Date: Monday, 09 September 2024
Author: Adriana Ribas
Country: Brazil
The explosion of the second plane hitting the World Trade Center is seen from afar in New York during the terrorist attack on September 11, 2001. — Source: Spencer Platt/Getty Images via AFP/Archive
SUMMARY
The present article discusses the self-defense mechanism in Public International Law, in light of the September 11, 2001 attacks. The argument to be presented contrasts the customary right of self-defense with the legality of Operations Enduring Freedom and Iraqi Freedom, conducted, respectively, in Afghanistan and Iraq.
Regarding the legal basis of the argument, it will be constructed based on the customary right of self-defense, customary international law, and also on the United Nations Charter, particularly Articles 2 and 51, which, respectively, point to the prohibition of violating territorial integrity and the permission to use force in cases of individual or collective self-defense.
In this sense, it will be discussed whether a terrorist attack constitutes a necessary and sufficient condition for breaking Article 2 and in which cases Article 51 can be invoked, highlighting the lack of clarity and specificity of the latter.
BACKGROUND
From Just War to the Legalization of the Use of Force
In the international context, the use of force – war – is characterized as a phenomenon intrinsically linked to the issue of state survival (SOARES, 2013, p. 72 apud SILVA & ROSA, p. 3). In this sense, there is the theory of just war – bellum justus. which sought to establish justice criteria to legitimize the resort to war. With the development of the concept of sovereignty, following the Peace of Westphalia in 1678, the Just War theory was discarded, being confined to the moral and theological sphere, while legal matters were handled by positivist law (SOARES, 2013, p.89 apud SILVA & ROSA, p. 3).
After World War I and the subsequent creation of the League of Nations, the need to regulate the use of force in the international context became evident, as war had not been abolished. This regulation was only realized with the Briand-Kellog Pact in 1928. Since customary law was the main representative source of international law regarding self-defense and war as an option, a problem became apparent: the issue of hierarchy between laws, which were considered customs and later codified in treaties and conventions.
In general, what is defined in treaties is hierarchically less prioritized than what is outlined by customary law. This conflict created the need for an authority capable of ensuring the application of international conventions, establishing rules recognized by participants, applying judicial decisions, and deliberating on these hierarchical conflicts in law enforcement, which became the International Court of Justice (ICJ).
The explicit prohibition on the use of force to resolve disputes between states or international conflicts was only materialized with the UN Charter in 1945 and is contained in Article 2 (4) of the UN Charter:
“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” (UN, 1945, pp. 6-7).
One of the factors that still causes controversy regarding interventions authorized by the UN Security Council is the concept of sovereignty, not only because it clashes with states´ desire for international action (without which international courts cannot reach them), but also because it often serves to conceal injustices committed by these same states. Despite this, there is an increasing number of countries recognizing the important role of judicial means in resolving international disputes, especially in their humanizing and pacifying functions in conflicts (MAZZUOLI, 2010, p.1063).
Another point to consider is the disagreement in the debate between developed and developing countries, as the latter argue that using force includes not only military force but also economic coercion (WHEELER, 2000, p. 30). However, the controversy relates to the latter part of Article 2 (4), as some states argue that the right to self-defense and the war on terror are emerging as international norms. Others defend that certain actions breach the principles listed in the UN Charter, allowing for interpretations that justify unilateral actions under the guise of self-defense. Malanczuk (1997) states:
“... Article 2(4) is badly drafted, insofar as it prohibits the threat or use of force only 'against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations´. This terminology opens up the possibility of arguing that force used for a wide variety of purposes (for example, to protect human rights, or to enforce any legal right belonging to a state) is legal because it is not aimed against the territorial integrity or political independence of the state´. But the reference to Territorial integrity or political independence should not distract our attention from the words ´or in any other manner inconsistent with the Purposes of the United Nations´. Although Article 1 of the Charter, which deals with the purposes of the United Nations, makes a passing reference to justice and international law, which could be used to support the argument that force used in the interests of justice and international law is not illegal, the overriding purpose mentioned in Article 1 is 'to maintain international peace and security´ - which must surely indicate that any breach of international peace is automatically contrary to the purposes of the United Nations" (MALANCZUK, 1997, p.310).
