CIAO DATE: 03/04

Consequences of 9/11: Emergence of New Norms in International Law?

László Valki

Pugwash Conferences on Science and World Affairs

October 9-12, 2003

Summary

After 9/11, some politicians and international lawyers claimed that new norms were emerging in international law:

1. Lawful humanitarian intervention, and/or the right to forceful change of non-democratic regimes;

2. Extended right of states to self-defense;

3. Preemptive use of force.

The forceful change of non-democratic regimes was not a new notion that had only been emerging in connection with the Iraq war. It was just part of the broader notion of humanitarian intervention which had been indirectly invoked by NATO in the Kosovo crisis. The preemptive use of force against another state as a legal concept was introduced by the National Security Strategy of the United States, and invoked by the Bush administration in the Iraq war.

Neither humanitarian intervention, and the right to forceful change of non-democratic regimes, nor the preemptive use of force are in compliance with the present international legal order. As far as the right to self-defense is concerned, it cannot be applied under the present circumstances, and—as a consequence of 9/11—it has probably been extended by the international community.

Basic Elements of Contemporary International Legal Order

The international legal order today is virtually identical to the one codified at the end of the Second World War. Its basic norms are included in the UN Charter as follows:

1. The threat or use of force against the territorial integrity and political independence of any state is prohibited (Art. 2(4)).

2. The Charter allows for only two exemptions:

(a) All states have the inherent right of individual or collective self-defense in case of an armed attack (Art 51).

(b) The Security Council (UNSC) may decide on the use or threat of force against an aggressor state by the member states of the UN (Art 41).

3. The member states of the UN conferred the primary responsibility on the Security Council for the maintenance of international peace and stability (Art. 24 (1)).

4. Only the UNSC may decide on the threat or use of force. The General Assembly may not (Art. 11 (1)). The same applies to the „regional arrangements" described by UN Chapter VIII such as the OSCE, except if the UNSC authorizes them to do so (Art. 53).

5. No decision on the threat or use of force may be made without the consent of the five permanent members (Art. 27 (3)).

6. The Charter of the UN might be amended only by the vote and ratification of two thirds of member states including those of all five permanent members (Art. 108). In the event of a conflict of the obligations of the member states under the UN Charter and their obligation under any other international instrument, the obligation under the Charter prevails (Art. 103).

Humanitarian Intervention and the Right To Forceful Change of Non-democratic Regimes

Those who decided on the air attacks against Yugoslavia were, in fact, not addressing the question of legality. The NATO decisions of 13 October 1998 and 24 March 1999 ordering the air strikes did not include any explanation whatsoever, nor did politicians discuss the legal aspects in any detail. Only Secretary General Solana had listed some legal arguments in a letter addressed to the permanent representatives of the member states on 9 October 1998. The purpose of the letter was to lay the legal groundwork for the activation order (ACTORD) issued four days later, authorizing Wesley Clark to launch the air strikes. It stated that NATO was within its right to use its air force because

(a) Belgrade had not complied with the demands of the international community, despite mandatory UNSC Resolutions 1160 and 1199;

(b) The report of the UN Secretary General pursuant to both resolutions warned of the danger of humanitarian disaster in Kosovo;

(c) The humanitarian catastrophe continued because no concrete measures towards a peaceful resolution of the crisis had been taken by Yugoslavia;

(d) Russia and China made it clear during the preceding negotiations that they would veto any UNSC resolution containing the implementation of forcible measures in the future;

(e) The deterioration of the situation in Kosovo and its magnitude constituted a serious threat to peace and security in the region. ¹

Javier Solana, in supplementing the above arguments, referred to the last sentence of UNSC Resolution 1119, according to which, the UNSC decided that "should the concrete measures demanded in this resolution ... not be taken, to consider further action and additional measures to maintain or restore peace and security in the region." He also added that "the Allies believe that in the particular circumstances with respect to the present crisis in Kosovo ... there are legitimate grounds for the Alliance to threaten and, if necessary, to use force." ² The letter did not contain detailed explanations and legal arguments other than the above, nor was a document containing such ever prepared.

Solana was not right, since, as it was mentioned, the current international legal order prohibits any use of force unless authorized by the UN Security Council.

