U.S. Self-Defense Claim Doesn't Fly
Words (excluding footnotes): 2007
Date: November, 2001
The horrendous events of Sept. 11 cannot blind us to the demands of international law. Despite Americans' justifiable outrage, that passion is insufficient, in itself, to legitimize the U.S.-led attack on Afghanistan. Only the law can do that.
The U.N. Charter is the starting point for any analysis of a member nation's right to use force against another country. The Charter is a treaty signed by all member nations, obligating those nations to adhere to the Charter's provisions.[1]
Article 2 of the Charter requires all member states to "settle their international disputes by peaceful means" (paragraph 3) and to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state" (paragraph 4).
Article 33 fleshes out this obligation by stating in paragraph one that "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."
Plainly, the U.S., by failing to test the effectiveness of nonmilitary options to curb al-Qaida and influence the Taliban, has not attempted to settle its disputes with those parties by peaceful means.
Therefore, our attack on Afghanistan violates the Charter unless another Charter provision permits the use of force.
The U.S. relies on Article 51, recognizing the "inherent right" of self-defense. Let's examine the full text of the core sentence of that article:
"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 the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
This provision incorporates two substantial and independent limitations on the right to use force in self-defense: Such a right exists only (1) where there was an "armed attack" against the country, and (2) "until" the Security Council has had time to take appropriate measures.
The 1986 opinion by the International Court of Justice--the judicial arm of the U.N.--in the case filed by Nicaragua against the U.S. makes clear that the horrific events of Sept. 11 did not constitute an "armed attack" against the U.S. attributable to the Taliban, as the government of Afghanistan.[2]
In that case, Nicaragua asserted a claim for financial restitution from the U.S. for our direct (through such acts as the mining of harbors) and indirect (through assistance to the contras) attacks on Nicaragua. The U.S. contended that it was acting in collective self-defense of El Salvador, where anti-government FMLN rebels were allegedly being given assistance by Nicaragua.
In rejecting this position, the court expressly declared that El Salvador was not under "armed attack" by Nicaragua because the court "does not believe that the concept of 'armed attack' includes assistance to rebels in the form of the provision of weapons or logistical or other support."
Now, this alleged Nicaraguan assistance to the FMLN was comparable to the Taliban conduct--"harboring" al-Qaida--alleged by the U.S. to give rise to the right to use force in self-defense against the country of Afghanistan. Because the World Court is a definitive arbiter of international law, the U.S. claim of a right to use force against the Taliban is demonstrably invalid.
If the Taliban didn't commit what international law recognizes as an "armed attack" against the U.S., is the Taliban somehow responsible for the actions of al-Qaida? The same World Court judgment again tells us no.
In examining the relationship between the U.S. and the contras, the court concluded that the U.S., by disseminating a guerrilla manual to the contras, encouraged them to commit "acts contrary to general principles of humanitarian law." Nonetheless, the court found no "basis for concluding that any such acts which may have been committed [by the contras] are imputable to the United States of America as acts of the United States of America." We can therefore conclude that the actions of al-Qaida are not imputable to the Taliban.
The U.S. attack on Afghanistan is also precluded by the second limitation expressly stated in Article 51. The right to use force in self-defense expires once the Security Council has acted. And, on this issue, it has acted, not once, but three times, in Resolutions 1368 (Sept. 12), 1373 (Sept. 28) and 1378 (Nov. 14).[3]
Advocates defending the war on Afghanistan claim that these resolutions authorize the use of force, as the Security Council has the power to do. This assertion is unconvincing for several reasons.
First, the U.S. has never relied on the Security Council resolutions as authority for its actions. To the contrary, the U.S. claims that the "inherent" right to use force in self-defense exists wholly outside, and is unconstrained by, the U.N. Charter. Presumably this explains why the U.S. did not seek Security Council authorization for its actions.[4]
Second, under Article 42 of the Charter, the Security Council is empowered to authorize the use of force only where such force is "necessary to maintain or restore international peace and security." There is no credible claim that force is "necessary" where nonmilitary solutions have not been attempted, there was no "armed attack" in the first place, and there is no ongoing attack, the assault having begun and ended on Sept. 11.