It is clear that the UN Charter does not formally use the term “war”, but refers to the “use of force”, which is a broader expression capable of more clearly showing that what is prohibited is any form of aggression (including threats) to the territorial integrity or political independence of any state. According to the UN General Assembly Resolution 3314 of 1974, the definition of aggression is as follows:
“... aggression is the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or any other action that is inconsistent with the United Nations Charter, as determined by this definition” (UN, 1947, p.2).
It is noted that the last part of this definition is extremely vague, which opens up a wide range of possibilities far beyond the restrictive interpretation of military armed attacks (MAZZUOLI, 2010, p. 1083).
The only two exceptions provided by the UN Charter where the use of force is permitted are in cases authorized by the UN Security Council and in cases of self-defense. The first is outlined in Articles 24 and 25 of the Charter, as well as in Article 39 of Chapter VII, which grants the Council the authority to maintain international peace and security. The second case, the focus of this article, is the only one that does not depend on Security Council authorization and is expressed in Article 51 of the UN Charter:
“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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Council under the present Charter to take at any time such action as it deems necessary to maintain or restore international peace and security” (UN, 1945, pp.35-36).
This article is largely based on customary law, exemplified by the term “inherent right”, indicating that the right of self-defense is a natural right and therefore predates the creation of the UN, with the most emblematic case being that of the Caroline ship in 1837. In this incident, Canadian insurgents (against the British Crown) were transporting fighters, ammunition, and weapons. The vessel was anchored in American territory and was attacked by British troops, who set it on fire and sent it downriver. Several people disappeared, and the bodies of two American and two Canadian citizens were found. American authorities protested over the loss of lives, and property, and the violation of their territory. The British Crown claimed that the act was an exercise of self-defense against an act of piracy. In response, American authorities argued that the issue was not piracy but an act of insurgency against the British. The British Crown claimed that the attack was carried out in self-defense by individuals in the service of the Crown. The American government, on the other hand, while agreeing with the need for the use of force in specific cases of self-defense, considered the attack on the Caroline ship to be disproportionate to the original act.
Self-defense persists in the current context of international relations as a mechanism of private justice between states, but only if certain conditions are met. The concept is present in any modern criminal legal system and is well-known in domestic laws and to the general public. For this reason, it can be said to be a general principle of International Law, present in the vast majority of the internal legal systems of states (MAZZUOLI, 2010, p. 1089).
However, it is noted that self-defense, as regulated by Article 51 of the UN Charter, is a temporary right of member states, as the measures taken by states in exercising this right must be immediately reported to the Security Council. It is important to emphasize that such measures cannot override the authority and responsibility attributed to the Council, which must take action it deems necessary to maintain or restore international peace and security. In other words, self-defense is a temporary right of member states because it can only be exercised until the Security Council takes the aforementioned measures (PEREIRA, QUADROS, 2015, p. 484).
Nevertheless, in practice, states invoking self-defense often attempt to manipulate arguments to avoid controversies and present them in ways that can be accepted internationally. Since the Nicaragua case, states have constantly invoked Article 51 to justify the use of force (GREY, 2008, p.118). In this particular case, the United States was condemned by the ICJ for its direct support of military and paramilitary rebel groups against the Sandinista government, which violated international law by organizing and encouraging irregular armed forces in another territory, influencing the domestic affairs of another country, and violating Article 2(4) on the prohibition of the use of force.
Furthermore, the United States did not obtain authorization from the UN Security Council, which was unaware of the incident. This weakened the U.S.´s ability to appeal to the right of self-defense and operated as an important example for future situations. Thus, it is clear that in the case of Nicaragua v. United States, there was an attempt by the Americans to flexibly use the self-defense argument to justify the use of force, a fact that was condemned not only by the ICJ but also by much of the international community.
9/11 and the Use of Force as Self-Defense
The 9/11 event has always been presented in the literature as a moment of profound inflection, as it supposedly revealed the existence of a new threat in the international system. However, what was not known was the magnitude of the terrorist actions. According to Gilbert Guillaume (2002), there are three requirements for considering a criminal activity as terrorism: 1) the practice of violent acts aimed at causing the death of people or generating serious bodily harm; 2) the conduct being carried out by an individual or a group of individuals; and 3) the aim of causing terror in specific people, groups, or the general public. In terms of Public International Law, the legal treatment of the reprobation and repression of terrorism is still very embryonic, despite the various existing international conventions on the subject.
