UN Charter Article 51 and the Right to ‘Anticipatory Self-defense’: Validity of the US Preventive War Doctrine against Al Qaeda
2014; Taylor & Francis; Volume: 23; Issue: 1 Linguagem: Inglês
10.1080/19436149.2014.896595
ISSN1943-6157
Autores Tópico(s)War, Ethics, and Justification
ResumoAbstractThis article investigates whether the US war against Al Qaeda in Afghanistan is a customary 'inherent right' under the right to force doctrine as codified in Article 51 of the UN Charter. While its fool-proof nucleus covers national states inter partes relations, the provision's applicability to non-governmental organizations (NGOs) is unclear, especially in cases of conflicts, where a NGO is a party in an international conflict, such as the US-Al Qaeda conflict in Afghanistan. Because Article 51's foundation is in 'a defensive strategy,' states that deploy military troops across borders under the cover of self-defense must notify the UN Security Council immediately and must justify their actions. The distinction between armed attack and armed defense is the most important element defining the legality of a state's conduct. However, the Article 51 inherent right of self-defense arises solely to protect against 'armed attacks,' and under international law, an 'armed attack' alone triggers the right of self-defense. This raises the question as to whether a terrorist attack undertaken by a NGO qualifies as an armed attack? What guidance do the UN Security Council resolutions of September 2001 provide to support the US claim of anticipatory self-defense, as they do not invoke the notions of war, armed attack, or military measures, as they refer only to 'terrorist attack,' a term that is not a defined and internationally accepted term of war?Keywords:: AfghanistanAl QaidaAnticipatory Self-Defensearmed attackdefensive strategynon-governmental organizationterrorist attackUN Charter Article 51United States Notes 1 Judicial Decisions, Judgments and sentences (1947) October 1, 1946, American Journal of International Law p. 186. 2 Hereunder several EU Member States, as well as Albania, Bosnia & Herzegovina, Croatia, Georgia, Iceland, Macedonia, Norway, Turkey and Ukraine. 3 See Circle of Women, project Wonkhai. Available at http://www.circleofwomen.org/project_wonkhai.html, accessed October 8, 2010. 4 William Maley (ed.) (Citation2001) Fundamentalism reborn? Afghanistan and the Taliban (London: C. Hurst), see esp. the chapter by Oliver Roy, Has Islamism a future in Afghanistan?, pp. 199–211. 5 See Agreement on Provisional Arrangements in Afghanistan pending the re-establishment of permanent government institutions, Bonn Conference, December 2001, Annex I, paragraph 1. 6 Security Council (SC) Resolution 1386 (2001) December 20, 2001 paragraph 1. In August 2003 the the NATO took command of ISAF and soon after, the UN were 'noticing' a NATO letter of 6. October 2003 that informed of the ISAF expansion of the mission outside of Kabul. 7 See John Lewis Gaddis (Citation2005) Surprise, Security, and the American Experience (Cambridge: Harvard University Press) in which he investigates the roots of the G. W. Bush doctrine. 8 As illustrated by the Bertram Russell article on the 'first strike strategy' in the October 1945 issue of the British magazine Cavalcade; see further William Poundstone (Citation1993) Prisoner's Dilemma (New York: Anchor Books/Doubleday), p. 78. 9 See, i.e., Jack Goldsmith & Eric Posner (Citation2005) The Limits of International Law (Oxford: Oxford University Press); and idem, Response, The New International Law Scholarship (Citation2006) in Georgia Journal of International and Comparative Law, 34, p. 463. 10 The position of Princeton professor, CitationRichard Falk, 'A Just Response,' in The Nation October 8, 2001; and idem, 'CitationDefining a Just War,' The Nation, October 29, 2001. 