07/09/2004: "International judges rewrite law to suit selves"

I'm no lawyer, but even I can see a case of twisting the law to arrive at a pre-ordained decision when I see one. Such is the decision of the International Court of Justice (a creature of the UN) that Israel's security fence is illegal under international law. Here's one significant reason why the court ruled against Israel:

139. Under the terms of Article 51 of the Charter of the United Nations:

"Nothing in the present Charter shall impair the inherent right of individual or collective self?defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.

The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self?defence.

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case. (emphasis added)

The emphasized passage gives away the game. Here's Article 51 in its entirety:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

As you can see, there's no reference there to an attack by one state on another. In fact, if you read the whole of Chapter VII of the Charter, you'll only find one irrelevant reference in Article 50 to any state other than the one attacked and its defenders. The ICJ effectively amends the Charter in order to reach the result it wanted. As a side note, under their decision neither the US nor any other state has a right to self-defence against al-Qaeda, Hezbollah, the IRA or any other terrorist group, even if, like the Palestinian terror groups, they are supported by states like Iran or Syria. (The reference to the attacks coming from within occupied territory, and so not falling under Security Council resolutions 1368 and 1373, is another instance of judicial rewrite, as neither resolution makes any reference to the place of origin of terrorist attacks when declaring that states have a right to defend themselves against them. The relevant resolutions are here.) This isn't the only problem with this decision by any means, but it was the first one to jump out at me.

I've said before that Israel would have been smarter to have built the fence on the Green Line (the 1949 armistice line), rather than intruding into the West Bank to include settlements that never should have been built there, and that should be dismantled posthaste. But that doesn't in any way justify the ICJ disposing of a legitimate national claim of self-defence by re-writing basic international law to suit itself.