Bu-lat-lat (boo-lat-lat) verb: to search, probe, investigate, inquire; to unearth facts Issue No. 39 November 11 - 17, 2001 Quezon City, Philippines |
Legal
Analysis: BY
BRIAN J. FOLEY Back to Bulatlat.com Alternative Reader Index On
September 11, terrorists killed thousands of Americans and left millions fearful
of further attacks. The attacks are widely believed to have come from a
terrorist network based in Afghanistan. On October 7, the United States launched
a military offensive against that country in an effort to prevent future
attacks. The U.S. has based its attacks on the international law right of
self-defense. But with the U.S. campaign now in its fourth week, is the claim of
self-defense still valid? Was it ever? Surprisingly,
few people are asking this question, based on a belief that the United Nations
Security Council has already concluded that the U.S. response is legal
self-defense, and that the Security Council gave a green-light to "any
means" the U.S. chooses to take. This belief is mistaken. A look at the
full texts reveals otherwise -- and that the resolutions are far from the war
cries some people have imagined hearing. This
belief comes from Resolution 1368, in which the Security Council resolved that
it (not individual nations) was "determined to combat by all means threats
to international peace and security caused by terrorist acts," and
"expressed its readiness to take all necessary steps to respond to the
terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in
accordance with its responsibilities under the Charter of the United
Nations," and similar language in 1373. This language is styled broadly,
but the resolution takes pains to note the Security Council's
"responsibilities under the Charter," which would allow the Security
Council to authorize force only under extremely limited circumstances, and when
other measures are impossible -- and most likely under a U.N. flag and command. Also,
when the Security Council actually outlined a broad array of means, in 1373, it
did not mention force. Instead, it ordered member countries to freeze terrorist
assets, criminalize the financing and support of terrorists, exchange police
information about terrorists, prevent movement of terrorists through increased
border controls, and capture and prosecute terrorists. Likewise,
the resolutions do not conclude that the U.S. strikes are self-defense.
Repeating language from 1368, Resolution 1373 reaffirm[ed] the inherent right of
individual or collective self-defense as recognized by the Charter of the United
Nations." As we shall see, this right "as recognized by the
Charter" is extremely limited. Moreover, in practice the Security Council
decides whether particular uses of force are self-defense only after the fact,
and after careful consideration (given that, as shown below, self-defense is
based on an immediate need to respond, and the response must be proportional to
the threatened harm). The last of these resolutions, 1373, was issued on
September 28, more than a week before the U.S. started bombing Afghanistan. The
U.S. campaign has been relentless and expansive. The following analysis will
show that it has already exceeded the extremely limited right to self-defense
under international law. SELF-DEFENSE
UNDER INTERNATIONAL LAW The
U.N. Charter provides a sweeping prohibition against the use of force,
commanding in Article 2(4) that, "All Members shall refrain in their
international relations from the threat or use of force." Self-defense is
the lone instance where a nation can use force without prior approval from the
U.N. Security Council. Contained in Article 51, the exception states: "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." Like
any exception to a rule, Article 51 must be interpreted strictly in light of the
rule's purpose. That purpose is found in the first words of the U.N. Charter,
which begins, "We the peoples of the United Nations determined to save
succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind." The
international law standard for whether a particular use of force is self-defense
comes from an 1837 incident where British subjects destroyed an American ship,
the Caroline, in a U.S. port, because the Caroline had been used in American
raids into Canadian territory. The British claimed the attack was self-defense.
Through an exchange of diplomatic notes, the dispute was resolved in favor of
the Americans. U.S. Secretary of State Daniel Webster urged the following
definition of self-defense, which the British accepted: "There must be a
necessity of self-defense, instant, overwhelming, leaving 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 the accepted rule in international law ever since. This
strict standard helps prevent incidents and conflicts from escalating into war,
which is the U.N.'s main purpose. Forcing nations to think up and consider
non-violent responses even to illegal, horrific attacks by other nations
prevents attacks from escalating into wars that can spin out of control. This
standard does not permit retaliation, and it also prohibits what international
law scholars call "anticipatory self-defense." Most people agree that
there is a difference between retaliation and self-defense; it's not hard to see
how retaliation can lead to a cycle of violence. It's harder to understand why
"anticipatory self-defense" is prohibited. That's because many people
do not appreciate that the legal definition of self-defense is much narrower
than our intuitive conception. That "the best defense is a good
offense" may be true in football and other sports, but it is not enshrined
in international or even our domestic law. For example, you can use force to
fend off someone coming at you with a knife or gun, but you can't seek out and
kill someone who is plotting to kill you. An
example of "anticipatory self defense" is Israel's strike against an
Iraqi nuclear reactor in 1981, to keep Iraq from developing a nuclear arsenal.
