Re: Security Council Resolutions 1368 (2001) and 1373 (2001): What they say and what they do not say

Posted by Rashi Khanderia on February 27, 2002 at 10:30:38:

In Reply to: Security Council Resolutions 1368 (2001) and 1373 (2001): What they say and what they do not say posted by Carsten Stahn on October 29, 2001 at 07:04:21:

: Dear participants of the Forum, largely inspired by the numerous thoughts reflected on this page, I have felt inclined to submit the following comment:

:
: Security Council Resolutions 1368 (2001) and 1373 (2001):
: What they say and what they do not say

: by Carsten Stahn, LL.M (Köln-Paris), Heidelberg

: The reaction of the United Nations Security Council and NATO to the terrorist attacks on the World Trade Center and the Pentagon has triggered a vivid debate on the legal consequences surrounding these events. When assessing the impact of the current developments on international law, it seems to be particularly important, to take a closer look at both, the current legal documents and the previous practice of the Security Council. In this regard, some aspects deserve further attention.

: I. What is new ?

: First of all, it is worth noting that the qualification of acts of terrorism as a threat to international peace and security, as contained in paragraph 3 of the preamble of SC Resolution 1373 (2001), is not an innovation. A similar reference may already be found in SC Resolution 731(1992), addressing the consequences of the attacks carried out against Pan American flight 103 and Union des transports aériens flight 772. Furthermore, paragraph 9 of SC Resolution 1373 (2001) quoting the text of the Friendly Relations Declaration, depicts strong parallels to paragraph 6 of SC Resolution 748 (1992) in which the Council reaffirmed with respect to the Libyan government that "in accordance with the principle in Article 2, paragraph 4, of the Charter of the United Nations, every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within ist territory directed towards the commission of such acts, when such acts involve a threat or use of force". Finally, the applicability of Chapter VII with respect to the situation in Afghanistan has already been confirmed in SC Resolution 1267 (1999) in which the Council noted that the failure of the Taliban authorities to respond to the demands in paragraph 113 of Resolution 1214 (1998), namely to stop providing sanctuary and training for international terrorists and their organizations" and to "cooperate ...to bring indicted terrorists to justice", constitutes a threat to international peace and security. This determination was reiterated in SC Resolution 1333 (2000), following the indictment of Usama bin Laden and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States. The real novelty, contained in SC Resolutions 1368 (2001) and 1373 (2001) is in this regard the reaffirmation of the "inherent right of individual and collective self-defence as recognized by the Charter of the United Nations". This reference to Art. 51 of the UN Charter is of importance, because such a finding has not been made by the Council in the aftermath of the 1998 attacks on the US embassies , although the United States has officially invoked Art. 51 of the Charter as the legal basis for its air strikes against Afghanistan and Sudan. However, the significance of the reference to Art. 51 of the Charter in SC Resolutions 1268 (2001) and 1373 (2001) should not be overestimated, because it remains remarkably vague.

: A number of arguments lend support to the view, that paragraph 3 of the preamble of Resolution 1368 (2001) and paragraph 4 of the preamble of Resolution 1373 (2001) can, in particular, not be interpreted per se as an authorization of the military action against Afghanistan.

: II. The determination of a case of self-defence

: First of all, one cannot fail to note that the Security Council is hesitant to formally state the existence of self-defence under the concrete circumstances. When characterizing the events occurred in New York, Washington D.C. and Pennsylvania on 11 September 2001, the Council avoids to speak of an "armed attack" as required by Art. 51 of the Charter, using the notion of "terrorist attack" instead, without expressly linking this notion to Art. 51, which is mentioned in a separate paragraph. The difference in wording becomes particularly evident if one compares the wording of Resolutions 1368 (2001) and 1373 (2001) with SC Resolution 660 (1999) in which the Council affirmed the "the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter" (see also the comment by Tung, EJIL Forum). Furthermore, it is quite telling that in its two resolutions concerning the September 11 attacks the Council mentions neither a specific state as the holder of the right to self-defence, nor a concrete author of the attacks. Finally, the Security Council refrains from expressly attributing the 11 September attacks to the Taliban regime (see also the comment by Tung, EJIL Forum). This ommission gains even more importance, if one takes a closer look at SC Resolutions 1267 (1999) and 1333 (2000) in which the Council made explicit statements with regard to the Taliban, condemning the continuing use of Afghan territory, especially areas controled by the Taliban "for the sheltering and training of terrorists and planning of terrorist acts" , allowing Usama bin Laden to and others associated with him to "operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations".