German international lawyer Armin Steinkamm and a few others said that the UNSC was "paralyzed" in the case of Kosovo, and in such cases others must take action. ³ As if this were comparable to, say, a situation where the severely impaired health of a head of state or prime minister paralyzes the decision-making process in a country, in which event a politician appointed to act as deputy replaces the state leader and maintains the normal operation of the central organs. However, the UNSC is not a government, it does not have executive organs and, therefore, no superior to replace. The UNSC was "paralyzed", it simply did not act, and nothing can be done about it. The world continues to function. How it does, is another matter. Apparently, mankind faces severely traumatic events even many decades after the defeat of fascism and a decade after the disintegration of the Soviet Union. Clearly, democratic states cannot remain idle in the face of mass murders and ethnic cleansing. But this wish to take action on the basis of political and humanitarian considerations must not assume a legal guise that forthwith reinterprets the rules of written international law as well.

A number of experts believe, however, that international practice, or international customary law has already amended this written law, specifically, through the increasing resort to the principle of humanitarian intervention. ⁴ this principle was in general a valid reason for intervention in the 19th century. No one found fault, not from a legal point of view anyway, with the use of force by a state or a group of states in another country for the protection of some ethnic or religious community. European powers showed a special preference for certain regions of the Ottoman Empire. According to the Turks (and historians), in these cases the great powers were led not merely by noble intentions, they also had other interests. ⁵ All this is mostly indifferent from the point of view of the present dilemma, since in the 19th century there were no international legal norms prohibiting the launching of war and, therefore, it did not really matter how an armed intervention was justified. In the 20th century, on the other hand, the 1928 Kellogg-Briand Pact, and particularly the UN Charter later, introduced the general prohibition of threat or use of force, but did not mention humanitarian intervention as an exception. Interestingly enough even those states who used force for similar aims did not refer to their military operations as humanitarian intervention. ⁶ Many realized only later, after the Kosovo crisis, that there had been other humanitarian interventions carried out before. Somalia, Haiti, Rwanda and Albania provided examples of humanitarian intervention, though they were not called so at the time.

The foregoing has led a number of experts to conclude that a new practice and with it a new customary law is emerging, which NATO intervention in Kosovo only strengthened. ⁷ According to Professor Daniel Thürer of Zurich, at the time the Charter was framed in 1945, priority was given to the protection of state sovereignty and international stability over the protection of human rights. However, he wrote, this standpoint can no longer be maintained. A different interpretation of international legal norms or, as Thürer puts it, a "dynamic interpretation" of law has become necessary. ⁸

However dynamic the interpretation of legal norms may be, the principle of humanitarian intervention cannot become part of a new customary law for a number of reasons. ⁹ First, because general prohibition of the use of force is considered a peremptory international legal norm in both written law (the Charter) and customary law. It may be changed only by the whole of the international community, represented by the UN, not by NATO. That is to say, as long as the UN does not change the more than half-century old international legal order—and, as it was mentioned, there is no chance whatever that it will—others may not change it either. Second, an intervention, whose executors make no reference to the principle of humanitarian intervention, may not establish a new customary law. Some of the above instances were designated as such, others were not. Regarding Kosovo, every NATO politician spoke about human rights being at stake, but none of them mentioned humanitarian intervention as the legal basis for the intervention. (Solana's above cited letter was never published.) Third, the so-called opinio juris, that is, the firm belief of states that they want to establish a new customary legal norm, is missing. Hanspeter Neuhold rightly says that the states concerned did not recognize the emergence of a new practice and, consequently, of a general customary legal norm. ¹⁰ As long as the states executing the intervention say that their practice establishes customary law while others oppose this practice, a new customary law cannot come into being. At that time there were many protests against the interventions by India and Vietnam, less against the interventions by Tanzania and France, but one cannot establish a general acceptance even in the latter cases. Thus there is no place for a "dynamic interpretation" of the recent norms of international law.

