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Cite as:  Mark P. Popiel, Redrafting the Right of Self-Defense in Response to International Terrorism, 6 Gonz. J. Int’l L. (2002-03), available at http://www.gonzagajil.org.

Redrafting The Right Of Self-Defense In Response To International Terrorism 

 

by: Mark P. Popiel, Esq.l

Overview

This paper is premised on the United Nations Secretary-General Kofi Annan’s address to the General Assembly on September 21, 1998 declaring that “[t]errorism is a global menace, which clearly calls for global action, [however] individual actions by member states, whether aimed at state or non-state actors, cannot by themselves provide a solution.”[1]

Taking into consideration the current influx of terrorism, it is reasonable to regard international terrorism as a “virus of the global community.”  A number of states, like the United States of America, United Kingdom and Canada, have deemed this notion to be the perceived norm.  Accordingly, by broadening its application, these States have elected to use the “right of individual or collective self-defence,”[2] as articulated by Article 51 of the Charter of the United Nations (the “Charter”) as a cure for this global problem.  While for some, this may seem appropriate, one should recognize that the right of self-defense is not without its limitations.[3]  Before hastily drawing conclusions, one should stand back and consider whether the expansion of the right of self-defense, to include ‘terrorist attacks’ as rising to the level of ‘armed attacks,’ is indeed the cure to combating terrorism.

In seeking to resolve this dilemma, this paper examines the right of self-defense as defined under international customary law.  Part I, addresses how international customary law is established. Secondly, Part II explores the circumstances under which use of force and the right of self-defense in permissible. Part III seeks to define “terrorism” through the Charter, treaties, as well as various United Nations resolutions.  Lastly, Part IV considers whether the right of self-defense has been expanded under international customary law?

I.  Establishment Of International Customary Law

In seeking to define international law, one should look to Article 38 of the International Court of Justice (the “ICJ”).[4]  Traditionally, Article 38 has been accepted as the most authoritative expression of the sources of international law.  Accordingly, Article 38 acknowledges that international law arises from international conventions or agreements, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of various nations; however, these are viewed as subsidiary or secondary sources.[5]

For our purposes, however, we will focus on international custom. International custom or international customary law (hereinafter “Customary Law”) “results from a general and consistent practice of states followed by … a sense of legal obligation.”[6]  This is known as opinio juris sive necessitatis also referred to as opinio juris.[7]  Accordingly, Customary Law is made up of two distinct elements “general practice” and “its acceptance as law.”[8]

Consequently, in order for a particular practice to be regarded as Customary Law, it must first be considered by States as a “general practice.”  In defining what constitutes a “general practice,” traditional international law considers whether a particular common practice is “the result of the repetition of individual acts of States constituting consensus in regard to a certain content of a rule of law.”[9]  Traditionally speaking, this process extends over a long period of time, for instance, over centuries.[10] However, in today’s “contemporary age of highly developed techniques of communication and information,” this process has greatly been accelerated, whereby establishment of Customary Law may take “no more than one generation or even less than that” in certain circumstances.[11] 

This hastening may be attributable to the formation of numerous international institutions which have greatly facilitated international relations in recent times, and which consequently have lead to the establishment of numerous international agreements. [12] As evidenced by the Restatement (Third) of the Foreign Relations Law of the United States, such international agreements may lead to the creation of Customary Law upon gaining wide acceptance.[13]

Moreover, as will be addressed later in this paper, “[c]ontemporary approaches adopted by the ICJ suggest that opinio juris may [also] be construed from the attitude of States toward the adopted text of the United Nations Resolutions, regardless of whether or not the new obligation is a previously existing treaty obligation.”[14]  Therefore, it is reasonable to presume that “general practice” may be established through numerous means.     

Secondly, as a necessary ingredient in the formation of Customary Law, States must also possess a “sense of legal obligation” in adhering to certain legal principles.[15]  In the words of the late English jurist J. L. Brierly, “international law is the sum of the rules by which states have consented to be bound, and that nothing can be law to which they have not consented.”[16] 

As a result, Customary Law must be authoritative.[17]  It must be regarded as a legitimate norm that is considered binding law.[18] As such, this norm should control state behavior by having them comply with the requirements of that particular norm.[19]  One must be aware, however, that neither “[one-hundred percent] compliance nor a [one-hundred percent] perception of authority is required for … a rule to constitute authentic [Customary Law].”[20] All that is needed to establish Customary Law is a “general perception of authority and regular, wide-spread compliance.”[21]               

II.  Legality Of Use Of Force

The legality of use of force, or more generally, when force may lawfully be used under international law, has been expressed as jus ad bellum.[22]  In examining the circumstances under which use of force, or more specifically, the right of self-defense is permissible to combating terrorism, one must first apprehend the fundamental function of international law.

