September 11; 2001 and July 12, 2006 have something in common. The attacks on those days were masterminded by non state actors with the alleged collaboration or support of state actors. The attacks left on their trail, destruction, massacre and kidnappings. The use of civilian airplanes to attack sensitive civilian targets in the US on 9/11 will continue to be remembered with shock, disbelief and trepidation. The war on terror, declared by the US President in response to the September 11 senseless attacks was still ongoing, when home-grown terrorists attacked London on Jul 7, killing over 50 people and wrecking so many people’s lives.
Hezbollah, already identified by the US and some of its allies as a terrorist organisation, was not dissuaded by the resolve of the international community to stamp out terrorism when they struck targets in Israel and kidnapped two Israeli soldiers. Israel has since continued to pound targets in Lebanon [article submitted to Panorama July 29, 2006], despite the latter’s insistence of innocence and plea for a political solution. A recent report shows that more than 380 Lebanese and 42 Israelis have died, whilst about 2000 people have been injured in the two week old conflict. The latest casualties are the United Nation’s observers. Four unarmed UN observers from Austria, Canada, China and Finland were killed when their bunker was hit by a heavy bomb from an Isreali war plane.
Several others have been displaced and Western countries are currently air-lifting their citizens, as the Middle East broils in another terrible conflict. The distinction between combatants and non combatants has been stretched to a breaking point, thus calling to question the continued relevance of humanitarian law and the peace architecture in United Nation’s system.
The sole purpose of the UN is to save succeeding generations from the scourge of war, which “twice in our lifetimes has caused untold hardships to mankind.” The use of force is strictly prohibited. The only exception to this is in the exercise of individual and collective self defence. In his commentary on the UN Charter, Bruno Simma outlined a 4-step UN war prevention mechanism, which could be represented diagrammatically as the UN’s 4-step architectural design for war prevention. The design is as follows:
Modern day terrorism and the response to it threaten to dislodge the architectural design. Each and every aspect of that design has been put on a collision course with the aggressive advance of terrorism, counter terrorism and proliferation of weapons of warfare. Consequently, questions have continued to be raised about the continued relevance of the UN’s charter mechanism. Some of the issues that arise are as follows:
• The legality of pre-emptive self defense and the issue of what indeed constitutes “armed attack” under Article 51 of the UN Charter
• The issue of humanitarian intervention and defence of nationals
• Terrorism and the confusion about the legality of nuclear weapons (in the light of the serious security problem and proliferation of weapons that the world is grappling with today, with the Iranian President Mahmoud Ahmadinejad threatening to wipe Israel from the face of the earth could it be that the International Court of Justice (ICJ) made a terrible mistake in its advisory opinion on the legality of the threat and use of nuclear weapons?)
• Terrorism and the urgent issues of reform in UN Peace architecture
We will now consider some of the issues implicated briefly:
Self Defence as a Pivotal Issue:
Israel claims that its attacks on Lebanon are covered by the “inherent right to self defence.” The United States supports this view. The US’s war on terror, it is also argued, derives legitimacy from this right. The US has even gone a step further to argue that there is a right to attack on the basis of “pre-emptive self defence” that is the right to use force to quell any possibility of future attack. This is what is today known in international law as the Bush Doctrine.
Article 51 of the UN Charter recognises the right to self defence. It is the only exception, outside the UN’s enforcement measures, where a state can unilaterally resort to the threat or use of force against the territorial integrity or political independence of another state. The general rule is that the use of force in settlement of international dispute is illegal. This general rule is enshrined in Article 2(4), which is generally agreed to be a part of customary international law.
To enable us to appreciate the Article 51 exception, it is important that we place the article side by side with Article 2(4):
Article 2(4)
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
Article 51
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.
Points to note from the wordings:
• Art 51 and 2(4) do not exactly correspond
• Not every use of force contrary to Art 2(4) may be responded to with armed self defence
• Armed attack in Art. 51 is much narrower than “threat or use of force”
According to Bruno Simma, et al, in their commentaries on the United Nation’s Charter, if Art. 51 is read in conjunction with 2(4), the stunning conclusion to be reached is that any state affected by another state’s unlawful use of force not reaching the threshold of an “armed attack” is bound, if not exactly to endure the violation, then to respond only by means falling short of the use or threat of force, which are often ineffective. Even when the action of another state amounts to “armed attack”, the state that wants to use the defence of self defence must observe the principle of proportionality, necessity and immediacy and report immediately to the SC the measures taken and discontinue as soon as the latter has taken measures to restore international peace and security.
