Saturday, 26 March 2011

The Use of Force in the Age of Terrorism: The Right of Self-Defence against Non-State Actors

This was written last year in May, and I have not made any changes to it as such. Please note that there are no footnotes, as it won't let me post them for some reason. I have the full text in a Word document too, if anyone wants it with the footnootes.

The “inherent” right of self-defence is enshrined in the Charter of the United Nations (U.N. Charter), but it is also understood to be a long-established principle of customary international law. Normally, “self-defence, of course, has to answer to the rules of international law, in particular the principles of necessity, proportionality and immediacy as well as the restrictions of Article 51 of the U.N. Charter.” The concept of self-defence is relatively straight forward when the use of force is used by one state against another, but it is less clear in cases where a state applies the principle against non-state actors. This article will examine if self-defence against non-state actors is considered legal under contemporary international law, particularly after the 9/11 attack on the United States. The article will also examine whether the United States’ use of drone attacks in self-defence against non-state actors on the Afghan-Pakistani border are within international law. For the clarity of discussion non-state actors will be defined as terrorists, meaning a person who uses violence and intimidation in the pursuit of political and ideological aims.

Article 2 (4) of the U.N. Charter prohibits the use of force in international relations, and it has since its emergence in 1945 developed into a norm in international law. The article states that “All 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.” There are two exceptions outlined in the U.N. Charter, hence the ban on the use of force is not a blanket ban. The first exception is actions authorised by the Security Council under Chapter IIV, and the second one is outlined in Article 51 which guarantees states’ “inherent” right of self-defence in cases of an “armed attack”.

Article 51 of the U.N. Charter states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

A reading of Article 51 shows there are several requirements that Member States must comply with in order to invoke the inherent right of self-defence, most importantly, Member State must have been subject to an “armed attack”. The problem is that there is no definition of an “armed attack” in the U.N. Charter, or in subsequent treaty law. The U.N. Charter was written in 1945 when an “armed attack” clearly referred to an attack by one state against another state, which could explain the lack of a definition in the text. The U.N. Charter was written before the modern threat of terrorism was a massive concern to the world community, and that meant that Member States did not concern themselves with their right to defend themselves against attacks from non-state actors outside their own territories. Although it could be argued that the concept was already so controversial then that the founding Member States could not agree on a general definition. The Caroline Case indicated that states did face minor attacks by non-state actors prior to the establishment of the United Nations, but not of the same scale or level as currently experienced by the international community. The change in modern day hostilities has turned the definition of an “armed attack” into a controversial issue, and academics have devoted one article after another on the matter.

Besides the requirement of an “armed attack”, the Security Council must not have taken measures to restore or maintain international peace and security in the matter. The measures taken by the Member State must immediately be reported to the Security Council. The measures must also be necessary and proportionate. Commentators argue that the “inherent” right of self-defence existed in customary law prior to the establishment of the U.N. Charter, and that in customary law there was no specific “armed attack” requirement. The initial draft of the U.N. Charter did not include the word “inherent. Maogoto argues that the U.N. Charter established a new requirement of an “armed attack” that did not previously exist. It is unclear if this addition was meant to narrow the scope for self-defence.

Case Study: Responses to the 9/11 Attack

The 11th September 2001 was a day that arguably changed the world. The attack on the World Trade Centre and Pentagon were part of the first major attack on American soil since Pearl Harbour in 1941, excluding the 1993 bombing of the World Trade Centre. Almost 3,000 people were killed in the 9/11 attack compared to 2,400 in the Pearl Harbour attack. The simplicity of the 9/11 attack and the lack of prior warning shocked not only Americans but also the rest of the world.
Post-9/11 U.S. foreign policy became consumed with capturing and killing terrorists in order to secure the United States and its interests at home and abroad. On the 20th September 2001, President Bush launched the “War on Terror” in an address to a joint session of the U.S. Congress. The War on Terror started with Operation Enduring Freedom in Afghanistan, followed by Operation Iraqi Freedom and evolved into a broader campaign that would not end until “every terrorist group of global reach has been found, stopped and defeated.” President Bush made it clear that the United States would no longer differentiate between terrorists and those States who harbour them; thus declaring the right of self-defence against both states providing support to terrorists and the terrorists themselves.

