Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say 2. The Determination of a Case of Self-Defence First, one cannot fail to note that the Security Council is hesitant in formally stating the existence of self-defence under the concrete circumstances. When characterizing the events in New York, Washington and Pennsylvania on 11 September 2001, the Council avoids speaking of an `armed attack', as required by Article 51 of the Charter, using instead the notion of `terrorist attack', without expressly linking this notion to Article 51 of the Charter, which is mentioned in a separate paragraph. The difference in wording becomes particularly evident if one compares the wording of SC Resolutions 1368 (2001) and 1373 (2001) with SC Resolution 660 (1999) in which the Council affirmed `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'.6 Furthermore, it is quite telling that, in its two resolutions concerning the 11 September 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. This omission 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 controlled by the Taliban `for the sheltering and training of terrorists and the planning of terrorist acts',7 allowing Usama bin Laden 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'.8 But these activities of the Taliban have obviously not been considered grave enough by the Council to establish a sufficient link to a state-sponsored armed attack. On the contrary, one must infer from the reluctance of the Council to make use of these findings in the context of Resolutions 1368 (2001) and 1373 (2001) that the mere harbouring of terrorists as such was apparently not reason enough to hold the Taliban accountable for an `armed attack'. The Council has in the past taken a rather restrictive view of forcible responses to terrorism, condemning inter alia Israeli counter-terror operations as impermissible under international law.9 The strict interpretation of the right of self-defence is perfectly understandable. The common understanding of an `armed attack', as required by the wording of Article 51 of the Charter, seems to go beyond the mere toleration of terrorist activity.10 Furthermore, 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'.11 Moreover, in this situation, additional complications arise from the fact that the terrorist acts themselves did not emanate directly from the territory of Afghanistan, making it difficult to invoke Taliban involvement in the attack by way of the toleration of the use of force by private persons from their territory.12 Finally, it is noteworthy that the Council has so far refrained from recognizing the Taliban as the official governmental authority of Afghanistan, addressing them instead only as `the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan'. Taking into account Article 9 of the Draft Articles of the International Law Commission on the Responsibility of States for internationally wrongful acts,13 the case would therefore have to be made that the Taliban and Usama bin Laden (together with the groups he controls) are so closely linked that bin Laden's terrorist activities can be attributed to the de facto government of the state. 14 Given all these legal and factual uncertainties, one can hardly assert that the Council has approved the applicability of Article 51 of the Charter to the US-led strikes against Afghanistan.15 Rather, one must assume that the Council has (for good reasons) deliberately refrained from making more specific determinations, declaring Article 51 of the Charter applicable only once its preconditions under the Charter are fulfilled. This finding has several consequences. One consequence is that SC Resolutions 1368 (2001) and 1373 (2001) should not (yet) be interpreted as a turning point in international legal practice, broadening the scope of Article 51 of the Charter. The decision of NATO to regard the 11 September attacks as an action covered by Article 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 clearly identifying whether and how the terrorist acts may be attributed to Afghanistan as a state. The general difference between Security Council Resolutions 1368 (2001) and 1373 (2001) and the decision by NATO to invoke Article 5 of the Washington Treaty is particularly well illustrated by the statement of NATO Secretary-General Lord Robertson of 2 October 2001, which seems to suggest a broad interpretation of the notion of an `armed attack' by noting that: We know that the individuals who carried out these attacks were part of the worldwide terrorist network of Al-Quaida, headed by Osama bin Laden and his key lieutenants and protected by the Taliban. On the basis of this briefing, it has now been determined that the attack against the United States on 11 September was directed from abroad and shall therefore be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack on one or more of the Allies in Europe or North America shall be considered an attack against them all.16 SC Resolution 1373 (2001), on the contrary, refrains from making such specific findings and remains in substance rather traditional because it does not specifically link the act of `harbouring' the Al-Qaida network to an `armed attack' under Article 51 of the Charter, but refers only to the general obligations of states under Principle 1 of the Friendly Relations Declaration of 24 October 1970,17 namely, the duty of `every state' to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organized activities within its territory'.18 Against this background, it is difficult to positively 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 state which has been the target of the attack. Nevertheless, from the perspective of international law it is worth noting that the Council does, at least, not categorically exclude the possibility that acts of the nature of the 11 September attacks may come within the ambit of the right of self-defence. At the same time, there is hardly any ground to argue that SC Resolution 1373 (2001) authorizes the exercise of self-defence by the United States and its allies under Chapter VII of the Charter. 6 See para. 6 of SC Resolution 661 (1990) of 6 August 1990 (emphasis added). 7 See para. 5 of the preamble to SC Resolution 1267 (1999) of 15 October 1999 and para. 7 of the preamble to SC Resolution 1333 (2000) of 19 December 2000. 8 See para. 6 of the preamble to SC Resolution 1267 (1999). 9 For a full discussion of the practice of the Council D. Bowett, `Reprisals Involving Recourse to Armed Force', 66 AJIL (1972) 1; and O'Brien, `Reprisals, Deterrence and Self-Dense in Counterterror Operations', 30 Virginia Journal of International Law (1990) 421. 10 See also Travalio, `Terrorism, International Law, and the Use of Military Force', 18 Wisconsin International Law Journal (2000) 145, at 159, with an analysis of the positions taken in legal doctrine. On guidelines to measure forcible self-defence, see Knauft, `Proposed Guidelines for Measuring the Propriety of Armed State Responses to Terrorist Attacks', 19 Hastings International and Comparative Law Review (1996) 763, at 772. 11 On this aspect, see the Dissenting Opinion of Judge Jennings in the Nicaragua case: Case Concerning Military and Paramilitary Activities In and Against Nicaragua, Merits, Judgment of 27 June 1986, ICJ Reports (1986) at 544. 12 For an insightful discussion of the practice concerning state-related toleration of the use of force by private persons, see C. Kreß, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen bei staatlicher Verwicklung in Gewaltakte Dritter, at 268 et seq. 13 Article 9 of the Draft Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts, adopted by the Drafting Committee on second reading, reads: `The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence of default of the official authorities and in circumstances such as to call for the exercise of those elements of authority' (emphasis added). See UN Doc. A/CN.4/L.602/Rev.1 of 26 July 2001. 14 See para. 1 of SC Resolution 1267 (1999) and para. 7 of the preamble to SC Resolution 1333 (2000). 15 See also Kirgis, `Addendum: Security Council Adopts Resolution on Combating International Terrorism', ASIL Insight, 1 October 2001, at http://www.asil.org/insights.htm. 16 Emphasis added. See Statement by NATO Secretary-General Lord Robertson of 2 October 2001, http://www.nato.int/docu/speech/2001/s011002a.htm. 17 See supra note 3. 18 See para. 8 of the preamble to SC Resolution 1373 (2001).
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