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Terry, Patrick C R --- "The War in Afghanistan – Was the Use of Force Legal and/or Wise?" [2011] NZYbkIntLaw 3; (2011) 9 New Zealand Yearbook of International Law 69

Last Updated: 8 July 2015

THE WAR IN AFGHANISTAN –
WAS THE USE OF FORCE LEGAL AND/ OR WISE?

Patrick C R Terry*

Arguments against a proactive military/ covert operations oriented deterrent terrorism policy: Such a policy: (1) undermines the rule of law, violating the sovereignty of nations with whom we are not at war ...1

I. Introduction

More than ten years after the launch of Operation Enduring Freedom in response to the devastating terrorist attacks on the United States (USA) of September 11, 2001, carried out by Al Qaeda, NATO and other states are still militarily involved in Afghanistan. A successful end to this military mission is not in sight, and many analysts are predicting ultimate failure, with the Taliban regaining power. There are even some fears that nuclear- armed Pakistan is on the verge of becoming a failed state, not least due to the after-effects of the war in Afghanistan.

As the end of military conflict appears to be drawing closer, with many states announcing a substantial reduction or withdrawal of their troops in the next few years, it seems the time has come to reflect, once more, on the legality, in international law, of the initial attack on Afghanistan, which was launched on 7 October 2001. It will be argued here that this first episode in the “War on Terror” cannot be reconciled with international law. Neither did the Security Council authorise the use of force, nor was the attack consistent with art 51 United Nations (UN) Charter due to the fact that Al Qaeda’s actions could not be imputed to the State of Afghanistan. Following on from that, it will be demonstrated that customary international law, whether long- standing or instantaneously created, did not provide a sufficient justification either.

Many will consequently agree with Glennon’s assertion that this legal analysis suggests that international law has become or always was incoherent.2

It will, however, be concluded here that the experiences in Afghanistan over the last decade suggest that it is not international law that has become unrealistic, but rather a foreign and defence policy conducted in disregard of international law that has lost touch with reality.

II. Authorisation by the UN Security Council

Based on Security Council Resolutions 1368 and 1373, it has been argued that the Anglo-American attack on Afghanistan had been explicitly or implicitly authorised by the UN. In the preamble of Resolution 1368 of 12 September 2001, passed by the Council in response to the terrorist attacks of September 11, the Security Council had declared it was:

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter.3

This was followed by Resolution 1373, which was passed on 28 September 2001. In it the Security Council, explicitly acting under Chapter VII of the Charter, again utilised the resolution’s preamble to make some basic observations. By passing the Resolution the Security Council was, it declared:

Reaffirming its resolutions 1269 (1999) of 19 October 1999 and 1368 (2001) of 12 September 2001,...

Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security,

Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001),

Reaffirming 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,...4

The fact that the UN Security Council had reaffirmed Resolution 1368, had proceeded to declare “such acts” to be a threat to international peace and security, had “reaffirmed” the right of self-defence, and had emphasised “the need to combat by all means” such threats was, in fact, the argument goes, tantamount to an authorisation of the use of force by the USA against Afghanistan and Al Qaeda. This is allegedly confirmed by the fact that by the time Resolution 1373 was passed, the members of the UN Security Council were well aware of the USA’s plans to attack Afghanistan in response to its government’s intransigence.5

A. No Authorisation in Operative Part of the Resolutions

This argument is, however, deeply flawed. The first major weakness of assuming UN authorisation of the subsequent use of force is the fact that all the relevant statements, which supposedly amounted to an authorisation, are to be found exclusively in the preambles, not in the operative paragraphs of the relevant resolutions. It would be unheard of, and has indeed never occurred so far, for the UN Security Council to authorise the use of force, arguably one of its most intrusive and extensive powers, within general declarations contained in non-operative sections of its resolutions. Furthermore, Afghanistan is not even mentioned in either Resolution.6

B. Comparison with Other Resolutions Permitting the Use of Force

This becomes even more evident when the language used in Resolutions 1368 and 1373 is compared to that of another UN Security Council Resolution, which did authorise the use of force in a self-defence case.

Following the Iraqi invasion of Kuwait in August 1990, the Security Council – after negotiations had proved fruitless – authorised the use of force in order to liberate Kuwait, clearly a case of collective self-defence under art 51. In Resolution 678 of 29 November 1990, the Security Council declared that it hereby:

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before January 15, 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, 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...7

In other cases, too, when, in the past, the Security Council has approved of the use of force it has done so explicitly. In Resolution 83, relating to Korea, the Council declared that it:

recommends that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.8

Even more explicit Security Council authorisations of the use of force can be found in Resolutions 161A and 169 (both 1961),9 and in Resolution 221 (1966).10

The comparison between the Resolutions, which have undoubtedly authorised or approved the use of force, with Resolutions 1368 and 1373 leaves little doubt that any claim the Anglo-American attack on Afghanistan was authorised by the Security Council is far-fetched.11

C. USA/ United Kingdom Justifications

Furthermore, proponents of the opposite view cannot overcome one final, but decisive hurdle: neither the UK, nor the USA claimed that their actions had been authorised by the Security Council, when they launched their attack on Afghanistan on 7 October 2001.12 In letters to the Security Council dated that same day, both states claimed to be acting in self-defence/ collective self- defence under art 51, which, of course, does not require UN authorisation. No mention was made of any authorisation.13

It must therefore be concluded that not only is there hardly any scope to interpret the language used in Resolutions 1368 and 1373 in such a way, so as to read the authorisation of the use of force into them, the states that ultimately used force did not view them as granting them any such authorisation either.14

III. Self-defence Under Article 51

In a letter, dated 7 October 2001 to the President of the Security Council, the Permanent Representative of the USA to the UN justified the military action as follows:

In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self- defence following the armed attacks that were carried out against the United States on 11 September 2001 ...

In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.15

In similar vein, the British Representative to the UN declared, also in a letter to the President of the Security Council dated 7 October 2001, that:

... the United Kingdom has military assets engaged in operations against targets we know to be involved in the operation of terror against the United States of America, the United Kingdom and other countries around the world, as part of a wider international effort.

These forces have now been employed in exercise of the inherent right of individual and collective self-defence, recognised in Article 51, following the terrorist outrage of 11 September, to avert the continuing threat of attacks from the same source.

... this military action ... is directed against Usama Bin Laden’s Al Qaida terrorist organisation and the Taliban regime that is supporting it.16

It is therefore necessary to examine whether the attack on Afghanistan, initiated on 7 October 2001, was justified as individual and collective self- defence under art 51, as claimed by those two states. The American and British justifications raise several difficult questions, as far as the right of self- defence is concerned and, accordingly, there is a wide variety of opinion on the matter.

A. Security Council Confirmation of Article 51 Situation

Without going into any detail, as to whether Operation Enduring Freedom actually conformed to the criteria laid down in art 51, it has been argued that the Security Council had declared the military action against Afghanistan in Resolutions 1368 and 1373 to be in accordance with art 51, making any further analysis obsolete.17

For a number of reasons that view is, however, incorrect. Since the USA and the UK decided not to proceed on the basis of a UN-approved military intervention in Afghanistan, this obviously means that the Security Council did not have the chance to express its views on the actual use of force by the two allies. There is not one Security Council resolution that explicitly declares the attack on Afghanistan to be in accordance with art 51.18

By stating that it “recognized”, or wanted to “reaffirm” the right of self- defence in the aftermath of 9/11, in Resolutions adopted prior to the initiation of any hostilities on 7 October 2001, the Security Council obviously did not declare that any action subsequently undertaken by the USA would necessarily conform to the prerequisites of the right of self-defence as laid down in art 51.19 Furthermore, Afghanistan was not even explicitly mentioned in those Resolutions as a possible target of the use of force.20 The phrases the Security Council employed in reaction to 9/11 are thus markedly different from the language used in Resolution 661 (1990). Then the Security Council declared it was

Affirming 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,...21

As Ruys and Verhoeven have correctly pointed out, the fact that the Security Council, in Resolutions 1368 and 1373, avoided any explicit reference to an “armed attack” having occurred, and instead only described the attacks as a “threat to international peace and security”, implies the Council – far from confirming an art 51 situation – was in truth “hesitant in accepting the right of self-defence in response to attacks by private actors.”22 Reisman has gone even further, and claims that the language used by the Security Council, especially in Resolution 1368, actually “kept” terrorist acts “from falling under Article 51’s right of self-defence.”23

It should also be pointed out that, while there can be no doubt that the Security Council has wide discretion, when determining whether a specific situation constitutes a “threat to the peace” under art 39, and can, under Chapter VII, if necessary, possibly override international law,24 it does not have the competence to fulfil judicial functions by interpreting (or even changing) treaty norms.25

Under art 51 a state can claim a right to use force in self-defence, when the Article’s criteria are met, without – at this stage – any Security Council involvement beyond the state’s reporting duty towards it. The fact a sufficient majority of states represented on the Security Council declare an action to be in accordance with the UN Charter does thus not automatically make it so (and vice versa). Any – in this case non-existent – decision by the Security Council declaring Operation Enduring Freedom to be in accordance with art 51 would consequently not obviate the need to examine whether that was really the case.26

The conclusion must therefore be that neither did the Security Council declare Operation Enduring Freedom to be in accordance with art 51, nor would it have had any judicial competency to do so.

B. Were the Attacks of 9/11 “Armed Attacks” According to Article 51?

In order to justify the use of force in (individual or collective) self-defence under art 51 it is necessary for an “armed attack” to be occurring against a member of the UN. It must therefore be established, whether the terrorist attacks on New York and Washington DC on 11 September 2001, amounted to “armed attacks” against the USA according to art 51.

One very controversial aspect of the definition of the term “armed attack”, the “gravity” criterion, referred to by the International Court of Justice (ICJ), is not relevant here. There can be no doubt that the attacks on the World Trade Centre and the Pentagon, and the loss of another civilian airliner, resulting, altogether, in about 3000 deaths, many more injured, and the destruction of iconic buildings, would meet any reasonable application of the controversial “scale and effect” criteria outlined by the ICJ. The gravity of the terrorist attacks was such, that they undoubtedly could be classified as “armed attacks”, if that were the only criterion to be met.27

Whether an attack has to meet additional criteria in order for it to be classified as an “armed attack” under art 51 is very controversial.

1. State Involvement In Attack Is Not Necessary Under Article 51

The question that has aroused most controversy is whether an “armed attack”, as demanded in art 51, can only be carried out by a state, or whether it can originate from any other source as well. This is particularly relevant when deciding whether a state can resort to the use of force in self-defence under art 51 in response to a terrorist attack. It is, after all, the very nature of terrorist attacks that they are often not carried out by states, or at the behest of states. Demanding state participation in any attack for it to be judged an “armed attack” would thus preclude an attacked state’s recourse to art 51 in response to most terrorist attacks.

There are, broadly speaking, two lines of argument in support of the position that state participation in an “armed attack” is not a requirement of art 51. Both rely on a literal interpretation of the wording of art 51, especially in contrast to the wording of art 2(4): while art 2(4) requires “all Members” to “refrain ... from the threat or use of force against ... any State”, art 51 only refers to armed attacks occurring “against a Member of the United Nations”, without specifying from whom the attack must originate. Based on the wording of art 51, the argument goes, any “armed attack”, no matter who carries it out, is sufficient to trigger the right of self-defence.28

This interpretation is, some argue, confirmed by the legal discussions surrounding the Caroline incident of 1837, usually analysed in the context of anticipatory self-defence. In 1837 the American ship Caroline, which was in the hand of Canadian rebels, was set on fire by British troops while moored in American territorial waters and two people were killed. The Americans subsequently demanded compensation from the British, who in return claimed to have acted in self-defence. Although the question of whether the British had acted in self-defence was contentious between the two states, the fact the Canadian rebels were non-state actors was, judging by the notes, obviously not deemed relevant by the two states. Some therefore conclude that the Anglo-American exchange of notes confirms that the right of self-defence has always also been available in response to attacks carried out by non-state actors.29

The slight difference between the two strands of this position is perhaps one more of emphasis than of substance: while some simply rely on a literal reading of art 51, others acknowledge that the authors of the Charter, in the immediate aftermath of WWII, did not envisage massive terrorist attacks, so automatically assumed that armed attacks could only be carried out by states.30

The latter, however, insist that times had changed, because terrorist organisations had since then gained the ability to carry out armed attacks on states. The wording of art 51 made it possible to now interpret it in such a way, so as to include attacks not launched by states in the definition of “armed attack”.31

It cannot be disputed that the arguments just set out do have some merit. The literal interpretation of art 51 is certainly in accordance with art 31(1) of the Vienna Convention on the Law of Treaties, the provisions of which are, despite having only been codified in 1969, generally seen as reflective of longstanding customary international law.32 Furthermore, the arguments are seemingly reinforced by NATO’s decision, on 12 September 2001, to invoke art 5 of the North Atlantic Treaty which also requires an “armed attack” in order to justify mutual assistance.33

2. State Involvement In Attack Is Necessary Under Art 51

Nevertheless, more convincing arguments can be made in favour of the opposite point of view, requiring state participation in any armed attack that triggers the right of self-defence under art 51.

As acknowledged by some of those who do not require a state to be the initiator of an armed attack, the drafters of the Charter would simply not have deemed it necessary to specify the possible perpetrators of an “armed attack” as it would have been self-evident to them that such an attack could only be carried out by a state. The difference to art 2(4) is that the use of force outlawed in that article could conceivably also be resorted to by non-state actors, such as secessionist insurgents.34

A purely textual interpretation of art 51 does, however, not only most likely contradict the Charter drafters’ intentions, but it is also difficult to reconcile with the Charter’s aims. Allowing the use of force in self-defence against a state not involved in an “armed attack” simply based on the fact that the perpetrators happen to be within that state’s territory – which would be the consequence of a purely textual interpretation of art 51 – would necessarily not only undermine the Charter’s aim of preserving peace, but would also threaten the concepts of sovereign equality and of sovereignty as such.35

Since an armed attack by a non-state actor would, under such a literal interpretation of art 51, automatically trigger the right of self-defence, the victim state would be justified in ignoring another state’s independence and sovereignty by attacking presumed “terrorist bases” on that other state’s territory (with all the resulting risks of civilian casualties, and so on). This could occur even when the attacked state could not be accused of any wrong- doing whatsoever. Such a state of affairs would necessarily run the risk of turning a major terrorist attack into a war, thus possibly even furthering the terrorists’ cause.36 Application of a purely textual understanding of art 51 to the India-Pakistan conflict, as far as the troubles in Kashmir are concerned, should give any adherent of the opposite view pause for thought.37

The argument that, based on the Caroline incident of 1837, a strict interpretation of art 51 is unjustified, is also not convincing. As the Anglo- American exchange of notes demonstrates, the phrase “armed attack” was neither discussed, nor even mentioned in the exchange between the two states, a consequence of the fact that an “armed attack” was not a prerequisite of the right to use force in self-defence in 1837, in contrast to the situation under the Charter. The views on self-defence expressed by the British and American representatives in 1841/1842 can therefore have no bearing on the interpretation of the phrase “armed attack”. The much more generous view of self-defence in existence prior to the Charter was not confirmed by the Charter, but rather severely restricted by it.

That art 51 should be understood as requiring an “armed attack” to be attributable to a state is also confirmed by state practice and opinio juris.38

Prior to the terrorist attacks of 11 September 2001, most states assumed and argued that any armed attack triggering the right of self-defence must be attributable to a state.39 As even Judge Kooijmans of the ICJ – despite arguing that changes in the law may have taken place in the aftermath of 9/11 – acknowledged in his Separate Opinion in the Wall Case, that the view that an “armed attack”, as understood in art 51, had to be carried out by another state had been “the generally accepted interpretation for more than fifty years.”40 This was notably also the position taken by the USA, the International Law Commission41 and NATO.42

The Foreign Relations Committee of the US Senate, when reporting on the North Atlantic Treaty to the full Senate prior to ratification, defined the term “armed attack” in art 5 of the North Atlantic Treaty as follows:

The committee notes that article 5 would come into operation only when a nation had committed an international crime by launching an armed attack against a party to the treaty. 43

Three staff members on the US Senate Committee on Foreign Relations at the time concurred with this assessment in a subsequent article, published in the American Journal of International Law, elaborating further:

But what is an armed attack? Does any violence perpetrated upon any member or upon any of its nationals constitute an armed attack under the Treaty? Since the principal objective of the Treaty is to safeguard the security of the North Atlantic area, only such armed attacks as threaten that security are contemplated. This rules out violence of irresponsible groups and refers, as Article 51 of the Charter clearly contemplates, to an armed attack of one state against another. Purely internal disturbances and revolutions are not included, although aid given to revolutions by outside Powers can conceivably be considered an armed attack.44

Similarly, the Definition of Aggression, passed unanimously by the General Assembly, defined an act of aggression as follows:

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.45

This obviously reflects widespread consensus, as far as the necessity of state attribution is concerned. The fact that Resolution 3314 did not define the term “armed attack” is not relevant in this context, as there can be no serious doubt that an “armed attack”, as understood in art 51, is probably the most serious manifestation of an act of aggression.46

Resolution 3314, passed in 1974, refutes the argument that states, certainly at that time, interpreted art 51 in such a way so as to include attacks carried out by non-state actors. It is far-fetched to assume that states would have wanted to exclude some of the manifestations of an “armed attack” under art 51 from the definition of aggression.47 This is further confirmed by art 3 (g) of the Definition, which explicitly deals with non-state actors, and declares their actions to be acts of aggression only in those cases when they have been “sent by or on behalf of a State”, or when another state is otherwise “substantially involved”.

Denying the necessity of state participation in an “armed attack” would thus lead to the unsatisfactory conclusion that terrorist attacks would qualify as “armed attacks” under art 51, but would not be deemed to be “acts of aggression” under the unanimously passed Definition of Aggression.

It may be countered that the 1974 Resolution is out-dated and has been overtaken by events.48 Still, when this Resolution was adopted in 1974, terrorists were already steadily strengthening their capabilities. It is also the case that the Resolution, generally viewed as reflective of customary international law, has so far not been repudiated or disowned by any state. Although not directly relevant to the issue discussed here, it should be noted that the state parties to the Rome Statute of the International Criminal Court, have, in their Resolution of 11 June 2010, in fact again relied on art 3(g) of the Definition of Aggression in their attempt to define the equivalent crime.49

3. The International Court Of Justice’s View

The International Court of Justice, too, has indicated that it believes that an armed attack under art 51 must be imputable to a state.50 In the 1986 Case Concerning Military and Paramilitary Activities in and Against Nicaragua the ICJ had the opportunity to deal with the use of force by non-state actors, when it had to decide whether US-support for the Nicaraguan rebels, the Contras, in their armed struggle against the Nicaraguan government, amounted to an “armed attack” against that state. Inter alia, the Court declared:

In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack ...

