Right to Self-Defence to Prevent Attacks by Terrorists - Essay Example

An Evaluation: Right to Self-Defence to Prevent Attacks by Terrorist Organizations Under International Law Table of Contents I. Introduction………………………………………………………………2 II. Self-Defence……………………………………………………………...2 A. Self-Defense under Article 51 of the United Nations Charter……………………………………………….2-3 B. Concept and Principles of Self-Defense………………………………3-9 III. A. Use of Force under the United Nations Charter under Article 2 (4)…………………………………………….9-13 IV. Development of the Principles of Self-Defense and the UN Charter……………………………………………………….13-17 A. Pre-UN Charter Period………………………………………………..13-15 B. UN Charter Period…………………………………………………….15-16 C. UN Resolutions 1368 and 1373 (2001) ……………………………….16-17 V. Views of the International Court of Justice on Self-Defense……………..17-18 VI. Analysis and Conclusion………………………………………………….18 VII. References…………………………………………………………………19 Introduction Ever since the September 11 attacks and in the wake of certain controversial acts of the United States in response against the terrorist groups responsible for the attacks, there has been a constant debate regarding self-defense contemplated under the United Nations Charter and as to what is legally permissible under international law in this regard. This paper hopes to explain and evaluate, under international law, the concept of self-defense and whether it includes the right of a State to defend itself against possible attacks by terrorist organizations. This paper aims to provide an articulate understanding of the author’s point of view in conclusion to this discussion, after critically evaluating the various provisions contained in the UN Charter regarding the right of a State to defend itself. Self-Defence The principle on self-defense is specifically provided under Article 51 of the United Nations Charter, which states that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”1 Under this provision, there is an inherent right of individual or collective self-defense of any member of the United Nations in case there is an armed attack that occurs.2 However, there is a limitation provided, in that, it is subject to review by the Security Council.3 Under customary international law, the pre-requisites to legitimate self-defense include the following: “1) an infringement or threatened infringement of the territorial integrity or political independence of the defending state; 2) the failure or inability of the other state to prevent the infringement; 3) the absence of alternative means to secure protection; and 4) the strict limitation of the defending states use of force to prevent the danger.”4 Although Article 51 of the UN Charter considers self-defense as an inherent right under customary international law, the provision providing for an “armed attack” is much debated.5 Various interpretations have also been made as regards the word “inherent” in the exercise of self-defence. The word “inherent” was said to have given a State the right to use force in its exercise of self-defense without previous sanction from the international community.6 Further, self-defense was said to be a natural right or an “inalienable right of all States” even before the Charter was recognized legally.7 Others however have a narrow approach to self-defense under Article 51 and under customary law. The narrow approach taken by various publicists as well as scholars, is that States do not necessarily have a right to the so-called ‘collective’ armed response especially as against those acts which do not involve an ‘armed attack.’8 On the other hand, there is a broader view of self-defense under customary international law prior to the UN Charter and which is currently practiced.9 Although there were arguments that an ‘armed attack’ is not necessarily required under customary international law and under the UN Charter provision on self-defense, especially since the provision does not contain an “armed attack” requirement,10 the terrorist attack that happened on September 11 seemed to have justified the exercise of self-defense by the United States.11 Furthermore, some claim that rogue nations are “constantly engaging in conventional attacks and other aggressive actions” that gives a good reason for using military force against such nations.12 Self-defense under Article 51 of the U.N. Charter was also illustrated as a ‘right’13 and not a duty on the part of the member State wherein, under allowable circumstances, a State in general is at liberty to decide whether self-defense may be exercised.14 Self-defense is also considered “as a legitimate form of ‘armed self-help’,”15 wherein States may legitimately use force on their own authority, provided that they comply with the conditions prescribed.16 Self-defense may also be done either on an individual or collective basis,17 which necessarily implies that it may be invoked by a single State, jointly by two States or under a multilateral agreement.18 Finally, the concept of self-defense is not only wherein circumstances where the survival of a certain State is at stake but may also apply to “non-catastrophic scenarios.”19 Self-defense should also be distinguished from “armed reprisals” especially in terms of its purpose.20 The purpose of self-defense is to protect “the security of a State and its essential rights” which however, takes into account the right of obtaining reparation for the injury that may have resulted.21 Because of the prohibition under the Charter regarding the use of force, reprisals done during peacetime are