The United States (US) over the recent years has developed a national policy based on the pre-emptive doctrine against terrorist groups and allegedly terrorist nations. This doctrine asserts that a state reserves the right to act and use force based on what a state self determines as imminent threat to its national security. The basic question that this paper seeks to answer is whether such preemptive use of force can be exercised responsibly to counter potential terrorists, absent amendments to the current relevant United Nations Charter (UN Charter) provisions. This paper argues that there is need for increased interpretation of the UN charter, and in some specific instances amendments are needed to respond to the evolving new global challenges, the newest and most threatening challenge being global terrorism.
Part I will give a brief analysis of the nexus between law, society and power and how this nexus affects the applicability of the UN Charter in the 21st Century. Part II will give an evolutionary perspective of the principle of self defense and pre-emptive action, the basic provisions of the UN Charter, and how the same have evolved through case law and customary international law. Relevant cases will be discussed and used to illustrate that there is a gap in the UN Charter Law that legal reform must fill.
Part III will briefly discuss the nature and scope of terrorism as a global challenge. Having some basic knowledge on terrorism and the global challenge it poses will lead to Part IV, which will discuss whether preemptive self defense is a good tool for combating terrorism, and whether there has been a responsible exercise of preemptive self defense in combating terrorism. Part V will lay down the challenges that the UN faces in dealing with the threats to world peace, terrorism being the most significant and recent, and the dilemma as to what responses the United Nations (UN) should take in dealing with terrorism. Finally, part VI will give several recommendations on what reform ought to take place. This paper will conclude that the UN Organization and the UN Charter clearly need far-reaching reform to prevent and respond to all the threats we face today.
THE UNITED NATIONS’ FRAGILE BASE
Society is dynamic. While societal norms are emerging or changing, the traditional view has been that the law needs to keep up with these changes to ensure that there are no gaps. Such gaps are usually the root cause for anarchy; the UN Charter is no exception. The lack of very definitive laws governing use of force may have contributed to the instant debate on preemptive strikes. Similarly, there is interaction between society, power, and the legal order. Law gives and limits power, and depending on how much limitation there is, the societal effects would vary. Law also legitimizes the exercise of power, which in turn guarantees the effectiveness of the legal system.
The UN Charter was based on a fragile equilibrium between law and power.[1] The drafters of the UN Charter intended to outlaw war by introducing a blanket ban on the use of force in international relations.[2] This equilibrium has now collapsed.[3] We now live in a world of old rules and new threats. The existing rules and institutions created to address the economic, political, and security problems of the last century are now inadequate for solving a new generation of threats to world order.[4] With the rise of global terrorism, the nature and character of power has changed. It is this change in nature that has given rise to new justifications in the use of force, key among them being, preemptive use of force.
SELF- DEFENSE AND PRE-EMPTIVE ACTION UNDER THE UN CHARTER
On its face, the UN Charter is quite clear about its intent: to initiate a new global era in which war is forbidden as an instrument of state policy, but collective security becomes the norm. Article 2(4) of the UN Charter[5] essentially prohibits states from using force against one another and instead, Articles 42 and 43 envisage the collective use of force. This intent would have worked in an idealized world where no state would ever attack another. The reality has been that states have over and over again attacked each other hence the need for self defense.[6]
The Preamble of the UN Charter states that armed force is not to be used save for the common interest of nations. [7]Further, Article 2(4) of the UN Charter clearly states that “nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…”[8] except when authorized by the Security Council, under Chapter VII of the UN Charter. An exception to this rule is in Article 51 of the Charter which states that “nothing in the Charter shall impair the inherent right of individual, or collective self defense if an armed attack occurs… until the Security Council has taken necessary measures to maintain international peace and security…” [9]Article 51 is thus seen to authorize self defense.
The UN Charter contains no definition of the words “armed attack”. The meaning of the term “armed attack” as used in Article 51 of the Charter was authoritatively determined by the International Court of Justice (ICJ) in Nicaragua v. United States of America.[10] The court in the instant case confronted the argument that Nicaragua had carried out an armed attack against El Salvador. The argument was used to justify defensive force by the United States in assisting El Salvador.[11] Nicaragua was allegedly providing weapons and other support to rebels seeking to overthrow the Salvadorian government. The ICJ rejected the argument and held that an armed attack occurs when regular armed forces cross an international border or when a state sends “armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another state of such gravity as to amount to an actual armed attack by regular forces.”[12]
Gathering from what the court said, the concept of armed attack would require an attack to be of a certain threshold of force, a sufficient level of gravity and severity, and use of military means, to qualify as an armed attack.[13] This of course creates a big problem as far as terrorist attacks are concerned. The September 11 attacks on the United States were not done by any military group, further it is debatable as to whether the means used fell within the definition given in the Nicaragua case.