In the years that followed the legality of the War on Terror became one of the most controversial and widely discussed matters by commentators and scholars in recent time. The attack and the international community’s response changed the world order, and the use of terrorism as a weapon to achieve political aims became even more common than it had previously been. Prior to the attacks on the U.S. nation states had very few, limited options when it came to the use of force against non-state actors in the context of Article 51. Prior to 9/11 few commentators were ready to support the use of force against non-state actors, unless there was complicit state involvement.

The Law Prior to the 9/11 Attack
States’ right to exercise self-defence against non-state actors was outlined in the International Court of Justice’s (ICJ) well-established Case Concerning Military and Paramilitary Activities (Nicaragua v United States) . This was a result of years of controversial state practice, where claims of self-defence under Article 51 against non-state actors and states supporting terrorists had become more common and often employed by particularly Israel and the United States. It was held that military action by irregulars could constitute an “armed attack” within the meaning of Article 51 of the Charter on two conditions. Firstly, non-state actors had to be sent by or on behalf of a state. Secondly, the attack would have to have the same scale and effects as an attack carried out by regular forces. The Court further stated that it did not find that it amounted to an “armed attack” but rather a threat of force if a state merely assisted in the provision of weapons, logistical or other support to irregulars.

The Nicaragua judgement has been strongly criticised for either being too narrow or too expansive in the years that followed. Academics such as Trapp argued that the broadening of the scope of self-defence against non-state actors did not sit easy with scholars whom around that time argued that the right of self-defence could only be invoked in response to an armed attack by a State.

The ICJ’s Nicaragua ruling and the 2005 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) does not prohibit the use of force against non-state actors, but the Court did clarify that the actions of the non-state actors must be attributed to a state. Further, it has also held that the use of force in self-defence must only be carried out in the territory of the state supporting the non-state actors. The problems with these rulings are that they do not reflect reality, nor do they give states an opportunity to defend themselves against terrorists acting without state support. It is easier than ever for non-state actors to communicate across the world, thanks to the intervention of the internet. Recent attacks in London and Madrid suggest that terrorists do not need massive financial support or training. Therefore, it is likely that one will soon be faced with an attack where state involvement may not be established; nonetheless defensive action will still be needed. Most terrorists today operate in small cells, spread across the globe. More often than not the level of state involvement will not be enough to fulfil the threshold set out in Nicaragua, as logical support does not fulfil the “sending by or on behalf of” criteria. The ruling of the Court can be justified if one is to consider the consequences of a ruling that allowed for the use of force in self-defence without state attribution. States would be able to attack sovereign nations and territories based on an “armed attack” by non-state actors; this would not protect individual states’ sovereignty and independence within the international community. It could possibly be used by stronger nation states as an excuse to attack smaller enemy states, just as the Mukden incident in 1931 was used as an excuse by Japan to invade Manchuria.

The threshold in the Nicaragua case was too high, and most incidents involving non-state actors will not be sufficiently grave to fulfil the criteria outlined. While the criteria does allow for the use of force where there is a persistent, large-scale pattern support for indirect aggression by a state, minor sporadic attacks do not warrant such a serious and conspicuous response in self-defence. The problem is that it is difficult to determine the scale and effect of an attack by regular forces, as the scale or effect of such an attack by regular forces variants depending on the military mission undertaken. Regular forces could attempt to assassinate a head of state which would arguably be seen as an “armed attack”, as for an example the assassination attempt on former President H. W. Bush in 1993. While the attempt would only involve one victim it would still have the scale and effect of an attack, just as an attack on fifty people would. The 9/11 attack proved that some non-state actors are able to cause much damage with very little means, and thus the International Court of Justice should when given the opportunity make a new ruling that is more in line with the current world situation.

