The Right Coast

July 15, 2004
The UN and Israel's Separation Barrier
By Mike Rappaport

I have been looking over the ICJ opinion holding that Israel’s separation fence / wall was illegal. After reviewing the 20 page summary of the opinion as well as portions of the actual opinion, I see nothing to persuade me of its legitimacy. The interesting question, though, for a lawyer at least, is how the "court" got to its result.
The key factor, as has been widely noted, is that the court essentially ignored the risk to Israel from Palestinian suicide bombers. But how were they able to ignore this risk? A couple of methods were used. First, the court’s opinion noted that the UN Charter guarantees to each state the right to defend itself, but the opinion read this as applying only to attacks by other states, and concluded that the Palestinians were not a state. While I am not an expert in this area, this seems mistaken. The language of the Charter’s provision does not state that one can only exercise self defense against a state, and why would it? This is especially true, since the Court holds that the Palestinians are a people entitled to self determination. As the one dissenting judge noted, the Security Council itself invoked the right of self defense to justify defenses against international terrorism.
The second way that the court ignored Israel’s risk from suicide bombers is equally problematic. At various points, the opinion considered, very vaguely, the possibility that Israel might have the right to defend itself, but then rejected it on the grounds that Israel had not shown it needed to build the fence to defend itself.   Israel did not prove it needed the fence to defend itself, however, because Israel was not a party to the lawsuit, as it had not consented to the lawsuit. The court decided the case on an "advisory" basis. In justifying its exercise of this advisory jurisdiction, the court asserted that it did not need Israel’s participation because it had adequate information before it. But then the court puts the burden of proof on Israel, which is not even a party, to supply this information. So the court decides it should decide the case, because it has adequate information, but then rejects Israel’s defenses because the court does not have sufficient information to decide on them. We might call it Orwellian, but perhaps calling it "UN"ian is sufficient.