There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein”. This description, contained in Article 3 paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (X XIX), may be taken to reflect customary international law ...

But the Court does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States ...51

By relying on art 3(g) of the Definition of Aggression, when interpreting the term “armed attack”, the Court emphasised that state involvement was necessary for sufficiently grave acts, committed by “armed bands”, to be classified as “armed attacks”. This conclusion is further confirmed by the fact that the Court proceeded to exclude even a state’s “mere” provision of weapons or logistical support for such an attack by “armed bands” from the concept of “armed attack”.52

As far as the Nicaragua Judgment, handed down in 1986 is concerned, it is – again – sometimes argued that the Court’s view has been overtaken by events.53 However, in more recent rulings, the ICJ seems inclined to confirm its earlier view on the matter.

In its 2004 Advisory Opinion as to the legality of the Israeli-constructed wall on occupied Palestinian territory, the ICJ declared:

Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.54

Although this statement leaves little room for doubt as to the ICJ’s view on the matter – and was certainly understood that way by judges not agreeing with this interpretation of art 5155 – it has been argued that the ICJ’s statement should not be taken literally, as the Court was dealing specifically with alleged incidents originating from territory occupied by Israel itself.56 Based on the clarity of the Court’s statement, however, that argument has no basis in fact, as also confirmed by the dissenting judges’ interpretation of it.57

That the ICJ continues to be unwilling to re-interpret Article art 51 in such a way so as to allow any “armed attack” – no matter whether a state was involved or not – to suffice is also strongly implied by its 2005 judgments in the Armed Activities Cases.58 Uganda’s claim of self-defence – based on attacks carried out by an Ugandan rebel group (the ADF), very likely partly based in the Democratic Republic of Congo – made in the face of the DRC’s allegation of the illegal use of force on the part of Uganda, was rejected by the Court.59 It declared:

It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The “armed attacks” to which reference was made came rather from the ADF. The Court has found above (paragraphs 131-135) that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (X XIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC.60

In by now familiar vein, it has been argued that the ICJ had not taken a clear position on art 51 because Uganda’s statements regarding the justification of its actions had, as the Court acknowledged, been contradictory and Uganda had not been able to prove many of its allegations against the DRC. The view that the Court did not specifically deal with “armed attacks” carried out by non-state actors is allegedly further confirmed by a statement the Court made elsewhere in the judgment:61

Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces.62

The Court, however, made this statement after having just rejected Uganda’s claim of self-defence due to a lack of imputability to the DRC in the previous paragraph. Having acknowledged that many of the attacks relied on by Uganda in its defence had actually taken place63 and having further acknowledged that the ADF was perhaps indeed partly operating from Congolese territory64 the Court, nevertheless, denied that any “armed attack” imputable to the DRC had taken place and therefore rejected Uganda’s claim of self-defence. Furthermore, its reliance, once again, on art 3(g) of the Definition of Aggression strongly suggests that the Court still regards imputability to a state of any attack as a necessary requirement of any claim of self-defence under art 51. This interpretation of the judgment is once again also confirmed by the statements made by those judges who disagreed with the court’s reasoning on the matter.65

It must therefore be concluded that the ICJ as late as 2005, and thus after the terrorist attacks of 9/11, still adhered to the view that an attack must be attributable to a state for it to be judged an “armed attack” according to art 51.66

4. Summary

Interpreting art 51 in such a way so as to require the imputability of any attack to a state before the victim state can resort to the use of force in self- defence, is much more in line with the UN Charter’s aims and principles than the contrary view. Letting an armed attack by non-state actors suffice would greatly endanger world peace and would raise serious issues as far as sovereignty and sovereign equality are concerned.67 Overwhelming state practice prior to 9/11 confirms that most states adhered to this view of art 51, also shared by the ICJ, even in recent years. Finally, this conclusion seems to be confirmed by the official USA and UK justifications for Operation Enduring Freedom. Both relied heavily on the alleged support the Taliban provided to Al Qaeda when justifying their attack on Afghanistan.68 The question that arises when the Anglo-American justifications are considered is therefore not so much, whether state involvement in a terrorist attack is necessary at all to justify the use of force in self-defence, but rather what level of support suffices.

In order for Operation Enduring Freedom to be in accordance with art 51, it is therefore necessary to establish whether the attacks on New York and Washington were imputable to Afghanistan.

C. Were the Attacks of 9/11 Imputable to Afghanistan?

It is beyond dispute that the attacks of 11 September 2001, were carried out by Al Qaeda. Al Qaeda, however, was never equivalent to, or formed part of, the regular Taliban forces of Afghanistan.69 It is therefore necessary to establish whether the attacks of 9/11 could nevertheless be attributed to the State of Afghanistan as a result of sufficient direct or indirect influence exerted by the Taliban government on the organisation.70

As far as the responsibility of a state for the actions of irregular forces is concerned, it is necessary to rely on customary international law.71 Apart from the International Law Commission (ILC), the ICJ and the International Criminal Tribunal for the former Yugoslavia (ICTY) have been active in trying to establish the relevant criteria.

1. Effective Control

In the Nicaragua Case the ICJ had cause to examine whether the attacks carried out by the Nicaraguan rebels, the Contras, were directly attributable to the USA as a result of their long-standing support of that group. This was rejected by the Court, due to the fact that the USA did not have “effective control” of the Contras’ “military or paramilitary operations.”72

United States actions:

even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation,

were deemed “insufficient” by the Court, to attribute Contra attacks directly to the USA.73 For such actions to be imputable to the USA, the ICJ thought it necessary to establish that they had been “directed” or “enforced” by it.74

In 2007, the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case explicitly confirmed its “effective control” threshold when establishing a state’s international responsibility for acts committed by non-state actors. Having explicitly restated its jurisprudence in the Nicaragua Case, the ICJ continued:

The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups, or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument ...75

Having answered that question in the negative, the Court now addresses a completely separate issue: whether, in the specific circumstances surrounding the events at Srebrenica the perpetrators of genocide were acting on the Respondent’s instructions, or under its direction or control. An affirmative answer to this question would in no way imply that the perpetrators should be characterized as organs of the FRY, or equated with such organs. It would merely mean that the FRY’s international responsibility would be incurred owing to the conduct of those of its own organs which gave the instructions or exercised the control resulting in the commission of acts in breach of its international obligations ... What must be determined is whether FRY organs – incontestably having that status under the FRY’s internal law – originated the genocide by issuing instructions to the perpetrators or exercising direction or control ...76

This concept of “effective control”, as developed by the ICJ, is also reflected in art 8 of the Draft Articles on State Responsibility, proposed by the ILC, and seen as reflective of customary international law.77

As far as the situation in Afghanistan is concerned, there is no evidence, nor has it been claimed by anybody, that Al Qaeda was “effectively” controlled by the Taliban.78 Although it is not impossible that Al Qaeda’s leadership told the Taliban in advance about the terrorist attacks of 9/11, there is no evidence to suggest that these attacks were “directed” or “enforced” by them.79

Applying the ICJ’s very high threshold of “effective control” to the relationship between the Taliban and Al Qaeda must therefore lead to the conclusion that the attacks of 11 September 2001, cannot be attributed to the Taliban government of Afghanistan.

2. Overall Control

Needless to say, the strict standard applied by the ICJ to the question of imputability to states of acts committed by non-state actors has come in for some criticism.80 The ICTY, faced with the question of whether the conflict in Bosnia could be judged to be an international armed conflict, developed a new threshold for establishing state responsibility, which resulted in the concept of “overall control”.81

As far as “organized” non-state actors were concerned, state responsibility for their acts should be assumed, the ICTY argued, when the “group as a whole” was “under the overall control of the State.”82 Once such “overall control” had been established, the group’s actions could be attributed to the state “whether or not each of them was specifically imposed, requested or directed by the State.”83 This concept of “overall control” was rejected by the ICJ in 2007 as a means of establishing state responsibility for wrongful acts.84

Even the application of this more generous standard to the situation in Afghanistan does, however, not lead to any other result. Although Al Qaeda (certainly at the time) basically fulfilled the criteria of being an organised and hierarchical group, there is no evidence to support the notion that the Taliban government exerted any kind of control over the organisation.85 Not even the USA or the UK alleged anything of the kind.86 In an analysis, dated 2 October 2001, provided by the US Defense Intelligence Agency, it is concluded that

Eventually the Taliban and Al Qaeda will war with each other. Al Qaeda have not integrated with the Afghanis or the Taliban, leaving them susceptible to exploitation.87

In a Report, dated September 13, 2001, the US Congressional Research Service (CRS) provided the following assessment:

Although the Taliban movement of Afghanistan, which controls about 90% of that country, gives bin Ladin and his subordinates safehaven, bin Laden does not appear to be acting on behalf of the Taliban or vice versa.88

In February 2011 a study by van Linschoten and Kuehn on the relationship between Al Qaeda and the Taliban was published. It concluded:

The Taliban and al-Qaeda remain distinct groups with different goals, ideologies, and sources of recruits; there was considerable friction between them before September 11, 2001, and today that friction persists ... The claim that the link between the Taliban and al-Qaeda is stronger than ever, or unbreakable, is potentially a major intelligence failure that hinders the United States ... Afghans have not been involved in international terrorism, nor have Afghan Taliban adopted the internationalist jihadi rhetoric of affiliates of al-Qaeda ... None of the September 11 hijackers were Afghan, ...89

The former British Ambassador to Kabul, Sherard Cowper-Coles, views this study’s conclusions as “close to convincing” and goes on to describe the following conversation:

... as the US Special Representative for Afghanistan and Pakistan Richard Holbrooke once remarked to David Miliband and me, it suggests that, in the Western campaign against the Taliban, we may be fighting the wrong enemy in the wrong country ...90

Based on the concept of “overall control” Al Qaeda’s actions can therefore not be attributed to the State of Afghanistan.

3. Did The Taliban “Make” Al Qaeda’s Actions Their Own?

In the Tehran Hostages Case91 the ICJ developed another method of establishing state responsibility in respect of actions carried out by non-state actors. Having established that Iran could not be held directly responsible for the Iranian students having taken American diplomats as hostages, the Court went on to assert that Iran had, nevertheless, subsequently incurred direct state responsibility for the students’ actions by making these actions their own.92

After quoting various official statements made by members of Iran’s government that approved of the students’ actions in the preceding paragraphs of the judgment, the ICJ stated:

The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.93

By supporting the students’ actions and by using the resulting situation to its advantage (inter alia by utilising the hostages as bargaining chips in negotiations with the USA), Iran had become responsible for these actions, without having (at least on the basis of the evidence available) “directed” them.94

Article 11 of the Draft Articles on State Responsibility reflects the ICJ’s view on incurring state responsibility just outlined:

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.95

The question of whether it can possibly be argued that the Taliban incurred direct state responsibility for the 2001 terrorist attacks on the USA by “adopting” them as their own is contentious. Given that the other two alternatives of possible state responsibility for non-state actors, can, in the case of Afghanistan and Al Qaeda, not plausibly be argued to exist, that is not surprising.

Those who argue that the Afghan Taliban government could be held directly responsible for 9/11, claim that the Taliban had “adopted” Al Qaeda’s conduct as their own by a) ignoring the Security Council resolutions demanding the extradition of Osama Bin Laden, and b) “harbouring” the terrorist Al Qaeda organisation on Afghanistan’s territory in defiance of that country’s obligations under international law.96

Both accusations, as far as Afghanistan’s conduct under international law are concerned, are correct.97 Rasanayagam, for example, estimates that before the launch of Operation Enduring Freedom there were between 6000-7000 Arab Afghan War veterans in Afghanistan,98 as well as four Al Qaeda training camps, where between 1996 and 2001 about 11000 “recruits” were trained.99

The Taliban government ignored the Security Council Resolutions100 demanding the trial or extradition of Osama Bin Laden, in clear violation of its obligations under art 25 of the UN Charter. In Resolution 1267 (1999) the Security Council, explicitly acting under Chapter VII, stated that it:

1. Insists that the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan, comply promptly with its previous resolutions and in particular cease the provision of sanctuary and training for international terrorists and their organizations, take appropriate effective measures to ensure that the territory under its control is not used for terrorist installations and camps, or for the preparation or organization of terrorist acts against other States or their citizens, and cooperate with efforts to bring indicted terrorists to justice;

2. Demands that the Taliban turn over Osama bin Laden without further delay to appropriate authorities in a country where he has been indicted, or to appropriate authorities in a country where he will be returned to such a country, or to appropriate authorities in a country where he will be arrested and effectively brought to justice; ...101

These demands were re-iterated and further expanded in Resolution 1333 (2000), again explicitly passed under the Council’s Chapter VII powers.102

By continuing to tolerate the presence on its territory of Osama bin Laden and his Al Qaeda organisation, Afghanistan also knowingly violated its long- established obligations under international law to refrain from

... organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.103

As early as 1934, the Council of the League of Nations had already unanimously passed a Resolution which stated that it:

Recalls, that it is the duty of every state neither to encourage nor tolerate on its territory any terrorist activity with a political purpose;

That every State must do all in its power to prevent and repress acts of this nature and must for this purpose lend its assistance to Governments which request it: ...104

Despite these clear violations of international law on the part of Afghanistan, they are not sufficient to argue that the Taliban “adopted” Al Qaeda’s terrorist attacks as their own.105 There is a clear distinction between violations of international law by a state, and conduct which justifies attributing the acts of other, non-state actors to that state.106

Not once did the Taliban government approve of the terrorist attacks carried out by Al Qaeda.107 Mullah Omar, the Afghan leader, always claimed there was a lack of evidence, as far as Osama bin Laden’s and Al Qaeda’s responsibility for the attacks was concerned. However, he never endorsed the actions in any way, quite in contrast to the way the Iranian officials behaved during the Tehran hostage crisis.108 Some even claim that the Taliban offered to conduct an “Islamic” trial to deal with bin Laden, although it is unclear, whether any such offer was to be taken seriously.109 Moreover, some Taliban representatives explicitly condemned the attacks.110

The justified accusation against the Afghan Taliban government was that it tolerated Al Qaeda’s presence in the country, despite knowing of its terrorist intentions. “Harbouring” terrorists is, however, not sufficient to attribute every action carried out by these terrorists to the state concerned, if the concept of state responsibility is to have any meaning.111

If it is assumed, as it is here, that an “armed attack” must be imputable to a state for the use of force in self-defence to be justified under Article 51, the “harbouring” of terrorists can in itself not be sufficient to establish state responsibility. As international terrorist organisations are bound to be at least partly located and organised in some form within the territory of a state other than the victim state, letting the mere “harbouring” of such a group suffice to attribute to that state any attack carried out by it, would, in effect, render the requirement of state imputability meaningless. Once it is accepted that any attack under art 51 must be imputable to a state, the “harbouring” of terrorists can consequently not be deemed sufficient to declare a state responsible for the terrorist organisation’s actions.112

This view of state responsibility is also implicitly confirmed by the ICJ. Having, in the Nicaragua Case, deemed even “the financing, organizing, training, supplying and equipping of the contras” by the USA “insufficient” to establish that state’s responsibility for attacks carried out by the contras,113 it is obvious that the much lesser form of support, the “harbouring” of “irregular bands” would not suffice to meet the ICJ’s standard.114 In the Armed Activities Case, decided in 2005, the Court, after having acknowledged the possibility that the Ugandan rebels that had carried out attacks in Uganda were – at least partly – operating from Congolese territory,115 nevertheless stated:

The Court has found above (paragraphs 131-135) that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (X XIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC.116

It is true that the ICJ, in the latter case, implied that the presence on Congolese territory of the Ugandan rebels was perhaps due to the DRC’s “inability to control events along its border”.117 Nevertheless, the Court’s ruling does imply that it does not deem the mere presence of “irregulars” sufficient to attribute responsibility for the attacks carried out by them to the state concerned. By re-emphasising the central role of art 3(g) of the Definition of Aggression which, as a minimum, requires a state’s “substantial involvement” in

the acts of “irregulars” for them to be attributed to it, the Court has implicitly rejected the concept of allowing the “harbouring” of terrorists to suffice in order to justify attribution of actions carried out by these groups to the state.

Lastly, in 2007, the ICJ in the Genocide Convention Case, rejected even the “overall control” test as a means of establishing a state’s international responsibility as “unsuitable, for it stretches too far, almost to breaking point, the connection that must exist between a State’s organs and its international responsibility.”118 This strongly implies that the mere “harbouring” of terrorists would certainly not satisfy the ICJ’s criteria.

Based on the fact that the mere “harbouring” of terrorists is not sufficient to hold the state tolerating their presence on its territory responsible for every act carried out by them, it must be concluded that Afghanistan did not make the attacks of 9/11 “its own” by endorsing them. The terrorist attacks were therefore not imputable to Afghanistan.

4. Summary

Since Afghanistan neither had “effective” nor “overall” control over Al Qaeda it cannot be held directly responsible for the attacks carried out by this organisation on 9/11. Because the Taliban government never endorsed the attacks, and because its support of Al Qaeda (as far as is known) never went beyond tolerating the organisation’s presence on its territory, it also cannot be claimed that Afghanistan “adopted” Al Qaeda’s course of action as its own.

D. Conclusion

The massive attacks carried out by Al Qaeda terrorists and which resulted in about 3000 deaths cannot be attributed to the State of Afghanistan. Although Afghanistan, as has been shown, violated its obligations under international law, as far as its toleration of Al Qaeda and its leaders on its territory was concerned, it cannot be held responsible for the attacks carried out by the organisation.

