- USE OF FORCE AND WAR ON TERRORISM
- INTRODUCTION
- Terrorism became very prominent and a major issue after the 9/11 attacks[1]. President Bush and the US Attorney General categorically stated that the attacks were a violation of various rights and entitled the United States to defend itself by virtue of article fifty-one. The article Cleary demonstrates how a state may defend itself through armed violence[2]. This interpretation has been very problematic among scholars of international law with some arguing that the attacks are against the rights of every citizen and every country that repels such attacks can use article 51 to justify its actions[3]. On this paper, I will observe on the law concerning applying excessive force and self-defense. It will also analyze the arguments for or against the view that terrorism is a violation the second article in section four of the UN Charter.
- LAW ON USE OF FORCE
- Treaty law and customary international law govern the law that dictates anyone to apply force[4]. There are terms that scholars use to describe the rules of law. For example, there are sections of international law that have become acceptable through custom and usage or through wide usage. Treaty law, on the other hand, is a term used to describe the accord of two or more states prescribing the rules upon which the state that are party to the document should conduct them. Like the issues on the recognized law, treaty law is binding and legally enforceable whenever one party to the agreement is in breach[5]. Depending on the disciplinary measures outlined in the treaty, the party aggrieved can decide to sue the party at fault, seek the services of an arbitrator, or resort to armed violence.
- The main treaty law governing resort to armed violence or applying force is the 1945 Charter. Section one of the first page outlines some of the purposes of the Charter. According to part one of the first article, the Charter outlines how to make the world secured where various measures ought to take place in order to accomplish the exercise. The article also states that the purpose of the charter is to outline some of the measures of the suppression of aggression and the development of institutions for the peaceful settlement of international disputes. Under the second article, state parties to the Charter cannot apply force to an independent country or territory of another country. In addition, the state parties cannot use power that is not in accordance with the laws outlined in the Charter.
- SELF-DEFENSE
- The Charter outlines the only condition under which an individual can apply force in a certain situation. This information is well indicated and explained in article numbered 51. The article categorically states that according to the Charter, nothing ought to alter the inherent right of citizens or individual self-defense when a UN member state may face an attack. However, the Security Council may change the decision with the target of restoring peace. This article clearly recognizes the right of state parties to the Charter to defend their territories whenever there is an attack or in the prevention of an imminent attack. In straight forward cases this right can be exercised whenever a UN member state is invaded or attacked by a missile. However, in cases of terrorism and armed conflicts, the situation becomes complicated[6].
- TERRORISM IS IN VIOLATION OF ARTICLE 2(4)
- Nexus between Terrorist Group and the State
- In order to argue correctly that the right to self-defense is guaranteed in situations there is a terrorist attack; the attack must be in violation of article 2(4). As earlier mentioned, article 2(4) clearly prohibits state party to the Charter from engaging in acts of applying excessive force especially on the democratic issues of an independent country [7]. For example, when a terrorist group such as al Qaeda threatens to use force or actually uses force against an independent state, there is no violation because terrorist groups are not states. However, a close examination of the situation reveals that most of these terrorist groups are actually being used as proxies for rogue regimes that want to take advantage of loopholes in international law to attack other countries.
- In a situation where a country can prove that the terrorists are being funded, trained, and given protection by a state, then any terrorist attacks that might arise from such a terrorist group will be deemed to be an act of the supporting state and, therefore, there is an evidence of violation. The terrorist group will treated like an agent for the supporting state in the Nicaragua Case[8]. The court held that where a state actually equips, funds, trains, and engages in other logistical operations for a non-state actor, rebel group, or terrorist organization, such terrorists, rebels, or non-state actors will be deemed acting for the state and any attacks attributable to the terrorists will be attributable to the state[9].
- Activities among the state and the terrorist must be clear in order to categorize the activities as a violation of the article. On 9/11, it was clear that the Taliban government was aiding al Qaeda both financial and through the provision of territory for training and logistical support. In such a situation, the attacks on 9/11 were correctly attributable to Afghanistan and were, therefore, a violation of article 2(4) of the UN Charter[10]. The US, on its part, had a right defend itself guaranteed under article 51 of the UN Charter[11]. Their act of launching attacks against Afghanistan was, therefore, justified acts of self-defense. Under this argument, therefore, all acts of terrorism, which are clearly attributable to an independent state, are in violation of article 2(4).
