The war, the U.N. and international law

INDIA AND China have asserted that "any military action to deal with the menace of terrorism should have the sanction of the United Nations." This view was expressed in a telephone conversation between the Foreign Minister, Mr. Jaswant Singh and his Chinese counterpart Mr. Tang Jiaxuan and has been reported. This implies that the present military action by the United States against Afghanistan does not have the sanction of the United Nations and that it is in contravention of international law. A number of questions are relevant in this connection and if there are claims about new developments in international law they do not appear to be positive.

The first question that arises is whether the attacks on the World Trade Center towers and the Pentagon constitute an act of war. From September 11 onwards the U.S. has considered itself to be the victim of an act of war. This position has received support from the NATO which activated Article 5 of its Charter committing "member states to assist any member state subjected to an armed attack." According to Jordan Paust, Law Foundation Professor of the University of Houston, "Under international law we (the U.S.) could not be at `war' with an entity that has a status less than that of an insurgent (which status pertains during an insurgency or armed conflict not of an international character within the meaning of Common Article 3 of the 1949 Geneva Conventions) unless that entity is directly involved with others engaged in a `war.' We could not be at `war' with Osama bin Laden, since he and entourage are in no way representatives or leaders of an `insurgency' within the meaning of international law. He is also not a recognised leader of a `nation,' `belligerent' or `state.'"

Most of the laws of war embodied in the 1949 Geneva Conventions and Protocols thereto are concerned with inter-state armed conflicts. Among the four Conventions, only Common Article 3 expressly applies to armed conflicts which are not inter-state. However that Article essentially contemplates internal armed conflict, the conflict occurring within the territory of one state. In the September 11 case there is neither inter-state conflict nor internal armed conflict, but a group or groups of non-state actors who are likely based abroad, possibly in several countries, launching an attack against a state. It does not fit the model that international law provides.

Unexplored legal territory

Issues of state responsibility and individual criminal responsibility under international law have also arisen with regard to the horrific events of September 11. Indeed it is the link (or lack thereof) between these two types of responsibility that makes this case particularly complex. If the perpetrators were state agents sent by their governments to carry out these attacks, then calling this an `act of war' and holding that government responsible would be fully justifiable. However as these acts were committed by non-state actors we are on unexplored legal territory.

The stated position of the U.S. that it makes `no distinction between the terrorists who committed these acts and those who harbour them' also raises questions. While the phrase `those who harbour them' is amenable to a variety of interpretations, it was apparently intended to refer to states that harbour terrorists. There are different ways in which the responsibility of a state can arise with respect to the acts of non-state actors. According to the Draft Articles of State Responsibility of the International Court of Justice, "The conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact acting on the instructions of or under the direction or control of the state in carrying out the conduct." The threshold for holding states accountable for the failure to prevent violations by non-state actors has to be considerably lowered or even abandoned to hold Afghanistan accountable for the acts of September 11.

U.N. rejection

The U.N. Security Council is on record of having rejected claims to right of self-defence as justification of an armed attack against `states harbouring terrorists.' On October 1, 1985 Israeli planes bombed the headquarters of the Palestine Liberation Organisation at Hammam-Plage, near Tunis, Tunisia. In explaining its action to the Security Council, Israel argued that the bombing was justified since Tunisia knowingly harboured terrorists who had targeted Israel. The Security Council rejected the claim of Israel and voted in Resolution 573 to condemn the Israeli action by a margin of 14-0 with the United States abstaining.

Despite repeated references to Article 51 of the U.N. Charter, the United States cannot claim justification for attack on Afghanistan under the provisions of that Article. The Article states, "Nothing in the present Charter shall impair the inherent right of an 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." The right ceases at the point when the Security Council begins its action. In this case the Security Council had immediately begun to take action.

The Security Council has passed two unanimous resolutions on terrorist attacks on the U.S. It adopted on September 12 Resolution 1368 which unequivocally condemned the terrorist attacks on the U.S. and called on the international community to redouble its efforts to prevent and suppress terrorist acts. The resolution also referred to `inherent right of individual or collective self-defence.' On September 28 it passed a more specific and far-reaching Resolution 1373. In this resolution it acted under Chapter VII of the U.N. Charter which gave the Security Council authority to order states to carry out the measures decided upon by the Security Council. It reiterated that terrorist acts constitute a threat to international peace and security. It reaffirmed the inherent right of individual or collective self-defence as recognised by the Charter. This however cannot be construed as a Security Council approval of the use of armed force as a response to the events of September 11.

Resolution 1373 concludes with an expression of the Security Council's determination to `take all necessary steps' to ensure its full implementation. The quoted words are reminiscent of the Council's authorisation to member states in Resolution 678 to "use all necessary means" to restore international peace and security after Iraq invaded Kuwait in 1990. But significantly Resolution 1373 does not `authorise states' to `take all necessary steps' to implement it. Instead it determines that the Council itself stands ready to take steps, which presumably could involve an authorisation of some form of armed force to ensure that the measures taken in the resolution are adequately implemented. Such an authorisation has not been made.

Therefore it is evident that the military action by the United States and Britain against Afghanistan is not within the ambit of the U.N. resolutions or in accordance with the Charter. The Secretary General of the U.N. stated on October 8 that "the states carrying out their military action in Afghanistan have set it in the context of the determination expressed by the Security Council immediately after the September 11 attacks to use all means to combat threats to international peace and security caused by terror acts." He seemed to be following a fashion in the U.N. since 1991 for post-facto legitimation of U.S.-led military actions. What is to be noted specially is that the Security Council, which met on October 8 and heard a briefing on the military action that was launched on the previous day, did not take any action. There was no endorsement like the one given by the Secretary General. The Council President only said that the U.S. and British delegates had told the Council that the action had been taken in self-defence. That claim was belied not only by the magnitude and scale of the attacks in the following days but by a statement in the letter from the U.S. Ambassador to the President of Security Council regarding the action.

In his letter Ambassador Negroponte described the September 11 terrorist acts as `armed attacks carried out against the U.S.' He said "there is still much we do not know. Our enquiry is still in its early stages." Then he added ominously, "We may find that our self-defence requires further action with respect to other organisations and other states." This is anticipatory justification of possible illegal military actions against states like Iraq.

NINAN KOSHY

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