Holes in ruling on Israeli fence

by FrÈdÈric MÈgret

This commentary was first published in the Toronto Star on July 22, 2004.

The International Court of Justice's opinion on the fence that Israel is building with the stated aim of protecting itself against terrorist attacks is certain to have substantial regional and international resonance.

The court goes to quite great lengths to condemn the entire fence as illegal. The opinion has already been hailed by some as a victory of human rights against forces committed to ignoring and rejecting international law.

The truth is, of course, more complicated, and it is important to disentangle the politics and law of the court's ruling.

Once the issue had been submitted to it, the court was right to consider, consistently with a long-held line of precedents, that the issue was a legal one and not, as some had argued, a pure political one. This, of course, leaves open the question of whether it was politically a good idea for the United Nations General Assembly to bring the issue to the court in the first place.

The argument against the fence was based on international human rights law and international humanitarian law.

Clearly, the strength of the opinion lies in the way it solemnly recognizes the suffering of Palestinian populations. But many of the arguments in favour of the fence were also based on international law.

For example, the argument was often heard that an overriding concern for self-defence, particularly when confronted with a terrorist threat, should occasionally take precedence over some rights.

Another issue was how a state should assess the competing claims of different types of rights of different populations under its care. It is fair to say that these issues were not addressed in as much length in the opinion as they could have been, although it might have helped had Israel bothered to present its case orally before the court.

The court's reasoning would have been stronger had it more clearly discussed the whole spectrum of views on the matter.

Notwithstanding, one argument that has too often been neglected is that of all those ó including some European states and some in the peace camp in Israel ó who, while they deemed the barrier an unsavoury device, thought that it might in the end be a small price to pay.

The idea here is that the fence, in alleviating some of the anxiety of Israeli public opinion, could, in fact, ultimately facilitate a withdrawal from the West bank.

This pragmatic argument is perhaps the one most worth engaging. Typically, this is an argument that many who fought the wall on human rights grounds would reject.

The "wall," they argue, should be brought down because it separates families, regardless of what political objectives it might achieve. This is an idea that is likely, understandably, to have substantial resonance in a region where the full enjoyment of all rights seems to have been deferred for years.

A typical "political" response, conversely, might be that sometimes some rights have to be sacrificed for a higher political good, and that the stakes are simply too high in the region to risk delaying the peace process any longer. Both positions, however, are much more deeply overlapping than each cares to admit.

The human rights argument is "political" in that it considers that respect for rights is, in fact, a prerequisite for a lasting political settlement.

As for the "political" argument, it can be reformulated as meaning that failure to achieve stability will create many more, and probably far worse, human rights violations, or the idea that peace is itself a human right.

Framing the debate as one of "rights" vs "politics," therefore, seems the surest way of confusing issues. Instead, the real question is what mix of rights and politics will advance both the cause of human rights and of a lasting political settlement.

It is probably crucial that courts occasionally draw a line in the sand, making it clear that not everything is amenable to politics. In all likelihood, a culture of rights only ever emerges as a result of the occasional landmark decision making such a point clear.

By the same token, it seems important to think about how different tactics of seeking to enforce human rights will play out politically.

Regardless of its merits, an opinion may be badly timed and have counterproductive results. The court's opinion should be judged by how it contributes to easing the plight of populations in the area and the peace process, rather than by whether it is a "victory for international law" or not.

While it may bring some measure of comfort to those whose lives are affected by the fence, there is also a significant risk that it will marginally complicate an already intractable peace process.

It would be a sad irony if the opinion ended up reinforcing the very fence that it purports to condemn.