The objective of this work is to consider that as one of the governing principles of the United Nations, the UN Charter Article 2(4) prohibits the use of force in international relations, but its Article 51 permits the use of for e as an act of self-defense against any illegal use of force in violation of Article 2(4). Contemporary wars on terrorism are often justified as an act of self-defense. Therefore, this work will address the question of whether terrorist acts constitute a violation of Article 2(4), which justifies wars on terrorism as an act of self-defense under the UN Charter?
Article 2(4) of the United Nations Charter states as follows:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."
Article 24 was introduced for the purpose of ensuring that force is not used by countries in their international relations. However, many scholars believe that Article 2(4) has been rendered meaningless, failing to achieve its objective and losing its meaning. Military force has been sued since earliest times to employ military force to pursue both political and economic objectives. It is reported that Grotius "as long back as in the fifteenth century articulated three justifiable causes (under the Just War theory) for Sates to use force" and those are reported to be the three of: (1) defense; (2) recovery of property; and (3) punishment. (Kanade, 2009) It is additionally reported that Oppenheim 'Has pointed out that in the absence of an international organ for enforcing law, war as a means of self-help for giving effect to claims-based or alleged to be based on International Law." (Kanade, 2009) According to Oppenheim "such was the legal and moral authority of this notion of war as an arm of the law, that in most cases in which was in fact resorted to in order to increase the power and possessions of a State at the expense of others, it was described by the States in question as undertaken for the defense of a legal right." (Oppenheim, 1952) It is reported that under this rule that States "engaged in the use of force for vindication or for securing legal rights such as recovery of property or arbitral awards." (Kanade, 2009) Stated is that traditional customary law "even permitted states to sue force by means of reprisals if certain conditions were met, viz. that there must have been a prior deliberate violation of international law; that an unsuccessful attempt must have been made at redress; and that the actions taken in reprisal must be proportionate to the injury suffered." (Oscar, 2001, in: Kanade, 2009)
I. Article 2(4) of the UN Charter
The ban on the use of military force, which is established by Article 2(4) of the United Nations Charter and is held to have only very specific exceptions as follows:
"All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (O'Connell, 2002)
Only two exceptions to the prohibition on force appear in the Charter and specifically the Security Council "may use force to keep the peace as provided in Chapter VII of the Charter. States have the right to use force in individual and collective self-defense under the terms of Article 51 of the Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attacked occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." (O'Connell, 2002)
The argument has been posited that Article 2(4) is not a general prohibition on the use of force but instead a prohibition on force "aimed at the territorial integrity and political independent of states or inconsistent with the purposes of the UN." (O'Connell, 2002) Article 51 sets out what O'Connell (2002) states is the "…one clear exception to the general prohibition on the unilateral use of force." O'Connell (2002) states that the use of force in self-defense against an armed attack may be used and that this is "consistent with the plain words of the Article 51 and official government positions and as well is consistent with authoritative interpretation of Article 51 by the International Court of Justice (ICJ)."
According to the work of Bradford (2004), Article 2(4) prohibits only three specific applications of force in international relations. Included are the follow three: (1) the threat or use of force prejudicial to the territorial integrity of states; (2) the threat or use of force contrary to the political independence of states; and (3) the threat or use of force 'in any other manner inconsistent with Purpose of the United Nations.
Bradford states that self-defense against armed attacks "by non-state actors was admitted in principle, but only under narrow conditions." (2004) If an attack is to qualify as an 'armed attack" under Article 51 "the direct attack by a non-state actor had to be attributed to another state under rather stringent rules on attribution." (Bradford, 2004) The law on this point is reported to have been shaped by the judgment of the ICJ in the case on Nicaragua "which concerned the relationship between a state and rebel forces." (Bradford, 2004)
The work of Leitzau (2004) states that the rise of international terrorism 'Highlights a need to implement defensive measures that are not dependent on the ongoing nature of the attack. Terrorists, perhaps relying on the historical reluctance of the United Nations Security Council to resort to force, are likely to mount offensives of short duration -- a campaign of relative quiet punctuated by bursts of extreme violence and destruction followed by immediate withdrawal to safe haven." (Leitzau, 2004)
It is reported that many in the international community "long ago recognized this truth in more conventional contexts and expanded the exercise of the inherent right of self-defense under Article 51 to include the doctrine of anticipatory self-defense. This preemptive use of force doctrine does not require a potential victim state to await an armed attack in order to respond with force. Rather, the state may exercise its inherent right to employ force to defend itself in anticipation of such an attack. Although controversial, Israel justified its 1967 attack on its Arab neighbors as 'anticipatory' self-defense." (Leitzau, 2004)
In the Nicaraguan decision the ICJ drew upon the General Assembly's 'Definition of Aggress' and accepted that the "jus ad bellum could be violated by '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." (Bradford, 2004) However, if this conduct is to be attributed to a state then that state had to necessarily "exercise effective control [over] the military or paramilitary operations' in question." (Nicaragua case, supra note 1, at para. 195.60 at paras 109 and 115; as well as para. 17 of Judge Ago's separate opinion. In: Bradford, 2004) This means that self-defense is dependent upon "complex and typically fact-dependent, questions of attribution, and required responding states to show a substantial involvement of the territorial state in the very attacks of a terrorist organization against which the response was directed." (Bradford, 2004) This is referred to as 'effective control' test. (Bradford, 2004) Therefore, only terrorist attacks that are controlled by another state trigger a right of self-defense.
Through its adoption of a restrictive approach to attribution, the International Court of Justice "effectively restricted self-defense to the inter-state context. This approach seemed in line with an inter-state reading of the jus ad bellum" and to have taken into account the "skepticism among UN members against broader readings of self-defense and for a while was hardly attacked as a matter of principle." (Bradford, 2004)
Lietzau (2004) states that jus ad bellum "needs to change and is changing." Before the event of September 11, 2001, the "moral imperative associated with humanitarian intervention was already severely pressuring fundamental concepts of jus ad bellum." (Leitzau, 2004) However, as the Charter sets out the definitive appropriate occasions for intervention, recognized is the inherent right to self-defense and since this right is an 'inherent' right, Lietzau states that it "can be sufficiently flexible to accommodate whatever threat gives rise to it. Within the language of Article 51, there is room to affect a new paradigm for anticipatory self-defense." (2004)