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July 12, 2004
THE advisory opinion brought down by the International Court of Justice last Friday in relation to Israel's separation barrier has implications far beyond the Israeli-Palestinian conflict. Buried deep in the text of its opinion is a bombshell that purports to radically rewrite the rules of international law governing the inherent right of states to defend themselves and their citizens.

The ICJ recognises that this right is enshrined in Article 51 of the UN Charter. But the ICJ then says that this right is limited to self-defence in the case of armed attack "by one state against another state". That limitation does not appear anywhere in the text of Article 51 itself. Article 51 recognises that states have an inherent right of self-defence "if an armed attack occurs". It does not say that the armed attack must have been carried out by, or be attributable to, another state.

The distinction is critical in the on-going struggle against international terrorism. Although every act of terrorism necessarily originates in territory (or aboard a ship or aircraft) that is owned or occupied by a sovereign state, it does not follow that every such act of terrorism is supported by that state, and attributable to it in a legal sense.

The ICJ is now saying that if terrorists based in the territory of state A attack state B without the passive or active support of state A, state B may not have the right to defend itself from future attack by striking back at the terrorist base – despite Article 51. This is best illustrated by a concrete example.

Suppose a branch of al-Qa'ida establishes a mobile base on some remote islands in the Indonesian archipelago. Suppose also that the Indonesian government uses sincere efforts to put the base out of operation but is unable to do so. Suppose further that from that base a devastating terrorist attack is planned, financed and co-ordinated, then carried out on Australian soil, resulting in the deaths of hundreds of Australian civilians.









Suppose, finally, that the Indonesian government, for internal political reasons, refuses to give Australia or any other state or international organisation permission to send troops onto its territory to wipe out the base.

Would Australia, in those circumstances, be legally justified in attacking the base, relying on its inherent right of self-defence? Until now, many lawyers would have answered yes. But according to the advisory opinion of the ICJ, the answer is no. Australia's only legal recourse would be to refer the matter to the UN Security Council in the hope that that body would authorise the use of force under Chapter 7 of the UN Charter.

But that could be a slow process, fraught with political uncertainty. There is no guarantee that the Security Council would authorise the use of force. Even if a majority of Security Council members were prepared to give that authorisation, it could be vetoed by China, Russia or France, or (less likely) by the UK or the US.

And even if the Security Council eventually decided to authorise the use of force, a further attack against Australia could be launched while it debated the issue and Australia would still legally be prohibited from striking at the base until the Security Council authorisation had been obtained.

Little wonder that several judges of the ICJ felt the need to publish separate opinions expressing disagreement with the ICJ's pronouncements concerning a state's exercise of its right of self-defence. Judge Pieter Kooijmans (Netherlands) observed that the ICJ had failed to note that the Security Council resolutions condemning international terrorism, on which Israel relied, do not refer to an armed attack "by another state" but to acts of "international" terrorism.

In his dissenting opinion, Judge Thomas Buergenthal (US) expressly affirmed that the right of self-defence is not restricted to responses to attacks by state actors but is also exercisable against armed attacks by non-state actors. Judge Rosalyn Higgins (UK) also stated that she does not share the majority's views on self-defence.

In the long run, the ICJ's pronouncements on a state's right of self-defence will be of more lasting significance than its conclusions about Israel's separation barrier. Many states are likely to reject the ICJ's attempt to confine the right of self-defence to responses to armed attacks by state actors. The ICJ's opinion not only departs from the text of Article 51 of the UN Charter, it also defies common sense.