The Development of the Right of Self-Defence: In the Aftermath of September 11
Abstract: The incidents of September 11, 2001, and the US response raised several important issues under international law regarding the use of force. The attacks against the World Trade Center and Pentagon were crimes against humanity as well as violation of the use of force in the United Nations Charter Article 2(4). Instead of Chapter VII measures through the Security Council, the US asserted that its use of force in Afghanistan constituted a lawful exercise of self-defence according to Article 51 in the United Nations Charter and customary law. According to the Nicaragua Case one must consider the scale of actions that might constitute an ''armed attack'' to be able to define whether September 11 attacks constituted ''armed attacks''. At the low end of the scale are the use of force actions, such as non state actors operating in isolated incidents, for example terrorist attacks and conventional criminal acts. For sure it is an obscure connection of the hijackers with the Al Qaeda and with the Al Qaeda with the unrecognised government of Taliban. As such, these incidents clearly were not taken directly by the government of one state against the United States. What the US did was to make no distinction between terrorism and those who harbour them, which has been consented silently by the international community. On the other hand the scale of actions was certainly a kind to that of a military attack. The destruction were worse than Pearl Harbour and United States deaths on the same scale in a single day requires going back to the US' civil war. According to International Law every State has an obligation to do what is necessary to prevent its territory from being used for launching terrorist attacks on another state's territory. When terrorist activities for which a state is responsible are of sufficient magnitude, they may constitute a use of force against territorial integrity as well as an ''aggression'' and even amount to an ''armed attack''. The US response might also suggest a new development of the right of anticipatory self-defence, which is indicated by the US' letter to the Security Council, October 7. The Security Council Resolutions 1368 and 1373 did not constitute ''necessary measures to maintain international security'' according to Article 51. To freeze finanzial assets could hardly be enough to maintain international peace and security and it is up to the international community to decide the extension of ''inherent'' right of self-defence. Article 51 was meant to be of a temporary nature.
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