The U.N. Security Council condemned the attack, because the threat to Israel,
though foreseeable, was not "imminent": there was time to try other
measures. Similarly, the U.N. Security Council also rejected Israel's argument
that its 1985 attack on PLO headquarters in Tunis was self-defense. These
two situations involved serious dangers, but in each instance there were options
besides force. Under this tough rubric, how does the U.S. bombing of Afghanistan
hold up? ARE
THE U.S. ATTACKS "NECESSARY"? IMMEDIATE
DANGER:
First, we must ask whether bombing Afghanistan was necessary, and whether it
continues to be necessary, to prevent "an immediate, overwhelming
danger" from terrorists. There are no airliners flying from Afghani
airports toward American targets, which the U.S. could legally intercept and
destroy as an immediate danger. Do the terrorist training camps and Taliban
government constitute an immediate threat? Although it appears they do not --
the recent anthrax attacks have been coming from New Jersey -- we should not be
too quick to say so. After all, bin Laden has called for the destruction of the
U.S. and its citizens, wherever they may be. His tactics are stealth and
surprise, and he intends to use and develop weapons of mass destruction. The
U.N. Security Council condemnation of the 1981 Israeli attack against the Iraqi
nuclear reactor is precedent that works against those who defend the U.S.
attacks on Afghanistan as self-defense. Some international law scholars have
argued that Israel's attack actually does meet the Caroline standard, because
destroying the reactor may have been Israel's last chance to avoid a nuclear
attack. Given the enormity of the threat -- nuclear, not conventional -- and
Iraq's hostility toward Israel, the surgical strike was necessary, the argument
goes. It must be noted, however, that these scholars are in the minority, and
that their argument suffers because there were other means available to Israel
at the time, such as U.N. intervention or sanctions. On
the other hand, if Al-Qaeda camps are developing weapons of mass destruction and
training men to use them, might bombing these camps be the only chance for the
U.S. to protect itself? A scenario likely to meet this strict standard would be
if terrorists had a "suitcase" nuclear bomb and we knew where they
were -- and they were leaving Afghanistan imminently. Striking them in their
camp would most likely meet the standard of self-defense. However, the U.S.
government has not produced evidence of such immediate danger. The only
"immediate" threats appear to be from "sleeper" terrorists
already inside the U.S. and Europe. What
about the Taliban, whose army and government installations have been frequent
U.S. targets? It appears that the Taliban has enabled Al-Qaeda, which may or may
not pose an "immediate, overwhelming" threat. But the Taliban itself
does not. No terrorist acts have been attributed to them, and there is no
evidence that the Taliban is planning any immediate ones. CHOICE
OF MEANS:
Second, whether our attacks are "necessary" depends on the options
available – there must be "no choice of means." Has the U.S. worked
hard to avoid war and followed the advice of the many experts on the Middle East
who have outlined peaceful, diplomatic solutions? Did our government attempt to
negotiate a peaceful solution? President
Bush has twice refused Taliban offers to turn bin Laden over to a third country
if evidence against him is produced, instead holding to his initial demand to
hand over bin Laden immediately and unconditionally, "dead or alive."
The Taliban's offer was similar to what the U.S. agreed to concerning the
Libyans suspected of bombing Pan Am 103 in 1988. Under
the U.N. rules, the U.S. should negotiate. All countries have a responsibility
to avoid the calamity of war -- and calamity is possible here. The Middle East
is even less stable now that we've bombed, and some of its powers are nuclear.
