International Law's response - Self-Defence (Week 7)

War on Terror as a departure from previous frameworks

Departure from previous instances e.g., criminal and law enforcement e.g., Lockerbie Bombing (1988)

Donald Rumsfeld, US SoS of Defence - we are 'going to have to fashion a new vocabulary and different constructs for thinking about what we're doing'

George W Bush speech 20 September 2001

'Our War on Terror begins with Al-Qaeda but it does not end there, will not end until every terrorist group of global reach has been found, stopped and defeated'

Preparing world for an entire campaign

Stated goal in Afghanistan

Target = Al Qaeda and the Taliban - stated goal was to dismantle Al Qaeda, Taliban did not extradite bin Laden and didn't shut down terrorist bases or extradite others

UNSC Resolution 1368

Reaffirming inherent right of individual or collective self defence

US Operation Enduring Freedom

US operation in Afghanistan, justified with reference to right of individual and collective self-defence

Russia's use of GWOT

Russia used GWOT to gain support for war against Chechnya

US and Iraq

US relied on UNSC 1441 as international authority to invade, rested on alleged failure to comply with disarmament obligations under 1991 ceasefire agreement which ended the Gulf War

Israel and GWOT language

Use of terrorism and GWOT language to justify violations of IL

1985 - bombing of PLO HQ in Tunisia, justified as 'headquarters of terrorism' and the operation needed to 'prevent further terrorist acts'

2002 - present: construction of wall, Israeli Defense Minister claimed it was 'an essential step to prevent terrorists from infiltrating into Israel'

Dec 2008/Jan 2009 - military action taken to 'protect its citizens from the ongoing terrorist attacks originating from the Gaza Strip'

UNGA General Counterterrorism Strategy/Compact

Preventing and combating terrorism, addressing conditions conducive to terrorism, CT and HR and ROL

UN Office of Counterterrorism Functions

Strengthen delivery of strategies etc

Saudi Arabia = highest funder

Top 10 funders are GN (except Saudi Arabia), most programmes targeted at GS

National strategies required

Scheinin and Ní Aolaín on human rights and counterterrorism

CT and HR mutually reinforcing but in practice HR too often an afterthought

HR violations and grievances constitute conditions conducive to the spread of terrorism

Pre-9/11 and use of force

Anghie: 'imperialism as self-defence'

Pre-9/11, states were repackaging tactical incursions into foreign territory as necessary self-defence (e.g., 1995, Turkey recasting its violent engagement with Kurdish forces outside the state as actions against terrorist organisations, necessitated by Iraq's failure to control'

US first deployed Art 51 against AQ in 1998, doubts about bombing chemical factory (claims that it was an ordinary pharmaceutical plant), lack of coherent judicial processes to oversee UN Charter operation

UN Charter Art 2(4)

Prohibition of the use of force in international law

Exceptions to the prohibition of use of force

UN Charter, Ch VII: UNSC authorisation

UN Charter Art 51: Self-defence

Consent (means there is no prohibited use of force, rather than an exception) e.g., killing of Osama Bin Laden in Pakistan (Pakistan had not consented, but had consented to use of force in other areas)

Article 51 criteria

1. Armed attack

2. Necessity

3. Proportionality

Armed attack Article 51

Pre-9/11, thought it had to be from a state (not in Art 51), shift in understanding post-9/11

Proportionality Article 51

Quantitative?

Nicaragua: proportional to armed attack and necessary to respond

Nuclear weapons: if existence threatened

Teleogical? - must be proportionate to purpose, must go no further than necessary to halt, repeal or prevent -> dominant feature of scholarship and state practice

Secondary criteria Article 51

Reporting to UNSC (unclear whether the right expires once SC takes action)

Can Article 51 apply to occupation?

Yes, ICJ - jus ad bellum applies in cases of occupation

Gray on US invasion of Afghanistan

US invasion of Afghanistan led to a fundamental reappraisal of the law on self-defence

Did the UNSC authorise the US' invasion of Afghanistan?

