Consequences of 9/11: Emergence of New Norms in International
Law?
by László Valki
Summary
After 9/11, some politicians and international lawyers
claimed that new norms were emerging in international law:
1.
Lawful humanitarian
intervention, and/or the right to forceful change of non-democratic
regimes;
2.
Extended right of
states to self-defense;
3.
Preemptive use of
force.
The
forceful change of non-democratic regimes was not a new notion that
had only been emerging in connection with the Iraq war. It was just
part of the broader notion of humanitarian intervention which had
been indirectly invoked by NATO in the Kosovo crisis. The preemptive
use of force against another state as a legal concept was introduced
by the National Security Strategy of the United States, and invoked
by the Bush administration in the Iraq war.
Neither humanitarian intervention, and the right to
forceful change of non-democratic regimes, nor the preemptive use
of force are in compliance with the present international legal
order. As far as the right to self-defense is concerned, it cannot
be applied under the present circumstances, and––as a consequence
of 9/11––it has probably been extended by the international community.
Basic Elements
of Contemporary International Legal Order
The international legal order today is virtually identical
to the one codified at the end of the Second World War. Its basic
norms are included in the UN Charter as follows:
1.
The threat or use
of force against the territorial integrity and political independence
of any state is prohibited (Art. 2(4)).
2.
The Charter allows for only two exemptions:
3.
The member states
of the UN conferred the primary responsibility on the Security Council
for the maintenance of international peace and stability (Art. 24
(1)).
4.
Only the UNSC may
decide on the threat or use of force. The General Assembly may not
(Art. 11 (1)). The same applies to the „regional arrangements” described
by UN Chapter VIII such as the OSCE, except if the UNSC authorizes
them to do so (Art. 53).
5.
No decision on the
threat or use of force may be made without the consent of the five
permanent members (Art. 27 (3)).
6.
The Charter of the UN might be amended
only by the vote and ratification of two thirds of member states
including those of all five permanent members (Art. 108). In the
event of a conflict of the obligations of the member states under
the UN Charter and their obligation under any other international
instrument, the obligation under the Charter prevails (Art. 103).
Humanitarian
Intervention and the Right To Forceful Change of Non-democratic
Regimes
Those who decided
on the air attacks against Yugoslavia were, in fact, not addressing
the question of legality. The NATO decisions of 13 October 1998
and 24 March 1999 ordering the air strikes did not include any explanation
whatsoever, nor did politicians discuss the legal aspects in any
detail. Only Secretary General Solana had listed some legal arguments
in a letter addressed to the permanent representatives of the member
states on 9 October 1998. The purpose of the letter was to lay the
legal groundwork for the activation order (ACTORD) issued four days
later, authorizing Wesley Clark to launch the air strikes. It stated
that NATO was within its right to use its air force because
(a)
Belgrade had not
complied with the demands of the international community, despite
mandatory UNSC Resolutions 1160 and 1199;
(b)
The report of the
UN Secretary General pursuant to both resolutions warned of the
danger of humanitarian disaster in Kosovo;
(c)
The humanitarian
catastrophe continued because no concrete measures towards a peaceful
resolution of the crisis had been taken by Yugoslavia;
(d)
Russia and China
made it clear during the preceding negotiations that they would
veto any UNSC resolution containing the implementation of forcible
measures in the future;
(e)
The deterioration of the situation in Kosovo and
its magnitude constituted a serious threat to peace and security
in the region. [1]
Javier
Solana, in supplementing the above arguments, referred to the last
sentence of UNSC Resolution 1119, according to which, the UNSC decided
that “should the concrete measures demanded in this resolution ...
not be taken, to consider further action and additional measures
to maintain or restore peace and security in the region.” He also
added that “the Allies believe that in the particular circumstances
with respect to the present crisis in Kosovo ... there are legitimate
grounds for the Alliance to threaten and, if necessary, to use force.”
[2] The letter did not contain detailed explanations
and legal arguments other than the above, nor was a document containing
such ever prepared.
Solana was not right, since, as it was mentioned, the
current international legal order prohibits any use of force unless
authorized by the UN Security Council.
German
international lawyer Armin Steinkamm and a few others said that
the UNSC was “paralyzed” in the case of Kosovo, and in such cases
others must take action.