Following the September 11 attacks, the UN strongly condemned the acts of terrorism but declined to characterize them as an armed attack under Article 51 of the UN Charter.[14] The result of the attacks, however, was of such force and magnitude as to constitute an armed attack, yet the legality of the use of force is also based on the timing of the response. A state may not invoke the right to self-defense to punish an aggressor after the end of an attack or to deter future attacks.[15]
Many times, states have claimed a right of anticipatory or preemptive self defense under this article (Article 51 of the UN Charter) claiming that there need not be an armed attack for as long as there is justifiable threat and the Security Council has not taken any measures to deal with the threat. This was the US argument that led to the birth of the Bush Doctrine on preemptive self defense.[16]
The use of Preemptive self defense[17] traces its history back to 1837, as was canvassed by the then US Secretary of state Daniel Webster in the Caroline case.[18] In a classical attempt to define and also to limit it, Webster concluded that such a right arises only when there is a “necessity of self defense … instant, overwhelming, leaving no choice of means and no moment for deliberation.” He cautioned that it permits “nothing unreasonable or excessive.”[19]
The evolvement preemptive self defense was based on the reasoning that no state can be expected to wait an initial attack, which, in the present state of armaments, may well destroy the state’s capacity for further or future resistance and so jeopardize its very existence. However, unilateral recourse to use of force whenever any state felt threatened would lead to anarchy. The law as prescribed by the UN Charter cannot have intended to leave every state free to resort to military force. While the law needs to acknowledge the fact that states need to preserve themselves, there is need to ensure that such exercise of self preservation is carried out responsibly through clear legal guidelines. Therein lies the problem, because the current charter does not provide such guidelines for the exercise of the right of preemptive self defense.
THE GLOBAL CHALLENGE OF TERRORISM
A. Definitional problem
The statement, “one man’s terrorist is another man’s freedom fighter,” has not only become a cliché, but also one of the most difficult obstacles in coping with terrorism.[20] Several scholars have attempted to define terrorism. In their book, “Political Terrorism,” Schmidt and Youngman cite one hundred and nine different definitions of terrorism obtained in a survey of leading scholars.[21] From these definitions, the authors isolated the following recurring elements, in order of statistical appearance in the definitions: violence, force (appeared in 83.5% of the definitions); political (65%); fear, emphasis on terror (51%); threats (47%); psychological effects and anticipated reactions (41.5%); discrepancy between the targets and the victims (37.5%); intentional, planned, systematic, organized action (32%); methods of combat, strategy, tactics (30.5%).[22]
The United States defined terrorism as the “unlawful use of violence against the United States, citizens of the United States or any other nation, outside the boundaries of the United States, apparently intended to intimidate or coerce a civilian population, influence government policy, or to affect the conduct of a government for political or social objectives.”[23] In including the phrase “outside the boundaries of the United States”, the drafters fully understood the increasing global American presence and believed that terrorism against U.S. citizens needed to be addressed beyond national boundaries.[24]
The United Kingdom Terrorism Act of 2000[25] defines terrorism in section 1(1) as “…acts involving serious violence against a person, serious damage to property, acts that endanger a person’s life, other than that of the person committing the action; acts that create a serious risk to the health or safety of the public or a section of the public, or acts designed to seriously interfere with or disrupt an electronic system.”[26] The United Kingdom definition of terrorism is quite different in comparison with the United States one.[27] The former provides a broad definition of the criminal act of terrorism and specifically names certain terrorist acts, while the later, while having the element of intent, softens the requirement and does not specifically list the acts that constitute terrorist criminal acts.
Netanyahu, a former Israeli Prime Minister in his book defines terrorism as “the deliberate and systematic assault on civilians to inspire fear for political ends.”[28] Global security, environment and international terrorism expert, Bruce Hoffman, defines terrorism as “the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change.”[29] Boaz Ganor in his article defines terrorism as “the intentional use of, or the threat to use violence against civilians or against civilian targets, in order to attain political aims”[30]
Kofi Annan, the UN Secretary General, in a keynote address at the closing of the plenary of the International Summit on Democracy, Terrorism and Security in Madrid pointed out that the high level panel he had set up to study global threats, and recommend changes in the international system, called for a definition of terrorism “ which would make it clear that any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians and non-combatants, with the purpose of intimidating a population or compelling a government or international organization to do or abstain from doing an act.”[31]
Due to the political nature of terrorism, states have not been able to reach an agreement on a comprehensive convention that would include all types of terrorist acts and that would be applicable to state-sponsored terrorism.[32] There is need for the adoption of one universally accepted definition of terrorism. The UN has not been able to come up with a universal definition of terrorism.[33] However, the UN and its specialized agencies have long been active in the development of a wide range of international legal instruments aimed at suppressing various terrorist activities and bringing the perpetrators to justice, though most of these instruments were introduced after various incidents had already taken place[34]
Though there are many definitions of terrorism available for legislative purposes, terrorism per se has never been explicitly defined in any of the seventeen existing multilateral anti-terrorism conventions.[35] Moreover, the multilateral Conventions are not applicable to state sponsored terrorism. They apply only to terrorism committed by individual actors. The absence of a universally accepted definition of terrorism and the inapplicability of multilateral antiterrorism legislation to state-sponsored terrorism reflect deeply the political nature of the term terrorism, and the absence among nations of commonly shared values about the rule of law, the legitimacy of goals, and the means to achieve these goals.[36]
In order to effectively combat terrorism, we must understand what it is, that is we must be able to define it. Knowing and understanding what it is, would help create a more permanent strategy to combat terrorism. For purposes of this study, a definition shall be adopted in order to illustrate the nature of terrorism and why preemptive use of force has been used in trying to combat terrorism. Terrorism shall be defined as “the intentional use of, or threat to use violence against civilians or against civilian targets, in order to attain political aims.”[37] This definition is based on four important elements: the nature of the activity (use of or threat to use violence); the aim of the activity which is always political; the targets who are always civilians; and the magnitude of the threat.
