Comparative advantages
Compare scenes. In The Hague, 15 justices of the International Court of Justice solemnly order Israel to dismantle the security fence it is building to separate Israelis from Palestinians. In the Gaza Strip, meanwhile, the Palestinians, prevented from killing Israelis by a barrier that exists now, are busy murdering one another in factional warfare of gunfire, arson, and kidnappings. And in Ramallah on the West Bank, the Palestinian Authority is in turmoil yet again over the corrupt and incompetent leadership of the terrorist Yasser Arafat, one of whose chief critics emerged from a television interview to be shot twice in the leg.
Violence is the syntax of debate among Palestinians, as it has been the syntax of negotiation with Israel. It escalated in the first place not as the result of Israeli aggression but because of Israeli willingness four years ago at Camp David to yield control of 95 percent of the occupied lands as Israel had previously yielded all of the Sinai to Egypt. Even the United Nations Mideast envoy, Terje Roed-Larsen, a longtime supporter of Arafat, publicly attacked the PA recently for its failure to end violence, combat terrorism, and institute reforms that ordinary Palestinians have been demanding for years.
The flat-Earth assumption of the justices in The Hague, reinforced by a U.N. General Assembly vote on July 20--instigated in part by France--is that all Palestinians are ready to live in peace with the State of Israel and are thwarted only by Israel's intransigence. The General Assembly vote, under European pressure, did add a couple of ambiguous paragraphs about the duty of restraint on all sides, but in The Hague's judgment there was little mention of terrorism. It was a ruling taken in a practical and moral vacuum. The court washed its hands of the sure consequence: If Israel complied, scores more Israelis would be blown up by suicide bombings. Ultimately, the court placed the victims of terrorism on trial instead of the terrorists--a move emblematic of the hypocrisy of international diplomacy, remorseless in the face of the murder of Israelis yet highly agitated over a fence aimed at saving lives--just because it ostensibly impinges a little on land in the disputed West Bank.
In truth, the decision was preordained by politics--handed down, it should be noted, by a court composed in part of justices with only a nodding acquaintance with the rule of law and democracy. The head of the court, a Chinese justice, represents a country that invaded Tibet and has a questionable human-rights record. Some of the court's members come from foreign enemies of Israel, e.g., Egypt. The one dissenting American judge on the court nailed the key legal point: "To reach that conclusion with regard to the wall as a whole without . . . seeking to ascertain all relevant facts bearing directly on issues of Israel's legitimate right to self-defense, military necessity, and security needs, given the repeated deadly terrorist attacks in and upon Israel . . . cannot be justified as a matter of law."
Compare that blind justice with the careful ruling against the Israeli government on the routing of the fence by Israel's High Court of Justice, which the government has said it will accept. The court found the fence was not expressing a political border or any other border but was simply a barrier against the reality of Palestinian terrorism. But it still ordered the Army to alter a section to make it less oppressive to the Palestinians. This court had its eyes open--as The Hague's justices did not--both to the Palestinians most immediately affected and to the Israeli victims of the Palestinian campaign of terror, 900 dead and more than 6,000 wounded. It insisted that there must be a balancing of military necessity and humanitarian considerations: "Both international law and fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing the authority of the military commander in the area with the needs of the local population."
Expertise over magic. In a memorable passage, the Israeli court affirms: " 'The security of the state' is not a 'magic word' which makes judicial review disappear. . . . The military commander is the expert on the military aspects of the fence's route. We are the experts on the humanitarian aspects of the route . . . whether the military commander's route inflicts disproportionate injury upon the local inhabitants. This is our expertise."
The court's ruling is a remarkable demonstration of the role of an honorable judiciary in a democratic state under mortal challenge. "Our task is difficult. We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror. . . . As any other Israelis, we, too, recognize the need to defend the country and its citizens against the wounds inflicted by terror. . . . But we are judges. When we sit in judgment, we are subject to judgment. We act according to our best conscience and understanding."
