace through law.

Like the Israeli court — and contrary to the protests of some of Israel’s more overheated defenders — the world court affirmed that Israel “has the right, and indeed the duty to respond to the numerous and deadly acts of violence directed against its civilian population.” It affirmed Israel’s right “to protect the life of its citizens.” Like the Israeli court, the world court held that in charting the course of the fence, Israel must balance its own right of self-defense against the rights of the Palestinians. Both courts ruled that the current course of the fence violates those rights, and both ordered the fence moved.

But there the similarities end. The Israeli court weighed the fence’s route as it affects the human rights of individual Palestinians living near it. The world court went a step further and weighed the fence against the sovereign rights of the Palestinian people as a whole. The justices ruled that by crossing Israel’s pre-1967 border, the fence impinges on the Palestinians’ territory, violates their right to self-determination and prejudges future Israeli-Palestinian border negotiations.

Ironically, the court’s own ruling prejudges those future negotiations. It assumes that all territory beyond the pre-1967 border is presumptively sovereign Palestinian land and subject to their self-determination. That is what the negotiations are supposed to decide.

The wisdom of the Israeli court’s decision is that it gave the Israeli government and military a challenge that could be met practically and in real time. Prime Minister Sharon, to the surprise of friend and foe alike, ordered full and immediate compliance with the ruling. Military planners announced this week that the new route would hew as closely as possible to the 1967 border. By leaving some wiggle room, the Israeli court helped solve a problem.

The world court, by contrast, only created new problems. In agreeing to take up the case of the fence, the court injected itself into a diplomatic dispute that it had no business entering. Israel and the Palestinians have been engaged in a negotiating process — slow, painful but nonetheless real — for more than a decade. The decision by the Palestinians to bring the fence before an international tribunal was nothing more than a stunt, aimed at gaining diplomatic advantage. In accepting the suit, the court made itself their stooge.

The damage to the court’s reputation will be considerable. For starters, consider the scene last week, when the decision was read aloud by the president of the court. The chief judge, Shi Jiuyong, is a representative of the People’s Republic of China, which has illegally occupied neighboring Tibet since 1951, been credibly charged with acts of genocide there and moved millions of its citizens there in violation of international law. Before joining the world court Shi was the ranking legal adviser to the Chinese Foreign Ministry and a participant in its policy-making. What was he thinking last week?

Another justice, Vladlen Vereshchetin, has been one of Russia’s top experts in international law for decades, helping to advise the Kremlin during the Soviet and post-Soviet eras while it struggled to maintain its murderous grip on Chechnya. What could he have been thinking?

What was any of them thinking? Did they not imagine the precedent they were creating, putting the International Court of Justice into the business of sticking its nose into contentious ethnic and border disputes? What will they say when the court is approached by Tibetans or Chechnyans, Kurds, Basques, Corsicans or Quebecois seeking justice? “Sorry, we only serve Palestinians”? Who will believe them again? And what will be left of the court when China, Russia or France becomes its enemy?

The General Assembly, for all its knee-jerk fealty to the Palestinian cause, should have had the good sense to leave the fence matter to the parties to resolve. The world court, for its own sake, should not have accepted jurisdiction. Now it is up to the Security Council to reject the court’s decision, for the sake of its own members’ well-being, and by a healthy majority so as to avoid the embarrassment of an American veto.

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