The Right of Self-Defence under International Law-the ...

1 Department of theParliamentary LibraryINFORMATION AND RESEARCH SERVICESC urrent Issues BriefNo. 8 2001 02 The Right of Self-Defence under InternationalLaw the Response to the Terrorist Attacks of11 SeptemberISSN 1440-2009 Copyright Commonwealth of Australia 2002 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may bereproduced or transmitted in any form or by any means including information storage and retrieval systems,without the prior written consent of the Department of the Parliamentary Library, other than by Senators andMembers of the Australian Parliament in the course of their official paper has been prepared for general distribution to Senators and Members of the Australian great care is taken to ensure that the paper is accurate and balanced, the paper is written usinginformation publicly available at the time of production.

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3 8 2001 02 The Right of Self-Defence under International Law theResponse to the Terrorist Attacks of 11 SeptemberAngus MartynLaw and Bills Digest Group1 January 2002 EnquiriesInformation and Research Services publications are available on the ParlInfo the Internet the Department of the Parliamentary Library can be found at: Publications OfficeTelephone: (02) 6277 Terrorism and International and State Legal Responsibility for 11 Legal Use of Force in International the Doctrine of Self-Defence Applicable?..9 Limits of the Right of Role of the Security Right of Self Defence under International Law the Response to the Terrorist Attacks of 11 September1 IntroductionThe events of 11 September and the subsequent military response by the United States andits allies raise some difficult issues in International law.

4 Does an attack by a non-stateterrorist group give rise to the Right of Self-Defence as understood under International law? under what circumstances was the Taliban regime as the Afghani government itself alegitimate target for military action under the Self-Defence doctrine? To what extent wasthe United States entitled to dictate the terms by which the Taliban regime should actbefore the military action would cease against it and Al Qaeda bases on Afghani soil?Only the first issue can be answered yes with any degree of confidence. The others areclouded with uncertainty.

5 To some extent this uncertainty reflects the shift of internationallaw away from an emphasis on regulating relations between sovereign states (countries)towards having to incorporate the actions of non-state groups within the legal part of this shift, the responsibility of governments for the actions of non-state groupssuch as the International terrorist network Al Qaeda is receiving increasing attention. Theperiodic use of military force by the United States against such organizations and so-called'state sponsors of terrorism' during the 1990s appears to be forcing a change in acceptedstate practice and hence (arguably)

6 Influencing the boundaries of International However, given that the United States is likely to be motivated primarily by nationalinterests, it would be useful for the United Nations General Assembly to authorise theInternational Law Commission to codify exactly what are the principles applying to thedoctrine of Self-Defence under International paper begins with a short chronology tracing the major relevant events from11 September through to the ongoing airstrikes by the United States and its allies duringOctober. This is followed by a review of the status of terrorism under International law.

7 Itthen looks at the question of legal responsibility for the 11 September attacks, includingunder what circumstances the Taliban might be deemed to share some form ofresponsibility. The paper goes on to examine the legal use of force, and whether the eventsof 11 September give rise to the Right of Self-Defence . Finally it considers what thepractical limits of Self-Defence are in the present case, including role of the United NationsSecurity Right of Self Defence under International Law the Response to the Terrorist Attacks of 11 September2 Chronology11 September Four commercial United States jetliners on domestic routes are hijackers issue no demands to authorities.

8 Two of the jets are flown into the twintowers of the World Trade Centre in New York, one into the Pentagon in Washington DCand another crashes in rural Pennsylvania. Around 3 000 people are killed. Noorganisation claims responsibility for the hijackings. Representatives of the Talibangovernment of Afghanistan immediately condemn the Later, Osama bin Ladenalso denies September The United Nations General Assembly and Security Council passresolutions condemning the events of 11 September as acts of The resolutionscall for the 'perpetrators, organizers and sponsors' to be '[brought] to justice' and states thatthose responsible for 'aiding, supporting or harbouring' such persons 'will be heldaccountable'.

9 14 September the United States Congress authorises the use of military force againstthose involved in the attacks, including those who 'harboured' such persons ororganisations 'so as to prevent any future acts of International terrorism'.5 Also on 14 September, the Australian Government announces the activation of the ANZUS September Both Houses of the Australian Commonwealth Parliament pass aresolution which, amongst other things, states that Parliament 'fully endorses thecommitment of the Australian Government to support within Australia's capabilitiesUnited States led action against those responsible for these tragic attacks'.

10 720 September In an address to a Joint session of Congress,8 United States' PresidentGeorge Bush states that 'the evidence we have gathered all points to a collection of looselyaffiliated terrorist organizations known as Al are the same murderersindicted for bombing American embassies in Tanzania and Kenya, and responsible forbombing the USS Cole'. Osama bin Laden is named as the leader of Al Qaeda. PresidentBush demands that the Taliban must 'deliver to the United States authorities all the leadersof Al Qaeda who hide in your and permanently close every terroristtraining camp in Afghanistan, and hand over every terrorist, and every person in theirsupport structure, to appropriate authorities'.