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CIAO DATE: 12/01
International Affairs:
A Russian Journal
Retribution Must Find Terrorists Everywhere
S. Chernichenko *
The Most Difficult and Pointed issue is one of armed self-protection measures, which individual states may use against terrorists based in the territory of a foreign state. In the modern conditions, it is of a growing practical importance. The case in point, of course, is what a state can do to terrorists, who committed corresponding acts against its own self. What is meant are measures allowed by the international law rather than measures chosen at random. One must stress that it is the generally recognized customary norms of international law related to measures of this type that represent particular interest. Sometimes their interpretation is difficult, their content sparks off disputes, and occasionally there is no certainty that some of them have properly taken shape.
It is undoubtedly of extreme importance to clarify which treaties in the area of anti-terrorist struggle ought to be signed in order to enhance its efficiency. It is of no less importance to reveal merits and demerits of the treaties currently in effect and their application. However, insufficient attention is paid to the problem of international legal norms regulating the use of armed self-protection measures against terrorists in the territory of a foreign state.
Until recently, this country's doctrine of international law recognized as lawful either self-defense in the case of an armed attack on a state, or the use of armed force only within the territory of a state against some armed groups that get into its territory from without, whose operations do not qualify in scale for an armed attack. Other varieties of armed self-protection measures were not mentioned, although as early a period as the 1970s already produced indications that such varieties were possible.
One ought to note in passing that it is precisely an armed attack and not an aggression as journalists and certain politicians sometimes erroneously assert that the UN Charter defines as ground for individual and collective self-defense. Aggression is a broader concept. Besides, a legally valid evaluation of some act as an act of aggression is given by the Security Council, whereas it is a victim of an armed attack itself (without detriment to the Security Council's powers) that evaluates whether or not such an attack has been committed. Individual self-defense is the most intensive self-protection measure.
It is necessary to point out that acts of aggression are actions, direct or indirect, undertaken by some state or states against other state or states. This is stated in the definition of an aggression the UN General Assembly adopted on December 14, 1974. The 1999 invasion in Daghestan from the territory of Chechnya of illegal armed groups, which was qualified as a large-scale terrorist action, cannot be recognized as an aggression (although some officials in Russia called it precisely that), because it was committed, not at the interstate level but within the territory of the Russian Federation. Accordingly, the operation directed at disrupting it was neither self-defense nor other self-protection measure affecting foreign states.
One may name three situations where it is admissible to call for the use of armed self-protection measures in the territory of a foreign state.
First, it is possible in the event of a systematic penetration of small armed groups into the territory of a neighboring state, where they commit acts of sabotage, or in the event of periodically recurring shooting attacks on its territory, or in the event of a sufficiently serious single local incursion in the territory of a neighboring state, although not on a scale of an armed attack. It is pertinent to remember in this connection the actions, which the Taliban took against Russian border guards in Tajikistan, or the clash with Chinese troops in the area of the Damansky Island in the 1960s.
Second, it is possible in the event of an attack by armed groups on military facilities of one state, which are located in the territory of another state by agreement with it or are there temporarily on some other basis that does not contradict international law. Russia had to face this sort of situation in the territory of some Caucasian states after the disintegration of the USSR.
Third, it is possible in the event of a group of terrorists taking hostages in the territory of a foreign state, if the latter connives at terrorists or in consequence of internal unrest, or for some other reasons is unable to deal with the problem on its own and declines cooperation. A situation like that took shape in Uganda when it was ruled by Idi Amin: a group of Palestinian terrorists took hostage some Israeli nationals at the airport of Entebbe. The Israeli authorities had to send down a special force to free them, which force acquitted itself well.
It is not always in similar situations that armed self-protection measures may be used against terrorists alone. But one ought to keep in mind that they may be used against them too. For example, in order to cut short penetration of armed terrorist groups from the territory of a neighboring state, their bases may come under fire.
