The International Law on Self-defence after 11 September - Term Paper Example

INTERNATIONAL LAW ON SELF DEFENCE - Claims made by the US after 9/11 is genuine or not. -1- The horrendous attack on 9/11 led the rest of the world in great dilemma apart from an unexpected tremor .This incident gave rise to many assumptions and conclusions. There raised a number of questions regarding the genuine nature of Article 51 of International Law on self defense .In the light of this, let us discuss the aspect of International Law on self defense and also the views of Security Council after the claims made by US on 9/11 attack . Before scheduled to the main title, let us have a small briefing of the aspect of Art.51 of International law. Article 51 of International Law on Self defense International traditionally dealt with the duties and rights of states in their relations with each other. This is reflected in the fact that most International Law dealing with international terrorism, concentrates on the duties of states to prevent and punish terrorism. Terrorism in all its aspects is a criminal act under International Law. Art.51 says that “Nothing in the present charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a Member of United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Let us examine some cases which define the international Law standard for whether a particular use of force is self defense. Caroline case* In this 1837 case British subjects destroyed an -------------------------------------------------------------------------------- * Hunter Miller, The Caroline, Webster –Ashburten Treaty -2- American ship, The Caroline in a US port; because the Caroline had been used in American raids into Canadian territory. The British claimed the attack was a self defense. But the dispute was resolved in favor of Americans. This particular case had given a clear meaning to the term self defense under International Law as “there must be a necessity of self defense- instant, overwhelming, leaving no choice of means and no choice of means and no moment for deliberation.” The means of self defense must involve nothing unreasonable or excessive: Since the act, justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it. This has been accepted rule in International Law. This is some what called as “anticipatory Self defense”. The representive of Nicaragua Vs The United states of America This case heard in 1986 by the International Court Of Justice and found that the US had violated International Law by providing weapons ,finance and other logical assistance to guerilla forces who carried out ongoing attack against both Nicaraguan armed forces and civilians in Nicaragua.* Arming and training the contra guerillas was found to be in breach with principles of non intervention and prohibition of use of force. The court found that Nicaragua’s dealing with the armed opposition in EI Salvador did not constitute “an armed attack”, So the Us can not claim their act done on self defense.** -------------------------------------------------------------------------------------------- *Military and paramilitary activities in and against Nicaragua-1984 ICJ REP.392 June 27,1986 **Legal issues in the Nicaragua –Opinion, Morrison Fred L (Jan. 1987) -3- Israel attack on Iraq nuclear reactor In1981 Israel bombed the French built nuclear reactor near Baghdad, the capital of Iraq, to keep Israel from developing a nuclear arsenal. The UN Security Council condemned the attack because threat to the Israel, though forceeble, was not‘imminent’,there was a time to try other measures.* So it is evident from the definition that Art.51 allows any country to act itself and take any measures against any activity threatens to its security until the Security Council intrudes. But it must be against the “imminent danger” keeping the limits of “anticipatory self defense “in the mind. The countries can exercise their power under Art.51 but only when it is in utmost necessity. These assumptions had much discussed after the 9/11 incident in the view of American Claims. Before discussing these points of aspects let us have a glance in to the so called 9/11 incident and consequent attack on Afghanistan in brief. 11th September incident and attack on Afganisthan** In these unforgettable incidents, four commercial US Jetliners on domestic routes are hijacked. The hijackers issue no damages to authorities. Two of the jets are flown into the twin towers of World Trade Center in New York, one into Pentagon in Washington DC and another crash in rural Pennsylvania. Around 3000 people were killed. The United Nations General Assembly and Security Council passed a Resolution condemning the events of --------------------------------------------------------------------------- *Column written by Brian J.Foley , www.bbc.co.uk **9/11 incident , www.google.com -4- 11th September as acts of tension. In few days President George Bush stated that all the points have been collected to a collection of loosely affiliated terrorist organizations known as Al Qaeda . On October 7th, the US and allies launched a military offensive against Afghanistan. This marked the beginning of the US “war on terrorism”, as American’s say “an effort to put an future attack”. The purpose of the invasion was to capture Osama Bin Laden, destroy Al Qaeda, and to remove Taliban regime which had provide support to Al Qaeda. The US has based its attack on the International Law right of self defense.* Issues which are raised after the incident** The events of 9/11 and its subsequent military response by US and its allies raise some difficult issues in International Law. In the wake of the attack there were so many questions arised.Some of them is, 1. Does an attack by an non-state group give rise to the right of self defense as under Art.51 of International Law? 2. Under what circumstances, was the Taliban regime as the Afghanistan government itself, a legitimate target for military action under the self defense doctrine. People from different fields like, judges, thinkers and authors have put great efforts to give some conclusions to all these queries. They could outline some points on behalf of these questions to some extent. --------------------------------------------------------------------------------- *Attack on Afghanistan by US ,articles www.wikipedia.com **Agnes Martyn :Law and Bills Digest Group 12 Feb.2002 www.parlimentary library.com -5- Claims of America First and foremost claim made by the US was, as above mentioned “right on self defense under International Law”. They justified the attack as the exercise of right to protect the country from imminent danger and external activities. But how far it can be possible? Do the Art.51 of International Law and Art.2 (4) of Security Council approve the said