Since the attacks of 9/11 were not imputable to any state, Operation Enduring Freedom, launched on 7 October 2001 by the USA and the UK (and others), could not be justified as self-defence under art 51.119

It should also be pointed out that there must be doubts as to whether the measures adopted by the USA and the UK were “necessary”. Even adherents of a more generous interpretation of state responsibility would have some difficulty in reconciling Operation Enduring Freedom with a rightful resort to self-defence. The fact that the Al Qaeda attacks were completed and that the USA and the UK, although mentioning possible “future attacks”, did not claim any attack by Al Qaeda to be imminent, raises the question of whether the attacks on Afghanistan should be classified as a “reprisal”. Reprisals are however, generally viewed as having been outlawed by the UN Charter and as such not “necessary” to end an ongoing attack.120 Viewing Operation Enduring Freedom as an act of retaliation, instead of as one of self-defence, also seems justified when former UK Prime Minister Blair’s recollections are considered:

Partly as a result of this, I thought it essential that the battle we were about to embark upon was not simply a war to punish. It had to liberate. Yes, the cause was the attack on the Twin Towers, but once engagement began, it couldn’t just be retaliation, a reprisal, a redress of wrong done to us.121

Lastly, there are severe doubts as to whether Operation Enduring Freedom was “proportional” to the preceding attacks. Even the USA accused the Taliban government of Afghanistan of only “harbouring” Al Qaeda.122 Attacks on regular Taliban forces and “regime change” in Afghanistan can hardly be deemed a proportionate response to the kind of involvement that state was accused of in relation to Al Qaeda’s actions.123

In the Armed Activities Case the ICJ raised the issue in an obiter dictum as far as Uganda’s attacks on the DRC are concerned:

The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end.124

A massive operation such as the war in Afghanistan, with the open goal of deposing that state’s government, must surely lead to very similar observations based, as it was, on that government’s mere “harbouring” of a terrorist group.125 Operation Enduring Freedom can thus not be reconciled with art 51.126

IV. Customary International Law, as it Stood Prior to 9/11

The conclusion that Operation Enduring Freedom cannot be reconciled with art 51 does not necessarily mean that the military action was contrary to international law. It is possible, and has indeed been argued by many, that new rules have developed in customary international law as far as a state’s response to terrorist attacks is concerned.127

According to some, it must be assumed that the international legal rules on the use of force in response to terrorist attacks have changed as a result of the growth of international terrorist organisations, and the development of their capability to launch massive attacks, resulting, as in the case of 9/11, in the death of thousands of people.

Notably, the USA and Israel have claimed to be legally entitled to combat terrorists in other states. In 1986, US Secretary of State Shultz declared:

It is absurd to argue that international law prohibits us from capturing terrorists in international waters or airspace; from attacking them on the soil of other nations, ...; or from using force against states that support, train and harbour terrorists or guerrillas. International law demands no such result.128

Whether this proposition has gained sufficient international support to justify the conclusion that it reflects customary international law must now be examined in detail. It should, first of all, be pointed out that arts 2(4) and 51 do not – per se – create a bar to the development of new rules in customary international law on the use of force.129 As the ICJ emphasised in the Nicaragua Case, customary international law on the use of force exists side by side with the UN Charter rules.130 Although the Court, in 1986, argued that customary international law and arts 2(4) and 51 had become near identical since the Charter had come into force, it did allow for some differences in detail, and by doing so, certainly allowed for the development of new rules in the future.131

Such new rules would also not necessarily contravene the generally accepted jus cogens status of the ban on the use of force, as it is overwhelmingly agreed that the jus cogens status applies to the core of the ban on the use of force, but does not automatically outlaw all changes in the detail of when the use of force is exceptionally permitted.132

Before proceeding to examine whether new rules have developed in customary international law, allowing states to respond to terrorist attacks by the use of force against the territory of another state (and if so, under what precise conditions), it should be noted that there is one major problem when assuming such new rules exist: the lack of an agreed definition of the term “terrorist”.133

As this is not particularly relevant in respect of Operation Enduring Freedom – there is, if not universal, certainly absolutely overwhelming consensus within the international community, that Al Qaeda is a terrorist organisation134 – it suffices to refer to that often quoted statement “one man’s terrorist is another man’s freedom fighter”,135 in order to pinpoint the complexities surrounding the topic.136

The conflicts surrounding India/ Kashmir and Israel/ Palestine are just two examples of when states have come to very different conclusions, as to whether specific groups should be categorised as “terrorist” or not,137 leading to potentially explosive disputes when trying to apply apparent customary international law rules in response to “terrorist” attacks.138

Nevertheless, as there can be no doubt that the attacks of 9/11 were terrorist in nature and carried out by a terrorist organisation, this problem can be put aside in the context discussed here.

There had been, prior to 9/11, three basic constellations as far as terrorist attacks are concerned, to which states have responded by using force against another state. As the international community’s reaction to these events may lead to differing conclusions on the precise content of customary international law, these constellations must be examined separately.

Basically, the three categories are as follows: first, a state resorted to the use of force against a state it accused of either having let its officials carry out a terrorist attack, or of having directly instructed a group of people to carry out the attack; secondly, a state has responded to a terrorist attack by not only attacking the alleged terrorist bases, but by also launching military action against the state in which the terrorists were located; and, thirdly, as a result of a terrorist attack, a state has responded by directly targeting alleged terrorist bases in another state.

A. Use of Force Against States Allegedly Involved in “State Terrorism”

Contrary to what is often implied in articles and books, the cases when states have attacked other states they had previously accused of carrying out or organising a terrorist attack against the victim state or its nationals are not useful precedents for Operation Enduring Freedom.

In all these cases the victim state accused the state later attacked by it of being directly responsible for the proceeding terrorist attack. The “terrorists” were – according to the victim state – either officials employed by the other state (leaving, if true, no room for doubt as far as state responsibility is concerned) or terrorists who had been instructed to carry out the specific attack by the other state (a constellation that can easily be subsumed under art 3(g) of the Definition of Aggression, heavily relied on by the ICJ in its judgments).

The controversies that actually arose in this constellation, apart from problems of evidence, were whether the respective terrorist attack was sufficiently grave, so as to be defined as an “armed attack” under art 51, as well as whether the victim state’s response was necessary and proportional, both controversial issues that are frequently in dispute under art 51.139

As already outlined above, the main controversy surrounding Operation Enduring Freedom is whether an “armed attack” must be attributable to a state for it to fall under art 51, and of what nature this attribution should be, both matters which are not addressed in cases of “state terrorism”.

Because cases falling into this category are, nevertheless, often discussed as precedents of Operation Enduring Freedom,140 they will be briefly discussed to determine whether any useful conclusions, as far as customary international law is concerned, can be drawn.

The main cases of forceful responses to “state terrorism” are the Israeli attack on Egypt in 1956 (Suez);141 the 1986 US attack on Libya in reaction to the bombing of a discotheque in Berlin, frequented mainly by US service men;142 and the US attack on Iraq in 1993, as a consequence of a failed assassination attempt on former US President Bush Senior whilst he was visiting Kuwait.143

All three events had in common that the victim state accused the state it subsequently attacked of having direct responsibility for the terrorist attack it had suffered: Israel, in 1956 (and before) accused Egypt of “sending” the fedaheen living in the Sinai across the armistice lines in order to carry out terrorist attacks in Israel; in 1986, the USA accused Libya of having ordered the bombing of the discotheque in Berlin and claimed to have proof based on documents the US had obtained, originating from the Libyan Embassy in the German Democratic Republic;144 and in 1993 US President Clinton claimed the failed assassination plot had been organised by Iraq’s security service.145

Both Israel and the USA justified their subsequent use of force as self- defence under art 51, a claim doubtful in all these events.146 There must be severe doubts as to whether any of the military actions were “necessary” to end an ongoing attack and in both the Libya, and certainly in the Iraq, cases it is questionable whether it could be claimed that a sufficiently grave “armed attack” under art 51 had even occurred.147 Most importantly, as far as establishing customary international law is concerned, international reaction was not sufficiently positive to allow the conclusion that a new rule had been created.

As far as the 1956 Suez War is concerned the Anglo-French-Israeli attack on Egypt met with widespread international condemnation, including from the USA, which resulted in numerous General Assembly Resolutions to that effect.148 Condemnation by the Security Council was only blocked by British and French vetoes.

International reaction to the 1986 airstrikes against Libya was hardly more positive.149 The attack was condemned by a majority of states on the Security Council, although no resolution was adopted due to US, British and French vetoes.150 Nevertheless, the General Assembly did pass a resolution, in which it declared that it:

Condemns the military attack perpetrated against the Socialist People’s Libyan Arab Jamahiriya on 15 April 1986, which constitutes a violation of the Charter of the United Nations and of international law; ...151

Reaction to the 1993 missile strikes against Iraq was much more muted,152 most likely owing to Iraq’s extremely tarnished reputation at the time, shortly after the Gulf War and Iraq’s preceding attack on Kuwait. Nevertheless,

China declared the attack on Iraq to be illegal under international law,153 as did many Arab states.154 Furthermore, only very few states publicly supported the legal arguments put forward by the USA.155

Besides not being useful precedents for the attack on Afghanistan in 2001, it must therefore be concluded that the above examples of the use of force against states allegedly involved in state terrorism did not generate sufficient international support as to their legality to allow any new rules in customary international law to develop.

B. Attacks on States “Harbouring” Terrorists

The next category of responses to terrorist attacks consists of those cases when victim states have responded by not only targeting alleged terrorist bases in other countries, but by actually attacking the “host” states themselves. This constellation is very relevant to Operation Enduring Freedom as the use of force was from the outset not only targeted Al Qaeda bases in Afghanistan, but included attacks on regular Taliban forces and regime change.

Prior to 9/11 however, the instances when states decided to react to a terrorist attack by using force against the “host state” of the alleged terrorists had been quite rare. Former US President Bush Jnr confirms this, as far as the USA is concerned. In his memoirs he claims that the decision to attack Afghanistan in the aftermath of 9/11 was “a departure from America’s policies over the past two decades.”156

The notable exception in that respect has been Israel’s conduct in the Middle East. Beginning with an air raid on Beirut airport in 1968 in retaliation to a terrorist attack carried out in Athens against an Israeli plane,157 Israel repeatedly (notably in 1982) attacked Lebanon itself, and even invaded and occupied parts of the country. These actions were justified by Israel on the basis of Lebanon’s alleged harbouring, and therefore support, of Arab terrorists within its territory.158 The repeated use of force against Lebanon was consequently declared to be in accordance with Israel’s right of self-defence.159

Israel’s repeated attacks on Lebanon, however, received little support in the international community. As far as the 1968 Israeli raid on Beirut airport was concerned, international condemnation was swift.160 A senior representative of the Israeli Embassy in Washington DC, summoned to the Department of State, explained the Israeli government’s view of its raid on Beirut airport to Assistant Secretary of State Hart as follows:

Beirut is the center and headquarters for some organizations including PFLOP. Israel’s view is that no government harboring such organizations can be immune from responsibility for actions of these organizations. The savage attack on Israeli aircraft on an international flight struck at Israel’s vital life-line. No Government can permit this to happen.161

Assistant Secretary of State Hart responded by making the following statement:

We believe this an inexcusable retaliatory act striking at innocent people and facilities and also greatly impairing US interests.162

This negative assessment was echoed by the UN Security Council, which responded by passing Resolution 262 which stated, inter alia, that it:

Condemns Israel for its premeditated military action in violation of its obligations under the Charter and the cease-fire resolutions; ...163

Israel’s decision to invade Lebanon in 1982, as a reaction to the attempted assassination of the Israeli Ambassador in London one week prior,164 attributed to the Palestine Liberation Organisation (PLO) (Fatah), also did not win approval within the international community.165 The Security Council “called for”:

strict respect for the territorial integrity, sovereignty and political independence of Lebanon within its internationally recognized boundaries; ... 166

and “called upon”:

Israel immediately to cease its military action against Lebanese territorial integrity and withdraw forthwith its forces from all Lebanese territory; ...167

These sentiments were reiterated by the Security Council in several further Resolutions.168 Furthermore, the General Assembly adopted its own resolution condemning Israel for not having complied with the Security Council Resolutions and “demanded” Israel’s immediate withdrawal from the country.169

In this context it is especially noteworthy that the question of whether the PLO, or at least some of its more radical supporters, could be classified as terrorists was – certainly in the early 1980s – not without controversy.170 Nevertheless, even some of those states, such as the USA, that at the time categorised these Palestinian groups as terrorist organisations did at least not block passage of the negative Resolutions, and often supported them (even though the USA vetoed others that were even more critical of Israel’s conduct).

Lastly, Turkey’s repeated incursions into northern Iraq in the 1990s in an attempt to combat Kurdish terrorists (the PKK) there, similarly did not garner much international support, certainly not as far as their legality was concerned.171 Notably, Turkey did not even attempt to justify its actions in Iraq on the basis of art 51, nor did it report its incursions to the Security Council.172 Although reaction in many western states was muted, sometimes even supportive of the Turkish actions,173 a majority of states demanded an immediate Turkish withdrawal,174 later to be joined by western states.175 Furthermore, the more muted reaction to Turkish actions towards Iraq on the part of western states is easily explained by the fact that whilst Turkey was and is a NATO ally, Iraq’s standing in the 1990s was, certainly in western eyes, abysmally low.

It must therefore be concluded that, prior to 9/11, state practice and opinio juris had not developed sufficiently, if at all, in such a fashion so as to justify the assumption that the use of force against states “harbouring” terrorists was viewed as legal, certainly when that use of force went beyond targeting specific, alleged terrorist bases.176

Operation Enduring Freedom can therefore not be claimed to be in accordance with customary international law as it stood prior to the 9/11 attacks on New York and Washington.177 This becomes even more obvious when it is considered that the official goals of the Israeli/ Turkish interventions were much less far-reaching than Operation Enduring Freedom’s aims, regime change never being on the official agenda in those cases.178

C. Attacks on Terrorist Bases in Other States

One category of the use of force in response to terrorist attacks remains to be examined: did customary international law prior to 9/11 allow attacks on terrorist bases located in other states without those states’ consent?

This constellation, too, has not been as common as many assume. Analysing the 1998 USA airstrikes on Afghanistan and Sudan, the Congressional Research Service concluded:

the fact remains that this is the first time the U.S. has ... (2) launched such a strike within a territory of a state which presumably is not conclusively, actively and directly to blame for the action triggering retaliation, ...179

Nevertheless, there have been a number of such cases in state practice. Again, notably, Israel has, beginning in the late 1940s/ early 1950s, frequently relied on that justification when launching attacks on neighbouring states. Israel repeatedly attacked alleged terrorist bases in Egypt, Jordan, Lebanon and Syria. These attacks were, however, routinely condemned by the UN Security Council as “reprisals” and therefore as contrary to international law, and as violations of the Armistice Agreements Israel had signed with its neighbours.180

In 1985 three Israelis were killed on their yacht off Cyprus by a group called “Force 17”, associated with the PLO. Israel claimed a right of self- defence, and responded by destroying the PLO-Headquarters in Tunis in an air raid.181 This action was condemned by the Security Council in a Resolution passed by an overwhelming vote, with only the USA abstaining.182

The Security Council declared that it

Condemns vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct ...183

Although perhaps less relevant to the development of customary international law, given the two states’ racist regimes and the nature of the resistance against them, South African attacks on alleged ANC terrorist bases in neighbouring Angola,184 and Southern Rhodesia’s incursions into Mozambique,185 fared little better. In a Resolution passed in 1980, for example, the Security Council declared South Africa’s attacks on ANC bases to be “a flagrant violation of the sovereignty and the territorial integrity” of Angola.186

It is the USA’s response to the embassy bombings in Africa in 1998 that poses the most difficult questions as far as the development of customary international law is concerned. In August 1998 the US embassies in Kenya and in Tanzania suffered simultaneous terrorist attacks; 235 people were killed, many more injured, and both embassies were severely damaged.

The USA blamed Al Qaeda for the attack and decided to launch cruise missile attacks on alleged terrorist bases in Afghanistan and on a chemical factory in Sudan, the latter allegedly a facility that was producing chemical weapons and was partly owned by Osama bin Laden.187 These actions were justified as measures taken in self-defence.188 International reaction to these attacks was muted, especially as far as the attacks on Afghanistan were concerned.189 A request by Sudan and others for the Security Council to deal with the matter was not heeded.190

The muted reaction to the 1998 attacks is often argued to provide evidence of the emergence of new rules in customary international law, allowing at least the use of force against terrorist bases located in other states.191

This, however, seems doubtful. As Gray has pointed out, states supportive of the US, were “careful not to adopt the US doctrine of self-defence.”192 Furthermore, the attacks on Sudan did come in for some heavy criticism.193 The attacks were expressly condemned by the Arab League which, however, did not mention the attack on Afghanistan.194 Pakistan deemed the attack on Afghanistan illegal195 and, as Pakistani airspace had been violated, claimed its sovereignty had not been respected.196 Iran, Iraq, Libya, Yemen and, notably, Russia also declared the attacks on both Afghanistan and Sudan to be illegal.197

Scepticism as to the legality of the US attacks was also expressed at the subsequent summit of the Non-Aligned Movement.198 Having condemned the terrorist attacks in Kenya and Tanzania in the preceding paragraph, the assembled leaders went on to declare:

The Heads of State or Government emphasised that international co-operation to combat terrorism should be conducted in conformity with the principles of the United Nations Charter, international law and relevant international conventions, and expressed their opposition to selective and unilateral actions in violation of principles and purposes of the United Nations Charter. In this context, they called upon the competent United Nations Organs to promote ways and means to strengthen co-operation, including the international legal regime for combating international terrorism.199

Lastly, there seem to have been some doubts within the US government as far as the legality of the 1998 airstrikes under international law are concerned. In two Reports for Congress, from 1998 and 2001, the CRS analysed the “arguments against” the “risks” of using force against terrorists in other states. In its Report of 1 September 1998, dealing explicitly with the 1998 airstrikes, the CRS stated that:

Such a policy: (1) undermines the rule of law, violating the sovereignty of nations with whom we are not at war; ...200

This concern was reiterated in its Report of 13 September 2001, where one of the “risks” of the use of “military force” against terrorists listed was the:

... perception that U.S. ignores rules of international law.201

Based on these reactions, it is not possible to assert that the 1998 US response to the terrorist attacks created customary international law, allowing the targeting of terrorist bases in other states. Not only was sufficient affirmation of the legality of the action lacking, but those states analysing the legality of the US response tended to raise doubts as to their compatibility with international law.202 When it is considered that both Afghanistan and Sudan had, by 1998, become something akin to pariah states, this becomes even more remarkable.203

The conclusion must therefore be that prior to 9/11 no rule in customary international law had developed allowing states to respond to terrorist attacks by attacking terrorist bases in other states, thereby violating their sovereignty.204 This means that the attack on Afghanistan, even if limited to the Al Qaeda bases, could not be justified under pre-9/11 customary international law.

D. Customary International Law Prior to 9/11: A Summary

Prior to the Al Qaeda terrorist attacks on the USA in September 2001 customary international law had not developed in such a way so as to allow a forceful response to terrorist attacks on other states’ territories without their prior consent.205

When in the past states have decided to use force in self-defence to attack states “harbouring” terrorists this has always resulted in condemnation, or at least a lack of support. Even the more limited objective of taking out terrorist bases in other states has met with considerable resistance in the international community and, even where such resistance was weaker, lacked sufficient express support for the creation of new rules in customary international law to be possible.

The legal situation on the eve of Operation Enduring Freedom is perhaps best summed up by a statement made by the UK representative to the UN in 1986 in response to Israeli attacks on Lebanon:

The Government of Israel holds the view that cross-border attacks on its territory launched from Lebanon are unacceptable. No member of the Council, entrusted as we are with primary responsibility for international peace and security, can disagree with that. The Council equally cannot and does not accept, as it has demonstrated in a number of resolutions, that Israel may flout the United Nations Charter by invading and occupying another state or any part of its territory.206

Thus Operation Enduring Freedom cannot be reconciled with customary international law as it stood before September 2001.