[3] As if this were comparable to, say, a situation
where the severely impaired health of a head of state or prime minister
paralyzes the decision-making process in a country, in which event
a politician appointed to act as deputy replaces the state leader
and maintains the normal operation of the central organs. However,
the UNSC is not a government, it does not have executive organs
and, therefore, no superior to replace. The UNSC was “paralyzed”,
it simply did not act, and nothing can be done about it. The world
continues to function. How it does, is another matter. Apparently,
mankind faces severely traumatic events even many decades after
the defeat of fascism and a decade after the disintegration of the
Soviet Union. Clearly, democratic states cannot remain idle in the
face of mass murders and ethnic cleansing. But this wish to take
action on the basis of political and humanitarian considerations
must not assume a legal guise that forthwith reinterprets the rules
of written international law as well.
A
number of experts believe, however, that international practice,
or international customary law has already amended this written
law, specifically, through the increasing resort to the principle
of humanitarian intervention. [4] this
principle was in general a valid reason for intervention in the
19th century. No one found fault, not from a legal point of view
anyway, with the use of force by a state or a group of states in
another country for the protection of some ethnic or religious community.
European powers showed a special preference for certain regions
of the Ottoman Empire. According to the Turks (and historians),
in these cases the great powers were led not merely by noble intentions,
they also had other interests.
[5] All this is mostly indifferent from the point of
view of the present dilemma, since in the 19th century
there were no international legal norms prohibiting the launching
of war and, therefore, it did not really matter how an armed intervention
was justified. In the 20th century, on the other hand,
the 1928 Kellogg-Briand Pact, and particularly the UN Charter later,
introduced the general prohibition of threat or use of force, but
did not mention humanitarian intervention as an exception. Interestingly
enough even those states who used force for similar aims did not
refer to their military operations as humanitarian intervention.
[6] Many realized only later, after the Kosovo crisis,
that there had been other humanitarian interventions carried out
before. Somalia, Haiti, Rwanda and Albania provided examples of
humanitarian intervention, though they were not called so at the
time.
The
foregoing has led a number of experts to conclude that a new practice
and with it a new customary law is emerging, which NATO intervention
in Kosovo only strengthened.
[7] According to Professor Daniel Thürer of Zurich,
at the time the Charter was framed in 1945, priority was given to
the protection of state sovereignty and international stability
over the protection of human rights. However, he wrote, this standpoint
can no longer be maintained. A different interpretation of international
legal norms or, as Thürer puts it, a “dynamic interpretation” of
law has become necessary. [8]
However
dynamic the interpretation of legal norms may be, the principle
of humanitarian intervention cannot become part of a new customary
law for a number of reasons.
[9] First, because general prohibition of the use of
force is considered a peremptory international legal norm
in both written law (the Charter) and customary law. It may be changed
only by the whole of the international community, represented by
the UN, not by NATO. That is to say, as long as the UN does not
change the more than half-century old international legal order—and,
as it was mentioned, there is no chance whatever that it will—others
may not change it either. Second, an intervention, whose executors
make no reference to the principle of humanitarian intervention,
may not establish a new customary law. Some of the above instances
were designated as such, others were not. Regarding Kosovo, every
NATO politician spoke about human rights being at stake, but none
of them mentioned humanitarian intervention as the legal basis for
the intervention. (Solana’s above cited letter was never published.)
Third, the so-called opinio juris, that is, the firm belief
of states that they want to establish a new customary legal norm,
is missing. Hanspeter Neuhold rightly says that the states concerned
did not recognize the emergence of a new practice and, consequently,
of a general customary legal norm.
[10] As long as the states executing the intervention
say that their practice establishes customary law while others oppose
this practice, a new customary law cannot come into being. At that
time there were many protests against the interventions by India
and Vietnam, less against the interventions by Tanzania and France,
but one cannot establish a general acceptance even in the latter
cases. Thus there is no place for a “dynamic interpretation” of
the recent norms of international law.