The Influence of 9/11 and the Right of Self-Defence against Non- State Actors
Scholars have argued that the international community’s almost unanimous response to the 9/11 attack reflects the change in customary international law, and the emergence of a right of self-defence against non-state actors. They speak of the adoption of an instant custom by the universal acceptance by states of a new legal rule. The unanimous passing of Security Council Resolutions 1368 and 1373 could arguably prove that states were willing to accept that the “inherent” right to self-defence could be extended to non-state actors. Christine Gray commented that the Security Council normally did not make reference to self-defence in its resolutions, so the mention in both 1368 and 1373 were indeed significant.

The actions of international and regional organisations in the wake of the 9/11 attack, showed that the vast majority of the international community accepted that an attack by non-state actors could amount to an “armed attack”. The Security Council passed resolution 1368 on the 12th September 2001 and resolution 1373 on the 28th of September 2001; both resolutions addressing terrorism and the right of self-defence. The two resolutions were adopted unanimously after the attacks, and the right of self-defence was recognised in such a way which “could only mean that it considered that the terrorist attacks constituted armed attacks for the purposes of Article 51 of the Charter.”

The adoption of resolution 1368 was remarkable, as it confirmed the right to self-defence while not referring to possible state involvement; this was the first time in its history that the Security Council affirmed this right in response to terrorist attacks. It can be argued that the expansion of the scope was more due to the lack of information regarding who was responsible. It was also a first, initial reaction to one of the most shocking events in modern history. Before placing too much emphasis on the importance of the word choices it should also be noted that the right of self-defence was expressed in the preamble rather than the operative part of the resolution. The operative part is action based whereas the preamble is of a more introductory or explanatory nature. The Security Council does not need to grant a State the authorisation to exercise the right of self-defence, as it is an inherent right, yet both resolution 1368 and 1373 reaffirmed the right of the United State to exercise self-defence. Arguably, if they did intend to expand the right of self-defence against non-state actors this was the way to do it.

A much debated aspect of these resolutions was the lack of the words “armed attack”. In operative clause 1 the Security Council states that acts of international terrorism are a “threat to international peace and security”, arguably indicating that it is not necessarily an “armed attack” within the meaning of Article 51. White and Myjer noticed that it was unusual that resolution 1368 did not explicitly mention that a terrorist attack amounted to an “armed attack” if this was the intention of the Member States. The wording might be due to the Security Council members’ careful attitude. Using the term “armed attack” would have unforeseeable political and legal consequences in the future for states such as China and Russia. Dinstein argued that the reference to “the horrifying terrorist attacks” implied an “armed attack” within the meaning of Article 51.

The practice of regional defence alliances can like the Security Council resolutions are used as evidence of state practice. On the 12th September the North Atlantic Council invoked for the first time Article 5 of the Washington Treaty, as they agreed that the attack on the United States was an armed attack directed from abroad. Article 5 of the North Atlantic Treaty states that, “an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations.”

The parties to the Inter-American Treaty of Reciprocal Assistance, also known as the Rio Treaty, invoked Article 3 as a response to the attack on the U.S. The article states that its provisions shall be applied in case of “any armed attack” , and its application is another indicate of state practice that makes it possible for non-state actors to perform an “armed attack.” The reaction of NATO and the parties to the Rio Treaty arguably shows that a large group of the international community did accept that 9/11 constituted an “armed attack” within Article 51 of the U.N. Charter, based on the similar use of “armed attack”. On the 21st September, the European Union also came out in support of the United States’ right of self-defence. The European Council decided in an extraordinary meeting that: “On the basis of Security Council Resolution 1368, a riposte by the US is legitimate. (...) The actions must be targeted and may also be directed against States abetting, supporting or harbouring terrorists.”

