The Movement for Reform Judaism

Question: When is a fence not a fence?
Answer: When it’s a wall!

Depending on your point of view, the partition being erected to separate the West Bank territories, returned by Israel to the Palestinian Authority, from Israel proper, is a fence designed to stop terrorist incursion or a wall creating de facto boundaries for a potential State of Palestine.

In fact, it is a combination of both fence and wall, the latter amounting to less than 4% of the 157 kilometres so far built. Another 80 kilometre section is nearing completion, with a further 491 kilometres yet to be started. And, despite denials from Israeli Government ministers, it is also probably a combination of both defence structure and anticipated border. And the latter is actually the crux of the matter and the likely reason why the International Court of Justice was placed in the position of having to deal with a case having less to do with law and more to do with politics.

The projected route of the fence swept deep into Palestinian territory; requiring the confiscation of land, separating farmers from their fields, putting children the other side of their schools, creating enclosures cutting off many thousands of Palestinians. Now if this was really necessary to protect Israel’s civilian population, then it could be regarded as justified, even if regrettable. But petitions by Palestinians against the Israeli Government to the Israeli Supreme Court have been upheld as being well-founded.

So clearly, either the Israeli military forces who planned the route were being overly cautious, or the Government who approved the plans had an ulterior motive. Whichever, the Government has acceded to the Supreme Court ruling that the route must balance security concerns with Palestinian human rights and has begun the process of reviewing the route and revising it to conform with the legal decision.
Much less temperate has been the Israeli Government response to the opinion of the International Court in The Hague. Of course, it’s essential to understand that the Court cannot make a binding ruling; it can only give an opinion, which in this case was that the construction was illegal and should be dismantled.

Nevertheless, the United Nations were holding an emergency session yesterday to discuss the majority opinion of six of the seven judges, including the British judge who, although agreeing with the overall ruling, gave a separate opinion casting doubt on the impartiality of the judges. Only the American judge in a minority report opposed the decision, indicating that Israel’s legitimate right to protect itself and its citizens had been either ignored or disregarded by the majority judges. The Israeli authorities have responded by an outright rejection of the opinion as being one-sided and politically motivated. Indeed the Israeli submission to the Court in the first instance refuted its jurisdiction in the matter, so it’s no wonder that its opinion has been condemned.

What interests me particularly is a comparison of the two Courts. While we take for granted that the judiciary is not answerable to the Government, that it is independent of it, that it interprets the legislation enacted by the politicians - that is not the case the world over. Certainly there are many developing countries where that separation does not exist, and it is only in recent times that the FSU and its communist allies have attained such a position. Within the Middle East it is likely that only Israel has that situation. And let’s not forget that Israel has been in a state of war ever since its establishment fifty-six years ago. It could have been expected to have put in place measures to ensure that the Courts backed up the decisions of the Government. Many other countries would have done that, but Israel began as, and remains, a democracy and so its Supreme Court can and does decide against the Government and - as in this case - the Government is rethinking the route of the fence accordingly.

On the other hand, we have a Court attached to the United Nations, with the full weight of international law backing it; and its judges, in the main, have been directed by their National Governments so as to become embroiled in a political rather than legal decision. A Court that refuses to consider all the facts; to reflect on the level of terrorism necessitating the erection of the fence, to contemplate the inalienable right of every country to defend its citizens, to recognise that the barrier has actually worked, is no Court - in fact, it is worse than that.

The setting up of Courts is one of the seven Noachide Laws - the laws given to the sons of Noah as universal laws to ensure that the other six, which includes the prohibition of murder, are implemented. There is a sheer perverseness about a Court that denies its own purpose. And yet, it would have taken only a supreme optimist to have imagined that the Court’s decision would have been anything other than it was. It is a tragedy, but nonetheless true, that both Israel in particular, and the Jewish people generally, have such a low opinion of the United Nations, have so little faith in its ability to be impartial, that it and its institutions are regarded as irrelevant to our thinking and actions.

I want to return to the Israeli Supreme Court’s judgement for a moment. It stated that there was a fundamental need to balance security considerations and humanitarian ones. Had the International Court of Justice recognised that in its report, then even if its judgement had been the same, it would have had to have been accorded some standing. The Israeli Government would have been placed in a situation whereby it had to be conciliatory and even accepting of some of its strictures. As it is, that Government feels ever more strongly that whatever it does the world will object and criticise, so they might as well give them due cause. That, of course, is helpful to no-one. The truth is that Israel has not maintained the balance. It has not given due
consideration to the Palestinians’ human rights and interests. And the irony is that it is only because of the Israeli Supreme Court, not the Court in The Hague, that Palestinian rights will be restored, that the lives of the ordinary Palestinians will be improved. The Palestinians will at least know that the Israeli legal system is impartial.

And that, I think, is the direction we should be addressing. International bodies will not help solve the crisis in the Israel, will not create the ethos or environment necessary for a return to the negotiating table, will not hold out hopes for peace. It can only come - and I don’t know how many times I’ve said this or something like it over the last twenty or more years - a positive future can only come when the ordinary Palestinian knows that the ordinary Israeli wants to live in peace in a two-state situation, when the prospect of life is more attractive to the young Palestinian than the promise of martyrdom, when both sides realise that peace and the future security of their children is more important than additional territory, when human rights and interests are given the same weight irrespective of whether they are Israeli or Palestinian, when the intemperate rhetoric of the leaders on both sides gives way to the reality that both peoples are there to stay, when the people reject those of their leaders who would put war in place of peace.

For all of that to happen, there must be a major change in the policies of the Israeli Government. First and foremost it must recognise that its policies over the last decades have had the opposite effect of what they purported to achieve. Rather than create a readiness for peace on the part of the Palestinians, they have been a turn-off. The combination of continued growth of settlements, collective punishments, cutting down olive groves, demolishing homes, restricting movement, have had such a negative impact on ordinary Palestinians that they are easily manipulated by their religious and political leaders to become implacable enemies of the Jewish state.

To transform that will be no easy task and will not happen overnight, but unless the attempt is made the future looks even more terrifying than the present. And that initiative can only be taken by the Israeli Government. May it come speedily in our time. Amen.

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