Australia takes a brave stand for human rights in the Middle East

India, Saudi Arabia, and Turkey voted to refer the Israeli fence to the ICJ even though each has built their own barriers. India is just completing a 460-mile barrier in Kashmir to halt infiltrations supported by Pakistan; Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to halt smuggling of weaponry; and Turkey built a barrier in the southern province of Alexandretta, which was formerly in Syria and is an area that Syria claims as its own. All of these borders are subject to dispute.

The ICJ decision placed much emphasis on the right of the Palestinians to self-determination, and decided that Israel was required to accord rights under international treaties to the Palestinians, even while their claim to statehood remained nascent.

However, the ICJ also decided that Israel could not rely on the doctrine of self-defence to justify the security barrier because the threats of force that the security barrier was designed to counteract were not "imputable to a foreign State". The right of self-defence says the majority of the ICJ is limited to self-defence in the case of armed attack "by one state against another state". The majority took the view that Israel could not rely on the right of self-defence against persistent acts of terrorism purveyed by a non-State. As Dr Leanne Piggott pointed out this conclusion has no support in the UN Charter, and has the effect of denying nations the right to defend themselves against al Qa’ida.

Moreover, while deciding that only actions by states could give rise to a right of self-defence, it decided that non-states (in this case, the same non-state) had territorial rights just like any sovereign state.  Thus the Palestinians are given rights without responsibility, hardly a fair approach.

There is a patent double standard in the majority judgement.  The Palestinians are accorded rights without a responsibility to stop the terror that emanates from within their midst, and Israel is accorded responsibility for Palestinian self-determination, without the right to defend her civilians against suicide/homicide bombings.

Judge Rosalyn Higgins, the British Judge who was not prepared to uphold the route of the security barrier, expressly concluded that the majority was wrong to decide that self-defence is available only when an armed attack is made by a State. The Judge said in her book: Problems and the Process of International Law: "Common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself".

Under Article 51 of the UN Charter, as it had been interpreted prior to the 9 July 2004 decision of the ICJ, a nation had an inherent right to preserve its existence and to defend itself from any armed attack. If that is right, then the building of a security barrier, which is not of itself a use of force to counteract an illegal use of force, must be legally permitted. Not so now, says the ICJ.

While agreeing with the majority's answer to the question placed before the Court, Judge Higgins criticised the framing of the question. She ruled that the very formulation of the question precluded consideration of the historical and legal context. Judge Higgins, however, supported the decision in terms that would have found favour with the Israeli Supreme Court: "While the wall does seem to have resulted in a diminution on attacks on Israeli civilians, the necessity and proportionality for the particular route selected, with its attendant hardships for Palestinians uninvolved in these attacks, has not been explained."

On the self-defence issue, the dissenting declaration of Judge Thomas Buergenthal, the American Judge, is even more powerful. He reminded his judicial colleagues that: "the Security Council has made clear that ‘international terrorism constitutes a threat to international peace and security’ while ‘reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)’ (Security Council resolution 1373 (2001))."

Judge Buergenthal ruled that any judgment about whether the security barrier would be a legitimate exercise of the right of self-defence required that: "all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court's formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case."

And as Judge Buergenthal correctly pointed out: "the Court fails to address any facts or evidence specifically rebutting Israel's claim of military exigencies or requirements of national security."

But one should not be surprised.  Much as the United Nations has ceased to be a credible participant in resolving the conflict between Jew and Arab in the Middle East, so too its judicial organ, the ICJ, has proven itself incapable of dealing fairly with that conflict.  It is fairly safe to doubt that any other nation will ever face a negation of the right of self-preservation against unremitting terrorism.  Yet, that is what the ICJ has sought to deny to Israel.