• The ICJ affirmed that not every use of force is at once to be considered as an armed attack (see paragraph 210 of the Nicaragua judgement, ICJ Reports, 1986, p. 110). The Caroline incident, from where the issue of immediacy, proportionality and necessity, derive, is an interesting study of that section. Self defence must, in addition to the charter incorporated conditions, meet the cumulative requirements of immediacy, necessity and proportionality. These requirements meet with common sense. “It would be unthinkable to kill a man who merely slapped you, and argue that you acted in self defence.” Such action cannot meet the proportionality condition. Self defence must also have a clear purpose to achieve and it must be swift. It is not meant to last long. Summarily, there are clear reasons to say that the right of self defence is construed strictly. This is because self defence is but an exception to the general rule against the use of force, which is in line with the purpose of the UN. It is logical that the drafters of the UN treaty could not have intended to use the defence of self defence and destroy the cardinal purpose of the San Francisco Treaty.
The restriction on the unilateral use of force does not in any way lower the seriousness of terrorism as a form of war. Terrorism is no doubt one of the greatest evils of our time. It a crime against humanity and it can never be justified. This view seems to be shared by a majority of nations and commentators. This explains why there seems to be unanimity of opinions on the need to tackle global terrorism. The point of departure however is on methodology. The United Nations swiftly passed resolution 1368 and 1373. It called on the international community to cooperate in fighting terror. It resolved that terrorism constitutes a threat to international peace and security but there is an ongoing controversy on whether the UN resolution approved the use of force against terrorism.
The “war on terror” however raises several unanswered questions. Assuming that the war in Afghanistan was right to root out Al Qaeda, what of the war in Iraq? In retrospect can it be said that the war on terror meets the requirement of necessity and proportionality? How do we construe Israeli’s reaction to the kidnapping of its soldiers by Hezbollah? If we agree that Israel has a right to self defence, could we also agree that its actions are in conformity with the Caroline principles of proportionality?
These are troubling questions that have set ugly precedents. The issues have also been compounded by the argument in support of humanitarian intervention that is the right of any state to intervene in another country to address human rights issues.
Sobering conclusions must be drawn from recent happenings. First, the collective security measures on which the foundation of world peace were erected are today weak. The Security Council seems torn apart by ideological differences. The use of veto power has made it practically impossible to come to an immediate decision on restoration of international peace and security at a time like this. The UN must speed up its reform of the Security Council to make it more democratic.
Unilateral war in the name of fighting terrorism cannot meet the cumulative requirements of necessity and proportionality. No war can solve the problem of terrorism. What war does is to complicate the issues. The world must therefore look outside of war. Efforts must be made to arrive at an international consensus on what indeed constitutes terrorism. The world must also seek answers to the criminological question, why are they terrorists? People who are so desperate to die with innocent victims just to make a point must be objects of study not of hurried decimation. Declaring war on such people is another way of fulfilling their martyrdom.
Legal restriction on the unilateral use of force even in response to armed attack must be reinforced. To argue otherwise is to challenge the wisdom of the drafters of the UN Charter. The Bush doctrine of pre-emptive self defence is diametrically illegal under the current UN Charter and must be condemned, so also is the dubious incantation of humanitarian intervention outside of the UN. The logic of humanitarian intervention as one of the post war rationalisations in Iraq is the final deathblow on humanitarian intervention. To be precise, any intervention by any state on another on the basis of humanitarian intervention is merely a smokescreen for empire building.
The prohibition of the use of force in Article 2(4) can only be dead if United Nations allows it to be. The world must stand up to oppose tyranny and enforce the doctrine of equality of state beyond the current rhetoric. Justice including economic, social, political and legal justice must be seen to be dictating actions in the international arena. By conscious pursuit of comprehensive justice, the world stands at a better advantage in tackling this hydra-headed problem of international terrorism.
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