In order for the U.S. to have a right of self-defence against al-Qaeda, as a result of on the 9/11 attack on the U.S., the two criteria in the Nicaragua case must be met in addition to normal requirements under Article 51 of the U.N. Charter. The attacks were an “armed attack” as they had the necessary scale and effects to pass the Nicaragua threshold. It seems almost impossible to argue the opposite, as almost 3,000 people died as a result of the attack. The more contentious issue focuses on to what extend the attack was on behalf of a state, as required in the Nicaragua case. Commentators such as White and Eric Myjer argues that the attacks were committed by individuals, “not action, directly at least, on behalf of a state”. In the U.S. letter to the Security Council on the 7 October 2001, the U.S. did leave open the possibility of taking military action against other states in the exercise of self-defence. White and Myjer argues that an unclear situation has arisen from the precedence set by the letters, as it is clear that self-defence is not an absolute right that can be applied as the victim state sees fit. The letters claimed that the Taliban regime had supported and harboured al-Qaeda, thus making it possible for them to attack the U.S. To fulfil the state attribution criteria there also had to be “substantial involvement” by the Taliban government in order to establish that an “armed attack” had taken place by Afghanistan against the United States.

It can be argued that the aftermath of the 9/11 attack did not change customary law, but that it was rather an isolated response to an extraordinary terrorist attack. There was disagreement within the international community regarding the legal right to use force against non-state actors prior to the 9/11 attack. The events following the attack show that more states were willing for the first time to accept a new interpretation of Article 51. A reading of the state practice strongly suggests that the scale of the attacks on the U.S. shocked the world, and thus required a quick and strong response to avoid repeats. State practice now seem more concerned with attacks that non-state actors have the potential to carry out in the future rather than what they have carried out in the past. The currently legal situation does seem to be blurred as a result of the actions taken post-9/11. The U.S. use of self-defence against al-Qaeda and Afghanistan arguably changed international law to allow for a wider doctrine of self-defence against states harbouring terrorists. Others disagree and argue that the relationship between Al Qaeda and the Taliban government was close enough to fall under the definition given by the ICJ in Nicaragua.

The International Court of Justice post-9/11
The first chance the International Court of Justice had to make sense of the aftermath of the 9/11 attack and the state practice that followed was in the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory. The Court found that Article 51 of the U.N. Charter recognises the existence of an inherent right of self-defence in the case of an “armed attack” by one State against another State. It continued to highlight that Israel’s situation was different than the situations outlined in Security Council Resolutions 1368 and 1373, and thus they could not be relied on in support of self-defence. Judge Higgins argued that there was nothing in Article 51 that stated that self-defence only applied when one State launched an “armed attack” against another state, as oppose to non-state action, and that interpretation was more based on the Court’s judgement in the Nicaragua case. Judge Buergenthal agreed with Judge Higgins that the U.N. Charter in affirming the right to self-defence is not limited to an “armed attack” that is by one State against another State. He continued that in resolutions 1368 and 1373 the Security Council did invoke the right of self-defence against terrorism, and it did not limit this only to terrorist attacks by State actors.

Self-Defence under Customary Law – Necessity and Proportionality
States exercising their inherent right of self-defence must in addition to the requirements outlined in Article 51 of the U.N. Charter also meet the customary criteria of necessity and proportionality, as outlined in the Legality of the Threat or Use of Nuclear Weapons Opinion. The concepts of necessity and proportionality have gone hand in hand with self-defence since the Caroline Case of 1837. The customary requirement of necessity emerged then from a letter written by U.S. Secretary of State Daniel Webster to British Lord Ashburton in response to the Caroline Case of 1837. He wrote that if the destruction of the "Caroline" was to be defended then the Government would have to “show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The concept of necessity focuses on the nature of the target and whether the target pursued is the source of the threat, if it is then it is considered necessary defence to attack the target. It is also argued by Sean D. Murphy that the victim state is not required to only reply the initial attack, but that the state can use self-defence to eliminate a continuing threat in order to secure future security of the state. Another aspect of necessity is that the use of force in self-defence cannot be said to be necessary if the victim state has not first considered peaceful alternatives, for example through diplomatic avenues or reparations. The Case Concerning Oil Platforms (Iran v. The United States of America) concerned itself with the destruction of three Iranian oil platforms by the U.S. The U.S. argued that it was acting in self-defence as the oil platforms had been used to attack multiple U.S. navy ships. Both states’ claims were rejected, but it was held that there was a lack of necessity when the U.S. attacked Iranian oil platforms without first contacting Iran about the military activities undertaken from these.

