The Right to Self-Defence

United Nations and the International Court of Justice

Eli E. Hertz

United Nations Charter - Article 51

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
The Right to Self-Defence 1 Copyright @ 2010 Eli E. Hertz

Article 51 of the UN Charter clearly recognizes “the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations” by anyone. That is, the language of Article 51 does not identify or
stipulate the kind of aggressor or aggressors against whom this right of self-
defence can be exercised … and certainly does not limit the right to self-defence to
attacks by State only!
International Court of Justice (ICJ) attempt to qualify the use of self-defence under
Article 51 as aggression committed by a state only is clearly an attempt to evade
international law. The Court opinion engages in some highly questionable
interpretations not only of its own mandate, but also of the UN Charter’s article on
the right to self-defence, or in the case of Israel, the lack of the right to self-
defence.
The Court purposely ignores repeated acts of terrorism from ‘Palestine’1 as
emanating from non-state entities and therefore inadmissible to the issue of the
security fence.
The ICJ writes in paragraph 139 of the opinion:
“Under the terms of Article 51 of the Charter of the United Nations:
"Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security.
“Article 51 of the Charter thus recognizes the existence of an inherent right of self-
defence 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. … Consequently, the Court concludes that Article 51 of the Charter
has no relevance in this case.” [italics by author]
In addition to, and apart from, the provisions of Article 51, the ICJ also ignores the
fact that Palestinian warfare is “Strictly regulated by the customs and provisions of
the law of armed conflict, referred to here as international humanitarian law
(IHL).”
“The authoritative commentary of the International Committee of the Red Cross
(ICRC) to the Fourth Geneva Convention justifies applying the provision to non-
state actors, saying [t]here can be no drawbacks in this, since the Article in its
reduced form, contrary to what might be thought, does not in any way limit the
right [E.H., to self-defence] of a State to put down rebellion, [Not necessary a State]
nor does it increase in the slightest the authority of the rebel [in this case the
Palestinian Authority].” [italics by author]
The ICJ ignores the Palestinian Authority (PA) violations of their assumed
responsibility, such as the Oslo Accords, that required the Palestinian Arabs to
abide by internationally recognized human rights standards. The Israeli
Palestinian interim agreement of September 28 1995 stated:
“Israel and the Council [Palestinian Interim Self-Government Authority, i.e., the
elected Council,] hereinafter ‘the Council’ or ‘the Palestinian Council’ shall exercise
their powers and responsibilities pursuant to this Agreement with due regard to
internationally-accepted norms and principles of human rights and the rule of
law.”
Israel’s right to self-defence under Article 51 cannot be more apparent according to
both international humanitarian law and the ‘Oslo Accord.’
Nothing can be more ludicrous than the ICJ conclusion that because “Israel does
not claim that the attacks [by Palestinian terrorists] against it are imputable to a
foreign State,” it lost its right to act in self-defence.
It is worth noting that the UN and its organs have compromised even the Geneva
Convention’s protocols, by selective politicization to single out Israel.2 The High
Contracting Parties never met to discuss Cambodia’s killing fields or the 800,000
Rwandans murdered in the course of three months in 1994.3 Israel is the only country in the Geneva Convention’s 60-year history to be the object of a country-
specific denunciation.
ICJ lacks the Authority to ‘Amend’ or ‘Interpret’ Article 51
There is no foundation for ‘adding restrictions,’ narrowly interpreting Article 51’s
meaning, or simply making any changes to the UN Charter.
It is rather strange that the ICJ, of all bodies, takes liberties to change what Article
51 clearly states. This ICJ also failed to review its own past writings on the subject
of attempting to interpret UN Charter Articles. Elsewhere in the opinion, the ICJ
quotes its 1950 ruling on South West Africa (Namibia) regarding Article 80 of the
same UN Charter, saying that Articles of the UN Charter were carefully penned
and should be strictly read in a direct manner ‘as is’:
“The Court considered that if Article 80 paragraph 2 had been intended to create
an obligation … such intention would have been expressed in a direct manner”4
The ICJ Bench zig-zags from strict construction to loose construction, coupled
with biased interpretation, to deny Israel the fundamental right to defend its
citizens from terrorism.

[italics by author].
Writing on the subject of the legal effect of Resolutions and Codes of Conduct of the
United Nations, Professor, Judge Stephen M. Schwebel, the former president of the
International Court of Justice, notes:
“What the terms and the travaux (notes for the official record) of the Charter do
not support can scarcely be implemented.”5
Ironically, in December 2004, the UN High-level Panel on Threats, Challenges and
Change, published the much anticipated report entitled “A more secure world: Our
shared responsibility.” Paragraph 192 of this report states:

“We do not favour the rewriting or reinterpretation of Article 51.” [Bold in the
original]
The same is true of the International Court of Justice, an organ of the United
Nations, which lacks the mandate to ‘amend’ Article 51.

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