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Earl
Selkridge
The Right To Self Defence Under International Law In Response To Terrorist
Attacks
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The
United Nations was founded after the Second World War, precisely to avoid
another World War. It follows that one of the primary purposes of the
UN and its Charter is the suppression of acts of aggression. The prohibition
against the use of force is, therefore, of paramount importance in international
law.
The main rule on the Use Of Force is to be found in Art. 2(4) of the UN
Charter:
‘All members shall refrain...from the
threat or use of force against the territorial integrity or political
independence of any state...’
The Charter does not merely prohibit ‘the use’ of force. It goes much
further! It also prohibits the mere ‘threat’ of force – such is the importance
of this principle. Force may only be used in self-defence. This is the
only exception to the prohibition against the use of force. It is important
to observe that this is an exception to the main rule.
The right to self-defence is contained in Art.51 UN Charter. This provision
entitles a state to resort to individual or collective self-defence ‘...if
an armed attack occurs...’ against that state.
Most observers would accept that what transpired on 11th September in
New York and Washington could be described as an armed attack. However,
it must be borne in mind that Art.51 was drafted by states for states.
Thus the words ‘if an armed attack occurs’ should be read to mean ‘if
an armed attack, perpetrated by another state, occurs.
This is where we encounter the first hurdle as to whether the Art. 51
right to self-defence can be invoked in the manner being pursued by the
US and its allies.
It is, perhaps, safe to assume that the drafters of Art.51 did not envisage
the sort of event that took place on 11th September – that is, an armed
attack perpetrated, not by a state, but by non-state actors – a nebulous
group of private individuals. If my assumption is correct and the drafters
did not have private individuals in mind, then Art.51 cannot be invoked
by the US and its NATO allies.
State responsibility for an attack would entitle the victim state the
right to invoke Art.51. State responsibility is one thing – but individual
criminal responsibility is completely different. A distinction must be
made between the criminals and the state that harbours them. If, for example,
members of the Real IRA flee to Brazil and are granted asylum there, this
will not entitle Britain to launch an armed attack against Brazil. Neither
can we allow for an exception in this case purely because the Sept.11th
incident was particularly horrific. Art.51 speaks of no such exception.
Irrespective of how horrific were the terrorist acts perpetrated by a
group of private individuals, those acts cannot be attributed to the state
that harbours the perpetrators. Any argument to the contrary would amount
to nothing more than an attempt to stretch the meaning of the right to
self-defence under Art.51. The perpetrator of any attack must be identifiable
as another state.
The perpetrators of the Sept. 11th attack were a nebulous band of private
individuals. In such circumstances, the victim of the attack might be
entitled to track down the criminals and bring them to justice if their
whereabouts are known. This might well involve resort to diplomatic means
if the terrorists are based in another state. If diplomacy fails, then
it becomes a matter for United Nations involvement. But the Art.51 right
to self defence does not give the victim state a ‘blank cheque’ to resort
to any indiscriminate carpet bombing of the state in which the terrorists
are based. The acts of a nebulous band of brigands cannot be attributed
to the state that gives them a right of residence.
Bearing in mind that the right to self-defence is an exception to the
rule prohibiting the use of aggressive force, no such extension of the
right to self-defence would be acceptable. An exception to a rule should
not be interpreted so broadly so as to make a nonsense of the rule itself
and render that rule redundant. Furthermore, the Art.51 right to self-defence
does not exist in a vacuum. The right must be read in conjunction with
other purposes and principles of the UN Charter – the paramount principle
being the prohibition against the use of force. From this analysis, it
would appear that the US bombing of Afghanistan has no basis in Charter
law.
Are there any precedents that the US and NATO can rely upon?
If the bombing of Afghanistan has no basis in Charter law, let us consider
whether there are any precedents on which the US can rely for legal justification.
1968
The Israeli Air Force launched an attack on the Beirut airport. Israel
sought to justify the attack by blaming Lebanon for an earlier attack
on an Israeli plane at Athens airport. The UN Security Council condemned
the Israeli attack (Res.262). Interestingly, the US joined in the condemnation,
arguing that Lebanon could not be blamed for the acts of a band of terrorists.
1985
Israel attacked Tunis, claiming that Tunisia harboured Palestinian terrorists
who attacked Israeli citizens abroad. Israel claimed to be acting in self-defence.
The UN Security Council again condemned Israel for violating international
law (Res.573).