11 As advocated, for example, by the Norwegian Foreign Minister Jan Petersen in the Norwegian Parliament Stortinget on December 12, 2001, 'Det folkerettslige grunnlaget for Norges militære deltakelse i Afghanistan er (…) bygd på utøvelsen av kollektivt selvforsvar, som bekreftet i Sikkerhetsrådets resolusjon 1368.' [The Norwegian military engagement in Afghanistan is legally justified under international law, in casu under collective self-defense as confirmed by S.C. Res. 1368]. 12 The Global Policy Forum: 'On October 7, 2001, the United States and its allies launched military strikes against the Taliban regime in retaliation for the terrorist attacks on the World Trade Center. Available at http://www.globalpolicy.org/security/issues/afgindx.htm. 13 Noam Chomsky (Citation2001) A Quick Reaction to the Attack on America, Counterpunch, September 12, 2001. 14 Available at http://www.ipsnews.net/news.asp?idnews = 41893 15 Louis Henkin (Citation1971) The Reports of the Death of Article 2(4) Are Greatly Exaggerated, American Journal of International Law, 65, p. 544. 16 SC Resolution 1368/2001 and 1373/2001. 17 A concept that is borrowed from Jordan J. Paust (1984) Transnational Freedom of Speech: Legal Aspects of the Helsinki Final Act, Law and Contemporary Problems, 45, pp. 53, 55. 18 Oscar Schachter (Citation1989) Self-Defense and the Rule of Law, American Journal of International Law, 83, pp. 259, 273. 19 See, e.g., Mary Ellen O'Connell (2002) The Myth of Pre-emptive Self-Defense, The American Society of International Law, Task Force on Terrorism; cf. Michael Byers (Citation2005) War Law: Understanding International Law and Armed Conflict (New York: Grove Press), pp. 68–81. 20 General Assembly Res. 3314 (XXIX) (1974). 21 As in, i.e., SC Res. 135 [S/4328] (of May 27, 1960), Relations between the Great Powers. 22 Military and Paramilitary Activities in and Against Nicaragua; Nicaragua vs. United States, 1986 I.C.J.14. 23 Ibid. 24 Oscar Schachter (Citation1991) International Law in Theory and Practice (Dordrecht, Netherlands: M. Nijhoff), p. 146. 25 Statute of the International Court of Justice (1945), 59 Stat. 1055, art. 38(1)(b). 26 A critique of the legality is, i.e., Francis Boyle (Citation2004) Destroying World Order (Atlanta GA: Clarity Press). For a more supportive view, see e.g., Said Mahmodi, Self-Defence and International Terrorism, in O. Bring & S. Mahmodi (Citation2005) Internationell våldsanvänding och folkrätt (Stockholm: Norstedts Juridik), pp. 167–180, and 137–141. 27 For the school of restrictive interpretation of Article 51, see Ian Brownlie (Citation1962) The Use of Force in Self-Defence British Yearbook of International Law, 37, pp. 183–268, see esp. p. 245. For a later confirmation of this position, see I. Brownlie (Citation2001) International Law and the Use of Force by States Revisited, The Australian Yearbook of International Law, 21, pp. 21–37. A representative example of the more extensive direction is Miriam Sapiro (Citation2005) Pre-empting Prevention: Lessons Learned, in New York Journal of International Law and Politics, pp. 357–371. For a comparison of the two opposing schools, see Josef Mrazek (Citation1989) Prohibition of the Use and Threat of Force: Self-Defence and Self-help in International Law, in The Canadian Yearbook of International Law, 27, pp. 81–111. 28 As an illustration of UN practice, see the SC res.262 (Israeli destruction of 5 airplanes in Beirut). 29 Which also is the US position as stated in 1974 by acting Secretary of State Kenneth Rush in the American Journal of International Law, pp. 736ff. 30 For a clear explanation of and differentiation between anticipatory self-defense and jus ad bellum, see Byers, War Law, p. 115. 31 John Lewis Gaddis (2005) Surprise, Security, and the American Experience (Cambridge: Harvard University Press). 32 J. D. Negroponte (Citation2001) Letter dated October 7, 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, S/2001/946. 