TCS Daily

The UN's Attack on Self-Defense

By Patrick Cox - July 30, 2004 12:00 AM

Palestinians have decided to delay, until after the upcoming U.S. presidential elections, bringing a resolution to the United Nations Security Council that would endorse the July 9th, non-binding ruling by the UN International Court of Justice that called on Israel to dismantle its security barrier. Nothing better demonstrates the tangled, hermetic politics of the Middle East,

Unlike the General Assembly's July 20th vote, endorsing the ICJ ruling against Israel, a Security Council vote would have real legal teeth and could be used as the basis for imposing South Africa-type sanctions if the security barrier is not removed. Predictably, members of the powerful Arab/Muslim bloc, with 54 of the 190 member state votes, support such a resolution.

An American veto is a given -- but not for the reasons that most assume.

On several occasions -- including an emergency session of the UN General Assembly, convened to add its weight to the ICJ decision -- U.S. Ambassador John Danforth condemned the ruling. Besides pointing out his general concerns about the failure to deal with the terrorism the barrier was designed to deter, Danforth addressed a fundamental shift, contained within the court's decision, in UN thinking about terrorism.

Specifically, he referred to paragraph 139 of the ICJ ruling that cites Article 51 of the United Nations Charter, recognizing nation-states' right to self-defense:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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."

But then, as Danforth pointed out, the court added an interpreting paragraph, modifying that right in a manner that should have raised serious concerns in America:

"Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense 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."

Ambassador Danforth said of this new interpretation:

"So the Court opinion, which this resolution would accept, seems to say that the right of a State to defend itself exists only when it is attacked by another state, and that the right of self-defense does not exist against non-state actors. It does not exist when terrorists hijack planes and fly them into buildings, or bomb train stations, or bomb bus stops, or put poison gas into subways.

"I would suggest that if this were the meaning of Article 51, then the United Nations Charter could be irrelevant in a time when the major threats to peace are not from states, but from terrorists."

In other words, the interpretation of Article 51 enshrined in this court ruling, and endorsed by the General Assembly, delegitimizes military action by states against non-state terrorist organizations -- unless permission is given by the government that harbors those terrorists.

Opposed only by the American judge, Thomas Buergenthal, the ruling would abrogate the legal right for nation states to attack terrorists that are not openly supported by their hosting government. If endorsed by the Security Council, it could prohibit actions such as the coalition's overthrow of al Qaida's Taliban hosts in Afghanistan.

It is impossible to believe that the 14 judges of the ICJ who supported the ruling did not understand the implications of their ruling. Not only did Justice Buergenthal argue explicitly, in his dissenting opinion, that the right of self-defense has always applied equally to non-state actors, the British and Dutch Justices supported his position.

As the ruling, condemning Israel's security barrier, could have been crafted without such a radical change in international law, Paragraph 139 has to be seen as a poison pill -- a virtual guarantee that the US would veto a resolution endorsing the ICJ ruling if it comes before the Security Council.

How the Ruling Emerged

Though Americans tend to flounder in the depths tread by accomplished international conspiracy theorists, allow me to peer, with the help of my own Arab-American advisors, into the murky waters from which this ruling arose.

The construction of the security barrier, in conjunction with Prime Minister Ariel Sharon's plan to withdraw from Gaza, has provoked near panic in the Middle East. While considerable opposition to disengagement comes from within Israel itself, there is at least as much fear on the other side of the border that Sharon will impose what is, essentially, a two-state solution. Palestinian leaders, including Yasser Arafat, have denounced the plan to "unilaterally" bestow the autonomy that they have long demanded, but repeatedly rejected.

In recent weeks, open warfare has broken out among and between Palestinian factions. Police station have been attacked and burned. Government buildings have been taken over, officials and commentators attacked and kidnapped -- all contributing to a larger, public disillusionment with the Palestinian leadership.

