American judge Thomas Buergenthal dissented against the ICJ's finding in the case against Israel's right to have security. Buergenthal argues that the court should have declined to hear the case since the court did not have the "requisite factual bases for its sweeping findings."
Buergenthal’s main basis for repeatedly dissenting is a lack of information to support the court’s sweeping conclusions. The court did not have all relevant facts bearing directly on Israel’s legitimate right of self defence, military necessity and security needs. Buergenthal says that the cross-Green Line attacks and their impact on Israel are never seriously considered by the court.
Buergenthal supports his dissent by referring to various International Law articles. Article 21 for example, declares “The wrongfulness of an act of a state is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations.”
This means that the court needs to decide whether the barrier is a lawful measure of self defence. The answer to that question depends on an “examination of the nature and scope of the deadly terrorist attacks to which Israel proper is being subjected from across the Green Line and the extent to which the construction of the barrier is a necessary and proportionate response to the attacks”. Facts bearing on these issues regarding the specific segments of the barrier, their defensive needs, and related topographical considerations were never put before the court, and therefore to conclude the inapplicability of the right to an inherent self defence is legally dubious.
Article 51 of the Charter mentions every member’s inherent right to self defence. The court ruled as follows:
“Article 51 of the Charter . . . 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."
The problem with this is that the article does not make its exrcise dependant upon an armed attack by another State. Article 51 states that “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 . . .” Buergenthal also refers to UN resolutions 1368 and 13 73 pointing out that neither of the resolutions “limits their application to terrorist attacks by State actors only.”
In sum, the court lacked an overwhelming amount of evidence for it to come to any legally legitimate ruling. The court failed to address any facts specifically rebutting Israel’s claims of military requirements for national security. Instead the court relied on material describing only the armful aspects of the barrier on Palestinian life. “Lacking is an examination of the facts that might show why the alleged defences of military exigencies, national security or public order are not applicable to the wall as a whole or to the individual segments of its route.” The court said it was not convinced with Israeli justifications, but Buergenthal points out that the court failed to demonstrate why they were not convinced.
Following is the entire text of Judge Buergenthal's Declaration
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