33 Bush Presidential Address to the Nation, Office of the Press Secretary, October 7, 2001. Available at http://www.whitehouse.gov/news/releases/2001/10/200111007-8.html. 34 Available at http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html. 35 Available at http://www.whitehouse.gov/news/releases/2001/09/20010912-4.html. 36 Ari Fleischer. Available at http://www.whitehouse.gov/news/releases/2001/09/20010917-8.html. 37 Suzanne Daley (Citation2001) A Nation Challenged: The Evidence: NATO Says U.S. Has Proof Against bin Laden Group, in The New York Times, October 3, 2001. 38 Tom Shanker (Citation2001) A Nation Challenged: The Allies; Rumsfeld Asks NATO to Shift to Wide Fight Against Terror, in The New York Times, December 19, 2001 (quoting President George W. Bush). 39 President's Letter to Congress on American Response to Terrorism. Available at http://www.whitehouse.gov/news/releases/2001/10/20011009-6.html, accessed May 14, 2005; now available at http://avalon.law.yale.edu/sept11/president_040.asp, accessed October 13, 2013. 40 Shanker, A Nation Challenged. 41 Boyle, Destroying World Order, p. 124. 42 North Atlantic Treaty Organization, April 4, 1949, 34 U.N.T.S., p. 243. 43 Shanker, A Nation Challenged. 44 Steven Erlander (Citation2001) A Nation Challenged: The Alliance; So Far, Europe Breathes Easier Over Free Hand Given the U.S., The New York Times, September 29, 2001, p. 1 (quoting Rob de Wijk, head of research at the Royal Netherlands Military Academy). 45 Human Rights Watch (2008) Afghanistan: Civilian Deaths From Airstrikes Cause Public Backlash, Undermine Protection Efforts, September 7, 2008. Available at http://www.hrw.org/en/news/2008/09/07/afghanistan-civilian-deaths-airstrikes, accessed October 14, 2013. 46 Ruth Walker (Citation2008) Is Afghanistan Lost? Panelists ask for clarity in U.S. policy. Harvard University Gazette online, December 11, 2008. Available at http://www.news.harvard.edu/gazette/2008/12.11/11-afghanistan.html, accessed June 2, 2011. 47 There Is No 'War on Terror,' Global Research, January 21, 2008. 48 Noam Chomsky (Citation2010) China and the New World Order, In These Times, September 2, 2010. 49 Also called 'the Bush Doctrine;' see further Byers, War Law, p. 8. 50 A readable article on the Afghan propaganda war is Frederic Megret (Citation2002) 'War'? Legal Semantics and the Move to Violence, European Journal of International Law, vol. 13, pp. 361–399. 51 Daley, A Nation Challenged. 52 For examples of condemnation issued by non-security council member states, see SC Res. 302 (1971) and Res. 321 (1972) (Senegal complaint against Portugal); Indonesia in the case of East-Timor (SC Res. 384 (1975) and Res. 389 (1976); Israel on the Occupation of Palestinian and Arab territories (SC Res. 592 (1986), Res. 605 (1987), Res. 607 & 608 (1988), Res. 636 & 641 (1989): 'Deplores the deportation,' SC Res. 726 & 799 (1992) 'strongly condemns' the Israeli 1985 attack against the PLO-headquarters in Tunisia, a 'flagrant violation of the Charter' SC Res. 573 (1985), and Res. 611 (1988): 'Condemns vigorously.' Strong condemnation was delivered in the case of the Israeli 1981 operation against Iraq's Osirak nuclear reactor (SC Res. 660, 662); the Iraqi attack on Kuwait (SC Res. 674, 677, 678 (1990); and SC Res 1067 (1996) 'condemns' the Cuban 'shooting down' of two civil aircraft. 53 For the importance of the Central and Eastern Europe regional ethos and archetypes, see Peter Ørebech (Citation2012) The rebus sic stantibus balancing of pacta sunt servanda: Is regional ethos and archetypes the only 'essential basis of consent?' in B. Melkevik (ed.), Law and philosophy in the XXI century: Festschrift for Csaba Varga (Budapest: Pásmany Press), pp. 269–290. 54 SC Res. 120 (1956) [S/3733]. 55 One of the few illustrations of the opposite is SC Res. 616 (1988) on the US downing of an Iranian civil aircraft over Hormuz Strait; c.f. the concept of 'deep distress.' 56 See Nicaragua Case, Nicaragua vs. United States, 1986 I.C.J.14. 57 As illustrated in Michael Mandel (Citation2004) How America Gets Away with Murder: Illegal wars, collateral damage, and crimes against humanity (London: Pluto Press). 58 Ibid, pp. 46–56. 