Proportionality does not merely mean that the use of force employed in self-defence does not have to mirror the initial attack, nor that it has to be restricted to the same geographical area. It focuses on how to eliminate the threat and includes the method and means to stop the attack. The proportionality requirement entails two main conditions; first that degree of force is proportional in terms of intensity and magnitude, and second that the duration of the attack most is strictly limited to the removal of the threat. The ICJ held in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion that for the use of force to be proportionate under the law of self-defence, the use of force had to meet the requirements of international humanitarian law. It was held in the ICJ’s Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) that the taking of airport and towns hundreds of kilometres away from the border was disproportionate reaction that was not related to the cross-border attacks or the ending of these attacks.

Case Study: The Legality of the U.S. Cross-Border Drone Attacks in Pakistan
Since 2002 the U.S. has engaged in cross-border operations from Afghanistan into Pakistan, targeting camps, compounds and convoys belonging to al-Qaeda and Taliban. The cross-border attacks are from unmanned aerial vehicles; these attacks are better known as drone attacks. There are three groups that fight across the border, al-Qaeda and foreign extremists, the Afghan Taliban regime and third a Pakistani Taliban movement, the three are connected to some extent. The overall aim of the drone attacks has been to prevent cross-border attacks on U.S. troops and infiltration into Afghanistan. Small-scale cross-border attacks in self-defence, aimed at non-state actors, are controversial in terms of Article 2(4) and Article 51 of the U.N. Charter. Particularly controversial if there is no consent from the state authorities in the receiving state, in this case Pakistan.

Article 2(4) specifically mentions that Member States must refrain from the threat or the use of force against any state, whereas Article 51 only mentions a state as a potential target of an armed attack rather than the instigator. The difference between the two articles has led some to argue that self-defence directly against non-state actors is not outside the remit of the U.N. Charter. Commentators argue that the perpetrator of an attack is not identified as necessarily a state; however the recent ruling by the International Court of Justice in the Israeli Wall Opinion has overturned this argument. Academics and commentators alike have argued against such a narrow interpretation, and for the existence of a credibility gap between the ICJ’s interpretation of international law and the emerging practice of the international community. One thing is certain and that is that the American drone attacks would be illegal under Article 2(4) of the U.N. Charter, unless it can be established that the Pakistani government gave its consent to the attacks, that it is self-defence under Article 51 or the attacks were authorised by the Security Council under Chapter VII.

Pakistan and Consent
One area of major contention is the level of consent the Pakistani government has given to the U.S. to carry out drone attacks on its sovereign territory. The drone attacks would not be illegal if Pakistan gave its consent, as long as the U.S. stayed within the limits of this consent. Article 20 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts states, “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.” There is much disagreement as to whether Pakistan has given secret consent, implied consent or expressed consent to the U.S. drone attacks. The Pakistani Prime Minister has gone as far as calling the drone attacks counterproductive and implied that the U.S. often act without Pakistani consent to condemn the attacks. “Pakistan has objected to the U.S. use of drone strikes in its territory, saying they are a violation of its sovereignty.” This reluctance might be partly because of the high number of civilian deaths compared to the successful targeting of terrorists, thus making these strikes very unpopular with the Pakistani population and putting pressure on the government. It is argued that while the Pakistani government has not publicly given its consent, they have done so behind the scenes. This seems to be partly the case, as there are reports that the unmanned Predator aircraft are kept at a secret base in Pakistan rather than Afghanistan. It is argued that there is an armed conflict taking place between the U.S. and al-Qaeda and its associated groups outside Afghanistan and Iraq.

