Commentary Magazine


The End of the Right of Self-Defense?

A country's right to defend itself against external attack is so irreducible a component of sovereignty as to have been assumed from time immemorial. Recent events, however, have cast serious doubt on the continued viability of this assumption—and, with it, the concepts of sovereignty and self-determination as we have long understood them.

On July 9, the International Court of Justice (ICJ), by a lopsided vote of fourteen to one, held that the security barrier being constructed by Israel to shield its citizens from relentless terrorist assault is an affront to international law. The ruling broke ground on several levels, both procedural and substantive. Should it gain universal currency, it would impair not merely Israel's power to protect itself but also the U.S. war against the Islamic terror network that slaughtered 3,000 Americans on 9/11 and the ability of the West to cope with the uniquely threatening environment of the 21st century. No less alarmingly, it would place in question the future of international law itself.

The ICJ, which sits in the Hague and is also known as the World Court, is the judicial branch of the United Nations. Its July 9 ruling was an unusual though not unprecedented exercise of its broad discretion to issue legal guidance in the form of an “advisory opinion.” In this instance, the General Assembly's so-called Tenth Emergency Special Session, which exists essentially to consider (and condemn) Israeli actions in the Palestinian conflict, had referred to the ICJ an “urgent” request to assess the legal implications of Israel's anti-terrorism barrier, or “wall” in the General Assembly's loaded terminology.

Having accepted the referral, the ICJ duly filed its 60-page decision, further expounded by separate opinions from several of the fifteen justices. It ruled against Israel on every point raised.

Procedurally, the court brushed aside weighty questions about its own jurisdiction to hear the case in the first place. It did so even though Israel had declined to participate in the litigation; even though the principal adversary claimant—namely, the territories administered by Israel since it captured them in the Six-Day war of 1967—is not a nation-state and is thus without standing before the international judicial tribunal; and even though the barrier dispute is itself only part of a much broader conflict committed to the jurisdiction not of the General Assembly but of the UN Security Council.

On the merits, the court simply assumed that Israel was an “occupying power” under international law, and that its “wall” was therefore an illegal seizure of property belonging to another country, which it analogized the territories to be. But, without a hint of irony, the ICJ also found contrariwise that the territories were not a country. This it did as a prelude to holding that Israel had no right of self-defense against them—because, according to the court, the UN Charter permits responsive action only in the event of an attack by a “state.” Contorting itself a third time, the court reasoned that the territories were indeed the functional equivalent of a country—this, in order to extend to their inhabitants the protections of the Geneva Conventions, which apply only to signatory states.

Not content to leave things there, the ICJ extended its mandate further by declaring that all the world's states are now “under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by the construction.” The international community is equally obliged to hold Israel to account for offending the Geneva Convention. Finally, the Security Council was deemed duty-bound by the court to address the “wall” forthwith as a stand-alone issue separate from its work toward a comprehensive Israeli-Palestinian settlement.

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There have, of course, been international conflicts as long as there have been nation-states, and they have forever been settled by force of arms and diplomacy, the effectiveness of the latter being a function of a country's capacity to project the former. The promotion of legal exchange as a means of conflict resolution is a far more recent innovation. It rests on two cornerstones: consent, and a healthy respect for practical limitations.

The interplay between sovereign force and consent in international law, with particular reference to the ICJ, has been trenchantly explicated by Jeremy Rabkin in his new book, The Case for Sovereignty1:

Until quite recently, no treatise on international law proposed that violations of international standards in war could be punished by third parties to the conflict. . . . The advent of the United Nations did not change this underlying reality. It was not designed to ensure any rule of international conduct, unless all the great powers were in agreement on the response to a particular violation. . . . So the statute [creating] the International Court of Justice, appended to the UN Charter, stipulated that only states could be parties to disputes before the court and then only with the consent of both parties to the particular dispute.

The ICJ's decision to accept the General Assembly's referral was a major deviation from these moorings. The territories, to repeat, are not a state. It is true that Yasir Arafat's Palestine Liberation Organization has had observer status in the UN since 1974, and since 1988 has been permitted to participate (but not to vote) in the General Assembly. But its metamorphosis into the Palestinian Authority (PA) in 1993 did not vest in the territories the legal standing of a sovereign.

