Ipse Dixit at the I.C.J.
35 Pages Posted: 4 Dec 2004
In July 2004, the International Court of Justice provided an advisory opinion to the U.N. General Assembly regarding the legality of the barrier under construction by Israel in the West Bank. In finding that the construction of the barrier was unlawful, the Court stated that Israel could not justify the barrier as a matter of self-defense under Article 51 of the U.N. Charter, because the terrorist attacks being made upon Israel could not be imputed to a foreign state. While the Security Council had viewed the attacks of September 11, 2001 upon the United States as triggering a right of self-defense even without imputation of those attacks to a state, the Court distinguished that precedent on grounds that the threat to Israel originates within territory under Israeli occupation. Consequently, the Court concluded that Article 51 had no relevance to Israel's situation.
The position taken by the Court with respect to the Article 51 is startling in its brevity and, upon analysis, very unsatisfactory. At best, the position represents imprecise drafting, and thus calls into question whether the advisory opinion process necessarily helps the Court to develop its jurisprudence and to contribute to the progress of international law. At worst, the position conflicts with the language of the UN Charter, its travaux preparatoires, the practice of states and international organizations, and common sense. In addition to the lack of cogent analytical reasoning, the Court's unwillingness to pursue a serious inquiry into the facts underlying Israel's legal position highlights a disquieting aspect of the Court's institutional capabilities: an apparent inability to grapple with complex fact patterns associated with armed conflict. Overall, the Court's peremptory style in addressing the jus ad bellum reflects an unfortunate ipse dixit approach to judicial reasoning; the Court apparently expects others to accept an important interpretation of the law and facts simply because the Court says it is so.
Keywords: United Nations Article 51, self-defense, travaux préparatoires, jus ad bellum
JEL Classification: K33, K42, F00
Suggested Citation: Suggested Citation