The Right of Self-Defense in the Global Fight against Terrorism

AuthorChristoph Muller
PositionDeputy Director General for Legal Affairs, German Foreign Office, Berlin
Pages351-366
XVI
The Right of Self-Defense in the Global Fight
against Terrorism
Christoph Muller
Thefight against the scourge of terrorism has become akey objective in inter-
national politics. It has become much more than apure law enforcement
task but apolitical fight in the widest sense that has to draw on all the resources of
political action, including, if necessary, military options. When the fight against
terrorism turns into military action abroad, international politics meets interna-
tional law. The use of military force by aState beyond its borders is governed by in-
ternational law. Still, given the political depth of the fight against terrorism that
sometimes seems to acquire existential meaningis it at all possible to discuss the
right of self-defense in the global fight against terrorism in purely legal terms?
When each and every legal argument may assume major political significance, are
we still talking about international law or do we discuss politics? Apparently both.
This article seeks to shed some light not only on the law but also on the dynamic in-
terrelationship between State policies on the use of force and the evolution of the
law: the historical background of the UN Charter law, the law as it stands, and the
rift between world order as designed by the UN Charter and the real state of affairs.
In conclusion, it will be argued that the political and legal benefits flowing from a
*Deputy Director General for Legal Affairs, German Foreign Office, Berlin. By reflecting
personal views of the author, the article goes beyond stating the German Government's position.
The Right ofSelf
-Defense in the Global Fight against Terrorism
strengthening of the UN Charter's framework on the use of force clearly outweigh
the risks incurred by letting that framework fall into desuetude.
Historical Background
Ninety years ago, in June 1914, aterrorist organization code-named "Black Hand"
unsuccessfully tried to stop an assassination plot that it had earlier supported by
supplying arms, training and money. On the 28th of June, one of the terrorists nur-
tured by "Black Hand" carried out the plot. He assassinated the crown prince of the
Austro-Hungarian Empire and his wife. 1
The empire then struck back. By turning against the State of Serbia, the pre-
sumed home base of "Black Hand," Austria-Hungary set into motion aworld war
and its own demise. It would seem to be an interesting, even though academic
question how to qualify the Austro-Hungarian action in the context ofthe contem-
porary debate. Of course, given the mood of the day and the European system of
trip-wire alliances, World War Iwas probably inevitable anyway. Still, the story of
June 1914 seems auseful reminder of the deeper layers of terrorism's destructive
power, adestructive potential that works indirectly, through the poisoning of in-
ternational relations, and may even trigger wars that were not intended to happen
the way they did.
The major lesson of the First World War was related to the broader question of
legality and legitimacy ofthe use offorce in international relations. After the horror
experienced by the killing of some 10 million people, anew question was being
asked: could it be that something was fundamentally wrong with aworld in
which any nation with the power to use force felt free to do so? President
Woodrow Wilson of the United States tried to initiate arevolutionary alternative:
an international organization ofglobal reach, tying all States together in asystem of
collective security. He was ahead of his time; the US Senate did not follow his lead.
The truncated League of Nations, as it did emerge, was too weak to deal effectively
with the blows from Japan, Germany, and Italy. 2World War II followed, more
than 50 million people were killed, this time the majority ofvictims being civilians.
During the war, it was again an American president who took the lead in starting a
new search for an organizational framework to create world order. 3These efforts
resulted in the Charter of the United Nations, which sets forth the basic principles
and rules intended to govern international relations.
For nearly sixty years, the UN Charter has been the basic legal document for
public international law. Accordingly, this article will turn to the Charter to try
and find some answers to the question of how to define the scope of self-defense in
the fight against terrorism. There is no alternative starting point for finding the
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