act of US? To answer these, first we will discuss the aspect of Art.51 of International law and Art.2(4) of United Nations charter in detail. Relationship between Art.51 and Art.2(4) As mentioned above Art. 51 of International Law empower the Member countries in the Security Council to exercise the right of self defense to the extent that the Security Council has taken the measures. Art.2 (4) of the UN charter states that” All member countries shall refrain from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purpose of the United Nations.” Essentially this eliminates the concept of ‘Just War’. The use of force, the threat of it, by a state is no longer legitimate mean of dealing with a dispute with another state. But at the same time Art.2 (4) does not prevent a country from defending itself in response to act of aggregation. Even though art.2 (4) transparently insists that the countries should refrain from the use of force, the innuendo is there can be an opposite reaction if it is necessary. So it is evident from here that both the Articles specifies -6- only one point that Countries can exercise the right of self defense in the wake of imminent danger and future attacks. Whether the attack by the US in Afghanistan is legal or not The terms given in the Art.51 were universally acknowledged to cover America’s invasion of Afghanistan and toppling of the Taliban Government after 9/11 terrorist attacks on the Us by Al Qaeda. Some of the thinkers suggest that no UN resolutions were necessary to cover the military actions since Art.51 had been triggered. It was inconsequential that neither Afghanistan is proper nor the Taliban government in particular, actually carried out the attacks on New York and Washington .The license and support of the Al Quaeda terrorist organization gave rise to agency type of relationship that imputed liability back to Afghanistan. The US has said that its military action in Afghanistan constitutes acts of self defense rather than being reprisals or punishment. The preamble of Security Council Resolution 1368 ‘recognizes the inherent right of individual or collective self defense in accordance with the Charter; but the operative part of the Resolution describes the attacks as ‘terrorist attacks (not armed attack) which represent a threat to international peace and security. To sum up, the Resolution does not explicitly recognize that the right of self defense applies in relation to any parties as a consequence of the 11 sep. attacks. --------------------------------------------------------------------------- -7- In the light of arguments in favor and against the US attack, we will have a look at Invasion of America in Iraq and the Arguments made by the US on behalf this. Invasion in Iraq* The so called controversial 2003 invasion of Iraq by Us and its allies began on 20th of March 2003 .US president George bush stated the objective of the invasion was ‘to disarm Iraq of weapons of mass destruction to end Saddam Hussein’s support for terrorism “and free the Iraqi people. There was also a parallel legal argument on behalf of bush’s administration using the earliest resolution which authorized force in response to Iraq‘s 1991 invasion of Kuwait. Under this resolution, by failing to discuss and to submit the weapons inspection, Iraq was in violation of UN Security Council. Here President Bush could not muster the support from either Security Council or NATO for invading Iraq. Consequently he had to fit the invasion into the terms of Art.51 on International Law .According to President’s Lawyers “the word ‘inherent ‘ in art.51 bootstrapped in all the self defense doctrines that existed at the Charter’s signing in 1945.Thus the pre-emptive strike doctrine survived the Charter and existed within Art.51. However we can draw from here that the above said claims would not cover invading Iraq, because the doctrine required the showing of an imminent threat to justify the pre-emptive justice, and Iraq by any measures posed no such threat to the US apart from those allegations of WMD. Moreover the critics of the legal rationale based on the UN resolution argue that the legal right to determine how to enforce its resolutions lies with the ------------------------------------------------------------------------------------------- *invasion in Iraq articles www.google.com ,www.cnn.com, www,bbc.co.uk also refer ,articles on Coffy Annan’s speech Iraq war illegal ,BBC news 16 Sep.2004 -8- Security Council alone, not with the individual nations. The statement of US officials leading up to the war indicated their belief that a new UN resolution would be required to make an invasion legal. So there raised a much confused legal issue in the wake of 9/11 incident and “war on terrorism” of US in Afghanistan. But the main issue regarding the act of US- whether it is compatible with International Law or not- is still an ongoing debate. Anyway after these incidents, the Home Land Act (HSA) has been enacted ostensibly to “organize a government that is fractured, divided and under prepared to handle the all important task of defending or great nation from terrorist attack.” This 484 Act is to eliminate emerging terrorist threats and centralizing the unprecedented flood of surveillance data made possible by the USA patriot Act. * Conclusion In March 2004 ,citizen’s Tribunal in Tokyo found the Us President George Bush guilty of war crimes in the attack on Afghanistan.Eventhogh America claimed the military actions were in self defense ,they failed to discriminate both legitimate objects and civilians ,using indiscriminative weapons such as the Daisy Cutter-a huge conventional bomb-,Cluster bombs, deplicated Uranium shells. But the majority of public opinion has approved the action of US .The polls indicated that about 88% of Americans backed the invasion in Afghanistan versus 10% who disapproved it. As per latest news,61%of American believe that the US has made the right decision .** But it is always to be remembered that number of answerless people are still craving for their life in Afghanistan amidst of these assumptions, debates or opinions. -------------------------------------------------------------------------------- *The Algebra of infinite justice www.9-11 Research.com **Public opinion rgarding the attack of Us in Afghanistan www.wikipedia .com References 1.Evans Malcon International Law Publ.Oxford UN Press 2003 2.Fenwick G Charles International Law Publ.Meredith Publ. co. 1967,New York 3.Martyn Agnus Law and Bills Group 4.American Journal of International Law 1981 page 160-166 5..UN Charter Art.2(4) and Art.51 Customary International Law 6.www.parlimentary library.com 9/11 incident 7.www.cnn .com Anticipatory self defense 8.www.9-11 Research.com The algebra of infinite justice ************* Read More