: But these activities of the Taliban have obviously not been estimated grave enough by the Council to establish a sufficient link to a state-sponsored armed attack. On the contrary, one must infur from the reluctance of the Council to make use of these findings in the context of resolutions 1368 (2001) and 1373 (2001) that the sole harbouring of terrorists as such was apparently not reason enough to hold the Taliban accountable for an "armed attack". This position is perfectly understandable. A broad interpretation of state-sponsored armed attacks would open the door for abuse and the use of self-defence as "a mere cover for aggression disguised as protection". Moreover, in this situation, additional complications arise from the fact that the terrorist acts themselves did not directly emanate from the territory of Afghanistan, making it difficult to invoke Taliban involvement in the attack by way of the toleration of use of force by private persons from their territory. Furthermore, considering the question of imputability to a state actor, it is noteworthy the Council has so far refrained from recognizing the Taliban as an official governmental authority of Afghanistan, addressing them as "the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan".

: Given these uncertainties, one can hardly assert that the Council has approved the applicability of Art. 51 to the US-led strikes against Afghanistan (see also the comment by Kirgis of 1 October 2001, ASIL Forum and the comment by Ulfstein, EJIL Forum). One must rather assume, that the Council has (for good reasons) deliberately refrained from making more specific determinations, declaring Art. 51 applicable only, once its conditions under the Charter are fulfilled. This finding has several consequences. One of them is that, SC Res. 1368 (2001) and 1373 (2001) should therefore not be interpreted too early as a turning point in international legal practice, broadening the scope of Art. 51 of the Charter (against the comment by Mahmoudi, ASIL Forum). The decision of NATO to actually regard the attacks as an action covered by Art. 5 of the Washington Treaty is of much more relevance in this regard , because it is definitive and builds upon the existence of an "armed attack", without identifying whether and how the terrorist acts may be attributed to a state. One may, in fact, even note that SC Resolution 1373 (2001) is in substance rather traditional, because it treats states and not private organizations as the main actors, encountering obligations and responsibility under international. Against this background, it is, in particular, difficult to invoke SC Resolution 1273 (2001) in support of the view that even non-state sponsored terrorism may amount to an "armed attack", giving rise to the right of self-defence of the target state.

: Furthermore, it is, at least in the view of this author, difficult to regard SC Council Res. 1373 (2001) as a Chapter VII based authorization of self-defence by the United States and its allies.

: III. Security Council authorization

: The issue of a Security Council based authorization of states to take measures in self-defence, has so far primarily been discussed in two cases, namely the Korea conflict and the action against Iraq. In the case of Korea, it was argued by some that the coalition led by the United States acted in the exercise of collective self-defence authorized by the Council, because the Council had limited its authorization to a recommendation, leaving room for the application of Art. 51 of the Charter when asking the Members of the United Nations to "furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and restore international peace and security in the area". Others took the view that the Council delegated its powers under Chapter VII to the group of states acting under unified command, making the action an exercise of collective security rather than collective self-defence despite the recommendatory character of the findings of the Council in SC Resolutions 83 (1950) and 84 (1959). A similar debate surrounded the authorization of the use force by States against Iraq. The Security Council had first made reference to "the inherent right of individual or collective self-defence, in response to the armed attack by Iraq and Kuwait" in its Resolution 661 (1990) and later authorized "Member States co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area" (Resolution 678 of 28 November 1990), acting under Chapter VII. This construction, combining elements of self-defence and collective security, was again interpreted by some commentators as the exercise of collective self-defence under the authorization of the Security Council , while others took the view that the military operation was enforcement action under Art. 42 of the Charter.

