When Jus ad Bellum Meets Jus in Bello: The Occupier's Right of Self-Defence against Terrorism Stemming from Occupied Territories

Leiden Journal of International Law

Volumn 19, Issue 1, 2006, Pages 129-149

  Canor, Iris ^a  

^a Academic Studies Division ^*  (Israel)

Author keywords

Advisory Opinion on the Wall; effective control; International Court of Justice; jus ad bellum; jus in bello; self defence

Indexed keywords

EID: 85010088353     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505003213     Document Type: Article

References (97)

1. T. Burha and C. J. Tams, ‘Self-Defence against Terrorist Attacks. Considerations in the Light of ICJ's “Israeli Wall” Opinion’, in K. Dicke et al. (eds.),Weltinnenrecht Liber Amicorum Jost Delbrü ck (2005), 85.
2. G. Abi-Saab, ‘The Proper Role of International Law in Combating Terrorism’, in A. Bianchi (ed.), Enforcing International Law Norms against Terrorism (2004), xiii.
3. In order to deal only with this very precise question it will be assumed throughout this article that all the other prerequisites enumerated in Art. 51 which need to be fulfilled in order for the right of self-defence to be invoked, are fulfilled. Namely, it will be assumed that a terror attack launched by private groups from the occupied territories may amount in its scale and effects to an ‘armed attack’ and may be of a magnitude which is comparable to the attack referred to in Art. 51 of the UN Charter. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),Merits 27 June 1986, [1986] ICJ Rep. 14, at 110, para. 210.
4. Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep., 136 (see also www.icj-cij.org).
5. HCJ 7954/04 Mara'abe et al. v. The Prime Minister of Israel et al. (not yet published), from 23 Sept. 2005, http//www.court.gov.il, para. 23” ‘The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense… We find this approach of the International Court of Justice hard to come to terms with’.
6. Israeli permanent representative Dan Gillerman, ‘Address to the UN General Assembly?’, UN Doc. A/ES-10/PV.21 (2003), 6.
7. Art. 51 of theUNCharter reads” ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against aMember of theUnitedNations, until the Security Council has taken measures necessary to maintain international peace and security… ’. The right of selfdefence is not only regulated by Art. 51, but also by norms of customary international law, as recognized by the Court in the Nicaragua case, Israeli permanent representative Dan Gillerman note 3.
8. This was recently confirmed by the ICJ in the Case concerning Oil Platforms (Iran v. United States of America), Judgment of 6 Novem 2003, www.icj-cij.org/. This case was interpreted to imply ‘a recognition that there is no other lawful possibility for a state to resort to force outside self-defence… smaller scale use of force… would not entitle the victim state to resort to armed force’,N.Ochoa-Ruiz and E. Salamanca-Aguado, ‘Exploring the Limits of International Law Relating to the Use of Force in Self-defence’, (2005) 16 EJIL 499, at 509.
9. B. O. Bryde, ‘Self Defence’, in R. Bernhardt (ed.), Encyclopedia of Public International Law (2000), IV, 361, at 362.
10. R. Grote, ‘Between Crime Prevention and the Laws ofWar” Are the Traditional Categories of International Law Adequate for Assessing the Use of Force against International Terrorism?’, in C. Walter et al. (eds.), Terrorism as a Challenge for National and International Law” Security versus Liberty? (2004), 951, at 954.
11. M. J. Glennon, ‘Military Action against Terrorists under International Law” The Fog of Law” Self-Defence, Inherence, and Incoherence in Art. 51 of the United Nations Charter’, (2002) 25 Har. J. L. & Pub. Pol'y 539, at 540, 557.
12. A. Randelzhofer, ‘Art. 51’, in B. Simma (ed.), The Charter of theUnitedNations (2002), 788, at 792, who states that ‘being caught in the “dilemma between security and justice” the UN Charter deliberately gave preference to the former’.
13. See Legal Consequences of the Construction of aWall, Art. 51 of theUNCharter reads” ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against aMember of theUnitedNations, until the Security Council has taken measures necessary to maintain international peace and security… ’. note 4, para. 139.
14. This was suggested by the Supreme Court of Israel to be themain reason for the different conclusionswhich the ICJ and the Supreme Court of Israel have reached concerning the legality of the fence. Hence the Supreme Court of Israel stated that ‘the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not oblige the Supreme Court of Israel to rule that each and every segment of the fence violates international law’,Mara'abe case, Legal Consequences of the Construction of aWall note 5, para 74.
