How the war against ISIS changed international law.

Author:Scharf, Michael P.
Position:IV. The Changing Law of Self-Defense Against Non-State Actors B. Did the 9/11 Attacks Alter the Paradigm? 2. The International Response to 9/11 through V. Conclusion, with footnotes, p. 40-67 - New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration
  1. The International Response to 9/11

    The day after the 9/11 attacks, the United States informed the UN Security Council that it had been the victim of an armed attack and declared its intent to respond under Article 51 of the UN Charter. (131) The North Atlantic Treaty Organization (NATO) for the first time in its history invoked Article 5 of the North Atlantic Treaty, which treats an armed attack on one member as an armed attack on all of them. (132) The Organization of American States (OAS) took a similar stance in OAS Resolution 797. Invoking the 1947 Inter-American Treaty of Reciprocal Assistance, which provides that in the event of an armed attack on an American State, the Parties agreed that "each one of [them] undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense," (133) the OAS called upon "the government of the member States and all other governments to use all necessary means at their disposal to pursue, capture, and punish those responsible for the attacks, and to prevent additional attacks." (134) Meanwhile the United States and Australia jointly invoked the collective defense article of the ANZUS Treaty, which provides for the parties to collectively "resist armed attack" and "act to meet the common danger." (135) In addition, the Japanese government took the position that the September 11th attack was an attack on the United States, and soon thereafter enacted legislation to enable Japan to deploy its forces in support of U.S. operations against al-Qaeda. (136)

    Consistent with these developments, the Security Council adopted Resolution 1368, which condemned the 9/11 attacks and "recognize [ed] the inherent right of individual or collective self-defense in accordance with the Charter." (137) This action was not a Chapter VII authorization to use force, but rather a confirmation that the United States could invoke its right to respond with force under Article 51 of the UN Charter, despite the fact that al-Qaeda was a non-state actor. Consistent with that right, on October 7, 2001, the United States informed the Council that it had launched Operation Enduring Freedom. (138) Air strikes were directed at camps allegedly belonging to al-Qaeda and other Taliban military targets throughout Afghanistan. There was no international protest or condemnation of the operation; (139) rather, through word and actions, a long list of States expressed support for the operation. (140)

    Had al-Qaeda been a State, its attacks (both in the aggregate but also some of the most spectacular individual attacks) would have passed the "scale and effect" test of the Nicaragua Case. But as a non-state actor based in Afghanistan, under the Nicaragua precedent, use of force against al-Qaeda in Afghanistan would only be permissible if the Taliban government of Afghanistan had "effective control" of the terrorist organization. (141)

    Many commentators believe that Afghanistan met the Nicaragua test of effective control because the Taliban and al-Qaeda were in effect partners. (142) Yet, the facts do not establish that al-Qaeda acted as an agent or instrumentality of the Afghan State, but rather that al-Qaeda pursued an independent agenda and acted autonomously within Afghanistan. (143) Neither did the Taliban government of Afghanistan endorse the September 11th attacks. (144) Rather, Taliban officials denied that bin Laden had anything to do with the attack, asserting that "bin Laden lacked the capability to pull off large-scale attacks," and proclaiming their confidence that a U.S. investigation would find him innocent. (145)

    On the other hand, the Taliban government knowingly harbored al-Qaeda, providing its members a place of refuge and allowing the organization to use Afghanistan as a base from which to plan, sponsor, and launch international terrorist operations. (146) The Taliban government repeatedly ignored the Security Council's demands to close down the terrorist training facilities in Afghanistan and extradite bin Laden, thereby enabling al-Qaeda to represent a continuing threat to the United States. (147)

  2. The Bush Doctrine

    A week after the terrorist attacks of 9/11, the United States announced the "Bush Doctrine" when President George Bush declared: "Our war on terror begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.... Either you are with us or you are with the terrorists." (148) The most important aspect of the Doctrine was encapsulated in Bush's statement that "we will make no distinction between the terrorists who committed these acts and those who harbor them." (149) In a speech before a joint session of Congress on September 20, 2001, President Bush said, "[f]rom this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime." (150)

    In the words of White House spokesman Ari Fleisher, the Bush Doctrine represented "a dramatic change in American policy." (151) Yet, in a five-day debate in the United Nations General Assembly, where State after State condemned the 9/11 attacks, not one objection was voiced to the newly announced U.S. policy. (152)

    Although it represented a clear departure from the Nicaragua Case, the Bush Doctrine was rooted in historic provenance. The general affirmative obligation that every State not knowingly allow "its territory to be used for acts contrary to the rights of other States" was first articulated by the International Court of Justice in the 1949 Corfu Channel Case. (153) There, the ICJ held Albania liable for damage to British warships that struck mines in Albanian territorial waters. (154) Although Great Britain could not prove that Albania had laid the mines or had engaged another State to do so, the ICJ found that Albania must have known of the existence of the mines because Albania was known to have jealously guarded its side of the Corfu Strait, and this was enough to establish Albania's liability. (155)

    This principle is analogous to the rules relating to neutrality adopted in the Hague Convention (V) some one hundred years ago. (156) According to the Hague Convention, "neutral powers" may not permit belligerents to move troops, munitions, or supplies across their territory, nor may they allow their territory to be used to form "corps of combatants" nor "recruiting agencies." (157) Should the neutral State prove unwilling or unable to uphold these proscriptions, the other belligerent State is justified in attacking the enemy forces in the territory of the neutral State. (158)

    The application of this concept to terrorism was arguably confirmed by Security Council Resolution 1373, adopted shortly after September 11, 2001. (159) In reaffirming the right of self-defense in the context of the September 11 attacks while at the same time stating that States are prohibited from allowing their territory from being used as a safe haven for terrorist groups, the resolution suggests that allowing known terrorists to operate freely in their territory triggers the right to self-defense against the non-State actors located within the host State's territory.

    Summing up what he considered to be the current state of international law, UN Special Rapporteur Philip Alston stated: "A targeted killing conducted by one State in the territory of a second State does not violate the second State's sovereignty [where] the first, targeting State has a right under international law to use force in self defense under Article 51 of the UN Charter, [and] the second State is unwilling or unable to stop armed attacks against the first State launched from its territory." (160) The fact that the "unwilling or unable" test has its roots in the customary law of neutrality anchors the test's legitimacy as applied to use of force in self-defense against non-state actors present in a foreign country. (161)

    The extent of permissible military action used to combat terrorists in a country unwilling or unable to control them depends on the level of support provided by the harboring State. Consistent with the Hague Convention (V) discussed above, with its precept of proportionality, "[i]f a State does nothing but allow terrorists to operate from its territory, providing no meaningful support, the extent of the permissible military force is only that which is necessary to deal with the terrorist threat itself. Neither the military of the harboring State nor its infrastructure is a permissible target." (162) In such case, there is a distinction between using force in a State and using force against the state itself. (163) A swift, precision strike against terrorists or their training facilities in the territorial State (a so-called "in and out operation") represents a reasonably limited interference with the territorial integrity or political independence of the territorial State under these circumstances. (164) The use of force against the non-state actor taken in self-defense is a lawful use of force, and the territorial State cannot therefore mount a forcible resistance in the name of its own self-defense. (165) If, on the other hand, the territorial State is implicated in the terrorist attack, then the victim State may have the right to use force against the territorial State and its agents, in addition to using it against the non-state actor. (166)

    A more controversial aspect of the Bush Doctrine was its assertion of an expanded right of anticipatory self-defense against terrorist threats. In the National Security Strategy issued in the aftermath of 9/11, President Bush explained:

    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...

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