59 Citation taken from Megret, 'War'?, p. 4. 60 Which is CitationAnne-Marie Slaughter's position in 'A Defining Moment in the Parsing of War,' Washington Post, September 16, 2001. 61 US Secretary of State Noah Webster in a communication to the British Minister, August 6, 1842, as referenced in 2 Moore, Digest of International Law, (1906), p. 412, in relation to the 1837 US-Canada dispute over the sabotage of the MS Caroline. 62 Bertram Russell in the October 1945 issue of the British magazine Cavalcade, as referenced in Poundstone, Prisoner's Dilemma, pp. 78–81. 63 See Samantha Power at Harvard University Carr Center for Human Rights Policy, where she called for '[r]evamping our approach to terrorism' and 'recapturing hearts and minds.' Available at http://www.nytimes.com/2007/07/29/books/review/Power-t.html?pagewanted = all&_r = 0, accessed October 13, 2013. 64 According to Gallup International, 54% of Americans supported the war in Afghanistan. Available at http://www.peace.ca/galluppollonterrorism.htm, accessed September 28, 2013. 65 Out of 37 countries surveyed by Gallup International, 34 countries opposed a US military attack on Afghanistan. Available at http://www.peace.ca/galluppollonterrorism.htm, accessed September 28, 2013. The Pakistanis, who originally supported the Afghan campaign, changed their minds, as a Gallup International poll sponsored by Newsweek in the early days after the start of the US war found that 'Eighty-three percent of Pakistanis surveyed say they side with the Taliban, with a mere 3 percent expressing support for the United States;' see 'Shifting Sympathies,' Newsweek Web Exclusive, October 18, 2001. Available at http://www.msnbc.msn.com/id/3067526/), accessed November 22, 2009. 66 To gain momentum from the reactions to the Nazi effort to conceal the extermination camps, see Theo Tschuy (Citation2000) Dangerous Diplomacy: The story of Carl Lutz, rescuer of 62,000 Hungarian Jews (Cambridge, UK: Eerdmans Publishing Co.), p. 142. 67 Wolfgang Friedmann (Citation1964) The Changing Structure of International Law (New York: Columbia University Press), pp. 259–260. 68 The idea which was introduced by Lord Bertram Russell in October 1945 and entered the American public consciousness in 1947; see further Poundstone, Prisoner's Dilemma, pp. 78–81. 69 This is the position of Louis Henkin (Citation1963) Force, Intervention and Neutrality in Contemporary International Law, Proceedings of the American Society of International Law, pp. 147–150. 70 A. Jessup (Citation1948) Modern Law of Nations (New York: MacMillan Company), p. 166. 71 See, e.g., Mary Ellen O'Connell (Citation2002) The Myth of Pre-emptive Self-Defense, in The American Society of International Law, Task Force on Terrorism (August 2002). 72 Ibid. 73 Ian Brownlie (2001) International Law and the Use of Force by States Revisited, The Australian Yearbook of International Law, 21, pp. 21–37. 74 Schachter, International Law, p. 141. 75 See, i.e., SC Res. 135 [S/4328] (27 May 1960) – Relations between the Great Powers. 76 General Treaty for the Renunciation of War, proclaimed August 27, 1928, and entered into force, July 24, 1929, 94 L.N.T.S. 77 Ibid, at art. 1. 78 Ibid, at art. 2. 79 UN Charter, Preamble. 80 As explained by Byers, War Law, pp. 116–117. 81 Harold Maier (1982) Extraterritorial Jurisdiction at a Crossroad: The Intersection Between Public and Private International Law, American Journal of International Law, 76, pp. 280, 300–301. 82 Byers, War Law, p. 64. 83 Yoram Dinstein (Citation1994) War Aggression and Self-Defense, 2nd ed (Cambridge: Grotius Publications Ltd), p. 190. 84 The US Secretary of State, Noah Webster in a communication to the British Minister, 6 August 1842, as referenced in 2 Moore, Digest of International Law (1906), p. 412, in relation to the 1837 U.S.-Canada border dispute, which was combed by the sabotage of the MS Caroline. 