"LEGAL ANALYSIS: U.S. Campaign Against Afghanistan Not Self-Defense Under International Law"
by Brian J. Foley

On September 11, terrorists killed thousands of Americans and left millions fearful of further attacks.  The attacks are widely believed to have come from a terrorist network based in Afghanistan.  On October 7, the United States launched a military offensive against that country in an effort to prevent future attacks. The U.S. has based its attacks on the international law right of self-defense.  But with the U.S. campaign now in its fifth week, is the claim of self-defense still valid? Was it ever?

Surprisingly, few people are asking this question, based on a belief that the United Nations Security Council has already concluded in two resolutions (1368 and 1373) that the U.S. response is legal self-defense, and that the Security Council gave a green-light to "any means" the U.S. chooses to take. This belief is mistaken.  A look at the full texts
reveals otherwise -- and that the resolutions are far from the war cries some people have imagined hearing.

This belief comes from the language of Resolution 1368, in which the Security Council (not individual nations) said it was "determined to combat by all means threats to international peace and security caused by terrorist acts," and "expressed its readiness to take all necessary steps to respond to the terrorist attacks of  11 September 2001, and to
combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations," and similar language in 1373.  This language is styled broadly, but the resolution takes pains to note the Security Council's "responsibilities under the Charter," which would allow the Security Council to authorize force only under extremely limited Circumstances, and when other measures are impossible -- and most likely under a U.N. flag and command.

Also, when the Security Council actually outlined a broad array of means, in 1373, it did not mention force.  Instead, it ordered member countries to freeze terrorist assets, criminalize the financing and support of terrorists, exchange police information
about terrorists, prevent movement of terrorists through increased border controls, and capture and prosecute terrorists.

Likewise, the resolutions do not conclude that the U.S. strikes are self-defense. Repeating language from 1368, Resolution 1373 "reaffirm[ed] the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations." As we shall see, this right "as recognized by the Charter" is extremely limited. Moreover, in practice the Security Council decides whether particular uses of force are self-defense only after the fact, and after careful consideration (given that, as shown below, self-defense is based on an immediate need to respond, and the response must be proportional to the threatened harm). The last of these resolutions, 1373, was issued on September 28, more than a week before the U.S. started bombing Afghanistan.

The U.S. campaign has been relentless and expansive.  The following analysis will show that it has already exceeded the extremely limited right to self-defense under international law.

SELF-DEFENSE UNDER INTERNATIONAL LAW
The U.N. Charter provides a sweeping prohibition against the use of force, commanding in Article 2(4) that, "All Members shall refrain in their international relations from the threat or use of force .."   Self-defense is the lone instance where a nation can use force without prior approval from the U.N. Security Council.  Contained in Article 51, the exception 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."

Like any exception to a rule, Article 51 must be interpreted strictly in light of the rule's purpose. That purpose is found in the first words of the U.N. Charter, which begins, "We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind .."

The international law standard for whether a particular use of force is self-defense comes from an 1837 incident where British subjects destroyed an American ship, the Caroline, in a U.S. port, because the Caroline had been used in American raids into Canadian territory.  The British claimed the attack was self-defense.  Through an exchange of diplomatic notes, the dispute was resolved in favor of the Americans.  U.S. Secretary of State Daniel Webster urged the following definition of self-defense, which the British accepted: "There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.  [The means of self-defense must involve] 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."  This has been the accepted rule in international law ever since.

This strict standard helps prevent incidents and conflicts from escalating into war, which is the U.N.'s main purpose.  Forcing nations to think up and consider non-violent responses even to illegal, horrific attacks by other nations prevents attacks from escalating into wars that can spin out of control.

This standard does not permit retaliation, and it also prohibits what international law scholars call "anticipatory self-defense."  Most people agree that there is a difference between retaliation and self-defense; it's not hard to see how retaliation can lead to a cycle of violence.  It's harder to understand why "anticipatory self-defense" is prohibited.  That's because many people do not appreciate that the legal definition of self-defense is much narrower than our intuitive conception.  That "the best defense is a good offense" may be true in football and other sports, but it is not enshrined in international or even our domestic law.  For example, you can use force to fend off someone coming at you with a knife or gun, but you can't seek out and kill someone who is plotting to kill you.