Israel, on the other hand, is an actual state, and it did not consent. Nor was it under any requirement to offer a rationale for refusing to participate in ICJ proceedings. Nevertheless, solid reasons were abundant.

In the UN system, all member nations vote equally in the General Assembly. As a practical matter, though, autocratic and despotic nations outnumber those that are truly free and democratic. This creates a ready facility to call for and adopt condemnatory resolutions. Israel has many well-organized antagonists, including the League of Arab States, the Organization of the Islamic Conference, and the “Non-Aligned Movement”—an amalgam of over 100 countries, including the Islamic ones, which has prematurely recognized the territories as a Palestinian state. Indeed, since 1968 the General Assembly has maintained a standing entity called the “United Nations Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories.” This goes a long way toward explaining the interminable Tenth Special Session and the fact that scores of politically charged resolutions censuring Israel have been adopted by the UN over the years.

Although such resolutions have little practical effect, they are a valuable barometer of Israel's chances of ever getting a fair shake in a broad-based UN legal process. Ordinarily, the consent-based rules of ICJ jurisdiction limit participation to the parties directly involved and severely discourage participation by outsiders. But advisory opinions are a different animal—they have no “parties” as such, and allow for liberal submission of friend-of-the-court briefs. In the ICJ advisory case, as in the General Assembly, Israel was not a litigant but a target.

Resort to the ICJ's advisory power was highly inappropriate on two other grounds as well. The first relates to the institutional competence of the ICJ itself: since a court is an authority only on legal, not political, matters, and since the work of the UN is by nature political, any call for judicial advisory opinions must be highly limited in its scope, which this one palpably was not. The second has to do with the division of labor between the UN's political components.

In the UN system, the Security Council is the body responsible for addressing “threats to the peace” and for determining measures needed to “maintain or restore international peace and security.” Consistent with that duty, on November 19, 2003—only two weeks before the Assembly referral—the Security Council adopted Resolution 1515, President Bush's “road map” to a peaceful settlement of the Israeli-Palestinian conflict. The road map envisions an eventual Palestinian state, established as part of a unified, reciprocal disposition of all outstanding issues. But it postulates that progress toward these goals “will only be achieved through an end to violence and terrorism, when the Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty.” Thus, the road map's first phase demands that “the Palestinians immediately undertake an unconditional cessation of violence,” and that they make visible progress toward that end in addition to conceding without reservation Israel's right to exist.

While both the PA and Israel announced their intention to abide by the plan's process, the terrorist rampage against Israel has proceeded apace. Hence, to split off the security fence, which has been designed to deal with that rampage, and to do so in the myopic manner proposed by the General Assembly and indulged by the ICJ—focusing on Palestinian suffering to the exclusion of such key issues as terrorism, Israel's right to exist, security in general, the territorial dispute, and other economic and social concerns—is greatly to prejudice Israel's legitimate positions on those matters.

In brief, the security barrier is part and parcel of a conflict that is not within the mandate of the General Assembly, and judicial grappling with its ramifications could not advance the Assembly's legitimate work. But it could, on the contrary, interfere with and considerably complicate the diplomatic work of the Security Council—which neither needed nor sought the ICJ's legal advice on how to resolve a political issue squarely in its portfolio.

Asked to adjudicate ex parte a classic two-sided confrontation, the ICJ had to realize it was being recruited as a political tool. If this was not already plain from the source and content of the referral, it was patent from the lineup of non-governmental organizations—including Human Rights Watch, Christian Aid, Oxfam, the Apartheid Wall Campaign, Al-Haq, and the United Nations Relief and Works Agency for Palestinian Refugees in the Near East—that spearheaded a public campaign transparently aimed at swaddling the General Assembly's demarche in the prestige of the ICJ. The court always maintains the discretion to demur from issuing an advisory ruling. To say the least, it was egregiously irresponsible of it not to have done so in this case.

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If anything, the procedural flaws I have enumerated pale in comparison to the ICJ's handling of the substance of the case. Even before addressing the merits, one is bound to take note of the composition of the court itself, several of whose members hale from repressive regimes and others of whom had blatant conflicts of interest. To get a taste of the hypocrisy at work, one need go no farther than the opinion's opening salvo.

