Self-Defense and the War on Terror - Essay Example

?Self-defence and the War on Terror Introduction At the end of the Second World War, the United Nations introduced Article 2(4) of its Charter. This article established that military options in international relations were allowed only upon authorization of the Security Council, as a collective security action, and as an exercise of the right to self-defence based on the specific mandates of Article 51. During the Cold War era, the world was seemingly divided into the communist bloc and the democratic bloc of states, headed by the USSR and the US respectively. With the inherent conflict between the permanent members of the UN, specifically, USSR and the US, the Security Council found it difficult to carry out its peacekeeping functions through its legitimization of forceful and military measures (Sahmoudi, 2010). Self-defence seems to be the viable option for many states in the use of force. Some states have even managed to justify their actions under self-defence principles, even if their actions did not exactly fulfil the minimum requirements of Article 51. Since self-defence is an exception to Article 2(4), the policy of the courts in interpreting self-defence has mostly been on the adoption of restrictive considerations (Sahmoudi, 2010). An attempt to expand the coverage of self-defence has been considered under anticipatory self-defence, an attack which is carried out before any initial attack by an aggressor state has been launched. However, widespread acceptance of this new concept has been largely. When the collapse of the USSR caused the world to accept the regime of the US as the one remaining superpower, the possibilities for more general claims on the right to use force has been seen. Most of these possibilities have centred on self-defence and the right to defend against an anticipated attack. The military attack against the Taliban in Afghanistan in October 2001 has had a significant effect on the legal developments in relation to self-defence and anticipatory defensive attacks (Charney, 2004). America’s attack on Afghanistan was its response to the Al-Qaeda group’s terrorist attack on the Twin Towers in New York. America’s attack has caused various debates among legal experts in relation to concerns on compliance with international standards. One of the main issues in this debate has revolved around whether or not a person has to strictly interpret the legal basis of the Charter or whether or not there can be a more lenient or flexible application of the rules in relation to the current changes in the global community (Bring and Fisher, 2004). The settlement of this debate has been based on a positivist approach to international law. This positivist approach points out that international law are standards which must be interpreted as set rules for similar scenarios, and therefore must be respected by all states. Another approach is the realistic approach which mandates international laws as a way of fulfilling goals and securing some values on the other (Sahmoudi, 2010). The positivist approach is supported by those who believe in the need to control expansion and the use of force and selfish interests (Crossley, 2008). The realistic approach theorists base their perceptions on concepts of human dignity; they justify the use of force as a means of confronting an evil power (Crossley, 2008). In the current context, this paper shall now consider the application of self-defence in the face of the present war against terrorism. Its legality and its appropriate applications shall be evaluated in this paper. Decisions of the International Court of Justice, as well as opinions rendered by legal scholars the court shall also be discussed. Body After the September 11, 2001 attacks on the US, the UN Security Council immediately passed a resolution which basically condemned the attack. The Security Council also reiterated its goal of opposing all threats on national and international security initiated by terrorist organizations (Berdal, 2003). It also acknowledged the right of states to collective self-defence in accordance with the principles of the Charter. In this resolution, the Security Council also expressed its readiness to carry out the necessary actions to counter the terrorist attack and to fight all kinds of terrorism in accordance with the concepts laid out in its Charter (Berdal, 2003). NATO Member states also decided to seek an application of Article V of its Statute and to declare the attack on the US as an assault against member states (Byers, 2002). This decision supported the belief that the September 11 attacks were considered by most members of the UN as an attack meriting a response supported by Article 51 of the UN Charter. Byers (2002) also discussed that the Security Council went on to adopt another resolution defining all acts of terror as threats to international security; it also reaffirmed the right of member states to collective self-defence as supported by the UN Charter. Before a decision for collective action could be launched by the UN Security Council, the US and the UK launched its attack on Afghanistan on the 7th of October 2001 without seeking the permission of the Council (Byers, 2002). Both states cited their right to self-defence as the legal basis for their decision to attack. The US defence for its attack on Afghanistan has never been formally and legally dissected by the UN. In effect, as far as the Afghanistan attack is concerned, there seems to be an assumption that self-defence is a right of a state under international law, one which does not need the approval of the Security Council (Byers, 2002). However, such thought process also seems to imply that there is no need to have an international agency to secure global peace and to authorize the use of military force if it is actually possible for states to use self-defence to launch military attacks against another state (Byers and Chesterman, 2002). A possible reason for such Council bypass may be based on the fact that states need to report regularly to the Council and to finish the operation when decided on by the Council. Under self-defence, the control of the international community on the attack is very much limited and the right to end the operation is dependent on the defending