BY ANNE BAYEFSKY
February 25, 2004
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 advice was a November report from U.N.
Secretary General Kofi Annan detailing the harm to Palestinians said to result
from the fence and a December General Assembly resolution already deciding
the fence is illegal. The question before the court has therefore been crafted
to elicit a list of negative human rights consequences for Palestinians.
One element, however, is missing: the human rights of Israelis. Annan’s
report does not describe a single terrorist act against Israelis.
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 these rights and freedoms of Israelis derived from
international treaties: the right to life, freedom from torture, inhuman or
degrading treatment, equality, freedom from persecution, security of the person,
health and well-being, safe working conditions, protection of the family and
the child, education, an adequate standard of living, and self-determination,
as well as freedoms from incitement to violence, religion, movement and
Suicide bombings (along with other terrorist acts) offend this long list
because they murder and maim Israelis — children and adults, women and men — at
work, at play, at worship, and in transit, anywhere, anytime.
The violation of human rights by suicide bombing, starting with the right to
life, falls within the category of the gravest violations in international law
— crimes against humanity — according to the Nuremberg Tribunal Charter and
the International Criminal Court’s Statute, as well as reports of Amnesty
International. The major human rights instruments also render it an attempt at
genocide, since they are acts intended ”to destroy, in whole or in part, a
national, ethnical, racial or religious group.”
The violation of the right to life 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, and discourages still
others from immigrating. The intent is to ethnically cleanse the area of Jews, a
fact already accomplished in neighboring Arab states, and most other Arab and
So on the one hand, Israelis are subject to crimes against humanity,
attempted genocide and an effort to accomplish ethnic cleansing. Treaties demand that
Israel protect the human rights of its citizens from the most grievous
offenses known to humankind.
What about the other hand — the rights of Palestinians? Suicide bombing also
violates their rights. Since Palestinian children have been used as suicide
bombers and armed combatants, it violates their rights not to take part in
hostilities, to enjoy the highest attainable standard of health, and the
protection necessary for their well-being. The Child Rights Convention says the child’s
education shall be directed to the development of respect for different
civilizations and tolerance among all peoples. The right of the Palestinian child
to such an education is repeatedly violated by Palestinian media, schools,
textbooks and summer camps, which encourage Palestinian children to hate, and to
harm their neighbors.
Palestinians have other rights that 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 a hostage in an armed robbery is killed by police, the law states
that the robber caused the death of the hostage, not the police. Palestinian
civilians are hostage to the terrorists among them. Israel’s actions, like the
police officer’s, fulfill its legal duties to protect and end violent and
The International Court therefore has a choice: to become another weapon in
the terrorists’ arsenal, or to reject the gross abuse of the rule of law and
the denial of the equal value of the human rights of Israelis.