V. “Instant Custom”

The question that must now be examined is whether the international reaction to the attacks of 11 September 11 2001 in the run-up to, and the aftermath of, the launch of Operation Enduring Freedom, must be seen as what Slaughter – in a different context – has referred to as an “international constitutional moment”.207 In other words, does the reaction by the international community justify the conclusion that customary international law was created instantaneously, that “instant custom” was created?

There is some controversy whether customary international law can ever be created “instantaneously”.208 Needless to say, the concept of “custom” on the one hand and the concept of its creation by one single event on the other basically seem irreconcilable. After all, the term “customary law” implies that a specific rule has developed over a longer period of time and been confirmed by its regular application in a number of cases. “Instant” customary international law does not fulfil either criterion.209 Some, nevertheless, argue that it is sufficient for a new rule in customary international law to be created if a major event takes place and the legal justification put forward by the actor is subsequently accepted by the overwhelming majority of states, or by those states “whose interests are directly affected”.210 It has been claimed that this is what happened in respect of the attack on Afghanistan.211

When examining the legality of attacking Afghanistan in the aftermath of 9/11, the very contentious issue of the existence of “instant custom” can be put aside for the moment. Analysing the situation some ten years after the event it is possible to have a look at subsequent, comparable incidents and international reactions to them. Only if states continued to apply the same rules to comparable events can it be argued that Operation Enduring Freedom created new customary international law.

Before turning to subsequent events it is, however, first necessary to explain why many commentators came to the conclusion that “instant” custom had been created by the international community’s reaction to Operation Enduring Freedom.212

The starting point for this argument is the Security Council’s reaction. By unanimously passing Resolutions 1368 and 1373, which “recognised” or “reaffirmed” the right of self-defence in response to the terrorist attacks against the USA, it can be argued that the international community came to accept the use of force in self-defence against non-state actors, and, possibly, against the state “harbouring” them.213

As has been argued here, this view cannot be reconciled with art 51, or customary international law as it stood prior to 9/11, so that it could be possible to conclude that the international community, aghast at the monstrosity of the Al Qaeda attacks, had come to the conclusion that a broader, more generous right of self-defence was necessary and in accordance with international law. This is seemingly further confirmed by similar Resolutions adopted by NATO and the Organisation of American States (OAS).214 Additionally, many states actively or passively participated in the military action and the subsequent attempts at rebuilding Afghanistan.215

Furthermore, the international reaction to the launch of Operation Enduring Freedom was generally positive with only the “usual suspects”, such as Iran and Iraq, claiming that the action was contrary to international law.216

Since the launch of Operation Enduring Freedom states such as Australia and Russia have themselves laid claim to a more expansive right of self-defence as far as non-state actors are concerned.217

Apart from the fact that the Security Council never explicitly declared the allied actions in Afghanistan to be legal – despite having numerous opportunities to do so in the many resolutions on Afghanistan passed by the Council in the aftermath of the initial military strikes218 – there can be little doubt, that there were, at the time, grounds for the assumption that the

international community had come to a near-consensus on viewing military actions against terrorists in other states and against states “harbouring” them, certainly following a terrorist attack, as legal.219

Subsequent events have, however, severely undermined any such conclusion.

Although there have been numerous terrorist attacks since 9/11, which have been condemned by the Security Council, it has avoided referring to the right of self-defence in any of its Resolutions.220 This is especially significant as many of these subsequent Resolutions were passed in reaction to attacks also attributed to Al Qaeda (such as the Madrid bombings of 2004, or the London bombings of 2005).221 Resolutions 1368 and 1373 therefore obviously did not set a precedent as far as the reaction of the Security Council to terrorist attacks is concerned. As has already been pointed out, even these two resolutions, moreover, avoid any explicit reference to an “armed attack” against the USA having actually taken place.222

Furthermore, the Security Council, in Resolution 1456 (2003) – which deals with the struggle against terrorism in more general terms – refrained from mentioning the right of self-defence or the use of force.223 The Council limited itself to the statement that it was “reaffirming” that “any acts of terrorism are criminal and unjustifiable”224 and emphasised that

States must ensure that any measure taken to combat terrorism comply [sic] with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law; ...225

The lack of reference to the use of force in response to terrorism is also noticeable in “The United Nations Global Counter-Terrorism Strategy”, passed by the General Assembly in 2006,226 and in the Inter-American Convention Against Terrorism, adopted by the OAS in 2002.227

State practice, since the launch of Operation Enduring Freedom, also does not confirm the existence of newly-created customary international law in favour of the use of force in response to terrorism.

A. Russia/ Chechen Terrorists in Georgia (2002)

Notably the USA has taken the view that other states should not have the right to resort to the use of force against terrorist bases in third states. When Russia, in August/ September 2002, decided to launch airstrikes against Chechen rebel bases in Georgia and informed the Security Council it would take “necessary measures to defend itself ”, it came in for harsh criticism from the USA.228

Significantly, the USA agreed with the Russian view that the Chechen rebels were terrorists,229 and acknowledged that Georgia had not dealt with the threat from these terrorists on its territory, despite undisputed repeated Russian warnings.230 In reaction to the Russian airstrikes on Chechen guerrilla bases in Georgia, the USA, nevertheless, declared it “deplored the violation of Georgia’s sovereignty”,231 and later informed the Russian government it took “strong exception to the possibility of Russian military intervention against Chechen rebels in Georgia” in the future.232

B. Israel/ Palestinian Terrorists in Syria (2003)

In October 2003, following a terrorist attack on a restaurant in Haifa, Israel launched an air raid against Syria on the grounds that it was targeting Islamic Jihad bases there.233 This military action met with strong international condemnation.234 The UN Secretary General declared that he:

strongly deplores the Israeli air strike on Syrian territory earlier today. He is especially concerned that this further escalation of an already tense and difficult situation has the potential to broaden the scope of current conflicts in the Middle East, further threatening regional peace and security. The Secretary-General urges all concerned to respect the rules of international law and to exercise restraint. 235

Spain, France, Germany and China explicitly declared the Israeli action to be in violation of international law, as did Mexico and Jordan.236 The UK referred to the actions as “unacceptable” whilst the US limited itself to “calling for restraint”.237

C. Israel/ Hezbollah in Lebanon (2006)

Following a cross-border attack on Israel in July 2006 carried out by Hezbollah, which resulted in the death of eight Israeli soldiers and the abduction of another two, Israel, in response, notified the Security Council of its intentions to resort to its rights under art 51 if necessary. This was followed by Israel’s launch of a massive assault on Lebanon where Hezbollah operates.238

The international community was divided in its response to the Israeli actions. While many – though by no means all – western states, at least initially, showed some sympathy for Israel’s reaction,239 Arab and other predominantly Muslim states, as well as China and Venezuela, condemned the attack on Lebanon as a violation of international law.240 The Non-Aligned Movement, representing 118 states, declared:

The Heads of State or Government expressed strong condemnation of the relentless Israeli aggression launched against Lebanon and the serious violations by Israel of the Lebanese territorial integrity and sovereignty, and in this regard charged Israel with full responsibility for the consequences of its aggression.241

As the Israeli attack continued, moreover, even many of Israel’s erstwhile supporters began to view the use of force by Israel as “disproportionate”.242

D. Ethiopia/ Somalia (2006/ 2007)

Ethiopia belatedly attempted to justify its 2006/ 2007 intervention in Somalia’s civil war against the Union of Islamic Courts (UIC) as self-defence, based on alleged UIC plans to launch “terrorist attacks” against Ethiopia.243 However, there were so many factors that led to Ethiopia’s decision to intervene, that it is difficult to assert any of the facts.244 For example, Ethiopia’s foe, Eritrea, supported the UIC, while Ethiopia supported the virtually powerless Transitional Federal Government.245 It also remains unclear whether the UIC could reasonably be classified as a terrorist organisation, even though the USA tended to claim that it was.246 Certainly, the whole episode received so little international attention and attracted so little comment that it cannot serve as a precedent in any way.247

E. Turkey/ Kurdish Terrorists (PKK) in Iraq (2007/ 2008)

In response to repeated terrorist attacks carried out by PKK terrorists, often based in the Kurdish-controlled areas of Northern Iraq, the Turkish Parliament approved a measure allowing the Turkish government to deploy forces to Iraq without that state’s consent.248 It was not in dispute that Iraq, at the time, was incapable of dealing with the situation in northern Iraq. In late 2007/early 2008 Turkey mounted air raids on Iraq and, on occasion, Turkish ground troops crossed the border into Iraq.249 Turkey did not report these actions to the Security Council and did not offer any legal justification for them.250 It was perhaps for that reason that international reaction was more muted.

However, as far as there was international reaction, it was – in the main – not positive. The EU warned Turkey against using force on Iraqi territory.251 In a statement in reaction to the Turkish Parliament’s authorisation to do so, the EU emphasised:

The EU and Turkey have regularly reiterated that they remain committed to the independence, sovereignty, unity and territorial integrity of Iraq.252

Even the USA initially opposed Turkish military intervention,253 although it later became increasingly ambivalent.254

The West European Union (WEU), too, sought refuge in ambiguities. While reiterating Turkey’s respect for Iraq’s sovereignty and emphasising Turkey’s right to “protect its citizens” against terrorist acts carried out by the PKK, it also called on Turkey to “refrain from any disproportionate military action in its fight against PKK terrorism.”255

Despite international reaction to Turkish incursions into Iraq in 2007 thus being less adverse than in previous cases, the negative attitude expressed by many states and the lack of any legal reasoning seem to confirm that even those states most closely associated with the “war on terror” do not find it possible to claim a right to use force against terrorists in other states based on customary international law. The fact Turkey itself refrained from providing any legal justification for its actions further undermines the claim that 9/11 led to the “instant” creation of customary international law.

F. More Recent Events

In March 2008 Colombian troops attacked alleged Revolutionary Armed Forces of Colombia256 camps within Ecuador. Colombia claimed to be acting in self-defence.257 Nevertheless, the Permanent Council of the OAS, on 5 March 2008, passed a resolution condemning the Colombian incursion as “a violation of the sovereignty and the territorial integrity of Ecuador and of principles of international law.”258

In a repetition of events described above, Turkey in 2011, again entered Iraqi territory in order to combat PKK terrorists. Turkey once more refrained from offering a legal justification or informing the Security Council, and international reaction was again muted. Furthermore, the true attitude of the Iraqi central government and the Kurdish regional government in northern Iraq remained ambiguous.259

In October 2011, Kenyan troops entered Somali territory to combat al-Shabaab terrorists, blamed for abductions of foreign tourists in Kenya. Kenya claimed to have received the prior consent of the officially recognised Somali government.260

Regarding the recent and current “targeted killings” of terrorists in Yemen and in Pakistan, carried out by the USA, it is generally assumed that both Yemen261 and Pakistan262 have, in the past, given their consent to these actions.

G. Summary

Based on the analysis of subsequent events it must be concluded that the international community’s reaction to 9/11, and to the military action launched by the USA and the UK on 7 October 2001, did not “instantaneously” create new customary international law. Gray has therefore concluded that those arguing that the international community’s reaction to 9/11 had “changed” the law “have not been able to adduce state practice in support of their argument other than that of Operation Enduring Freedom.”263

Although the USA has shown more tolerance when allies such as Israel and Turkey have used force against terrorists in other states, it has opposed a state’s right to attack terrorist bases in other states when that state has not been an ally, such as when Russia intervened in Georgia in 2002. The Europeans have been even more reluctant to support a victim state’s unilateral use of force against terrorists, and other states, such as the members of the Non-Aligned Movement, have been outspoken in their opposition to any such concept. Lastly, the lack of development of a firm rule in customary international law is also confirmed by former US President Bush’s recollections on dealing with Pakistan in 2008:

In the middle of 2008, I was tired of reading intelligence reports about extremist sanctuaries in Pakistan ... ‘Mr President,’ he [an unnamed SEAL] said, ‘we need permission to kick some ass inside Pakistan.’ I understood the urgency of the threat and wanted to do something about it. But on this issue, Musharraf ’s judgment had been well- founded ... No democracy can tolerate violations of its sovereignty.264

The developments since September/ October 2001 therefore disprove the argument that customary international law was created at that time. States remain extremely reluctant to extend the right of self-defence, be it under art 51, or under customary international law. The question whether customary international law can be created by one singular event, and thus instantaneously, is therefore not relevant in this case.

H. Conclusion

The US-led attack on Afghanistan in response to the Al Qaeda attacks on New York and Washington DC was inconsistent with international law.265

Attempts at justifying the use of force by arguing it was in accordance with art 51 are not convincing. Although there can be no doubt that the attacks of September 11, 2001, were of sufficient gravity to be classified as “armed attacks”, they lacked one decisive requirement under art 51: they could not be attributed to a state. Although the Taliban government of Afghanistan could be accused of violating international law by tolerating Al Qaeda on its territory, it cannot be successfully argued that the attacks of September 2001 were imputable to the State of Afghanistan.266

The war on Afghanistan could not be justified under customary international law either. As far as customary international law is concerned, as it stood prior to 9/11, comparable examples of state practice have not evidenced sufficient legal support on the part of states to justify the conclusion that customary international law allows the use of force against states “harbouring” terrorists, or against terrorist bases in other states without their consent.267 In fact, in most instances there has been widespread opposition to the assumption of such a right.

Irrespective of whether customary international law can ever be created “instantaneously”, the argument that the international community’s reaction to 9/11 in the run-up and aftermath of Operation Enduring Freedom had done so, also fails to convince. In comparable circumstances states have since 9/11, mostly, sometimes overwhelmingly, opposed states that have attacked other states because of the presence of terrorists on their territory. At times even the US has stressed that the sovereignty of states has to be respected, whether or not terrorists are able to operate there.268 It must therefore be concluded that attacking Afghanistan, in response to 9/11, with the far- reaching goal of deposing that state’s government, cannot be reconciled with international law.

The world’s reaction to 9/11 and to the American-led attack on Afghanistan is perhaps best explained, not by trying to give it legal meaning, but by recognising the universal shock felt by people and governments all over the world in the face of such a massive terrorist attack.269 Many states wanted to demonstrate their solidarity with the USA, without wanting to create law, and criticism of US actions very likely seemed inappropriate.270 By acquiescing in US actions some governments might have simply been attempting to salvage multilateral organisations, such as the UN and NATO. It was, after all, very likely that the USA could not be stopped from going to war in any case, but that its government would not hesitate to undermine these organisations if it felt they had not offered sufficient support.271

Lastly, it cannot be overlooked that the Taliban regime in Afghanistan was almost completely isolated, and widely disliked within the international community, which made winning support much easier.272 As the Iraq War in 2003 against the backdrop of Saddam Hussein’s widely detested regime demonstrated, that alone will not lead to international support for a war against a state, but it certainly facilitates gaining it.

The war on Afghanistan was thus not legally justified. Glennon, who agrees that Operation Enduring Freedom cannot be reconciled with the UN Charter, argues that this proves the incoherence of modern international law.273 The unsatisfactory developments in Afghanistan since 2001, however, rather suggest an incoherence of planning and strategy on the part of those states ignoring international law.

As Woollacott has therefore correctly concluded it is in truth a foreign policy that is no longer anchored in reality that is harming western states’ interests,274 not public international law which, in contrast, can act as an important corrective to politicians’ impulsive and emotional decision- making. This is not really surprising, as modern international law has been developed by states over decades, if not centuries, of often bitter experiences. International law can thus often offer a more reliable, if emotionally frustrating guide to the conduct of a realistic foreign policy than politicians’ spur-of-the- moment actions.