1986
In 1986, the US launched a military attack against Libya, claiming that
she was acting in self-defence and accusing Libya of ‘sponsoring terrorism’
against US citizens abroad. The US Claimed that its action was meant to
deter such terrorist attacks in future (indeed, similar arguments are
being used to justify the present bombing of Afghanistan). Again, there
was widespread criticism in the Security Council, the majority of states
arguing that self defence could not be pre-emptive (1986 UNYB 247). Greece
said that the action ‘undermined the international legal order’; Kuwait
said it was an attack on Arab sovereignty. The European Parliament formulated
a Resolution describing the attack on Libya as ‘a flagrant violation of
international law’.
You cannot eat your cake and have it! Russia vs. Chechnya and all
that.
Only a few years ago, Chechen rebels planted bombs in Moscow. When Russia
responded to these terrorist attacks by launching an attack on Chechnya,
Russia was condemned by the US and accused of perpetrating ‘crimes against
humanity’. The US took the moral high ground and ate its proverbial cake.
But if Russia’s response to terrorism was a ‘crime against humanity’,
then the US response – bombing a hospital, an old-peoples’ home, Red Cross
premises (twice), also bombing UN quarters and the use of cluster bombs
on residential areas - cannot now be miraculously transformed into legality
and into ‘a just war’. You cannot eat your cake and have it. The US will
have to explain exactly how it is that, on the one hand, a Russian military
response to acts of terrorism amounts to a ‘crime against humanity’ while,
on the other hand, a US response is ‘a just war’.
Does UN Security Council Resolution 1373 lend support to the US bombing?
Supporters of the bombings point to UN Security Council support in the
form of Security Council Resolution 1373 which was adopted on 28th September.
Resolution 1373 is intended to suppress international terrorism by way
of such measures as freezing the financial assets of those persons or
entities involved in terrorism. The Resolution speaks of the Security
Council’s determination to ‘take all necessary steps’ to ensure implementation
of the Resolution. Thus, any ‘steps’ to be taken are to be taken by the
Security Council. Resolution 1373 does not authorize any state to take
any steps involving the use of armed force and those who argue otherwise
are merely ‘clutching at straws’ in their desperation to justify the bombing
of Afghanistan.
Conclusion
The ongoing US bombing of Afghanistan has no legal basis - neither in
Treaty law nor in precedent. The US bombing of Afghanistan is, therefore,
illegal under international law.
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Stephen
Tombs
Regulation,
Safety and Risk in the Airlines
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Recently,
Mike Moore recounted some of his experiences with airport security:
“At the Newark Airport, the plane
is late at boarding everyone. The counter can’t find my seat. So I am
told to just “go ahead and get on” — without a ticket! At Detroit Metro
Airport, I don’t want to put the lunch I just bought at the deli through
the x-ray machine so, as I pass through the metal detector, I hand the
sack to the guard through the space between the detector and the x-ray
machine. I tell him “It’s just a sandwich.” He believes me and doesn’t
bother to check. The sack has gone through neither security device.
LaGuardia in New York, I check a piece of luggage, but decide to catch
a later plane. The first plane leaves without me, but with my bag —
no one knowing what is in it. Back in Detroit, I take my time getting
off the commuter plane. By the time I have come down its stairs, the
bus that takes the passengers to the terminal has left — without me.
I am alone on the tarmac, free to wander wherever I want. So I do. Eventually,
I flag down a pick-up truck and an airplane mechanic gives me a ride
the rest of the way to the terminal. [I] have brought knives, razors;
and once, my traveling companion brought a hammer and chisel. No one
stopped us” (Moore, 2001).
What I want to do here briefly today is to indicate how the airlines and
their regulators, the FAA, have colluded to produce the opportunity for
the actions which took place on September 11; that is, their level of
security created the conditions whereby teams of 3-5 people could penetrate
airport security at three different airports and do what they did. It
needs saying, because it has barely been raised as an issue Second, I
want to speculate briefly, and optimistically, what this means for the
future of the airline industry and indeed private business in general.
So, how did we get to the situation outlined so graphically by Mike Moore,
above?
The staring point is the deregulation of the US airline industry some
twenty years ago. Deregulation formally began with the 1978 Airline Deregulation
Act (interestingly, opposed by all major airlines except United). This
had little immediate effect until the election of Reagan in 1980, a President
who came to power committed to widespread deregulation. In his first term,
a key obstacle to real deregulation – namely 1800 striking air traffic
controllers – was removed, through their being sacked, and replaced by
non-union labour. The National Labour Relations Board was by this time
dominated by Reagan appointees and proved to be no effective body of appeal.