In all evidence, the international customary law has evolved by the present time the norms that permit a recourse to corresponding measures in the above cases. It is difficult, of course, to pinpoint the moment when a customary, or unwritten, norm appears. The requirement in this sense is that a rule that emerged on the basis of uniform practice be recognized as legally binding by states. This recognition (opinio juris, to use the legal term) is not infrequently tacit. It is that no one objects to this kind of evaluation of some or other practice.
Norms that admit a possibility of using in certain cases armed self-protection measures in the territory of a foreign state have appeared comparatively recently. Moreover, they have not resulted from breaches of some previously effective norms but crystallized as practice filled gaps that had existed in international law. At first, there was a negative attitude to this practice. The International Court of Justice, for example, gave a negative assessment to America's unsuccessful armed attempt to free U.S. hostages in Iran. True enough, in its May 24, 1980 decision in the case involving U.S. diplomatic and consular personnel in Tehran, the Court, while recognizing Iran's responsibility for the violation of international law, used a cautious formula in characterizing the U.S. attempt to free American hostages on April 24 and 25, 1980. Expressing in this connection its concern and stating that regardless of its motives the operation was of a nature that undermined respect for the judiciary process in international relations, the Court pointed out that the question of lawfulness of that operation could not be reflected on the evaluation of Iran's actions 1 .
The problem is that the norms dedicated to armed self-protection measures are insufficiently concrete and militarily strong states may abuse them. For example, the onetime U.S. bombing attack on Tripoli in response to the preparation of a terrorist act, which the U.S. authorities believed was carried out with the aid of the Libyan Government, could obviously be regarded as an armed attack rather than an anti-terrorist action. The bombing raids by U.S. and British aircraft on Iraq at the start of this year ought to be evaluated in the same fashion. At the same time, apprehensions that some or other institution of international law may be abused are not ground enough for denying the existence of the said institution. The right to self-defense may be abused as well by qualifying some small incident as an armed attack. But the fear of such abuses has never served as a motive for doubting the existence of the right to self-defense.
Needless to say, it is states possessing sufficient military capabilities that in reality are able to resort to armed self-protection measures against terrorists in the territory of a foreign state. Yet in itself this circumstance must not to some or other degree impair confidence in the lawfulness of the said measures in principle. Success in the fight against terrorism depends primarily on those states, which possess the pertinent effective means, as the maintenance of international peace and security depends primarily on the permanent members of the UN Security Council. In either case one cannot speak about attempts to substantiate the hegemony of the strongest states in international relations. These conclusions only reflect reality.
There are definite rules, which must be taken into account without fail as recourse is made to armed self-protection measures. They also belong to the sphere of international customary law and envisage restrictions on the use of such measures. In the first place, these measures must be commensurate to the unlawful actions, which they are designed to disrupt. Not proportional, but exactly commensurate. Proportionality is often interpreted as the use of the same types of weapons as used by the party at fault. Commensurateness, however, means the scale and degree of intensity of counteraction to unlawful acts. Under no circumstances should armed self-protection measures provoke an armed conflict. This would contradict the principle of the non-use of force, one of the main principles of modern international law.
To continue, they are of exceptional nature. In a normal situation, for example, participation of foreign special units in hostage-freeing operations in the territory of some state is admissible only with its consent. It is only in the event that there is a vacuum of power in a country or if the top authorities of a state in effect support terrorists or themselves organize a terrorist act (as was during the Iranian hostage-taking crisis) that the consent may not be required.
Finally it is necessary to remember that decision-making on whether or not to resort to armed self-protection measures in the territory of a foreign state is political, not legal. States have the right to resort to them, but they may decide that employing such measures is disadvantageous or unreasonable politically. At the same time, international law already seems to stipulate that states have a common duty to combat terrorism and cooperate with each other in the fight against it.