Foreign forces entered Somalia, Haiti, Rwanda and Albania
on explicit authorization by the UNSC, and intervention in each
case was lawful under international law. But by the time of the
Kosovo crisis the American-Russian “honeymoon” was over, and, as
mentioned, Moscow and Beijing no longer gave their blessing to draft
resolutions that would have authorized the use of force. Consequently,
NATO acted without authorization. According to the UN Charter, the
implementation of military measures against Yugoslavia would have
also required UNSC authorization. The argument that the purpose
of NATO air strikes was to enforce the provisions of UNSC Resolutions
1160 and 1199 was also unacceptable. True, Yugoslavia violated the
law when it did not comply with these resolutions, but even this
fact did not constitute a legal basis for armed intervention by
NATO. Solana’s argument that in view of the possible veto the Atlantic
Alliance had no choice but to launch the air strikes, may be justifiable
militarily and politically, but not legally. There is no “third”
way once the draft resolution authorizing the use of force has been
rejected by one or more permanent members of the Security Council.
Former
President of The Hague Tribunal Antonio Cassese wrote that more
than mere exception was involved. According to him, international
law today is characterized by the protection of three values: the
maintenance of peace, respect for human rights and for the right
of self-determination. If these come into conflict, the preservation
of peace has priority because it represents the overriding human
value. At this point, Cassese took a sudden turn in his paper, saying
that he considered it conceivable after all that a new and general
legal norm may gradually crystallize, which would allow some sort
of humanitarian intervention. [11]
Jochen
Frowein of Germany also referred to the concept of humanitarian
intervention. In his view, in the 20th century, international
law has reached that stage of development where the protection of
human life and dignity constitutes its most fundamental element.
Therefore, genocide justifies armed intervention. His standpoint
is far from being widely accepted by international jurisprudence.
He continues by saying that rarely did it happen that states rushed
to the assistance of a threatened group of people without authorization
by the UNSC. He cites only one example, Operation Provide Comfort,
when in April 1991 the armed forces of a few Western states were
deployed in the northern part of Iraq in order to protect the Kurds.
Actually, what both authors refer to is that customary law can modify
written international law. However, they both ignore the fact that
the norms on the use of force constitute a part of the UN Charter
which supersedes any other international legal norm. As it was quoted
above, according to Article 103, “[I]n the event of a conflict between
obligations of the members of the UN under the Charter and their
obligations under any international agreement, the obligations of
the present Charter should prevail.” A new rule of customary international
law cannot derogate the peremptory norms of general international
law either. A new custom, established by a group of states may not
become customary law if it is in conflicts with the basic norms
of, and the decision-making process described by, the Charter. Such
a legal norm cannot “crystallize”, particularly if it is rejected
by one or more permanent members of the UNSC.
The
same conclusion could be drawn with regard to forceful change
of non-democratic regimes. There is a general agreement among
politicians and scholars that the regime of Saddam Hussein used
to be one of the most brutal dictatorships in the world. This claim
appeared in the list of earlier claims too, but only as a “collateral
advantage” of the attack. Both the U.S. and the British governments
attempted to justify the necessity of going to war against Iraq
on three legal grounds: (1) the inherent right of self-defense,
(2) the authorization of the Security Council, and (3) the liberation
of the Iraqi people. Apart from this kind of reasoning, many others
have been articulated at various times. But in terms of international
law, only one claim is valid, i.e. the one that the respective governments
made public prior to the attack and not subsequently when
the first claim turned out to be groundless. The U.S. and Great
Britain proceeded along the following path:
First, they claimed that Iraq has weapons of mass destruction
(WMD) that threaten the security of the region. They also claimed
that Iraq co-operated with various terrorist organizations––above
all the al Qaeda––and may have supplied them with WMD. Hence, other
regions of the world––including the territory of the U.S. and Britain––could
also be threatened. Neither Washington nor London has ever claimed
that Iraq has directly threatened their countries’ territorial
integrity or political independence. Second, the two states have
claimed that Iraq has violated several Security Council resolutions,
above all Resolution 687, by possessing WMD. Third, Resolution 678
of November 1990 would permit an attack against Iraq. This resolution
empowered the states co-operating with the Kuwaiti government to
“use all necessary means” to liberate the country from Iraqi occupation.
Fourth, in November 2002, they persuaded the member states of the
SC to determine that Iraq has indeed violated prior UNSC resolutions.
Subsequently, on the basis of Resolution 1441, UNMOVIC and IAEA
weapons inspectors started to uncover Iraqi WMDs. This resolution,
however, made no mention of any possible connection between Iraq
and terrorist organizations. Fifth, they claimed that Iraq has been
seriously violating internationally recognized human rights norms.
