The ICJ’s Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial

It is hardly surprising that the controversial advisor)’ opinion of the International Court of Justice in the case concerning the Israeli security fence raised serious concerns in many quarters, on multiple grounds. Most prominently, as some of the judges and numerous commentators have noted, the restriction of the right of self-defense under Article 51 of the United Nations Charter to attacks by “states” is unwarranted on the basis of the text. It is also, of course, illogical in an era when the worldwide terrorist threats stem primarily from nonstate actors. Additionally, in the current case, while the Court assimilated “Palestine” to a state for the purpose of granting it certain rights (including procedural rights before the Court), the ICJ made no corresponding acknowledgment of Palestine’s obligation to refrain from engaging in an armed attack. This, as Judge Rosalyn Higgins recognized, was “formalism of an unevenhanded sort.”