Position Paper of Australian Section of the International Commission of Jurists on the Appropriate Response of the UN to the Attacks on the USA

Posted by Justice Elizabeth Evatt AC, Dr Keith Suter, Nicole Abadee, Nick McNally on November 07, 2001 at 23:54:57:

AUSTRALIAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS
POSITION PAPER ON THE APPROPRIATE RESPONSE
TO THE ATTACKS ON THE UNITED STATES OF AMERICA

1. The Australian Section of the International Commission of Jurists (“ASICJ”) considers that action in response to the unspeakable attacks on the United States on 11 September should now be taken by the Security Council of the United Nations, acting pursuant to Chapter Seven of the Charter of the United Nations 1945 (“the UN Charter”).

2. The Security Council should take whatever action is necessary to restore international peace and security, and to bring those responsible for the attacks and any later attacks; military, chemical or biological, to justice. Further, it should immediately establish an international criminal tribunal to try them.

3. Any steps taken to bring the perpetrators to justice, and the administration of that justice should, it is submitted, both be taken by the United Nations.

The Right to Self-Defence Under International Law

4. That is not to deny the right of individual or collective self-defence against armed attack expressly preserved by Article 51 of the UN Charter, which provides 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 United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (emphasis added).

5. The right to self-defence is based on customary international law, which co-exists with the law established by the UN Charter . It is clear that where another State (in this instance, Afghanistan, or at least, its Taliban leaders) provides bases or refuge for the attackers, the state under attack, or threat of attack, may use armed force against that other State in exercise of the right of self defence .

6. What then is the extent of the right of self-defence under international law? There must be a “… necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” and the act must involve “nothing unreasonable or excessive” . Later cases have developed and refined this principle. The International Court of Justice in the Military and Paramilitary Activities case emphasised the criteria of necessity and proportionality . In 1996 the ICJ emphasised that “States must never make civilians the object of attack and consequently never use weapons that are incapable of distinguishing between civilian and military targets” .

7. In summary, the use of armed force and the violation of another State’s territory can be justified as self-defence under international law where:

(a) an armed attack is launched, or immediately threatened, against a State’s territory;
(b) there is an urgent necessity for defensive action against that attack;
(c) there is no practicable alternative and another state or authority which has the legal powers to stop or prevent the infringement does not use them;
(d) the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement;
(e) in a case of collective self-defence, the victim of an armed attack has requested assistance.

8. The first three of these conditions are clearly satisfied in the context of the attacks on the United States on 11 September, particularly in light of apparently cogent evidence of the threat of further attacks and the refusal of the Taliban to surrender the prime suspect and to cease operating camps for the training of terrorists.

9. Action by the United States, in exercise of a right to self-defence is, however limited under international law to actions necessary to stop or prevent an actual or threatened attack. Any action which exceeds those limits or which may objectively be categorised as punitive, rather than preventative action falls into the category of reprisals, which are unlawful under international law.

10. Article 51 of the UN Charter requires members to report immediately to the Security Council measures taken in the exercise of their right of self-defence. Further, such measures do not in any way restrict the Security Council’s authority and responsibility to take such action as it deems necessary to maintain or restore international peace and security.

11. Provided that the attacks on Afghanistan meet the requirements of necessity and proportionality referred to above, they will be lawful. Any action beyond those limits would not be. So, for example, threats to attack other countries, unless there is evidence that those countries were also, in some way, responsible for the attacks on America, would probably exceed the limits of the right of self-defence. It is no doubt, for this reason, that the United Nations described such threats, foreshadowed in a letter to it by the United States, as “disturbing”.

12. It is inherently difficult for a country exercising a right of self defence to determine objectively when such operations should cease.

Action by The Security Council Under Chapter Seven of the UN Charter

13. However, those limits do not apply in the same way to action by the Security Council pursuant to Chapter Seven of the UN Charter. The ASICJ submits that it is now incumbent upon the Security Council to take action to restore the international peace and security shattered by the attacks on America.

14. It clearly has the power to do so. The first purpose of the United Nations is expressed in Article 1 of the UN Charter as follows:

“To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.

15. Chapter 7 (Articles 39-51) of the UN Charter empowers the Security Council to:
(i) determine the existence of any threat to the peace, breach of the peace or act of aggression (Article 39);
(ii) make recommendations, or decide what measures shall be taken to maintain or restore international peace and security (Article 39);
(iii) employ measures not involving the use of armed force to give effect to its decisions (Article 41);
(iv) upon deciding that such measures “…. would be inadequate or have proved to be inadequate” to “… take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”. (Article 42) (emphasis added)

16. The United Nations is uniquely positioned to respond to the international crisis that has erupted since the attacks on the United States on 11 September 2001.

17. First, the Security Council had, as recently as 30 July 2001, already resolved that the “situation in Afghanistan” constituted a threat to international peace and security in the region , thus invoking Article 39 of the UN Charter.

