No Right of War
There is no legal basis for a US attack on Afghanistan. The Nato alliance situation does not exist.
By Gerd Winter
[This article originally published in: die tageszeitung, October 2, 2001 is translated by Marc Batko from the German on the World Wide Web, www.taz.de.]
This seems to be the hour of military strategists. Not everything that appears effective is allowed in international law. The law is focused on the longer term. The present terrorism problem may not destroy the great achievement of the UN Charter: the prohibition of inter-state use of force.
Only the individual and collective self-defense against the armed attack of a state is allowed according to Article 51 of the UN Charter. Some specialists in international law regard this case as already present and admonish the commensurability command that excludes mere acts of revenge. What are necessary for preventing terror acts are engagements including military engagements against states like Afghanistan.
Exponents of this view see themselves confirmed by the resolution of the UN Security Council on September 12. A more careful reading comes to a different conclusion. In this resolution, the Security Council confirmed a threat to world peace but not an armed attack that alone could activate the right of military self-defense. As to the right of self-defense, the body only acknowledged abstractly that Article 51 of the UN Charter provides this right, not that the presuppositions have occurred in relation to Afghanistan.
No Comparison with Kuwait
The new resolution of September 28 is similar in identifying the threat to peace, not an armed attack. The significance of this text is its emphasis on non-military coercive measures, not belligerent measures. The text could be compared with the 1990 resolution on Iraq's invasion of Kuwait. At that time the Security Council ascertained an armed attack and confirmed Kuwait's right of self-defense.
The case of self-defense does not now depend on an assessment by the Security Council but results from the objective situation. Thus the universally accepted meaning of the term "armed attack" must be probed. The International Court interpreted it expansively in the 1986 Nicaragua case. The judges declared that armament and training of the Contras operating out of Honduras represented an armed attack by the US. This expansive interpretation was by no means nebulous. The mere logistic and financial support of armed groups does not represent an attack, the judges insisted.
For attacks on the US to be an Afghan attack, the terror pilots would have had to be armed, trained and dispatched by Afghanistan. Even if the attacks were controlled and financed by Bin Laden, the government would have had to actively cooperate, not merely through tolerance. This proof is obviously difficult. Therefore a belligerent reaction against Afghanistan for want of the right of self-defense would be unlawful from the beginning.
This also true for the deployment of Nato. If the US were to request military assistance, this would not be allowed according to Article 5 of the North Atlantic treaty. This provision assumes an armed attack of a state. On September 13, Nato rightly made the clarification of this question into the condition for the alliance instance. The vague formulation that an attack "from the outside" is decisive suggests that terror acts not guided by states are sufficient for emergency assistance. This would not be permitted according to the treaty. Nato cannot simply adopt the assessment of an alliance situation by the US. The alliance case itself must be examined. One Nato member does not have a power of definition.
That military measures are unlawful under international law does not mean nothing can be done. When a state tolerates or supports terrorist activities against another state, it violates the 10th principle of the 1970 "Friendly Relations Declaration" of the UN General Assembly.
Violation engenders on one side the obligation for indemnification. On the other side, reprisals below the threshold of war could be taken against the state acting contrary to duty, for example boycott measures.
"Small-scale Force" allowed
Only in two narrowly defined cases are targeted police actions of "small-scale force" permitted. One concerns the protection of citizens. An example is the action of a special Israeli unit in 1976 in Ugandan Entebbe when Palestinian terrorists hijacked an El-Al plane with Uganda's toleration. The other case concerns small-scale violent incursions like border violations answered with limited measures.
The first case is not at hand. Measures for liberating prisoners held in Kabul would be necessary. The second case is limited in time or time-conditioned. Long-term strategies with violent means for combating terrorism are not approved.
Measures beyond these strategies are not possible on the plane of individual states, only in a larger international association on the basis of unequivocal resolutions of the Security Council according to current international law. In the two resolutions on the attacks of September 11, the Security Council identified the threat to international peace. Subsequently the Security Council can take measures according to chapter VII of the UN Charter in stages from calls, exhortations, prosecutions of terrorists and peaceful sanctions to military operations.
The Security Council alone has competence over this, not an individual state like the US. In the case at hand, the Security Council has concretely obligated all states to combat terrorism. Resolutions were passed Afghanistan after the attacks on the American embassies in Nairobi and Daressalam. At the end of 2000, the Security Council obliged the Taliban to shut down the camps and stop the drug trade. An embargo was imposed on military assistance and air traffic.
If these sanctions prove inadequate, the Security Council could pass over to the next stage and resolve police or military interventions. In addition the Security Council could prioritize the oppression of the Afghani population contrary to human rights which in its turn is a threat to peace.
The instruments of the UN Charter are no longer adequate considering the ramifications and manifest combat effectiveness of the terrorist networks. Signing international agreements and establishing an international organization to combat terrorism are imperative. Carefully defined supra-national authorities must be supported and at the same time woven in a more comprehensive initiative confronting the deeper sources of terrorism.
The attack of September 11 has increased the acceptance of supra-national institutions with worldwide responsibilities limiting sovereignty. A deeper reflection on the cuases of terrorism is slowly underway. This readiness should be used for peaceful goals, not for rumors of war or for war.