As Louis Henkin stated, “[v]iolence is not a term known to international law. It is not even a term of art in international politics.”[23]  However, violence does exist.  As a result, municipal as well as international law must tackle this issue.

Addressing this matter, one should realize that the establishment of the Charter in 1945 signaled new times to come. The “UN Charter represented a moment of legal metamorphosis, when traditional legal concepts such as ‘just war’ and ‘lawful reprisals’ were radically altered by the new law of the UN.”[24]    Following this transformation, the new law restricted the circumstances under which use of force may lawfully be deployed.[25]  This limitation was attributable to the fact that the Charter now came to be regarded as jus contra bellum, otherwise referred to as the “law against war.”[26]  As a result, international law did not view war as ‘just’, on the contrary, it viewed it as immoral.  For that reason, in determining when the use of force, or the right of self-defense is permissible, one must examine the use of force principle in view of this metamorphosis.

A.  Limiting The Use-Of-Force After 1945

As a reflection of this new international order, the Charter seeks to guide States towards peaceful coexistence.  Accordingly, States that are Members of the United Nations, such as the United States of America, are bound to uphold the principles of the Charter; to prevent war.[27]

In pursuing this objective, Article 2(3) of the Charter directs Member States to resolve their disputes by peaceful means.[28] It states that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice, are not endangered.”[29]

While Members are to resolve their disputes in a peaceful manner, the Charter under Article 2(4) further demands Member States to avoid using force by declaring that “[a]ll 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.”[30]

The principle behind Article 2(4) of limiting ‘threat or use of force,’ is said to have originated in statements made by the Spanish theologian Francisco de Vitoria more than 400 years ago where he wrote, “there is a single and only just cause for commencing war … namely, a wrong received.”[31]  Similarly, this view has also been evident through a number of United Nations General Assembly (hereinafter “General Assembly”) Resolutions. 

In the 1965 Declaration of the Inadmissibility of Intervention, the General Assembly condemned “armed intervention and all other forms of interference or attempted threats against the personality of the State.”[32]

Likewise, in its 1970 Declaration on the Strengthening of International Security, the General Assembly solemnly reaffirmed that “States must fully respect the sovereignty of other States and the right of peoples to determine their own desires, free of external intervention, coercion or constraint, especially involving the threat or use of force.”[33]

Moreover, in its 1970 Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States, the General Assembly added that “[a]rmed intervention and all other forms of interference or attempted threats against the personality of the State or against its political economic and cultural elements, are in violation of international law.”[34]

Lastly, in the 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, the General Assembly further added that

[t]he principle of non-intervention or non-interference [comprehends] the duty of a State to refrain from armed intervention, subversion, military occupation, or any other form of intervention or interference, covert or overt, directed at another State or group of States, or any act of military, political or economic interference in the internal affairs of another state.[35]

In retrospect, Article 2 of the Charter and the General Assembly Resolutions require States to resolve their disputes by peaceful means; a reflection of jus contra bellum. This attitude is also attributed to the principle that “[t]he Charter is based on the belief that international law should not be enforced at the expense of international peace.”[36] However, in interpreting Article 2 of the Charter, Member States may resort to use of force only “where there are no peaceful means at the aggrieved state’s disposal, or where such means have been exhausted or found to be ineffective.”[37] This in turn, leaves open the possibility where States may employ use of force, or more specifically, the right of self-defense to combat terrorism.  

B.  Opening Up The Possibility Of Using Force In Self-Defense

While States are instructed to seek peaceful coexistence, there are some, very limited circumstances, under which States are entitled to resort to the use of force under international law.

Article 51 of the Charter, provides a narrow exemption to the use of force.[38] Article 51 provides that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”[39]

According to Article 51 of the Charter, Member States may resort to use of force if (1) such force is a necessary self-defensive measure to an armed attack or (2) such force has been authorized by the Security Council on the basis that the Council “deems it necessary in order to maintain or restore international peace and security.”[40]

While on its face, Article 51 may lead some to believe that States have now been given a carte blanche, permitting them to exercise force under the “right of self-defense” exception in most circumstances; even to combat terrorism.  It is important to note, however, that this is simply not true. What Article 51 of the Charter provides to Member States is a “narrow authorization” to “defend themselves against a continuing armed [attack] until such time as the Security Council intervenes to maintain and restore peace and security.”[41]

Appropriately, States may seek to employ the right of self-defense only in “self-defense.” Central to this right is the level of threat that is directed against the ‘Victim State.’ As suggested by United States Secretary of State Daniel Webster in 1842, in the Caroline Case,[42] self-defense only applies in extraordinary circumstances where the “necessity of self-defense [is] instant, overwhelming, leaving no choice of means, and no moment for deliberation.”[43]  It is important to note that this test of “instant and overwhelming necessity” was employed in the deliberations of the Nuremberg Trials.[44] 