18. That Resolution followed three earlier resolutions of the Security Council , pursuant to Chapter Seven of the UN Charter, demanding that the Taliban:

(i) cease the provision of sanctuary and training for international terrorists and their organisations;
(ii) take appropriate and effective measures to ensure that the territory under its control is not used for terrorist installations and camps or for the preparation or organisation of terrorist acts against other States or their citizens;
(iii) co-operate with international efforts to bring indicted terrorists to justice;
(iv) turn over Usama bin Laden to appropriate authorities in the United States, where he had been indicted for the 7 August 1998 bombings of the United States Embassies in Kenya and Tanzania.

19. In those resolutions, which imposed increasingly severe sanctions on Afghanistan, the Security Council strongly condemned the continuing use of the areas of Afghanistan under the control of the Taliban for the sheltering and training of terrorists and planning of terrorist acts, and reaffirmed that the suppression of international terrorism was essential for the maintenance of international peace and security.

20. The Security Council resolved, in each of those resolutions, to remain seized of the matter. However, the matter of which it is seized does not as yet constitute “measures necessary to maintain international peace and security” so as to preclude US and British collective self defence.

21. Second, the Security Council has, since 11 September, passed two resolutions responding to the terrorist attacks. On 12 September 2001 it unanimously passed Resolution 1368 (2001), stating that it regarded the attacks as a threat to international peace and security, and expressing its “readiness to take all necessary steps to respond to the terrorists attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations”. It resolved to remain seized of the matter.

22. On 28 September 2001, the Security Council passed Resolution 1373 (2001). reaffirming Resolution 1368 and an earlier resolution condemning all acts of terrorism . The Security Council specifically stated that it was acting under Chapter Seven of the UN Charter, and reaffirmed that the acts of 11 September, like any act of international terrorism, constituted a threat to international peace and security. Those two resolutions are the trigger for more concrete action by the Security Council .

23. The Security Council in both Resolutions explicitly asserts an inherent right of individual or collective self-defence in accordance with the UN Charter. According to a statement by the Secretary-General of the United Nations, Kofi Annan on 8 October 2001, the states concerned (presumably the United States and the United Kingdom) have since “set their current military action in Afghanistan in that context” .

24. US Secretary of State Colin Powell advised the Secretary-General of the UN on 7 October of the strikes on Afghanistan. The Security Council, at the request of the United States and the United Kingdom, met on the afternoon of 8 October 2001 to discuss threats to international peace and security caused by terrorist acts and to be briefed by representatives of the United States and the United Kingdom on the latest developments in Afghanistan.

25. The ASICJ believes that now is the time for the Security Council to take decisive action pursuant to Article 42 of the UN Charter. The United States has, in accordance with Article 51, reported to the Security Council measures taken by it to that date in the exercise of its right of self-defence. It is now incumbent upon the Security Council to take “measures necessary to maintain international peace and security”, as contemplated by article 51.

26. The Security Council should formally authorise member States to use all necessary means to uphold and implement the Security Council Resolutions referred to above, and to restore international peace and security.

27. There is a fairly recent precedent for such action. Following the invasion of Kuwait in August 1990 by the military forces of Iraq, the Security Council
determined the existence of a breach of international peace and security and, acting under Chapter Seven, authorised member States to use all necessary means to restore international peace and security and to uphold a resolution demanding that Iraq withdraw immediately .

28. The ASICJ submits that a similar Resolution by the Security Council in this instance would ensure that any further action, including military action, is specifically authorised by the Security Council, which has the power to withdraw or limit that authority if the use of force exceeds the parameters of what is lawful.

29. On 8 October 2001, the Secretary-General stated that:

“To defeat terrorism, we need a sustained effort and a broad strategy that unite all nations, and address all aspects of the scourge we face. The cause must be pursued by all the States of the world, working together and using many different means – including political, legal, diplomatic and financial means”.

There is no inconsistency between the Security Council authorising the use of all necessary means to restore international peace and security (which it has stated is threatened by the terrorist attacks) and in the United Nations pursuing its campaign to encourage widespread ratification and enforcement of existing United Nation treaties against international terrorism.

30. The primacy of the role of the Security Council in relation to a threat to international peace and security is emphasised in the leading treatises on international law , which also emphasise that the Security Council or, perhaps, the International Court of Justice, is the ultimate arbiter of the legitimacy of actions taken in exercise of the right of self-defence.

Australia’s Role

31. There is a very real reason why it is in Australia’s interest to urge the Security Council to pass a resolution specifically authorising the military action in Afghanistan. That is because, absent such a Security Council resolution, there is, at the very least, a question as to the legitimacy of Australia’s involvement in any military action against Afghanistan.

32. The Australian Government, supported by the Opposition, appears to rely on the ANZUS treaty of 1952 as authorising participation by Australia in military action by the United States in Afghanistan in response to the attacks of 11 September 2001. It is not, however, entirely clear whether the ANZUS treaty, which implicitly relies upon Article 51 of the UN Charter to justify collective measures in response to an armed attack, is applicable in this context.

