Self-defence against terrorism

Abstract: The first condition for the legal use of force in self-defence is that the state exercising this right is the victim of an armed attack. Typically, an armed attack is carried out across the frontier of the aggressor state into the territory of the victim state. Armed attacks can also be launched from third states, as well as not involve the territory of any other state than the aggressor state. Defence must be the objective when force is used in self-defence. Self-defence in the face of an imminent armed attack may be justifiable, but a doctrine of pre-emptive self-defence may cause states to accelerate their arms development or launch a pre-emptive strike of its own simply to avoid being pre-empted by another state. Article 51 of the UN Charter does not specify that the armed attack has to originate from a state&semic this may however be understood as an implied condition since the UN Charter is a treaty and as such only binding on the states-signatories. The acts of self-defence undertaken in the Caroline incident were directed at non-state actors. To claim a general right to attack a terrorist group on the territory of another state is however quite controversial. The principle of non-intervention prohibits a state to in any way intervene into the affairs of another state. For a right of self-defence to exist, there must be state responsibility. Private conduct can normally not be attributed to a state but there are situations in which a state can become responsible under international law. Articles 8 and 11 of the ILC Articles on State Responsibility attribute to states acts which the state directed or controlled and acts which have subsequently been endorsed by a state. These rules confirm previous ICJ practice in Nicaragua, Tadic and Tehran Hostages cases. The duty to report the intention to use self-defence to the Security Council is compulsory, and failure to comply would preclude a state from invoking self-defence. The prohibition of the use of force, as formulated in article 2.4 of the UN Charter is an integral part of customary law and binding on all states. Article 51 does not regulate all aspects of the right of self-defence, and customary law may be seen as a complement regarding some of these aspects. The United States immediately perceived the 11 September events as an armed attack, an act of war. The Security Council received a report from the United States stating that it was the victim of armed attacks by al Qaeda and that the US would respond in self-defence. The American interpretation of the terrorist attacks as armed attacks was largely accepted by other states, and the North Atlantic Council also regarded the terrorist acts as an armed attack. Since the attack on 11 September was completed when Operation Enduring Freedom was launched the US would have to prove that the 11September attack was part of a set of attacks and that the threat of future attacks was real and imminent. Without evidence of more direct Taliban involvement in specific al Qaeda actions, there is no responsibility for an armed attack on behalf of the state of Afghanistan, and consequently self-defence may not be directed at that state. Security Council Resolutions 1368 and 1373 reaffirm the inherent right to self-defence. The Security Council does not however speak of an armed attack but refers to the 11 September events as terrorist attacks, not expressly linking this concept to the reference to the right to self-defence. The members of the Security Council, the members of NATO, and every other state which has not objected to the use of self-defence may seem to have accepted that the right of self-defence now arises not only following armed attacks by states, but also by terrorist organizations. Expanding the right of self-defence may however create more problems than solutions, if it is at all possible. Before 11 September, few states were willing to accept a right of forceful self-defence against a state where there was no complicity in the terrorist acts by the state. As a response to attacks subsequent to 11 September, Security Council resolutions have not made any reference to the right of self-defence and have stressed the importance of peaceful means of combating terrorism, and this can be seen as a strong indication that the right to use force against completed terrorist attacks remains exceptional and that there is no right of pre-emptive self-defence. The prohibition of the use of force is jus cogens and as an exception to this prohibition, the right of self-defence should be regarded as part of jus cogens. Since the UN Charter articles 2.4 and 51 represent a codification of existing jus cogens, alterations of them will have to be in line with the customary jus cogens or they will be void ab initio. Consequently, any alterations and interpretations widening the scope of article 51 may be very unlikely to occur, especially in a short period of time. If one regards the right to self-defence as jus cogens, article 51, or for that matter article 2.4, may of course not be interpreted contrary to the content of the customary jus cogens rule. If the right of self-defence is not jus cogens, subsequent state practice may widen the scope of article 51, but a considerable amount of state practice would be needed to substantiate such an interpretation. Global terrorism is a new phenomenon, and as such it poses new problems to the international community. The Security Council has acknowledged that terrorism is a threat to peace and security and thus action can be taken under Chapter VII. Existing conventions on terrorism do not encompass the use of force, but treat terrorism as a crime for which the perpetrators must be held accountable. A thirteenth global convention, the International Convention for the Suppression of Acts of Nuclear Terrorism, was adopted by the General Assembly in April 2005, and a Draft Comprehensive Convention on International Terrorism is currently being drafted.