How Terrorist Threats Have Impacted on the Doctrine of Self-Defence since September 11 - Essay Example

Executive Summary Since the creation of the UN in 1945, scholars have remained strongly divided over the meaning of Article 51 UN Charter, which guarantees the right of self-defence in the event that an armed attack manifests. These rules remain increasingly challenged in light of emerging threats such as terror attacks, which have fuelled controversy as to whether they need redefinition or revision. The paper will consider how terrorist threats have impacted on the doctrine of self-defence since September 11 2001. This paper will examine the doctrine of self-defence through an examination of the sources of law, customary international law and the United Nations Charter. The paper draws from the jurisprudence in the Nicaragua case by examining the relationship between UN charter article 51 and the customary international law. It will address the debate about anticipatory self-defence. The paper will analyse the views of Reinold. Introduction Opinions on the issue vary as to whether “an armed attack” extends to “safeguard of nationals” abroad, or whether the provisions sanctions defensive measures against small-scale attacks, or whether it allows military action against states involved in “indirect aggression.” The confusion regarding the meaning of “armed attack” requirement may be complicated by issues regarding the connection between Article 51 and the overall prohibition of inter-State utilization of force of Article 2 (4) UN Charter, as well as the connection of Article 51 to the customary right of self-defence. Nevertheless, these resolutions have not exhaustively dealt with the question as to when states can lawfully use force in exercise of their intrinsic right of self-defence. Debate on the lawfulness of “anticipatory” and “pre-emptive” self-defence has gained prominence since the perpetration of terrorist attacks of 9/11, and the consequent “war on terror.” The banning on the utilization of threat force is binding on all UN members since it plainly provided for in Article 2 (4) of the UN Charter, which requires that UN members abide by their international relations from the threat or utilization of force against political independence of any state.1 The Scope of self-defence in international law Contemporary attitudes on the issue of pre-emptive self-defence appear to fall into four distinct schools of thought. The strict-constructionist school starts with the proposition that Article 2 (4) of the UN Charter details broader prohibition on the utilization of force. The utilization of force, as opposed to “war,” mirror a desire to ban transnational armed conflicts, not merely conflicts emanating from formal state of war. Strict constructionists’ highlights that Article 2 (4) ban any trans-boundary utilization of military force, inclusive of force justified by reference to the diverse doctrines established in the pre-Charter era of reprisal, forcible self-help, humanitarian intervention, and protection of nationals. Strict constructionist outlines that states may utilize force in self-defence as dictated by Article 51 of the UN charter. Proponents of the “imminent threat” school embrace the language of Article 51 speaks of self-defence in retaliation to an armed attack. However, proponents of this school of thought employ three lines of argument to progress a norm favouring a right of anticipatory self-defence, rather than pre-emptive self-defence. The proponents of this school of thought acknowledge that the UN Charter provides an intrinsic right to defend against an imminent threat. The provision “if an armed attack occurs” fails to impose conditions on the exercise of the intrinsic right; moreover, the broad meaning of the term “armed attack” accommodates the perception of “armed attack” as encompassing an attack that is imminent and inevitable. Nevertheless, proponents of this school of thought are unwilling to broaden the meaning of Article 51 beyond the notion of addressing imminent armed attack.2 This draws from the assertion that embracing the legality of preemptive self-defence can situate the law in a slippery slope, taking individuals in the pre-Charter globe in which nations resorted to warfare for perceived “just” causes. Proponents of the qualitative threat school hold that states should not wait a real armed attack; however, they perceive the requirement of imminent threat as misplaced. This school of thought holds that the globe has changed dramatically since 1945, especially after an increase of global terrorism.3 This draws form the assertion that adherence to the views expressed in strictures of the Caroline standard within a contemporary world is a source of paralysis within the face of grave threats. As such, embracing self-defence would yield in an enhanced, rather than lesser probability of sustaining world public order since it would help to deter state and non-state actors in undertaking programs that would yield to armed conflict. The last school of thought stipulates that the UN Charter “is dead,” which reinforces the perception that the rules directing the use of force embedded within the Charter as entirely without any legal implications