28 No. 75 JUSTICE 82. In exercising its function, the ICJ will wish to analyse the facts concretely, without excluding relevant considerations through an arbitrary narrowing of the legal framework. This would not be in the interest of justice and of judicial propriety. As noted by Judge Buergenthal in 2004 about the Court’s approach to self-defence: “To make that judgment, that is, to determine whether or not the construction of the wall, in whole or in part, by Israel meets that test, all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case.”122 Self-defence can be invoked in situations which involve non-State actors 83. A further aspect of the Wall Advisory Opinion to be discussed is reliance on the opinion to claim that a State’s right to self-defence can only be invoked against non-state actors in circumstances where the attack is attributable to a State. First of all, it should be noted that paragraph 139 of the Wall Advisory Opinion is linguistically ambiguous. While the Court does indeed claim that “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State”, it then goes on to explain why, factually, Israel could not rely on UNSC Resolutions 1368 (2001) and 1373 (2001), which recognise a right of self-defence against terrorist attacks by non-state actors. This reasoning, a contrario, leaves open the possibility that these resolutions could be relied upon in different factual circumstances. 84. Moreover, the more general claim that self-defence can only be invoked against a State is contradicted by the UN Charter and by the evolution of international law, especially since September 2001. It should be recalled at the outset that the UN Charter provides for no such limitation. As noted by Judge Higgins in 2004: “There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defence is available only when an armed attack is made by a State.”123 Similarly, Judge Buergenthal recalls that “the United Nations Charter, in affirming the inherent right of self defence, does not make its exercise dependent upon an armed attack by another State, leaving aside for the moment the question whether Palestine, for purposes of this case, should not be and is not in fact being assimilated by the Court to a State”124. In a comprehensive study on Article 51 of the UN Charter, Tams, having done a detailed “literal, contextual, purposive and historical” analysis of Article 51, concludes that “the text of Article 51, on balance, supports a broad construction of self-defence that permits responses against armed attacks by non-State actors.”125 85. The Court, in Armed Activities, considered that in the specific factual circumstances of that case, it had “no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self defence against large-scale attacks by irregular forces,”126 suggesting that, under different factual circumstances, the Court would have been open to engage in a discussion on this matter, rather than reject the legal premise ab initio (otherwise the Court could have just repeated its statements from the Wall Opinion).127 86. Moreover, UNSC Resolutions 1368 and 1373 (the latter being made under the authority granted to the Security Council under Chapter VII of the UN Charter) recognise “the inherent right of individual or collective self122. Wall Advisory Opinion, Declaration of Judge Buergenthal, p. 243, para. 6. 123. Id., para. 33. 124. Wall Advisory Opinion, Declaration of Judge Buergenthal, p. 242, para. 6. 125. C. Tams, “Self-Defence against Non-State Actors: Making Sense of the ‘Armed Attack’ Requirement”, in O’Connell ME, Tams CJ, Tladi D. in Self-Defence against Non-State Actors. Vol 1. Max Planck Trialogues. Cambridge: Cambridge University Press; 2019: i-ii, 90-173, p. 124. 126. Armed Activities, para. 147. 127. N. Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford 2010), p. 33 (hereinafter “Lubell”).
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