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Pratap Ravindran

NOTHING succeeds like success. And now that the US-led coalition's military initiative has resulted in the displacement of the Taliban regime in Afghanistan, the success of this military action may well result in inadequate global attention being paid to its legal implications.

Let us consider the facts before we attempt to evaluate their legal implications:

The US, on September 11, 2001, was subjected to terrorist acts that resulted in the total destruction of the World Trade Centre in New York by two hijacked commercial passenger jets, and subsequent attacks on the Pentagon in Washington, DC, and Pennsylvania by another hijacked aircraft.

The United Nations Security Council, on September 12, 2001, met at noon and, by 12.42 p.m., adopted Resolution 1368 which reads as follows:

"The Security Council, reaffirming the principles and purposes of the Charter of the United Nations, determined to combat by all means threats to international peace and security caused by terrorist acts, recognising the inherent right of individual or collective self-defence in accordance with the Charter:

1) Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on September 11, 2001, in New York, Washington, D.C., and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;

2) Expresses its deepest sympathy and condolences to the victims and their families and to the US people and the government;

3) Calls on all states to work together urgently to bring to justice the perpetrators, organisers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organisers and sponsors of these acts will be held accountable; and,

4) Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular Resolution 1269 of October 19, 1999."

On September 28, 2001, the UN Security Council adopted, with even greater alacrity, Resolution 1373 requiring member states to cut off the financing of terrorist groups and their activities by all member states.

Resolution 1373 specifically targetted fundraising by terrorists, their financial assets, and their ability to cross borders and acquire weapons.

Under the resolution, member states that did not have laws criminalising terrorist activity were required to adopt and implement such laws immediately.

Resolution 1368 was adopted under Article 51 of the UN Charter while Resolution 1373 rested on Chapter VII of the UN Charter.

The US is one of the five permanent members of the UN Security Council and, as such, has special veto powers which allows it to prevent the formal adoption of any criticism of its actions.

Even more significantly, neither of the resolutions contained a single reference to Afghanistan or Osama bin Ladin... Nor did the September 28 resolution (No 1373) affirming resolution 1368 of September 12 authorise armed action by the US and/or its allies. All the resolution did was affirm the Charter's right to individual and collective self-defence and direct member states to combat threats to international peace and security caused by terrorism "in accordance with the Charter."

In fact, the first references to Article 51, Afghanistan and the Al-Qaeda organisation — although not to bin Laden — were made in a letter dated October 7, 2001, from Mr John D Negroponte, Permanent Representative of the US to the UN, which stated: "In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my government, to report that the USA, together with other states, has initiated actions in the exercise of its inherent right of individuals and collective self-defence following the armed attacks that were carried out against the US on September 11, 2001."

The letter went on to say: "Since September 11, my government has obtained clear and compelling information that the Al-Qaeda organisation, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defence requires further actions with respect to other organisations and other states..."

It added: "In response to these (September 11) attacks, and in accordance with the inherent right of individual and collective self-defence, the US armed forces have initiated actions designed to prevent and deter further attacks..."

Liberal opinions across the board have been unequivocal in its condemnation of the US-led armed initiative in Afghanistan as illegal.

For instance, according to Mr Michael Mandel, professor of law at Osgoode Hall Law School in Toronto, the UN Charter (which constitutes the legal foundation of the organisation) simply does not apply in this context, the frequent references to Article 51 notwithstanding.

Mr Mandel writes: "Article 51 gives a state the right to repel an attack that is ongoing or imminent as a temporary measure until the UN Security Council can take steps necessary for international peace and security. The Security Council has already passed two resolutions condemning the September 11 attacks and announcing a host of measures aimed at combating terrorism. These include measures for the legal suppression of terrorism and its financing and for cooperation between states in security, intelligence, criminal investigations and proceedings related to terrorism. The Security Council has set up a committee to monitor progress on the measures in the resolution and has given all states 90 days to report back to it. Neither resolution can remotely be said to authorise the use of military force. True, both, in their preambles, abstractly `affirm' the inherent right of self-defence, but they do so `in accordance with the Charter'. They do not say military action against Afghanistan would be within the right of self-defence. Nor could they. That is because the right of unilateral self-defence does not include the right to retaliate once an attack has stopped. The right of self-defence in international law is like the right of self-defence in our own law: It allows you to defend yourself when the law is not around, but does not allow you to take the law into your hands."