Foreign forces entered Somalia, Haiti, Rwanda and Albania on explicit authorization by the UNSC, and intervention in each case was lawful under international law. But by the time of the Kosovo crisis the American-Russian "honeymoon" was over, and, as mentioned, Moscow and Beijing no longer gave their blessing to draft resolutions that would have authorized the use of force. Consequently, NATO acted without authorization. According to the UN Charter, the implementation of military measures against Yugoslavia would have also required UNSC authorization. The argument that the purpose of NATO air strikes was to enforce the provisions of UNSC Resolutions 1160 and 1199 was also unacceptable. True, Yugoslavia violated the law when it did not comply with these resolutions, but even this fact did not constitute a legal basis for armed intervention by NATO. Solana's argument that in view of the possible veto the Atlantic Alliance had no choice but to launch the air strikes, may be justifiable militarily and politically, but not legally. There is no "third" way once the draft resolution authorizing the use of force has been rejected by one or more permanent members of the Security Council.

Former President of The Hague Tribunal Antonio Cassese wrote that more than mere exception was involved. According to him, international law today is characterized by the protection of three values: the maintenance of peace, respect for human rights and for the right of self-determination. If these come into conflict, the preservation of peace has priority because it represents the overriding human value. At this point, Cassese took a sudden turn in his paper, saying that he considered it conceivable after all that a new and general legal norm may gradually crystallize, which would allow some sort of humanitarian intervention. ¹¹

Jochen Frowein of Germany also referred to the concept of humanitarian intervention. In his view, in the 20th century, international law has reached that stage of development where the protection of human life and dignity constitutes its most fundamental element. Therefore, genocide justifies armed intervention. His standpoint is far from being widely accepted by international jurisprudence. He continues by saying that rarely did it happen that states rushed to the assistance of a threatened group of people without authorization by the UNSC. He cites only one example, Operation Provide Comfort, when in April 1991 the armed forces of a few Western states were deployed in the northern part of Iraq in order to protect the Kurds. Actually, what both authors refer to is that customary law can modify written international law. However, they both ignore the fact that the norms on the use of force constitute a part of the UN Charter which supersedes any other international legal norm. As it was quoted above, according to Article 103, "[I]n the event of a conflict between obligations of the members of the UN under the Charter and their obligations under any international agreement, the obligations of the present Charter should prevail." A new rule of customary international law cannot derogate the peremptory norms of general international law either. A new custom, established by a group of states may not become customary law if it is in conflicts with the basic norms of, and the decision-making process described by, the Charter. Such a legal norm cannot "crystallize", particularly if it is rejected by one or more permanent members of the UNSC.

The same conclusion could be drawn with regard to forceful change of non-democratic regimes. There is a general agreement among politicians and scholars that the regime of Saddam Hussein used to be one of the most brutal dictatorships in the world. This claim appeared in the list of earlier claims too, but only as a "collateral advantage" of the attack. Both the U.S. and the British governments attempted to justify the necessity of going to war against Iraq on three legal grounds: (1) the inherent right of self-defense, (2) the authorization of the Security Council, and (3) the liberation of the Iraqi people. Apart from this kind of reasoning, many others have been articulated at various times. But in terms of international law, only one claim is valid, i.e. the one that the respective governments made public prior to the attack and not subsequently when the first claim turned out to be groundless. The U.S. and Great Britain proceeded along the following path:

First, they claimed that Iraq has weapons of mass destruction (WMD) that threaten the security of the region. They also claimed that Iraq co-operated with various terrorist organizations—above all the al Qaeda—and may have supplied them with WMD. Hence, other regions of the world—including the territory of the U.S. and Britain—could also be threatened. Neither Washington nor London has ever claimed that Iraq has directly threatened their countries' territorial integrity or political independence. Second, the two states have claimed that Iraq has violated several Security Council resolutions, above all Resolution 687, by possessing WMD. Third, Resolution 678 of November 1990 would permit an attack against Iraq. This resolution empowered the states co-operating with the Kuwaiti government to "use all necessary means" to liberate the country from Iraqi occupation. Fourth, in November 2002, they persuaded the member states of the SC to determine that Iraq has indeed violated prior UNSC resolutions. Subsequently, on the basis of Resolution 1441, UNMOVIC and IAEA weapons inspectors started to uncover Iraqi WMDs. This resolution, however, made no mention of any possible connection between Iraq and terrorist organizations. Fifth, they claimed that Iraq has been seriously violating internationally recognized human rights norms. The British Dossier of September 2002 for example stated:

Saddam uses patronage and violence to motivate his supporters and to control or eliminate opposition. ...Saddam's extensive security apparatus and Ba'ath Party network provides oversight of the Iraqi society, with informants in social, government and military organizations. Saddam practices torture, execution and other forms of coercion against his enemies, real or suspected. His targets are not only those who have offended him, but also their families, friends or colleagues. ...He has crushed parties, and ethnic groups, such as the communists and the Kurds...Members of the opposition abroad have been targets of assassination attempts conducted by Iraqi security services ...Suspicion that [army] officers have ambitions other than the service of the President leads to immediate execution. It is a routine of Saddam to take preemptive action against those who he believes might conspire against him.