Perhaps Geoffrey Robertson, a leading authority on international law, said it most succinctly: "It cannot sensibly be asserted that invading Afghanistan is necessary to protect America."[5]
Finally, the Security Council has not issued the explicit authorization that is required to constitute its assent to the use of force.
Resolutions authorizing the use of force in prior conflicts have been unambiguous. For instance, Resolution 665, issued on Aug. 25, 1990, after the Iraqi invasion of Kuwait, expressly "calls upon those Member States ... to use such measures ... as may be necessary" to halt all inward and outward maritime shipping. Similarly, Resolution 678 on Iraq "authorizes Member States ... to use all necessary means ... to restore international peace and security in the area."[6]
Resolutions authorizing force in Bosnia were equally straightforward. Resolution 816, issued on March 31, 1993, "authorizes Member States" to take "all necessary measures" to enforce a ban on flights over Bosnia. And Resolution 1031, issued on Dec. 15, 1995, "authorizes the Member States" to "take all necessary measures" to enforce the Dayton Accords.[7]
In strict contrast, the Security Council's three Afghanistan resolutions do not contain anything resembling explicit authorization language. Because, as the previous examples show, the Council customarily uses such language, we can conclude that the resolutions were not intended to authorize the use of force.
In addition to the limitations on the right to use force in self-defense explicitly dictated by Article 51, constraints are imposed by the understanding of self-defense under customary international law.
Because there was no ongoing military attack on the U.S. when we commenced our attack on Afghanistan, a right of self-defense can be found, if at all, only under the principle of anticipatory self-defense. The American claim is that attacking Afghanistan was necessary to prevent future terrorist assaults on the U.S. But the right to anticipatory self-defense does not extend nearly this far.
The classic definition of anticipatory self-defense comes from the U.S. itself. On Dec. 29, 1837, British troops raided a U.S. steamship, the Caroline, that was being used at various times, but not at that moment, in support of a Canadian insurrection against Great Britain. A British raiding party boarded the ship while it was moored on the New York side of the Niagara River, attacked those on board and sent the ship over Niagara Falls, killing two people.[8]
The resulting dispute wasn't resolved until 1842, when U.S. Secretary of State Daniel Webster rejected a British claim of self-defense. Webster declared that the right of self-defense was confined to cases in which the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The U.S. still adheres to this standard for permissible anticipatory self-defense, as evidenced by its inclusion in the 2002 edition of the Operational Law Handbook for the Judge Advocate General's School.[9]
It should be evident to all that the U.S. attack on Afghanistan--which President Bush and other officials emphasized would take place "at a time of our choosing"--is the very antithesis of conduct occurring with "no moment for deliberation." (Even if it is true, as the U.S. claims, that our right to use force in self-defense is unconstrained by the U.N. Charter, the right to use force in anticipatory self-defense is always subject to Daniel Webster's necessity test.)
Thus, our attack fails to meet the standard that we ourselves established and that has become accepted law.
The World Court recognized the strict limits on the right of anticipatory self-defense in the Corfu Channel case decided in 1949. The case arose when, on October 22, 1946, while traveling in Albanian waters in the North Corfu Strait (between Albania and the Greek island of Corfu), two British destroyers struck mines and suffered serious loss of life. After Albania refused to remove the mines, Britain entered Albanian territorial waters to sweep the mines.
