INTERNATIONAL LAW ON SELF DEFENCE -
Claims made by the US after 9/11 is genuine or not.
The horrendous attack on 9/11 led the rest of the world in great dilemma apart from an unexpected tremor . There raised a number of questions regarding the genuine nature of Article 51 of International Law on self defense
International traditionally dealt with the duties and rights of states in their relations with each other. This is reflected in the fact that most International Law dealing with international terrorism, concentrates on the duties of states to prevent and punish terrorism. Terrorism in all its aspects is a criminal act under International Law.
Art.51 says that “Nothing in the present charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a Member of United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Let us examine some cases which define the international Law standard for whether a particular use of force is self defense.
In Caroline case which occurred in 1837 this aspect has been clearly mentioned. British subjects destroyed an
American ship, The Caroline in a US port; because the Caroline had been used in American raids into Canadian territory. The British claimed the attack was a self defense. But the dispute was resolved in favor of Americans.
This particular case had given a clear meaning to the term self defense under International Law as “there must be a necessity of self defense- instant, overwhelming, leaving no choice of means and no choice of means and no moment for deliberation.” The means of self defense must involve nothing unreasonable or excessive: Since the act, justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it. This has been accepted rule in International Law. This is some what called as “anticipatory Self defense”.
In1981 Israel bombed the French built nuclear reactor near Baghdad, the capital of Iraq, to keep Israel from developing a nuclear arsenal. The UN Security Council condemned the attack because threat to the Israel, though forceeble, was not ‘imminent’ there was a time to try other measures.
So it is evident from the definition that Art.51 allows any country to act itself and take any measures against any activity threatens to its security until the Security Council intrudes. But it must be against the “imminent danger” keeping the limits of “anticipatory self defense “in the mind. The countries can exercise their power under Art.51 but only when it is in utmost necessity.
These assumptions had much discussed after the 9/11 incident in the view of American Claims.
The events of 9/11 and its subsequent military response by US and its allies raise some difficult issues in International Law. In the wake of the attack there were so many questions arised.Some of them is,
1. Does an attack by an non-state group give rise to the right of self defense as under Art.51 of International Law?
2. Under what circumstances, was the Taliban regime as the Afghanistan government itself, a legitimate target for military action under the self defense doctrine.
In this regard first and foremost claim made by the US was, as above mentioned “right on self defense under International Law”. They justified the attack as the exercise of right to protect the country from imminent danger and external activities. But how far it can be possible? Does the claim of America consistent with the Art.51 of International Law?
The terms given in the Art.51 were universally acknowledged to cover America’s invasion of Afghanistan and toppling of the Taliban Government after 9/11 terrorist attacks on the Us by Al Qaeda. Some of the thinkers suggest that no UN resolutions were necessary to cover the military actions since Art.51 had been triggered. It was inconsequential that neither Afghanistan is proper nor the Taliban government in particular, actually carried out the attacks on New York and Washington .The license and support of the Al Quaeda terrorist organization gave rise to agency type of relationship that imputed liability back to Afghanistan. The US has said that its military action in Afghanistan constitutes acts of self defense rather than being reprisals or punishment.
To sum up, the Resolution does not explicitly recognize that the right of self defense applies in relation to any parties as a consequence of the 11 sep. attacks.