There is a number of similar statements by American and British politicians. They said that Saddam is sustaining an ugly dictatorship in Iraq, consequently, the real purpose of the invasion has been the liberation of the Iraqi people. They always concluded that Saddam must go, and his country will have to be democratized. However, when it became clear that neither the UN observers, nor the American or the British forces found any WMD in Iraq, the two states put the claim of human rights violations of the Saddam regime in the first place. Now this claim survived the others, and it remained by now, in fact, the only one.

But the recent international legal order—as it was shown—does not recognize the legality of military intervention even in case of genocide or ethnic cleansing. Thus it would not recognize an intervention to defend human rights either. There is no provision in the UN Charter or in any other international instrument which would permit such an intervention. As it was demonstrated earlier, the international legal order framed in 1945 contained rather simple and rigid rules. According to them, force may only be used in self-defense or on authorization by the UNSC. The purpose of and reasons for the use of force, and the enforcement of protected human values were not distinguished. The Charter did not authorize the use of armed force by any state against another state for the protection of human rights or the establishment of democratic institutions, or for any other cause.

My conclusion is that no new norm is emerging in the recent international order which would recognize the lawfulness of either form of humanitarian intervention.

The Scope of Self-defense

Since 11 September many international lawyers have asked whether the United States had the right to respond to the terrorist attacks against the World Trade Center and the Pentagon by using force? The first answers were in the negative.

"No, this is not war", wrote Alain Pellet of France on 3 October 2001. A war presupposes "an armed conflict between adversaries if not identified, at least identifiable...[The attacks] are neither an 'aggression' in the legal sense of the word, nor war crimes. One might possibly classify them as crimes against humanity...On another level one can, if need be, see the attacks of 11 September a 'threat to international peace and security' in the words of the subsequent Security Council Resolution.. ...More troubling, by the same Resolution 1368, the Council goes as far as to consider that the acts of terrorism of 11 September justify the exercise of the 'inherent right of individual or collective self-defense' in accordance with the Charter". According to Pellet this is an "extremely wide interpretation which hardly conforms to the letter of the Charter, Article 51...You do not respond to terrorism with terror." ¹²

A similar view was held by Antonio Cassese: "It is obvious that in this case 'war' is a misnomer. War is an armed conflict between two or more States. Here we are confronted with an extremely serious terrorist attack by a non-State organization against a State." ¹³ He also thinks that the terrorist attacks can be classified as crime against humanity as described by the Statute of the International Criminal Court but could only be punished by national courts.

Pierre-Marie Dupuy feared that the reference of the Security Council to the inherent right of self-defense would give the United States "a carte blanche to do, alone, what it likes and when it likes". He would have preferred an armed response authorized and controlled by the Security Council as required by Article 51 of the UN Charter. ¹⁴

Indeed, attacks by a private person or private armies cannot be qualified as aggression. Their acts could only be judged under national and not under international law. In such cases the state concerned may defend its territory by national means, i.e., improving its airport security systems, enhancing alertness at its border crossings, bringing the perpetrators to justice, etc. The same seems to be provided by the above mentioned Article 2(4) of the Charter of the United Nations: "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". This Article prohibits the use of force by states only and does not refer to the acts of private persons or armies.

However, the draft of the Charter was prepared at the end of World War Two when the founding fathers of the United Nations wanted to do something about the classical inter-state aggression which had posed the most serious threat to mankind in history just some years earlier. After 1945, it was quickly recognized that states might use force against each other in many indirect ways. In the early Cold War years they sponsored revolutions and upheavals, organized assassinations or the hijacking of airplanes. Therefore many have sought to extend the notion of aggression to some of these acts, because they involved threats to international peace and security against the purposes of the United Nations. That is why in 1952 the United Nations set up a commission to prepare a draft resolution on the definition of aggression.