As the Caroline Case demonstrates, for self-defense to be justified, there must be an imminent threat of force or a continuing attack upon the ‘Victim State.’[45] Necessity implies a degree of immediacy.[46] As such, while immediate response by a ‘Victim State’ is not mandatory, the “longer the time lapse,” the more “tenuous the argument becomes as to the urgency of” employing the self-defense exception.[47]  Equally, use of force must also be based on evidence of an “imminent second attack or on a continuing attack that needs to be pre-empted.”[48] Therefore, it is not the first “armed attack” that triggers the right of self-defense; on the contrary, it is the imminent threat of the second attack that triggers such right.    

Taking this into consideration, as the term indicates, use of force under the right of self-defense does not allow States to carryout retaliatory attacks or to engage in the use of force to repel anticipated armed attacks if such attacks have not yet occurred.[49] The Charter does not create this right, nor does it permit such action. What it simply provides is that self-defense is “to be exclusively directed to repel [ongoing or imminent] armed attack[s] of the aggressor [S]tate.”[50]  That is all that it provides.

Also, it is important to note, that any armed response by the ‘Victim State’ must be proportionate to the purpose of driving back aggression.[51] Under the traditional or classic self-defense theory, this response must be directed against “military objectives within the bounds set by international humanitarian law;” commonly referred to as the law of war.[52]

 Moreover, the armed response must come to an end, since an indefinite ongoing response to an ‘armed attack’ would be outside the bounds of constituting self-defense.[53] According to Article 51 of the Charter, armed force must terminate as soon as the aggression has ceased to be a threat or once the Security Council has taken the necessary measures to alleviate the armed attack.[54]   

In examining the circumstances under which use of force, or more specifically, the right of self-defense is permissible to combating terrorism, it is imperative to recognize that the right of self-defense under Article 51 only applies “if an armed attack occurs.”[55]  Accordingly, “[S]tates do not have a right of … armed response to acts which do not constitute an ‘armed attack.’”[56] Furthermore, “not all … force [against States] constitute [an] ‘armed attack.’”[57]

In considering whether the use of force is permitted to combat terrorism, one must first ascertain whether terrorist attacks amount to “armed attacks.”

For the most part, under the traditional/classical theory, the right of self-defense is only justified against State actors.[58]  As such, it appears that as a general rule, terrorist attacks, which concern non-state actors, would fall outside the bounds of constituting ‘armed attacks’ under the right of self-defense.  However, one must look further to ascertain such an assumption.

While there is no universally accepted definition of ‘an armed attack,’ by and large, it is considered to be an ‘armed attack’ when armed force is directed against the territorial integrity of a State.[59]  According to Professor Cassese, an “‘[a]rmed attack’ in this context means a very serious attack either on the territory of the injured State or on its agents or citizens while at home or abroad.”[60]  Furthermore, in order for an armed assault to constitute ‘an armed attack,’ it is said that such an assault must form part of a consistent pattern of violent aggression rather than just being isolated or sporadic.[61]

Taking into account terrorist attacks, the ICJ in Nicaragua v. United States held, that acts of armed bands must “occur on a significant scale” before they would constitute armed attacks permitting “individual or collective right of self-defense.”[62] It is important to note, however, that the court by no means absolved those acts which did not “occur on a significant scale.” It simply drew a distinction between them. On the one hand, the court acknowledged that acts which “occur[ed] on a significant scale” permitted the use of force under Article 51 of the Charter.[63] While on the other hand, the court held that “acts which were plainly part  of a program of violence against another state but did not amount to armed attack were unlawful and gave rise to claims, but did not warrant unilateral acts undertaken under article 51 of the Charter.”[64]

Notably, while the ICJ’s decision refers to “acts of armed bands,” by no means should one simply conclude that this is directly applicable to terrorist groups and their actions.  While it may be sensible to presume a similarity between these acts, for the right of self-defense to be permissible under the traditional theory, the aggressor must be a State. Consequently, acts which pertain to non-state actors, within which terrorism clearly falls, must be imputable to State in order for Article 51 to be triggered.       

