Columbia University Professor Anne Bayefsky, who delivered an outstanding speech to the UN a short while ago, now responds to the UCJ decision condemning Israel’s security fence. Bayefsky stresses that the implications of the UN court’s decision reach far beyond Israel:
The Court has declared four new rules about the meaning of the right of self-defense in the face of terrorism today.
(1) There is no right of self-defense under the U.N. Charter when the terrorists are not state actors.
(2) There is no right of self-defense against terrorists who operate from any territory whose status is not finalized, and who therefore attack across disputed borders.
(3) Where military action is perpetrated by “irregulars,” self-defense does not apply if the “scale and effects” of the terrorism are insufficient to amount to “an armed attack…had it been carried out by regular armed forces.” (The scale in this case is 860 Israeli civilians killed in the last three years — the proportional equivalent of at least 14 9/11’s.)
(4) Self-defense does not include nonviolent acts, or in the words of Judge Rosalyn Higgins: “I remain unconvinced that non-forcible measures (such as the building of a wall) fall within self-defence under Article 51 of the Charter.”
These conclusions constitute a direct assault on the ability of every U.N. member to fight international terrorism. The U.N. Charter was not a suicide pact and Security Council resolutions in response to 9/11 were intended to strengthen the capacity to confront violent non-state actors, not defeat it.
Bayefsky includes some statements from the judges, rationalizing terror:
some of the judges were concerned that the go-ahead for Palestinian suicide bombers might not be obvious enough. So Judge Abdul Koroma of Sierra Leone wrote: “It is understandable that a prolonged occupation would engender resistance.” Judge Nabil Elaraby of Egypt said, “Throughout the annals of history, occupation has always been met with armed resistance. Violence breeds violence.” He “wholeheartedly subscribe[d] to the view” that there is “a right of resistance.” Judge Hisashi Owada of Japan spoke of the “the so-called terrorist attacks by Palestinian suicide bombers against the Israeli civilian population.”
It’s a devastating critique, the best-researched and most compelling we’ve seen. Read it here.
