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Merely the Notion of Self-Defence Is Changing?

Introduction

Professor Zemanek has identified the No. 1 issue of the latest developments in international law. I fully agree with all of his major conclusions. I do not think that any State may “lead” the international community in any respect, and act as a supreme arbiter of right and wrong, derived from its belief in the superiority of its legal order, and human rights standard. I find particularly dangerous the Bush administration’s reference to the “legal” conception of preemption. However, I see some change in the notion of self-defence, not necessarily as a consequence of the American behavior. In this paper, I will touch upon merely the interpretation of these two notions: self­defence and preemption.

The Notion of Self-Defence

The question emerged after 9/11, whether the United States had lawfully exercised the right to self-defence against Afghanistan. The first answers were negative. Alain Pellet wrote just some weeks after the terrorist attacks that they cannot be considered acts of war. A war presupposes “an armed conflict between adversaries if not identified, at least identifiable… [The attacks] are neither an ‘aggression’ in the legal sense of the word, nor war crimes. One might possible classify them as crimes against humanity… More troubling, by the [UNSC] Resolution 1368, the Council goes as far as to consider (sic) that the acts of terrorism of 11 September justify the exercise of the ‘inherent right of individual or collective self-defence’ in accordance with the Charter”. According to Pellet, this is an “extremely wide interpretation which hardly conforms to the letter of the Charter” A similar view was held by Antonio Cassese. Pierre-Marie Dupuy feared that the reference of the Security Council to the inherent right of self-defence would give the United States “a carte blanche to do, alone, what it likes and when it likes”. The same opinion was expressed by the Hungarian international lawyer Boldizsar Nagy. In his chapter, Karl Zemanek also comes to the conclusion that according to “traditional understanding… defensive action is allowed only against an ongoing attack”. He denies that the US would have been entitled to “eliminate the source of the attack”, i.e. al Qaeda and the supporting Taliban regime in Afghanistan.

Actually, the UN Charter refers to states against which no force can be used. However, the Charter was prepared at the end of World War II, when the founding fathers of the United Nations wanted to address classical, inter-state aggression, which until that point posed the most serious threat to mankind in history. Resolution 3314 of the General Assembly, however, presented a definition of aggression that included, among others, the following act: “The sending by or on behalf of a State armed bands, groups, irregulars or mercenaries, which carry out armed attacks against another State,… or its substantial involvement therein”. According to the Resolution, only acts of “such gravity” as “bombardment” of the territory of another State, the “use of any weapons” against it, or attacking its ground, air or naval forces can be considered. Therefore, the question that arose on 11 September was whether the State of Afghanistan- or the Taliban- was “substantially involved” in the preparation and perpetration of the terrorist acts.

Today most analysts agree that the Taliban was “substantially involved” in the attacks. It is interesting to note that prior to 9/11 as many as four Security Council resolutions had been passed regarding the Taliban and al Qaeda. No attention has been paid to these resolutions by either international lawyers or political scientists.

The first Resolution, 1193 (1998) was adopted after Taliban troops occupied Mazar- e-Sharif, where they stormed the Consulate of Iran and murdered eleven diplomats and one journalist. In its Resolution, the Security Council condemned these atrocities and expressed its “grave concern at the continued Afghan conflict which has recently sharply escalated due to the Taliban forces’ offensive… causing a serious and growing threat to regional and international peace and security, as well as extensive human suffering”. The Resolution demanded that “the Afghan factions… refrain from harboring and training terrorists and their organizations and… halt illegal drug activities.” The second Resolution, 1214 (1998), states that the Security Council remained “deeply disturbed by the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts”. The third Resolution, 1267(1999), mentioned Osama bin Laden by name. It stated that the Taliban continued to provide “sanctuary and training for the international terrorists and their organization” which constitutes a “threat to international peace security”. The Security Council demanded that the Taliban turn over bin Laden to either the United States or a third country where he could be brought to justice.

The antecedents of the fourth Resolution, 1333 (2000), deserve special attention. In the late 1990’s the Russians realized that “Afghan” mujaheddin were participating in the war in Chechnya. Russian intelligence found a remarkably high number of Arabs among these Afghans and quickly tracked them back to Osama bin Laden’s organization. There was a growing interest in Russia to get rid of them. Moscow discussed the matter with Washington. After intensive Russian-American consultations the Security Council adopted Resolution 1333 (2000), which condemned the Taliban for the “sheltering and training of terrorists and planning of terrorist acts” and reaffirmed its “conviction that the suppression of international terrorism is essential for the maintenance of international peace and security”. The UNSC noticed that the Taliban benefited directly for the cultivation of illicit opium by imposing a tax on its production and recognized that “these substantial resources strengthen the Taliban’s capacity to harbour terrorists”.

The above resolutions clearly indicated that the members of the Security Council were convinced that the Taliban had been “seriously involved” in providing support for the activities of al Qaeda and, consequently, held the Taliban responsible for events on Afghan soil. This is why, as early as the day after the terrorist attacks, Resolution 1368 (2001) was adopted, in which the Security Council condemned the “horrifying terrorist attacks” in New York and Washington, declaring them a “threat to international peace and security” and recognized “the inherent right of individual or collective self-defence in accordance with the Charter”. Furthermore, the resolution stressed that “those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable”.