15. See Legal Consequences of the Construction of a Wall, Advisory Opinion, This was suggested by the Supreme Court of Israel to be themain reason for the different conclusionswhich the ICJ and the Supreme Court of Israel have reached concerning the legality of the fence. note 4 (Judge Buergenthal, Declaration), paras. 5-6. Judge Buergenthal dissented from the Court's ruling, although on totally different grounds. Judge Higgins, Separate Opinion, paras. 33-35. Judge Kooijmans, Separate Opinion, paras. 31-33.
16. Mara'abe case, Legal Consequences of the Construction of a Wall, Advisory Opinion, This was suggested by the Supreme Court of Israel to be themain reason for the different conclusionswhich the ICJ and the Supreme Court of Israel have reached concerning the legality of the fence. note 4 note 5, para. 23.
17. A. Bianchi, ‘The ICJ's Advisory Opinion and Its Likely Impact on International Law’, (2004) 47 German Yearbook of International Law 343, at 375. A. Cassese, International Law (2005), 355. Attention should be drawn to the fact that the ICJ did not resort to Israel's right of self-defence which is based on customary international law and which is regarded as being less rigid. Put differently, the approach according to which the use of military force is permissible even in the absence of an armed attack, given the fact that Art. 51 does not create an exclusive legal right to self-defence but recognizes the existence of an inherent right to self-defence including instances in addition to an armed attack, was not endorsed by the Court. The Court has preferred to narrow the grounds for the unilateral use of force under the Charter.
18. A. M. Slaughter andW. Burke-White, ‘An International ConstitutionalMoment’, (2002) 43 Harvard International Law Journal 1.
19. See Grote, ‘The ICJ's Advisory Opinion and Its Likely Impact on International Law’ note 10, at 965.
20. Grotehas expressed caution in an articlewhich was published before the ICJ gave its opinion, saying that ‘it is farfromcertain,however, thatsuchdramaticchangesaffecting theverystructure oftheinternationalsecurity architecture would really meet with the universal approvalwhich they need for their implementation’. ‘The ICJ's Advisory Opinion and Its Likely Impact on International Law’., at 951.
21. ‘[I]f attributable to a State, [large-scale acts of terrorism] are an armed attack in the sense of Article 51’, see Randelzhofer, Grotehas expressed caution in an articlewhich was published before the ICJ gave its opinion note 12, at 802.
22. C. Meiser and C. von Buttlar, Militä rische Terrorismusbekä mpfung unter dem Regime der UN-Charta (2005), forthcoming.
23. S/RES/1368 (2001) of 12 Sept. 2001; UN Doc. S/RES/1373 (2001) of 28 Sept. 2001; UN Doc. S/RES/1566 (2004) of 8 Oct. 2004; UN Doc. S/RES/1611 (2005) of 7 July 2005.
24. But see Randelzhofer, ‘[I]f attributable to a State, [large-scale acts of terrorism] are an armed attack in the sense of Article 51’ note 12, at 802” ‘Acts of terrorism committed by private groups or organizations as such are not armed attacks in the meaning of Art. 51 of the UN Charter’.
25. T. Bruha, ‘Neuer Internationaler Terrorismus” Vö lkerrecht im Wandel?’, in H. J. Koch (ed.), Terrorismus-Rechtsfragen der ä ußeren und inneren Sicherheit (2002), 75. For a different view see C. Tietje and K. Nowrot, ‘Vö lkerrechtliche Aspekte militä rischer Maßnahmen gegen den internationalen Terrorismus’, (2002) 44 Neue Zeitschrift fü rWehrrecht 1, at 6; G. Stuby, ‘Internationaler Terrorismus und Vö lkerrecht’, (2001) 46 Blä tter fü r deutsche und internationale Politik 1331.
26. R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963), at 200.
27. Y. Dinstein, ‘Comments on the Presentations by Nico Krisch and Carsten Stahn’, inWalter et al., But see Randelzhofer note 10, 915, at 921.
28. S. D. Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’, (2002) 43 Harvard International Law Journal 41 at 50.
29. J. A. Frowein, ‘Der Terrorismus als Herausforderung fü r das Vö lkerrecht’, (2002) 62 Heidelberg Journal of Interantional Law 879.
30. C. Stahn, “'Nicaragua Is Dead, Long Live Nicaragua”-The Right to Self-defence under Article 51 UN Charter and International Terrorism’, inWalter et al., But see Randelzhofer note 10, 827, at 848.