The British Dossier of September 2002 for example stated:
Saddam uses patronage
and violence to motivate his supporters and to control or eliminate
opposition. … Saddam’s extensive security apparatus and Ba’ath
Party network provides oversight of the Iraqi society, with informants
in social, government and military organizations. Saddam practices
torture, execution and other forms of coercion against his enemies,
real or suspected. His targets are not only those who have offended
him, but also their families, friends or colleagues. … He has
crushed parties, and ethnic groups, such as the communists and
the Kurds… Members of the opposition abroad have been targets
of assassination attempts conducted by Iraqi security services
… Suspicion that [army] officers have ambitions other than the
service of the President leads to immediate execution. It is a
routine of Saddam to take preemptive action against those who
he believes might conspire against him.
There
is a number of similar statements by American and British politicians.
They said that Saddam is sustaining an ugly dictatorship in Iraq,
consequently, the real purpose of the invasion has been the liberation
of the Iraqi people. They always concluded that Saddam must go,
and his country will have to be democratized. However, when it became
clear that neither the UN observers, nor the American or the British
forces found any WMD in Iraq, the two states put the claim of human
rights violations of the Saddam regime in the first place. Now this
claim survived the others, and it remained by now, in fact, the
only one.
But
the recent international legal order––as it was shown––does not
recognize the legality of military intervention even in case of
genocide or ethnic cleansing. Thus it would not recognize an intervention
to defend human rights either. There is no provision in the UN Charter
or in any other international instrument which would permit such
an intervention. As it was demonstrated earlier, the international
legal order framed in 1945 contained rather simple and rigid rules.
According to them, force may only be used in self-defense or on
authorization by the UNSC. The purpose of and reasons for the use
of force, and the enforcement of protected human values were not
distinguished. The Charter did not authorize the use of armed force
by any state against another state for the protection of human rights
or the establishment of democratic institutions, or for any other
cause.
My
conclusion is that no new norm is emerging in the recent international
order which would recognize the lawfulness of either form of humanitarian
intervention.
The Scope of Self-defense
Since 11 September
many international lawyers have asked whether the United States
had the right to respond to the terrorist attacks against the World
Trade Center and the Pentagon by using force? The first answers
were in the negative.
“No,
this is not war”, wrote Alain Pellet of France on 3 October 2001.
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 possibly classify them as crimes against humanity… On another
level one can, if need be, see the attacks of 11 September a ‘threat
to international peace and security’ in the words of the subsequent
Security Council Resolution.. … More troubling, by the same Resolution
1368, the Council goes as far as to consider that the acts of terrorism
of 11 September justify the exercise of the ‘inherent right of individual
or collective self-defense’ in accordance with the Charter”. According
to Pellet this is an “extremely wide interpretation which hardly
conforms to the letter of the Charter, Article 51… You do not respond
to terrorism with terror.”
[12]
A
similar view was held by Antonio Cassese: “It is obvious that in
this case ‘war’ is a misnomer. War is an armed conflict between
two or more States. Here we are confronted with an extremely serious
terrorist attack by a non-State organization against a State.” [13] He also thinks that the terrorist
attacks can be classified as crime against humanity as described
by the Statute of the International Criminal Court but could only
be punished by national courts.
Pierre-Marie
Dupuy feared that the reference of the Security Council to the inherent
right of self-defense would give the United States “a carte blanche
to do, alone, what it likes and when it likes”. He would have preferred
an armed response authorized and controlled by the Security Council
as required by Article 51 of the UN Charter.
[14]
Indeed,
attacks by a private person or private armies cannot be qualified
as aggression. Their acts could only be judged under national and
not under international law. In such cases the state concerned may
defend its territory by national means, i.e., improving its airport
security systems, enhancing alertness at its border crossings, bringing
the perpetrators to justice, etc. The same seems to be provided
by the above mentioned Article 2(4) of the Charter of the United
Nations: “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”. This Article prohibits
the use of force by states only and does not refer to the
acts of private persons or armies.
However,
the draft of the Charter was prepared at the end of World War Two
when the founding fathers of the United Nations wanted to do something
about the classical inter-state aggression which had posed the most
serious threat to mankind in history just some years earlier. After
1945, it was quickly recognized that states might use force against
each other in many indirect ways. In the early Cold War years they
sponsored revolutions and upheavals, organized assassinations or
the hijacking of airplanes. Therefore many have sought to extend
the notion of aggression to some of these acts, because they involved
threats to international peace and security against the purposes
of the United Nations. That is why in 1952 the United Nations set
up a commission to prepare a draft resolution on the definition
of aggression.