An example of  "anticipatory self defense" is Israel's strike against an Iraqi nuclear reactor in 1981, to keep Iraq from developing a nuclear arsenal. The U.N. Security Council condemned the attack, because the threat to Israel, though foreseeable, was not "imminent": there was time to try other measures. Similarly, the U.N. Security Council also rejected Israel's argument that its 1985 attack on PLO headquarters in Tunis was self-defense.

These two situations involved serious dangers, but in each instance there were options besides force. Under this tough rubric, how does the U.S. bombing of Afghanistan hold up?

ARE THE U.S. ATTACKS "NECESSARY"?
IMMEDIATE DANGER:

First, we must ask whether bombing Afghanistan was necessary, and whether it continues to be necessary, to prevent "an immediate, overwhelming danger" from terrorists. There are no airliners flying from Afghani airports toward American targets, which the U.S. could legally intercept and destroy as an immediate danger.  Do the terrorist training camps and Taliban government constitute an immediate threat? Although it appears they do not -- the recent anthrax attacks have been coming from New Jersey -- we should not be too quick to say so. After all, bin Laden has called for the destruction of the U.S. and its citizens, wherever they may be. His tactics are stealth and surprise, and he intends to use and develop weapons of mass destruction.

The U.N. Security Council condemnation of the 1981 Israeli attack against the Iraqi nuclear reactor is precedent that works against those who defend the U.S. attacks on Afghanistan as self-defense.  Some international law scholars have argued that Israel's attack actually does meet the Caroline standard, because destroying the reactor may have been Israel's last chance to avoid a nuclear attack.  Given the enormity of the threat -- nuclear, not conventional -- and Iraq's hostility toward Israel, the surgical strike was necessary, the argument goes.  It must be noted, however, that these scholars are in the
minority, and that their argument suffers because there were other means available to Israel at the time, such as U.N. intervention or sanctions.

On the other hand, if Al-Qaeda camps are developing weapons of mass destruction and training men to use them, might bombing these camps be the only chance for the U.S. to protect itself?  A scenario likely to meet this strict standard would be if terrorists had a "suitcase" nuclear bomb and we knew where they were -- and they were leaving Afghanistan imminently.  Striking them in their camp would most likely meet the standard of self-defense.  However, the U.S. government has not produced evidence of such immediate danger.  The only "immediate" threats appear to be from "sleeper" terrorists already inside theU.S. and Europe.

What about the Taliban, whose army and government installations have been frequent U.S. targets?  It appears that the Taliban has enabled Al-Qaeda, which may or may not pose an "immediate, overwhelming" threat.  But the Taliban itself does not.  No
terrorist acts have been attributed to them, and there is no evidence that the Taliban is planning any immediate ones.

CHOICE OF MEANS: Second, whether our attacks are "necessary" depends on the options available  -- there must be "no choice of means."  Has the U.S. worked hard to avoid war and followed the advice of the many experts on the Middle East who have outlined peaceful, diplomatic solutions? Did our government attempt to negotiate a peaceful solution?

President Bush has twice refused Taliban offers to turn bin Laden over to a third country if evidence against him is produced, instead holding to his initial demand to hand over bin Laden immediately and unconditionally, "dead or alive."  The Taliban's offer was similar to what the U.S. agreed to concerning the Libyans suspected of bombing Pan Am 103 in 1988.

Under the U.N. rules, the U.S. should negotiate. All countries have a responsibility to avoid the calamity of war -- and calamity is possible here.  The Middle East is even less stable now that we've bombed, and some of its powers are nuclear.  Pakistan is less stable as a result of the U.S. campaign, and many of its citizens are rushing to Afghanistan to join Taliban forces.  Perhaps more frightening is the fact that Pakistan's Army has officers sympathetic to the Taliban who could conceivably pass along nuclear weapons.

