Our self-inflicted wounds
The Non-Aligned Movement's decision over the weekend to bar Israeli tourists who live beyond the 1949 cease-fire lines from visiting their countries was greeted at the Foreign Ministry with an irritated yawn.
No doubt our diplomats should have mustered a bit more revulsion in their reaction to this affront to our national honor, rights and legitimacy. But it is equally true that the NAM declaration will doubtlessly have little impact on the vacation spots chosen by Israelis who live in eastern and northern Jerusalem, the Golan Heights, the Gaza Strip and Judea and Samaria.
Just last week it was reported that Israelis make up the largest group – in absolute numbers – of tourists in Kashmir. The second largest group of tourists to that war-torn Indian state comes from China. That is, Israelis visit Kashmir in larger numbers than Chinese do even though China's population is 216 times larger than Israel's. No doubt, India, Colombia, Chile, Bolivia, Kenya, Tanzania and countless other states who are members of NAM would have serious qualms about voluntarily losing millions of dollars in tourist revenue annually by placing restrictions on travel by Israeli tourists in their mountain villages and marketplaces.
And lose them they most assuredly would. Because the truth is that Israelis don't like being treated badly. We don't like it when other people tell lies about us or when they try to selectively accept or reject us. In making our holiday choices, Israelis who are safely ensconced in Haifa and Tel-Aviv and Beersheva would think twice – actually, 75 times – before visiting a country that barred their brothers from Ariel and the French Hill and Gilo neighborhoods in Jerusalem. Despite what Peace Now would have the world believe, Israelis don't make distinctions between the blood of "bad settlers" who live in land controlled since 1967 and that of "good Israelis" who live in land controlled since 1949. And make no mistake, even if they do so with a stutter, our diplomats serving in NAM countries will make this point sufficiently clearly to their hosts.
A similar situation holds in the European Union. Like their NAM counterparts, EU member states believe it is to their political advantage to curry favor with the Arabs by condemning Israel and taking a passive-aggressive attitude toward the US. But so far, their talk of sanctions against Israel has been spoken in whispers that have been quickly silenced by cooler heads. As European sources well-versed in the policies of several EU member states assured me this week, the chance of the EU placing sanctions on Israel is small. Individual EU member states are barred from enacting trade sanctions unilaterally and Britain, Germany, Italy and the Czech Republic (among others) oppose them. Without consensus on the issue, it will never be adopted. Even with its original 15 members, the EU was never able to reach a consensus on suspension or abrogation of its association agreement with Israel. Now with 25 members and a new European Commission that is far less anti-Israel than its predecessor, the chance of the EU taking any concrete steps against Israel is virtually non-existent.
This is not to say that Israeli diplomats can rest on their laurels. This state of affairs must be cultivated. In spite of the well-known incompetence of Israel's diplomatic corps in making the case for Israel publicly, its members can take some pride in behind the scenes machinations that so far have prevented an anti-Israel consensus from forming in Europe.
All of this is important to bear in mind when examining the legal opinion submitted by Attorney General Menachem Mazuz to Prime Minister Ariel Sharon and to the editorial offices of Ha'aretz last week on the issue of the legal ramifications of the International Court of Justice's advisory opinion on the security fence. Mazuz made a series of claims in that brief regarding what he views as the perils to Israel emanating from that non-binding ICJ opinion.
Incorrectly referring to the ICJ's brief as a "decision," Mazuz wrote, "The decision creates a political reality for Israel on the international level that may be used to expedite actions against Israel in international forums, to the point where they may result in sanctions."
Mazuz did not give any evidence to support this claim. He simply asserted it. And on the basis of this far-fetched assertion, he reached some of the most radical and nationally destructive conclusions ever made by an unelected civil servant in Israel.
It should be noted that as a non-binding legal opinion, the ICJ's assertion that Israel has no right to take defensive measures in land it liberated in the 1967 Six Day War (or indeed any defensive measures against terrorism whatsoever), adds nothing substantive to the international legalistic onslaught against Israel that was officially inaugurated with the UN General Assembly resolution 3379 from 1975 equating Zionism with racism. There is nothing new in the ICJ's anti-Israel opinion that will in any way substantively change the hostile international political and pseudo-legal environment in which Israel has been operating for three decades.
