The 11 September Terrorist Attack And the Law of Armed Conflict

Posted by S Hossein Sadat M on October 17, 2001 at 02:48:40:

By:S Hossein Sadat M*
17 October,2001

Just after the 11 September terrorist attacks,a section established for the legal points of the event by ASIL and with a hesitation now we have the EJIL Discussion Forum. While you compare the comments, you see there is uncompatibility between Kirgis's comments and Pellet's. Where does the reality exist?

In this short comment I want to review the legal aspects of the developments form the law of armed conflict perspective.

After the terrorist attacks George W. Bush said that the US was "at war" with those behind the suicide assults on New York's World Trade Center and the Pentagon. This position was taken also by Powell. He said:"you[Taliban] need to understand you cannot separate your activities from the activity of those perpetrators. From this point of view there is no distinction between the terrorists and those who harboured them. How much this is legal?

Because of "war" justification, US invoked the right to self-defence and on 7 October commenced to attack terrorist and those who harbourd them. Furthermore in accordance with article 51 of the UN Charter US and UK gave a report to the Security Council.(1)

We had also resolution NO. 1368 and 1373 of Security Council and 56/1 of General Assembly. As it correctly raised we cannot see the self-defence authorization in these resolutions and because of having no armed attack, we should emphasis on the role of SC. So this the matter of "International peace" and the competent organ is SC or GA.In constitutive structures that incorporate effective decision institutions,unilateral action is presumptively unlawful. The normative ambiguity of unilateral actions in contemporary international law arises from the regrettable but acknowledged intermittent ineffectiveness of decision institutions. The appropriate remedy for this problem is to make the institutions effective,thereby obviating the problem.(2)

There are in fact two perspective: One from "lex lata" and the other from "lex ferenda". For a legal analysis just the "lata" one is acceptable, although it doesn't mean we can ignore the social and ethical aspects of the event, and in some cases international law is working as a process.(3)

If we accept the issue of self-defence, we should never forget the close relationship between "jus in bellum" and "jus ad bello". Although article 2(4) of the Charter prohibits the use of force and there are two definite exceptions for that, namely article 42&51, having a suitable situation as defined in International Humanitarian law is a precondition for use of force. I mean if US and Uk cannot find exactly the whereabouts of Taliban and bin Laden and make distinction between the combatants and the civilians they are not authorised to use force. Although some argue "jus in bellum"is only applicable during the armed conflict, but it seems that "jus in bellum" considerations must be taken into account from the very beginnig of the armed conflict.

There is another argument which says:"we are probably witnessing a development of international law...given the objectives of the UN Charter in strict restriction of the use of force..."(4)

they are reffering to different confirmations given to US & UK attacks by many states and the NATO, but without regard to positive or negetive judgments on the issue, they should know that at the peresent time the method for having a new "customary rule" is different with the past. Now the "opinion jurise"is not shaping exclusively by the consent of states and their practices. If democracy is good in the domestice level it is also good in international level. I mean the customs now are shaping by the will people, because international law is not only the law of states, rather it is the law of international community as a whole, and we have a human-centeric legal system instead of state-centeric one. Just now one can clearly witness the increasing protests expressed in different countries. This is whatever ICJ acted in its 1996 advisory opinion, while testing the public opinion impact on the matter of nuclear weapons.
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* LLM International Law student in Tehran University.
1-see;SC/7167, 8 October 2001.
2-M. Reisman,Unilateral Action and...,EJIL, Vol.11, No.1,P.3.
3-see;R. Higgins, Problem and Process,International Law and How we use it, 1995,P-P 1-12.
4-Comment by said Mahmoudi, September 24, 2001 ,ASIL Insight.

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