Twenty
two years later, in 1974, Resolution 3314 of the General Assembly
was adopted. This resolution listed all those acts which can be
qualified as acts of aggression. These included, among others, “the
sending by or on behalf of a State of armed bands, groups, irregulars
or mercenaries, which carry out armed attacks against another State,
… or its substantial involvement therein”. [15] According to the resolution
only acts of “such gravity” can be taken into consideration as the
“bombardment” of the territory of another state or the “use of any
weapons” against it or attacking its ground, air, or naval forces.
[16] The question, therefore, that came up on 11 September
was whether the State of Afghanistan––or the Taliban––were “substantially
involved” in the preparation and perpetration of the terrorist attacks.
By today most analysts have agreed on a positive answer
on the question of Taliban involvement. However, on the day of the
terrorist attacks, or even at the time of the launching of the counterstrikes
in October, the public had very little information about the links
between the Taliban and the Osama bin Laden’s terrorist network.
Only a few intelligence services and the governments they worked
for could have had a clear picture about which one of them had the
upper hand in Afghanistan. The question at this point is, did the
Taliban government send terrorist groups into the territory
of another state in order to carry out terrorist attacks or could
its substantial involvement therein be established?
The governments of the great powers, primarily those of the permanent
members on the Security Council, did have appropriate information
on this issue. Through its permanent members, the Security Council
was able to understand the substance of the information gathered
on the relationship between the Taliban and al Qaeda and to translate
this into legally relevant resolutions as many as two years prior
to the 11 September terrorist attacks. These were very significant
resolutions, as they contained not only the presumptions of the
U.S. government, but also identical conclusions of the other members
of the Security Council (see Resolutions 1193 (1998), 1214 (1998),
1267 (1999), and 1333 (1999). They indicated that the members of
the Security Council were deeply convinced that the Taliban government
had been “seriously involved” in providing support to the activities
of Osama bin Laden and al Qaeda, and consequently the Taliban were
held responsible for what was happening and will happen on the territory
of Afghanistan.
The White House had little doubt about the identity of the
perpetrators of the 11 September terrorist attacks. President Bush
initiated an investigation of unprecedented scale and asked to convene
a meeting of the Security Council. On 12 September, the UNSC discussed
the situation and in its Resolution 1368 (2001)––without identifying
the responsible state––made some basic statements. It condemned
the “horrifying terrorist attacks” in New York and Washington, regarding
them as a “threat to international peace and security”, and recognized
“the inherent right of individual or collective self-defense 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 up a similar position. Upon the proposal of Secretary General
Robertson the Permanent Session of the North Atlantic Council stated
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 article 5 of the Washington Treaty”. In other words, an aggression
took place calling for possible collective self-defense of the member
states. [17]
An
explicit position was also taken by the European Council on 21 September.
In their conclusions, the Heads of State and the Governments of
the EU stated that “on the basis of Security Council Resolution
1368 a reposte by the U.S. is legitimate.” The Member States
declared that they were prepared to undertake actions that “must
be and may also be directed against States abetting, supporting
or harboring terrorists”. The member states affirmed that they were
prepared to co-operate with the United States in taking the appropriate
measures to the extent of their capacities. Then they adopted an
action plan on the counter-terrorism measures to be applied in the
EU. [18]
A
week later, on 28 September, the Security Council held another session
and adopted Resolution 1373 (2001). The document referred again
to the right of self-defense and the fact that terrorism threatens
international peace and security. It added a statement that terrorism
and its support is inconsistent with the purposes of the UN.
[19] Then the Security Council decided that all states
shall prevent and suppress the financing of terrorist acts; freeze
funds and other financial assets associated with terrorism; refrain
from supporting any organizations or persons that are involved in
terrorist activities and deny safe haven to those who finance, plan,
support, or commit terrorist acts.
Although the Security Council did
not specifically authorize any state to carry out military countermeasures,
the fact that three permanent members of the Security Council (France
and Great Britain and later Russia) opened their airspace for military
actions and the fourth (China) ensured the United States of its
support proved to be a significantly relevant legal step in the
war against terrorism.