The ICJ began by announcing its awareness that “developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples is among the purposes and principles of the Charter of the United Nations.” These words, uttered as a foretaste to a condemnation of Israel for exercising its right of self-determination, were expressed by the ICJ's chief justice, Shi Jiuyong, of China—a Communist regime that denies civil rights, specializes in show trials, terrorizes dissenters, and colonizes Tibet. According to his biography on the ICJ's own website, Shi was a prominent government legal adviser in 1989, when the regime infamously crushed a popular uprising seeking exactly such “equal rights and self-determination” on behalf of the Chinese people.

Shi was not alone. The curriculum vitae of Justice Vladlen S. Vereshchetin of Russia, who also saw fit to condemn Israel, is replete with apparatchik posts held while the Soviets brutalized Eastern Europe. There was also Justice Abdul G. Koroma, who scrutinized Israel from his perch as the ICJ's jurist from Sierra Leone, where a recently ended decade of civil war resulted in thousands killed and the displacement of two million refugees, about a third of the population.

The Egyptian regime of Hosni Mubarak was likewise well represented on the ICJ, in the person of Justice Nabil Elaraby. Quite apart from his government's record as a habitual violator of human rights, Elaraby, a high-ranking government official since 1976, had an arrant conflict of interest as a representative of a historically central participant in the Israel-Arab conflict; needless to say, he declined a suggestion that he recuse himself. Similarly disinclined was Justice Awn Shawkat Al-Khasawneh of Jordan, who participated despite having served in Jordan's foreign service for over a quarter-century—much of it when his country was in a state of war with Israel and in a state of denial over the Palestinian Arab refugees whose presence in Jordan was sedulously ignored by his government.

Given this cast of characters, it is perhaps not surprising that the ICJ should have neglected its primary duty of probing disputed issues and have accorded an unrebutted presumption of accuracy to the terms of the General Assembly referral. Yet the referral was, to put it mildly, a loaded political document, expressing hotly contested facts as if they had already been established. It asked:

What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions? [emphasis added]

Since the ICJ shunned its duty, we shall have to do the job for it, beginning with the first item italicized above. Was the General Assembly correct to stipulate that Israel's security barrier is a wall—that is, a structure, like the Berlin Wall whose image the term was meant to conjure up, designed as a unilaterally imposed border, one that oppresses and shuts out a people yearning to live as part of a peaceful whole?

Israel maintains otherwise. It has publicly stated that the barrier is not a wall but a fence—a protective device, impermanent and easily movable or removable, aimed at preventing the entry of terrorists now coddled by Palestinian factions who, far from peaceful co-existence, yearn for Israel's extermination. Both the pre-history and the actual history of the barrier conclusively support Israel's contention.

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The immediate pre-history is especially relevant. By the year 2000, President Bill Clinton had been seeking a Palestinian-Israeli settlement for nearly eight years, with admirable energy but with a naiveté that had greatly empowered the PA strongman Yasir Arafat. Anxiously nearing the end of his term, Clinton made a last, desperate effort to catalyze a resolution by inviting Arafat and then-Prime Minister Ehud Barak to Camp David. Under intense U.S. pressure, Israel offered the creation of a Palestinian state over 90 percent of the West Bank and all of Gaza, with its capital to be in East Jerusalem. Arafat rejected this breathtaking proposal as insufficient.

When negotiations broke down, Arafat unleashed what came to be known as the second intifada (the first having raged into the early 1990's). This operation, loosely coordinated between the PA and Islamic terror groups—aggregating the strength of Hamas, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, Fatah, its al-Aksa Martyrs Brigade, and other constituents—pursued its bloody campaign mostly by means of suicide bombings, including, occasionally, explosives strapped to children encouraged by a culture of “martyrdom.” The attacks have willfully targeted civilians in buses, restaurants, shopping centers, hotels, and other public centers.

In the three-plus years following the inception of the second intifada and prior to the start of the barrier's construction, 890 Israelis were murdered. Three-quarters of these were non-combatants, including women and children. To extrapolate to American proportions, for a country the size of Israel this was the equivalent of over 40,000 dead—or, as the commentator Anne Bayefsky has observed, about fourteen 9/11's.

Until late 2003, there was no barrier whatsoever between the West Bank and Israel—a terrorist needed only walk across to attend to his (or her) deadly mission. At that point, convinced beyond any doubt that the PA and the militant Islamic groups resident in the territories were committed to ongoing terrorism as their strategic weapon of choice, the Sharon government concluded that a barrier was a necessary measure of passive self-defense.