* Patrick C R Terry was recently awarded a PhD in public international law (University of Kent, UK). Prior to that he had obtained three further law degrees: Erstes Staatsexamen (University of Tübingen, Germany), Zweites Staatsexamen (Stuttgart, Germany), and LLM International Law with International Relations (University of Kent). He was also a judge in Germany for a number of years. He would like to thank Professor Mansell and Dr Arai (both University of Kent) for their support.
1 Raphael F Perl “Terrorism: U.S. Response to Bombings in Kenya and Tanzania: A New Policy Direction?” (Congressional Research Service, Report for Congress, Washington DC, 1998), at 4.
2 Michael J Glennon “The Fog of Law: Self-Defense, Inherence And Incoherence in Article 51 of the United Nations Charter” (2001-2002) 25 Harv JL & Pub Poly 539 at 541-545.
3 SC Res 1368, S/Res/1368 (2001).
4 SC Res 1373, S/Res/1373 (2001).
5 Ahmed Rashid Descent Into Chaos, Pakistan, Afghanistan and the Threat to Global Security (Penguin Books Ltd, London, 2009) at 66 (referring in particular to Resolution 1373); Michael Byers “Terrorism, the Use of Force and International Law After September 11” (2002) 51 ICLQ 401 at 401-403. Byers argues that Resolution 1373 “could” be read to authorise the use of force (although he himself does not agree with such an interpretation); Jordan J Paust “Use of Armed Force against Terrorists in Afghanistan, Iraq, and Beyond” (2001-2002) 35 Cornell Intl LJ 533 at 544-545. He, however, argues that the UN Security Council authorisation was limited to attacking Al Qaeda, and did not extend to attacking Afghanistan and the Taliban. He believes that this - limited - UN authorisation is to be found in the phrases “combat by all means” (quoted above) and art 3(c) of the resolution which “calls upon all states to”... “(c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts; ...” By emphasising the “take action” aspect of art 3(c), Paust, however, overlooks the context in which that statement was made. It is obvious that art 3 is meant to address investigative, crime prevention, and criminal law issues, and not authorise the use of force in self-defence.
6 John Quigley “The Afghanistan War And Self-Defense” (2002-2003) 37 Valparaiso UL Rev 541 at 549; Karl M Meesen “Unilateral Recourse to Military Force against Terrorist Attacks” (2003) 28 YJIL 341 at 347-348. Jonathan Steele Ghosts of Afghanistan, The Haunted Battleground (Portobello Books, London, 2011) at 225.
7 SC Res 678, S/Res/678 (1990). In Resolution 660 (1990) the UN Security Council had already determined that the situation in Iraq/Kuwait was a “breach of international peace and security”, and that it was acting under arts 39 and 40 of the UN Charter, thus making it clear that it was acting under Chapter VII.
8 SC Res 83, S/Res/83 (1950). In Resolution 82 (1950) the UN Security Council had “determined” that North Korea’s attack on the Republic of Korea was a “breach of the peace” (art 39, UN Charter) and Resolution 83 (1950), in its preamble, referred to that decision. It must therefore be concluded that the Security Council was acting under Chapter VII.
9 SC Res 161A, S/Res/161A (1961) and SC Res 169, S/Res/169 (1961) dealt with the civil war in Congo and authorised the use of force by the UN peacekeeping operation there (ONUC). In Resolution 161A the Security Council declared that it (emphasis added) “1. Urges that the United Nations take immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including arrangements for cease-fires, the halting of all military operations, the prevention of clashes, and the use of force, if necessary, in the last resort; in Resolution 169 the Council emphasized that it hereby (emphasis by author) “4. Authorizes the Secretary-General to take vigorous action, including the use of the requisite measure of force, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisers not under the United Nations Command, and mercenaries, as laid down in paragraph 2 of Security Council resolution 161 A (1961) of 21 February 1961;”.
10 SC Res 221, S/Res/221 (1966) dealt with the sanctions imposed on Southern Rhodesia. In it the Council explicitly (emphasis by author) “5. Calls upon the Government of the United Kingdom of Great Britain and Northern Ireland to prevent, by the use of force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia, ...”.
11 Lindsay Moir Reappraising the Resort to Force, International Law, Jus ad Bellum and the War on Terror (Hart Publishing, Oxford and Portland, 2010) at 52-53; W Michael Reisman “International Legal Dynamics and the Design of Feasible Missions: The Case of Afghanistan” in Michael N Schmitt (ed) The War in Afghanistan: A Legal Analysis (Naval War College, Newport, 2009) at 65; Christopher Greenwood “International Law and the ‘war against terrorism’” (2002) 78 Intl Aff 301 at 309; Quigley, above n 6, at 549; Eric P J Myjer and Nigel D White “The Twin Towers Attack: An Unlimited Right to Self-Defence?” (2002) 7 J Conflict & Sec L 5 at 7; Jörg Kammerhofer “The Armed Activities Case and Non-state Actors in Self-Defence Law” (2007) 20 LJIL 89 at 99-100; J Wouters, F Naert “Shockwaves through International Law after 11 September: Finding the Right Responses to the Challenges of International Terrorism” in C Fijnaut, J Wouters and F Naert (eds) Legal Instruments in the Fight against International Terrorism, A Transatlantic Dialogue (Martinus Nijhoff Publishers, Leiden, 2004) at 463; Tarcisio Gazzini The changing rules on the use of force in international law (Manchester University Press, Manchester, 2005) at 77-78.
12 Tom Ruys and Sten Verhoeven “Attacks by private actors and the right of self-defence” (2005) 10 J Conflict & Sec L 289 at 297; Greenwood, ibid, at 309; Gazzini, ibid, at 77.
13 Moir, above n 11, at 44; Byers, above n 5, at 402-403; Myjer and White, above n 11, at 7.
14 Myjer and White, above n 11, at 10-11. They speculate that China and Russia would possibly have vetoed an explicit Resolution; Jonathan I Charney “The Use of Force Against Terrorism and International Law” (2001) 95 AJIL 835 at 835-837; Sean D Murphy “Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the U.N. Charter” (2002) 42 Harv Intl LJ 41 at 44; Byers, above n 5, at 401-403 (although he views Resolution 1373 as interpretable in such a way so as to read an authorisation into it, an interpretation he himself, however, disagrees with); and “Terror and the Future of International Law” in Ken Booth and Tim Dunne (eds) Worlds in Collision, Terror and the Future of Global Order (Palgrave Macmillan, Basingstoke, 2002) 118 at 123 (here Byers is more categorical in rejecting the notion of UN authorisation); Abdullah Ahmed An-Na’im “Upholding International Legality Against Islamic and American Jihad” in Booth and Dunne (eds), ibid, 162 at 168.
15 Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council UN Doc S/2001/946 (2001).
16 Letter from Stewart Eldon, Chargé d’Affaires, UK Mission to the UN in New York, to the President of the Security Council UN Doc S/2001/947 (2001). Excerpts in “Operation Enduring Freedom and the Conflict in Afghanistan: An Update” (House of Commons Library, Research Paper 01/81, 2001) at 10.
17 Yoram Dinstein “Terrorism and Afghanistan” in Michael N Schmitt (ed) The War in Afghanistan, A Legal Analysis (Naval War College, Newport, 2009) 43 at 46. Moir, above n 11, at 53-54. Despite acknowledging that international law prior to 9/11 demanded an attack to be imputable to a state in order to qualify under art 51, and accepting the fact there was no UN authorisation, Moir then concludes that the UN Security Council had - apparently - authoritatively decided that, on 9/11, an “armed attack” on the United States under art 51 had occurred, and that the US could therefore respond by using force in self-defence. He therefore obviously deems the UN Security Council Resolutions on the matter sufficient to assume art 51 was basically adhered to. Moir then proceeds to examine only the questions of necessity and proportionality. Nicholas Rostow “Before And After: The Changed UN Response to Terrorism since September 11th” (2001-2002) 35 Cornell J Intl L 475 at 481; Jane E Stromseth “New Paradigms for the Jus Ad Bellum?” (2006) 38 Geo Wash Intl L Rev 561 at 566; Meesen, above n 6, 347-348. It is not quite clear whether he supports this argument or not. However, he does examine whether the Council’s response to 9/11 had now made the “recourse to unilateral military force dependent on prior authorization” by the Council, which seems somewhat far-fetched, but implies Meesen believes the Council had authoritatively confirmed an art 51 situation.
18 Noelle Quénvivet “The World after September 11: Has It Really Changed?” (2005) 16 EJIL 561 at 576. She argues the Security Council “preferred to abstain from judging the legality of the British and American intervention”; Myjer and White, above n 11, at 9-13. They describe the Security Council’s reaction as one of “deliberate ambiguity” and accuse it of “doing its best to ignore the crucial issue of the legal basis of the US response.”; Quigley, above n 6, at 553-554. In his view the Security Council reaction was one of “inaction” and “silence” in response to Operation Enduring Freedom; Antonio Cassese “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law” (2001) 12 EJIL 993 at 996; Christine Gray International Law and the Use of Force (3rd ed, Oxford University Press, Oxford, 2008) at 206-207.
19 Wouters and Naert, above n 11, at 446.
20 Moir, above n 11, at 53; Quigley, above n 6, at 549; Kammerhofer, above n 11, at 99-100.
21 SC Res 661, S/Res/661 (1990).
22 Ruys and Verhoeven, above n 11, at 312; Myjer and White, above n 11, at 9-11. They make the same point; Murphy, above n 14, at 46. He makes a similar point in respect of the General Assembly’s Resolution in reaction to the events of 11 September 2001 (Resolution 56/1 (2001); a point also made by Wouters and Naert, above n 11, at 446; Mikael Nabati “International Law at a Crossroads: Self-Defense, Global Terrorism and Preemption (A Call to Rethink the Self-Defense Normative Framework)” (2003) 19 Transnatl L & Contemp Probs 771 at 780. He points out that GA Resolution 56/1 “explicitly declines to characterize the acts as an armed attack under Article 51 of the Charter.”
23 Reisman, above n 11, at 64-65. He bases this conclusion on the fact that the Council, in Resolution 1368, chose to refer to “threats to the peace”, instead of “breaches of the peace” or “acts of aggression”, when categorising the attacks of 9/11. He also refers to Resolution 1378 (2001) of 14 November 2001, in which the Council had declared its support for “international efforts to root out terrorism”, but that these efforts were to “be in keeping with the Charter of the United Nations”. In Reisman’s view this is “code for the Charter’s prohibition on the unilateral use of force in any circumstance other than exigent self-defense”.
24 This can at least be inferred when art 1(1) is considered. The way art 1(1) is phrased would imply that the UN must only act in “conformity with international law”, as far as the “adjustment or settlement of international disputes” is concerned. See also ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Incident at Lockerbie (Libya v. USA) (Provisional Measures, Order of 14 April 1992) [1992] ICJ Rep 114 at [36-44]. However, the Security Council is at all times obliged to “act in accordance with the Purposes and Principles of the United Nations” (article 24 (2) UN Charter).
25 Kammerhofer, above n 11, at 100; Reisman, above n 11, at 67.
26 Quigley, above n 6, at 554; Kammerhofer, ibid; Reisman, ibid.
27 Murphy, above n 14, at 47; Carsten Stahn “Terrorist Acts as ‘Armed Attack’: The Right to Self-Defense, Article 51 (1/2) of the Charter, and International Terrorism” (2003) 27 Fletcher F World Aff 35 at 45-46; Myjer, and White, above n 14, at 7; Wouters and Naert, above n 11, at 456; Gray, above n 18, at 202; Gilles Dorronsoro “The Security Council and the Afghan Conflict” in Vaughan Lowe, Adam Roberts, Jennifer Welsh, Dominik Zaum (eds) The United Nations Security Council and War, The Evolution of Theory and Practice since 1945 (Oxford, Oxford University Press, 2007) 452 at 463.
28 Emphasis added. Moir, above n 11, at 47; Ruys and Verhoeven, above n 12, at 311; Thomas M Franck “Terrorism and the Right of Self-Defense” (2001) 95 AJIL 839 at 840; Murphy, above n 14, at 46 and 51; Stahn, above n 27, at 35-36; Paust, above n 5, at 534-535; Stromseth, above n 17, at 566; Ruth Wedgwood “Responding to Terrorism: The Strikes Against bin Laden” (1999) 24 YJIL 559 at 564; Elizabeth Wilmshurst “The Chatham House principles of International law on the use of force in self-defence” (2006) 55 ICLQ 963 at 969-970; Dinstein, above n 17, at 45-46 and Yoram Dinstein War, Aggression and Self-Defence (4th ed, Cambridge University Press, Cambridge, 2005) at 245-247.
29 Paust, above n 5, at 535; W. Michael Reisman “International Legal Responses to Terrorism” (1999-2000) 22 Houston JIL 3 at 42-46; Guy B Roberts “Self-Help in Combatting State- Sponsored Terrorism: Self-Defense and Peacetime Reprisals” (1987) 19 Case W Res J Intl L 243 at 268-269; Wilmshurst, above n 28, at 970; Dinstein, above n 28, at 248-249. For extracts of the notes exchanged between Britain and the USA in 1841/1842 see <http:// avalon.law.yale.edu/19th_century/br-1842d.asp> .
30 Moir, above n 11, at 47; Murphy, above n 14, at 46 and 51; Stuart G Baker, “Comparing the 1993 Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51” (1994-1995) 24 Ga J Intl & Comp L 99 at 107-108; Gregory M Travalio “Terrorism, International Law, and the Use of Military Force” (2000) 18 Wis Intl LJ 145-191 at 156; Rein Müllerson “Jus ad Bellum: plus ca change (Le Monde) or plus la mème chose (Le Droit)?” (2002) 7 J Conflict & Sec L 149 at 172 and 177; Niaz A Shah “Self-defence, anticipatory self- defence and pre-emption: International law’s response to terrorism” (2007) 12 J Conflict & Sec L 95 at 104 and 108-111. His stance seems contradictory: he argues that art 51 includes “the activities of non-state actors in the case of an armed attack”, but then goes on to claim that the use of force against “non-state actors” is only justified when the acts are “attributable to a state”.
31 Moir, ibid; Murphy, above n 14, at 46 and 51; Stahn, above n 27, at 41-43; Baker, ibid, 30, at 108; Erin L Guruli “The Terrorism Era: Should the International Community Redefine Its Legal Standards on Use of Force in Self-Defense?” (2004) 12 Willamette J Intl L & Disp Res 100 and 108-109; Shah, ibid, at 104-108; Franklin Berman “The UN Charter and the Use of Force” (2006) 10 SYBIL 9 at 10-11; Müllerson, ibid, at 171-179; Gazzini, above n 11, at 183; Greenwood, above n 11, at 307. He accuses adherents of the opposite view of “strange formalism”.
32 Vienna convention on the Law of Treaties (opened for signature 23 May 1962, entered into force on 27 January 1980). See Ruys and Verhoeven, above n 12, at 290; Wouters and Naert, above n 11, at 430.
33 Statement by the North Atlantic Counsel (press release 12 September 2001); Franck, above n 28, at 840. Franck adds another argument: as the Security Council felt competent to act under art 39 in respect of a non-state actor (Al Qaeda) in the aftermath of 9/11, it follows the “attacked state” can act as well. This argument fails to convince. There can be no doubt that the Security Council, when acting under Chapter VII, has much broader discretion and more rights than an individual state. It would be a catastrophe for world peace, if it were assumed that every time the UN Security Council decided there was a Chapter VII situation, any individual state could automatically act independently. Frankly, such an approach would ultimately make the Security Council obsolete.
34 Richard H Heindel, Thorsten V Kalijarvi and Francis O Wilcox “The North Atlantic Treaty in the United States Senate” (1949) 43 AJIL 633 at 645; Mohamed R Hassanien “International Law Fights Terrorism in the Muslim World: A Middle Eastern Perspective” (2007-2008) 36 Denv J Intl L & Poly 221 and 249; Ian Brownlie International Law and the Use of Force by States (Oxford University Press, Oxford, 1963 (reprint 1968)) at 278-279. Brownlie states that it is “doubtful” whether the phrase “armed attack” could possibly apply to the activities of armed bands or other irregulars.
35 Cassese, above n 18, at 997; Travalio, above n 30, at 179-180.
36 Cassese, ibid, 997; Ian Johnstone “The Plea of ‘Necessity’ in International Legal Discourse: Humanitarian Intervention and Counterterrorism” (2004-2005) 43 Colum J Transnatl L 337 at 369; Jules Lobel “The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan” (1999) 24 YJIL 537 at 542-543 and 556; Travalio, above n 30, at 156-157, 159 and 179-180; Shah, above n 30, at 105; Richard A Falk “The Beirut Raid and the International Law of Retaliation” (1969) 63 AJIL 415 and 438; Reisman, above n 11, at 70-71. In a general discussion of the legality of the use of force in the aftermath of terrorist attacks, he points to that danger. He cites the example of Afghanistan’s President Karzai, in June 2008, threatening neighbouring Pakistan with “cross-border attacks” to deal with the “militants” there, thereby relying on Afghanistan’s right of self-defence as justification. Pakistan reacted by reminding Karzai of its “sovereignty”, despite acknowledging the presence of militants in the Afghan-Pakistani border area.
37 Steven R Ratner “Jus Ad Bellum And Jus In Bello After September 11” (2002) 96 AJIL 905 at 917-918.
38 These are relevant criteria as confirmed by art 31(3)(b) of the Vienna Convention on the Law of Treaties.
39 Ruys and Verhoeven, above n 12, at 290-291, 312; Myjer and White, above n 14, at 7; Kammerhofer, above n 11, at 100; Murphy, above n 14, at 46 and 51; Cassese, above n 18, 997 and “The International Community’s ‘Legal’ Response to Terrorism” (1989) 38 ICLQ 589-608 at 597; Yutaka Arai-Takahashi “Shifting Boundaries of the Right of Self-Defence- Appraising the Impact of the September 11 Attacks on Jus Ad Bellum” (2002) 36 Intl Lawyer 1081 at 1087; Baker, above n 30, at 110; Travalio, above n 30, at 152; Wouters and Naert, above n 11, at 432; Falk, above n 36, at 427; Gray, above n 18, at 199; Steele, above n 6, at 226; Moir, above n 11, at 47-48 and 52; although he personally disagrees with this interpretation of art 51, he acknowledges that the ICJ’s judgement in the Nicaragua Case - analysed in detail later - in that respect “was probably justified in light of the practice of states, and of the Security Council.” Nabati, above n 22, at 780-781. He, however, uses this argument to demonstrate that the law on the use of force must be adapted, so that states can in future respond effectively to the new phenomenon of terrorist attacks. One way of doing so, he argues, is to accept that in future the phrase “armed attack” must be interpreted “broadly to include non-military actions by private actors.” (at 791-792).
40 Legal Consequences of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. Separate Opinion per Judge Kooijmans at [35]; John F Murphy, “Afghanistan: Hard Choices and the Future of International Law” in The War in Afghanistan: A Legal Analysis Michael N Schmitt (ed) International Law Studies, Volume 85, Newport, Rhode Island: Naval War College, 2009, Part II, Chapter IV, 79-107, at 98-99. Writing in 2008/2009, he states that there was “considerable scholarly comment in support of the notion that there is no right of self-defence under art 51 against an armed attack by a non-state actor”; Gazzini, above n 11, at 139.
