Israel Report

JulyAugust 2004         

Europe and the ICJ

Jerusalem Post Editorial - July 12, 2004
Many things have been and remain to be said about Friday's advisory opinion on Israel's security fence by the 15-member International Court of Justice, most of it having to do with the court's jurisdiction, fitness, and reasoning. How can Israel expect justice from an international tribunal on which no Israeli jurist is eligible to serve? How can we expect it from one on which Egyptian and Jordanian judges do serve? How does the court sidestep the question of the terrorism that created the fence and then render an opinion on the legality of settlements?

But all this is of little point. The court's verdict would have been outrageous if the court were departing from some prior standard of recognized integrity. In this case, everyone knew from the start what the verdict would be, and so it was. From kangaroo courts, kangaroo justice.

More interesting is the question of the political uses to which the verdict will be put. From the lips of Saeb Erekat and his epigones, we already know: as the latest in a list of irrelevant, biased, or tendentiously interpreted UN resolutions, rattled off the tongue at high speed, to create the impression of legal unimpeachability for the Palestinian cause.

In the United States, the Bush administration has dismissed the verdict and promises to veto any Security Council resolution stemming from it. (It was an American judge, Thomas Buergenthal, who cast the sole dissenting vote in the case.) The Kerry campaign agrees.

That leaves Europe. French Foreign Minister Michel Barnier was on record against the fence before the court rendered its verdict. Robin Cook, the former British foreign minister, wasted no time adding his signature, graffiti-style, to a mock security fence in London, alongside the words "illegal under International Law." The Swiss Foreign Ministry received the verdict "with satisfaction."

Slightly more nuanced was a statement from the European Council's Javier Solana. The European Union, he said, is "committed to upholding and developing international law"; at the same time, the EU fears the fence "could prejudge future negotiations and hinder a just political solution to the conflict." He promises to "examine the court's opinion with the utmost attention."

Yet this is problematic. The EU initially opposed having the fence issue referred to the ICJ because it believed it would prejudge future negotiations. Now that the court has done precisely that, however, how does the EU square its commitment to international law with its commitment, as a member of the Quartet, to serve as an honest broker in such negotiations?

The question underlines a broader choice Europe now has before it. Either the EU can play the role of champion and defender of international legality as defined by the United Nations. Or it can pursue Europe's collective interests however it sees fit, preferably not in contravention to international law but neither in scrupulous observance of it.

In the recent past, particularly in the matter of Iraq, the EU has been able to use the international system as a vehicle to advance what were, anyway, its own interests. But Europe has not stopped to ask itself what happens when the interests of the EU don't coincide with judgments of courts such as the ICJ. That's a mistake.

Right now, the ruling of the ICJ appears as another crisis for Israel. In fact, it is a crisis for Europe. The clear intention of the ICJ ruling is to do to Israel what it helped do to apartheid South Africa in the early 1970s when it ruled the occupation of Namibia illegal and sanctionable.

Europe will have to think carefully about how far it wants to travel down that road vis-a-vis the Jewish state. Is it ready to make good on its anti-fence instincts by voting for UN sanctions, as the ICJ ruling advises? Does Europe place a higher value on Palestinian property than on Jewish lives? The game here is clear. Like adolescents who rely upon parental restrictions they claim to abhor to set limits to behavior they know is irresponsible, Europe is relying upon an American veto to protect the international system from a decision it knows is wrong and should not be implemented.

Israel has made its choice to protect its citizens from terror. Soon Europe will have a choice, too. Whatever choice it makes will be usefully clarifying for the rest of us.

©2004 - Jerusalem Post

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