Now less than half complete, the barrier will ultimately span about 400 miles. For the most part, it runs approximately along the “Green Line”: the pre-1967 armistice marker that, incidentally, has never constituted an internationally recognized border. There are some significant incursions into the eastern or Palestinian side of the line, most controversially to incorporate territorial settlements within the Israeli side of the barrier and to create a six-mile loop aimed at providing protection against missile attacks for aircraft using Israel's international airport.

While the barrier is monotonously called a wall by Palestinian advocates, almost all of it will be a chain-link fence—much like the one the UN has recently announced its intention to build to protect its Manhattan headquarters. Exceptions are 30-foot-high concrete sections, totaling about fifteen of the barrier's 400 miles (or less than 4 percent), being built to block three areas where Palestinian snipers have shot at cars traveling on the trans-Israel highway.

Comparison with the Berlin Wall is risible in any event. The fence separates distinct peoples—Israelis and Palestinians—in the manner of fences installed by the U.S. at parts of its border with Mexico or by Israel at its borders with Lebanon, Syria, and Jordan. In most places, the fence's “footprint” is only about 160 feet wide, less than the distance covered by a runner moving from first to third base on a ball field; accommodated within this space are underground and long-range sensors, trenches, landmines, and guard paths. Manned checkpoints are the only practical and permissible means of ingress and egress.

Political claims aside, the fence has undeniably caused hardship for Palestinians.2 Freedom of movement has been curbed; there has been separation from loved ones and employment, and inconvenience in access to education and healthcare facilities; checkpoints are far apart, frequently closed, and slow to traverse. Paradoxically, however, the Palestinians have also benefited, enormously, from the fence's construction. The fence dramatically decreases the need for Israeli security forces to enter the territories following terrorist bombings for responsive military operations that can result in collateral deaths, injuries, and the destruction of property. As the UN's road map recognizes, furthermore, the overall conflict cannot be resolved unless and until the Palestinians are galvanized to end terrorism and live in peaceful coexistence; it is a sad but empirical truth that movement toward these ends will not occur until discomfort makes compromise appealing.

Israel's own supreme court has, nevertheless, taken Palestinian concerns to heart, in an action that stands as a scalding reproach to the insouciance of the UN and the ICJ toward the slaughter of innocent Israelis. While upholding construction of the fence itself, the court has directed the government to make modifications aimed at ameliorating suffering in the territories. Sharon has also made other accommodations in response to U.S. prodding. And Israel has openly acknowledged that the fence is not a final border but can be moved or eliminated in conjunction with a negotiated settlement.

The political and legal arguments against the barrier, however, are dwarfed by the national-security imperatives. Simply stated, the fence works. Since its construction began, there has been a 90-percent decrease in terrorist attacks. There have been no attacks launched from Gaza, where the fence is already completed. This past summer, there were two attacks—one in Beersheba and another in Jerusalem—both in areas where planned construction was not yet under way.

Like the General Assembly before it, the ICJ ignored these realities. Aside from uncritically adopting the Islamic bloc's propaganda that the barrier is a wall, it conducted no independent fact-finding regarding the causes of the barrier or its full consequences for either Israelis or Palestinians. The basis for its non-analysis was instead a report from UN Secretary General Kofi Annan, a resolute critic of Israel, purporting to document the suffering of Palestinians and making not the slightest pretense of even-handedness.

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Next, the ICJ rubber-stamped the General Assembly's bald assertion that Israel is an “occupying power,” and in violation of international law because its barrier effects a seizure of land belonging to another sovereign. The same premise undergirded the court's application of the Fourth Geneva Convention. Yet, while there has been agreement in principle to the eventual creation of a Palestinian state, that sovereign entity does not now exist. The matter of its con-fines—and specifically the question of whether Gaza, the West Bank, and East Jerusalem constitute occupied territories—is vigorously disputed. The ICJ wholly ignored the relevant facts, which in some particulars are centuries old and which within living memory encompass repeated armed Arab assaults on the territory and existence of the Jewish state.

This is not the place to rehearse that history in its entirety. But one relevant detail concerns the “Green Line” itself, which is simply the name that came to be attached to the armistice lines after Israel's successful struggle in 1948-49 to repulse the five Arab armies that undertook to strangle the Jewish state at birth. These individual arrangements with four of Israel's five enemies (Iraq withdrew, ceding its front to Jordan) were seen as interim deals, destined to be superseded by peace treaties that would permanently fix borders. Such treaties did not prove forthcoming, but Israel never wavered from the position that the ceasefire separations were not national boundaries. Nor were they recognized as such by the Arab nations.

