Thursday, 27 September 2001
.....
"I say, bomb the hell out of them. If there's collateral damage, so be it. They certainly found our civilians to be expendable." -- Senator Zell Miller
"We will not do it in such a way that if the United States feels a need to act alone by itself, we will not be constrained by the fact that we're working with others as well." -- Secretary of State Powell
"I say to our enemies, 'We are coming. God may show you mercy. We will not.'" -- Senator John McCain
Congress has authorized President Bush to use force to respond to the terrorist attacks of 11 September. The bill of authorization was introduced and passed into law before all but a very few Americans were able to read it or consider whether it should have been passed at all.
The resolution is very broad, authorizing the President to "determine" the "nations, organizations, or persons" which "planned, authorized, committed, or aided" the terrorist attacks "or harbored such organizations or persons". The President alone may determine the targets of U.S. military force. He is authorized to use force against any entity that "harbored" the terrorists, although the resolution neglects to explain what "harbor" means. The President is authorized to use force "in order to prevent any future acts of international terrorism against the United States". And the resolution offers neither a definite meaning of, nor limit upon, "international terrorism" or "future acts".
But an authorization by the U.S. Congress to use force
internationally has a limited legal scope. To use
international force legally, Washington must further obtain a
United Nations Security Council resolution, which it should
expect only after satisfying the relevant conditions. One such
condition is to attempt a peaceful resolution to the dispute.
Before it can use force against Afghanistan, even if the
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered (UN Charter, Article 2(3)).
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice (UN Charter, Article 33; emphasis added).
Washington must, therefore, as a matter of law, attempt to resolve the dispute (with Afghanistan or other states) peacefully, without resorting to force. That obligation applies equally to the so-called "harboring countries", ones against which, whatever the nature of its claims against bin Laden or al Qaeda, Washington has no legitimate self-defense claims. The issue of harboring countries could be brought before the International Court of Justice, for example, if purely diplomatic efforts to resolve the dispute are unsuccessful. If Washington has sufficient evidence, it should seek a formal bill of indictment against any states that aided the terrorist attacks. The ICJ's Court docket is full of relevant, similar cases.
Washington's obligation under Articles 2(3) and 33 must be understood in light of the various kinds of entity involved in this dispute, which include not only states, the U.S. and Afghanistan being the two chief states involved so far, but also private organizations, groups, and individuals. The UN Charter creates an international security regime between and among its member states. The relation of a state, such as the U.S., and a terrorist organization, such as al Qaeda, is just the relation between a state and a non-governmental organization suspected of international crime. Washington owes obligations of one kind to Afghanistan, Pakistan, and other states; it owes obligations of a different kind to al Qaeda and to bin Laden himself. Some of these obligations overlap, others do not. This perfectly ordinary feature of international law is presently unclear because of Washington's incautious dismissal of the valid distinction between al Qaeda, states that may aid or harbor it, and states within which some of its members may reside.
That incautious position, no matter how often or strongly it's asserted, cannot erase Washington's obligations under law. Nor can it blur the distinction between obligations a state owes to other states, expressed by UN Charter and international law, and the obligations a state owes to persons or organizations suspected of committing crimes against it, which are expressed in various places, including the Universal Declaration of Human Rights. Not owing Article 2(3) and 33 obligations to bin Laden and al Qaeda does nothing to erase legal obligations the U.S. owes to Afghanistan. Washington is not obligated to resolve its dispute with bin Laden or al Qaeda according to Articles 2(3) and 33; they are not states. It owes bin Laden and al Qaeda precisely what it owes any criminal organization not presently residing within its territory, which ordinarily means it must seek to extradite bin Laden to stand trial for his crimes in the U.S.
But extradition is not necessarily obligatory in the absence
of an explicit treaty or agreement. The U.S. may not legally
use force to compel Afghanistan -- nor any other state, no
matter how incriminating its evidence may be -- to extradite
bin Laden. Suppose that Chile threatened to bomb Washington
and New York City unless and until the U.S. extradited Henry
Kissinger, and suppose, contrary to the facts, that there were
no treaty of extradition between Chile and the U.S. Chile's
demand, while clearly unlawful and absurd, is a better case of
"harboring" than the case of bin Laden in Afghanistan. To
refuse extradition is an abuse of Afghanistan's state power --
perhaps, however, an understandable abuse, given Washington's
1998 illegal cruise missile attack against Afghanistan,
euphemistically called
Assuming that peaceful means fail, Washington must seek UN authorization for the use of international force. Washington, no more or less than every other state, is legally constrained by Articles 2(4) and 51 of the UN Charter, which together form a comprehensive legal limit upon the use of international force. And the constraints formed by the UN Charter are neither more nor less compelling than the constraints upon force formed by the U.S. War Powers Act (1973) or the U.S. Constitution. As Rosalyn Higgins says, in her Problems and Process: International Law and How We Use It , the "UN Charter is intended to provide for a watertight scheme for the contemporary reality on the use of force. Article 2(4) explains what is prohibited, Article 51 what is permitted".
