Strange effects - Israel's right to self-defense
Jan. 10, 2010
Harry Reicher , THE JERUSALEM POST
There is something about the Arab-Israeli conflict that does strange things to people. Even otherwise distinguished personalities, who in every other context are rational, sensible thinkers, become unrecognizable. The international law of self-defense is a case in point.
It is trite to say that the first and most basic human instinct is that of self-preservation. Article 51 of the United Nations Charter, which enshrines "the inherent right" of self-defense, emanates from this. The occurrence of "an armed attack" triggers the right.
In the context of Israel's incursion into Gaza last year, in response to several thousand rockets which had been fired from there into Israel over a period of years, a letter appeared in The Times of London, exactly a year ago today, signed by 31 lawyers. The lead signatory was Sir Ian Brownlie, professor emeritus of public international law at Oxford University, undoubtedly one of the world's preeminent international law authorities. The letter asserted, in so many words, the astonishing proposition that the thousands of rockets which landed in Israel (and were aimed at civilian populations and centers) "do not, in terms of scale and effect, amount to an armed attack entitling Israel to rely on self-defense."
ONE IS tempted to wonder what Prime Minister Gordon Brown would say to the notion that thousands of missiles lobbed into England would not, of themselves, constitute an armed attack. To this, one should add the International Court of Justice which, in its 2003 opinion arising out of the construction of Israel's security fence, concluded, by a vote of 14-1, that suicide bombers wreaking havoc on the country did not justify exercise of the right of self-defense, because they were not "armed attack[s] by one state against another state."
To get to this result, the court (a) wrote into Article 51 words that simply do not exist, requiring the attack to come from another state; and (b), in any event, disregarded the fact that suicide bombers are recruited, indoctrinated, trained, financed and dispatched from outside Israel.
And then there is Richard Falk, professor emeritus of international law at Princeton University, who issued a statement during the Gaza war, against the background of Hamas shamelessly, callously and cold-bloodedly embedding military personnel, arms, munitions and other military equipment in the heart of civilian populations (which international law expressly outlaws). Despite the fact that this made it well nigh impossible to distinguish between civilian and military targets, Falk declared that even in these circumstances, "launching [an] attack is inherently unlawful and would seem to constitute a war crime of the greatest magnitude under international law."
Simply stated, there was absolutely nothing Israel could do to protect itself.
IN REFLECTING on these examples, it is important not to lose sight of something fundamental. The question is not whether a particular proposition, however bizarre, can be supported by authority. As a senior queen's counsel told me in my first year out of law school, as we sat in his book-lined chambers: "You see these books? In these books, you can find authority for any proposition you want to put."
In an adversarial situation, that makes perfect sense. It is, after all, the role of counsel to forcefully advance his or her client's interests: You give me the conclusion, I'll give you the argument!
Wisdom and sound objective judgement, on the other hand, require an altogether different line of inquiry. It involves standing back, and asking objectively: Does this make sense? Is it realistic? In the present context, does it make sense, and is it realistic, to expect a country - any country - to sit passively and not respond as thousands of missiles rain down on it or as suicide bombers wreak their ghoulish horror? And does it make sense to give terrorist organizations carte blanche to use civilian populations as human shields with impunity, secure in the knowledge that that is enough to prevent a military response? And is all of this consonant with the most basic human instinct of self-preservation?
To articulate these questions is sufficient. They really answer themselves. Sadly, though, the Arab-Israeli conflict continues to weave its spell.
The writer, an Australian barrister, lives in the US, where he teaches international human rights at the University of Pennsylvania Law School and is scholar-in residence at Touro Law Center.