now considered as unlawful.22 The so-called “countermeasures” which were once considered as “non-military reprisals,”23 became a term wherein an injured State, in order to encourage the responsible State to observe the international obligations,24 may take such actions as forcing out foreigners from its territory or discarding the performance of any treaty obligation.25 Sadoff explains that there are two types of self-defense. One is the so-called “reactive self-defense” wherein a State reacts to an assault or an attack after its taking place and “non-reactive self-defense wherein “a State takes military action even before it is stricken upon.26 There appears to be no uniformly adopted classification for different kinds of self-defense strikes that a State may pursue in case of a security threat.27 Different authors interpret such types of self-defense in a similar manner, for instance, the definition by Rodin on “preemptive” self-defense corresponds with OConnells “anticipatory” self-defense, while Rodins “preventive” is the same as OConnells explanation of “preemptive”.28 Others however make a distinction between preventive and preemptive self-defense.29 Others make a very broad interpretation of self-defense to include the so-called “interceptive self-defense” such as the initial strike of Israel in the 1967 Six-Day War, which may already be an “anticipatory self-defense”.30 Sadoff has divided the classification of “defensive first strikes” into three general categories namely: “a) interceptive, b) anticipatory, and c) preemptive,” but warns that the distinction between these terms may not be clearly defined.31 These categories were founded on “real or perceived timing of the threat” that may have been posed by any aggressor State, and lined up “progressively from the most to the least immediate.”32 “Interceptive self-defense” is where a State uses military action in reaction to an assault that “has not actually crossed the defending States sovereign borders,” but has already begun, for instance, the actions taken are “ostensibly irrevocable” and have already been set in motion.33 It is more of intercepting an attack that has already started or “nipping an attack in the bud.”34 “Anticipatory self-defense” on the other hand, uses force to anticipate an attack when the aggressor State has “manifested its capability” and its intention to launch an impending or imminent attack.35 The term “imminent” is not defined specifically in international law, but usually requires that any threatened harm be “immediate or otherwise temporally proximate.”36 Imminence presumes that there is “a state of necessity” in that there must be “no realistic opportunity” for non-military alternatives in resolving such a conflict.37 Further, under the anticipatory self-defense, the “perceived aggressor State” is likely to be already in its final preparations for any assault or attack in the form of “maneuvers, deployments, or other measures of readiness.”38 In this case, a defending State perceives that there is an imminent armed attack about to be escalated and chooses to obstruct such an attack “before it actually commences” by initiating its own attack.39 As compared with “interceptive self-defense”, the threat in anticipatory self-defense is more concrete.40 Finally, “preemptive self-defense” is that scenario where a State fears that it may be the armed target of an aggressor State, which may be “in the near future,” though not necessarily immediate.41 The concept under “preemptive self-defense” is that there is a need to “preempt” a possible “escalating military threat” that has not begun but is only speculative.42 In this case, the defending State gets to prevent processes that may soon develop into a “highly intense coercion or violence by striking”, it is still at a so-called “low level of coercion.”43 This type of self-defense is said to be “defensive in character” as it seeks to have some strategic motives or retain the balance of power.44 The legality of anticipatory self-defense has always been subject of debates.45 Preemptive self-defense on the other hand, traditionally and taken in the context of inter-State relations has no legal holding.46 This is because States may only be permitted to resort to the use of force if it satisfies proportionality and necessity or when there is “a clear intention to attack accompanied by measures of implementation not involving crossing the boundary of the target state”.47 Interceptive self-defense has very limited or no modern day realistic application, although said to be widely accepted in principle.48 Interceptive self-defense is said to be more of a “reactive self-defense.”49 Customary international law must be taken into perspective as well in order for an “anticipatory self-defense” to be founded on authority recognized in law.50 In order to be “a source of binding law” in the international practice, the existence of the certain very important elements must be found.51 The first element is having an adequate “degree of generality” of a certain practice done by States or must at least be evident or there must be some “passive State support” for such a practice.52 The State’s participation in such a practice must at least be “representative” and must have participation of those States which have interests particularly affected.53 There must also be “substantial uniformity” of such a practice among the States who are participating.54 The State practice should not have wide discrepancies.55 Hence, in the area of self-defense where States have a common interest