The Right of Self-defence without Pakistan’s Consent
Because Pakistan has not clearly communicated its consent it is only sensible to examine to what extend the U.S. would have a right of self-defence against the non-state actors without Pakistani consent. As outlined previously, there are a number of requirements that the U.S. must meet if they are to exercise a right of self-defence under Article 51. Firstly the drone attacks must be a response to an “armed attack” in terms of Article 51 of the U.N. Charter. Secondly, the self-defence actions taken must been reported to the Security Council immediately. Thirdly, the use of force in self-defence must have been necessary and proportionate. The U.S. can claim self-defence either as a part of an ongoing response to al-Qaeda and the 9/11 attack, or they can claim that a new cause for self-defence has arisen due to the cross-border attacks.

Speaking to the American Society of International Law in March 2010, President Obama’s legal advisor Harold Hongju Koh justified the drone attacks in Pakistan on the basis, “the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attack, and may use force consistent with its inherent right to self-defense under international law.” This statement argues that the U.S. considers it has a right of self-defence against al-Qaeda and the Taliban, nine years after the 9/11 attack.

Based on the earlier discussions regarding Security Council resolutions 1368 and 1373, it can be argued that these that combined with the letters from the U.S. and the United Kingdom to the President of the Security Council on 7th October 2001 allow for self-defence against non-state actors and legally justified for the war in Afghanistan. The U.S. claimed that it had “clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the [9/11] attacks” and hence the aim of the operation in Afghanistan was “to prevent and deter further attacks on the United States”. If the operation in Afghanistan was legally based on the fact that the U.S. had to get rid of Taliban, as they had continuously offered support to al-Qaeda and would continue to do so.

Arguably, when the Taliban and al-Qaeda fled into Pakistan the U.S. mandate protected their right to use self-defence against them there as they still were still a threat to American’s security. While it is still valid that the U.S. is under threat from Taliban and al-Qaeda, it does not seem to proportionate that this right of self-defence can still be evoked nine years after the 9/11 attack and two wars. The proportionality requirement is arguably. Firstly, the degree of force is of less intensity and magnitude than the 9/11 attack if based on the damage non-state actors can cause. Due to the nature of the attacks it can be hard to establish that the human targets are indeed the non-state actors, and not innocent by-sanders. Secondly, if the duration of the attack most be strictly limited to the removal of the threat then arguably the self-defence is still valid. The nature of irregular warfare does mean that it is a war that is almost impossible to win, as it is unlike the U.S. will ever capture all the non-state actors opposing them.

If the U.S. claims that it is still operating under the 9/11 right of self-defence, and this proves to be unlawful, the U.S. could claim a new right of self-defence based on the cross-border attacks from inside Pakistan. About 30-40% of the guerrilla attacks taking place in Afghanistan comes from the Federally Administered Tribal Areas (FATA) in Pakistan, and due to historical reasons the area is largely autonomous and the government of Pakistan questionably exercise little actual control over it. It is even arguable if the Pakistani government can authorise U.S. military action in this region, even if it wished to do so. In order to claim a right of self-defence against these attacks the U.S. would have to fulfil the threshold requirement of an “armed attack” outlined in Nicaragua rather than it just being frontier incident. The threshold criterion for an “armed attack” by non-state actors is outlined in the Nicaragua case. Applying that judgement to the U.S.’s current situation would mean that the non-state actors in Pakistan would have to be “sent on behalf of” Pakistan, and the border attacks would have to be of the same scale and effects as if it had been an attack carried out by regular forces. According to Sean D. Murphy, a leading academic, there are some credible reports suggesting that the regional group of the Pakistani army, the Frontier Corps, are closely linked with Taliban, but this has been denied by the Pakistani government. There are evidential reports that the Frontier Corps are closely linked with Taliban, but this seems too tenuous to fulfil the “sending on behalf of the state” requirement, as it is hard to prove a direct link and that the government of Pakistan is sanctioning this support. Even if the Frontier Corps was independent and not under control of the Pakistani state, it would not meet the Nicaragua threshold criteria. Arguably it could fall under the scope outlined in Security Council Resolutions 1368 and 1373, if the scope has indeed been accepted as a new custom in international law.