While Arab hardliners accuse Israelis of everything from using the blood of murdered Christian children in Passover matzah to plotting the removal of all non-Jews from both Israel and the Palestinian territories, Israel's Supreme Court has ordered portions of the barrier moved, at the cost of tens of millions of dollars, to lessen Palestinian hardships. The irony is that Sharon's strategy, to withdraw and cede to the Palestinians full control of their own country, may be the most ruthless thing Israelis are capable of doing to their sworn enemies.

Though critics among Sharon's own countrymen are angry that he would disengage from Gaza without reciprocal concessions, he clearly believes the benefits of such a move outweigh the costs and risks.

Some of those benefits fall into the category of public relations. With no Israeli presence and no occupation to blame for the many Palestinian problems, including their dismal corruption-plagued economy, the current Palestinian leadership will find it more difficult to evade responsibility for conditions in their territories.

Other benefits, however, are related directly to security concerns. With most Israelis on their own side of the barrier, resources could be reallocated to border protection. Significant reductions in terror attacks, attributable to the security fence, are already contributing to the current economic recovery.

Disengagement would also change, legally, the parameters of the military conflict -- as Israel's fight against terror is complicated to the degree it maintains authority over Gaza. It is precarious, politically and legally, to hold the Palestinian Authority responsible for terrorism when Israel withholds full sovereignty from the area's inhabitants. If governance were to be vested completely in the hands of Palestinians, responsibility for attacks launched from their territory would more rightly be deemed an act of war -- with a wider range of military options available to Israel than they currently employ.

Given Israel's comparative advantage in the overtly military sphere, fear of a state-to-state response against Palestinian terror has to be seen as a primary reason that the Arab/Muslim bloc has pressured for a change in the official UN definition of self-defense. If passed by the UNSC, it would protect and enshrine the strategy, developed and perfected by Arafat, of funding and organizing terrorist attacks while officially denying the ability to prevent them.

We are forced, therefore, to wonder why the ICJ would craft a ruling that specifically threatened America's right to self-defense as well -- guaranteeing that their work would be overruled.

The Nature of the UN

To understand the move, we need first to remember who we are dealing with. This is the organization, after all, that kicked the U.S. out of the Human Rights Commission in favor of Sudan, the only country in the world where slave markets operate openly. Even with thousands of non-Arab Muslims, Christians and animists dying at the hands of the Arab rulers every month, the Arab/Muslim bloc has rejected actions against their member nation.

One commentator, Lori Lowenthal Marcus, has put forth the theory that the Palestinian delegation is planning to use a little known mechanism to override an American veto. It is 377(A)(V), the "Uniting for Peace" Resolution introduced by the U.S. in 1950 as a means of overcoming the Soviet veto of Security Council efforts to deploy UN troops when North Korea, using Soviet-supplied arms and equipment, invaded South Korea. The legal theory behind 377 was that, because the primary responsibility of the Security Council is international peace and security, a veto by a permanent member could be overridden by a super-majority of the Security Council to deal with an imminent threat.

The fact that the ICJ made a point of invoking Resolution 377 as a basis for rejecting Israel's argument, that the court had no jurisdiction over the barrier, may presage its use in a challenge to the U.S. veto. Those who hold this position also point to the delay in bringing the resolution before the UNSC, believing that the Arab/Muslim bloc is concerned that such an open challenge to the U.S. would assist the Bush reelection campaign.

Even if this veto-override strategy is not implemented, Americans ought to be seriously concerned by the escalation in UN efforts to hamper the fight against terrorism -- as it is embodied in the ICJ's rewriting of UN law regarding self-defense. Curiously, such a bold move has come at a time when one might think UN functionaries would be seeking a lower profile.

The use of the UN to protect Saddam Hussein's regime has angered many Americans, already unhappy with their disproportionate funding of the international organization. Now, the oil-for-food scandal is unfolding into what appears to be the greatest financial scam in history, reaching even into Kofi Annan's own family. The inability or unwillingness of the UN to intervene in the ongoing Sudanese genocide, or even officially admit its existence, raises questions about the very existence of the organization.

The upside of this deterioration in UN credibility may, however, provide an opportunity for reformers to implement institutional changes that will, at least, make it more difficult for the United Nations to promote the interests of autocracies over democracies.


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