of protecting itself against any potential attack or “threatened with force”, it is therefore important that no State practice would be overlooked.56 A subjective element known as “opinio juris” is also required.57 Under this element, States should assume a specific practice because of “a genuine sense of legal obligation.”58 This element however may be difficult to prove as States do not make known their true motivations for any act or conduct that they have.59 Given these concepts of self-defense, one must not only consider Article 51 of the UN Charter, it must also consider customary international law and the practice of States. For any action to be justified, it must also take into consideration the elements that must be satisfied in order be considered as legally enforceable under international law. Use of Force Aside from Article 51 of the UN Charter on self-defense, one has to relate such provision with Article 2 on the use of force. Article 2(3) of the U.N. Charter obliges every member to peacefully settle their international disputes.60 Article 2(4) also provides that “All Members shall refrain in their international relations 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 purposes of the United Nations”61 The obligation to restrain from “threat or use of force” as explained by the International Court of Justice (“I.C.J.”), is not only provided for in the UN Charter provision but is also considered as a rule of customary international law62 Any use of force that may taken against any State serves only as an exception to a norm of customary international law.63 Use of force under the concept of self-defense in international law must conform to two very important principles, one is necessity and the other is proportionality.64 Necessity is that in which a States choice to use force must be the “sole recourse available” to protect itself from an attack, after having exhausted “all practicable measures” to forestall such military force.65 Measures of this nature include entering into bilateral or multilateral diplomacy, enforcing economic sanctions, or “seeking unarmed intervention by the Security Council.”66 Proportionality on the other hand, would depend on whether used in the jus ad bellum context (standards to determine whether or not a State can legitimately initiate armed hostilities) or in the context of jus in bello (rules that govern the conduct of hostilities after having begun).67 Under the context of jus ad bellum, proportionality does not mean “equality or symmetry between the quantum, intensity, or means of force used on the battlefield.”68 Proportionality is rather that “degree of force strictly required to satisfy the overall self-defense objective,” like, preventing a given risk or threat.69 This principle therefore represents more of a narrow or “tactical” view of the use of force rather than the broad or “strategic” view in achieving its purpose.70 If the strike is “defensive and tactical in nature” although such may have a general restraining effect on the other or the enemy then it would still satisfy such proportionality requirement.71 A greater challenge is posed in satisfying the necessity and proportionality requirements in a defensive strike rather than on a reactive self-defense.72 A State must also show that in satisfying the element of necessity, there must be an external threat or an adversary’s intention that is real, and that the State has exhausted all peaceful means in order to settle such a crisis.73 In satisfying the proportionality requirement however, a State would have to contemplate on its military plans and the capacity or the capabilities of the adversary when it adjusts its force on the threat posed upon them.74 In relation to self-defense, the doctrines such as self-preservation75 and necessity76 should also be distinguished from one another. These doctrines can also be invoked by any member State in order to justify a State’s use of force for its security.77 However, these doctrines are said to be vague and too broad to be a standard.78 Derek Bowett, a known legal scholar explains that the use of self-preservation and necessity doctrines would only make the obligation to follow and observe the law as conditional, and States would always use this as an excuse to do any act of lawlessness.79 Although prior to the signing of the charter, these doctrines were linked with the term self-defense,80 after the signing of the Charter however, self-defense was considered as “a separate and more limited concept.”81 Although necessity was often used by a number of legal commentators to justify a “defensive first strike” in case of relations between States, there are still important differences between self-defense and necessity doctrines.82 Aside from this, three categories were put up by Gazzini in the use of force, invoking self-defence against terrorists who are located or are within the jurisdiction of another State. First is the use of force against “the state responsible for terrorist attacks”, the second is the use of force against “the state supporting or tolerating them,” and the third is the use of force against “the state that is unable to prevent them.”83 In the first instance, the control that a State has over terrorists at the time when terrorist attacks are being carried out, assumes that these attacks can be attributed to such a State.84 Control in this case however, is not clearly defined.85 In the second instance, this manifests that the State is in breach of international law as it constantly declines to discard any kind of