This action was crucial in setting the tone for union busting in the Reagan
period (Mokhiber and Weissman, Corporate Predators, 161-3), while airline
deregulation ‘set the stage for subsequent efforts to deregulate other
industries’ (Horwitz, 1986: 151).
An immediate reaction was a wave of price-cutting, and competition from
new no-frill airlines. Some (especially the free market economist) may
say that greater competition and lower prices are good for the general
consumer. There are at least two reasons why this is not the case. First,
because in respect of domestic air travel in the US, the typical customer
is not exactly a general consumer - 43% of domestic airline travel is
business travel (American Travel Survey, 1995). In other words, much of
the cost-savings of cheaper travel are passed on to corporations not individual
passengers, this is hardly a strategy that is ‘demanded’ by the individual
consumer. Second, because the consumer cannot in this area make an informed
choice – how many people investigate the level of airline safety and their
level of security prior to making a flight booking? I do not think that
checking the latter is even possible, almost by definition.
As competition heightened, some operators were forced to insolvency, and
profit rates declined significantly (Peltzman, 1998: 114, 116). The airline
industry sought to drive down costs –wages rose in the industry by just
1% between 1980 and 1984 (a real cut, following an 8% rise between 1976
and 1980). At the time of the bombings, many security staff at US airports
earned minimum wage ($5.60 an hour), while a starting pilot for Continental
could earn as little as $13,000 (Moore, 2001). Turnaround times became
crucial to profit margins. It is perhaps inevitable in this scenario that
security would be compromised, as passengers are whisked through airports
to preserve the crucial turnaround times and thus numbers of flights.
It needs to be emphasised that in these compromises of security, the FAA
has colluded, private business in and beyond the airline industry is a
key benefactor, and ordinary people have paid the ultimate price.
Finally, it is worth noting that safety fears about the deregulated industry
were raised from the late 1980s onwards, through a series of crashes,
mostly in the low-cost sector. The National Transportation Safety Board
raised a raft of safety concerns. A White House Commission on Safety and
Security in the US Aviation Industry made a series of recommendations
(in 1996) to bring security on domestic flights up to the levels of international
flights. Few of these seem to have been acted upon. Warnings about ‘lax,
profit-driven airport security’ continued to be issues (Baum, 2001). By
end of 1990s, the number of operators had fallen, prices had increased
(Clarke, 1998: 58). Although this is to speculate, as increased safety
costs were forced upon airlines, it is at least plausible to suggest that
these extra costs meant that security was either not improved or was further
compromised through cost-savings here. Increased costs did put operators
out of business. By the end of the 1990s, the industry was much smaller
than it had been at the start of the decade.
And now, what do we find after September 11th: mass layoffs, routes cut,
plane orders cancelled, kerbside check-ins were withdrawn as $24B in short-term
subsidy was agreed within 10 day of attack, on the basis that this subsidy
was needed for ‘special circumstances’ which were the ‘need to find money
for extra security’. Bush has ordered negotiations for a federal take-over
of airport security – with airport baggage screeners and air marshals
as federal employees possibly being employed by the Federal Government
(Clarke and Harper, 2001, Tran, 2001, Wall Street Journal). At the same
time, the US business travel lobby – eg National Business Travel Association,
the Business Travel Coalition, - are urging a reasonable balance between
security and convenience, especially since the September 11 hijackers
“did not carry anything illegal on board” (Cohen, 2001). What we have,
then, is airlines protecting their rights to compete on price at the possible
risk to security and safety – while at the same time arguing that the
need for extra – ie adequate – security means extra costs, which should
be borne by the general taxpayer. A quite simple, if very common, privatisation
of profit, socialisation of risk and post-bombing cost of security?
In this context, one good thing to come out of the bombings might be greater
critical scrutiny of the industry – anything from tighter regulation to
the consolidation of a global industry consisting of state-owned national
carriers.
At the very least, the regulation of corporate activity is back on the
agenda. One finds this in numerous spheres. Two brief examples to end.
First, the regulation of banking industry/offshore banking centres. There
has emerged a renewed interest in – and one expects some activity around
– the issue of money laundering. As Elliot noted recently,
“Everywhere, those responsible for
security are asking finance ministries how terrorists can move money
around the globe to finance their activities without being detected.