The Green Line held precariously until June 1967, when Israel was again besieged by Egypt, Jordan, and Syria. At the end of a week's fighting, the Arabs had been routed and Israel had markedly expanded its territorial control, capturing the West Bank and East Jerusalem from Jordan, Gaza and the Suez from Egypt, and the Golan Heights from Syria. It was this conflict that gave rise, in November 1967, to Security Council Resolution 242, which prescribed the so-called “land for peace” formula, anticipating Israeli pullbacks in exchange for treaties that would set final boundaries with neighbors who would recognize Israel's right to exist.

Despite tireless attempts by Arab apologists through the last four decades to rewrite history—including, in July, an especially brazen intervention by the ICJ's Egyptian judge—Resolution 242 never called for Israel to relinquish all captured territory. To the contrary, the Security Council expressly considered and rejected such a prescription. The officially adopted English version of the resolution called for “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict” (emphasis added), without specifying what territory or how much territory.

Legally, then, the final status of the captured lands remains unresolved (which in part explains why Egypt and Syria launched another war of aggression in 1973 to seek to acquire by force what they had not achieved in diplomacy). Nevertheless, and especially given present claims about Israel's allegedly expansionist intentions, it is worth recalling that in 1979, when Egypt did finally settle its disputes with Israel by a peace treaty, the latter agreed to and executed a phased pullout from the Sinai (including the dismantling of settlements) while simultaneously acknowledging in principle the propriety of some form of autonomy for the Palestinian Arab enclaves of the West Bank and Gaza.

Finally, in the American-brokered Oslo accords of 1993, the Palestinians, represented—however tenuously—by the PLO, struck a historic agreement with Israel anticipating self-government and a comprehensive settlement of unresolved issues, including borders and the rights of Israeli settlers and Palestinian refugees. There has, of course, been no settlement, and no peace. Arafat's PA reneged on its commitment to recognize Israel's right to exist through an unambiguous redrafting of the Palestinian National Charter, abdicated its promise to establish the rule of law and democracy, used its media and educational system to foment hatred of Jews and Israelis, and fostered terrorism both against Jewish settlers in the disputed territories and against civilians across the Green Line.

Through all this, the PA enjoyed neither sovereignty nor fixed borders. But to the ICJ, sallying forth to evaluate legal issues hinging on both of these prerequisites, this would seem to have mattered as little as has the PA's gruesome record of internal corruption and external aggression.

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These issues aside, of greatest moment both to Israel and globally was surely the ICJ's decimation of self-defense as a sovereign imperative.

The ICJ declared: “Article 51 of the Charter . . . recognizes the existence of an inherent right of self-defense 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.” Putting aside what we have seen to be the court's infinitely flexible position on Palestinian sovereignty, its rendering of Article 51 was untenable on several levels.

To begin with, the article simply does not say what the ICJ claims it does. It states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations” (emphasis added). In other words, the provision does not require state aggression to justify a state response. As the lone ICJ dissenter, U.S. Justice Thomas Buergenthal, wrote pointedly, “the Security Council has made clear that ‘international [non-state] terrorism constitutes a threat to international peace and security’ while ‘reaffirming the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations.’ ”

Perhaps cognizant that its interpretation of Article 51 would not withstand scrutiny, the ICJ concurrently sought by sleight-of-hand to make self-defense a non-issue, suggesting (a) that attacks by terrorist militias rather than nations do not register under international law unless they are of a dimension equivalent to attacks “by regular armed forces”; and (b), according to Judge Rosalyn Higgins of the United Kingdom, that non-forcible measures like a security barrier do not qualify as legitimate self-defense. The first notion, as Anne Bayefsky has written, ignores the scale of Palestinian terror attacks against a country the size of Israel and implicitly promotes mass murder in population centers; the second, ironically, encourages lethal retaliation when more humane measures might suffice.