With that perspective, the court decided to make the fence, in certain areas, more responsive to the needs of the local population while recognizing that its decision did not make it easier for military security. In effect, the court acknowledged that the delay in its completion might well come at the cost of terrorist attacks. "This is the destiny of a democracy: She does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties."
Indeed, building a fence is one of the most civilized ways in which nations can defend themselves, in Shakespeare's words, "against the envy of less happy lands," when they share a border with armed attackers who lack an effective government to constrain them. The Roman Emperor Hadrian ordered a wall to be constructed across the width of England to keep barbarians out. The Chin emperor ordered several walls to be linked to the Great Wall of China to repel barbarians. Well, we don't have barbarians today, but we have their modern equivalent in terrorists--with the Palestinian Authority a known safe haven and favorite breeding ground for them, especially the suicide bomber.
The U.N. itself built a fence around its headquarters in New York for protection. Likewise, India, Saudi Arabia, Morocco, and Turkey have built barriers to contain their neighbors. India just completed a 460-mile barrier in contested Kashmir to contain terrorist infiltration from Pakistan and is building a security fence similar to that being built by Israel to protect itself from Muslim terrorists coming in from Bangladesh. Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to stop the smuggling of weapons.
Success. The bottom line is that the fence has worked. Secretary of State Colin Powell emphasized this in saying the fence issue should not even have been brought to The Hague. The American people recognize this full well. In a poll this year, 68 percent say the Israelis have a right to a security fence "even if many other countries disagree." The House of Representatives voted 361 to 45 deploring the misuse of the International Court of Justice and its advisory opinion that Israel's security fence should be dismantled.
The facts are conclusive: Before the fence was erected, the average number of terrorist attacks was 26 per year. Since its partial construction, the number has dropped to three per year, while the death toll has dropped by over 70 percent from 103 to 28, and the number of injured has dropped by more than 80 percent, from an annual average of 628 to 83. Terrorist penetration into Israel from the northern West Bank, where the initial portion of the fence was completed, has dropped from 600 a year to zero--as Israel was able to foil every suicide bombing originating from the northern West Bank and specifically from the cities of Nablus and Jenin, areas that had previously been infamous for exporting suicide bombers.
Only 5 percent of the fence is a wall to prevent fire from adjacent Palestinian communities onto Israeli areas. The height of this portion has in some places been raised, for example, as in Jerusalem--from 2 yards to 8 yards--because the terrorists jumped over the shorter wall. But in any event, it is a temporary, nonviolent way to reduce terrorism that has already saved many lives.
The fence brings benefits to the Palestinians as well: It will reduce friction between Israelis and Palestinians through the withdrawal of Israel from many settlements. The fence will also facilitate the removal of Israeli checkpoints and thus encourage greater freedom of movement within Palestinian areas. It will create an incentive for the withdrawal of Israeli settlements from the Palestinian side of the barrier, making the removal not a question of if but when. Fewer successful terrorist attacks mean fewer Israeli retaliatory defensive operations; finally, the route of the fence under this Israeli court decision will be much closer to the territorial proposals agreed to by the left-wing Israeli government in the Camp David talks and to the territorial settlements previously imposed.
Under the new court ruling, about 75 percent of Israeli settlers would be incorporated into roughly 8 percent of the West Bank on the Israeli side of the barrier. Fewer than 1 percent (13,000) of West Bank Palestinians would be stranded in these Israeli areas, while over 99 percent (1,970,000) would be left in the approximately 92 percent of the West Bank on the other side of the fence, which would be a contiguous area.
The Palestinians cannot have it both ways. They cannot avoid their security responsibilities while denying the Israelis the right to defend themselves, and they must pay a territorial price for the four years of terror they unleashed, for terrorism cannot be seen to succeed.
It has been said that if Israel is 10 percent more moral, it will be a light unto the nations; if it is 25 percent more moral, it will bring the Messiah; if it is 50 percent more moral, it will be dead. The Israeli High Court of Justice's decision brings a light unto the nations of the world. The International Court of Justice's advisory opinion would produce nothing but more dead innocents.
This story appears in the August 2, 2004 print edition of U.S. News & World Report.