B. The Nature of terrorism
Many agree that terrorism is not new.[38] What is new is the range, scale, and intensity of the threat.[39] Characteristics of terrorist warfare fundamentally have changed in recent years. No one country stand safe as terrorism has become a universal problem that affects all nations. As Professor Falk notes, “megaterrorism is a unique challenge, differing from earlier expressions of global terrorism, by magnitude, scope, and ideology, representing a serious effort to transform world order as a whole, and not merely change the power structure of one or more sovereign states.” [40]
Terrorism is a weapon against order. Few if any democracies can claim to have remained immune to the political or social claims of terrorists.[41] Terrorism poses an enormous threat to humanity and to the peace and security of the world. In today’s world of advanced technology and increased mobility, terrorists have changed their focus from conventional to non-conventional warfare.[42] Modern day terrorists seek and have the potential to acquire nuclear, biological and chemical weapons.
The idea that a nation-state would use non-conventional weapons is frightening enough, but at least the “balance of fear” in the past helped to minimize the chances of such occurrence.[43] However, terrorists are characterized by their lack of adherence to self-imposed restraints of moral standards. Instead, they place “the cause” above all in the belief that the end justifies the means used to achieve it.[44] As US President George Bush explained, “Deterrence – the promise of massive retaliation against nations- means nothing against shadowy terrorist networks with no nation or citizens to defend.”[45] It is against this background that nations such as the US have sought to use preemptive strikes in an effort to combat terrorists.[46]
IV. RESPONSIBLE EXERCISE OF PRE-EMPTION TO COUNTER POTENTIAL TERRORISTS
The use of preemptive self defense has over the years given different results, its main problem being its ambiguity. In the right circumstances, it can be a prescient measure that, at low cost extinguishes the fuse of a powder-keg.[47] In the wrong circumstances, it can cause the very calamity it anticipates.[48] The 1967 Israeli Strikes against Egypt was widely seen to be warranted in the circumstances where Cairo’s hostile intention was evident and Israel’s vulnerability demonstrated.[49] The UN did not condemn the unauthorized strikes, but instead insisted like most states did that a very small densely populated state cannot be expected to await a very probable, potentially decisive attack before availing itself of the right of self-defense.[50]
In the case of the Cuba missile crisis, many states appeared to have been less convinced that the US was genuinely and imminently threatened.[51] In the end however, the withdrawal of the missiles was seen by most states as a positive accomplishment. On the contrary, Israel’ aerial strike against the Iraqi nuclear plant led to a categorical condemnation by the UN system and a denial of both the legality and legitimacy of the recourse to preemptive self defense. In so doing, many were not opposed to a right of preemptive self defense in principle but, rather they did not believe that Iraq’s nuclear plant was being used unlawfully to produce weapons, and that a nuclear attack on Israel was neither probable nor imminent. They may have not been accurate in their assertions, but they were surely right in subjecting to a high standard of probity any evidence adduced to support a claim of use of force in anticipation of rather than as a defense to an armed attack.
Two weeks after the simultaneous bombings of the U.S. embassies in Nairobi and Dare salaam, the US launched missile attacks against “terrorist targets” in Sudan and Afghanistan. In Sudan, the missiles struck a factory which was allegedly producing ingredients of a lethal nerve agent intended for the Al Qaeda terrorist network while, in Afghanistan, they struck an “extensive terrorism training complex” during a meeting of “key terrorist leaders” among other targets.[52] In so doing, the US invoked the right of self defense to justify the strikes, arguing that they were necessary to forestall imminent terrorist attacks about which it possessed concrete intelligence information.[53] The US did not reveal the evidence of impending terrorist attacks and this essentially prevents as adequate evaluation of its self-defense claim.[54]
The basic question that one may seek to answer is whether preemptive use of force can be exercised responsibly to counter potential terrorists, absent amendments to the current relevant UN Charter provisions. National Security strategies of different nations are more often than not influenced by national interests and self motivations thereby making it difficult for responsible action to be exercised. The United States, for instance, recently sought, particularly through its September 2002 National Security Strategy,[55] to extend the general right of pre-emptive self-defense to more distant and uncertain challenges.[56] This strategy was mainly grounded on what is popularly known as the Bush doctrine of pre-emptive self defense, and has been widely criticized due to the ambiguities it creates.