The answer they are getting is that it is ludicrously easy when there
are no controls on the movement of capital and when tax havens operate
with the frontier mentality of the Wild West. As a result, we now have
frantic attempts by governments to strengthen the rules against money
laundering, which will involve far stricter regulation and enhanced
powers for those fighting financial crimes to uncover the details of
suspicious transactions” (Elliot, 2001)
About time too. In 1989, G7 nations established the Financial Action
Task Force, which produced a series of recommendations aimed at combating
money laundering; by 2001, only a minority of FATF member-states were
in full compliance with these (Pell, 2001). Of the 28 recommendations,
the US failed to comply with more than a third (ibid.), putting the US
third from bottom (in front of only Canada and Mexico) in a survey of
29 industrialised nations (ibid.).
Second, although rather muted, there have been some attempts to understand
why the US is so hated, and indeed why the twin Towers were selected as
one of the targets of the terrorists. Answers to each question require
some attention to the international economic experiences of the past quarter
of a century: general deregulation in the international economy, trends
towards economic globalisation, the international hegemony of neo-liberalism;
alongside these we have also witnessed clear trends of growing inequality
within and between nations (Pearce and Tombs, 2001). Now, while the causal
link is not proven, perhaps the most important issue is that the former
is widely perceived as the cause of the latter. The World Bank, WTO, IMF,
and so on are popularly seen as instruments of the US and the West. Indeed,
such perceptions had already been forced onto political agendas by the
so-called anti-globalisation protests that have developed a momentum in
the past year or so. The scrutiny of international economic policy and
international activity that may follow the September 11th bombings may
have an effect in furthering the case for greater regulation of corporate
activity precisely because it will be undertaken in a context in which
the untrammelled fee market is seriously under question. For example,
in the emergency debate in the UK parliament (Monday 8 October, 2001),
the issue of Tobin tax was again raised, in the context of a way of funding
the ‘war’ on international poverty. At the most general level, then, and
to quote from Larry Elliott again, the crisis generated by the bombings
may mark the moment when ‘the free market tide ... turned’.
References
Baum. P. (2001) ‘Aviation Security Could Prevent a War’, The Guardian,
September 12.
Clark, A. and Harper, K. (2001) ‘Turbulent times ahead for airlines’,
The Guardian, September 19
Clarke, M. (2000) Regulation. The Social Control of Business between Law
and Politics, London: Macmillan.
Cohen, A. (2001) ‘The question for all: to fly or not to fly?’, Financial
Times, September 17.
Elliott, L. (2001) The free market tide has turned. This crisis is fuelling
economic activism and a Keynesian revival, The Guardian, September 20.
Horwitz, R.B. (1986) ‘Understanding Deregulation’, Theory and Society,
15, 139-174.
Mokhiber, R. and Weissman, R. (1999) Corporate Predators, Monroe, Ma:
Common Courage.
Moore, M. (2001) ‘Death Downtown’, http://www.corpwatch.org, posted 13
September.
Morgan, O. (2001) ‘New battle of Britain to keep air giants flying’, Observer,
September 23.
Pearce, F. and Tombs, S. (2001) ‘Crime, Corporations and the “New” Social
Order’, in Potter, G., ed., Controversies in White-Collar Crime, Cincinnati,
OH: Anderson.
Pell, M. (2001) ‘US “failing to do enough” on Financial Crime’, Financial
Times, 23 June.
Peltzman, S. (1998) ‘The Economic Theory of Regulation After a Decade
of Deregulation’, in Baldwin, R, Scott, C. and Hood, R., eds., A Reader
on Regulation, Oxford: Oxford University Press, 95-147.
Tran, M. (2001) ‘The airline industry slump’, The Guardian, September
20.
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Esther
Jubb
September 11th – An Institutional Perspective
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This examination stems primarily from my own background
and interests – presidential studies, decision-making and policy-making
strategies and success. My assessment here isn’t whether the decisions
that the Bush administration are making are right – but rather whether
the institution is operating effectively and maximising its chances of
success.
The US presidency is reportedly the most powerful political
office in the world. Contemporary American history shows us that in times
of domestic and international crisis the US turns to the presidency as
an institution and to the president as a man to provide solutions.
- FDR – Great Depression and WWII
- JFK – Civil Rights and Cuban Missile Crisis
However, there is an interesting paradox at work here;
the Presidency is perceived to be a powerful institution, but it operates
in a constrained and limited constitutional system which deliberately
puts Congress, the President and the Courts in conflict with one another.