support to terrorism or undertake acts which may prevent such acts of terrorism.86 Hence, the use of force may legally be justified as such act amounts to an adoption by that concerned State of the actions perpetrated by terrorist groups under “the ILC Draft Articles on state responsibility.”87 This second reason was used by the United States as it claimed that the Taliban government had failed to stop any kind of support to the terrorist group known as Al’Qaeda, “to surrender terrorists or close their camps and operations.”88 However, this “harbouring” should be “more than the mere presence of terrorists in the territory of a State” or that there must at least be “direct support for or tacit approval of the terrorist attack.”89 The third instance on the other hand, cannot be used by a State as a justification for the use of force as the concerned State is powerless to prevent such terrorist attacks.90 The State concerned however, may invoke the principle of necessity as a ground for using force in preventing terrorist attacks, but the peril must be “grave and imminent” and there is no other choice but to use such force as the consent of the State or the Security Council cannot be obtained.91 Other authors however, justify the use of military force “to accomplish the greater ends” for instance the destroying of ‘nuclear weapons development facilities’.92 Development of the Principle of Self-Defense and the UN Charter The practice from the early up to the mid-nineteenth century by States seemed to follow a broader notion of self-defense, as “imminent danger” wasn’t at all times manifest when they used military force.93 The case of Britain that commenced preemptive attacks against the Danish Navy that happened in 1807 at Copenhagen was an example.94 But then the reason for this was that “there was no general prohibition” in using force.95 There however, was an essential development during the beginning of 1840s as the “Caroline standard”, when there was “an armed insurrection against British colonial rule” that happened in Canada in the year 1837.96 In this incident, it was said that a number of Americans down at the US – Canadian border were autonomously “supporting the Canadian rebels,” although the US government was officially impartial on rebellion.97 “Caroline” was a US national owned steamship purportedly being utilized to transport provision as well as reinforcements for rebels posted in the Canadian territory.98 However, British soldiers were said to have gone on board the said ship, then on to dock at the “US side of the river,” and killed two Americans following military orders imposed on them, placed the ship on fire, which drifted on the Niagara Falls.99 Eventually, one of the soldiers was taken in custody and charged.100 While the British government protested against the arrest made, the US government also protested as to the attack made by the British soldiers.101 Britain however, stood in its position stating that they have acted according to “necessity of self-defence and self-preservation”,102 which the then US Secretary of State Webster countered in a letter in April 1841, stating that there must be a showing of a standard in using self-defence.103 US Secretary of State Webster stated that “necessity of self-defence” must be overwhelming as to leave no other “choice of means”, and must ensure there was nothing unreasonable or excessive in their act.”104 Lord Ashburton of Britain in July 1842 agreed to such proposal.105 Hence, the so-called “Caroline standard”, which up to this moment is a subject of debate.106 Nevertheless, most of the scholars were inclined to treat such formula as a precise statement of what anticipatory self-defense is, taking into account “necessity, proportionality and imminence” as very important elements,107 and the UN stressing that the Caroline incident “actually involved plea of necessity.”108 According to Ian Brownlie, a known “international legal scholar and practitioner,” the practice of States during the period from 1920 to 1939 have “little positive support” on the so-called anticipatory self-defense,109 and during this period, several treaties reflected rejection for anticipatory action.110 He also noted that there was “general absence of any terms in mutual assistance treaties that show apprehended attack or any impending danger.”111 The Covenant of the League of Nations made in 1919 seems to disapprove of the using “defensive first strikes” as it mandated its members to peacefully settle disputes before opting to use force.112 However there were various cases which reflect different views on self-defense and use of force. The International Military Tribunal decision in 1946 at Nuremberg used the Caroline formula,113 while the Tokyo Tribunal decision legitimized the use of self-defense when Netherlands declared war on Japan despite the fact that Japan neither declared war on Netherlands nor assaulted any Dutch territory reasoning that it was enough that Japan intended war and seized those territories.114 Although self-defense was viewed as an inherent right and had a broad notion of such right, it was not referred to in treaties prior to 1945115 or reflected only through reservations.116 Hence, Sadoff comments that evidence of self-defense before 1945 remains limited and often combined with necessity and self-preservation doctrines, or a weak case to justify anticipatory self-defense during the pre-Charter period.117 In the years that followed after the signing of the UN Charter in 1945, State parties were unable to insert provision on