The Bush doctrine generally proposes unilateral pre-emptive use of force on potential terrorists or potential terrorism threats. Its principal proposal, the adaptation of “the concept of imminent threat to the capabilities and objectives of today’s adversaries” would introduce more ambiguity into the law, thus allowing power and influence to play a major role in determining whether self-defense is available in particular situations.[57] This doctrine triggered a debate in the academic and governmental circles and in many instances sparked worldwide protests and received very minimal support.[58] India, Israel, Russia, and Australia responded favorably,[59]while most Asian and African countries rejected it, and to name a few Namibia,[60] Indonesia, Thailand, Malaysia and the Philippines.[61]
In Russia, for example, the notion of “preemptive military actions” is absent in both its National Security concept and the Military doctrine of the Russian federation.[62] It could however, be found in both documents if read “between the lines.”[63] Further, Russia would not hesitate to use preemptive force against terrorists as evidenced by the words of General Yuri Baluevsky, chief of Russia’s general staff in the wake of September 8th, 2004 hostage taking as a school in Russia in which 335 Russians were killed.[64] As one Russian scholar puts it,[65] the National Security concept allows for the “realization of operational and long term measures aimed at prevention and neutralization of internal and external threats.”[66] In another context, it speaks of the necessity for the Russian Federation in the name of national security interests “to react to crisis situation in as early as possible stage”.[67]
Similarly, Australia’s support of preemptive strikes against terrorism was seen through Prime Minister John Howard’s statement that he would be prepared to launch pre-emptive action overseas to prevent a terrorist attack on Australian soil.[68] He further claimed that international law under the United Nations was inadequate to deal with terrorism, and went on to suggest that the UN Charter be amended to allow for a right of unilateral preemptive action.[69] These comments drew rapid and angry responses from the governments of Thailand, Indonesia, Malaysia and the Philippines.
President Bush backed Howard’s comments through his spokesman Ari Fleischer. Of course Howard’s position was consistent with the Bush doctrine as mentioned by Fleischer in a televised press conference in Washington.[70]
The Philippines, in light of Howard’s preemptive strike statement against terrorists in neighboring Asian countries, cautioned against rushing into an antiterrorism pact with Australia. Philippine Security Advisor Roilo Golez termed the proposed antiterrorism pact with Australia as a likely “move by Australia to use it for its own preemptive strike agenda.”[71] The fear that most countries do have, as seen from their reactions, is the justification of such unilateral pre-emptive attacks.
Japan, while expressing support for a right of preemptive self-defense, was careful to confine its claim to the Caroline case criteria.[72] Further opposition to the Bush doctrine was evident in speeches at the opening of the 58th session of the UN General Assembly in September 2003. In particular was the Namibian foreign minister’s speech where he observed that there was a call for a return to multilateral dialogue, persuasion, and collective action as the only way to resolve conflicts facing the international community today.[73] This further strengthens the argument that it would be very difficult for a state, acting unilaterally under its own perception of imminent threat, to act responsibly.
The Bush doctrine establishes a very dangerous precedent that is already increasing instability around the world, with a number of states, besides those mentioned above, now claiming the same right to use force preventively against other states for fear that the later would use their weapons of mass destruction against the former. For example, tensions between India and Pakistan over Kashmir increased as a result of this new doctrine.[74] Indian Foreign Minister Yashwant Sinha noted that India has “a much better case to go for preemptive action against Pakistan than the United States has in Iraq”.[75] Pakistan on the other hand was not very amused by these remarks and promised to retaliate in much bigger way.[76]
The Bush doctrine was met with so much resistance chiefly because of the precedent it would set in terms of a unilateral determination that another state posses a sufficient threat to justify preemptive strike. Preemptive use of force is often difficult to justify because clear evidence that a threat is imminent is rare. Further, a state that is concerned about its own national security will less likely be objective in determining that such a threat truly exists.
The implications of a preemptive doctrine are rather obvious; tendencies to attack are now increased. While it is true that there is need to revise the UN Charter, as suggested by the Australian Prime Minister, such amendment should be very specific as to who determines what a terrorist threat is, and who would regulate such preemptive use of force in trying to combat terrorism.
V. CHALLENGES
On November 4, 2003, the UN Secretary General Kofi Annan created a high level panel to asses the principal threats to international peace and security in the 21st Century and to recommend changes that would improve the effectiveness of the United Nations in responding to those threats.[77] Two organizations involved in the panel discussions termed this as “a rare window of opportunity that had been opened for meaningful discourse on the use of force.”[78] The panel, consisting of 16 highly knowledgeable and respected persons released its report in December 2, 2004.