Pakistan is less stable as a result of the U.S. campaign, and many of its
citizens are rushing to Afghanistan to join Taliban forces. Perhaps more
frightening is the fact that Pakistan's Army has officers sympathetic to the
Taliban who could conceivably pass along nuclear weapons. Indeed,
the U.S. may have been better served by supporting a U.N.-led incursion into
Afghanistan. U.N. action would have lent more moral authority to the campaign
and would have sent the Taliban a loud message that the world, not just the
U.S., disapproves. To its credit, the U.S. did build a coalition, but it lacks
the symbolic, moral authority of the U.N. Using the U.N. might also have
prevented some of the anti-Americanism that has risen since the bombing began,
and which will likely fuel future terrorist attacks. The
U.S. has been pursuing other means, including those outlined in U.N. Resolution
1373: working with police bureaus from other nations, moving against terrorists
funds, and ratcheting up border security. In fact, domestic police
investigations to disrupt and destroy terrorist networks, and increasing
domestic security overall, may prove to be the best means of preventing
terrorist attacks. Diplomatic overtures toward governments in the Middle East
could also tamp down some of the anti-Americanism there; so could reducing the
poverty and anguish that help breed terrorism. Certainly,
whether the U.S. attacks are necessary is a close question. Bin Laden is intent
on destroying Americans, and he uses stealth and surprise, leaving the U.S. few
chances to stop him. However, international law does not allow countries to
strike enemies who are likely to commit nefarious deeds unless there is an
immediate, overwhelming danger that leaves no other means are available. The
U.S. must consider and try "other means" in good faith. Negotiating
with the Taliban might be unsavory, but as the U.N. Charter warns us, the
"scourge of war" is far worse. ARE
THE U.S. ATTACKS EXCESSIVE IN LIGHT OF THE THREATENED HARM? The
second requirement for acting in self-defense is to use only the force
necessary, "nothing unreasonable or excessive." This requirement is
often rephrased to say that any response must be "in proportion to"
the threatened harm. Might a period approaching four weeks of daily bombs and
missiles go beyond self-defense? It
depends on the threat -- its size, what it is and where it is coming from. With
Al-Qaeda, the threats appear numerous and unpredictable. They have hijacked
domestic airliners and used them as guided missiles. They are suspected of
unleashing anthrax. Scenarios have been posed of terrorists' using airplanes,
ships, trains, trucks or even suitcases to carry bombs, conventional or nuclear.
The list of what a well-financed, hostile terrorist group is capable of seems
endless. In
response to these threats, U.S. forces have targeted Al-Qaeda camps as well as
Taliban troops and government installations. The attacks continue to expand, in
part to limit the threat to U.S. ground troops. The U.S. has also expanded its
aims to include "nation building" -- toppling the Taliban and
installing a new government. And, so far -- although the Pentagon will not
confirm -- it is likely that hundreds of civilians have been killed by U.S.
bombs. These
attacks on Afghanistan most likely do not stand up as proportional to the threat
of terrorism on U.S. soil, when the immediate threats appear to come from
terrorists "sleeping" in the U.S. and other countries. Eradicating
the Taliban, which although reprehensible poses only an indirect threat to the
U.S. through its support of Al-Qaeda, also seems to go beyond proportional
force. Most
of all, it is troubling that the U.S. continues to place Afghani civilians at
risk of death to protect U.S. troops -- especially given that international law
and custom oblige troops to limit risks to non-combatants, not vice-versa. This
risk seems especially unnecessary given that we have already inserted soldiers
into Afghanistan with no combat losses. Perhaps more damaging to the U.S. claim
of self defense is that, so far, the U.S. has not heeded calls from world
leaders to stop bombing so that food may be trucked in now, before the roads are
snowed-in. Thousands, if not millions, of displaced Afghani civilians face the
specter of starvation in the coming months as winter tightens its grip on
Afghanistan, making the roads impassible for food convoys. The
U.S. faces serious threats, but we must keep asking whether the U.S. is engaging
in self-defense instead of illegal retaliation or outright aggression. September
11 may be seen as a crossroads for international law. The temptation to ignore
it may be strong, but if nations follow international law in response even to
these horrific attacks, international law will have even more authority and
legitimacy to protect us -- and future generations -- from the scourge of war.
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