On
2 October 2001 the North-Atlantic Council, returned to the question
of the identity of the real supporters and planners of the terrorist
attacks. That day the special envoy of the United States informed
the Council on the first findings of the investigation. On the basis
of the information gathered, Secretary General Robertson announced
at a press conference after the meeting that it has 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 have to be regarded as “attacks from abroad” and are related
to Article 5 and NATO will have to make its further decisions on
this basis. [20]
References to Article 5 meant that every member state
of the Alliance qualified the 11 September attacks in New York and
Washington as aggression in terms of international law, and held
the Taliban regime of Afghanistan indirectly responsible for it.
Two days later, on American requests, the Permanent Council agreed
on common measures aimed at suppressing terrorism (to open their
airspace to U.S. military aircrafts and to share information gathered
by national intelligence agencies, to provide increased protection
of American interests and those of the other allied states, etc.).
[21]
Yet,
the question may be asked: Can these particular military counter-measures
against Afghanistan be qualified as legitimate self-defense?
Some international
lawyers denied this. Pellet, Dupuy and Boldizsár Nagy of Hungary
came to a conclusion that:
– the behavior of the United States cannot be regarded
as self-defense because Washington launched the counter-offensive
not immediately after the attacks but almost a month later, and
moreover, against a state located several thousand kilometers
away;
– when executing counterstrikes, the United States might
have used force against terrorists or the state harboring them
only if the Security Council had authorized it to do so.
“The
inherent right of self-defense has limits”, wrote Boldizsár Nagy.
“It was the U.S. Secretary of State Webster who put down his immortal
words in 1841 that have remained valid even today.” In 1837 the
British, referring to the right to self-defense, entered the territory
of the United States, then took and set fire to the ship Caroline
which was supporting Canadians who were revolting against the British
Empire. The ship plunged over Niagara falls resulting in the death
of several innocent people. During the act, Webster noted, “the
party referring to this has to prove the necessity of self-defense,
instant, overwhelming, leaving no choice of means and no moment
for deliberation”. [22] 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”. [23] According to
this view, for the party concerned, there is no right of a delayed
response to an armed attack with the use of force. According to
Cassese the use of force by the victim state [should be] directed
“to repel the armed attack of the aggressor state… [and] must be
proportionate to this purpose of driving back aggression”. [24] In accordance with this thesis
the party concerned can do almost nothing apart from armed defense
and an immediate counterattack because it has to stop its response
after a certain stage. Where and when is this stage exactly reached?
There is no answer either from Nagy nor from Pellet.
The more than 150-year-old “immortal” words of Webster,
in any case, were applicable only for defense against traditional
aggressions and only under certain conditions. As far as terrorist
attacks are concerned the Webster thesis is absolutely inapplicable.
It is the terrorists only who could make the best use of it. In
case of a terrorist act, the attackers and their supporters remain
either unknown or become identified only after some of them get
killed during the attack, while others disappear and hide in remote
countries. On the basis of Nagy’s interpretation any 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 on board a yacht anchored in New
York City harbor. Otherwise President Bush would have had only one
opportunity: to turn to the UN in order to convene the Security
Council, which would either have given a go-ahead to coalition war
(as before the Gulf War) or not (as in the case of Kosovo).
The
opinion of the above authors regarding Security Council authorization
is also difficult to accept. According to Boldizsár Nagy “the essence
of the world order after 1945 has been the principle that the United
Nations, and within it the Security Council, have the ultimate monopoly
on the use of force. That is why both individual and collective
self-defense has to be implemented with the knowledge and approval
of the Security Council while in ideal cases it has to be replaced
by UN actions on the basis of collective security”. [25] However, the
assertion that armed actions for self-defense with some delay can
be launched only with the authorization from the Security Council
is false. Article 51 provides that as long as the Security
Council has put the issue on the agenda and taken appropriate measures,
self-defense can be exercised without restriction. The same
is provided by Article 5 of The North Atlantic Treaty. In accordance
with Article 5 the collective defensive measures of NATO “shall
be terminated when the Security Council has taken the measures necessary
to restore and maintain international peace and security”. Therefore,
until an opposite Security Council resolution, Washington has the
right to decide when to act, against whom and how, without waiting
for further UN authorization.