Some of the challenges that the panel identified included the perception of world threat; what might be a threat to one country might not be viewed as a threat by another depending on the magnitude of the threat. The panel pointed out that without a common understanding of what constitutes a threat, broad agreement on an appropriate response would be hard to achieve.[79] As one of the participants noted, “If we don’t agree on a problem, we can’t agree on the solution.”[80]
Second, the panel noted that terrorism needed to be defined. Without a definition of terrorism, it is impossible to formulate or enforce international agreements against terrorism. Finally, while there is general awareness in the UN of the need for collective response in the face of terrorists whose sectarian militancy spurs them to spectacular destruction, there is deep division about what shape this response should take.[81]
This deep division has been created because of the obvious gaps that the law of the Charter possesses. As discussed above, the division further deepened after the emergence of the Bush Doctrine. There is, thus, a need to have a more unifying legal order.
VI. RECOMMENDATIONS
New security threats require new legal responses. Global terrorism constitutes a radical challenge to the established legal order, which places the viability of the 1945 Charter-based system in question. International law on the use of force must be revised.
a) The Charter System Versus Global Terrorism
It is clear that Article 51 has almost lost its relevance in the context of global terrorism and has become a substantially ineffective mechanism for responding to the continuing terrorism threat. Article 51 fails to permit unilateral recourse to military force in response to terrorist attacks not attributable to a particular state, let alone by way of preemptive strikes.[82] In order to give it more power and make it a more legitimate restraint mechanism, this article needs to be amended to include self defense against terrorism.
According to Professor Glennon, the reality is that “Article 51 is grounded upon premises that neither accurately describes nor realistically prescribes state behavior and to ignore that dissonance ill serves efforts to develop a realistic, workable legalistic order to govern the use of force.”[83] The rise of global terrorism obligates the international community to articulate a new security doctrine supporting preemptive attacks against terrorists. In light of contemporary terrorist threats, article 51 must be reformed so as to include the right to take preemptive actions. This new exception should be interpreted narrowly and should identify reasonable limits,[84] failure to do so would create more uncertainty for the law of self defense and hence more anarchy in international relations.
Further, there needs to be a clear definition of what an armed attack would constitute, as the same is lacking in the current UN Charter. Any expansion of the circumstances justifying self-defense will place a higher burden of proof on a state in showing justification or seeking authorization for the steps that it takes while trying to defend itself.
Unless the current UN Charter is amended, states will continue to judge for themselves what measure of force is required for their self-defense, or any other action that it may deem appropriate, not so much because self-defense is permitted by the UN Charter, but because “self-defense is necessary for survival, and survival is intrinsic in the very fact of statehood.”[85]
b) Define terrorism
According to Schmid, terrorism has been situated and implicitly defined in various contexts such as crime, politics, war, propaganda and religion, and depending on which framework one chooses, certain aspects of terrorism get exposed while others are placed ‘outside the picture’.[86] Franklin observes that for most people, the term terrorism cannot be defined and should therefore be eliminated, at least for purposes of analyzing efforts to combat acts termed as international terrorism.[87] Judge Baxter of the International Court of Justice said, “… the legal concept of “terrorism” was never inflicted upon us; the term is imprecise, ambiguous, and above all it serves no operative legal purpose.”[88]
However, in spite of the criticism, attempts to define terrorism continue.[89]many countries and several institutions are now all in agreement that there is need for a clear and unified definition of terrorism.[90]
Terrorism being an international phenomenon, responses to it must be on an international scale. Developing an effective international strategy requires agreement on the definition of the term “terrorism”.[91] Without a definition of terrorism, it will be impossible to formulate and effectively enforce international agreements against terrorism.[92]
c) Experience is the best teacher
Afghanistan and Iraq provide valuable opportunities for institutional growth both nationally and internationally, so do the many other instances where there was use of force. Further, such experiences provide an opportunity to test the current legal systems, both national and international. Several debates in the international arena sprouted as a result of the crises that face the world. Anticipating and managing potential disagreements could lay an important foundation for change. This is the kind of change that the world needs now to be able to effectively maintain world peace and security.
d) Prevention is better than cure.
Prevention is better than cure. Prevention is a vital part of any effective strategy to protect people against terrorism. The UN must make better use of its assets through preventive strategy in the fight against terrorism. It should articulate an effective and principled counter-terrorism strategy that is respectful of the rule of law.[93] Given the gravity of today’s threats, the world needs to be far more committed to prevention. Constantly changing laws and building consensus on those laws to ensure that states carry out their obligations is one way to achieve this.
Currently, nothing prevents the UN Security Council from identifying a government with no internal checks on its power that possesses or seeks to acquire weapons of mass destruction as a threat to peace and taking measures against it. But articulating and acknowledging a specific duty to prevent such governments from even acquiring such weapons will shift the burden of proof from suspicious nations to suspected nations and create the presumption of a need for early and, therefore more effective action.[94]
In 1963, many thought that 25-50 states would possess nuclear weapons by this year; the Nuclear Non-Proliferation Treaty has helped prevent this. The World Health Organization, which led efforts to eradicate small pox and rolled back the threat of polio, recently helped halt the spread of SARS in Asia and Ebola in Africa and save lives of tens of thousands of people. [95] There are good lessons to be learned from this and hopefully the UN will rise up to the occasion and realize that prevention is better than cure.