of normative worth. This draws from the observation that the practice of states in the last six decades indicates that states no longer subscribe to the UN Charter in legally meaningful ways, which means that the provisions have fallen into desuetude. Hence, the “Charter-is-dead” school perceives no legal impediment to involving in self-defence or pre-emptive self-defence whenever necessary. The International Court of Justice, on 27 June 1986 gave its much awaited judgement in the Nicaragua case. This was the first instance in history when a court gave a direct and detailed ruling regarding issues pertaining to the international law on the utilization of force (Ius ad Bellum). The judges concluded that a general agreement on the nature of the acts that can be treated as comprising armed attacks, which triggers the right of self-defence. The Nicaragua case fostered an interaction between customary law and Charter on the utilization of force. Converse to Nicaragua’s position, the US stipulated that the Charter provisions and the customary decrees were analogous, leaving little room for “other customary and international law” on which Nicaragua based its claims.4 Others stipulated that the inclusion detailed in the Articles 2 (4) and 51 of the UN charter were unaffected by the pre-existing customary law and the utilization of force. Self defence actions by third-party states can sometimes be interpreted as amounting to interventions in support of the opposition groups. This was evident in 2001, when the U.S. invaded Afghanistan in self-defence subsequent to the September 2001. Self-defence claims against non-state actors, as is the case of support awarded to opposition groups within the broader context of self-defence actions does not generate analogous effect. This arises from the fact that it can potentially alter a legal-defence action into an unlawful intervention.5 The theory and practice dictating the utilization of force within the 19th and early 20th century centred on bellum justum doctrine, which legitimized the resort of violence within international law as a procedure of self-help only in cases where certain criteria connected to the authority to make war, its objectives, and its intent. “Resort to war,” as provided for in international law remain unlawful in circumstances where: (1) war was made devoid of prior submission of the dispute or judicial settlement, or arbitration; (2) when started prior to the expiration of three months consequent to the arbitral award; (3) when started against members that had complied with the award; and, (4) in situations when launched by non-member state against a member state.6 Some of the countries expressly stipulated that the Charter rules touching on the utilization of force were not appropriate to dealing with the emergent 21st century security threats such as transnational terrorism, collapse of governmental authority within “failed” or “failing” states, and the proliferation of weapons of mass destruction. The shifts in customary practices drew support of US response to the 9/11 attacks, especially the intervention in Afghanistan. The 9/11 episode demonstrated that non-state actors have the capability of projecting extreme violence across the globe. The capability of non-state actors in projecting force across the world is troubling in the context of their potential utilization of weapons of mass destruction.7 The “emerging threat” or Bush doctrine can be considered a comparatively recent addition to the debate on anticipatory self-defence originating from the 9/11 terrorist attacks. The doctrine stipulates that unilateral pre-emptive force may be utilized even in cases where an attack by an enemy has not taken place or is imminent. Bush doctrine encompasses a dilution of the criteria necessitated y the pre-Charter customary law that necessitated an attack to be imminent. This requirement can be substituted by the simple requirement of demonstrating that an attack is emerging.8 The Bush doctrine draws from the perception that the global security environment has undergone changes, which necessitate changes on warfare. Sovereign states enjoy the responsibility of protecting their own citizens, as well as safeguarding their own territory, which represent the rights and fundamental security interests of other states.9 The failure of weak states to exercise efficient territorial control make them secure havens for terrorist networks, as well as other irregular groups. Nevertheless, the absence of such control cannot be cited as the only reason for the proliferation of terrorist groups around the globe, and the challenge may not emanate from the host state’s incapability, but rather its reluctance to safeguard against irregular activity on its territory.10 Since the 9/11, there has been prominent debate regarding the scope of a state’s right of self-defence when confronted by an imminent or real armed attack by non-state actors. In an article, titled “Self-Defence against an Imminent or actual by non-state actors,” Bethlehem identifies the present gap between scholarship issues and operational needs, inclusive of actions of states. In his article, Bethlehem articulated 16 principles pertinent to the utilization of force against