This traditional principle of State actors as constituting “armed attacks” is evident in the General Assembly’s definition of aggression.  Under Article 2 of the Definition of Aggression Resolution[65] (the “Aggression Resolution”), the General Assembly stated that “[t]he first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression.”[66]

Furthermore, in Article 3 of the Aggression Resolution, the General Assembly acknowledged certain acts, which qualify as acts of aggression. In general, these include (1) “[t]he invasion or attack by the armed forces of a State on the territory of another State;” (2) “[b]ombardment by the armed forces of a State against the territory of another State;” (3) “[a]n attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;” and (4) “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of [considerable] gravity.” [67]

Consequently, it appears that by and large, the traditional theory is inclined to exclude terrorist acts as constituting “armed conflict.”  Accordingly, unless terrorist attacks can be imputed to the State from which the terrorists originate, it is difficult to comprehend how the application of Article 51 to terrorist attacks advances the argument for permissibility of military force against terrorists.[68]

D.  Imputing Non-State Actors Conduct To States In Order To Trigger The Right Of Self-Defense.

While it is true, that terrorist acts which are imputed onto States may trigger the right to self-defense, it is unsettled, however, what is really required when the circumstances of such actions are not transparent. This inconsistency is due in part to the law of jus ad bellum which was founded on the assumption that disputes would arise between States, and as such did not address non-state actors.[69]

In seeking to resolve this dilemma by means of the Charter, however, there is nothing in its language to necessarily require proof of state involvement in an existing armed attack.[70]  Thereby leaving the possibility that non-state actors, like terrorists, may trigger the right to self-defense of Article 51.

Nonetheless, it seems illogical to simply attack States founded on assumptions of terrorist involvement, without direct proof of their participation.  In resolving this unsettled question, based on the ICJ decision in Nicaragua v. United States, is appears that where “private individuals or groups with no ‘transparent relationship’ with the state are responsible,” one must look at whether the State or States in question exercised “effective control” over the wrongdoers.[71]  However, there is no clear definition of what control or responsibility a State must have over “the existing, ongoing, or imminent [terrorist] attack, for the right of self-defense to be triggered.”[72] 

It is imperative to note, that as a general rule, states are not responsible for all wrongs that are “orchestrated on or emanating from their territory.”[73]  At the same time, “[i]nternational law does not ordinarily distinguish between states that are capable of controlling their territory and those that are not.”[74] This is due to the normative principle that States have an obligation to other states based upon their “claim to territorial sovereignty.”[75]  As stated by Max Huber, the sole arbitrator in the Island of Palmas Case “[t]erritorial sovereignty…involves the exclusive right to display the activities of a State. This right has a corollary duty: the obligation to protect within the territory the rights of other States, in particular, their right to integrity and inviolability in peace and in war.”[76]

Consequently, State obligation to oversee their citizens or guests within its borders is said to be a well-established principle. In his dissent in Lotus, Judge John Basset Moore affirmed that “it is well settled that a State is bound to use due diligence to prevent the commission within its dominions of criminal acts against another nation or its people.”[77]  In view of that, states that either act passively, or deliberately turn a blind eye to terrorist activities within its borders are held to acquiescence to such actions, thereby breaching their duty of sovereignty. In applying this reasoning, ‘Victim States” may therefore impute non-state actor violations onto the State which failed to exercise its control within its borders.  Accordingly, it may be possible for “Victim States” to respond with force against terrorist groups that carried out the attacks, as well as, the State or States that failed to exercise “effective control” over the wrongdoers.[78]         

III.  Are We Really At War? Is It Accurate To Label This As A War?  

Consistent with slogans as used by President George W. Bush, such as “the faceless enemy” or “[w]e are at war,” one may assume that we really are at war.[79]  However, as evidenced above, the law does not point to such a clear conclusion.

First and foremost, it must be categorically clear that the September 11^th attacks are horrific, unimaginable, and a senseless massacre of innocent lives.  Moreover, any attacks that take one or several innocent lives are inexcusable.   

While terrorist acts in the modern age have had devastating consequences on the public, as well as on national security, United States’ characterization of terrorist attacks as ‘acts of war’ is inaccurate.[80] Moreover, “[t]he use of the term ‘war’ by the U.S. President and the whole U.S. administration, [in the context of terrorism] is a misnomer.”[81] 

In traditional terms, ‘war’ has been defined as an armed conflict between two or more States.[82]  Nevertheless, as evidenced above, non-state actor undertakings may be imputed to States, however, under current circumstances this is not very apparent.

At any rate, while the issue of terrorist acts as constituting ‘armed attacks’ is unsettled, contemporary opinions among States, in particular after September 11, are inclined to define such acts in the traditional terms of ‘war.’

It may be likely that the traditional view has been broadened in this modern age to include terrorist attacks as establishing ‘war,’ and as a consequence rising to the level of constituting an armed attack, thereby, triggering the right to self-defense under Article 51 of the Charter. However, what remains uncertain, is whether such views have now become a norm of Customary Law to trigger such an event?  More specifically, the question that one must answer is whether ‘we have now redrafted the circumstances under which the right of self-defense is permissible?