e) Enhancing the Role of the Security Council
Strengthening the role of the UN in the course of building a better world means enhancing the effectiveness of the Security Council, it being the organ that plays the primary role in the maintenance of international peace and security. At present, one of its weaknesses is the inadequate effectiveness of its ability to control and prevent crisis situations.[96]
As noted in the 1982 Annual Report of the UN Secretary General regarding the work of the UN: “There are a number of directions in which member states might actively cooperate in strengthening the machinery in the UN Charter … more permanent and systematic use of the Security Council is one of them. If the Security Council had succeeded in exercising active control over conflict situations and undertook, when necessary, discussions before the crisis stage were reached, this would make it possible to resolve conflict situations at an early stage before they grow into a direct threat to peace and security.”[97]
The responsibility to enforce the purposes of the UN lies with the Security Council. However, the veto power that its five permanent members posses can effectively forestall the UN from action. These five members have dominated the UN decision making process through the veto power, allowing them to protect their own interests. To achieve greater compliance from the permanent members, the Security Council would have to be reformed to reduce abuse of the veto power. [98]
The UN high level panel on the Use of Force[99] suggested that one way to reform the Security Council is through the expansion of the Council membership from 15 members to 24 members, either by adding six new permanent members, without veto, or by creating a new category of four-year, renewable seats, which would be regionally distributed.[100] Either formula would strengthen the Council’s legitimacy in the eyes of the world, by bringing its membership closer to the realities of the 21st Century – as opposed to those of 1945, when the UN Charter was drafted.[101]
CONCLUSION
The alternative to preemption was and remains, deterrence. Deterrence, however, is a strategy that assumes rational actors who share the fundamental values of international peace and security, or at least who benefit from a healthy instinct for self-preservation.[102] It is of little value against individuals and organizations who engage in terrorist activities, who do not value the lives of their victims. Ensuring that the law on the use of force remains in step with the emerging demands of a changing world order is the biggest challenge that the UN has.
There can never be a better time than now, when the doctrine of preemption needs to be provided for in the UN Charter, and the UN should govern the exercise of preemptive force. The principles enunciated in the UN Charter need to be respected and to be the governing authority as far as relations between states are concerned. For over fifty years now, the UN Charter has guided the conduct of states and provided an avenue for maintenance of world peace and security.
The UN has a special place in the international institutional machinery. History knows no other organization in which the peoples of the world have placed such hopes as the UN. Born in grim years, when the roar of battles of the Second World War still had not quieted, this organization proclaimed, as its principal task, the saving of succeeding generations from the terrors and misfortunes of war.
The drafters of the UN Charter understood that, just like any other written law, the document and the organization would need to evolve to respond to the new global challenges. The UN clearly needs far-reaching reform if it is to prevent and respond to all threats that we face today.
[1] Mikael Nabati, Self defense, Global Terrorism and Preemption, 13 Transnat’L. & Contemp. Probs. 771, 773 (2003).
[2] See Art. 2 (4), The United Nations Charter, http://www.un.org/aboutun/charter/ (Accessed April 1, 2005).
[3] Supra n. 1 at 774.
[4] Lee Feinstein & Anne-Marie Slaughter, A Duty to Prevent, (Council on Foreign Relations, Inc. Foreign Affairs, 2004) (Hereinafter Feinstein).
[5] The UN Charter, http://www.un.org/aboutun/charter/ (Accessed April 11, 2005).
[6] Supra n. 4.
[7] Supra n. 5.
[8] Id.
[9] Id.
[10] Military and Paramilitary Activities (Nicaragua v. United States), 14 I.C.J. (June 27, 1986). (According to Article 59 of the International Court of Justice (ICJ) Statute, decisions of the ICJ are not binding, but UN members’ states generally comply. Judicial decisions in general constitute a “subsidiary means for the determination of rules of law”. Statute of the International Court of Justice, (June 26, 1945)).
[11] Id.
[12] Id. at ¶ 195.
[13] Nicaragua v. U.S., 14 I.C.J. at 103-104, 126-127 (1986). (The ICJ in this case pointed out that “while the concept of an armed attack includes the dispatch by one state of armed bands into the territory of another state, the supply of arms and other support to such bands cannot be equated with armed attack.” It further noted that “assistance to rebels in the form of provision of weapons or logistic or other support” does not constitute armed attack. Active and not passive support was necessary to meet that armed attack requirement).
[14] See Michael J. Glennon, Military Action against Terrorists under International Law: The Fog of Law: Self-defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J.L. & Pub. Pol’y 539 nn. 13-15 (2002).
[15] William V. O’Brien, Reprisals, Deterrence and Self-Defense in Counter terror Operations, 30 VA. J. INT’L L. 421 (1990).
[16] See generally Part IV of this study.
[17] Preemptive self defense is sometimes referred to as anticipatory self defense.
[18] Carter, Trimble & Bradley, International law 969 (4th ed., Aspen Publishers, 2003).