41 “Report of the Commission to the General Assembly on the Work of Its Thirty-Second Session” (1980) 2(2) YILC 52-53 (art 34(3)). The International Law Commission was, however, more hesitant in its 2001 Report; see “Report of the Commission to the General Assembly on the Work of Its Fifty-Third Session” (2001) 2(2) YILC 75 (art 21(5), (6)).
42 NATO “The Alliance’s Strategic Concept” (press release, 24 April 1999) at [24] and [10] (“Security”, “Deterrence and Defence”). The way the Concept’s paragraph 24 is formulated it is clear that terrorist attacks were not seen as “armed attacks” covered by arts 5 and 6 of the Washington Treaty (emphasis added): “A ny armed attack on the territory of the Allies, from whatever direction, would be covered by Articles 5 and 6 of the Washington Treaty. However, Alliance security must also take account of the global context. Alliance security interests can be affected by other risks of a wider nature, including acts of terrorism, sabotage and organised crime, and by the disruption of the flow of vital resources.” Arai-Takahashi, above n 39, at 1087.
43 “Executive Report of the Committee on Foreign Relations” (Report No. 8, produced by the US Senate for the first session of the 81st Congress, 6 June 1949), reprinted in (1949) Department of State Bulletin 787 at 789 (emphasis added).
44 Heindel, Kalijarvi and Wilcox, above n 34, at 633-665 and 645 (emphasis added).
45 GA Res 3314, A/Res/3314 (1974), art 1, Definition of Aggression, Annex to Resolution 3314 (emphasis added).
46 Arai-Takahashi, above n 39, at 1084; Wouters and Naert, above n 11, at 431; Gray, above n 18, at 199-200.
47 Roberts, above n 29, at 263.
48 Reisman, above n 29, at 39.
49 Review Conference of the Rome Statute Resolution 6, RC/Res 6 (2010) at Annex I, art 2.
50 Johnstone, above n 36, at 367-368; Moir, above n 11, at 24-25 (Moir, however, seems to disagree with the ICJ’s interpretation).
51 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 at [195] (emphasis added).
52 Murphy, above n 14, at 44; Byers, above n 5, at 407-408; Nabati, above n 22, at 781; Kammerhofer, above n 11, at 105, 107 and 109; Arai-Takahashi, above n 39, at 1084; Lobel, above n 36, at 541; Gray, above n 18, at 200.
53 Reisman, above n 29, at 39; Johnstone, above n 36, at 370; Travalio, above n 30, at 173-174; Guruli, above n 31, at 115; Müllerson, above n 30, at 183-185 (he, however, uses this argument in respect of the threshold of state responsibility developed by the ICJ in the Nicaragua Case).
54 Legal Consequences of a Wall in the Occupied Palestinian Territory, above n 40 at [139] (emphasis added).
55 Ibid. See the Separate Opinion Judge Higgins at [33]: “1 do not agree with all that the Court has to say on the question of the law of self-defence. In paragraph 139 the Court quotes art 51 of the Charter and then continues ‘Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.’ There is, with respect, nothing in the text of art 51 that thus stipulates that self-defence is available only when an armed attack is made by a State.” See Separate Opinion Judge Kooijmans at [35] and Declaration of Judge Buergenthal at [6].
56 Ruys and Verhoeven, above n 12, at 305; Johnstone, above n 36, at 374-375; Berman, above n 31, at 10. He simply describes the ICJ’s view as “strange”; Dinstein, above n 17, at 46 (he, nevertheless, disagrees with the ICJ’s decision); Gazzini, above n 11, at 184.
57 Ruys and Verhoeven, above n 56; Murphy, above n 40, at 99.
58 Kammerhofer, above n 11, at 89, 96 and 105.
59 Kammerhofer, ibid, at 91.
60 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgment) [2005] ICJ Rep 168 at [146] (emphasis added).
61 Dinstein, above n 17, at 49. Dinstein claims the majority of judges at the ICJ had “glossed over” the issue; Murphy, above n 40, at 99. Murphy claims the Court had “arguably backed off ” from its earlier statements on self-defence it had made in its 2004 Advisory Opinion; Berman, above n 31, at10. In this context Berman, without elaborating, claims that the ICJ had “more by its silences than by clear words” “corrected” the “unfortunate aspects of its earlier decision in the Nicaragua case”; Gray, above n 18, at 202.
62 Armed Activities on the Territory of the Congo, above n 60, at [147].
63 Ibid, at [132]-[133].
64 Ibid, at [135].
65 Ibid, at [168]; See Separate Opinion of Judge Kooijmans at [20]-[32]; to some extent, see also Separate Opinion of Judge Simma at [8]-[14].
66 Kammerhofer, above n 11, at 112-113.
67 Kammerhofer, ibid, at 105 and 110. Kammerhofer adds another argument in favour of assuming that an “armed attack” under Article 51 must be imputable to a state: targeting individuals who committed terrorist attacks is not a use of force banned under art 2(4). He therefore concludes that an “armed attack” under art 51 must be imputable to a state, in order for the use of force against the “host state” to be justified under art 51. Although the argument has some merit, it is not wholly convincing. It could just as well be argued that art 51 justifies the use of force against the “host state”, based on the fact that the attack by the non-state actor was severe enough to qualify as an “armed attack”.
68 The American UN Ambassador declared (emphasis added): “Since 11 September, my Government has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks ... The attacks on 11 September 2001 ... have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation ...”; Letter, above n 15. The UK Representative stated (emphasis by author): “... this military action ... is directed against Usama Bin Laden’s Al Qaida terrorist organisation and the Taliban regime that is supporting it ...”; Letter, above n 16. Excerpts in Research Paper 01/81 “Operation Enduring Freedom and the Conflict in Afghanistan: An Update” (31 October 2001) House of Commons Library <http://www.parliament.uk/ documents/commons/lib/research/rp2001/rp01-081.pdf> at 10; Wouters and Naert, above n 11, at 432. Similarly, former US President Bush Jnr, in his memoirs, makes the point that “by 9/11 Afghanistan was not only a state sponsor of terror, but a state sponsored by terror”. See George W Bush Decision Points (Crown Publishers, New York, 2011) at 187.
69 Moir, above n 11, at 61; Dorronsoro, above n 27, at 453 and 464.
70 Moir, above n 11, at 61.
71 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Hercegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 at [398] and [407].
72 Case Concerning Military and Paramilitary Activities in and against Nicaragua, above n 51, at [115]; Moir, above n 11, at 50; Ruys and Verhoeven, above n 12, at 300; Nabati, above n 22, at 781; Meesen, above n 6, at 345; Kammerhofer, above n 11, at 111; Johnstone, above n 36, at 367; Travalio, above n 30, at 152-153; Shah, above n 30, at 109; Müllerson, above n 30, at 183-184; Wouters and Naert, above n 11, at 432; Dinstein, above n 17, at 47; Gazzini, above n 11, at 140.
73 Case Concerning Military and Paramilitary Activities in and against Nicaragua, above n 51, at [115].
74 Ibid.
75 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, above n 71, at [392].
76 Ibid, at [397].
77 Responsibility of States for Internationally Wrong ful Acts GA Res 56/83, A/Res/56/83 (2001), art 8. See the Genocide Case, ibid, at [398] and [407]; Arai-Takahashi, above n 39, at 1096.
78 Meesen, above n 6, at 345; Moir, above n 11, at 50 and 63-64; Arai-Takahashi, above n 39, at 1097; Ruys and Verhoeven, above n 12, at 313; Ratner, above n 37, at 907-908; Paust, above n 5, at 542-542; Wouters and Naert, above n 11, at 456-457; Dorronsoro, above n 27, at 464; Stahn, above n 27, at 37. Stahn, however, therefore concludes that the international approval of Operation Enduring Freedom meant that the “effective control” test had been “overturned”. He provides no evidence for this argument. This is even more striking, given the fact that even the ICJ has allowed alternative ways of establishing state responsibility, as demonstrated in the Tehran Hostages Case.
79 Sherard Cowper-Coles Cables from Kabul, The inside story of the West’s Afghanistan Campaign (Harper Press, London, 2011) at 58. The former UK Ambassador to Kabul states that “many contemporary accounts record the surprise and horror with which the Taliban and many Afghans greeted the news of the attacks on New York and Washington on 11 September 2001.” Alex Strick van Linschoten and Felix Kuehn “Separating the Taliban from al-Qaeda, The Core of Success in Afghanistan” (February 2011) <http://www.cic.nyu.edu/afghanistan/ docs/gregg_sep_tal_alqaeda.pdf> . In their study of February 2011, which the former British Ambassador to Kabul (2008-2009, 2010) has described as “close to conclusive” (Cowper- Coles at 58), the authors claim that “the Taliban leadership do not seem to have had foreknowledge of the September 11 attacks”. That view is controversial, although no evidence of Taliban foreknowledge has ever been provided; Moir, above n 11, at 64; Paust, above n 5, at 543; Arai-Takahashi, above n 39, at 1096.
80 Moir, above n 11, at 49; Ruys and Verhoeven, above n 12, at 303-304; Anne-Marie Slaughter and William Burke-White “An International Constitutional Moment” (2002) 43 Harv J Intl L 1 at 20. Slaughter and Burke-White describe the effective control “test” as “insufficient”, as far as “global criminals and the states that harbour them” are concerned.
81 Moir, ibid, at 50; Ruys and Verhoeven, above n 12, at 301; Nabati, above n 22, at 78; Kammerhofer, above n 11, at 111; Shah, above n 30, at 109-110; Müllerson, above n 30, at 184; Wouters and Naert, above n 11, at 433; Dinstein, above n 17, at 48; Gazzini, above n 11, at 142-143.
82 Prosecutor v Tadic (Judgment) ICTY Appeals Chamber IT -94-1-AR72, 15 July 1999 at [120]: “One should distinguish the situation of individuals acting on behalf of a State without specific instructions, from that of individuals making up an organised and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels. Plainly, an organised group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group. Consequently, for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State.”
83 Ibid, at [122]; the European Court of Human Rights has adopted a similar stance in regard to Turkey’s responsibility for actions carried out by Northern Cyprus. See for example Case of Cyprus v Turkey [2001] ECHR 331; (2002) 35 EHRR 30 at [76]- [78]. It should, however, also be noted that the ECHR explained the adoption of the overall control test by emphasising that it was obliged to avoid any vacuum in the protection of human rights. Not assuming Turkey’s responsibility for the unrecognised state of Northern Cyprus’ actions, would, according to the ECHR, result in just such a vacuum.
84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, above n 71, at [406]. As far as establishing state responsibility was concerned, the ICJ stated: “In this regard the ‘overall control’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.”
85 Ratner, above n 37, at 908; Wouters and Naert, above n 11, at 457; Moir, above n 11, at 50 and 64 (he states that asserting the Taliban’s “overall control” over Al Qaeda “seems to go too far”); Dinstein, above n 17, at 50; he acknowledges the Taliban regime “was not directly involved” in the attacks of 9/11, but goes on to claim the regime was “tainted” by “its subsequent behaviour”; Stahn, above n 27, at 47, disagrees. He boldly states that the “application of the ‘overall control’ test would ... suffice” to justify the US attack on the Taliban. Given the extremely controversial nature of this statement, he then surprisingly offers no evidence in support of it.
86 Moir, above n 11, at 63; Paust, above n 5, at 542; Ratner, ibid, at 907; Quigley, above n 6, at 545; Reisman, above n 29, at 49 (referring to the 1998 Embassy bombings and the US response); Müllerson, above n 30, at 177; Wouters and Naert, ibid; Dorronsoro, above n 27, at 464; J Steele, above n 6, at 226.
87 Defence Intelligence Agency Secret Cable “HR (Excised)/Veteran Afghanistan Traveler’s Analysis of Al Qaeda and Taliban, Exploitable Weaknesses” (2 October 2001) The National Security Archive: The Taliban File <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB97/ index.htm> documents 28 and 29; Jason Burke Al-Qaeda, The True Story of Radical Islam (Penguin Books Ltd, London, 2007) at 183-184.
88 Kenneth Katzman “Terrorism: Near Eastern Groups and State Sponsors, 2001” (Congressional Research Service, Report for Congress, 10 September 2001) at 10.
89 Van Linschoten, Kuehn, above n 79, at 2, 4 and 8; Steele, above n 6, at 38-39.
90 Cowper-Coles, above n 79, at 58; Peter Tomsen The Wars of Afghanistan, Messianic Terrorism, Tribal Conflicts, and the Failures of Great Powers (Public Affairs, Philadelphia, 2011) at XVI. The US Special Envoy to the mujahedeen (1989-1992) seems to share this view. He claims the “epi-center of world terrorism is in Pakistan, not Afghanistan.” Condoleezza Rice No Higher Honour, A Memoir of My Years in Washington (Simon & Schuster, London, 2011) at 62-63. The former US Secretary of State claims that Russian President Putin warned the Americans about the dangers emanating from Pakistan during a summit in June 2001. She states “After touching on some other issues, Putin suddenly raised the problem of Pakistan. He excoriated the Pervez Musharraf regime for its support of extremists and for the connections of the Pakistani army and intelligence services to the Taliban and al Qaeda. Those extremists were all being funded by Saudi Arabia, he said, and it was only a matter of time until it resulted in a major catastrophe ... I ... chalked it up to Russian bitterness toward Pakistan for supporting the Afghan mujahideen ... Putin, though, was right...Pakistan’s relationship with the extremists would become one of our gravest problems. Putin never let us forget it ...”
91 Case Concerning United States Diplomatic and Consular Staff in Tehran (USA v Iran) (Judgment) [1980] ICJ Rep 3.
92 Ruys and Verhoeven, above n 12, at 301; Travalio, above n 30, at 153; Wouters and Naert, above n 11, at 457-458.
93 Ibid, at [74].
94 Ruys and Verhoeven, above n 12, at 301.
95 Responsibility of States for Internationally Wrong ful Acts, above n 77, art 11.
96 Franck, above n 28, at 840-841; Dinstein, above n 17, at 51 and above n 29, at 236-237; Stromseth, above n 17, at 568-569; Moir, above n 11, at 66-68; Murphy, above n 14, at 50-51; Müllerson, above n 30, at 183-185; Gazzini, above n 11, at 189-191; Greenwood, above n 11, at 312-313. It remains somewhat obscure whether Greenwood argues that the Taliban were responsible for Al Qaeda’s actions, based on these violations of international law, or whether he only assumes that these violations justify attacks against them; Stahn, above n 27, at 47; he claims there is a “trend” to accept harbouring as sufficient for establishing state responsibility; Byers, above n 5, at 408-410. Byers offers an interesting take on US strategy. He argues US attempts to claim Taliban responsibility for the attacks were motivated by an attempt to create a broad coalition of states in support of the USA. Realising that attacks on terrorists in other sovereign states might not be supported by other states, claiming direct Taliban responsibility made the legal arguments in support of an attack on Afghanistan much more acceptable; Guruli, above n 31, at 109 and 117. He makes the bold statement that “undeniably, the attacks of September 11th can be imputed to Afghanistan”. Unfortunately, she does not elaborate this far-reaching statement in any way.
97 Moir, above n 11, at 60-61; Arai-Takahashi, above n 39, at 1082.
98 Angelo Rasanayagam, Afghanistan, A Modern History (2nd ed, I B Tauris, London, 2005) at 252-253.
99 Ibid, at 234 and 237; Rashid, above n 5, at 15-17. He claims that “between 1996 and 2001 ... an estimated thirty thousand militants from around the world” had been trained by al Qaeda in Afghanistan. Bush, above n 68, at 187 (the former US President claims an “estimated ten thousand terrorists” were trained there).
100 SC Res 1214, S/Res/1214 (1998) at op [13].
101 SC Res 1267, S/Res/1267 (1999) at op [1] and [2].
102 SC Res 1333, S/Res/1333 (2000).
103 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations GA Res 2625, A/Res/2625 (1970), see Principles. This Resolution is generally viewed as reflective of customary international law (a view confirmed by the ICJ in the Armed Activities Case, above n 60, at [162]). The basic principle was established by the ICJ in the Corfu Channel Case (United Kingdom v People’s Republic of Albania) (Judgment) [1949] ICJ Rep 4 at 22. When spelling out Albania’s obligations under international law, the court referred to “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states”; see also: the preambles of UN Security Council Resolutions 1189 (1998), 1267 (1999) in respect of Afghanistan and Resolution 748 (1992) in respect of Libya; Reisman, above n 39, at 41; Stromseth, above n 17, at 570; Kammerhofer, above n 11, at 102; Travalio, above n 30, at 148-150; Wouter and Naert, above n 11, at 417-418 and 423; Dinstein, above n 17, at 49; and above n 28, at 244; Gazzini, above n 11, at 186.
104 Resolution of the League of Nations Council (1934) 15 League of Nations OJ 1758 at 1758-1759.
105 Quigley, above n 6, at 546; Moir, above n 11, at 66; Ratner, above n 37, at 908; Ruys and Verhoeven, above n 12, at 13-14; Wouters and Naert, above n 11, at 433-434, 458; Charney, above n 14, at 836. He, however, limits himself to stating that the USA had, prior to attacking Afghanistan, not provided any proof of a sufficient link between the Taliban and Al Qaeda; Murphy, above n 14, at 46; although he himself argues that Al Qaeda’s actions can be attributed to Afghanistan via art 11 of the Draft Articles, he acknowledges that the connections between Al Qaeda and the Taliban “remain somewhat obscure”.
106 In fact, Reisman, writing in 1999 in the aftermath of the 1998 African embassy bombings and the US response, states that “apparently, the United States has assumed that bin Laden is an independent terrorist, finding refuge in a third country, rather than an independent contractor who has been retained by a particular state.” He himself describes bin Laden as “ostensibly an autonomous private operator” Reisman, above n 29, at 49 and 55); Travalio, above n 30, at 149 and 154-155; Wouters and Naert, above n 11, at 433-434.
107 Moir, above n 11; Ruys and Verhoeven, above n 12, at 313-314.
108 Moir, above n 11.
109 Moir, above n 11; Ruys and Verhoeven, above n 12, at 313-314; Ratner, above n 37, at 906; Quigley, above n 6, at 547; he goes even further, and accuses the USA of never having “made a credible demand on Afghanistan for the surrender of Al-Qaeda figures”, and proceeds to claim that the “Taliban government of Afghanistan was ... adhering to accepted standards of international conduct” when demanding additional information before extraditing Al Qaida leaders; Steele, above n 6, at 216-218.
110 For example, the Afghan (Taliban) Ambassador to Pakistan did so, according to CNN. See “Taliban diplomat condemns attacks” CNN News (online ed, United States, 9 December 2001). See also Moir, above n 11, at 59; Ruys and Verhoeven, above n 12, at 313-314; Steele, above n 6, at 216.
111 Paust, above n 5, at 539-540 and 542-543; Quigley, above n 6, at 545; Kammerhofer, above n 11, at 103-104; Nabati, above n 22, at 781; Travalio, above n 30, at 154-155, 176 and 191; Cassese, above n 39, at 597; by implication: Slaughter and Burke-White, above n 80, at 19-20. Obviously perceiving the weakness of the argument that the Taliban’s actions meant that Afghanistan as a state was responsible for Al Qaeda’s deeds, they suggest a new test: state responsibility should hinge on the question of whether “a government and the terrorists on its soil are distinguishable”. Where a distinction can be made, the effective control “test” should still apply, while otherwise state responsibility can be assumed. A similar approach has been suggested by Reisman (Reisman, above n 29, at 41-42). Needless to say, such a new proposal cannot retrospectively legalize Operation Enduring Freedom, as there is so far no customary international law, let alone treaty law to that effect. The authors also do not proceed to actually apply their new rules to the conflict in Afghanistan.