31. R. Wolfrum, ‘The Attack of September 11, 2001, the Wars against the Taliban and Iraq” Is there a Need to Reconsider International Law on the Recourse to Force and the Rules of ArmedConflict?’, (2003) 7Max Planck UnitedNationsYear Book 1, at 36; C.Tomuschat, ‘Der 11. September 2001undseine rechtlichenKonsequenzen’, (2001) 28 Europä ische Grundrechte-Zeitschrift 535, at 540; SeeMurphy, But see Randelzhofer note 29, at 49.
32. NATO also introduced an interesting new formula when determining whether the 11 September attacks amounted to ‘armed attacks’. It did not expressly inquire whether the attacks were ‘attributable’ to the Taliban or Afghanistan, but used a different test, asking whether ‘the attack against the United States on 11 September was directed from abroad’ and could ‘therefore be regarded as an action covered by Article 5 of theWashington Treaty’, NATO press release 124/2001 (emphasis added).
33. See Stahn, NATO also introduced an interesting new formula when determining whether the 11 September attacks amounted to ‘armed attacks’. It did not expressly inquire whether the attacks were ‘attributable’ to the Taliban or Afghanistan, but used a different test, asking whether ‘the attack against the United States on 11 September was directed from abroad’ and could ‘therefore be regarded as an action covered by Article 5 of theWashington Treaty’, NATO press release 124/2001 (emphasis added). note 31, at 850; R.Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense’, (2005) 99 AJIL 52, at 59” ‘In and of itself, the originating locus of the attack does not diminish a right of self-defense’.
34. See Legal Consequences of the Construction of a Wall, Advisory Opinion, NATO also introduced an interesting new formula when determining whether the 11 September attacks amounted to ‘armed attacks’. It did not expressly inquire whether the attacks were ‘attributable’ to the Taliban or Afghanistan, but used a different test, asking whether ‘the attack against the United States on 11 September was directed from abroad’ and could ‘therefore be regarded as an action covered by Article 5 of theWashington Treaty’, NATO press release 124/2001 (emphasis added). note 4, (Judge Buergenthal, Declaration), para. 6.
35. Legal Consequences of the Construction of a Wall, Advisory Opinion, Legal Consequences of the Construction of a Wall, Advisory Opinion, NATO also introduced an interesting new formula when determining whether the 11 September attacks amounted to ‘armed attacks’. It did not expressly inquire whether the attacks were ‘attributable’ to the Taliban or Afghanistan, but used a different test, asking whether ‘the attack against the United States on 11 September was directed from abroad’ and could ‘therefore be regarded as an action covered by Article 5 of theWashington Treaty’, NATO press release 124/2001 (emphasis added). note 4 note 4. (Judge Higgins, Separate Opinion), para. 33, referring to R. Higgins, Problems and Process” International LawandHowWe Use It (1994), at 250.
36. See LegalConsequences of the Construction of aWall,Advisory Opinion, Legal Consequences of the Construction of a Wall, Advisory Opinion, Legal Consequences of the Construction of a Wall, Advisory Opinion, NATO also introduced an interesting new formula when determining whether the 11 September attacks amounted to ‘armed attacks’. It did not expressly inquire whether the attacks were ‘attributable’ to the Taliban or Afghanistan, but used a different test, asking whether ‘the attack against the United States on 11 September was directed from abroad’ and could ‘therefore be regarded as an action covered by Article 5 of theWashington Treaty’, NATO press release 124/2001 (emphasis added). note 4 note 4. note 4, (JudgeKooijmans, Separate Opinion) para. 35.
37. On the definition of terror see C.Walter, ‘Defining Terrorism in National and International Law’, inWalter et al., LegalConsequences of the Construction of aWall note 10, 23, at 39. See, in general, B. Saul, ‘Attempts to Define “Terrorism” in International Law’, (2005) LII Netherlands International Law Review 57.
38. The ICJ first insisted that Art. 51 recognizes the right of self-defence in case of armed attack by one state against another… and then added that Israel did not claim that the attacks against it are imputable to a foreign state. It can be argued that at this stage of its reasoning the Court wished to emphasize the statehood element, and not the imputability, as it dealt with the latter in the following paragraph, considering it as an additional argument. The Supreme Court of Israel read the Advisory Opinion in this vein, stating that ‘The Advisory Opinion of the International Court of Justice at theHague determined that §51 of theCharter of the United Nations recognizes the natural right of self defense, when one state's military attacks another state. Since Israel is not claiming that the cause of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall’.Mara'abe case, ‘Defining Terrorism in National and International Law’ note 5, para. 23.