non-state actors.11 The principles touch on issues relating to state-actors that may be treated as undertaking or contributing to an armed attack, or instances in which armed attacks may be considered as “imminent” and instances in which state may utilize force within another state’s territory in self-defence against non-state actors.12 The discussions have informed the practice of states, especially their appreciation of legality of self-defence in line with customary international law and interpretation of treaties. In one of the UK House of Commons Foreign Affairs Committee, the committee notes that the perception of “imminence” should be reconsidered in view of fresh threats to international peace and security.13 Some sections of the society argue that Article 51 avails the right of self-defence; nevertheless, it has been a persistent position of successive UK Governments that the right of self-defence as provided under international law accommodates the right to utilize force in cases in which an armed attack is imminent.14 The inherent right of self-defence can be traced back to the “Caroline” incident in 1837. Hence, the Charter did not influence the extent of the right of self-pro only in cases where the attack is prominent at the time in customary international law, which encompasses the right to utilize force in anticipation of an imminent armed attack.15 The UK government perceives that international law allows the utilization of force in self-defence against cases of imminent attack, but does not sanction pre-emptive strikes against threats considered remote.16 This may be evidenced by the adoption of fresh resolutions by the Security Council after the 9/11 that appreciated that large-scale terrorist action could amount to an armed attack, which gives rise to the right of self-defence. The use of force in such circumstances might be admissible against those who plan and perpetrate acts and those harbouring them in an effort to avoid further terrorist acts. This is what informed UK’s forces engagement in military action against Al’Qaeda and Taliban in Afghanistan. Military action ought to be employed as a last resort and must be essential to utilize force to deal with the precise threat at hand. Furthermore, the use of force ought to be proportionate to the threat faced and ought to be limited to what is necessary to respond to the threat. The right to utilize force in self-defence persist until the Security Council has adopted measures to sustain international peace and security.17 The emphasis that every case be analyzed as per context and the concept of “imminence” will form to meet fresh circumstances and threats, which implies that self-defence is not a rigid concept, but rather a concept that ought to be reasonable and suitable to the threats and situations of the day. The customary international law has a huge bearing on issues relating to self-defence. However, controversy still reigns since there is minimal scholarly consensus on the meaning of “imminence” within the context of contemporary threats.18 Furthermore, there is minimal consensus on who may be targeted in the sphere of non-state actors of those threatening, planning, perpetrating, and availing material support critical to organizing an armed attack. The labelling of an armed attack as “imminent” can be shaped by the relevant circumstances inclusive of (a) the immediacy and nature of the threat; (b) the possibility of an attack; (c) whether the foreseen attack is part of a concerted pattern of persistent armed activity; (d) the probability scale of the attack and the injury scale, or damage possible to emanate in the absence of mitigating action, and, the (e) the probability that other opportunities to effect effective action in self-defence, which may yield to severe collateral injury, damage, or loss. Summary of the discussion Force may be employed in self-defence only in relation to “armed attack,” regardless of whether the “armed attack” is ongoing or imminent Force may be utilized in self-defence only when considered necessary to bring an attack to a stop, or to avert an imminent attack. It is essential to note that there ought to be no practical alternative to the proposed utilization of force, which is probable to be effective in ceasing or avoiding the attack States may utilize force in self-defence against threatened attacks, only in scenarios where the attack is “imminent” The exercising of the right of self-defence ought to comply with the criterion of “proportionality” Article 51 of the UN Charter does not confine self-defence to attacks by states but also applies to attacks by non-state actors States enjoy the right to self-defence against imminent or real armed attack by non-state actors Armed action in cases of self-defence ought to be limited to what is essential to address an imminent or real armed attack, and ought to be proportioned in line with the threat encountered. The term “armed attack,” in this case, encompasses both discrete attacks and series of attacks, which demonstrate a concerted pattern of sustained armed activity It is essential to appreciate that a series of attack, whether real or imminent, makes up a concerted pattern of sustained armed activity. The division