85 According to Radio Voice of Shari'ah in Mazar-e Sharif, the capital of Balkh province in northern Afghanistan, 'senior officials' of the Taliban released a statement as early as September 13, 2001 in which they 'honestly asked America to give clear and substantial evidence for why it considers Usmah to be responsible for, and the [Taliban] will hand him over to one of the Islamic courts of the world in order to be tried. The stance of the [Taliban] is clear in this regard. Otherwise, nobody can accuse others by bringing false and groundless allegations.' In the same statement, the Taliban 'condemn' the events of 9/11, calling them 'against the welfare and interests of the world.' The Taliban also 'expresses its sympathy for the American people,' adding that it 'expects the U.S. not to resort to irreparable measures before discovering the facts.' ('Afghan Taleban ready to hand Bin-Laden to Islamic court if U.S. provides evidence – radio,' BBC Monitoring Central Asia, September 13, 2001.) News of this and subsequent offers communicated by Wakil Ahmed Muttawakil, the Taliban's foreign minister, and by Abdul Salam Zaeef, the Taliban's ambassador to Pakistan, were reported by Reuters, The Herald (Glasgow), The New York Times, the Washington Post, the International Herald Tribune, the Boston Globe, and The Independent (London). This information is taken from the website: http://www.informationclearinghouse.info/article19117.htm#_ednref15, accessed September 17, 2009. 86 For a general discussion see, Dinstein, War aggression. 87 The chief prosecutor in the Nuremberg war crimes trials against the Nazi extermination squads, The UN Chronicle Online Edition. Available at http://www.un.org/Pubs/chronicle/2005/issue4/0405p03.html, accessed October 14, 2013. 88 Schachter, International Law, p. 142. 89 R. Jennings & A. Watts (Citation1992) Oppenheim's International Law, 9th ed. (London: Longman), p. 422. 90 Available at http://www.whitehouse.gov/news/releases/2001/10/20011007-8.html#, accessed November 3, 2005. 91 General Assembly Res. 3314 (XXIX) (1974), Article 1(emphasis added). 92 The ICJ Nicaragua Case, Nicaragua vs. United States, 1986 I.C.J.14. 93 The 9/11 Commission Report. 'Final Report of the National Commission on Terrorist Attacks Upon the United States,' Executive Summary, p. 7. 94 Ian Brownlie, International Law and the use of force, p. 372. 95 Nicaragua v. United States, 1986 I.C.J.14. p. 237. 96 Schachter, International Law, p. 145. 97 Ibid, p. 146. 98 Ian Brownlie (1963) International Law and the use of force, p. 373. 99 Wolfgang Friedmann (1964) The Changing Structure of International Law (New York: Columbia University Press), pp. 259–260.100 Schachter, Self-Defense and the Rule of Law, p. 271.101 Schachter, International Law, p. 143.102 Which it was not, as documented by The 9/11 Commission Report. Final Report of the National Commission on Terrorist Attacks Upon the United States, Executive Summary, p. 7.103 Schachter, Self-Defense and the Rule of Law, p. 277.104 Leo Gross (Citation1960), Book review: D. W. Bowett, Self-Defense in International Law in American Journal of International Law, 54 (Jan. 1960), pp. 199, 200.105 Schachter, Self-Defense and the Rule of Law, p. 273.106 I.C.J. Nicaragua Case, Nicaragua v. United States, 1986 I.C.J.14, p. 195.107 UN Charter, Art. 41.108 B. Russell in the October 1945 issue of the British magazine Cavalcade, as referenced in Poundstone, Prisoner's Dilemma, p. 78.109 As illustrated by Norwegian Minister of Foreign Affairs, Jan Petersen, in a speech to the Norwegian Parliament (Stortinget), December 12, 2001.110 Marc Cogen (Citation2001) The Impact of International Humanitarian Law on Current Security Policy Trends. The Bruges Colloquium of October 26–27, 2001. Available at http://www.crimesofwar.org/expert/attack-cogen.html#top, accessed December 3, 2007.111 SC Res. 678 (1990) of November 29, 1990.112 China abstained from voting. For more information, see Boyle, Destroying World Order, p. 4.113 SC Res. 677 (1990) of November 28, 1990.114 SC Res. 661 (1990) of August 6, 1990.
Referência(s)