In seeking to resolve these questions, one must remember, as defined above, that Customary Law does not come into being simply on a whim. Likewise, Customary Law does not come into being simply because one or two states have decided for it to do so. As was defined above, for a norm to rise to the level of Customary Law, it must rise to the level of a “general practice” followed by “its acceptance as law.”[83]    

Trying to decipher this ambiguity, one must therefore look to State interaction in the global community to be able to possibly answer these questions.

A.   General Practice Post September 11 Within NATO

This shift from traditional views has been evident in the North Atlantic Treaty Organization (hereinafter referred to as “NATO”) after the September 11 terrorist attacks on New York and Washington.

Following these attacks, in invoking Article 5 of NATO,[84] the parties expressed that an “armed attack” against the United States did occur.[85]  Pursuant to Article 5, NATO “parties would assist the attacked country in the implementation of its right of individual or collective self-defense under Article 51 of the U.N. Charter.”[86]  Accordingly, this permitted the parties to take “such action[s] as it deem[ed] necessary, including the use of armed force.”[87]  While this view signaled a shift in traditional views, NATO was not alone. Like NATO, this view was also expressed by the United Nations Security Council (the “Security Council”) in condemning the attacks when it acknowledged that United States may use “the inherent right of individual or collective self-defense in accordance with the Charter.”[88]  This is due in part to the belief that the United States is a victim of an act of war.[89] 

The significance of this development is that in a matter of days, the majority of States came to “assimilate a terrorist attack by a terrorist organization to an ‘armed aggression’ by a State [thereby] entitling the victim state to resort to individual [or collective] self-defense.”[90]

While this shift in construction is a significant alteration in the traditional approach, this alone does not establish whether this view has now been elevated to a customary norm, since it is unclear whether this point of view has been “accepted as law;” second prong in establishing Customary Law.  Accordingly, further exploration is required.

B.  Terrorism As Perceived Under The Umbrella Of The United Nations And Its Resolutions.

Pursuant to Articles 10 and 11 of the Charter, the General Assembly is bestowed with the function of “mak[ing] recommendations to the Members of the United Nations or to the Security Council or to both on any … questions or matters.”[91]  Although, these recommendations are not formally binding upon Member States, these “resolutions have a significant influence on the content of contemporary international law.”[92]  It is said that such “practice itself may be dispositive of customary norms.”[93]  This opinion has been reflected in the Nicaragua v. U.S. decision where the ICJ indicated that opinio juris may be construed from “inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions.”[94]  Moreover, the court held that

[t]he effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter.  On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.[95] 

Furthermore, the ICJ went on to say in the Libyan Arab Jamahiriya v. Malta decision that in determining whether something has been elevated to customary norm, “it is necessary to look at its content and the conditions of its adoption.”[96]

Applying these principles to determine whether terrorist attacks have been elevated to a norm of Customary Law as to trigger the right of self-defense of Article 51, it is imperative to first determine what constitutes terrorism.

Defining “Terrorism” Through U.N. Resolutions

Currently, “there is no generally accepted definition of terrorism under Customary Law.”[97]  By and large, this is due to the fact that “definitions of terrorism are outcome sensitive.”[98] More precisely, “the dispute over what constitutes terrorism reflects in part the hackneyed saying that one person’s terrorist is another’s freedom fighter.”[99] 

For instance, Nelson Mandela, a Nobel Prize winner and the first President of South Africa, in his early years was on the “State Department’s list of international terrorists.”[100]  Now, “he is a hallowed and reserved symbol of the struggle for justice and equality.”[101]

Although it would be wonderful to just flip to the page in the ‘international law dictionary’ to obtain the generally accepted definition of ‘terrorism,’ it is clearly not that simple. 

“The problem of defining ‘terrorism’ has vexed the international community for years.”[102] This may be paralleled with the search for the Holy Grail or the lost city of Atlantis.[103]

Alex Schmid, a political scientist, in his 1983 study found that 109 different definitions of terrorism have been employed between 1936 and 1981.[104] Given this problem, it is tempting to use Justice Stewart’s dictum in Jacobilis v. Ohio, to define terrorism by simply stating “I know it when I see it.”[105]  However, this is not only impractical, but also unrealistic to enforce as law. 

Although it is clear that discrepancies exist in defining terrorism, one should look to the connecting factors of this assortment of definitions in order to ascertain the common root elements of terrorism; possibly constructing a general definition of terrorism.[106] 

Accordingly, in defining ‘terrorism,’ it is helpful to look to U.N. Resolutions for guidance.