between discrete attacks and a series of attacks may be pertinent to considerations of the necessity to act in self-defence, and the proportionality of such action Individuals or parties acting in concert encompasses those threatening, planning, and perpetrating armed attacks, and those availing material support critical to the attacks can be deemed to be acting in those attacks Conclusion Opinions regarding the legality of self-defence under international law remain divided; one school of thought demands that an armed attack ought to occur prior to a state lawfully acting in self-defence. Article 2 (4) and 51 shape the basis of the Charter regime directing the use of force. The resort to armed force remains outlawed as per the international law, except in cases where the UN Security Council awards permission, or in cases where Article 51 sanctions the utilization of force as a means of self-defence. The wording of Article 51 has been a source of disagreement based on three schools of thought: (a) those who stipulate that Article 51 of the UN charter is exhaustive of the circumstances under which the utilization of force can be allowed; (b) those who stipulate that the customary international law that predated the UN charter still holds; and, (c) legal scholars who stipulate that the emerging threat (Bush Doctrine) avails for the legality of anticipatory self-defence. Bibliography Alder, Murray C. The Inherent Right of Self-Defence in International Law. Dordrecht: Springer, 2013. Bethlehem, Daniel. “Self-Defense Against an Imminent or Actual Attack by Nonstate Actors.” American Journal of International Law, Vol. 106, No. 4 (2012):769-777. Blaxter, Loraine, Hughes Christina and Tight Malcolm. How to research. Philadelphia: Open University Press, 2001. Green, James and Grimal, Francis. The threat of force as an action in self-defence under International Law.” Vanderbilt Journal of Transnational Law, Vol. 44, No.1 (2001): 285-329. Green, James. The international Court of Justice and self-defence in International Law. Portland: Hart Publishing, 2009. Greenwood, Christopher. “International Law and the War on Terrorism.” International Affairs, Vol.78, No. 2 (2002): 301. Lewis, Corinne. “Don’t stop: The development of the International Law right to use force in self-defence.” Journal of International Law & Policy, Vol. 3, No.1 (2007): 1-23. Lieblich, Eliav. Intervention law and civil wars: Intervention and consent. New York: Routledge, 2013. Mulcahy, James and Mahony Charles. “Anticipatory self-defence: A discussion of the International Law.” International Law, 2 (2) (2006): 231-248. Nadin, Sara, and Cassell Catherine. "The use of a research diary as a tool for reflexive practice: Some reflections from management research." Qualitative Research in Nadin Accounting & Management, Vol. 3, No. 3 (2006): 208 – 217. Nicaragua v United States of America [1986] ICJ Rep 14-150, 195. Reinold, Theresa. “State Weakness, Irregular Warfare and the Right to Self-Defense Post-9/11.” American Journal of International Law, Vol. 105, No 2 (2011): 244-286. Reisman, Michael. “Allocating competences to use coercion in the Post-Cold War World: Practices Conditions and Prospects.” In Lori Fisler Damrosch and David J. Scheffer (eds.) Law and Force in the New International Order. Bolder: Westview Press, 1991. Ruys, Tom. ‘Armed Attack’ and Article 51 of the UN Charter: Customary Law and Practice. Cambridge: Cambridge University Press, 2010. Strawson, John. “Provoking International Law: War and Regime Change in Iraq.” in Fluer Johns, Richard Joyce and Sundhya Pahaja (eds.), Events: The Force of International Law. Abingdon and New York: Routledge Cavendish, 2011. Van den hole, Leo. “Anticipatory self-defence under International Law.” American University International Law Review, Vol. 19, No.1 (2003): 69-106. Weller, Marc. Iraq and the Use of Force in International Law. Oxford: Oxford University Press, 2010. Research diary The use of methodological-guided comprehension of international politics necessitates a systematic approach to highlighting critical processes and forces of change. The study utilized case study approach in its analysis of the scope that states have to use self-defence in international law in the period since September 11 2001. Case studies avail high levels of conceptual validity and the establishment of new theories. The methodology adopted guarantees enhancement of construct validity, external validity, internal validity, and reliability even with minimal case study analysis. The choice of research topic aligns with the growing interest in the place of self defence in international law regime. The UN Charter forbids the utilization of force against another state, unless the Security Council has authorized the utilization of force to restore or preserve worldwide peace and security and in cases where states are exercising their intrinsic right of collective or individual self-defence as provided for in Article 51 of the UN Charter. The requirement for consent does not operate within situations where there are an objective and reasonable grounds for determining that the third state is incapable to contain the armed activities of the non-state actors. Consent, in this case, may be operational