Other critics of the US action define its illegality within the parameters of the UN Charter which imposes obligations on the member states with regard to the use of force (Article 2), the right to self-defence (Article 51) and the obligation of regional agencies such as NATO to act in accordance with the Charter (Article 52).

Article 2 of the Charter prohibits the use or threatened use of force against another state. This prohibition embodied in this Article is a component of customary international law and is universally binding — even on states that are not members of the UN. It is in the context of this prohibition that the UK Prime Minister, Mr Tony Blair's October 2 speech ("I say to the Taliban: surrender the terrorists; or surrender power") was condemned by the liberal community the world over as manifestly in violation of international law.

Article 51 of the UN Charter gives member states limited powers to defend themselves against a continuing armed attack until such time that the Security Council intervenes to restore peace. It most certainly does not create any right to initiate retaliatory violence and further does not nullify the obligation created under Article 2.

As for Article 52 of the Charter, it restricts regional agencies to activities consistent with the purpose and principles of the United Nations. In other words, the position adopted by the US and its allies that an attack against one is an attack against all has no basis in the Charter.

These, then, are the arguments put forward by those who say that the US-led military action against the Taliban regime in Afghanistan was illegal.

Let us now turn to the views of those who believe that the US did, in fact, have a sound legal basis for its action in Afghanistan. The proponents of the legality of the US action, in essence, seek either to obfuscate the applicability of Article 51 (the reference to it by Mr John Negroponte notwithstanding) or to stand it on its head. For instance, the inherent right of self-defence rests on an "armed attack". Was the September 11 attack an armed one? Assuming it was one, was the attack carried out by a nation-state? Obviously, it was not, and Article 51 makes no reference to terrorist groups. This, according to those who support the legality of the US action, constitutes a significant weakness in international law in that it does not address the problems associated with what is called "asymmetric warfare" involving a confrontation between a nation-state and a terrorist group.

Further, Article 51 limits the defensive action that can be taken in such time as the "Security Council has taken measures necessary to maintain international peace and security".

Did the Security Council initiate any such action? Well, it did pass a resolution on September 12, condemning the attacks and calling for the perpetrators and those harbouring them to be brought to justice. It also endorsed "all necessary steps" that had to be taken in response to the September 11 attacks.

And then again, NATO invoked Article 5 of the Washington Treaty declaring the attack on the US to be an attack on all NATO members. This article, which embodies the fundamental principle of the North Atlantic Treaty Organisation (NATO), states: "The parties agree that an armed attack against one or more of them 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, will assist the party or parties so attacked by taking forthwith, individually and in concert with other parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area."

These arguments are manifestly weak and do not merit further attention. But there are certain problems with Article 51 that need to be dealt with in the post-September 11 context. For one, Article 51 says that "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 UN until the Security Council has taken measures necessary to maintain international peace and security."

It is clear that the right of self-defence is not created by the Charter but is the sovereign right of a state that rests on the principle that a state has the right of self-preservation — a right that pre-existed the UN Charter.

For another, Article 51 stipulates that an attack must "occur". This would seem to imply that a victim state must sit on its hands and actually experience an attack before it responds. This just does not make sense in an age of nuclear weapons when the first attack may also be the only one.

And finally, who decides that the "measures" referred to in Article 51 are sufficient to "maintain international peace and security?" The Security Council or the victim state?

There can be no better time than the present for experts in international law to iron out these and other wrinkles.

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