39. M. Bothe, ‘Occupation, Belligerent’, in Bernhardt, The ICJ first insisted that Art. note 9, III, 763, at 764. D. Alonzo-Maizlish, ‘Where Does it End? Problems in the Law of Occupation’, in R. Arnold and P. A. Hildbrand (eds.), International Humanitarian Law and the 21st Century's Conflicts. Changes and Challenges (2005) 97, at 109.
40. See infra text next to note 66.
41. Y. Blum, ‘The Missing Reversioner’, (1968) 3 Israel Law Review 294. It seems that the Court subscribes to this view when dealing with the question of self-defence, although when it dealt with the question of the entry into force of the Fourth Geneva Convention over the Occupied Territories it chose tomention the fact that Jordan has also been a party to the Convention, Legal Consequences of the Construction of aWall, Advisory Opinion, infra text next to note 66. note 4, para. 91.
42. T. M. Franck, Recourse to Force” State Action against Threats and Armed Attacks (2002), 67 (emphasis added).
43. T. Treves, ‘High Seas’, in Bernhardt, ‘The Missing Reversioner’ note 9, II, at 705.
44. Beck and Arend, ‘The Missing Reversioner’ note 43, at 218.
45. Art. 110(1)(d), 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3; 21 ILM 1261 (1982).
46. Treves, ‘The Missing Reversioner’ note 45, at 707.
47. H. Steinberger, ‘Sovereignty’, in Bernhardt, ‘The Missing Reversioner’ note 9, IV, at 500; R. Geiss, ‘Failed States-Legal Aspects and Security Implications’, (2004) 47 German Yearbook of International Law 499.
48. G. M. Travailio, ‘Terrorism, International Law, and theUse of Military Force’, (2000) 18Wisconsin International Law Journal 145, at 153; R. Koskenmä ki, ‘Legal Implications Resulting fromState Failure in Light of the Case of Somalia’, (2004) 73 Nordic Journal of International Law 1.
49. See Randelzhofer, ‘The Missing Reversioner’ note 12, at 802.
50. M. Herdegen, Vö lkerrecht (2005), 234.
51. J. A. Frowein, Das de facto-Regime im Vö lkerrecht (1968), 38.
52. See Frowein, ‘The Missing Reversioner’ note 30, at 887. However, suchsymmetrydoesnot always exist.AsMurphy notes, although the Court saw Art. 2(4) as relevant lawwith respect to Israel's conduct in the ‘Occupied Palestinian Territory’, (Legal Consequences of the Construction of aWall, Advisory Opinion, ‘The Missing Reversioner’ note 4, paras. 86-87) it saw no such relevance for Art. 51 with respect to the exact same Israeli conduct.Murphy, ‘The Missing Reversioner’ note 17, at 64.
53. J. A. Frowein, ‘De Facto Ré gime’, in Bernhardt, Frowein, ‘The Missing Reversioner’ note 30, at 887. note 9, I, 966, at 967.
54. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 3, at 54.
55. E. Benvenisti, ‘The Status of the Palestinian Authority’, in E. Cotran and C. Mattat (eds.), The Arab-Israeli Accords” Legal Perspectives (1996), 47, at 56” ‘Therefore, the test for effective control is not the military strength of the foreign army… what matters is the extent of that power's effective control of civilian life within the occupied area… ’. See in general P. Chifelet, ‘Recent Legal Developments” The Judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v.Mladen Naletilic’ and VinkoMartinovic’ ‘, (2003) 16 LJIL 525, at 531.
56. Hague Convention IV Respecting the Laws and Customs of War on Land, signed on 18 Oct. 1907, Annex, Art. 42 (emphasis added).
57. E. Benvenisti, ‘Israel and the Palestinians” What LawsWere Broken?’, in Crimes ofWar, 8 May 2002, can be found at http//www.crimesofwar.org/print/expert/me-Benvenisti-print.html.
58. See Legal Consequences of the Construction of aWall, Advisory Opinion, Hague Convention IV Respecting the Laws and Customs of War on Land, signed on 18 Oct. note 4, para. 77.
59. Legal Consequences of the Construction of aWall., at para. 78.
60. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Havana, 1990), 8th UN Meeting on the Prevention of Crime and the Treatment of Criminals.