112 Nicholas Kerton-Johnson “Justifying the use of force in a post 9/11 world: striving for hierarchy in international society” (2008) 84 Intl Aff 991 at 996.
113 Case Concerning Military and Paramilitary Activities in and against Nicaragua, above n 51, at [115].
114 Travalio, above n 30, at 158.
115 Armed Activities on the Territory of the Congo, above n 60 at [135].
116 Ibid, at [146].
117 Ibid, at [135].
118 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, above n 71, at [406].
119 Quigley, above n 6, at 543-544; Glennon, above n 2, at 541-545. Glennon, however, instrumentalises this conclusion to support his argument that art 51 does not reflect the state of the law, as state practice has allegedly never conformed to it; Nabati, above n 22, at 780-781. He, in some ways similar to Glennon, then, uses this argument to underline his main thesis, which is that art 51 had “lost its ‘normative power’”, and that it was therefore necessary to update the legal rules on the use of force, so as to offer states a way of effectively dealing with terrorism.
120 Quigley, above n 6, at 556-557; Cassese, above n 18, at 998; An-Na’im, above n 14, at 168; Myjer and White, above n 14, at 8 and 11-12; Steele, above n 6, at 226; Wouters and Naert, above n 11, at 434-437, 461; Gray, above n 18, at 203; Glennon, above n 2, at 546-549. Glennon, however, instrumentalizes this conclusion to support his argument that art 51 does not reflect the state of the law, as state practice has allegedly never conformed to it; Michael J Kelly “Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law” (2003-2004) 13 J Transnatl L & Poly 1 at 2, 12, 19-22 and 36. Kelly goes one step further. While acknowledging that reprisals were outlawed by the UN Charter, he argues that the USA was careful to adopt a legal position in response to 9/11 that - in his view - was in accordance with art 51. He goes on to claim that the US government had, nevertheless, gone to great lengths to justify the war on Afghanistan in terms that were also concordant with the classical definition of a “reprisal”. Kelly implies that the USA is in fact attempting to re-introduce reprisals as a possible legal justification for the use of force; a point also made by Gazzini, above n 11, at 183-184, and 203-204. To some extent such a development might be seen to have been foreshadowed by President Reagan’s “promise” to terrorists, as early as 1981, of “swift and effective retribution” (Richard Halloran “Swift U.S. Retribution for Terrorists Called Doubtful” The New York Times (United States, 3 February 1981) at B 13); Roberts, above n 29, at 282-286; he argues in favour of the legality of reprisals, because their “prohibition may run the risk of leaving much state conduct unregulated”; W Michael Reisman “The Raid on Baghdad: Some Reflections on its Lawfulness and Implications” (1994) 5 EJIL 120 at 125-129; referring to the US raid on Baghdad in 1993, Reisman claims the US justification “fits at least as comfortably, if not more so, under the classic rubric of reprisal” than under the rubric of self-defence. He goes on to claim that “the notion of reprisal is generally reviving”. Gazzini, above n 11, at 183-184 and 203-204.
121 Tony Blair A Journey (Hutchinson, London, 2010) at 356 (emphases by author); Cowper-Coles, above n 79, at 59. The former British Ambassador comes to a more unequivocal conclusion. Referring to ongoing discussions among the Taliban on whether to expel bin Laden after the attacks of 9/11, he states: “But turning that tide into a majority would have taken more time than Western governments thirsting for violent revenge were prepared to give. After the humiliation of 9/11, America needed to kick some butt.” Former US President Bush seems to contradict Blair’s and Cowper-Coles’ assessments somewhat, by stating: “Removing al Qaeda’s safe haven in Afghanistan was essential to protecting the American people. We had planned the mission carefully. We were acting out of necessity and self- defense, not revenge” (Bush, above n 68, at 184). However, further doubts are raised, when Steele’s account of US preparations for a military conflict with Afghanistan are considered. According to him, the “Bush administration had warned the Taliban” in mid-July 2001 “that it might take military action to topple the regime unless they handed bin Laden over ... The administration was ready with its new strategy, by coincidence, on the day before the attacks in New York and Washington.” (in Steele, above n 6, at 219-221).
122 Gray, above n 18, at 200.
123 Myjer and White, above n 14, at 8; Gazzini, above n 11, at 198-199; Cassese, above n 18, at 999-1000; Wouters and Naert, above n 11, at 461; Reisman, above n 11, at 68-69; he does not express a clear view on the legality of “regime change” in the case of Afghanistan, but makes the point that the goal of regime change certainly made the legality of the use of force much more controversial than would perhaps otherwise have been the case; Murphy, above n 40, at 86. Murphy describes the doubts raised, as far as the legality of this war aim is concerned. Falk, above n 36, at 426; he refers to the Israeli attack on Beirut airport in response to a terrorist attack on an Israeli plane in Athens carried out by terrorists “harboured” by Lebanon as a “disproportionate response”, because the self-defence action was undertaken “by the regular military force of the government against a foreign state”, despite the original attack having been carried out not by that foreign state, but by a “liberation movement”.
124 Armed Activities on the Territory of the Congo, above n 60, at [147].
125 Glennon, above n 2, at 545-546. Glennon, however, instrumentalises this conclusion to support his argument that art 51 does not reflect the state of the law, as state practice has allegedly never conformed to it.
126 Glennon, above n 2, at 539-558. Perhaps surprising to some, Glennon comes to the conclusion that the attack on Afghanistan was “unlawful” under art 51. He, however, argues that art 51 does not reflect the law, as state practice has allegedly never conformed to it.
127 Cassese, above n 39, at 591.
128 George Shultz “Low-Intensity Warfare, The Challenge of Ambiguity” (address before the Low-Intensity Warfare Conference, National Defense University, Washington DC, 1986). Shultz’s remarks, as quoted here, are sometimes referred to as “the Shultz Doctrine”; Quigley, above n 6, at 558.
129 Moir, above n 11, at 11; Myjer and White, above n 14, at 16-17; Wouters and Naert, above n 11, at 427.
130 Case Concerning Military and Paramilitary Activities in and against Nicaragua, above n 51, at [172]-[181].
131 Ibid; Moir, above n 11, at 11; Meesen, above n 6, at 346; Myjer and White, above n 14, at 16-17; Wouters and Naert, above n 11, at 427.
132 Cassese, above n 18, at 1000; Müllerson, above n 30, at 169.
133 Ben Saul Defining Terrorism in International Law (Oxford University Press, Oxford, 2006) at 5; Hassanien, above n 34, at 246-247; Rostow, above n 17, at 475, 480 and 488-489; Jackson Nyamuya Maogoto “America’s War on Terror: Rattling International Law with Raw Power?” (2004-2005) 32 Newcastle L Rev 32 at 35; Quénivet, above n 18, at 562-564; Roberts, above n 29, at 248-251; Guruli, above n 31, at 114-115; Shah, above n 30, at 105; Gazzini, above n 11, at 181.
134 Anatol Lieven “The Secret Policemen’s Ball: the United States, Russia and the international order after 11 September” (2002) 18 Intl Aff 245 at 247; Moir, above n 11, at 42; Quénvivet, above n 18, at 564.
135 A statement sometimes attributed to former US President Reagan; Slaughter and Burke-White, above n 80, at 12; Hassanien, above n 34, at 247; Roberts, above n 29, at 249.
136 Saul, above n 133, at 121-122. Saul also lists a few examples where public perception has rapidly evolved, especially in western states (Nelson Mandela, Yasser Arafat, Gerry Adams); Slaughter and Burke-White, above n 80, at 9 and 11-12; Hassanien, above n 34, at 246-247.
137 Saul, above n 133, at 2, 50 and 188; Wedgwood, above n 28, at 561 (referring to Öcalan, the PKK leader).
138 Quénvivet, above n 18, at 564; she provides further examples where states disagree on the classification of specific groups as “terrorists”.
139 Stahn, above n 27, at 36; Moir, above n 11, at 28-29 (he argues that many of the following examples of state practice would better be described as “armed reprisals”); Khanya Motshabi “International Law and the United States Raid on Libya” (1987) 104 Sth Af LJ 669 at 68; Tom J Farer and Christopher C Joyner “The United States and the Use of Force: Looking Back to See Ahead” (1991) 1 Transnat’l L & Contemp Probs 15 at 33 (all three referring to Libya).
140 Moir, above n 11, at 27-28; Kelly, above n 120, at 16-18; Murphy, above n 14, at 46-47; Donald R Rothwell, “Anticipatory Self-Defence in the Age of International Terrorism” [2005] UQLawJl 23; (2005) 24 University of Queensland Law Journal 337 at 343.
141 Moir, above n 11, at 26; Travalio, above n 30, at 164.
142 Moir, above n 11, at 27; Reisman, above n 29, at 31-32; Johnstone, above n 36, at 372-373; Motshabi, above n 138, at 672.
143 Reisman, above n 29, at 35; Baker, above n 30, at 99.
144 Moir, above n 11, at 27; Murphy, above n 14, at 47; Reisman, above n 29, at 31-32; Kelly, above n 120, at 16-18; Baker, above n 30, at 104-105; Roberts, above n 29, at 254-255.
145 Baker, ibid, at 99-103; Reisman, above n 120, at 120-121.
146 Wouters and Naert, above n 11, at 427; Reisman, above n 120, at 121 (referring to the attack on Iraq in 1993); Motshabi, above n 139, at 675 (referring to Libya); Gray, above n 18, at 196.
147 Farer, Joyner, “The United States”, 33; Motshabi, above n 139, at 677-678 (all three referring to Libya); Baker, above n 30, at 112; Wouters and Naert, above n 11, at 430 (all three referring to Iraq in 1993).
148 Travalio, above n 30, at 164; Moir, above n 11, at 26 (although he wrongly asserts that the Security Council had condemned the Israeli action, while the General Assembly had not).
149 Moir, above n 11, at 28; Byers, above n 5, at 407; Quigley, above n 6, at 558; Reisman, above n 29, at 33-34; Kelly, above n 120, at 16-18; Baker, above n 30, at 105-106; Wouters and Naert, above n 11, at 442; Motshabi, above n 139, at 677; Gazzini, above n 11, at 192, fn 52; Gray, above n 18, at 196.
150 Murphy, above n 14, at 47; Reisman, above n 29, at 34; Wouter and Naert, above n 11, at 419-420; Gray, above n 18, at 196.
151 GA Res 41/38, A/Res/41/38 (1986), passed by 79:28:33 votes.
152 Stahn, above n 27, at 36; Baker, above n 30, at 99 and 103; Reisman, above n 120, at 122; Gray, above n 18, at 196.
153 Stahn, above n 27, at 36; Wouters and Naert, above n 11, at 443; Gray, above n 18, at 196-197.
154 Baker, above n 30, at 100, fn. 8; Wouters and Naert, above n 11 at 443; Reisman, above n 120, at 122.
155 Byers, above n 5, at 407; Wouters and Naert, above n 11, at 442-443; Gray, above n 18, at 196; Baker, above n 30, at 103; although he argues that the international community reacted positively to the 1993 strikes on Iraq, he does acknowledge that “Russia, Germany, Italy, Japan and South Korea” had “voiced unanimous if somewhat subdued support”, while France had even “expressed certain reservations”.
156 Bush, above n 68, at 190 (he compares his response to President Reagan’s response to the attacks on American troops in Lebanon, and Clinton’s reaction to the events in Somalia in 1993 and the embassy bombings in 1998).
157 Falk, above n 36, at 416; Gray, above n 18, at 195.
158 Ruys and Verhoeven, above n 12, at 292.
159 Wouters and Naert, above n 11, at 427; Falk, above n 36, at 429 (referring to 1968).
160 Falk, above n 36, at 416-417; Gray, above n 18, at 195.
161 Telegram From the Department of State to the Embassy in Israel (29 December 1968) (1964-1968) 20 FRUS Document 369.
162 Ibid.
163 SC Res 262, S/Res/262 (1968); Wouters and Naert, above n 11, at 419; Gray, above n 18, at 195.
164 Paul L Montgomery “Begin tells leading U.S. Jews of Invasion’s Goals” The New York Times (United States, 18 June 1982) at 6.
165 Moir, above n 11, at 26-27; Murphy, above n 14, at 46; Reisman, above n 29, at 52-53; Gazzini, above n 11, at 192, fn. 52; Dinstein, above n 28, at 247-248. He, however, without even mentioning international reaction to Israel’s 1982 attack on Lebanon, does seem to view that action as a precedent for Operation Enduring Freedom (“extraterritorial law enforcement”).
166 SC Res 501, S/Res/501 (1982).
167 Ibid.
168 SC Res 508, S/Res/508 (1982); SC Res 509, S/Res/509 (1982); SC Res 516, S/Res/516 (1982); SC Res 520, S/Res/520 (1982).
169 GA Res 7/5, A/Res/7/5 (1982). Adopted by 127:2:0 votes.
170 Saul, above n 133, at 2 and 50.
171 Nadire Mater “Turkey: Military Crosses Into Iraq to Step Up Kurdish Crackdown” IPS-Inter Press Service (Italy, 17 October 1992); “Turkey/Iraq” Voice of America News (United States, 5 October 1997); Gray, above n 18, at 139-143.
172 Gray, above n 18, at 141.
173 Kelly Couturier “Rival Factions Complicate Turkey’s Pursuit of Kurds; Ankara Juggles Broker, Partisan Roles” The Washington Post (United States, 25 October 1997) at A13. Couturier quotes a State Department spokesman. See also Moir, above n 11, at 29.
174 The Arab League, the Gulf Cooperation Council, and the Non-Aligned Movement condemned Turkey’s actions; Gray, above n 18, at 142; Moir, above n 11, at 29; Ruys and Verhoeven, above n 12, at 296; “Turkey/Iraq”, above n 171.
175 Ruys and Verhoeven, above n 12 at 296.
176 Moir, above n 11, at 30-31; Paust, above n 5, at 539-544; Travalio, above n 30, at 158-159, 171-172, 176-177, 191.
177 Kerton-Johnson, above n 112, at 996.
178 This is also implicitly confirmed by Rasanayagam, above n 98, at 252. He claims the USA “downplayed” the objective of taking out the Taliban military installations when launching Operation Enduring Freedom because of “concerns expressed by its partners.” See also Wouters and Naert, above n 11, at 424.
179 Perl, above n 1, at 3.
180 See for example: Security Council Resolutions 101 (1953), 106 (1955), and 111 (1956).
181 Ruys and Verhoeven, above n 12, at 292; Gray, above n 18, at 195-196.
182 Moir, above n 11, at 27; Ruys and Verhoeven, above n 12, at 293; Murphy, above n 14, at 46-47; Byers, above n 5, at 407; Reisman, above n 29, at 38; Kelly, above n 119, at 15; Wouters and Naert, above n 11, at 419; Gazzini, above n 11, at 192, fn. 53; Gray, ibid, at 196.
183 SC Res 573, S/Res/573 (1985).
184 Ruys and Verhoeven, above n 12, at 292-293; Gray, above n 18, at 136-137.
185 SC Res 411, S/Res/411 at (1976). The UN Security Council “strongly condemned” Southern Rhodesia’s “recent acts of aggression against the People’s Republic of Mozambique”.
186 SC Res 475, S/Res/475 (1980). Many other Resolutions on the incursions of South African troops into Angola were passed, such as Resolution 387 (1976); Resolution 428 (1978); and Resolutions 447 and 454 (both 1979). The UK Representative to the International Conference for Immediate Independence of Namibia declared on 8 July 1986: “South Africa has also, in defiance of international law, continued its armed incursion into Namibia’s neighbours, particularly Angola, thus imperilling their sovereignty and creating a grave danger to peace and security in the region”. A sentiment repeated in a statement issued by the Foreign Office on 13 August 1986, in response to further South African incursions into Angola, both quoted in (1986) 57 BYIL 1986 621-622; Ruys and Verhoeven, above n 12, at 293.
187 Sean D Murphy “Contemporary Practice of the United States Relating to International Law” (1999) 93 AJIL, 161-194, at 161-163; Reisman, above n 29, at 47-49; Lobel, above n 36, at 537; Travalio, above n 30, at 145; David Loyn Butcher & Bolt, Two Hundred Years of Foreign Entanglement in Afghanistan (Windmill Books, London, 2009) at 264-265.
188 Murphy, ibid at 162-163; Reisman, above n 29, at 47-49; Gray, above n 18, at 197.
189 Murphy, above n 187, at 164-165 and Murphy, above n 14, at 49-50; Wouters and Naert, above n 11, at 442-444; Gray, ibid.
190 Murphy, above n 187, at 165; Ruys and Verhoeven, above n 12, at 295; Gray, ibid.
191 Murphy, above n 14, at 49-50; Stahn, above n 27, at 48; Johnstone, above n 36, at 372; Travalio, above n 30, at 168, 171-173, 178-179; Gazzini, above n 11, at 192-193.
192 Gray, above n 18, at 197; Wouters and Naert, above n 11, at 443 (quoting Gray); Ruys and Verhoeven, above n 12, at 295; Murphy, above n 187, at 165; he makes a similar point, when stating that “other states” had “expressed support...or at least understanding for the attacks”; Michael Byers War Law, International Law and Armed Conflict (Atlantic Books, London, 2005) at 63. He makes the point that, as far as Germany, France, and the UK were concerned, US President Clinton made sure their support was forthcoming by telephoning the respective leaders in advance of the attacks and ensuring their support, without them being able to consult their legal advisors. Such a chain of events would, of course, undermine the attempt to attribute legal significance to those states’ statements, as far as the 1998 attacks are concerned.
193 Quigley, above n 6, at 560-561; Lobel, above n 36, at 544-547; Wouters and Naert, above n 11, at 443-444.
194 Murphy, above n 187, at 165; Ruys and Verhoeven, above n 12; Reisman, above n 29, at 49.
195 Moir, above n 11, at 30.
196 Byers, above n 191, at 63.
197 Murphy, above n 187, at 164; Moir, above n 11, at 30; Ruys and Verhoeven, above n 12, at 295; Byers, above n 191, at 63; Reisman, above n 29, at 49; Wouters and Naert, above n 11, at 443-444; Gray, above n 18, at 197; Lobel, above n 36, at 538. Lobel adds China, and UN Secretary General Kofi Annan to the critics/opponents of the 1998 airstrikes.
198 Byers, above n 5, at 407; Lobel, above n 36, at 538; Gray, above n 18, at 197.
199 Durban Final Document (NAM XII Summit, Durban, 2-3 September 1998) at [159] (emphasis by author).
200 Perl, above n 1, at 4.
201 Raphael F Perl “Terrorism, the Future, and U.S. Foreign Policy” (Congressional Research Service, Report for Congress, 13 September 2001) at 8.
202 Lobel, above n 36, at 538; Gray, above n 18, at 197-198.
203 Lobel, above n 36, at 556.
204 Cassese, above n 18, at 996; Lobel, above n 36, at 557. Lobel argues that the US, in 1998/1999, would actually have opposed the creation of any such rule in customary international law out of fear of other states exploiting it.
205 Wouters and Naert, above n 11, at 444-445; Gray, above n 18, at 198. She describes the legality of the use of force “against terrorist attacks” prior to 9/11 as “controversial”; Byers, above n 5, at 408; and “Terror and the Future”, 122-123. Writing in 2002, after Operation Enduring Freedom had been launched, he states that “even today, most states would not support a rule that opened them up to attack whenever terrorists were thought to operate within their territory.”
206 “Statement by UK Representative to the UN to the Security Council on 17 January 1986” (1986) 57 BYIL 620.
207 Slaughter and Burke-White, above n 80. Although the authors do discuss the conflict in Afghanistan, they do so in the context of creating improved international legal instruments to deal with terrorists, and states harbouring them in the future. They do not discuss the issue of the legality of Operation Enduring Freedom in any detail.