The relationship between the Pakistani government, the army and the Frontier Corps makes it hard to determine whether the U.S. has a right to self-defence, due to the Pakistani government’s either collusion with Taliban or failure to take necessary steps to stop the attacks. It is also important to note that the “sending on behalf of” criteria would not be met, if Pakistan simply provided weapons or logistical support. If it was to be accepted that the non-state actors in Pakistan was sent on behalf of the state, it would still be necessary to prove that the scale of the cross-border attacks were of the same scale and effect as if it had been carried out by regular state forces. “An armed attack must be understood as including not merely action by regular armed forces across an international border.” As previously mentioned it is however hard to establish the scale of an attack by regular forces, as they engage in both large and small armed attacks. It seems hard to argue that these attacks that occurred at “a rate of from twenty a month in March 2007 to fifty-three a month in April 2008” caused enough injury to the U.S. forces in Afghanistan to call them an “armed attack”. Even if a link between the Pakistani government and the non-state actors could be proven, the U.S. would also have to notify the Security Council regarding measures taken, as required by Article 51. At the present time, they have not done so.

If Pakistan did not actively support the non-state actors, it could be argued that Pakistan failed its duty to prevent these attacks under international law. Trapp argued that “defensive force in foreign territory against non-State actors is sometimes necessary given the host State’s failure to prevent its territory from being used as a base for terrorist operation.” In 2006 Israel employed massive military force against Hezbollah in Lebanon due to Lebanon’s failure to prevent a cross-border attack on Israeli troops; these attacks had led to the capture of two soldiers. Israel stated in its letter to the Security Council that it had seen it as a declaration of war, and that it evoked its right of self-defence under Article 51. Arguably, Israel’s attack on Lebanon against Hezbollah in 2006 was similar to the U.S.’s action against non-state actors in Pakistan. However, Israel’s attack was met with significant international criticism, particularly due to the lack of proportionality. It was only due to the U.S.’ veto powers in the Security Council that no resolution condemning Israel was passed. This international objection to Israel’s response is also supported by ICJ case law. Applying the principle outlined in DRC v Uganda means that Pakistan’s failure to prevent the cross-border attacks from Pakistan into Afghanistan does not give rise to any right by Afghanistan, and particularly not the U.S., to cross the border into Pakistan to attack the groups themselves. Seeing Afghanistan is now a sovereign state, the only way that the U.S. would be able to exercise self-defence against the non-state actors in Pakistan, would be if they fulfilled the criteria outlined in Nicaragua and if Afghanistan put in a request for collective self-defence.

Two elements of customary law that must be assessed in regards to the American drone attacks are necessity and proportionality. It is estimated that between 2006 and 2009 approximately 20 suspected terrorist leaders were killed in Pakistan due to the drone strikes. However, these attacks also killed between 750 and 1000 civilians. While some would say this is disproportiate if calculating the deaths on an eye for eye basis, it could possibly be argued to be justified. The 9/11 attack killed almost 3000 people; al-Qaeda has made it clear that it is not giving up any time soon, so the end could possibly justify the means. It is unlikely that the U.S. can use its 9/11 self-defence mandate against a country such as Pakistan, as Pakistan did not harbour al-Qaeda members on 9/11. Pakistan has been a close ally to the U.S. during the War on Terror. It cannot be said to be in accordance with the application of international for the U.S. to attack non-state actors in Pakistan without Pakistan's permission.