Yet in spite of this, Mazuz reacted to the ICJ's opinion with hysteria. In order to placate the ICJ, as Mazuz fervently, though irrationally, believes Israel must, he recommends that the government "thoroughly examine" the formal application of the Fourth Geneva Convention from 1949 on the territories. This view flies in the face of the consistent policy of every single Israeli government since 1967. As former UN Ambassador Dore Gold puts it, "Even a theoretical discussion about the Fourth Geneva Convention appearing on the front page of Ha'aretz with its English website will undercut fundamental Israeli foreign policy positions held for over thirty years."
Israel's position on Judea, Samaria and Gaza has not changed since 1967. Israel claims the right to assert sovereignty over these lands by virtue of the League of Nations Mandate for Palestine from 1922. The Mandate specifically designated all of these areas as part of what Britain was to develop as the Jewish homeland. As neither Gaza nor Judea and Samaria have been legally redesignated since, Israel is the lawful claimant to sovereignty in these areas.
Additionally, as Gold puts it, "The Fourth Geneva Convention is not applicable in the West Bank and Gaza because previous occupants [Jordan and Egypt] entered those territories illegally in 1948 during the Arab invasion of Israel." Since the Fourth Geneva Convention seeks to protect the sovereign from the occupying military power, and there has not been a recognized sovereign in the territories aside from the Jewish people since 1922, there is no factual basis for its application to the territories.
Perhaps as a result of this simple matter of fact, the ICJ judges felt it necessary to rewrite history in their opinion in a manner that erases the uncomfortable fact that the League of Nations determined that the Land of Israel was to become the Jewish state. In Gold's words, "The entire advisory opinion completely undercuts the fundamental rights of the Jewish people to national sovereignty. From its rendition of the history of the British Mandate one is to conclude that the League of Nations never made even a reference to the creation of a Jewish homeland but instead set up the Mandate for the Arab population alone."
Yet, on the basis of this completely biased and legally and historically inaccurate non-binding opinion, the sole goal of which is to groundlessly criminalize the Jewish state, Mazuz has determined that the government should summarily discard its solid legal positions and throw itself at the mercy of a hostile yet not acutely life-threatening UN.
Mazuz is not alone in preferring historically groundless, legally perverted opinions rendered by toothless international forums of not particularly noted jurists to the laws and policies of Israel's democratically elected governing authorities. Our self-appointed Supreme Court shares his view. In an apparent attempt to pre-empt the ICJ's non-binding advisory opinion to the UN General Assembly, the Supreme Court preferred the prescriptions of the irrelevant Fourth Geneva Convention to the security concerns of Israel as manifested in the route of the separation fence determined by the responsible military authorities.
Dismissing the army's security concerns and Israeli law, Supreme Court President Aharon Barak based his decision from June 30, to reroute the fence closer to the 1949 armistice lines on the application of the Fourth Geneva Convention to the territories.
Commenting on the new route, forced on the IDF by the Supreme Court, Yuval Steinitz, the Chairman of the Knesset's Foreign Affairs and Defense Committee said this week, "It is a dark day for Israel's national security."
When we take into consideration the low level of threat that UN General Assembly resolutions pose to Israel – a threat we have been living pretty well with now for 29 years – and combine it with the security threat constituted by our Supreme Court's reckless preference for its own international reputation over the legal rights and security concerns of the state, we come to a most discouraging conclusion that makes sense of Mazuz's unhinged legal opinion.
Our self-appointed and self-perpetuating legal elites have detached themselves from the rest of the country. Answerable to no one other than themselves, they have created a post-nationalist world view where the greatest threat to Israel's (read "their") well-being is our government and people's stubborn attachment to Israel's legal rights, laws and national interests.
It is not simply international pressure, hypocrisy and prejudice that have kept Israel from pursuing the war that was launched against it four years ago to a conclusive victory. When we look at our imperial legal fraternity we must come to the conclusion that our deepest wounds are self-inflicted.
Originally published in The Jerusalem Post.