COMMENT: In ruling on barrier, UN International Court ignores the basic need of security 
BY STEVEN LUBET 
July 13, 2004
The United Nations International Court of Justice has decided that the construction of Israel's security barrier, beyond the 1967 green line, is contrary to international law. Given that its advisory opinion is intended to provide guidance to UN institutions, you would probably expect the court to address Israel's security claims in some detail, explaining why they are outweighed by the interests of the Palestinians. 
You would be disappointed. 
Although the court spares few words on most subjects -- the opinion runs 72 pages -- it devotes only a dozen or so sentences to Israel's rationale for building the barrier. 
The court's treatment of the security situation was cursory at best, and dismissive at worst. 
For example, Israel contended that the barrier was built only in response to Palestinian acts of violence against the Israeli population. In the opinion, the court said this argument was not pertinent, brushing aside the entire question of Palestinian responsibility. 
Reading the opinion, you would never know that the barrier was authorized only after a devastating series of suicide bombings, including an attack on a Passover Seder that killed 29 people and maimed many more. 
In fact, you would never know there had been any suicide bombings, since they are not mentioned at all. Nor would you know that the barrier has succeeded in reducing the attacks almost to zero. Until last week's bombing in Tel Aviv, there had not been an incident for nearly four months. 
Nonetheless, the opinion sweepingly declared that the court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives and that the route cannot be justified by military exigencies or by the requirements of national security. That conclusion might have some credibility if the court had actually compared the details of the route to Israel's objectives -- as Israel's own Supreme Court has done twice when ordering portions of the barrier to be relocated in order to alleviate hardships to Palestinians. That would have required an analysis of Israel's security needs, however, which the UN court chose to ignore. 
But even if you are unconcerned about the lives of Israeli civilians, another portion of the opinion should be alarming to every American. 
Israel contended that the barrier was justified by its inherent right to self-defense, as permitted by the UN charter and various Security Council resolutions. Sorry, said the Court: The right of self-defense applies only in the case of an armed attack by one state against another state, which evidently excludes Palestinian terrorists. Thus, the court held that Israel's assertion of self-defense has no relevance. 
That same chilling logic would mean that the United States and other countries could not fully exercise the right of self-defense against Al Qaeda terrorists, since they do not represent a state any more than Hamas does. 
The American judge on the Court, Thomas Buergenthal, dissented, deftly exposing the many flaws in the Court's reasoning. He pointed out that several Security Council resolutions have emphasized the national right of self-defense against international terrorism, without limiting it to terrorist attacks by state actors. He also noted that the court completely failed to address any facts or evidence specifically rebutting Israel's claim of military exigencies or requirements of national security. 
A respected scholar and a human rights advocate who has mentored generations of American activists, Buergenthal is no apologist for Ariel Sharon. He was ready to agree (as am I) that sections of the fence violate international law, but he was not willing join the court's wholesale disregard for Israeli security. (I was briefly a colleague of Buergenthal's in 1987-88.) 
I was lecturing in Israel last month, and I made a point of visiting the barrier in the Arab village of Abu Dis, in the hills above Jerusalem. It is as ugly and awful as its critics claim, slicing through the heart of the village without regard for neighborhoods, streets or even backyards. Oddly enough, it is far from impenetrable. My friends and I easily located a 2-foot gap in the fence, through which a constant stream of Palestinians passed back and forth. Cab drivers were waiting on the Israeli side, presumably taking their passengers to visit family or to work. Waiters from a restaurant on the West Bank side brought coffee to the drivers. 
The Israeli authorities have obviously chosen to ignore the gap, recognizing the need for some sort of outlet. Still, the burden is terrible. And so are the suicide bombers who occasioned it. 
One aches with the hope that the two people could better understand each other's fears and aspirations, and wishes that the International Court of Justice had been willing to see both sides. 
STEVEN LUBET is a professor of law at Northwestern University in Chicago. He is coauthor of Judicial Conduct and Ethics. Write to him in care of the Free Press Editorial Page, 600 W. Fort St., Detroit, MI 48226. 
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