the use of force in relation to self-defense,118 or offered a language that went further than what is stated in Article 51 of the UN Charter.119 Thus, as commented by Sadoff, States were then reluctant in adopting a broad approach to self-defense that would include anticipatory action.120 The United States however, staunchly pushed for anticipatory self-defense in a number of its national security doctrines.121 These include the Truman Administration’s “containment” strategy delivered soon following World War II wherein the US would not use first strike unless it is evident that the “counter-attack is on its way or about to be delivered.”122 The US also preserved their so-called “launch-on-warning option” to respond to any threat or risk of nuclear attack.123 Moreover, the Bush Administration released a document on National Security Strategy stating therein that States need not endure an attack “before they can lawfully take action” in order to protect themselves of any imminent danger from any force.124 As can be seen, most US doctrines or policies appear to support anticipatory self-defense but have not really been concretized or clarified its implementation, nor have sufficiently shown justification for them to be considered part of the customary law.125 Chapter VII of the UN Charter provides that the Security Council may adopt measures to oblige states or permit military force where there is a threat to international peace and security.126 The Security Council has also sanctioned the use of force in Afghanistan, Libya and Sudan in relation with acts of terrorism.127 The Security Council however, has not formerly approved or allowed the use of military force in opposing international terrorism.128 The UN Security Council has also previously adopted Resolution 1368 (2001) and 1373 (2001), both of which recognize the right of self-defense, but which, however, do not make any reference to the use of force.129 It was said that Resolution 1368 did not legally approve or allow the use of force made by the US.130 Resolution 1373 on the other hand, involves financing terrorism and obliges member States “to prevent and criminalize” such act of financing terrorism.131 However, Resolution 1373 still does not provide any explicit acknowledgment on the use of force by the US against any specific state or states in justifying the right of self-defense.132 Views of the International Court of Justice It is now important to take into consideration the rulings and the examination of the International Court of Justice regarding self-defense which has an important influence on State conduct and the main judicial organ of United Nations.133 In the Nicaragua Case that happened in 1986, the Court specifically refused to rule on the State’s right to anticipatory self-defense.134 Further, the Court stressed that the exercise of the right to individual self-defense is subject to the condition that such State should have been “a victim of an armed attack.”135 The Court gave an advisory opinion on the legality of use of nuclear weapons under international law in a 1996 case.136 However, the Court still did not rule on the legality of anticipatory self-defense nor on the use of nuclear weapons in its self-defense in cases of extreme circumstances.137 In the Oil Platforms Case in 2003, the Court seemed to have approved self-defense to justify the action arising out of the ‘cumulative effects’ of a series of armed attacks over a period of time, than from a single attack.138 Finally even in the case of Congo v. Uganda in 2005, the Court was still unable to rule on the lawfulness of anticipated self-defense and still stressed the importance of armed attacks or those that were in response to “acts that had already taken place.”139 Analysis and Conclusion There are requirements both under international law and customary law that need to be complied with before self-defence may be used to justify the prevention of terrorist attacks. Articles 2 and 51 as well as Chapter VII of the UN Charter, provides for limitations to self-defense, the use of force and measures that may be taken to maintain international peace. Various cases also show the very same requisites before use of force may be made. Rulings of the International Court of Justice do not explicitly state the legality of anticipatory self-defense. Important doctrines such as necessity, proportionality, and exhaustion of all peaceful means to settle any dispute must always be taken into consideration before any use of force may be made. States have certainly failed to insert provisions that would go beyond what is explicitly stated under the UN Charter. Aside from these, the importance of the Security Council should be taken into consideration, as it is the primary forum for deliberating these important actions. The United States which has been the constant advocate of this doctrine, has chosen to adopt this national security policy but does not necessarily mean that it has been accepted by other States nor has already considered as legal under international law. Certainly, self-defense and use of force should not be taken lightly. As stressed by various authors, use of force “would be justified only as a last resort, when the state concerned is unable or unwilling to live up to its own protective duties.”140 References Primary Sources League of Nations, Article 12. Statute of the International Court of Justice, Article 38(1)(b), June 26, 1945, 59 Stat. 1031, pt. 2, 1055, 1060. Statute of the ICJ, Article 59. 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