61. C. Schmitt, Der Nomos der Erde (1997 [1950]), 182.
62. For this argument see A. De Puy, ‘Bringing Down the Barrier” A Comparative Analysis of the ICJ Advisory Opinion and the High Court of Justice of Israel's Ruling on Israel's Construction of a Barrier in the Occupied Territories’, (2005) 13 Tulane Journal of International and Comparative Law 275, at 301. The author correctly states that ‘Judge Higgins noted in her separate opinion that the ICJ was unpersuasive in declaring that an occupying power lost the right to defend its citizens from armed attacks merely because the armed attacks arose from the occupied territory itself.Thiswas especially ironic as the ICJ elsewhere initsAdvisory Opinion had emphasized that the occupied territory was not annexed but was “other than Israel”. Judge Higgins noted that this was a “formalism of an unevenhanded sort”, and responsibility should have been assigned for the groups sent to kill innocent Israeli civilians’ (see Legal Consequences of the Construction of a Wall, Advisory Opinion, Der Nomos der Erde note 4 (Judge Higgins, Separate Opinion), para. 34).
63. P. Stirk, ‘Carl Schmitt, the Law of Occupation, and the IraqWar’, (2004) 11 Constellations 527, at 535.
64. Loizidou v. Turkey, Judgment of 23 March 1995 (preliminary objections), [1995] ECHR (Ser. A), at 310, para. 62; Loizidou v. Turkey, Judgment of 18 December 1996 (merits and just-satisfaction), [1996] V Reports, at 2227, para. 52; Cyprus v. Turkey, Judgment of 10May 2001 (merits), [2001] IV Reports of Judgments andDecisions, para. 77; F. Hoffmeister, ‘Comment on Cyprus v. Turkey’, (2002) 96 AJIL 445.
65. Official Records of the General Assembly, 56th Session (2001), Supplement No. 10 (A/56/10), Chp. IV.E.1. Art. 8 reads” ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.
66. Nicaragua case, Der Nomos der Erde note 3.
67. Prosecutor v. Tadic’, Case No. IT-94-1 (15 July 1999), 38 ILM, 1540, at paras. 115-145.
68. The Corfu Channel (United Kingdom v. Albania),Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 22.
69. Hague Convention IV Respecting the Laws and Customs of War on Land, signed on 18 Oct. 1907, Annex, Art. 43 (emphasis added).
70. By analogy fromDinstein's concept of ‘extra-Territorial law enforcement’, seeDinstein, Nicaragua case note 43, at 213.
71. Mara'abe case, By analogy fromDinstein's concept of ‘extra-Territorial law enforcement’ note 5, para. 23.
72. The Supreme Court of Israel states that ‘we find [the] approach of the International Court of Justice hard to come to termswith… It is doubtful whether it fits the needs of democracy in its struggle against terrorism’.
73. Written Statement Submitted by Palestine, para. 534 (30 Jan. 2004), Legal Consequences of the Construction of a Wall, Advisory Opinion The Supreme Court of Israel states that ‘we find [the] approach of the International Court of Justice hard to come to termswith. note 4.
74. A. Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System” The Doctrine of Lex Specialis’, (2005)
75. Nordic Journal of International Law 27.
76. See Murphy, Nordic Journal of International Law 27. note 17, at 71; C. Greenwood, ‘The relationship between Ius ad Bellum and Ius in Bello’, (1983) 9 Review of International Studies 221.
77. See Murphy, Nordic Journal of International Law 27. note 17, at 71. Art. 103 of the UN Charter reads, ‘In the event of a conflict between the obligations of theMembers of theUnitedNations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.
78. ’… an occupying state has the right and indeed the duty to maintain public order through proportionate means within an occupied territory, and this capacity does not turn upon the casus belli of the underlying conflict’,Wedgwood, Murphy, Nordic Journal of International Law 27. note 17, at 71. note 34, at 59; P. Malanczuk, Akehurst's Modern Introduction to International Law (1997), 306.
79. HCJ 2056/04 Beit Sourik Village Council v. Government of Israel and the Commander of the IDF Forces in theWest Bank,www.court.gov.il. E. Holmila, ‘Another Brick in theWall? The Decision of the Israeli Supreme Court in the case of Beit Sourik Village Council v. The Government of Israel and the Commander of the IDF Forces in theWest Bank (HCJ 2056/04, 30 June 2004)’, (2005) 74 Nordic Journal of International Law 103, at 111.
80. For support of the view that jus ad bellum may be used after the cessation of hostilities see J. G. Gardam, ‘A Role for Proportionality in theWar on Terror’, (2005) 74 Nordic Journal of International Law 3, at 17.
