The International Court of Justice in the Hague is being asked by the U.N. General Assembly to provide advice on the “legal consequences” of Israel’s security fence. Predating the request for such advice, was a November report from U.N. Secretary General Kofi Annan detailing the harm done to Palestinians said to result from the fence and a December 2003 General Assembly resolution already deciding that the fence violates international law. The question before the court has therefore been carefully crafted to elicit a list of negative human-rights consequences for Palestinians.
One element, however, is missing: the human rights of Israelis. Secretary General Annan’s report does not describe a single terrorist act against Israelis. The same 2003 General Assembly which decried the fence was also marked by its refusal to adopt a resolution on the rights of Israeli children–after passing one on Palestinian children.
The U.N. message is clear–the human rights of Israelis are not part of the equation. If they were, the legal balancing act would be this: On the one hand, suicide-bombing violates the following rights and freedoms of Israelis–all derived from international human rights treaties ratified by Israel: the right to life, the right not to be subjected to torture, inhuman or degrading treatment, the right to equality and freedom from persecution, security of the person, the right to health and well-being, the right to safe working conditions, the right to work, freedom from incitement to violence or war, freedom of religion, the right to the protection of the family, the right to the protection of the child, the right to education, freedom of movement, the right to vote, freedom of association, the right to an adequate standard of living and the right of self-determination.
Suicide bombings (along with other terrorist acts) target Israelis at work, at play, at worship, and in transit, anywhere, anytime. They have been hit in synagogues, at bar mitzvahs, at Passover seders, moving from home to work or to school, while voting, gathering with friends in public places, in restaurants, cafes, and discotheques, in their homes and in their bedrooms. They kill and maim children and adults, women and men. They destroy health and any chance for happiness or well-being.
The violation of human rights by suicide bombing, starting with the right to life, falls within the category of the gravest human-rights violations in international law: It is a crime against humanity–according to the definitions in the Charter of the Nuremberg Tribunal and the Statute of the International Criminal Court, as well as reports of organizations such as Amnesty International. The major human-rights instruments also render it an attempt at genocide or “the commission of acts with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
The violation of the right to life by suicide bombing fits one other label of modern times–ethnic cleansing, or the systematic removal of a group of people identified by ethnicity from a certain area through killing or forced migration. Suicide-bombing kills some Israelis, encourages others to leave the country, and discourages Jews from visiting or immigrating. The specific intent is to ethnically cleanse the area of Jews, a fact which has already been accomplished in all other neighboring Arab states, and most other Arab and Muslim countries.
So on the one hand, Israelis are subject to crimes against humanity, attempted genocide, and an effort to accomplish ethnic cleansing. International treaties demand that Israel protect the human rights of its citizens, just as the government of any country would be expected to protect its citizens from the most grievous offences known to humankind.
What about the other hand–the rights of Palestinians? Suicide-bombing also violates the rights of Palestinians. It violates the right of Palestinian children not to take part in hostilities. Palestinian children having been used as suicide bombers and armed combatants, their right to enjoy the highest attainable standard of physical and mental health, and their entitlement to the protection and care necessary for their well-being, have also been violated. The Convention on the Rights of the Child says “the education of the child shall be directed to …the development of respect for human rights and fundamental freedoms…[and] for civilizations different from his or her own.., [and] for responsible life in a free society, in the spirit of understanding, peace, tolerance… among all peoples, ethnic, national and religious groups”. The right of the Palestinian child to an education which promotes tolerance and respect is violated by Palestinian media, schools, textbooks, posters, and summer camps–all of which routinely encourage Palestinian children to hate, and to harm their neighbors.
Palestinians have other rights which have been limited or infringed, like the right to work and freedom of movement. These rights are limited or infringed, however, not by Israel’s fence, but by the terrorists who live and operate among them. If an armed robber takes a hostage and in the course of the crime the hostage is killed by police, the law states that the death of the hostage has been caused by the robber, not the police. For if there was no armed robbery, the hostage would not have been harmed. If there were no terrorism, there would be no fence–and no “consequences of the fence” as the International Court has been asked to state in isolation from the acts that preceded it. The Palestinian civilian population is hostage to the terrorists and suicide-bombers among them. Israel’s actions, like those of the police officer, are taken in fulfillment of its legal responsibilities to protect and end violent and illegal behavior.
The language of human rights is one of the most powerful political currencies of our times. That is why terrorists attempt to use it to their own ends, and claim victimhood for violations for which they are responsible. The International Court of Justice is at a crucial juncture in its history: to become another weapon in the terrorists’ arsenal or to reject the gross abuse of the rule of law and the attempt to deny the equal value of the human rights of Israelis.
–Anne Bayefsky is an adjunct professor of law at Columbia Law School. A version of this appeared in the Jerusalem Post and is reprinted with permission.