Supreme Injustice

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As a little boy is murdered by rockets on his way to nursery school; and as soldiers are killed and wounded when bombs, burrowed deep beneath their outposts are detonated by terrorists using video cameras and increasingly sophisticated digging machines; and as 17 would-be suicide bombers are intercepted en route to Israeli population centers in one month, all eyes are now turning to The Hague.


Next Friday, the International Court of Justice will render its opinion on the security fence. That would be the fence Israel is building to protect its citizens from guided bombs in blue jeans.


The ICJ's decision last December to take up the request by the UN General Assembly and Secretary General Kofi Annan to provide an opinion on Israel's right to construct the security barrier must be seen as a hostile act by the ICJ against the Jewish state and not as a simple response to a simple request. This is so not only because two ICJ justices have gone on record in the past stating overtly hostile positions against Israel. The ICJ's decision to allow the Arab League and the Organization of the Islamic Conference – two explicitly anti-Semitic organizations – to make oral arguments before the bench is also a clear indication of the court's lack of objectivity towards the Jewish state.



That the ICJ agreed to produce an opinion, in spite of the fact that the General Assembly's request for one was stated in terms that presupposed what such an opinion would say, is also an unambiguous sign that the ICJ understood its role in this game was fixed from the start.


Israel did have some slight hope of curbing the court's reach. The hope was based on the briefs submitted by the US and some European states in which the court was told that it had no legal authority to voice an opinion on Israel's security policies when the issue of the final adjudication of territory was subject to political negotiation. If Western powers were convincing in their view that a court decision was insignificant, then, so the thinking in Jerusalem went, chances would be better than zero that the court would say that it cannot address the issue.


There is precedent for such a view. In 1996, the ICJ was asked by the General Assembly to issue an opinion on the legality of the use of nuclear weapons. Understanding that an opinion that their use is illegal would be laughed at, or worse, ignored, the court stated that in the absence of a clear context it could not give a studied opinion on the legality of nuclear warfare. In the case of the security fence, since the route of the fence was still largely unknown and the fence itself was only in the beginning stages of construction last December, the court could easily have stated that it doesn't have sufficient contextual information on which to render an authoritative opinion.


This hope, fragile from the start, was rendered even weaker on Wednesday morning by Israel's Supreme Court. Court President Aharon Barak and his fellow justices Eliahu Mazza and Mishael Cheshin made it clear that for its part, the Israeli Court would take the ICJ opinion seriously. The justices, who found Israel guilty of breaching the Geneva Conventions by causing "disproportionate" harm to Palestinian farmers in constructing the security fence, laid the legal and rhetorical groundwork for all future legalistic warfare against the Jewish state.


The Supreme Court made it clear that it places higher value on the convenience of Palestinians and on the wellbeing of their olive trees than it does on Jewish lives. As it stated in its judgment, "the state must find an alternative [route for the fence] that may give less security but would harm the local population less."



Such views arise from two sources: the first, Soviet-inspired, is that Arab hostility to Israel is a reaction to Israeli "crimes." Second is the historical ambivalence of Jews to the notion that we have a right to protect ourselves and assert our rights as a nation.


It is this view, the "blame Israel first view," that turns a blind eye to the bias against Israel that is becoming more and more prevalent and acceptable throughout the world. The same day that the Supreme Court issued its judgment, Ralph Nader, a candidate for the presidency of the United States, made one of the most overtly anti-Semitic statements ever uttered by an American politician. Nader said, "The Israeli puppeteer travels to Washington. The Israeli puppeteer meets with puppets at the White House, and then moves down Pennsylvania Avenue, and meets with puppets at the Congress. And then takes billions in taxpayer dollars."


Also on Wednesday, French Foreign Minister Michel Barnier, visiting Ramallah, claimed that Arafat "is the legitimate and elected president of the Palestinian people. The situation [of keeping Arafat limited to his headquarters in Ramallah] should not continue like this and this is the reason for my visit."


These statements, from an American and a Frenchman, make clear the biased atmosphere in which Israel operates in the world. Do our court justices need to be reminded what the Arabs say about us? Do they need to be reminded of what Palestinian society feels for us? Only last month two polls released by Palestinian institutions showed that the overwhelming majority of Palestinians sees no chance of peace with Israel and supports continuing the war against Israel. A poll by the PLO's Jerusalem Media Communications Center showed that 70 percent of Palestinians support continuing the war, with 62% voicing support for suicide bombings, and 46% saying that the goal of the war is to replace Israel with Palestine. A poll by Bir Zeit University showed that 84% of Palestinians see no chance for peace without the so-called right of return and 54% claim that there will be no peace even if Israel allows itself to be overrun by foreign-born Arabs.


Throughout the Arab world, children are taught in schools that Jews are subhuman and that their goal in life should be to annihilate us. Mosque preachers and television stars alike analyze the intricacies of Jewish cunning and evil and our monkey-like and piggish characters and evolutionary history. Even as Iranian UN mission personnel are expelled from the US for having photographed potential bombing sites in Manhattan, the Arab and Islamic world, not to mention swathes of European opinion, are captivated by fables of Mossad responsibility for carrying out the September 11 attacks, of Jews found photographing the Twin Towers in the weeks before they were bombed, and of 4,000 Jewish workers who mysteriously stayed home from the World Trade Center on September 11, 2001.


Yet Justice Barak will see none of this. Military necessity be damned. The absolute priority of safety for Israelis be damned. We cannot make Palestinian shepherds go through an inspection before they tend their flocks (even though Israelis need to undergo inspections every time we go grocery shopping, out for a cup a coffee, park our cars in public lots, board a public bus, and enter our schools, universities and office buildings). In both cases, the need for inspection is not to punish Israelis or Palestinians but rather to ensure that Palestinian bombers are thwarted in their attempt to murder innocent civilians.


Our elected leadership has consoled itself over Barak's usurpation of its legal authority to determine national policy by saying that his judgment is evidence that Israel doesn't need the ICJ to judge it. Our independent judiciary, so the thinking goes, is capable of ensuring that we follow the law. Yet this buys into the Barakian delusion of lack of international bias. Barak did not protect Israel from international condemnation by condemning Israel himself. He paved the way for more groundless opprobrium. Barak did not take the wind out of the sails of the anti-Israel justices at the ICJ. He gave them a tailwind in s
howing that the Israeli High Court of Justice shares their negative view of the Israeli government and armed forces.


Originally published in The Jerusalem Post.

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