UNSC recognised right of self-defence but did not authorise

Attribution pre-9/11

Strict

Commentary - attributable if committed by private persons and state has encouraged, given direct support, planned or prepared them

Nicaragua test of connection with state to qualify as armed attack

Christian Tams on attribution post 9/11

Complicity

More convincing way is to opt for an approach which retains understanding of S-D as justification for force between states, but recognises special rules on attribution of terrorist activities

Contemporary practice suggests territorial state has to accept anti-terrorist measures of self-defence directted against its territory where responsible for complicity - support below level of direction of control or a safe haven

Gearty on the absence of a definition

In absence of agreed definition of terrorism, countering it can mean anything a state wants it to be

Post 9/11 approach to self-defence

First option

Against non-state actors

Harbouring terrorists, providing safe haven, complicity

Unwilling or unable

Overthrowing governments, eradicating non-state actor

Hovell and Hughes on IL prohibition on use of force in modern context

Tendency to dismiss IL as a 'marginal enterprise at moments of political crisis'

H and H on self defence pre 9/11

Action of last resort, right of a subsidiary nature

H and H on a diplomatic solution pre-Afghanistan

While might never be a definitive answer on whether a diplomatic solution could have been reached, strong evidence that but for miscommunication, US political imperatives and fear of further attacks, a negotiated solution would have been possible

H and H on what the law is now

Complicity (citing Tams)

Randelzhofer in Commentary on self defence now

Shift [23] Proposes an armed attack will be 'attributable to a State if they have:

been committed by private persons

and the state has encouraged these acts, has given its direct support to them, planned or prepared them at least partly within its territory, or was reluctant to impede these acts.

The same is true, if a State gives shelter to terrorists after they have committed an act of terrorism within another State' [23].

Doctrine applied to Pakistan

Unwilling or unable

Core idea of the unable or unwilling doctrine

Right to self-defence extends to right to use force against terrorists posing a threat of armed attack in states where those states are unwilling or unable to address the terrorist threat

No distinction between the earnest though unsuccessful state seeking to root out threats and the state that finds itself in the crosshairs because of its own double-dealing

Pakistan facts

Open door policy to fleeing Taliban but also made key arrests and shared intelligence, would participate in GWOT on own sovereign terms

Estimated 430 strikes 2004-2020 killing up to 4000 people including several hundred civilians

Pakistan never gave consent - has labelled it 'unauthorised unilateral action'

Gray on OEF

The longer OEF continued, 'the further it was detached from its initial basis in self-defence'

Bush doctrine

Pre-emptive self defence

Intention to 'act alone, if necessary, to exercise our right of self-defense by acting pre-emptively', declared the need to 'adapt the concept of imminent threat to the capabilities and objectives of today's adversaries'

Mégret on war

War influences the legal debate on use of force

Role of law - 'less constraining of politics than it is revealing of it' -> makes them submit to standards which shows they are not able to comply

'There is a rhetoric of war, distinct and almost floating above the question of military action (and indeed from that of war proper, whatever that may be) - whose thick textuality is worthy of study in itself for what it reveals about the profound ambiguity of IL's current predicament'

Mégret on war as..

Exception - steers patriotic libido

War and the enemy - designated an enemy, binds community within and point to enemy without (Schmitt)

Sovereign exception - intl liberalism as price for liberalism at home

State survival

Self-defence

Waning of politics - elevates enemy from private sphere of ordinary punishment to public sphere of intl conflict

Mégret on self-defence as war

Expansion of the notion, US expanded the 'self-defence straitjacket' and it will not shrink back to its original size any time soon -> other countries e.g., Russia, Turkey, Iran, India and Israel 'looking with delight'

Mégret on war as its own end

By declaring an all out war, fall into terrorists' trap - follows them in scorched-earth policy

Just because terrorists are guilty of the worst of crimes, does not mean that 'we' do not have our share in the chain of events that triggered them'

Israeli Wall Advisory Opinion (2004)

Art 51: self-defence in the case of armed attack by one State against another State -> issue of non-state actors

ICJ AO 2024

Jus ad bellum does apply - occupation is continued use of force in foreign activity

Syria timeline

2011: Arab Spring, US pulls out of Iraq

2013: escalation of Syrian civil war

2014: War against ISIS begins

2015: xpansion of war against ISIS in Syria

UNSC Resolution 2170

Addresses terrorism in all forms, constitutes one of the most serious threats to national security, wherever and by whomever so committed

Calls upon states to take all measures necessary and appropriate - authorisation of use of force

UNSC Resolution 2249 November 2015

After terrorism attacks in Paris

Called on intl community to redouble efforts against ISIS

Did the US ever designate the Taliban as a terrorist organisation

No (negotiate and offer aid)