NATO took a similar position. The Permanent Session of the North Atlantic Council concluded that “if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by the Washington Treaty”. On 2 October 2001, the North-Atlantic Council discussed the information provided by the United States. Secretary General Robertson announced after the meeting that it had been clearly determined that “the individuals who carried out the terrorist attacks belong to the Afghan terrorist organization headed by Osama bin Laden and protected by the Taliban regime”. Therefore the terrorist acts must be regarded as “attacks from abroad”. A similar position was also taken by the European Council on 21 September. In their conclusion, the Heads of State and the Governments of the European Union stated that “on the basis of UNSC Resolution 1368 a riposte by the US is legitimate. A week later, on 28 September, the Security Council adopted Resolution 1373 (2001). The document referred again to the right of self-defence and the threat of terrorism to international peace and security. In addition, it determined that terrorism and its support were inconsistent with the purposes of the UN. Finally, on 16 January 2002, the Security Council adopted Resolution 1390, which affirmed all its previous resolutions with regard to Osama bin Laden, al Qaeda and the Taliban.

Although in these resolutions the UNSC did not authorize any state to carry out military counter-measures, the fact that three permanent members of the Council (France, Great Britain, and later Russia) opened their airspace for military actions and the fourth (China) assured the United States of its support proved that a number of significant states recognized that since 11 September, the United States has been in a permanent state of self-defence. Some international lawyers did not come to the same conclusion. Pellet, Dupuy and Nagy stated that:

(a) the behavior of the United States cannot be regarded as self-defence because Washington launched the counter-offensive several weeks after the attacks rather than immediately and, moreover, against a state located several thousand kilometers away;

(b) when executing counter-strikes the United States might have used force against terrorists or states harboring them only if the Security Council authorized it to do so.

“The inherent right of self-defence has limits”, wrote Boldizsar Nagy, referring to the Caroline case. “It was the US Secretary of State Webster who put down his immortal words in 1841 that have remained valid even today.” During the act, Webster noted that “the partying referring to this has to prove the necessity of self-defence, instant overwhelming, leaving no choice of means and no moment for deliberation”. The same view was expressed by Cassese and Pellet. In the opinion of Pellet, “the use of armed force must be subject to the authorization of the Security Council which has not (yet) been given”. According to this view the party concerned has no right to a delayed use of force in response to an armed attack. Cassese insisted that the use of force by the victim state should be directed “to repel the armed attack of the aggressor state”.

The more than 150 year-old “immortal” words of Webster were, however, applicable only for defence against traditional acts of aggression only under certain conditions. As far as terrorist acts were concerned the Webster thesis is absolutely inapplicable. Moreover, it is the terrorists who could make the best use of it. In the case of a terrorist act the attackers and their supporters remain either unknown or are identified only after some of them are killed during the attack, while the others disappear and hide in remote countries. On the basis of this interpretation action against Osama bin Laden and his organization would have been possible only on 11 September and only if they had been, say, directing the execution of the attack on a mobile phone aboard a yacht in New York City harbor. Otherwise, the US would have had only one recourse; to turn to the UN in order to convene the Security Council, which would either have given a go-ahead for coalition war (as before the Gulf War) or not (as in the case of Kosovo).

If one took the position of Karl Zemanek, a number of legally recognized counter­measures should have been deemed illegal, e.g. the use of force by Great Britain to take back the Falkland Islands from Argentina in 1982. The Argentine forces invaded the Islands on 2 April while the massive British counter-strike was launched only many weeks later, on 21 May. The British needed some time to build up their expeditionary forces and to cover the huge distance between Britain and the theater of war. On the basis of the conditions suggested by Zemanek, all “delayed” self­defence should be considered illegitimate. However, this does not reflect military and political realities. As far as the “elimination” of the source of the attack is concerned, a number of UNSC resolutions provided that the Taliban should refrain from supporting and harbouring terrorist organization like al Qaeda. It is difficult to see any other way to decrease the threat of further terrorist attacks on the part of bin Laden’s organization due to its close ties with the Taliban regime. After 9/11 the question was asked, with some irony, whether the Taliban should be eliminated to stop the activity of al Qaeda or vice versa.

Cassese admits in his paper that “the magnitude of the terrorist attack on New York and Washington may perhaps warrant the broadening of the notion of self­defence. I shall leave here in abeyance”, he added, “the question of whether one can speak of ‘instant’ custom, that is of the instantaneous formation of a customary rule widening the scope of self-defence as laid down in the corresponding rule customary law. It is too early to take a stand on this difficult matter”.15 My view is that is should not have been left here by Cassese. The decisions of the Security Council, the North Atlantic Council and the European Council indicate that the military counter-measures adopted by the US and its allies were accepted by a major part of the international community, including the remaining members of the UNSC and all NATO members. Moreover, this did not represent a single occurrence, but rather a continuum of unfolding developments regarding Afghanistan that date back to 1998.

The new threat posed by terrorism requires a new interpretation of the notion of self-defence, because it differs in many aspects from the traditional military threat posed on a number of occasions since 1945. It may well be that no new written norm could be formulated regarding the response of a state suffering terrorist attack. Of course, it would be extremely difficult to describe in written legal norms how a state might respond to such an attack. In any case, my conclusion is that the old interpretation of the notion and scope of self-defence has been extended by the actions of the international community on 12 September 2001 and the following days. It represents an important change in customary international law. This was, however, the only change in international law as a consequence of 9/11. It does not mean, of course, that the nature of international law itself has changed in any way.

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