Twenty two years later, in 1974, Resolution 3314 of the General Assembly was adopted. This resolution listed all those acts which can be qualified as acts of aggression. These included, among others, "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out armed attacks against another State, ...or its substantial involvement therein". ¹⁵ According to the resolution only acts of "such gravity" can be taken into consideration as the "bombardment" of the territory of another state or the "use of any weapons" against it or attacking its ground, air, or naval forces. ¹⁶ The question, therefore, that came up on 11 September was whether the State of Afghanistan—or the Taliban—were "substantially involved" in the preparation and perpetration of the terrorist attacks.

By today most analysts have agreed on a positive answer on the question of Taliban involvement. However, on the day of the terrorist attacks, or even at the time of the launching of the counterstrikes in October, the public had very little information about the links between the Taliban and the Osama bin Laden's terrorist network. Only a few intelligence services and the governments they worked for could have had a clear picture about which one of them had the upper hand in Afghanistan. The question at this point is, did the Taliban government send terrorist groups into the territory of another state in order to carry out terrorist attacks or could its substantial involvement therein be established? The governments of the great powers, primarily those of the permanent members on the Security Council, did have appropriate information on this issue. Through its permanent members, the Security Council was able to understand the substance of the information gathered on the relationship between the Taliban and al Qaeda and to translate this into legally relevant resolutions as many as two years prior to the 11 September terrorist attacks. These were very significant resolutions, as they contained not only the presumptions of the U.S. government, but also identical conclusions of the other members of the Security Council (see Resolutions 1193 (1998), 1214 (1998), 1267 (1999), and 1333 (1999). They indicated that the members of the Security Council were deeply convinced that the Taliban government had been "seriously involved" in providing support to the activities of Osama bin Laden and al Qaeda, and consequently the Taliban were held responsible for what was happening and will happen on the territory of Afghanistan.

The White House had little doubt about the identity of the perpetrators of the 11 September terrorist attacks. President Bush initiated an investigation of unprecedented scale and asked to convene a meeting of the Security Council. On 12 September, the UNSC discussed the situation and in its Resolution 1368 (2001)—without identifying the responsible state—made some basic statements. It condemned the "horrifying terrorist attacks" in New York and Washington, regarding them as a "threat to international peace and security", and recognized "the inherent right of individual or collective self-defense in accordance with the Charter". Furthermore, the resolution stressed that "those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable".

NATO took up a similar position. Upon the proposal of Secretary General Robertson the Permanent Session of the North Atlantic Council stated that "if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by article 5 of the Washington Treaty". In other words, an aggression took place calling for possible collective self-defense of the member states. ¹⁷

An explicit position was also taken by the European Council on 21 September. In their conclusions, the Heads of State and the Governments of the EU stated that "on the basis of Security Council Resolution 1368 a reposte by the U.S. is legitimate." The Member States declared that they were prepared to undertake actions that "must be and may also be directed against States abetting, supporting or harboring terrorists". The member states affirmed that they were prepared to co-operate with the United States in taking the appropriate measures to the extent of their capacities. Then they adopted an action plan on the counter-terrorism measures to be applied in the EU. ¹⁸

A week later, on 28 September, the Security Council held another session and adopted Resolution 1373 (2001). The document referred again to the right of self-defense and the fact that terrorism threatens international peace and security. It added a statement that terrorism and its support is inconsistent with the purposes of the UN. ¹⁹ Then the Security Council decided that all states shall prevent and suppress the financing of terrorist acts; freeze funds and other financial assets associated with terrorism; refrain from supporting any organizations or persons that are involved in terrorist activities and deny safe haven to those who finance, plan, support, or commit terrorist acts.

Although the Security Council did not specifically authorize any state to carry out military countermeasures, the fact that three permanent members of the Security Council (France and Great Britain and later Russia) opened their airspace for military actions and the fourth (China) ensured the United States of its support proved to be a significantly relevant legal step in the war against terrorism.