The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations was adopted by the General Assembly on October, 24, 1970, [hereinafter 1970 Declaration].[107]  In its preamble, the 1970 Declaration advocated a limitation on the “threat or use of force” by States in “their international relations.”[108]  It held that States, among other things, had a “duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State.”[109]  In urging states to refrain from pursuing these acts, the General Assembly went on to say that “[e]very State has the duty to refrain from organizing or encouraging the organization of irregular forces, or armed bands, including mercenaries, for incursion into the territory of another State.”[110]

While the 1970 Declaration does not define “acts of terrorism,” the language does set parameters within which States should operate; to refrain from acts that involve “a threat or use of force.”[111] More importantly, this language places restraints on States by precluding them from “organizing” or “encouraging” acts that come into purview of terrorist act, since that would include “threat or use of force.”[112]

Likewise, the language leaves open the possibility for terrorist actions to be imputed onto States that deliberately turn a blind eye to terrorist activities within their borders, since that may be held as acquiescence to such actions or otherwise as “encouraging” these deeds. 

In 1972, following in the footsteps of the 1970 Declaration, the General Assembly adopted Resolution 3034 “inviting States to take [all appropriate] measures on both the national and international levels against terrorism.”[113]  Resolution 3034 was adopted by a vote of 76 to 35, with 17 abstentions.[114]

 This expansion of measures to be taken against terrorism was due in part to the General Assembly’s agitation “over acts of international terrorism which are occurring with increasing frequency and which take a toll on innocent human lives.”[115]

Correspondingly, Resolution 3034 opened the door for States in the global community to individually, as well as collectively engage in the elimination of terrorism.  The General Assembly, however, once again did not define ‘terrorism.” This was due in part, as recognized by the Chairman of the Sixth Committee,[116] by the fact that in “defining the concept of international terrorism; all Members were in principle prepared to condemn international terrorism, but it appeared impossible to do this without identifying the phenomenon more precisely.”[117]  Although the General Assembly did not define terrorism per se, it did declare that States may “take all appropriate measures” in combating this global virus.[118]

Due to possible damaging effects on certain organizations, however, the General Assembly narrowed the phrase terrorist acts, by excluding acts conducted for legitimate reasons such as the “right to self-determination and independence and other fundamental human rights and fundamental freedoms.”[119]

In 1976, the General Assembly, in Resolution 31/102 reaffirmed the same statements made in its previous resolutions.[120]  Resolution 31/102 was adopted by a vote of 100 to 9, with 27 abstentions.[121]

Likewise, in 1977, the General Assembly adopted Resolution 32/147 by a vote of 91 to 9, with 28 abstentions.[122]  In addition to essentially reaffirming the same principles of prior resolutions,[123] Resolution 32/147 once more appealed to “states which have not yet done so, to examine the possibility of becoming parties to the existing international conventions which relate to various aspects of the problem of international terrorism.”[124]

Although most States backed this resolution, dissenting States, which included United Kingdom, United States, Australia, Belgium, Canada, Israel, Japan, Netherlands, and Luxembourg did so because there was still disagreement among members with regards to the appropriate contents of this and previous resolutions.[125]  More specifically, “there was difference of opinion regarding the definition of terrorism.”[126]  Moreover, “there was concern that the struggle of peoples for national liberation might be confused with terrorism.”[127]  Lastly, “there was disagreement as to the importance of discovering the underlying causes of terrorism as preliminary to taking more defined action.”[128]  By and large, while States recognized that terrorism, the ‘virus of the global community’ must be eliminated, they however did not see eye-to-eye on the way of curing this problem.

Even though problems in defining terrorism remained, in 1979, the General Assembly adopted Resolution 34/145 by a record vote of 118 to 0, with 22 abstentions.[129]  Recognizing previous resolutions, the General Assembly condemned “all acts of international terrorism which endangers or take human lives or jeopardize fundamental freedoms.”[130]

Moreover, in 1981, the General Assembly in Resolution 36/109 further extended this condemnation to include “…acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.”[131]

In 1985, due to profound concerns “about the world-wide escalation of acts of terrorism in all its forms,”[132] the General Assembly in Resolution 40/61 made a bold move by condemning “all acts, methods, and practices of terrorism” as criminal.[133]  Moreover, the General Assembly once again called “upon all States to fulfill their obligations under international law to refrain from organizing, instigating, assisting or participating in terrorist acts.”[134]

In 1987, the General Assembly reaffirmed Resolution 40/61 through Resolution 42/159.[135]  Resolution 42/159 was adopted by a vote of 153 to 2.[136]

More importantly, the General Assembly acknowledged, “that the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism.”[137]  However, this was not to be, since the perpetual problem of what such definition was to contain plagued the international community.

