This week, the International Court of Justice (ICJ), popularly known as the World Court, is holding hearings that could result in an advisory opinion concerning the security fence now under construction by Israel. The immediate object of the exercise is to provide Arab and other opponents of the fence a new stick with which to pummel the Israelis. It is predictable, however, that the nation that stands to lose the most, ultimately, from the court's verdict — that is, its decision to interfere with the steps sovereign nations take concerning their security needs and how to satisfy them — will be the United States.
The court has been drawn into this precedent-establishing case by the United Nations' General Assembly, in which every member nation gets one vote, and the lowest common denominator of anti-Western and, most especially, anti-Israeli sentiment usually enjoys overwhelming majorities. Ninety nations in the General Assembly voted to approve a resolution put forward by Israel's enemies to portray the security barrier as an illegal and inhumane device, not least because of its location, in parts, on territory claimed by Palestinians.
Despite the opposition of the United States and some two dozen of the world's other leading nations, the ICJ is poised to do just that. After what will likely be perfunctory hearings starting Monday in the Hague, the Court is expected to render a conclusion that will legitimate a new torrent of invective against Israel. Worse, it may well precipitate demands that the U.N.'s Security Council give force to the Court's findings by imposing sanctions on Israel if it fails to halt construction of the fence. The Bush administration would be under intense pressure not to veto such sanctions, given its own stated opposition to the fence's construction (a position not seen as inconsistent with its view on the procedural question of whether the ICJ should be addressing this issue).
This process will penalize Israel, or at least further contribute to its pariah status in the United Nations, for doing nothing more than trying to protect its people from murderous suicide bombers and other terrorists in the most passive and nonviolent manner imaginable. Those much given to castigating the Jewish state for engaging in the sorts of counterterrorism operations that have resulted in the destruction of Palestinian terror cells, their leaders and bomb makers, and, on occasion, the unintended deaths of innocent bystanders, should commend Israel for adopting such a humane alternative.
To be sure, some of those now opposing Israel's security barrier might be willing to mute their criticism if only Israel would have the fence follow a different course; specifically, if it were to fence off the West Bank in much the same way Israel has protected itself from terrorists based in the Gaza Strip, namely along the so-called "Green Line" demarcating the territory Israel controlled prior to the 1967 Six-Day War from the areas it conquered during that conflict.
Doing so, however, would deny the fence's anti-terror protection to many tens of thousands of Israelis living in the West Bank. It would also effectively constitute a status quo ante boundary that would reward the Palestinians for their refusal to make peace with Israel. The upshot can only be further to intensify the confidence Yasser Arafat and his ilk already enjoy. Continued intransigence will eventually result in the realization of their ultimate and unchanging aspiration — the destruction of the State of Israel.
Unfortunately, the United States has an even bigger stake in this ICJ proceeding than the injury that will befall its most reliable and valuable — and only democratic — ally in the Middle East. As Ruth Wedgwood, one of the nation's most eminent and highly regarded experts on international law, recently put it:
The U.S. has no veto in the General Assembly, and we need to be concerned about the evasion of consent-based rules for international adjudication. The next request for an Advisory Opinion could ask the court, without U.S. consent, to pronounce on the legality of the war in Iraq or American attempts to stop the proliferation of nuclear material. Such opinions — even though non-binding under the U.N. Charter — are dangerous, because they are seen by the "victors" as conferring legitimacy on their position.Indeed, one can only imagine the measures the United States would otherwise have taken to protect its citizens that it might now feel pressured to avoid, for fear of being subjected to General Assembly requests for World Court intervention and adverse opinions. Our conduct of the war on terror, including legal steps intended to secure the homeland — e.g., perhaps, our own security fence along the Mexican border — could conceivably be denounced by the ICJ and, thereafter, be viewed as illegitimate by the international community.
No good can come of any of this. While John Kerry clearly fancies the idea of expanding the power of the United Nations and subordinating American sovereignty to its dictates, most Americans appreciate that that would be a formula for disaster.
The United States should make clear to the United Nations that, as a matter of principle, it would be injurious to this country's future relationship with and funding for the International Court of Justice and its parent organization, the U.N., for the Court to issue an advisory opinion on the Israeli security fence. As Professor Wedgwood notes, the World Court has the right to decline to do so "in compelling circumstances." This certainly fits the bill.
— Frank J. Gaffney Jr. is the president of the Center for Security Policy and an NRO contributing editor.