state (Sahmoudi, 2010). In the case of the Afghanistan attacks, a possible reason for the US decision not to seek the authority of the Council for the use of force was the avoidance of the establishment of a precedent (Sahmoudi, 2010). This would likely give a wider discretion for the US on the use of force against international terrorism without the authority of the Security Council. With the whole world in a state of disbelief after September 11, a consensus on the use of force against the terrorists responsible was seen; no country dared or even thought of questioning the legal implications of US actions. Even if it were to be contestable whether all of the US’s actions in Afghanistan really complied with the requirements of self-defence (Schemann, 2001), the important legal consideration is on the impact of the self-defence contention on the credibility of the Security Council as the protector of international peace and security (Sahmoudi, 2010). In this regard, legal analysts have observed that the function of the Security Council must not be symbolic and not deemed to exist only after the fact or after military attacks have been decided on. Therefore, the US’s failure to utilize the legal resources of the UN Charter may be interpreted as acts which have served to undermine the role of the UN and the Council (Charney, 2004). States have been instructed to live in peaceful coexistence with each other; however, there are still very limited circumstances by which these nations have been allowed to use force under international law (Armstrong, et.al., 2007). Article 51 of the UN Charter reads that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence is an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. Article 51 does not give automatic authority for states to launch attacks in the name of self-defence, even as a means to counter terrorism. There is however an authority to defend oneself against a continuing attack until such time when the UN can restore peace and security (Schachter, 1989). In cases of a continuing attack of terrorism, the victim state has a right to defend itself against such attack until such time that the UN Security Council is able to take over and retaliate against such atrocity. Therefore, the right to self-defence is based on actual self-defence – when the “necessity of self-defence is instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Cassese, 2001, p. 995). There must therefore be an imminent threat or force or a continued attack on a state for the right to self-defence be legally supported. The immediacy of the attack is not crucial, however, the longer that such time lapses, the more flimsy the contention of self-defence. Moreover, using force must be supported by evidence of an imminent second attack or on a continuing attack which needs pre-emption (Miller, 2002). Self-defence is therefore based on the imminence of a second attack and states are not allowed to carry out attacks in anticipation of armed attacks, especially if such attacks have not yet occurred (Miller 2002). It is important to note that in the application of armed responses by the state which is attacked by a terrorist, the response must also be proportionate to the aggression shown by the attacker. The self-defence theory also establishes that the response must be directed against the military objectives within the limits of international humanitarian provisions – in short, the laws of war and military engagement (Wren, 2001). The armed response must also come to an end, since a continued military response would violate the basic precepts of self-defence. The UN Charter also specifies that the act of self-defence must cease as soon as the aggression has also stopped, or as soon as the Security Council has implemented measures to stop the armed attack by the aggressor (Greig, 1991). In considering the application of self-defence, it is also important to evaluate the circumstances upon which self-defence is allowed to combat terrorism (Boyle and Chinkin, 2007). Article 51 mentions the concept of armed attack in its provisions. This provision also emphasizes that states do not have a right to use armed response to attacks which are not qualified as ‘armed attacks’ (Greig, 1991). Moreover, not all forced attacks against states may be considered as armed attacks. In general, armed attacks are serious attacks on the “territory of the injured state or on its agents or citizens while at home or abroad” (Cassese, 2001, p. 996). Such attack must also form part of a consistent and coordinated plan of aggression; in other words, it must not be an isolated or uncoordinated attack. Based on the Nicaragua v. United States case, the ICJ decided that the armed attacks of the armed groups must take place on a large scale before they can be defined as attacks which would validate a collective right to self-defence (Byers, 2000). Although the court ruled that the attacks did not require self-defence, the court ruled that attacks carried out on a large scale merited attacks which called for the allowance of self-defence (Byers, 2000). However, attacks which were part of unlawful manifestations of violence against another country did not necessarily amount to attacks requiring self-defensive retaliation under the UN Charter. Furthermore, the attack must be carried out by a state against another state, and acts which are carried out by non-state personalities must be attributable to a state in order for the attack to be qualified under Article 51 (Byers, 2000). Therefore, in order for an armed response against terrorism to be justified under the UN Charter, the aggressor attacker must first be a state or in cases of non-state actor attackers, their actions must be rightly credited to a state. During the 9/11 armed response by the US, Afghanistan was targeted by the US as it was being controlled by the Taliban which had ties to bin Laden led Al-Qaeda group which launched the attacks against the US. Although the specific legalities of the attack cannot be wholly supported by international laws, as far as the chosen country is concerned, the US is justified in choosing Afghanistan as a target for its armed response. After the September 11 attacks, the US was faced with a legal dilemma. In order for it to maintain the unified action against terrorism, its