On 2 October 2001 the North-Atlantic Council, returned to the question of the identity of the real supporters and planners of the terrorist attacks. That day the special envoy of the United States informed the Council on the first findings of the investigation. On the basis of the information gathered, Secretary General Robertson announced at a press conference after the meeting that it has been clearly determined that "the individuals who carried out the terrorist attacks belong to the Afghan terrorist organization headed by Osama bin Laden and protected by the Taliban regime". Therefore the terrorist acts have to be regarded as "attacks from abroad" and are related to Article 5 and NATO will have to make its further decisions on this basis. ²⁰ References to Article 5 meant that every member state of the Alliance qualified the 11 September attacks in New York and Washington as aggression in terms of international law, and held the Taliban regime of Afghanistan indirectly responsible for it. Two days later, on American requests, the Permanent Council agreed on common measures aimed at suppressing terrorism (to open their airspace to U.S. military aircrafts and to share information gathered by national intelligence agencies, to provide increased protection of American interests and those of the other allied states, etc.). ²¹

Yet, the question may be asked: Can these particular military counter-measures against Afghanistan be qualified as legitimate self-defense?

Some international lawyers denied this. Pellet, Dupuy and Boldizsár Nagy of Hungary came to a conclusion that:

–the behavior of the United States cannot be regarded as self-defense because Washington launched the counter-offensive not immediately after the attacks but almost a month later, and moreover, against a state located several thousand kilometers away;

–when executing counterstrikes, the United States might have used force against terrorists or the state harboring them only if the Security Council had authorized it to do so.

"The inherent right of self-defense has limits", wrote Boldizsár Nagy. "It was the U.S. Secretary of State Webster who put down his immortal words in 1841 that have remained valid even today." In 1837 the British, referring to the right to self-defense, entered the territory of the United States, then took and set fire to the ship Caroline which was supporting Canadians who were revolting against the British Empire. The ship plunged over Niagara falls resulting in the death of several innocent people. During the act, Webster noted, "the party referring to this has to prove the necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation". ²² The same view was expressed by Cassese and Pellet. In the opinion of Pellet "the use of armed force must be subject to the authorization of the Security Council which has not (yet) been given". ²³ According to this view, for the party concerned, there is no right of a delayed response to an armed attack with the use of force. According to Cassese the use of force by the victim state [should be] directed "to repel the armed attack of the aggressor state...[and] must be proportionate to this purpose of driving back aggression". ²⁴ In accordance with this thesis the party concerned can do almost nothing apart from armed defense and an immediate counterattack because it has to stop its response after a certain stage. Where and when is this stage exactly reached? There is no answer either from Nagy nor from Pellet.

The more than 150-year-old "immortal" words of Webster, in any case, were applicable only for defense against traditional aggressions and only under certain conditions. As far as terrorist attacks are concerned the Webster thesis is absolutely inapplicable. It is the terrorists only who could make the best use of it. In case of a terrorist act, the attackers and their supporters remain either unknown or become identified only after some of them get killed during the attack, while others disappear and hide in remote countries. On the basis of Nagy's interpretation any action against Osama bin Laden and his organization would have been possible only on 11 September and only if they had been, say, directing the execution of the attack on a mobile phone on board a yacht anchored in New York City harbor. Otherwise President Bush would have had only one opportunity: to turn to the UN in order to convene the Security Council, which would either have given a go-ahead to coalition war (as before the Gulf War) or not (as in the case of Kosovo).

The opinion of the above authors regarding Security Council authorization is also difficult to accept. According to Boldizsár Nagy "the essence of the world order after 1945 has been the principle that the United Nations, and within it the Security Council, have the ultimate monopoly on the use of force. That is why both individual and collective self-defense has to be implemented with the knowledge and approval of the Security Council while in ideal cases it has to be replaced by UN actions on the basis of collective security". ²⁵ However, the assertion that armed actions for self-defense with some delay can be launched only with the authorization from the Security Council is false. Article 51 provides that as long as the Security Council has put the issue on the agenda and taken appropriate measures, self-defense can be exercised without restriction. The same is provided by Article 5 of The North Atlantic Treaty. In accordance with Article 5 the collective defensive measures of NATO "shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security". Therefore, until an opposite Security Council resolution, Washington has the right to decide when to act, against whom and how, without waiting for further UN authorization.