This political system is exploited by electors forcing politicians into
conflict through divided government. And here perhaps is where the problem
of assessing an institutional response begins.
On September 11th America was, in George W. Bush’s words
“awakened to danger”. Not since April 19, 1995, the bombing of the Oklahoma
Federal Building – which was at the time thought to be the worst act of
terrorism ever experienced by the US on its own territory – have Americans
ever felt so vulnerable. Now, as then, the American people are demanding
some kind of response, and a very public, visible response which helps
them regain their feelings of security and superiority. Oklahoma city,
however, is a different scenario, the fact that the act of terror was
perpetrated by an American citizen made the act of terror more difficult
to deal with, but at least there was a culprit, a court case and subsequently
an execution to bring the matter to a close. It appears clear to many
looking at the events of September 11th that such closure may never be
achieved in this case.
Are these historical analogies useful in trying to assess
America’s response to the events of September 11th? In attempting to
make sense of the events in New York City and Washington DC the media
have sought analogies from Pearl Harbour to the Gulf of Tonkin Resolution,
and I am uncertain whether these analogies have been helpful. In terms
of decision makers one thing we do know is that they are reluctant to
look to history to help them find solutions to seemingly intractable problems.
This reluctance is not because they do not believe in the utility of history,
but rather, as politicians are not noted for their modesty, because hubris
and ego take over.
Early statements from George W. Bush were considered
by many observers to be lacking in presence. His physical absence from
Washington and the delay in his visiting New York City also opened him
up to strong criticism. These early statements were a further illustration
of the plain speaking we became accustomed to during the 2000 presidential
election. Perhaps this is appropriate for a time of fear, grief and primal
rage for revenge, but sometimes he came over as too plain spoken and not
statesmanlike enough – Sheriff Bush calling for bin Laden “dead or alive”
and proselytising America’s task as a ‘crusade’. However, the rhetorical
turning point was the address at the National Cathedral in Washington
DC prior to his visit to New York City. In seeking to prepare America
for what was to come Bush personalised the conflict and prepared the nation
for the long fight; in his words a “lengthy campaign unlike any other
we have ever seen”.
Of the greatest importance in all of this is perhaps
not George W. Bush himself but rather the people with whom he has chosen
to surround himself. And it is their counsel which has guided the US’s
response up to this point. One problem with being the President of the
United States is that nothing you ever do in your previous careers will
ever prepare you for the kind of decisions that you will have to make
once in office, and this especially goes for foreign affairs. Bush was
doubly disadvantaged by his very public lack of international awareness,
and to these ends he has put in place advisors and cabinet members with
a wealth of experience. They differ in outlook - the hawkish tendencies
of Deputy Secretary of Defense Wolfowitz to the forceful yet cautious
Secretary of State Powell - the US’s response so far has been informed
by a team of advisors aware of public demand for retribution and revenge
but tempered by the experience of war.
Public opinion is also with Bush – Gallup polls regularly
ask about presidential approval. Do you approve of the way George W.
Bush is handling his job as president? 84% yes, 11% no, 5% don’t know
– this is some of the highest presidential approval rates in history,
closely matching those of George Bush Sr. during 1990’s Gulf War. Do
you favour the use of US ground forces in Afghanistan – 64% approve, 28%
oppose. And this leads us to another sticky problem. When public opinion
is so heavily weighted on one direction it is difficult for politicians
to act with prudence. Recently Congress passed legislation authorising
Bush to use US forces. Only one Representative voted against the bill
– Barbara Lee (Oakland CA), she is now receiving death threats; at times
like these dissent is seen as being unpatriotic.
Institutionally where do we go from here – my opinion
concurs with those on the editorial pages of major American newspapers,
that George W. Bush has grown into his office, but it is easy to be a
success when there is little opposition George W. Bush has the full extent
of his powers at his disposal, and the congressional will and public opinion
to exercise them. American appears to be in this for the long term, but
in politics very little is really for the long term. Acceptance of military
losses will fade if many American soldiers do not make it back to their
families – the ghost of Vietnam is not really exorcised – and less than
10 years ago President Bush’s father felt the full might of the electorate
as his success in the Gulf War and the collapse of communism in eastern
Europe were not enough to distract the voters from an economic recession.
Public opinion is short lived and public support difficult to maintain;
electoral success in three years is by no means guarantied. George W.
Bush may be the man of the moment but such moments are fleeting.
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