[19] The Caroline case involved an attack by the British on the “Caroline”, a small steamer that had United States citizens on board. The then British Ambassador to the United States tried to justify the British action by stating that the piratical character of the steam boat “Caroline” and the necessity of self-defense and self-preservation, under which they acted in destroying the “Caroline”, were sufficiently established. Webster’s response required the British to show the existence of necessity that was instant and overwhelming. See, Carter, Supra, at 967 (Webster said, “it will be for it to show, also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it”).
[20] Boaz Ganor, Defining Terrorism: Is one Man’s Terrorist Another Man’s Freedom Fighter?, http://www.ict.org.il/articles/researchdet.cfm (Accessed March 22, 2005).
[21] Alex P. Schmidt & Albert I. Youngman et al., Political Terrorism 5 (SWIDOC, Amsterdam & Transaction Books, 1988).
[22] Id. at 29-30.
[23] Antiterrorism Act of 1996, Pub. L. No. 101-519, 104 Stat. 2250 (codified at 18 U.S.C. § 2331).
[24] Frank A. Biggio, Neutralizing the Threat: Reconsidering Existing Doctrines in the Emerging War on Terrorism, 34 Case W. Res. J. Int’l L. 1,8 (2002).
[25] United Kingdom Terrorism Act of 2000, Ch. 11 § 1(1) (July 20, 2000).
[26] Id.
[27] Susan Tiefenbrun, A Semiotic approach to a Legal Definition of Terrorism, 9 Ilsa J Int’l & Comp L 357,370 (2003).
[28] Binyamin Netanyahu, Fighting Terrorism, 8 (New York: Farrar, Straus & Giroux, 1995).
[29] Bruce Hoffman, Inside Terrorism 43 (Victor Gollancz ed., 1998), cited in Brad Roberts, America the Vulnerable Bull, 55 (1) (Atomic Scientists, Jan./Feb. 1999) http://www.bullatomsci.org/issues/1999/jf99/jf99reviews.html#anchor464756 (Accessed April 7, 2005).
[30] Id.
[31] UN News, Annan Lays out Detailed five Point UN Strategy to Combat Terrorism, (March 10, 2005), http://www.globalpolicy.org/empire/terrorwar/un/2005/0310fivept.htm (Accessed March 8, 2005).
[32] M. Cherif Bassiouni, International Terrorism: Multilateral Conventions 14, n. 48 (1937 - 2001). (Transnational Publishers, Inc. 2001).
[33] Supra n. 27 at 376.
[34] Hans Corell, symposium combating international terrorism
[35] Supra n. 32 at xxv.
[36] Supra n. 32 at xxvi.
[37] Supra n. 20.
[38] Supra note 29.
[39] Id.
[40] Supra n. 1 at nn 6, 41.
[41] Nicholas Rostov, Before & After: The Changed UN Response to Terrorism since September 11, 35 Cornell Int’l L. J. 490 (2002).
[42] See, e.g., President George W. Bush, Remarks by the President to United Nations General assembly, USUN Press Release # 162, at http://www.un.int/usa/01_162.htm (Nov. 10, 2001); See also, The National Security Strategy of the United States, http://www.whitehouse.gov/nsc/nss.html (Sept. 2002) (Accessed April 5, 2005.).
[43] Barry A. Feinstein, A paradigm for the Analysis of the Legality of the Use of Armed Force Against Terrorists and States that Aid and Abet Them, 17 Transnat’l Law. 51, 53 (2004).
[44] Id.
[45] Id.
[46] Id at nn. 10,11.
[47] Supra n. 18 at 985.
[48] Id.
[49] Id.
[50] Id. See also, David B. Rivkin, Lee A. Casey, & Mark Wendell Delaquil (hereinafter Rivkin), War, International Law, and Sovereignty: Reevaluating the rules of the Game in a New Century, 5 Chi. J. Int’l L. 467,480 (2005).
[51] Rivkin, Id at 481.
[52] See James Bennet, U.S. Cruise Missiles Strike Sudan and Afghan Targets Tied to Terrorist Network, N.Y. Times A1 (Aug. 21, 1998).
[53] Id.
[54] John-Alex Romano, Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity, 87 Geo. L. J. 1023, 1041 n. 122 (1999).
[55] United States National Security Strategy of 2002, www.whitehouse.gov/nsc/nss.html (Accessed April 12, 2005).
[56] See Michael Byers, Pre-emptive Self-defense: Hegemony, Equality and Strategies of Legal Change, 11 J. POL. PHIL 171, 181-182 (2003).
[57] Nabati, Supra n. 1.
[58] Feinstein, Supra n. 4. (The Bush Doctrine of preemptive strikes set off alarm bells chiefly because of the precedent it would set in terms of unilateral determination of the existence of a threat).
[59] Arieh O’Sullivan, Pakistan Tests Missile amid Fears of Israeli-Indian Strike, Jerusalem Post 4 (Oct 15, 2003) (discussing India and Israeli’s claims).
[60] Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 98 A.J.I.L 542 (2004). (Michael Byers the Canadian chair for Global Politics and International Law at University of British Columbia).
