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Saturday, July 10, 2004

World Court: No Right of Self-Defense for Israel

The International Court of Justice has issued an advisory opinion ruling that Israel has no right to self-defense against Palestinian terrorist attacks. I haven't seen much reaction to this, perhaps because few take the World Court seriously. But given the continuing pressure for the U.S. to defer more to international organizations, it's worth discussing how those institutions behave.

UK judge Higgins wrote a concurring opinion, finding the wall illegal, but blasting the court for being "unevenhanded."

34. I also find unpersuasive the Court�s contention that, as the uses of force emanate from occupied territory, it is not an armed attack �by one State against another�. I fail to understand the Court�s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory -- a territory which it has found not to have been annexed and is certainly �other than� Israel. Further, Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable. This is formalism of an unevenhanded sort. The question is surely where responsibility lies for the sending of groups and persons who act against Israeli civilians and the cumulative severity of such action.

In other words, Israel doesn't have the right to self-defense, because the West Bank isn't a state, but the Palestinians are entitled to benefits of international law that protect only states.

By adopting the position that the right of self-defense doesn't apply to Israel, the court avoided the need to balance Israel's security needs against Palestinian human rights. Several judges criticize the court for failing to consider Israel's contention that the wall is needed to prevent terrorist attacks. Judge Owada of Japan concurs with the decision, but writes,
Indeed, there is ample material, in particular, about the humanitarian and socio‑economic impacts of the construction of the wall. Their authenticity and reliability is not in doubt. What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate.

It seems to me that a court could reasonably find that portions of the wall are a legitimate defense against Palestinian suicide attacks, and that others infringe too much on Palestinian territory to be justified. The Israeli Supreme Court has done just this, finding some parts of the wall to be illegal. At the same time, any court should give great deference to the views of the Israeli government. The government, with its military, police, and intelligence agencies, is in a much better position to determine Israel's security needs than any court can be. This is how the U.S. Supreme Court usually behaves. I assume it's how the Israeli court acted too. But the World Court says pretty clearly that saving the lives of Israeli citizens counts for nothing at all.


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