- Control of Territory
- Where a terrorist group is in control of a territory, any acts of terrorism emanating from the terrorist group can be viewed as a violation of article 2(4). Under international law, any country or armed group that controls a territory will be responsible for all the negative consequences that are attributable to their control[12]. The control in this case must be effective. According to the case of Armed Activities in the Congo[13], effective control means that the party holding power must exercise all the powers of a government. These powers include the ability to maintain law and order; the ability to provide essential services such as food, electricity, and water; and the ability to give civil servants their dues and collect taxes.
- If, for example, the National Transitional Council in Libya was a terrorist group, the fact that they have effective control over the Libyan territory would make them responsible for any violent acts of aggression against other countries that might emanate from the Libyan territory[14]. If the National Transitional Council launched an attack against Australia, such an attack would be deemed a violation and Australia would be justified to retaliate by the fact that its trying to apply the right of self-defense[15]. Effective control of the Libyan territory by the terrorist group would mean that the attack was carried out by Libya, a member state, and it would not matter whether the terrorist group is a state as envisaged under article 2(4).
- TERRORISM NOT IN VIOLATION OF ARTICLE 2(4)
- There is no such thing as terrorism in international law
- The main argument against the view that terrorism is a violation of section four of the second article stems from the fact that the term terrorism does not exist under international law and the law governing armed conflict. Under the recognized laws, the term “terrorism” fails to exist. Under the Geneva Conventions, there are only two types of parties in an armed conflict: civilians and belligerents. There is no third category of parties to armed conflict called terrorists[16]. The terms terrorism and war on terror are fabrications of the media and the US government as illustrated in the ICRC. The ICRC views terrorists as civilians who have chosen to take part in an armed conflict and, as such, any violent acts attributable to them cannot be regarded as the acts of a state as envisaged under article 2(4)[17]. Under such circumstances, right to defend a community or an individual will not arise.
- Weapons used by terrorist
- Another argument against the view that terrorist activities amount to a violation of article 2(4) is with regards to the weapons the terrorists use in their attacks[18]. On 9/11, al Qaeda used civilian aircraft as their weapon of choice. Civilian aircrafts have never been used as weapons and because of that, they cannot be categorized, as “applying of excessive force” under the outlined article Applying force envisaged under the article is categorized in using tools illustrated in the international law as weapons that can be used in an armed conflict[19]. In this case, the airplanes were made in the US for purposes of ferrying civilians from one location to another. It is, therefore, erroneous for one to argue that the terrorism on 9/11 constituted a violation of the article.
- Terrorists are not States
- One of the strongest arguments against the view that terrorist acts amount to a violation of article 2(4) stems from the fact that the terrorists are not states or members of the United Nations[20]. The UN Charter is a treaty and only binds to countries that are signatories to the Charter. The opening sentence in article 2(4) prohibits “all member states” from engaging in the use of force or threats to the use of force. The reference to “member states” means that the article is specifically addressed to countries that are members of the United Nations[21]. Consequently, a country that is not a member of the United Nations cannot be said to violate the article when they are engaging in the use of force or threatening to use force. In that regard, therefore, acts of terrorism and terrorist activities are not cannot be considered violations of article 2(4).
- CONCLUDING REMARKS
- Treaty law and customary international law govern the law that dictates anyone to apply force. The UN Charter is the main treaty law governing the use of force[22]. The Charter limits the conditions under which state parties to the charter can resort to the use of force. Under section four of the second article, state parties are prohibited from engaging in the use of force or threatening to use force against any independent state. Article 51 recognizes the inherent right of members to resort to the use of force as a means of self-defense[23]. On the war on terrorism, the application of the two articles has been fraught with a lot of controversy.
- The proponents of the argument say that terrorism can be a violation of article 2(4) in situations where there is a nexus between the terrorists and a state party to the Charter. They also argue that once a terrorist group is in control of a territory or state, any acts of terror launched from within the state will be deemed acts of the state and will be in violation of human rights. However, opponents argue that under the recognized law, the word terrorism does not exist. Others argue that the weapons used by terrorists cannot be regarded as weapons for the purposes of applying force. The other argument is that the phrase “member states” at the beginning of article 2(4) disqualifies terrorist groups from the article.
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