[61] Kyodo News International, Relations with Asian neighbors not damaged, Howard claims, Asian Political News (Dec. 9, 2002).
[62] Alexander I. Nikitin, Preemptive Military Action and the Legitimate Use of force: A Russian View, prepared for the CEPS/IISS European Security Forum in Brussels, http://www.eusec.org/nikitin.htm (Jan 13, 2003). (Prof. Nikitin is the Director of the Center for Political and International Studies in Russia).
[63] Id.
[64] Kim Murphy, Russia Threatens Preemptive Strikes, L.A. Times (Sept. 8, 2004). (General Yuri announced that Russia would use preemptive strikes against terrorist bases in “any region of the world.”).
[65] Supra n. 60.
[66] Id.
[67] Id.
[68] Supra n. 6.
[69] See John Shaw, Threats and Responses: Asia-Pacific; Startling His Neighbors, Australian Leader Favors First Strikes, N.Y. TIMES A11, (Dec. 2, 2002).
[70] Fleischer said, “…and a nation that remains in the status quo after an event like September 11 can only endanger its own people and that is why the president did announce a new doctrine.” “It requires a fresh approach … Australia has been a stalwart ally of the U.S. on the war on terror,” he added.
[71] Kyodo News International, Philippines may reconsider antiterrorism pact with Australia, Asian political news (Dec. 9, 2002).
[72] Shane Green, Japan Ready To Strike First If Threatened, Sydney Morning Herald 8 (May 22, 2003).
[73] Hidipo Hamutenya, Foreign Minister of Namibia, General Assembly Address, (Sept. 30, 2003) (available at www.un.org).
[74] Alyn Ware, Nuclear Proliferation: Rule of Force or Rule of Law? Legal Responses to Nuclear Threats from Terrorism, Proliferation, and War, 2 Seattle J. Soc. Just. 256 (2004).
[75] Sinha, Pakistan Fit Case For Attack By Us, Sify News, New Delhi (April 6, 2003).
[76] Pakistan’s Military ruler, General Musharraf said that “Pakistan was not a very weak country… and as a last resort the atom bomb was possible”. See, Rory McCarthy & John Hooper, Musharraf Ready To Use Atom Bomb, Guardian 18 (London, Apr. 6, 2002).
[77] The Report of the Panels’ findings is available at http://www.un.org/secureworld/pressrel_1.html
[78] The Stanley Foundation, info@stanleyfoooundation.org and the United Nations Foundation, www.unfoundation.org. These two organizations working in partnership, convened groups of prominent scholars and practitioners to sharpen the issues for the Secretary General’s panel.
[79] Supra n. 77.
[80] Id.
[81] Id.
[82] Karl M. Meessen, Symposium: Current Pressures On International Humanitarian Law: Unilateral Recourse to Military Force against Terrorist Attacks, 28 Yale J. Int’l L. 341,346 (2003).
[83] Glennon, Supra n. 14 at 548.
[84] Nabati, Supra n. 1.
[85] Glennon, Supra n. 14 nn. 52, 62.
[86] Alex P. Schmid, Terrorism and Political Violence: Frameworks for Conceptualizing Terrorism, 16 Taylor & Francis, Inc. 197-221 (2004).
[87] Michael Franklin Lohr, Legal Analysis of U.S. Military Responses to State-Sponsored International Terrorism, 34 Naval L. Rev. 1 (1985).
[88] Judge Baxter, A Skeptical Look at the Concept of Terrorism, 7 Akron L. Rev. 380 (1974).
[89] Supra n. 86 at 5.
[90] See part III of this study.
[91] Id. at III (A).
[92] Id.
[93] Kofi Annan, Courage to fulfill our Responsibilities, THE ECONOMIST (Dec 2, 2004).
[94] Feinstein, Supra n. 4.
[95] Id.
[96] Sean D. Murphy, Legal Regulation of the Use of Force, 96 AJIL 237 (2002).
[97] U.N. Doc.A/37/1 (1982)
[98] Andrew M Dorman & Thomas G Tte, Military Intervention – from Gunboat Diplomacy to Humanitarian Intervention, 165 (Dartmouth, 1995).
[99] See Report of the Secretary-General’s High –level Panel on the Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, http://www.un.org/secureworld (Dec.2, 2004). (The UN Secretary General termed the recommendations made by this panel as the most comprehensive and coherent set of proposals for forging a common response to common threats to world peace and security. He further said that if acted on, they would address the security concerns of all states, ensure that the UN works better, strengthen the international rule of law and make all people safer).
[100] On March 21, 2005, UN Secretary General Kofi Annan urged world leaders to implement the boldest changes to the UN in its 60 year history by expanding the size of the Security Council, writing a new definition on terrorism and increase protection of human rights. See Edith M. Lederer, Annan Calls for Bold Changes to U.N., http://abcnews.go.com/US (Accessed March 6, 2005).
[101] Kofi Annan, A Way Forward on Global Security, International Herald Tribune (Dec. 3, 2004).
[102] Rivkin, Supra n. 50 at 497.