Britain attempted to justify this invasion of Albania's sovereignty on the ground of self-protection or self-help, arguing that it was protecting future ship passage through the strait. Rejecting the defense, the court declared that it could "only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law."[10]
The Security Council has also recognized the limits of anticipatory self-defense. On June 7, 1981, Israeli fighter-bombers destroyed Iraq's Osiraq nuclear reactor shortly before it was scheduled to go on line. Israel claimed to be acting in self-defense so as to prevent Iraq from developing nuclear weapons. Rejecting this position in Resolution 487 of June 19, 1981, the Security Council "strongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct." Pointedly relevant to the present discussion is the Council's stressing of U.N. members' obligation, under Article 2 of the Charter, to settle disputes by peaceful means.[11]
Later, on October 1, 1985, Israeli planes bombed the headquarters of the Palestine Liberation Organization at Hammam-Plage, near Tunis, Tunisia. Israel argued that the bombing was justified by Tunisia's having knowingly harbored terrorists who had targeted Israel, but three days later in Resolution 573 the Security Council voted 14-0 to "vigorously" condemn the strike.[12]
Several final points should be noted: First, international law does not recognize a right to retaliation or reprisal separate from the right of self-defense. Any U.S. right to attack Afghanistan arises, if at all, only as self-defense.
Second, NATO's invocation of the right to collective self-defense under Article 5 of the NATO treaty does not give the U.S. any more rights than it already had under the U.N. Charter. Article 7 of the NATO treaty expressly makes that treaty subordinate to the Charter.[13]
And finally, even where the use of force in self-defense is lawful under the circumstances, international law requires it to be proportionate to the aggressor's attack. Only the most jaundiced of observers would judge the wholesale bombing of Afghanistan, already spanning two months, to be proportionate to one day of attacks on America.[14]
From this analysis one can only conclude that the U.S. war on Afghanistan violates international law. We are outlaws ourselves.
And we defame the memory of those who were lost on Sept. 11 by becoming war criminals to avenge their deaths.[15]
NOTES
1. The Charter is online here.
2. A synopsis of the judgment in the Nicaragua case is online here. For consideration of the meaning of "armed attack," see Stuart G. Baker, "Comparing the 1993 U.S. airstrike on Iraq to the 1986 bombing of Libya: The new interpretation of Article 51," 24 Ga. J. Int'l & Comp. L. 99 (Spring 1994).
3. For the text, see 1368, 1373, and 1378. For commentary on the proper interpretation of the "until" clause in Article 51, see Malvina Halberstam, "The right to self-defense once the Security Council takes action," 17 Mich. J. Int'l L. 229 (Winter 1996); Thomas K. Plofchan, Jr., "Article 51: Limits on self-defense?", 13 Mich. J. Int'l L. 336 (Winter 1992); Eugene V. Rostow, "Until what? Enforcement action or collective self-defense?", 85 Am. J. Int'l L. 506 (July 1991).
4. The entire Operational Law Handbook 2002 from the Army's Judge Advocate General's School is online here, while the relevant Chapter One can be accessed here. See the material on "Self-Defense."
5. Quoted in "Is this war legal," unsigned article from the BBC, November 9, 2001. Online here.
6. For the text, see 665 and 678.
7. For the text, see 816 and 1031.
8. A thorough description of the Caroline case can be found here.
For scholarly commentary, see Timothy Kearley, "Raising the Caroline," 17 Wis. Int'l L.J. 325 (Summer, 1999); Martin Rogoff and Edward Collins, "The Caroline incident and the development of international law," 16 Brook. J. Int'l L. 49 (Dec. 1990).
9. See Operational Law Handbook for the Judge Advocate General's School cited in note 4, at pages 2 and 4.
10. A synopsis of the judgment in the Corfu Channel case is online here.
11. For the text, see Resolution 487. For background on the Israeli action, see this site.
12. For the text, see Resolution 573. Thanks to Gregory H. Fox, Assistant Professor of Law at Chapman University School of Law, for raising the issue of this resolution. His comment is online here.
For some background on the attack from a pro-Israeli point of view, see here.
13. The NATO treaty is online here.
14. For a general discussion of the requirement of proportionality, see Judith Gail Gardam, "Proportionality and force in international law," 87 Am. J. Int'l L. 391 (July, 1993).
15. Thanks go, in addition to the authors already cited, to:
All the contributors to the "Terrorist Attacks on the World Trade Center and the Pentagon" discussion at the American Society of International Law's website, available here.
John Barry Kotch, "Does self-defense justify Afghan war?," The Japan Times, Nov. 19, 2001, online here.