Many years have passed since Resolution 42/159 and still the international community remains without a generally agreed definition of ‘international terrorism.”

Recently, in the midst of September 11, 2001 terrorist attacks on New York and Washington, the United Nations Security Council unanimously passed Resolution 1368.[138]   In its preamble, Resolution 1368 recognizes the right of individual and collective self-defense as defined by Article 51.[139]  Some argue that this language clearly authorizes States to use-force to combat terrorism. However, one should not draw this conclusion so abruptly.  Resolution 1368 by no means serves as a green light for States to use-force against terrorist groups. This is due in part to the fact that paragraph 1 of Resolution 1368 “defines the terrorist attacks of 11 September as a ‘threat to the peace,’ hence not an armed attack legitimizing self-defense under Article 51.”[140]  While these acts are heinous, the monstrous nature alone should not serve to trigger the right of self-defense as defined under Article 51.

Once again, the international community is left with open-ended questions.  Although there is no clear resolve in defining ‘terrorism’ or whether the right of self-defense as defined by Article 51 has been expanded to define terrorist attacks as armed attacks, one may look towards international conventions, domestic legislation, as well as events involving international terrorism in order to obtain answers to these questions.

C.  Terrorism As Perceived Under International Conventions 

In further examining the avenues of International Law for answers to the perpetual questions regarding terrorism, it is also important to look within international conventions for guidance. As has been reiterated above, there is no cohesive international definition enumerating what constitutes a terrorist attack.[141]  Although this is the position that States are left with, at the same time, States cannot helplessly standby without doing something to eradicate this ‘global problem.’  As a result of this dilemma, alternative avenues have been established to combating terrorism; this is due in part to various views taken by individual States.

Correspondingly, many States have entered into international agreements in order to combat this ‘global virus.”[142]  One must note, however, that this State practice has only sought to “outlaw specific forms of [universal concern.]”[143]

Table 1[146]

D.  Use of Force in the Global Community.  Has Article 51 been Redefined?

In seeking to determine whether the traditional view of ‘war’ has been broadened to embrace ‘terrorist acts’ as ‘armed attacks’ under Customary Law, it is also important to examine State practices during events involving possible terrorist attacks to ascertain if the two elements of Customary Law have been met.

Libya

In response to the bombing of a West German discotheque which was said to be frequented by American servicemen, on April 14, 1986, American forces launched operation “El Dorado Canyon.”[148]  The attack lasted half-an-hour, struck five terrorist-linked targets in Tripoli and Benghazi[149] and killed thirty-seven people and injured another ninety-three.[150]  In response to these attacks, on national television that evening, President Ronald Regan justified these attacks by proclaiming, “I warned that there should be no place on earth where terrorists can rest and train and practice their skills.  I meant it.”[151]  “Self-defense, concluded the president, “is not only our right, it is our duty.”’[152] 

While this action “elicited overwhelming support in the United States,”[153] however, “such support did not extend far beyond the American shores.”[154]  For the most part, nearly all America’s West European allies were critical of the attacks.[155]  The Third World “uniformly condemned it”[156] and the Soviet Union charged that such action could “not be justified by any arguments.”[157]  In a series of Security Council meetings,[158] many Council delegates insisted that the use of armed force against Libya was “indiscriminate,” pursuant to no prior “armed attack” and based on no substantial Libyan involvement in “terrorist activities.”[159]  Subsequently, the General Assembly, by a vote of 79 to 28, with 33 abstentions adopted Resolution 41/38 condemning the Libya raid by the United States.[160]

Iraq

It has been said that during the presidency of William Jefferson Clinton, “the United States government employed armed force often to advance and protect American interests.”[161]  In many instances this was directed at Iraq.

One such example occurred in 1993, as former President George Bush was to visit Kuwait.  In April 1993, prior to the former President’s arrival, Kuwaiti intelligence uncovered a plot to assassinate him.[162]  In cooperation with the Federal Bureau of Investigation (the “FBI”), Kuwaiti intelligence determined in late June of 1993 that Iraq was behind this failed plan.[163]  Consequently, on June 26, 1993, the United States fired twenty-three tomahawk missiles directed at Iraqi military intelligence outposts.[164]

In response to these actions, on June 27, 1993, U.S. Ambassador to the United Nations, Madeleine Albright justified the strikes to the Security Council, by stating that “we responded directly … as we were entitled to do under Article 51 of the United Nations Charter, which provides for the exercise of self-defense in such cases.”[165]  Albright also added that this response was “proportional and aimed at a target directly linked to the operation against President Bush.”[166]  Likewise, in a letter to Congressional leaders, the President reiterated the U.S. position “by reference to United States inherent right of self-defense as recognized in Article 51.”[167]

While the United States characterized the 1993 operation as legally permissible,[168] State opinions varied.  For example, French Ambassador Merimee acknowledged his government’s approval, by stating that “France understands the reaction of the United States and the motives of this operation.”[169]  Likewise, Japanese Ambassador Hatano noted that his “[g]overnment consider[ed] that there [had] existed an unavoidable situation in which the United States Government could not help but take action.”[170]  Canadian Prime Minister Kim Campbell added that her government fully understood the administration’s actions.[171]  Similarly, U.S actions were deemed justifiable by Hungary, the Russian Federation, Germany, and the United Kingdom.  However, not all States in the global community were of this view.