The problem is that there is a credibility gap between what international law asks of states and what is political feasible for states such as Pakistan. The Pakistani government cannot openly give its support and consent to the drone attacks, as they are unpopular in Pakistan. While there is no explicit consent, Pakistan has not taken any significant measures to show its disagreement such as complaining to the U.N. or cutting off diplomatic relations. This conflicting message makes it hard to determine whether the Pakistani government is acting out of political agreement or mere unspoken agreement with the U.S. The Pakistani government cannot easily give publicly giving its consent to the U.S. drone attacks, because the government is deeply unpopular with the population, particularly due to its support of the U.S. on the “War on Terror” and the civilian drone casualties. The Pakistani position has arguably changed from secret complicity and grown into vocal concern and objections. The New York Times reported in mid 2008 that, “Pakistani officials are making it increasingly clear that they have no interest in stopping cross-border attacks by militants into Afghanistan, prompting a new level of frustration from Americans who see the infiltration as a crucial strategic priority in the war in Afghanistan.”

Authorization by the Security Council under Chapter V
If the U.S. drone attacks cannot be justified based on Pakistan’s consent, or self-defence against non-state actors, the only other legal justification of the drone attacks is a clear authorisation by the Security Council under Chapter VII. There are not any specific resolutions authorising the U.S. to employ force against the non-state actors in Pakistan. It has been argued without much conviction that the International Security Assistance Force (ISAF) in Afghanistan has a U.N. mandate under Security Council Resolutions 1386 and 1413. The mandate authorises the ISAF to assist the Afghan Transitional Authority in providing security in areas outside of Kabul. This could justify the U.S. self-defence missions into Pakistan. However, this has been rejected as an argument as the ISAF is not a U.N. force in the sense that it is funded or under command-and-control of the U.N. Instead ISAF has a Security Council mandate to complete very specific tasks in Afghanistan, this mandate does not specifically allow for cross-border operations.

The only “armed attack” that would meet the threshold requirement to act in self-defence would be the attack on 9/11, and it is questionable whether it can be said that it still has the right according to the proportionality, immediacy and necessity requirements under customary international law. Pakistan was not responsible for the attacks on 9/11, so even if the U.S. met the criteria under customary law it would be hard to argue that the territory of Pakistan was a legitimate target. Pakistan’s questionable consent to the attacks on its soil means that the U.S. had to be able to evoke the right of self-defence for the drone attacks to be legal. It seems hard to support that the U.S. had a continuous right of self-defence based on the attacks on 9/11, and it also seems hard to argue that the cross-border attacks are of such gravity as to justify a new right of self-defence.

Article 2(4) of the U.N. Charter prohibits the use of force unless the use is authorised by the Security Council or a right of self-defence has arising under Article 51 of the U.N. Charter. An examination of the definition of “armed attack” showed that it was a controversial issue and that it was not clear from the Charter of this right was only granted to the victim state when attacked by another state. The American drone attacks in Pakistan targeting non-state actors are an example of illegal state practice. While the United States of America is claiming it is acting in accordance with international law, it is clear through the previous examination that this is not the case. The illegality of the cross-border attacks from Afghanistan into Pakistan does not mean that there is no right of self-defence against non-state actors, but rather that the U.S. overstepped the state attribution criteria. The legal situation is importance as other nation states are finding themselves in similar situations, such as Turkey’s cross-border operations into Iraq against Kurdistan Workers’ Party. A credibility gap does seem to exist between contemporary international custom and the International Court of Justice’s rulings on the right of self-defence against non-state actors without state attribution. The Nicaragua case did allow for self-defence against non-state actors if attributed to a state, and if the “armed attack” amounts to the same scale and effect as one carried out by regular forces. The state practice arguably changed with the 9/11 attack. The international community’s reaction to the 9/11 attack does seem to indicate that a right of self-defence against non-state actors does indeed exist, and that state attribution requirement from the Nicaragua case is not as important as it used to be. This is evident from groundbreaking Security Council resolutions 1368 and 1373 that reaffirmed the right of self-defence in the context of 9/11, even before al-Qaeda’s actions could be attributed to a state. However, in the ICJ recent Israeli Wall Opinion the court made it clear that it was not accepting the newly emerging custom of self-defence, and it made it clear that that Article 51 of the U.N. Charter only refers to exercise of self-defence between nation states.

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