Indeed, the U.S. may have been better served by supporting a U.N.-led incursion into Afghanistan. U.N. action would have lent more moral authority to the campaign and would have sent the Taliban a loud message that the world, not just the U.S., disapproves.  To its credit, the U.S. did build a coalition, but it lacks the symbolic, moral authority of the U.N.  Using the U.N. might also have prevented some of the anti-Americanism that has risen since the bombing began, and which will likely fuel future
terrorist attacks.

The U.S. has been pursuing other means, including those outlined in U.N. Resolution 1373: working with police bureaus from other nations, moving against terrorists' funds, and ratcheting up border security. In fact, domestic police investigations to disrupt and destroy terrorist networks, and increasing domestic security overall, may prove to be the best means of preventing terrorist attacks.  Diplomatic overtures toward governments in the Middle East could also tamp down some of the anti-Americanism there; so could reducing the poverty and anguish that help breed terrorism.

Certainly, whether the U.S. attacks are necessary is a close question. Bin Laden is intent on destroying Americans, and he uses stealth and surprise, leaving the U.S. few chances to stop him. However, international law does not allow countries to strike enemies who are likely to commit nefarious deeds unless there is an immediate, overwhelming danger that leaves no other means are available.  The U.S. must consider and try "other means" in good faith. Negotiating with the Taliban might be unsavory, but as the U.N. Charter warns us, the "scourge of war" is far worse.

ARE THE U.S. ATTACKS EXCESSIVE IN LIGHT OF THE
THREATENED HARM?
The second requirement for acting in self defense is to use only the force necessary, "nothing unreasonable or excessive."  This requirement is often rephrased to say that any response must be "in proportion to" the threatened harm.  Might a period approaching five weeks of daily bombs and missiles go beyond self-defense?

It depends on the threat -- its size, what it is and where it is coming from. With Al-Qaeda, the threats appear numerous and unpredictable.  They have hijacked domestic airliners and used them as guided missiles.  They are suspected of unleashing anthrax. Scenarios have been posed of terrorists' using airplanes, ships, trains, trucks or even suitcases to carry bombs, conventional or nuclear.  The list of what a well-financed,  hostile terrorist group is apable of seems endless.

In response to these threats, U.S. forces have targeted Al-Qaeda camps as well as Taliban troops and government installations. The attacks continue to expand, in part to limit the threat to U.S. ground troops. The  U.S. has also expanded its aims to include "nation building" -- toppling the Taliban and installing a new government. And, so far -- although the Pentagon will not confirm -- it is likely that hundreds of civilians have been killed by U.S. bombs.

These attacks on Afghanistan most likely do not stand up as proportional to the threat of terrorism on U.S. soil, when the immediate threats appear to come from terrorists "sleeping" in the U.S. and other countries. Eradicating the Taliban, which although reprehensible poses only an indirect threat to the U.S. through its support of Al-Qaeda, also seems to go beyond proportional force.

Most of all, it is troubling that the U.S. continues to place Afghani civilians at risk of death to protect U.S. troops -- especially given that international law and custom oblige troops to limit risks to non-combatants, not vice-versa.  This risk seems especially unnecessary given that we have already inserted soldiers into Afghanistan with no combat losses.  Perhaps more damaging to the U.S. claim of self defense is that, so far, the U.S. has not heeded calls from world leaders to stop bombing so that food may be trucked in now, before the roads are snowed-in. Thousands, if not millions, of displaced Afghani civilians face the specter of starvation in the coming months as winter tightens its grip on Afghanistan, making the roads impassible for food convoys.

The U.S. faces serious threats, but we must keep asking whether the U.S. is engaging in self-defense instead of illegal retaliation or outright aggression. September 11 may be seen as a crossroads for international law.  The temptation to ignore it may be
strong, but if nations follow international law in response even to these horrific attacks, international law will have even more authority and legitimacy to protect us -- and future generations -- from the scourge of war.

BRIAN J. FOLEY is a professor at Widener University School of Law in Wilmington, Delaware.