response had to be proportionate to the act committed against them (O’Connell, 2002). This implied attacks against those responsible for the terrorist act. However, if the US would act against bin Laden, it would not run into the problem of the response not being launched against states – but against political actors. This can invalidate the nature of self-defence acts. The US sought to justify its actions on two legal strategies. First, it increased its focus to necessarily include Taliban (Byers, 2002). The Taliban group supported and gave refuge to Osama bin Laden and at that time, this group was the primary political power in Afghanistan. The US also saw the Taliban’s continued presence in Afghanistan to be a terrorist threat against global peace and security. The Taliban was actually considered to be a continuous and persistent threat on the US and the rest of the world (O’Connell, 2002). As such, the US expanded its claim for self-defence over the whole of Afghanistan. The fact that Taliban also expressed its support for the attack increased their legal responsibility for the attacks (Byers, 2002). In effect, the claims for actions in self-defence against Afghanistan, as well as the modification of international laws inherent in that claim had a greater chance of ensuring the express or implied support of different states. The US also persistently worked towards ensuring the increased support of its military retaliation. The establishment of the coalition, as well as the use of the Article 5 of the 1949 North Atlantic Treaty and Article 3(1) of the 1947 Inter-American Treaty of Reciprocal Assistance helped to provide support for the self-defence claim by the US (Daley, 2001). These provisions supported the fact that the 9/11 attacks were armed attacks, and the Security Council resolution also identified the terrorist attack as one which calls to mind a nation’s right to self defence (Beard, 2002). This strategy supported an approach seen during in 1988 when, after ordering a missile attack on terrorists in Sudan and Afghanistan, then President Bill Clinton contacted Tony Blair, Jacques Chirac, and Helmut Kohl to seek their support (Byers, 2002). Without even consulting their political parties or advisers, they gave their support to Clinton. Due to the strategies applied by the US, as well as the increased concerns on terrorism, the right to self-defence now incorporates military attacks against nations which actively support terrorists who have already attacked another state (Kirgis, 2001). In relation Article 51 of the UN Charter, self-defence may be considered individual or collective, allowing states which have been targeted to request the support of other states. The issue of pre-emptive action has also been established in the use of self-defence against terrorists. The US has used this strategy in order to legalize its actions against Iraq, with the application of anticipatory self-defence against terrorist actions (Robbins and Cummings, 2002). Before the 9/11 attacks were launched, anticipatory self-defence was strictly applied and widely contested. States using it as defence for their actions were rejected; and as a result, not many states have used this to justify their actions. At present, even with the use of this defence by the US after the 9/11 attacks, there are still limited international provisions which support the right to anticipatory self-defence (Popiel, 2003). As the US extended its reach beyond Afghanistan, it was also clearly considered actions of a pre-emptive nature justifying its contention of anticipatory self-defence. As such it justified its action in attacking and entering Iraq by contending that Iraq had WMDs and was planning to use these against the US and other countries (Shah, 2007). As a result, the US was said to claim the right to anticipatory self-defence. Although Article 51 of the UN Charter does not clearly define self-defence, the Charter does indicate some limitations on the exercise of the right (Shah, 2007). There is most likely to be significant discussion on these limitations in the years to come. For instance, the right to self-defence is based on the occurrence of an armed attack against a member of the UN. In the case of Afghanistan, there was a possibility of another attack on the US, and therefore, the imminent danger of a second attack provided support for the US actions on Afghanistan. However, permission from the Security Council should still have been sought by the US and its allied forces (Guiora, 2007). As far as Iraq is concerned, the use of the anticipatory self-defence justification has a lot of gaps. There is no armed attack on a victim state and no imminent threat of an attack on the US was apparent. The threat of WMDs was not adequately proven before the invasion of Iraq, and the War on Terror against Iraq did not have sufficient legal basis. Conclusion Based on the above discussion, the right to self-defence in the current war against terror has a significant amount of legal considerations that need settling. In general however, self-defence as a means of fighting terrorism must comply with the requirements of Article 51 of the UN Charter. Without compliance of the provisions of such article, any armed attack must be considered unlawful and a violation of international laws. Repeated violations however of this provision have been seen, especially in the aftermath of the September 11 attacks. Nevertheless, it is important to note that these violations must not be condoned by the UN in order to prevent the establishment of precedent exceptions for the launching of military attacks against terrorist groups. All in all, the discussion above specifies the importance of compliance with the UN-sanctioned remedies in order to secure peace and security among all nations. Reference Armstrong, D., Farrell, T., & Lambert, H. 2007, International law and International Relations, Cambridge: Cambridge University press. Beard, J. 2002, America’s New War on Terror: The Case for Self-Defense Under International Law, 25 HARV. J. L. & PUB. POL’Y 559. Berdal, M. 2003, The UN Security Council: Ineffective but Indispensable, 45 Survival 2: 7–30. Boyle, A. & Chinkin, C. 2007, The Making of International Law, Oxford: Oxford University Press. 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