|On-line resources from the
American Studies Resources Centre at LJMU
on the events of 11th September
|A symposium by academics from
the Liverpool John Moores University considers the implications of the
terrorist attacks on Washington and New York. Posted
1st November 2001
Revised 6th November 2001
Selkridge: The Right To Self Defence Under International Law In Response
To Terrorist Attacks
| The Liverpool John Moores University has begun a University-based discussion
of the events around the September 11th bombings and their aftermath.
Academics from various parts of JMU will each give a 5-10 minute presentation
on specific aspects of the current situation from the perspective of their
expertise. The aim is to generate thought and open, tolerant, discussion
from a diverse audience.
This article consists of contributions from four of the participants.
Pete Gill, Reader in Politics and Security will discuss whether the attack on New York and Washington reflects an 'intelligence failure' and to what extent intelligence can contribute to the response.
Esther Jubb, Lecturer in American Politics, making comparisons with previous crises such as missiles in Cuba, will discuss the response so far of the Bush administration and how this has been constrained within the US political process.
Earl Selkridge, Lecturer in International Law will discuss the context of international law within which responses to the attack are being considered.
Steve Tombs, Professor of Sociology will discuss the re-emergence of the regulation of private business, with specific reference to the airline industry.
The Right To Self Defence Under International Law In Response To Terrorist Attacks
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’.
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.
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.
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.
This brief presentation seeks to deal with two main questions
a) Broadly, the function of security intelligence (both foreign and domestic) is to produce ‘knowledge’ that will decrease uncertainty as to ‘threats’ and thereby increase ‘security’. The fact that the attack on September 11 achieved complete ‘surprise’ suggests a failure of massive proportions.
Reasons for the failure might be split into surface and deeper:
b) The two areas of response that have to be considered are, first, the gathering of information and development of intelligence and, second, actions to counter future threats.
September 11th – An Institutional Perspective
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
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.
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.
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).
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.
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. The terrorist strikes in the US on September 11 have generated reaction across the world. But the effects of the attacks are not confined to the deaths and the shattered lives of the friends and relatives concerned. Talk of 'war' abounds, while 'terrorism', 'intelligence', 'justice' have become common currency; mass movements of people have begun; attacks in the name of 'race' and 'religion' have emerged across the world; stock markets have crashed, with thousands of workers losing their jobs; the most curious of national alliances are being formed as the word 'solidarity' re-enters the political lexicon; the nature of security and risk are being re-assessed; and the psyche of the world's only economic, military and political superpower has been altered, perhaps irrevocably, with consequences that cannot yet be foreseen.
The issues discussed in this article are further explored here.
The legality of the United States intervention in Afghanistan: a public international law essay by Sulman Hassan, graduate in law from Liverpool John Moores University
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