: The present case, however, seems to be slightly different from the examples of Korea Iraq for a number of reasons. One may observe that the Council has been hesitant to make a final decision as to the applicability of Art. 51. Moreover, it is particularly striking, that the findings of the Council with respect to action by states, which could possibly be interpreted as an authorization of self-defence or the use of the force , are not contained in the operative part of Resolution 1373 (see also the comment by Ulfstein, EJIL Forum), but only in its preamble, where the Council notes reaffirms "the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts". Furthermore, the Council has visibly refrained from employing the language previously used in the context of the authorization (see also the comment by Tung, EJIL Forum). The relevant passage of SC Resolution 84 (1950) with respect to Korean reads:

: "The Security Council ... 3. Recommends that all Members providing military forces and other assistance pursuant to the aforesaid Security Council Resolutions make such forces and other asssistance available to a unified command under United States of America; ... 5. Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating".

: Resolution 678 (1990) employs the terms "The Security Council ...Acting under Chapter VII of the Charter ... 2. Authorizes Member States ... to use all necessary means ...". SC Resolution 1373 (2001), on the contrary, contains neither an explicit recommendation, nor an authorization. The preamble of the resolution merely "reaffirms" the need to combat terrorism "by all means".

: Moreover, the passage contained in para. 3 lit. c of SC Resolution in which the Council "calls upon all States" to "cooperate, particularly through bilateral amd multilateral arrangerments and agreements, to prevent and suppress terrorist attacks and take action against such perpetrators of such acts" (emphasis added), can in the view of this author hardly be interpreted as a Council based authorization of self-defence or the use of force (against the comment by Paust of 23 October 2001, ASIL Forum). This statement is situated in the context of measures not involving the use of force, namely cooperation and coordination between states. This becomes even more evident, if one takes a look at paras. 3 and 4 of SC Res. 1269 (1999) which contain an almost identical passage, in which the Security Council "emphasizes the importance of enhanced coordination among states" and "calls upon all States to take, inter alia, in the context of such cooperation and coordination, appropriate steps to: - cooperate with each other, particularly through bilateral and multilateral arrangements, to prevent and suppress terrorist acts, protect their nationals and other persons against terrorist attacks and bring to justice the perpetrators of such acts ...". The corresponding passage in SC Resolution 1373 (2001) was visibly modelled after this statement. Finally, one must take into consideration that in the final paragraphs of Resolution 1373 (2001), the Council "expresses its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with the resonsibilities under the Charter".

: Given the absence of an explicit authorization of the Security Council related to military action in the operative part of the Resolution 1373, it is also difficult to assume that the Security Council has delegated enforcement powers under Chapter VII to a coalition of states. Even the expression "combat by all means" used in the preamble of Resolution 1373 differs from the usual Chapter VII formula employed in the operative part of Security Council resolutions in this context , authorizing states or organs of the United Nations to take "all necessary" means or measures for the implementation of Security Council resolutions (see also the comment by Kirgis of 1 October 2001, ASIL Forum and the comment by Ulfstein, EJIL Forum).

: The fact that the Security Council did not explicitly recognize the right to self-defence of the United States or authorize a group of states to use force does, of course, in no way preclude the lawfulness of US-led military action, because the exercise of self-defence is independent of a formal approval by the Council. Self-defence can be exercised under the auspices of a Security Council Resolution, but it does not necessarily require such a measure. The second sentence of Art. 51 of the Charter establishes only a reporting requirement to the Security Council, which has been observed by the United States and the United Kingdom through letters sent to the President of the Security Council stating that military action against terrorists in Afghanistan was taken in accordance with the inherent right of individual and collective self-defence. Furthermore, armed action undertaken in self-defence may be carried out at least, as long as it is not superseded by Security Council action meant to bring an end to self-defence measures. The Security Council has so far not adopted any measure, which would indicate its will to replace military action by other sanctions. Moreover, similar to the situation with respect to Iraq in 1990, the adoption of a resolution suspending the exercise of self-defence would require the approval of the United States and United Kingdom in their capacity as permanent members of the Security Council. Finally, it is hardly possible to argue that the legal framework embodied in SC 1373 (2001) itself is designed to preempt measures of self-defence. The general reference to the possibility of the exercise of self-defence, contained in para. 4 of the Resolution, makes it entirely clear, that the suspension of the right to self-defence is not the intention of the Council. On the contrary, the most plausible meaning of this reference is that it was in fact employed by the Council, in order to oppose any (mis)interpretation of Resolution 1373, regarding the determinations of the Council as incompatible with the subsequent exercise of measures of self-defence.