Due to legal and contextual differences, the War on Terror can be divided into two phases: the Afghanistan War and the Iraq War. The Afghanistan War in 2001 was authorized by the UN Security Council and was considered legitimate by the international system, given that the U.S. was attacked on its territory, warranting military measures to capture the leader of the Taliban group Al-Qaeda. The Iraq War in 2003, on the other hand, was heavily criticized by states and the UN, as we will see below.
At the time of the terrorist attack, the United States was guided by a set of ideas known as the Bush Doctrine, published in 2002, based on three pillars. The first concerns the maintenance of U.S. power and leadership, not only through military actions against terrorist organizations but also through the evocation of values that characterize American society before the world, using them as legitimizing elements for international interventions, such as democracy and freedom.
The second pillar focuses on rogue states (the “Axis of Evil”) and terrorist organizations. Some observations are pertinent here: rogue states are accused of maintaining weapons of mass destruction programs and/or sponsoring terrorist organizations. In this sense, the U.S. feared that these states might act against its territory and/or provide such weapons to terrorist organizations. Terrorist organizations, on the other hand, do not operate in a specific territory, functioning as networks. Thus, the second pillar of the doctrine placed two conceptually different threats in the same category. While it is possible to instrumentalize a political-institutional apparatus to deal with conceivable threats from rogue states, the same cannot be said for terrorist organizations, resulting in a frequent discourse of intimidation and possible unilateral action.
Finally, the third pillar concerns pre-emptive action. A pre-emptive action is foreseen in Public International Law and is developed against an adversary that is on the verge of attacking. In other words, the adversary has already demonstrated an intention to attack, making it necessary to pre-empt this attack, following the clear logic of self-defense. Preventive action, on the other hand, is taken before the threat is fully established, meaning that the state would prevent its occurrence. In international law, such action is condemned because there is no justification for its implementation. An action of this kind could set precedents and lead to unilateral state actions with hidden objectives, under the guise of self-defense.
The 9/11 terrorist attack generated an almost unanimous international reaction among states. Security Council Resolution 1368 corroborated the right of self-defense in response to terrorist attacks for the first time, as observed in the following excerpt: “... determined to combat by all means threats to international peace and security caused by terrorist acts” (UN, 2001, p.1).
Resolution 1373 reiterated the previous resolution, reaffirming the right to collective or individual self-defense against terrorist threats. NATO invoked Article 5 of its treaty for the first time in history and declared that the attack on the United States was an attack on all members and that the organization was prepared to act in collective self-defense. Ironically, the only country that directly challenged the legality of the military action of Operation Enduring Freedom was Iraq (GRAY, 2008, p. 193).
Despite the immediate consequences of 9/11, there was still a lack of clarity regarding the exact scope of the right to use force as a mechanism of self-defense against terrorism and whether such a mechanism could be unilaterally invoked, without the approval of the UN Security Council, which would constitute preventive rather than pre-emptive action (GRAY, 2008, p. 194). This issue came to the forefront in the Iraq War, whose legal controversy will be addressed next.
War on Terrorism as an International Norm?
President Bush evoked the concept of the “Axis of Evil” which included North Korea, Iran, and Iraq – pariah states accused by the United States of maintaining programs for weapons of mass destruction. Operation Iraqi Freedom was launched under the argument that waiting for an attack or any movement toward one was not feasible. In this sense, while the United States had preemptive action as the third pillar of the Bush Doctrine, the resolution authorized at the time by the U.S. Congress allowed the use of force to prevent any future acts of international terrorism.
The authorization, therefore, reflected the U.S. position that it could use armed force preventively, at least in the case of combating international terrorism. In the internal debates surrounding the proposed resolution, it was considered that the preventive objective of the legislation might limit the use of force but would, on the other hand, adhere to the standards of international law, which prohibits mere retaliation or armed reprisal (GRAY, 2008, p. 197).
The fight against terrorism and the resulting flexibility in the concept of self-defense confused the parameters of necessity and proportionality, the use of force in self-defense, and the immediate response that had been established in customary law since the Caroline case. At this point, it is noteworthy the controversial position of the United States. In the Caroline case, the U.S. took a stance against the British government´s action, claiming a violation of its sovereignty and a lack of legal basis for the attack.
The 2003 invasion of Iraq, on the other hand, was conducted unilaterally, without the authorization of the UN Security Council, violating another country´s territory and lacking a basis in International Law, constituting a preventive action. The U.S. argument was built around allegations that Iraq possessed chemical weapons, that President Saddam Hussein had ties to Islamic terrorist groups, and, finally, that he was violating human rights. The legal foundation of the U.S. action was the regular exercise of the right of individual and collective self-defense. Yet, this argument was not accepted by the international community, including the United Kingdom, a historical ally of the U.S. (GRAY, 2008, p. 219).