33. The relevant provisions of the ANZUS treaty are different from Article 5 of the NATO treaty. It provides that an armed attack against one or more of the parties in Europe or North America shall be considered an attack against them all. It further provides that each of the parties, in exercise of the right of individual or collective self-defence, will assist the parties attacked by taking such action as deemed necessary, including the use of armed force, to restore and maintain security of the North Atlantic area.

34. That article has been invoked by the parties to NATO to justify their participation in military action by the United States in exercise of the collective right of self-defence.

35. The provisions of the ANZUS treaty are less clear. The emphasis on the treaty is on regional security in the “Pacific Area”. That is not defined. Article 4 provides that “each Party recognises that an armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes”.

36. Article 4 also provides that any such armed attack should be immediately reported to the Security Council and measures taken as a result should be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

37. Article 5 of the ANZUS treaty provides that “for the purpose of Article IV, an armed attack on any of the Parties is deemed to include an armed attack on the Metropolitan territory of any of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific”.

38. Because of the terms of Article 5, we do not assert that Australia’s proposed action is not pursuant to the ANZUS Treaty. It is however, arguable that the attacks on America were not “in the Pacific Area”, so that the Australia’s right (and duty) under the ANZUS treaty to participate in collective self-defence are not activated. It is submitted that, for this reason, there is a risk that the lawfulness of Australia’s participation in military action in Afghanistan could be challenged.

39. To remove the possibility of such a challenge, it is in Australia’s interests to procure a formal Security Council resolution authorising the use of force by all member States to remove the threat to international peace and security caused by the terrorist attacks.

The Trial of Those Responsible

40. The next question is whether there is, in the United Nations, the political will for it to take such action as is necessary to bring the perpetrators to justice. It is submitted that there is. This right and duty co-exist with the right of self defence and must be looked at separately.

41. Within 48 hours of the attacks, both the Security Council and the General Assembly joined with the Secretary-General, Kofi Annan, in condemning the attacks and voted to support actions taken against those responsible and states that aid them.

42. In clause 5 of Security Council Resolution 1368 (2001) which was, most unusually, unanimous, the Security Council 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”.

43. The Secretary-General, Kofi Annan, in an editorial piece in the New York Times on 21 September 2001 reaffirmed the “complete solidarity of the United Nations with Americans in their grief” and the “world wide resolve to fight terrorism as long as it is needed”. He stated that:

“The United Nations is uniquely positioned to advance this effort. It provides the forum necessary for building a universal coalition and can ensure global legitimacy for the long-term response to terrorism. United Nations Conventions already provide a legal framework for many of the steps that must be taken to eradicate terrorism… these conventions must be implemented in full”. (emphasis added)

44. The United Nations treaties against international terrorism to which he was referring include:

· Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted in 1963.
· Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.
· Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971.
· Convention Against the Taking of Hostages, 1979.
· International Convention for the Suppression of Terrorist Bombings, 1997.

45. The ASICJ thus submits that any measures taken to bring the perpetrators of the attacks on the United States to justice should be by the United Nations as it has demonstrated in the clearest terms its willingness to take the necessary action.

46. The ASICJ believes that those responsible for the terrorist attacks, and those who aided and abetted them, should be tried by an international criminal tribunal established by the Security Council. Although the United States clearly has jurisdiction, it is simply not appropriate for the victim to be also the prosecutor and judge and jury.

47. There is a precedent for this where the Security Council determines (as it has here) that a situation constitutes a threat to international peace and security – see the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia and the International Tribunal for Rwanda.

48. The Security Council, having already resolved that the attacks of 11 September 2001 are a threat to international peace and security, should now act under Chapter Seven of the UN Charter and establish immediately an international tribunal for the purpose of prosecuting those responsible for the attack.

49. The deterrent effect of the prompt establishment of a tribunal to bring the perpetrators to justice cannot be underestimated. Few who witnessed the spectacle of Slobodan Milosevic’s recent appearance in the Tribunal in the Hague will underestimate the salutory effect of the administration of justice by an independent international criminal tribunal.

50. Those who would prefer to see Bin Laden and his accomplices assassinated rather than brought to justice should consider that not only would that be potentially unlawful under international law but, further, would give Bin Laden the martyrdom he so desires. In an interview with Peter Arnett of CNN in March 1997 Bin Laden stated that:

“We see that getting killed in the cause of Allah is a great honour wished for by our Prophet….. being killed for Allah’s cause is a great honour achieved by only those who are the elite of the nation. We love this kind of death for Allah’s cause as much as you like to live. We have nothing to fear for. It is something we wish for”.

51. Those responsible for the attacks of September 11 and any subsequent attacks should be dealt with in accordance with international law. That is a prospect which carries a far greater deterrent value than the threat of martyrdom.

52. Those that are involved in the prevention of terrorism, whether nations, people or soldiers, should do it with the moral authority of the United Nations, the body set up after the last World War to deal with such actions.

AUSTRALIAN SECTION
INTERNATIONAL COMMISSION OF JURISTS
18 October 2001

Responses:

1. Re: Position Paper of Australian Section of the International Commission of Jurists on the Appropriate Response of the UN to the Attacks on the USA Rashi Khnaderia 02/27/02 (0)

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