or strategic, express or implied, generic or ad hoc. Diary methods encompass intensive, repeated self reports that seek to capture reflections, events, pains moods, or interactions during a research project. The methods in international relations derive from the tradition of daily written accounts and willingness of researchers to avail exquisite details regarding their experiences. This approach has provided me with improved ecological validity, which herald a bottom up examination of processes in the daily environment. Research diary represents a written record of researcher’s activities, feelings and thoughts throughout the research process from design, data collection and analysis, as well as research writing and presenting the study. In this research diary, I have recorded factual items including contact number of key informants and motives for making changes to the research protocol. Other aspects detailed in the research diary include recording of analytical, conceptual and methodological ideas. The research diary has played a prominent role in aiding reflexivity within the research process. The research diary details information regarding what I did, and the process of research and complements the data yielded by the research methodology.19 This has awarded me the opportunity to reflect on the practices and the discourses regarding what I undertook in the research project. In the course of the research, one of the prominent questions that I attempted to solve related to the processes that underpin changes in international law. From the research topic, I learned that it was essential to utilize valid and reliable data in order to arrive at accurate conclusions. Discussions on the meaning of Article 51 of the Charter highlight considerable differences of opinion relating to the extent of the right to self-protection. Limitations on the use of force within international relations, which is the core goal of the UN, places checks since there are only two exceptions to the outlaw on the use of force including maintenance of global peace and security. The second instance relates to the intrinsic right of individual and collective self-defence guaranteed by Article 51 of the UN Charter. I employed the interview method, which I found highly suitable for the project context since it allowed me to access data that would otherwise be unavailable owing to project constraints, and the opportunity to gain deeper reflections from the interviewees. However, the use of interview method was time consuming and can sometimes yield to complex data. This research diary has helped me to maintain a detailed history of the research process as it unfolded, and helped me track the development of my research skills and understanding.20 Furthermore, the research diary has availed a reference point for what occurred in the research process. Indeed, the reflective cycle has provided me with learning opportunities in the research process. The legal rules directing the utilization of force within international relations has continuously been a source of heated debate and variation in interpretation, varying from discussion regarding what comprises a use of force to the situations in which force may be justified. The 9/11 terrorist attacks demonstrated the extremely destructive capabilities of private actors and triggered debate as to whether laws on self-defence required to adapt in light of new challenges. I found Daniel Bethlehem’s article on “Self-Defence against an Imminent or actual by non-state actors” most helpful during the research. According to Bethlehem, the notion of “armed attack” is problematic since its fails to mirror the nature of many attacks at which states confront and that the UN Security Council imprimatur may be forced to respond. Bethlehem maintains that an “armed attack” ought to be construed to mean any utilization of armed force since, such an interpretation would align the scope and application of Article 51 with Article 2 (4) of the UN Charter. This is pertinent in the evolving globe where the threat of aggression by non-state actors is increasingly becoming evident. I appreciate the significance of distinguishing “attacks” from simple contraventions of sovereignty such as aircraft straying into another state’s airspace devoid of authorization. Attacks must be deliberate and ought to involve the threat or use of force. Moreover, attacks do not necessarily have to be in large scale. I undertook the study because I am convinced that, in the light of the present challenges, it is essential to world order that clarity and comprehension of the relevance and application of international law guide the use of force by states. The research sought to award a clear representation of the present principles and rules of international law, which still remains legally and politically contentious, especially given that the application of the principles is rarely without difficulty. This can be complicated by the fact that unresolved issues still linger on the adaptation of Charter principles to present security challenges. The research diary has been a valuable tool in prompting insights that informed various methodological and theoretical decisions with regard to research. Read More