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November 6, 2001
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November
6, 2001
Legal Analysis
US Campaign
Against Afghanistan Not
Self-Defense Under International Law
By Brian J. Foley
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 fifth 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 in two resolutions (1368 and 1373)
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 the language of
Resolution 1368, in which the Security Council (not individual
nations) said it 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-defence 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
US 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 theU.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 US 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 five 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. CP
Brian J. Foley
is a professor at Widener University School of Law in Wilmington,
Delaware.
Foley can be reached at: Brian.J.Foley@law.widener.edu
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