Article 2(4) of the UN Charter says that
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.
So, without explicit authorization from the UN, the United States may neither legally threaten to use force nor use it. The only exception granted by the UN Charter occurs in Article 51:
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.
Had it been able to repel the 11 September attacks directly by using force, the U.S. would have been within its "inherent right" to do so, as expressed in Article 51. Washington could legally have ordered the interception and destruction of an inbound international airliner in neutral airspace if, in so doing, it was defending the U.S. against an armed attack.
That the U.S. may now legally use force internationally, as Washington has threatened repeatedly to do, under the rubric of self-defense is not self-evident. The Congressional resolution seems to offer a self-defense justification when it says that "such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad". Further the President's National Emergency Proclamation claims as one of its grounds "the continuing and immediate threat of further attacks on the United States".
Setting aside the, for Washington, inconvenient fact that there is no generally recognized self-defense right to protect citizens abroad by force, can it justify the uses of force it's promised as self-defensive? The kinds of use of force Bush has been promising are clearly not purely self-defensive in nature; they are likely to occur in other countries, neither in direct response to an armed attack, nor with the intention of repelling such an attack. If there is any self-defense justification whatever to these promised uses of force against, for example, Afghanistan, Washington must make the case that they are in response to the imminent threat of an armed attack.
In international law there is a contested and limited right of anticipatory self-defense, that is, using force against the threat of an imminent, armed attack, before it has actually occurred. The classic expression of that right comes from Daniel Webster's diplomatic notes in the Caroline case. In order for an anticipatory use of force to be legitimate self-defense, there must, Webster wrote, be a "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation"; the force used must not be "unreasonable or excessive"; it must be "limited by that necessity and kept clearly within it".
The case for anticipatory self-defense which Washington has most often made publicly since 12 September is actually a version of nineteenth century arguments about vital national interest. Recall that Bush said as early as his election campaign that he would use force internationally when vital U.S. interests were threatened. But that view, which claims the right to use force without an actual attack or the imminent threat of one, is generally discredited among international law experts. The entire UN security apparatus was created in order to forestall just such unilateral action.
When it's not offering an anticipatory self-defense or vital interests justification, Washington offers a kind of indistinct right of armed reprisal. For example, no other legal category but armed reprisal fits Bush's promise that "our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated". Likewise consider Bush's claim that "our response involves far more than instant retaliation and isolated strikes". That is, our response includes retaliatory strikes, i.e., armed reprisals, but it will include other things too.
In general, reprisals are a class of actions that are illegal except as a response to a prior illegal act. For example, economic sanctions are generally illegal, but when they are undertaken as a reprisal, as a response to a prior illegal act, they often are legally permissible. Included in the general class of reprisal are armed or forceful reprisals, which have a different legal standing than non-force reprisals. Reprisals that use force, or armed reprisals, which surely must be seen to include Washington's "war on terror" which "will not end until every terrorist group of global reach has been found, stopped and defeated" are illegal under international law, no matter the legality or illegality of the acts to which they are meant as response.
Armed reprisals could be lawful only if the right of self-defense generally included the right of armed reprisal. It does not. Peter Malanczuk, in Modern Introduction to International Law, says that the right of self-defense "does not include a right of armed reprisal; if terrorists enter one state from another, the first state may use force to arrest or expel the terrorists, but, having done so, it is not entitled to retaliate by attacking the other state".
Washington's courses of lawfully permissible international action are clear. It may treat bin Laden, al Qaeda, and any other non-governmental organization involved in terrorist attacks as suspects in acts of international crime, and it may pursue them accordingly, within the bounds of international law. It must attempt to resolve peacefully a dispute with any state that may have harbored or aided the commission of such criminal acts, including pursuing a case against any such state at the International Court of Justice or by other peaceful means. It may use international force only after obtaining explicit authorization by the UN Security Council to do so, or, in the case of actual future or imminent armed attacks upon the U.S., it may use force to defend its territory and citizenry.
In the immediate aftermath of the 11 September attacks, many current and former high-ranking officials expressed what can only be called disdain for the bounds of international law. Such expressions might reasonably be thought to be merely overwrought, stressful reactions, except that they conform to the pattern of Washington's rejectionist stance. Law only has the force that it does because the parties to it, in this case, sovereign states, agree to bind themselves to it and, in so doing, to all other states which thus voluntarily enter into lawful, mutual relation. Even the U.S., as much Empire as state, may bind and, thus, obligate itself to (the force of) law. The U.S. did so freely when it, in large part, created the UN, its Charter, the Universal Declaration of Human Rights, and the entire post-WWII international security regime. While less frantic heads may now be prevailing, it remains to be seen whether Washington will acknowledge the bounds of international law and accept the law of force or whether the familiar rejectionist pattern will be reasserted.
See also Congress Must Not Abdicate to Bush <http://monkeyfist.com/articles/779>
This is The Law of Force <http://monkeyfist.com/articles/786>