If it comes down to a conflict between the quality of life and the right to life, ethics would indicate the latter should take precedence. After all, death is final but quality of life can always be ameliorated. Yet neither Tim Costello ("For the children’s sake, tear down this wall!" on this page yesterday) nor the International Court of Justice seem to think this elemental moral rule applies to the Israeli-Palestinian conflict.
Costello is highly critical of the effects on Palestinians of the anti-terrorism barrier Israel is building in the West Bank, and relies on the ICJ’s non-binding advisory decision last Friday to argue that this fence is illegal.
However, that decision was as predictable as it was political.
It was predictable because of the structure of the ICJ. Judges are elected by the UN General Assembly according to a regional "spoils" system from which Israel is the only country excluded. Despite nominal legal independence, most judges are from non-democratic countries who act de facto to support the policy dictates of their home governments.
Moreover, the UN General Assembly, in its resolution asking the court to make an advisory ruling on this issue, already told the court to decide that the fence "is in contradiction" to international law.
But most importantly, neither the ICJ nor Costello attempt to grapple with the traditional international law criteria for judging acts that may be harmful to others, namely, necessity and proportionality to the threat. As the dissenting judge, Thomas Buergenthal of the US, noted, the failure of the court to even consider "Israel’s legitimate right of self-defence, military necessity, and security needs, given the repeated deadly terrorist attacks in and upon Israel . . . cannot be justified as a matter of law".
The Israeli Supreme Court, which did examine these issues in detail in a ruling last week, found that the fence was justified from a security point of view, while ordering a modification to one small portion where it said the balance between Palestinian inconvenience and Israeli security needs had been incorrect.
The fence unequivocally works – terror attacks from the areas near the fence are down by about 90 per cent since construction of the first segment.
Yet, amazingly, the whole issue of terrorism was all but unmentioned by the ICJ, and almost ignored by Costello.
Instead, the ICJ bizarrely argued that there is no right of self-defence against terrorism under the UN charter, only against states. Essentially, the argument of the court, and by implication Costello, is that Israel must turn the other cheek to the terrorists because practical steps to fight Hamas et al – groups that seek not self-determination but Israel’s destruction – are all illegal.
To be sure, many innocent Palestinian civilians will suffer as a result of the fence, though if it brings an end to fighting, Palestinians will benefit as much as Israelis.
But some claims about the effects of the fence are exaggerated. Far from being a "Berlin Wall", the fence is in most places just that, with gates to allow students, medical patients, farmers and labourers to reach their legitimate destinations. Those who lose land to the fence will be compensated, and uprooted fruit trees are being replaced. Palestinians with grievances about its route have genuine access to the Israeli court system.
Nor does the fence pre-judge the territory of a future Palestinian state. As the Israeli Supreme Court found, the fence is being built for security, not political, reasons.
There is only one way forward in the peace process at the moment: the Palestinians must have a reformed government that will fulfil its obligations to fight terrorism; and, after this is in place, a peace deal establishing a Palestinian state, but also giving security guarantees for Israel, must be negotiated.
However, the decision of the international court, by condemning Israel and essentially declaring terrorism permissible and efforts to oppose it illegal, will certainly encourage continued Palestinian violence.
The Palestinian leadership will feel vindicated in its refusal to carry out its obligations to stop terrorism.
That leadership has already decided, according to reports, to spend the next few months trying to get sanctions passed against Israel, rather than reforming or pushing on with the "road map" peace plan. There is no chance such efforts will change the position of Israel on the barrier.
At a time when Palestinians are suffering not only from the results of almost four years of terrorist war with Israel, but from corruption, mismanagement and the growing domination of their society by armed thugs, nothing could be more damaging – for both peoples.
Dr. Colin Rubenstein is executive director of the Australia/Israel & Jewish Affairs Council.