The
response of Boldizsár Nagy to this is that the two Security Council
resolutions adopted after 11 September decided the question on the
basis of Article 51. According to him various measures were ordered
by the Council (the planners, organizers, supporters of the terrorist
attacks should be brought to justice, etc.), consequently it
has already acted as described in Article 51, and did not provide
the United States with authorization for the use of force in self-defense.
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 self-defense. I shall leave here”,
he added, “in abeyance
the question of whether one can speak of ’instant’ custom, that
is of the instantenous formation of a customary rule widening the
scope of self-defense as layed down in Article 51 of the UN Charter
and in the corresponding rule customary law. It is too early to
take a stand on this difficult matter.” [26] Cassese could have been less
careful asserting that the notion of self-defence is now wider than
in 1841 or in 1945. All that has been argued by the author of this
paper indicates that the way and the magnitude of military counter-measures
by the U.S. and its allies was accepted by a major part of the international
community, including the rest of the permanent and non-permanent
members of the Security Council. Moreover, this did not happen on
only one occasion but during the unfolding developments with regard
to Afghanistan dating back to 1998.
My conclusion is that the initial 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 law as a consequence of 9/11.
Preemptive/Preventive Use of Force
In September 2002, Washington introduced in
its National Security Strategy a new legal notion and since
then it has officially adopted the position that it has the right
to act preemptively against states possessing WMD and harbouring
and supporting terrorists. According to the Strategy:
For centuries, international
law recognized that nations need not suffer an attack before they
can lawfully take action to defend themselves against forces that
present an imminent danger of attack. Legal scholars and international
jurists often conditioned the legitimacy of preemption on the
existence of imminent threat––most often a visible mobilization
of armies, navies, and air forces preparing an attack. We must
develop the concept of imminent threat to the capabilities and
objectives of to day’s adversaries. Rogue states and terrorists
do not seek to attack us using conventional means. … Instead,
they rely on act of terror and, potentially, the use of weapons
of mass destruction––weapons that can easily be concealed, delivered
covertly, and used without warning. … To forestall or prevent
such hostile acts by our adversaries, the United states will,
if necessary, act preemptively. ….[W]e will not hesitate to act
alone [i.e., without the authorization of the Security Council]
if necessary, to exercise the right to self-defense by acting
preemptively against such terrorists, to prevent them from doing
harm against our people and our country.
[27]
International
lawyers would not agree with this assertion. First, international
law by definition does not recognise “for centuries” the right to
preemptive strikes, since until the end of World War One, it did
not even limit the use of armed force. Thus the question of legality
could not even arise. Any state, on any pretext, had the right to
launch a war against any other state. Second, the total prohibition
of launching a war was provided for the first time by the 1928 Kellog-Briand
Pact. This made no mention whatsoever of the legitimacy of preemptive
strikes, but purely stated that the contracting parties “renounce
[the war] for the solution of international controversies and renounce
it as an instrument of national policy in their relations with each
other”. [28] Third, the 1945
UN Charter, as it was mentioned before, prohibits any kind of “threat
or use of force”, regardless its purpose. Fourth, while the Charter
recognises the “inherent right” of self-defence, it makes no reference
to the right of any state acting in self-defense to preempt an attack.
Finally, as it was also mentioned, in terms of the Charter, the
UNSC has the exclusive right to determine whether or not the situation
in a given state constitutes a threat to international peace and
security, as well as to authorise armed sanctions. Thus the United
states had no right to invoke the inherent right of self-defence
with regard to the attack against Iraq. Interestingly enough,
the U.S. referred to its right of self-defence in general terms
only during the days immediately preceding the war and did not mention
the concept of preemptive self-defence. Oddly enough, Great
Britain never invoked this argument. As far as other states are
concerned, they never referred to this concept either.
My
conclusion is that the notion of preemptive war has never been a
part of the international legal order, and the international community
does not recognize it.
However,
the air campaign against Yugoslavia and the invasion of Iraq could
not be compared in every respect. The campaign has had its justification
or casus belli. The international community perceived an
imminent threat in 1999 of ethnic cleansing or even genocide by
the military and police forces of Milosevic. It constituted also
a threat to the international peace and security. In the case of
Iraq no such a threat has been perceived by the international community,
and the casus belli has been missing.