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To note these startling flaws in the ICJ's construction of Article 51, however, does not do justice to its assault on the venerable doctrine of self-defense. In 1951, some six years after the adoption of the UN Charter, the U.S. Supreme Court turned aside a constitutional challenge to the Smith Act, which criminalized conspiracies to advocate the violent overthrow of the American government. In a concurring opinion, Justice Felix Frankfurter made the obvious explicit:

The right of a government to maintain its existence—self-preservation—is the most pervasive aspect of sovereignty; and to protect itself from such threats [of domestic insurrection], the federal government is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions.

Indeed, it has been established U.S. jurisprudence since the Civil War that an American president is not merely empowered but obligated, regardless of congressional action, to resist by any and all appropriate measures, including force, an attack on the United States from without or from within. Nor is American law the only place where this principle of self-defense is deeply rooted. It is reflective of both doctrines and the common sense that, since antiquity, have been the pillars of international relations.

Thus, in his seminal 1625 treatise, The Law of War and Peace, Hugo Grotius, generally regarded as the father of international law, drew on Jewish and Christian writings to formulate a theory that cited repulsion of invasion as perhaps the most appropriate basis for the waging of a just war. He opined, moreover, that forcible self-defense was warranted not only after a nation has been attacked but preemptively, in instances when an adversary is clearly “preparing to kill.”

Grotius was himself far from a trend-setter on these rudimentary principles. The doctrine of self-defense had been memorialized long before in, for example, the aphorisms of Cicero, who concluded: “There exists a law, not written down anywhere but inborn in our hearts; a law that comes to us not by training or custom or reading but from nature itself . . . that if our lives are endangered, any and every method of protecting ourselves is morally right.”

The same right of self-defense is enshrined, albeit incompletely, in Article 51 of the UN Charter.3 Prior to the ICJ decision, even utopian internationalists unhappy with this provision never dreamed of claiming that the article requires state aggression before defensive measures may be justified. Instead, they confined themselves to insisting that, read literally, the article requires an actual instance of forcible aggression before a response is warranted—meaning that preemptive self-defense violates international law.

This is itself a reckless view, and it has never been adopted in practical theory or experience. Echoing Grotius, the 18th-century Swiss philosopher Emmerich de Vattel contended emphatically that

The safest plan is to prevent evil, where that is possible. A nation has the right to resist the injury another seeks to inflict upon it, and to use force . . . against the aggressor. It may even anticipate the other's design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.

Indeed, the most salient condition of self-defense in international law has to do neither with timing nor with the status of the actors but with proportionality. And this, perhaps more than anything else, underscores the ICJ's dereliction in failing to account for the toll that terror has taken on Israel. Even if the Fourth Geneva Convention actually applied to the Palestinians, there would be no violation of its provisions unless Israel's action in building the fence caused disproportionate harm, an assessment that calls for weighing the interests of both sides. To be valid under international law, preemptive self-defense, like all self-defense, must merely be proportional to the threat.

In 1962, the United States imposed a naval quarantine on Cuba in response to evidence that the Soviet Union was installing medium-range missiles. In 1967, Israel preemptively struck Egypt after the latter militarily closed the Straits of Tiran and began to advance across the Sinai. In 1981, Israel preemptively destroyed Iraq's nuclear reactor, then under construction and clearly a threat to Israel's existence; although the strike was unanimously condemned by the Security Council, no real penalties were imposed and history has remembered the attack kindly. Finally, the United States, in designing its national-security strategy in the wake of 9/11, has argued for a sensible reexamination and recasting of the doctrine of preemptive self-defense under international law in light of the modern realities of international terrorism, rogue states, and the availability of weapons of mass destruction.

Against that background, the Israeli security barrier is a historically valid, palpably necessary, provably effective, and comparatively tame self-defense measure. On the last-named point, it is worth stressing that the Israeli barrier, while both reactive and anticipatory, is also passive and non-lethal. It thus fits very comfortably within the ambit of legitimate self-defense under international law as either designed or practiced. For a judicial tribunal to have censured it bespeaks a profound corruption of its mission, and one with seismic implications for the future of international law.

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The ICJ decision is non-binding, and should not, must not, diminish Israel's resolve to complete construction of the security barrier. The first responsibility of government is the security of the governed, and the fence is saving lives, both Israeli and Palestinian.