The response of Boldizsár Nagy to this is that the two Security Council resolutions adopted after 11 September decided the question on the basis of Article 51. According to him various measures were ordered by the Council (the planners, organizers, supporters of the terrorist attacks should be brought to justice, etc.), consequently it has already acted as described in Article 51, and did not provide the United States with authorization for the use of force in self-defense.

Cassese admits in his paper that "the magnitude of the terrorist attack on New York and Washington may perhaps warrant the broadening of the notion of self-defense. I shall leave here", he added, "in abeyance the question of whether one can speak of 'instant' custom, that is of the instantenous formation of a customary rule widening the scope of self-defense as layed down in Article 51 of the UN Charter and in the corresponding rule customary law. It is too early to take a stand on this difficult matter." ²⁶ Cassese could have been less careful asserting that the notion of self-defence is now wider than in 1841 or in 1945. All that has been argued by the author of this paper indicates that the way and the magnitude of military counter-measures by the U.S. and its allies was accepted by a major part of the international community, including the rest of the permanent and non-permanent members of the Security Council. Moreover, this did not happen on only one occasion but during the unfolding developments with regard to Afghanistan dating back to 1998.

My conclusion is that the initial interpretation of the notion and scope of self-defence has been extended by the actions of the international community on 12 September 2001 and the following days. It represents an important change in customary international law. This was, however, the only change in law as a consequence of 9/11.

Preemptive/Preventive Use of Force

In September 2002, Washington introduced in its National Security Strategy a new legal notion and since then it has officially adopted the position that it has the right to act preemptively against states possessing WMD and harbouring and supporting terrorists. According to the Strategy:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of imminent threat—most often a visible mobilization of armies, navies, and air forces preparing an attack. We must develop the concept of imminent threat to the capabilities and objectives of to day's adversaries. Rogue states and terrorists do not seek to attack us using conventional means...Instead, they rely on act of terror and, potentially, the use of weapons of mass destruction—weapons that can easily be concealed, delivered covertly, and used without warning...To forestall or prevent such hostile acts by our adversaries, the United states will, if necessary, act preemptively...[W]e will not hesitate to act alone [i.e., without the authorization of the Security Council] if necessary, to exercise the right to self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country. ²⁷

International lawyers would not agree with this assertion. First, international law by definition does not recognise "for centuries" the right to preemptive strikes, since until the end of World War One, it did not even limit the use of armed force. Thus the question of legality could not even arise. Any state, on any pretext, had the right to launch a war against any other state. Second, the total prohibition of launching a war was provided for the first time by the 1928 Kellog-Briand Pact. This made no mention whatsoever of the legitimacy of preemptive strikes, but purely stated that the contracting parties "renounce [the war] for the solution of international controversies and renounce it as an instrument of national policy in their relations with each other". ²⁸ Third, the 1945 UN Charter, as it was mentioned before, prohibits any kind of "threat or use of force", regardless its purpose. Fourth, while the Charter recognises the "inherent right" of self-defence, it makes no reference to the right of any state acting in self-defense to preempt an attack. Finally, as it was also mentioned, in terms of the Charter, the UNSC has the exclusive right to determine whether or not the situation in a given state constitutes a threat to international peace and security, as well as to authorise armed sanctions. Thus the United states had no right to invoke the inherent right of self-defence with regard to the attack against Iraq. Interestingly enough, the U.S. referred to its right of self-defence in general terms only during the days immediately preceding the war and did not mention the concept of preemptive self-defence. Oddly enough, Great Britain never invoked this argument. As far as other states are concerned, they never referred to this concept either. ²⁹

My conclusion is that the notion of preemptive war has never been a part of the international legal order, and the international community does not recognize it. However, the air campaign against Yugoslavia and the invasion of Iraq could not be compared in every respect. The campaign has had its justification or casus belli. The international community perceived an imminent threat in 1999 of ethnic cleansing or even genocide by the military and police forces of Milosevic. It constituted also a threat to the international peace and security. In the case of Iraq no such a threat has been perceived by the international community, and the casus belli has been missing.