Self-defense must not be identified with other, less intensive self-protection measures. For example, the liberation of the Israeli hostages in Uganda can in no way be put in the category of self-defense. That a group of terrorists takes hostage a number of nationals of some state in the territory of another state cannot, with most rich fantasy, be equated with an armed attack by one state on another. Otherwise it would have to be recognized that any strong state is totally free to evaluate some or other actions directed against even a few of its nationals in foreign territory (an unlawful arrest, mugging, etc.) as an armed attack and a pretext for self-defense.
This would only lead to the vindication of arbitrariness in interstate relations. Thence it is but one pace to regarding preparations for a terrorist attack in the territory of a foreign state as an armed attack and in general to the revival of the preemptive self-defense concept, which postulates that it is supposedly admissible to start military operations in response to the threat of force issuing from another state, which is totally at variance with Article 51 of the UN Charter.
Armed self-protection measures have nothing in common with "a humanitarian intervention." Usually the latter is taken to mean an armed interference (an invasion, a bombing raid, etc.) by some state or states under the pretext of defending human rights in the territory of a state that is an object of interference, this without a UN Security Council sanction. This type of actions represents the grossest violation of the UN Charter, primarily its principle of the non-use of force. A case in point is NATO's bombing attacks on Yugoslavia in 1999. Heads of the states, which took part in the bombing, sought to prove its lawfulness on the basis of a resuscitated "humanitarian intervention" doctrine and were not overly concerned with being convincing. But in keeping with the UN Charter and the above-mentioned customary norms of international law, states may use armed force in relations with other states without a sanction of the UN Security Council only for self-defense in the face of an armed attack or for the purpose of carrying out self-protection measures, the latter due to be pursued strictly within the framework of the above-mentioned restrictions as imposed by customary norms.
Armed self-protection measures must not be confused with reprisals, which have the outward aspect of a reciprocative breach of international law. In other words, these are lawful actions a state takes in response to an international offense affecting itself as committed by another state, which, had the aggrieved state been first to commit them, would have constituted an international offense (for example, a reciprocal detention of a diplomat).
In peacetime, reprisals must not involve armed force. Besides, the distinction between them and self-protection measures, in principle, consists in that the former have the aim of forcing an offender to stop an offense, whereas the latter aim to stop it by an aggrieved state's own forces. A similarity between them may be seen in the fact that both are directed at cutting short an international offense and are therefore of restorative nature, which means that they help restore breached law and order.
It has become necessary to fix the norms related to armed self-protection measures (primarily in the context of the fight against terrorism) in writing, formulating them more clearly. For this, there is no need to approve some legally binding document. A statement would suffice. Ideally, one ought to seek to have the UN General Assembly adopt a declaration on this issue. Since its resolutions have the nature of recommendations, the drafting of such a declaration would cause fewer difficulties than preparation of a draft international treaty. At the present time, however, one cannot count on the rapid passage of even this initiative, what with differences in views on the problem of UN members. Probably the best thing to do initially would be to prepare in some form or other a document reflecting Russia's position. This would provide an opportunity for testing the reaction of states, which possess the biggest anti-terrorist potentials. Subsequently, such a document might serve as a basis for proposals at the regional and global levels.
As is natural, its preparation must be preceded by a thorough work at the expert level and discussions in the scientific circles. As a first step, an expert conclusion, not even an official document, would do. It is also desirable to envisage in it the necessity of establishing an universal jurisdiction with regard to terrorists similar to one established in respect of pirates. Any state has the right to institute proceedings against pirates regardless of which nationality they have and who their actions were directed against. Today terrorism is practiced on such a scale that the declaration in this case of an universal jurisdiction as a principle would be fully justified and expand the chances for fighting terrorism.
Endnotes
Note *: Stanislav Chernichenko is Vice-President of the Russian Association of International Law, Doctor of Sciaences (Law), and Professor Back
Note 1: Summaries of Judgements, Advisory Opinions and Orders of the International Court of Justice. 1941 - 1991. UN, N.Y., 1992, p. 108. Back