That the ICJ has been converted into a political tool of the General Assembly can hardly be a revelation to Israel, which has grown inured to the Assembly's sting and had the good sense to avoid lending legitimacy to the ICJ process. Nevertheless, many nations and many anti-Israel activists will seize upon the presumption that this was a legitimate ruling by an important tribunal. Just as the ICJ admonished, they will deem themselves bound to censure and reverse Israel's “illegal occupation” and its “wall.” They will use the decision as a justification for looking the other way when Islamic terror strikes.

Although Israel expects nothing less from these sources, where it could be critically hurt is in the only diplomatic process that actually matters at this point: the road map. The designated facilitators of the road map, known as the Quartet, are the UN, Russia, the European Union, and the United States. Plainly, the UN will accord considerable deference to the determination of its own court. The same is true of Russia, whose justice voted with the ICJ majority. And there was also the abysmal performance of the EU. Although the European nations had weakly opposed the initial referral to the ICJ by abstaining (rather than voting “no”) in the General Assembly, the European justices proceeded unanimously to concur in the ICJ's opinion. The ruling thus reflects the views of the court's representatives from Slovakia, the Netherlands, Germany, France, and the United Kingdom. As for the U.S., its justice dissented from the ICJ ruling, but American participation lent prestige to the proceedings.

No prejudicial action has yet been taken. But if three members of the Quartet were to decide that Israel's position in the diplomatic process has now been conclusively resolved against it, and if the fourth, the U.S., were to signal that, while wrong, the ruling should nevertheless be respected, then the road map would be dead. There are assuredly those among Israel's friends who would cheer such an outcome. The point here is merely to underscore the extent to which Israel's survival hinges ever more critically on its own appraisal of its rights and its requirements, not on international institutions allegedly dedicated to fair process and blatantly unconcerned with either peace or justice.

What finally are the ramifications for the U.S. and the world? Even a half-hearted or partial American acceptance of the ICJ opinion would mean acceptance of two conclusions that are anathema to American constitutional governance. First, if the new rule is that terrorist attacks by subnational actors are an insufficient predicate for measures of self-defense, then the U.S. has unlawfully invaded Afghanistan and Iraq. And if Article 51 as brocaded by the ICJ is now to be the criterion of permissible self-defense, the Bush Doctrine and preemptive self-defense—indeed, even wholly passive measures like, perhaps, missile defense and tight border controls—are impermissible for a nation that wishes to be thought law-abiding. At a time when, among other concerns, al Qaeda scours the earth for weapons of mass destruction, terrorists scout high-profile targets on the East Coast, and Iran is at the threshold (if not beyond) of a nuclear capability, this is suicidal.

Second, and more fundamental, is the issue of sovereignty itself. Self-defense is nothing less than the right to survive, the most elementary prerogative of nationhood. Self-determination, about which the ICJ declaimed loftily and airily, is about who gets to decide whether I survive; and sovereign self-determination, at bottom, means that a nation must make that decision for itself—not search for a key to it in the latest gloss on Article 51, delegate it to an international bureaucracy, or, still worse, abdicate it to an international judicial tribunal.

Without the power to exert force, the rule of law cannot take root. But hostility to precisely this idea is the abiding watchword of the humanitarian organizations that abetted and provided many of the intellectual underpinnings for the ICJ process. To the principle that human dignity is dependent on the physical power of nations to defend themselves, these organizations and their spokesmen inveterately prefer the quixotic quest for pan-acceptance of universal legal principles.

In recent years, we have repeatedly seen the perverse effects of this disposition. Pitting the humanitarians against the very societies that have striven the hardest to abide by legal principles to the fullest practicable extent, it has aligned them instead with terrorists and insurgents sworn to the destruction of civilized law and of those who uphold it. If the views of the internationalists at the UN and the so-called humanitarians who support them are permitted to prevail, just how humane will be the world they would have us inhabit? It will be a world, of which our own may be a foreshadowing, where a fence that saves human lives can be routinely ruled a violation of human rights, and where barbarism increasingly runs unchecked.

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Footnotes

1 American Enterprise Institute, 272 pp., $25.00.

2 The legal scholar Ruth Wedgwood offers a characteristically judicious treatment in her “White Paper on the International Court of Justice and the Israeli ‘Fence’ ” (Foundation for the Defense of Democracies).

3 For an insightful discussion of the breadth of the self-defense doctrine, see David B. Rivkin, Jr., Lee A. Casey, and Darin Bartram in “Remember the Caroline” (National Review Online, July 1, 2002).

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About the Author

Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.




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