The Attack on the World Trade Center: Legal Responses Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say Carsten Stahn * Full text available: PDF format ** Discussion Forum 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 lively debate on the legal consequences surrounding these events.1 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. 1. What is New? First, 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 to 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 772.2 Furthermore, paragraph 9 of SC Resolution 1373 (2001), quoting the text of Principle 1 of the Friendly Relations Declaration,3 displays strong parallels with paragraph 6 of SC Resolution 748 (1992) in which the Council reaffirmed with respect to the Libyan Government that `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 its 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 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 significant novelty brought about by SC Resolutions 1368 (2001) and 1373 (2001) is the reaffirmation of the `inherent right of individual and collective self-defence as recognized by the Charter of the United Nations'. This reference to Article 51 of the United Nations Charter is of importance, because such a finding was not made by the Council in the aftermath of the 1998 attacks on the US embassies,4 although the United States officially invoked Article 51 of the Charter as the legal basis for its missile strikes in 1998 against Afghanistan and Sudan.5 However, the significance of the reference to Article 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 to Resolution 1368 (2001) and paragraph 4 of the preamble to Resolution 1373 (2001) cannot, in particular, be interpreted per se as an authorization of the military action against Afghanistan. * Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. ** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 See Cassesse, `Terrorism is Also Disrupting Some Crucial Legal Categories of International Law', Gaja, `In What Sense Was There an "Armed Attack"?', Pellet, `No, This is Not War' and Dupuy, `The Law After the Destruction of the Towers', at www.ejil.org/forum_WTC. 2 See para. 2 of the preamble to SC Resolution 731 (1992) of 21 January 1992, affirming the `right of all States, in accordance with the Charter of the United Nations and relevant principles of international law, to protect their nationals from acts of international terrorism that constitute threats to international peace and security' (emphasized added). 3 See General Assembly Resolution 2625 (XXV) of 24 October 1970, UN Doc. A/8018 (1970). 4 See, in particular, SC Resolution 1189 (1998) of 13 August 1998, in which the Council condemned the `indiscriminate and outrageous acts of international terrorism that took place on 7 August 1998 in Nairobi, Kenya and Dar-es-Salaam, Tanzania', but limited its statement to the reaffirmation that `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 its territories directed towards the commission of these acts'. See paras 1 and 5 of the preamble to SC Resolution 1189 (1998). Furthermore, the Council the called `upon all States and international institutions to cooperate with and provide support and assistance to the ongoing investigations in Kenya, Tanzania and the United States to apprehend the perpetrators of these cowardly criminal acts and to bring them swiftly to justice'. See para. 3 of SC Resolution 1189 (1998). 5 In a letter dated 20 August 1998, the United States notified the Security Council that the attacks on Afghanistan and Sudan were carried out `pursuant to the right to self-defence confirmed by Article 51 of the Charter of the United Nations'. See UN Doc. S/1998/780 (1998). For a full account, see Murphy, `Contemporary Practice of the United States Relating to International Law', 93 AJIL (1999) 161, at 163; and Reisman, `International Legal Responses to International Terrorism', 22 Houston Journal of International Law (1999) 3, at 47. On the American attacks, see also Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 The Yale Journal of International Law 559 (1999).
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