America's new war on terror: the case for self-defense under international law.

• Author: Beard, Jack M.

1. INTRODUCTION

   When representatives of fifty countries assembled in San Francisco in 1945 to draw up the United Nations Charter, modern threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known. The devastation caused by the September 11 terrorist attacks on the United States would not, however, have been an unfamiliar spectacle to the survivors of World War II. The "inherent" right of self-defense in responding to such violent attacks, a right enshrined in Article 51 of the U.N. Charter and understood by the delegates of all states as a long-established principle of customary international law, was a familiar concept in 1945. (1)

   It was in accordance with these long-established principles of customary international law and Article 51 that the United States Government reported in a letter to the U.N. Security Council on October 7, 2001, that it had "initiated actions in the exercise of its inherent fight of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 2001." (2) The letter went on to note that since the September 11 attacks, the U.S. Government had obtained "clear and compelling information that the al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in these attacks" and that United States armed forces had initiated actions "designed to prevent and deter further attacks on the United States" including "measures against al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." (3)

   The letter of October 7, 2001 was not the first time the United States has notified the U.N. Security Council of actions involving the use of force against other states and has invoked its inherent right of self-defense in response to terrorist attacks. As discussed below, previous uses of force by the United States against terrorist-supporting states have received varying responses from the international community, given rise to some criticism, and raised a number of international legal questions involving the right of guaranteed self-defense under Article 51 of the U.N. Charter. In contrast, the unprecedented response of the international community to the September 11 terrorist attacks on the United States and important factual and legal distinctions between the circumstances surrounding the September 11 attacks and previous attacks giving rise to the use of force by the United States, demonstrate the propriety of the exercise of self-defense in this case under the U.N. Charter and customary international law.

2. PREVIOUS USES OF FORCE AGAINST TERRORIST-SUPPORTING STATES BY THE UNITED STATES

   On April 14, 1986, in response to a bombing of a West German discotheque in which an American serviceman and a Turkish woman were killed and more than 230 other persons injured, the United States launched air strikes against five terrorist-related targets in Libya. Based on intercepted and decoded exchanges between Tripoli and the Libyan embassy in East Berlin, the United States claimed that this attack was one of a continuing series of Libyan state-ordered terrorist attacks. (4) The U.S. Ambassador to the United Nations, Vernon Walters, informed the U.N. Security Council that the United States had acted in self-defense, consistent with Article 51, and that the air strikes were necessary to end Libya's "continued policy of terrorist threats and the use of force, in violation of ... Article 2(4) of the Charter." (5)

   On June 26, 1993, the United States launched a cruise missile attack on Iraq in response to a foiled assassination attempt against former President Bush. Twenty-three Tomahawk missiles were launched at the Iraqi Intelligence Service in Baghdad, causing a number of civilian deaths and destroying much of the complex. On June 27, 1993, U.S. Ambassador to the United Nations Madeleine Albright reported to the U.N. Security Council in this regard: "We responded directly, as we were entitled to do under Article 51 of the United Nations Charter, which provides for the exercise of self-defence in such cases." (6)

   In response to the suicide bombings of the U.S. embassies in Tanzania and Kenya, which killed more than two hundred people, including twelve U.S. citizens, and were allegedly perpetrated by the Al Qaeda terrorist network, on August 20, 1998, the United States launched seventy-nine Tomahawk missiles at terrorist training camps in Afghanistan and against a Sudanese pharmaceutical plant that the United States identified as a "chemical weapons facility" associated with Osama bin Laden. (7) The Government of the United States informed the U.N. Security Council that it had repeatedly warned the Government of Sudan and the Taliban regime to shut terrorist organizations down in their respective countries and to "cease their cooperation with the Bin Laden organization." (8) Because the Al Qaeda organization had continued to issue "blatant warnings that `strikes will continue from everywhere' against American targets" and because further attacks appeared to be in preparation, the United States stated that it "had no choice but to use armed force to prevent these attacks from continuing. In doing so, the United States ha[d] acted pursuant to the right of self-defence confirmed by Article 51...." (9)

3. INTERNATIONAL REACTION TO PREVIOUS USES OF FORCE BY THE UNITED STATES AGAINST TERRORIST-SUPPORTING STATES

   Previous military actions by the United States against terrorist-supporting states elicited varying responses from the international community and the United Nations. In the case of the 1986 raid on Libya, the United States action was not widely supported. A resolution condemning the U.S. action was introduced in the U.N. Security Council but was vetoed by the United States, France, and the United Kingdom. (10) The U.N. General Assembly adopted a resolution condemning the United States for the attack by a vote of seventy-nine to twenty-eight, with thirty-three abstentions. (11)

   In contrast, most states either supported or did not object to the 1993 cruise missile attack on Baghdad in response to the foiled Iraqi assassination attempt on former President Bush, although most of the Arab world expressed regret regarding the attack. (12) In response to the American presentation before the U.N. Security Council, the representatives of other member states either expressed support for the U.S. action or refrained from criticizing it; only China questioned the attack. (13) The General Assembly took no action.

   World reaction to the 1998 U.S. cruise missile strikes against terrorist targets in Afghanistan and Sudan in response to the U.S. embassy bombings in East Africa was mixed, with the most intense criticism focused on the Sudan attack. Western European nations supported the U.S. actions to varying degrees, while the Russian President Boris Yeltsin declared that he was "outraged" by the "indecent" behavior of the United States. (14) China issued an ambiguous statement condemning terrorism, and Japan said it "understood America's resolute attitude towards terrorism." (15) In spite of public opinion generally hostile to the United States in the Arab and Muslim world, "most Arab and Muslim Governments remained silent or equivocal about their views on the missile strikes." (16) The U.N. Security Council discussed the matter only briefly, ultimately deferring requests to send an international team of inspectors to the bombed facility in Khartoum to search for evidence of chemical weapons after the United States rebuffed Sudan's requests to produce such evidence. (17) Neither the Security Council nor General Assembly took any formal action in response to the U.S. action against Sudan and Afghanistan.

   Previous uses of force by the United States against terrorist-supporting states have thus enjoyed varying levels of support among states and have raised a number of international legal questions. In particular, as noted above, the U.S. raid against Libya in 1986 was not well received. While a significant part of the reaction of the United Nations to America's raid on Libya can be explained by Cold War politics, serious legal questions were also raised. A perceived lack of evidence tying the West Berlin discotheque bombing and other terrorist activities to Libya, questions regarding the propriety under Article 51 of an armed response against a state for the actions of terrorists, the suggestion of retaliatory motives, related arguments against the necessity and proportionality of U.S. actions, and the absence of an "armed attack" owing in part to an isolated murder of American servicemen abroad, all contributed to criticism by states and scholars of the raid on Libya as an illegitimate act of self-defense. (18) The unprecedented response of the U.N. Security Council and the international community in general to the September 11 terrorist attacks on the United States provides a stark contrast to the reaction to the raid on Libya. Assessing a number of factual and legal distinctions between the circumstances surrounding the September 11 attacks and previous terrorist attacks giving rise to the use of force by the United States helps to demonstrate the propriety of the most recent exercise of self-defense under Article 51 and customary international law.

4. RESPONSE OF THE U.N SECURITY COUNCIL

   At the outset, the willingness of states and the U.N. Security Council to invoke and affirm the right of self-defense in response to the September 11 terrorist attacks on the United States contrasts sharply with previous terrorist attacks. Before the September 11 terrorist attacks, the U.N. Security Council had never approved a resolution explicitly invoking and reaffirming the inherent right of individual and collective self-defense in response to a particular terrorist attack. It is significant, then, that while the U.N. Security Council stated that...