For that reason, it is clear that the discourse of preemption as self-defense can serve as a façade for aggression, which legitimizes preventive wars. Furthermore, the discourse of sovereignty violation is mobilized when it is in the strategic or geopolitical interest of the United States, corroborating its problematic stance in the cases presented, including the position taken in the Nicaragua case.
Since then, the preventive use of armed force has been an integral part of the U.S. National Security Strategy, which justifies this new orientation by citing the “unconventional” means employed by terrorists and rogue states, who resort to indiscriminate terror and the potential of weapons of mass destruction. In 2002, Congress reinforced this: “While we were recognized that our best defense is a good offense, we are also strengthening America´s homeland security to protect against and deter attack”.
The idea of prevention is nebulous because it is impossible to establish criteria for the existence of such a threat, nor can it be guaranteed that something is real before it even exists. By referring to future threats, without knowing the place or time when they will materialize, as a basis for self-defense, the Bush Doctrine, in practice, advocates for the acceptance of a new form of self-defense: preventive self-defense.
This apparent attempt to extend the War on Terror to disguise purely preventive actions, in the absence of an imminent threat, is a source of controversy. President Bush seemed to be taking advantage of the rhetoric of the war on terrorism and the legitimacy it was given as a way to stretch the boundaries of the concept of self-defense (GRAY, 2008, p. 211), which was argued by the international community during Operation Iraqi Freedom.
Thus, although states did not challenge the legality of Operation Enduring Freedom, there was little evidence that states would abandon the requirement that the use of force for self-defense be based on the imminence of an attack or an attack that had already occurred. The opposition of the majority of the international community to Operation Iraqi Freedom made it clear that states did not accept preventive self-defense as a legal basis for specific actions. An example of this rejection of the Bush Doctrine can be seen in the High-Level Panel reports and the UN Secretary-General’s In Larger Freedom report, which underline the illegality of preventive attacks in self-defense under international law (GRAY, 2008, p. 212).
It is important to emphasize that the fight against terrorism must be guided by respect for the principles contained in the United Nations Charter, as well as the rules of International Law. Thus, the fight against terrorism cannot be conducted at the expense of due process, respect for human rights, and civil liberties, and should not give way to arbitrary or discriminatory acts (MAZUOLLI, 2010, p. 1098).
Customary international law results from a general and consistent practice by states, followed by them as a consequence of understanding it as a legal obligation (MAZUOLLI, 2010, p. 117). The Bush Doctrine, particularly the third pillar of preemptive action disguised as preventive action, was not accepted by the international community and, therefore, does not constitute a customary international practice. Hence, it is not possible to claim that after 9/11, the War on Terror is emerging as a new international norm, nor that the foundations of the Bush Doctrine are legal.
Conclusion
Based on the argument developed throughout this article, it was possible to identify the differences concerning the legality of the two operations conducted by the United States: Operation Enduring Freedom in Afghanistan in 2001 and Operation Iraqi Freedom in 2003. Since the terrorist attack in 2001 killed thousands of civilians, the legality of the action and its proportionality were accepted by the international community, which allowed the United States to retaliate against the attack on its territory by invoking the concept of self-defense.
Operation Iraqi Freedom, however, can be interpreted as an American attempt to stretch the boundaries of the concept of self-defense, mobilizing the War on Terror to justify invasions and preventive actions in other states. This demonstrated that, once again, the United States sought to make the concept of self-defense flexible to serve its geopolitical interests, as seen in the Nicaragua v. United States case. This kind of action was not accepted by the international community, as it violated Article 2 of the UN and was not consistent with Article 51.
It is concluded, then, that it is not possible to argue that the War on Terror constitutes a new norm in International Law, as the principles guiding it, contained in the Bush Doctrine, are unclear regarding the situations in which the use of force in self-defense against terrorist actions should be accepted. Thus, preventive self-defense remains illegal under International Law. Moreover, UN Security Council Resolutions 1368 and 1373 demonstrate the exceptional nature of Operation Enduring Freedom and not its legal obligation. Therefore, Operation Iraqi Freedom remains illegal and does not represent a shift in International Law or a lessening of the concept of self-defense.
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