208 Cassese, above n 18, at 997.
209 Meesen, above n 6, at 349; he argues that the “actual interventions in Afghanistan and Iraq” do not “suffice to establish a new rule of customary law”.
210 Very often the concept of “instant” international customary law is traced back to Bin Cheng “United Nations Resolutions on Outer Space: ‘Instant International Customary Law?” (1965) 5 Indian JIL 23 at 45. Cheng developed the concept in the context of outer space. Only the Soviet Union and the USA were technologically able to exploit outer space. Once their views on the applicable law had been reconciled, usus was of little relevance. Some also point to the Judgements of the ICJ in the North Sea Continental Shelf Cases as evidencing that the ICJ had at least not ruled out the concept of “instant custom” (Cases Concerning the North Sea Continental Shelf (Federal Republic of Germany v Netherlands and Denmark) (Judgment) [1969] ICJ Rep 3). When analysing whether a treaty norm could become binding for non- signatories as a rule of customary international law, the ICJ stated that such a development was in exceptional cases possible “even without the passage of any considerable time” (at [73], see also for the quote). For further discussion, see for example, Farhard Talaie “The Importance of Custom and the Process of its Formation in International Law” (1998) 5 James Cook UL Rev 27 at 38 and fn 47; Hiram E Chodosh “Neither Treaty Nor Custom: The Emergence of Declarative International Law” (1991) 26 Tex Intl LJ 87 at 100-105.
211 Johnstone, above n 36, at 372.
212 Arai-Takahashi, above n 39, at 1093-1095 and 1098-1101; Müllerson, above n 30, at 181-182; Moir, above n 11, at 64-68 (by implication; after explaining his doubts as to Operation Enduring Freedom’s conformity with art 51, as understood prior to 9/11, and his further doubts as to whether the use of force was necessary, as far as the Taliban themselves were concerned, he concludes that near universal acceptance of the USA’s actions had rendered them legal); Stahn, above n 27, at 35, 37 and 40 (his position remains unclear. He poses the question, whether instant customary law was created by the reaction to 9/11, then seems to answer in the negative, because he believes there was no big change in the law. Subsequently, he refers solely to the reactions to the events of 9/11, in order to describe what the current state of the law allegedly is (based on what he refers to as “Article 51 ½ “).
213 Stahn, above n 27, at 35; Ratner, above n 37, at 909-910; Johnstone, above n 36, at 370-371; Arai-Takahashi, above n 39, at 1094 and 1100-1101; Rothwell, above n 140, at 340-342; he, however, expressly mentions two alternatives: the events after 9/11 had either led to an “evolving” interpretation of art 51, or to “new customary international law”; Wouters and Naert, above n 11, at 459-460; they discuss the possibility that 9/11 had “expanded” the right of self-defence; Dinstein, above n 17, at 46. Dinstein argues that the reactions by the UN, NATO, and others had confirmed his long-held, expanded view of art 51, and had thus made the previous “scholarly arguments” on the issue “moot”.
214 Statement by the North Atlantic Counsel, above n 33; OAS Res 24, RC.24/RES.1/01 (2001); Murphy, above n 14, at 48; Stahn, above n 27, at 35; Johnstone, above n 36, at 371; Gray, above n 18, at193;WoutersandNaert,aboven11,at446-450,454-455;Gazzini,aboven11,at77;Ratner,above n 37, at 909; although citing the OAS’s support, Ratner does make an interesting observation regarding the OAS’s statements: in OAS Res 23, RC.23/Res.1/01, (2001), the OAS declared that it was (emphasis added) “noting that those responsible for aiding, supporting, or harboring the perpetrators, organizers, and sponsors of these acts are equally complicit in these acts”. Ratner makes the point that in his view the OAS did thus not accuse the Taliban of direct responsibility for the terrorist attacks.
215 Murphy, above n 14, at 49; Stahn, above n 27, at 35; Myjer and White, above n 14, at 8-9; Johnstone, above n 36; Ratner, above n 37, at 909-910; Gray, above n 18, at 206.
216 Moir, above n 11, at 64-65, and fn. 96; Ruys and Verhoeven, above n 12, at 297; Murphy, above n 14, at 49; Gray, above n 18, at 193; Johnstone, above n 36, at 370-371; Arai-Takahashi, above n 39, at 1094-1095; Wouters and Naert, above n 11, at 450-452, 455, 535; Gazzini, above n 11, at 77 and fn 100; Ratner, above n 37, at 910 (he adds Sudan, North Korea, Cuba, and Malaysia as opposing, or being critical of the attack on Afghanistan).
217 Ruys and Verhoeven, above n 12, at 298; Myjer and White, above n 14, at 8-9.
218 Quénvivet, above n 18, at 576. She argues the Security Council “preferred to abstain from judging the legality of the British and American intervention.” Myjer and White, above n 14, at 9-13; they describe the Security Council’s reaction as one of “deliberate ambiguity”, and accuse it of “doing its best to ignore the crucial issue of the legal basis of the US response.”; Quigley, above n 6, at 553-554; in his view the Security Council reaction was one of “inaction” and “silence” in response to Operation Enduring Freedom; Cassese, above n 18, at 996; Gray, above n 18, at 206-207.
219 Arai-Takahashi, above n 39, at 1093-1095, and 1098-1101; Moir, above n 11, at 64-68 (by implication; after explaining his doubts as to Operation Enduring Freedom’s conformity with art 51, as understood prior to 9/11, and his further doubts as to whether the use of force was necessary, as far as the Taliban themselves are concerned, he concludes that near universal acceptance of the USA’s actions had rendered them legal); Stahn, above n 27, at 35, 37 and 40 (his position remains unclear. He poses the question, whether instant customary law was created by the reaction to 9/11, then seems to answer in the negative, because he believes there was no big change in the law. Subsequently he, however, frequently refers solely to the reactions to the events of 9/11, in order to describe what the current state of the law allegedly is (based on what he refers to as “Article 51 ½ “); Ratner, above n 37, at 910; Ratner refers to the possibility of new rules “emerging” as a result of Operation Enduring Freedom.
220 Ruys and Verhoeven, above n 12, at 312; Gray, above n 18, at 227-228.
221 See for example, SC Res 1440, S/Res/1440 (2002) in response to the taking of hostages in a Moscow theatre; SC Res 1450, S/Res/1450 (2003), bomb attack in Kenya; SC Res 1465, S/ Res/1465 (2003), bomb attack in Colombia; SC Res 1516, S/Res/1516 (2003), bomb attacks in Istanbul; SC Res 1530, S/Res/1530 (2004), bomb attacks in Madrid; SC Res 1611, S/ Res/1611 (2005), bomb attacks in London.
222 Ruys and Verhoeven, above n 12, at 312.
223 Gray, above n 18, at 228.
224 SC Res 1456, S/Res/1456 (2003), preamble.
225 Ibid, at op para 6.
226 GA Res 60/288, A/RES/60/288 (2006), passed without a vote; Gray, above n 18, at 228.
227 Inter-American Convention Against Terrorism (adopted 3 June 2002).
228 Gray, above n 18, at 230-231.
229 Lieven, above n 134, at 252. This is also confirmed by the former US Secretary of State, Condoleezza Rice, in her memoirs, above n 90, at 99.
230 David Gollust “Weapons of Mass Destruction” Voice of America (online ed, United States, 28 August 2002); Nick Paton Walsh “British anti-terror units to train Georgian army: MoD and secret service help to fight rebels linked to al-Qaida” The Guardian (United Kingdom, 21 November 2002) at 17; Ian Traynor “Kidnap suspects abound in notorious Pankisi Gorge” The Guardian (United Kingdom, 8 November 2002) at 3; Gray, above n 18, at 230-231.
231 Nick Paton Walsh “US Rebukes Russia for Pankisi raid” The Guardian (United Kingdom, 26 August 2002) at 12.
232 “US warns Russia over Georgia Strike” BBC News (online ed, United Kingdom, 13 September 2002).
233 Gray, above n 18, at 236.
234 Gray, above n 18, at 236-237.
235 Kofi Annan “Secretary-General Strongly Deplores Israeli Air Strike on Syrian Territory” (press release, 7 October 2003).
236 Gray, above n 18, at 236-237.
237 Gray, above n 18, at 237.
238 Gray, above n 18, at 237-244.
239 Gray, above n 18, at 238. For US and German reactions, see for example, “In quotes: Lebanon reaction” BBC News (online ed, 13 July 2006). For British reaction, see “Britons warned on Lebanon crisis” BBC News (14 July 2006). There were, however, some western states that immediately condemned the Israeli attacks as contrary to international law, such as Spain (“El embajador Israeli lamenta la ‘completa falta de comprension’ de Espana en el conflicto con Libano” Informativos Telecinco.com (Spain, 14 July 2006) (“The Israeli Ambassador expresses his regret at the ‘complete lack of understanding’ on the part of Spain as far as the conflict with Lebanon is concerned”); and Norway, Nina Berglund “Norway condemns Israeli attacks on Lebanon” Aftenposten (Norway, 13 July 2006). Aftenposten has since stopped its English- language service. See also “Middle East Crisis: Diplomacy: Old Divisions Resurface” The Guardian (United Kingdom, 18 July 2006) at 5.
240 Gray, above n 18, at 238; Venezuela withdrew its ambassador in protest, see “Venezuela Recalls Ambassador From Israel” The Washington Post (United States, 3 August 2006). Further examples are, Pakistan (“Pak condemns Israeli aggression against Lebanon, Palestine” International News Network (online ed, International) available at: <http://www. onlinenews.com.pk/details.php?id=99895> ) and Armenia (“Armenia Condemns Israeli attack on Lebanon” (2006) Armenia Liberty <http://www.armenialiberty.org/content/ Article/1583047.html> . As far as Islamic states are concerned, see “Final Communiqué” (Annual Coordination Meeting of Ministers of Foreign Affairs of Member States of the Organisation of the Islamic Conference, Baku, 25 September 2006) at [32].
241 “Final Document” (14th Summit Conference of Heads of State or Government of the Non- Aligned Movement, Havana, 11-16 September 2006) at [142]; Gray, above n 18, at 243.
242 See for example, “Statement of the European Union” and “Russian Government statement” both in “In quotes: Lebanon reaction” BBC News (United Kingdom, 13 July 2006). See also Gray, above n 18, at 238-239, and 241.
243 Despite apparently having sent troops to Somalia as early as summer 2006, the Ethiopian government denied having any soldiers there. Only in December 2006 did the Ethiopian government acknowledge the fact, and then proceeded to claim self-defence, without, however, ever reporting its actions to the Security Council, as it would have been obliged to do under art 51; Gray, above n 18, at 244, 248, and 250.
244 Gray, above n 18, at 244-252.
245 Gray, above n 18, at 246.
246 Gray, above n 18, at 249 and 251.
247 Gray, above n 18, at 249-251.
248 Gray, above n 18, at 143; Tom Ruys “Quo Vadis Jus ad Bellum?: A legal analysis of Turkey’s Military Operations Against the PKK in Northern Iraq” [2008] MelbJlIntLaw 12; (2008) 9 Melb J Intl L 334.
249 Gray, above n 18, at 142-143.
250 Gray, above n 18, at 143.
251 “EU Urges Turkey Not to Attack Kurdish Rebels in Iraq” Deutsche Welle (Germany, 17 October 2007).
252 Ibid.
253 Simon Tisdall “US Struggles to avert Turkish intervention in northern Iraq” The Guardian (United Kingdom, 23 March 2007) at 21; Gray, above n 18, at 143.
254 “President Bush and Prime Minister Tayyip Erdogan Discuss Global War on Terror” (White House press release, 5 November 2007).
255 “Terrorist activities on the Turkey/Iraq border” (Report submitted on behalf of the Political Committee, Assembly of the West European Union, 4 December 2007). The Report in the following year, dated 3 December 2008, went slightly further in that it, for the first time, “confirmed Turkey’s right of self-defence”, but then went on to again call on Turkey “to refrain from disproportionate military action”.
256 “The “Revolutionary Armed Forces of Colombia” are more commonly referred to as “FARC”. This group is considered to be a terrorist organization by many states.
257 “Ecuador pulls diplomat from Bogota” CNN (online ed, United States, 2 March 2008); Ruys, above n 247, at 357-358.
258 Permanent Council of the OAS Resolution 930, CP/Res/930 (1632/08) (2008); Ruys, above n 247.
259 Sebnem Arsu “Turkey vows to keep up attacks on militants in Iraqi Kurdistan” International Herald Tribune (United States, 24 August 2011) at 3; Justin Vela “Turkey launches raid into Iraq after an attack by Kurdish rebels” The Independent (United Kingdom, 20 October 2011) at 34; “Iraqi Politicians Condemn Turkish Bombing of Iraqi Kurds” Radio Free Europe (Europe, 20 August 2011); Karzan Kanabi “Turkey-PKK clashes may reignite civil war, says Kurdish presidency” AK News (Iraq, 18 August 2011); Sebnem Arsu “Turkey vows to pursue Kurdish attackers” International Herald Tribune (United States, 20 October 2011) at 4. As far as the Iraqi/ Iraqi Kurdish attitude is concerned, many reports stress the official protests lodged by both the national and the regional governments in Iraq against the Turkish incursions. On the other hand, the International Herald Tribune reported that the Iraqi government was offering the Turkish government a joint offensive against the PKK in northern Iraq, and many reports point out that the Kurdish regional government was attempting to “sit on the fence”, as far as Turkey’s actions in Iraq are concerned.
260 “Kenianische Armee rückt in Somalia vor“ Frankfurter Allgemeine Zeitung (Germany, 19 October 2011) at 6; Daniel Howden “Kenya plans fresh assault in Somalia after hostage dies“ The Independent (United Kingdom, 20 October 2011) at 39.
261 For example, in Scott Shane and Andrew W Lehren “Behind the Scenes in World’s Hot Spots, U.S. Diplomacy Uncloaked” International Herald Tribune (United States, 29 November 2010) at 1 and 3 the following on a conversation between Yemen President Ali Abdullah Saleh and US Gen David H Petraeus was reported, referring to a cable from the Ambassador at the US Embassy in Yemen to Washington DC dated 4 January 2010 (leaked via Wikileaks): “For instance, it has been previously reported that the Yemeni government has sought to cover up the American role in missile strikes against the local branch of Al Qaeda. But a cable’s fly-on-the-wall account of a January meeting between the Yemeni president, Ali Abdullah Saleh, and Gen David H Petraeus, then the American commander in the Middle East, is breathtaking ...” See also Cable ID 10SANA A4 of 4 January 2010 at [5]: “‘We’ll continue saying the bombs are ours, not yours,’ [President] Saleh [of Yemen] said, prompting Deputy Prime Minister Alimi to joke that he had just ‘lied’ by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG [Republic of Yemen Government]” <http://cablegate.wikileaks.org/cable/2010/01/10SANA A4.html> . See also Robert Booth and Ian Black “Wikileaks cables: Yemen offered US ‘open door’ to attack al-Qaida on its soil” The Guardian (United Kingdom, 3 December 2010).
262 Pakistan has officially condemned the American strikes on Pakistani territory. See “Pakistan Navy Ships’ Good Will Visit to Malaysia” (press release, 27 March 2009). It is however, widely assumed that Pakistan has privately granted the US permission to carry out such strikes. See for example, Greg Bruno “U.S. Drone Activities in Pakistan” (2010) Council on Foreign Relations <http://www.cfr.org/publication/22659/us_drone_activities_in_ pakistan.html#p6> which alleges a possible secret agreement in 2008 between the two states. Furthermore, a UN report has called upon states such as Pakistan to “publicly disclose the scope and limits of any permission granted for drone strikes on their territories”: Charlie Savage “U.N. Report Highly Critical of U.S. Drone Attacks” The New York Times (United States, 3 June 2010) at A10.
263 Gray, above n 18, at 194, 201, 231 and 252-253. She, in 2008, also points out that the US reaction to the Russian intervention in Georgia in 2002 made it “more difficult” to claim the existence of a new customary rule and claims that states’ “willingness” to accept a new “interpretation of Article 51” after 9/11 “later dissipated in the disagreement” over Iraq in 2003. See also Meesen, above n 6, at 349. He argues that the “actual interventions in Afghanistan and Iraq” do not “suffice to establish a new rule of customary law”. Nevertheless, writing in 2003, he thinks it possible that new customary law may be “emerging”, allowing what he describes as “unilateral recourse to military action against society-induced terrorist attacks”. See also Myjer and White, above n 14, at 16-17. By implication; they argue Operation Enduring Freedom “may contribute to a development of international law”, thereby obviously denying such a change had already taken place. See also Byers, above n 5, at 408 and 410. Writing in 2002, after Operation Enduring Freedom had commenced, he stated that “even today, most states would not support a rule that opened them up to attack whenever terrorists were thought to operate within their territory.” He, however, does think it possible the USA may have succeeded in slightly expanding the concept of self-defence.
264 Bush, above n 68, at 217 (emphasis added).
265 Quigley, above n 6, at 562; Bill Bowring, The Degradation of the International Legal Order?, The Rehabilitation of Law and the Possibility of Politics, (Abingden: Routledge-Cavendish, 2008) 57-58; Paust, above n 5, at 539-544 and 556-557; although he views the attacks on Al Qaeda in Afghanistan as legal, he views the US attacks on the Taliban as “highly problematic”, as far as their legality is concerned; An-Na’im, above n 14, at 162-171. He does not offer a categorical legal assessment of the intervention, but voices doubts, and points out that there was a definite “lack of procedural and institutional requirements”, and criticises the “failure of the international community ... to check or to regulate the massive and indefinite unilateral response by the United States.”
266 Quigley, above n 6, at 545; Paust, above n 5, at 539-544; Nabati, above n 22, at 780-781 (referring to terrorism and harbouring terrorists in general).
267 Paust, above n 5, at 539-544, (as far as attacks against states “harbouring terrorists” are concerned).
268 Gray, above n 18, at 231 and 252-253; she concludes that the US reaction to the Russian intervention in Georgia in 2002 in particular made it “more difficult to claim that the events of 9/11 and the response have established a new customary rule”.
269 Quigley, above n 6, at 554; Wouters and Naert, above n 11, at 535; Murphy, above n 40, at, 85-86.
270 Quigley, above n 6, at 548; Wouters and Naert, above n 11, at 535; Murphy, above n 40 at 85-86.
271 Reisman, above n 11, at 65. He argues the UN simply was “confirming and acceding to ... a fait accompli”; Lieven, above n 133, at 248-249. Lieven describes western support after 9/11 as “conditional”; Kerton-Johnson, above n 111, at 991-997, 1003-1007; Charney, above n 14, at 835, 837-838; Quigley, ibid, at 553 and 555-556. He makes the point that the USA and the UK would have vetoed any attempt by the UN to intervene as far as Afghanistan is concerned; Myjer and White, above n 14, at 16; Ratner, above n 37, at 915-916; Dorronsoro, above n 27, at 452-453.
272 Lieven, above n 133, at 251-252. He, for example, points out that the Taliban treatment of the Chechen rebels and their recognition of an independent Chechnya made it much easier for Russia to acquiesce in the US-led attack on Afghanistan. See Steele, above n 6, at 219.
273 Glennon, above n 2, at 539-558.
274 Martin Woollacott After Suez, Adrift in the American Century (I B Tauris & Co Ltd, London, 2006) at 136.