81. See Legal Consequences of the Construction of aWall, Murphy, Nordic Journal of International Law 27. note 17, at 71. note 4, at para. 135 (emphasis added).
82. O. Ben-Naftali and Y. Shany, ‘Living in Denial” The Application ofHuman Rights in the Occupied Territories’, (2003) 37 Israel Law Review 17.
83. A. Cassese, ‘Terrorism is also Disrupting Some Crucial Legal Categories of International Law’, in http//www.ejil.org/forum_WTC.
84. Mara'abe case, Legal Consequences of the Construction of aWall note 5, para. 23.
85. This can be deduced from Dinstein, Mara'abe case note 43, at 208.
86. See Gardam, This can be deduced from Dinstein note 83. On proportionality in general see J. G. Gardam, ‘Proportionality and Force in International Law’, (1993) 87 AJIL 391; T. Stein, ‘Proportionality Revisited-ü berlegungen zum Grundsatz der Verhä ltnismä ßigkeit iminternationalen Recht’, in Dicke et al., This can be deduced from Dinstein note 1, at 727.
87. Cassese is of the opinion that the use of forcemust only be exercised for repulsing the aggression and should be terminated as soon as the aggression had come to an end. See Cassese, This can be deduced from Dinstein note 18, 355. Contrary, see Dinstein, This can be deduced from Dinstein note 43, at 209; P. Zengel, ‘Assassination and the Law of Armed Conflict’, (1991) 34 Military Law Review 123, at 148; S. Ratner, ‘Jus ad Bellum and Jus in Bello after September 11’, (2002) 96 AJIL 905.
88. See Case Concerning Oil Platforms, This can be deduced from Dinstein note 8.
89. See Nicaragua case, Case Concerning Oil Platforms note 3, at 84, para. 176.
90. Legality of the Use by a State of NuclearWeapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at para. 78.
91. As demonstrated by Gardam, Nicaragua case note 83, at 19. But see M.Walzer, Just and UnjustWars-AMoral Argument with Historical Illustrations (1992), 151.
92. C. Greenwood, “'Jus ad Bellum and Jus in Bello” in the Nuclear Weapons Advisory Opinion’, in L. Boisson de Chazournes and P. Sands (eds.), International Law, the International Court of Justice and NuclearWeapons (1999), 247, at 258; I. Scobbie, ‘Smoke Mirror and Killer Whales” the International Court's Opinion on the Israeli BarrierWall’, (2004) 5 German Law Journal, no. 9, para. 56, www.germallawjournal.com” ‘Simply to state the proposition that measures taken in self-defence may exculpate a State from responsibility for violations of international humanitarian law is to demonstrate both the fallacy anddanger at theheart of Israeli argument. It is to claim that thelawdesigned torestrain theexercise of forcedoesnot applywhenforce is being exercised. This surely cannot be correct';O. Schachter, ‘The Extra-territorialUse of Force against Terrorist Bases’, (1989) 11 Houston Journal of International Law 309, at 315” ‘Self-defense actions against terrorism are not exempted from the humanitarian rules applicable to armed conflict. Thus, the general prohibition[s] against [targeting] non combatants or excessive destruction of civilian property apply. The fact that terrorist bases are found in themidst of cities, and may therefore be “shielded” by non-combatants, can give rise to a difficult dilemma. It is nonetheless desirable to recognize legal as well as moral restraints relating to non-combatants’.
93. See Gardam, Nicaragua case note 83, at 18.
94. A. Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’, (2005) 99 AJIL 102, at 112. But see Scobbie, Nicaragua case note 97, at para. 59” ‘The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and citizens. This authoritymust be properly balanced against the rights, needs, and interests of the local population’.
95. I hereby refer to one of the more ambiguous and obscure paragraphs produced by the ICJ” ‘The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nevertheless to remain in conformity with applicable international law’ (see Legal Consequences of the Construction of aWall, Advisory Opinion, Nicaragua case note 4, at para. 141). To the extent that the Court refers to unilateral possible actions taken by Israel this paragraph remains vague and obscure.
96. Judge Higgins has commented, ‘I remain unconvinced that non-forcible measures (such as building of a wall) fall within self-defence under Art. 51 of the Charter as that provision is normally understood,’ Legal Consequences of the Construction of aWall, Advisory Opinion, I hereby refer to one of the more ambiguous and obscure paragraphs produced by the ICJ” ‘The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. note 4, (Judge Higgins, Separate Opinion), para. 35.
97. See Abi-Saab, Judge Higgins has commented note 2, at xv.