The main opposition to the strikes came from the Arab community.[172]  “Among Middle Eastern states, only Kuwait rallied behind the United States.  Nearly all others, including the twenty-one member Arab League, expressed strong disapproval.”[173]  Critics held that “President Clinton applied Article 51 in a manner that certainly [did] not meet the criteria set forth in Nicaragua v. United States.”[174]  While it was accurate to conclude that an armed attack was certainly planned against President Bush, no “armed attack” as specified by Article 51 had actually occurred against the United States to trigger the right of self-defense.[175]  Since no “armed attack” took place, resort to use of armed force was thereby illegitimate under Article 51.[176]

Sudan and Afghanistan

Akin to the strikes at Iraq in 1993, on “August 21, 1998 the United States fired seventy-nine tomahawk missiles on the alleged terrorist outposts of [the now well-known] Osama Bin Laden in Sudan and Afghanistan.”[177]  These strikes were in response to the terrorist bombings on the American embassies in Kenya and Tanzania on August 7, 1998, which took 263 lives and injured approximately 5,000 others.[178]  The National Advisor Sandy Berger and Secretary of State Madeline Albright noted in a press interview on August 21, 1998, that “intelligence gathered after the strikes on the American embassies pointed to Bin Laden’s terrorist network as the guilty actors.”[179] Following the U.S. military response, President Clinton addressed the nation.  Subsequently, the next day he “put forth a more formal justification of his use of force in a letter to congressional leaders.”[180]  In justifying the U.S. actions, he stated that

the United States acted in exercise of our inherent right of self-defense consistent with Article 51 of the United Nations Charter.  These strikes were necessary and proportionate response to imminent threat of further terrorist attacks against U.S. personnel and facilities.  These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.[181]

Unlike the previous strikes on Iraq in 1993, this use of force seemed to “more closely [meet] the international legal requirements of self-defense.” [182]  “United States was undoubtedly attacked, intelligence sources indicated that Bin Laden’s network was responsible, and ‘compelling evidence’ suggested that he was about to conduct a second attack.”[183] 

As a result, the international community indicated a general acceptance of Article 51’s application.[184]  “The U.S.’s western allies, including Germany, Israel, and the United Kingdom … solidly backed the Clinton Administration.”[185]  However, the Arab world, in particular the Arab League, once again expressed its displeasure.[186]

Based on the foregoing, while many states have supported the application of Article 51 against “terrorist attacks,” at the same time, others have rejected such actions.  Consequently, it is still difficult to determine whether ‘terrorist attacks’ have been elevated to the level of “armed attacks” under Article 51, since “general practice” and “its acceptance as law” is still unclear.                

IV.  Right of Self-Defense In Retrospect.

Whether or not the right of self-defense as defined by Article 51 of the Charter has been redrafted to allow terrorist attacks to rise to the level of armed attacks remains uncertain.  Although under current circumstances, some may conclude that such a transformation has occurred, however, there is no clear path, we do not have the ‘yellow brick road,’ to guide us to this conclusion.  What remains, however, is the fact that times have changed.  Terrorists today are quite different from terrorists of yesterday.  Terrorists no longer seek to attack on a small scale, to the contrary, they seek to inflict as many casualties as possible; without distinguishing between combatants and non-combatants.  Accordingly, it is reasonable, or even necessary, to hold that International Law has changed with the times.

 While this may be a practical view, one must realize that by simply broadening the right of self-defense of Article 51 to include terrorist attacks as constituting armed attacks, in effect this would provide States with a carte blanche permitting them to act as they wish.  One must recognize that this is DANGEROUS.  Let us not forget that the international community cannot even agree on what constitutes a “terrorist attack.”  Accordingly, as was said previously “one person’s terrorist is another’s freedom fighter.”[187]  States simply cannot adhere to the principle of “I know it when I see it.”[188]  Otherwise, instead of ridding the world of this ‘global virus,” the international community will create a new one; an undefined, unregulated, uncontrollable use-of-force.  To be more precise, a “pandora’s box” of unknown consequences.