: When analysing both the content and the gaps and ommissions of SC Resolution 1373 (2001), one may almost gain the impression that the findings of the resolution are first and foremost designed to keep Art. 51 of the Charter intact as a basis for military action. This has been the position of the United States in the Kuwait conflict. One may only assume that this attitude has also prevailed with regard to the response to the terrorist attacks against the World Trade Center and the Pentagon, because action carried out in individual or collective self-defence allows in particular more operational independence than collective security measures.

: IV. Limits of self-defence

: While action carried out under Art. 51 of the Charter may have some advantages, it is at the same bound to clearer limits than enforcement action under Chapter VII, which may go beyond the scope of self-defence, because it is based on authority delegated by the Security Council. Individual and collective self-defence is, in particular, subject to the requirements of necessity and proportionality. One may therefore doubt, whether the general decision made in Res. 1373 (2001), namely to rely on self-defence rather than enforcement action under the authority of Chapter VII, was finally a wise one, from the perspective of both the United States and the international community.

: In fact, it is one of the well-known weaknesses of self-defence based responses to terrorism that these actions may easily turn into illegal reprisals. The reaction to a terrorist attack risks, in particular, to be unlawful, if is directed against objects and persons which are not the source of an imminent threat. Specific problems arise in this regard not only with regard to the attack of certain objects such as dual use facilities or alleged terrorist targets, which later turn out to be harmless civilian objects, but also with respect to action carried out against persons which are not the authors of the armed attack. It is quite telling that US "self-defence" actions such as the 1986 bombing of Libya and the 1998 air strikes against Sudan and Afghanistan have both been subject to criticism. Furthermore, long-term measures as such may often only be justified by considerations of anticipatory self-defence, which are highly critical and generally prohibited by Art. 51 of the Charter. This problem is of particular relevance to the present situation. The current events show clearly that the question of the combat of terrorism in Afghanistan cannot be separated from the issues of the international response to the civil war in the country and the reconstruction of a new governmental structure. These issues, however, are not related to self-defence, but fall clearly within the mandate of the Security Council for maintenance of international peace and security under Chapter VII of the Charter. Tasks such the settlement of political conflicts and the transformation of the governmental system of a country are genuine responsibilities of the Security Council, going clearly beyond the scope of the fight against terrorism in an act of self-defence. Unfortunately, one cannot fail to note, that this important distinction is currently not fully respected. First alarming signs are the bombardments of Taliban positions at the borderline to the front of the Northern Alliance, which are hardly justifiable as a measure of self-defence, if it is not established that they are related to terrorist activities (see also the comment by Cassesse). But it is even more difficult to imagine, how measures such as the planned turnover of the Taliban regime by military force and the subsequent establishment of a new government could be validated under Art. 51 of the Charter.

: To be entirely clear, this does, of course, not mean, that such strikes are unlawful as such. But, given the present construction under the Charter, they should have been undertaken within the framework of Chapter VII rather than that of collective self-defence. It is true, that military action within the framework of Chapter VII may not always be the most pleasant way to respond to unexpected threats. However, it is a matter of principle, whether military action which is of concern to the international community as a whole, is being carried under the auspices of self-defence or within the framework of collective security. The current action against Afghanistan, which is the result of unprecedented events, shows more than ever that it is high time to reconsider the relationship between collective security and self-defence.

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