 

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Endnotes

Note 1: Quoted by Bruno Simma, "NATO, the UN and the Use of Force: Legal Aspects." European Journal of International Law, Vol. 10, No. 1., 1999. p. 7. Back

Note 2: Ibid. Back

Note 3: See W. Michael Reisman, "Kosovo's Antinomies", American Journal of Inetrational Law, Vol. 93, No. 4, October 1999, 862., Jonathan I. Charney, "Anticipatory Humanitarian Intervention in Kosovo", ibid., 838-839. Back

Note 4: See e.g. Daniel Thürer, "Der Kosovo-Konflikt im Lichte des Völkerrechts: Von drei &-; echten und scheinbaren – Dilemmata", Archiv des Völkerrechts, Band 38, Heft 1, March 2000; Catherine Guicherd, "International Law and the War in Kosovo". Survival, vol. 4, no 2, Summer 1999.; Christopher Greenwood, "Kosovo and the Humanitarian Intervention". The Guardian, 28 March 1999. Back

Note 5: "Humanitarian Intervention: Legal and Political Aspects." Danish Institute of International Affairs, Copenhagen, 1999. p. 79. Back

Note 6: Hanspeter Neuhold, "Die 'Operation Allied Force' der NATO: rechtmä§ige humanitäre Intervention oder politisch vertretbarer Rechtsbruch?" In Erich Reiter (Hrsg.), Der Krieg um das Kosovo 1998/99. Mainz, v. Hase & Koehler Verlag, 2000, p. 200. Back

Note 7: See for example Peter W. Rodman, "The Fallout from Kosovo", Foreign Affairs, Vol. 78, No. 4, October 1999, p. 46. Back

Note 8: Daniel Thürer, "Der Kosovo-Konflikt im Lichte des Völkerrechts: Von drei – echten und scheinbaren – Dilemmata." Archiv des Völkerrechts, Band 38, Heft 1, March 2000, p. 7-8. Back

Note 9: Apart from textbooks see Neuhold, op. cit., p. 200., Charney, op. cit., p. 836, Humanitarian Intervention, op. cit., p. 88-90. Back

Note 10: Neuhold, op. cit., p. 200. Back

Note 11: Simma, op. cit., pp. 1-22, Antonio Cassese, op. cit., pp. 23-31. Back

Note 12: Alain Pellet, No, This is not War! The Attack on the World Trade Center: Legal Responses. Discussion Forum, European Journal of Interntional Law. www.ejil.org/forum, 3 October 2001. Back

Note 13: Antonio Cassese, Terrorism is also Disrupting Some Crucial Legal Categories of International Law. The Attack on the World Trade Center...op.cit. Back

Note 14: Pierre-Marie Dupuy, The Law after the Destruction of Towers. The Attack on the World Trade Center...op. cit. Back

Note 15: UN General Assembly Resolution 3314 (XXIX) on the definition of aggression, Art. 3(g) (emphasis added). Back

Note 16: Article 3(b) and (d). Back

Note 17: Statement by the North Atlantic Council. Press Release (2001) 124, 12 September 2001. Back

Note 18: Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001. Back

Note 19: Compare the wording of Article 2(4) of the UN Charta: "...inconsistent with the Purposes of the United Nations". Back

Note 20: Statement by NATO Secretary General, Lord Robertson. NATO Update, 2 October 2001. Back

Note 21: Statement to the Press by NATO Secretary General Lord Robertson on Implementation of Article 5 of the Washington Treaty following the 11 September Attacks against the United States. NATO HQ. 4 October 1991. Back

Note 22: Nagy Boldizsár: Önvédelem, háború, jog (Self-defence, War, Law). Élet és Irodalom, 28 September 2001, p. 3. Back

Note 23: Pellet: op. cit. Back

Note 24: Cassese, op. cit. Back

Note 25: Ibid. Back

Note 26: Cassese: op. cit. Back

Note 27: The National Security Strategy of the United Sates of America. Washington, September 2002, p. 15, 6. Back

Note 28: General Treaty for the Renunciation of War as an Instrument of National Policy. Signed in Paris on August 27, 1928, Art. 1. Back

Note 29: Only a German international lawyer with military background was so far who shared the American considerations with regard to preventive war. See Armin A. Steinkamm, „Der Irak-Krieg – auch völkerrechtlich eine neue Dimension: Unumgängliche Diskussion über das Recht der preväntiven Verteidigung." Neue Zürcher Zeitung, May 16, 2003.) Back

Note 1: _note_ Back