21 September 2001

Bush war plans likely to violate international law

21 September 2001
The Times of India

Bush's war plans likely to violate international law

by Siddharth Varadarajan
Times News Network

New Delhi: Though it is too early to predict the shape of Operation Infinite Justice, the US would probably be violating international law if it attacks Afghanistan or any other country.

Article 2(4) of the UN Charter prohibits the use of force except in two circumstances. The first, where the UN Security Council authorises the use of force under Chapter VII of the Charter. And the second, where a country resorts to self-defence in the face of an armed attack.

The UN Security Council has twice passed resolutions (1267 of 1998 and 1333 of 1999) calling on the Taliban to hand over Osama bin Laden to either a country where he has been indicted or to one where he will be brought to justice. Though these resolutions were passed under Chapter VII and impose sanctions on the Taliban, they do not authorise the use of force against the regime by any country.

In the absence of! a resolution specifically authorising force, the Taliban's refusal to hand over bin Laden cannot legally be construed as grounds for Washington to attack Afghanistan. Even if a UN mandate exists, it would be illegal to put civilians and civilian infrastructure in harm's way.
What about self-defence? Though Article 51 of the UN Charter allows a country to defend itself against an armed attack, the US would have to conform to the International Court of Justice's landmark ruling on the scope of Article 51 contained in its Nicaragua judgment of 1986. The ICJ defined an armed attack as either an event in which one State directly sends troops into another or "the sending by or on behalf of a State of armed bands...which carry out acts of armed force against another State...(amounting to) actual armed attack by regular forces".

The attacks in New York and Washington clearly constitute an act of armed force committed by armed bands. However, in order to! justify attacking Afghanistan, the US would at the very least have to prove both that Bin Laden was responsible and that he acted 'on or behalf of" the Taliban government of Afghanistan.

According to Prof Louis Henkin, one of the most distinguished US scholars of international law, the right of self-defence enshrined in Article 51 is "limited to cases of armed attack that are generally beyond doubt; a state's responsibility for acts of terrorism is rarely beyond doubt and difficult to prove...Article 51 gives a right...to defend against an armed attack. This right does not allow retaliation for armed attacks...or (force) to deter future attacks".

That is why the US has held it would be illegal for India to attack terrorist camps in Pakistan or for Milosevic's Yugoslavia to have gone after KLA bases in northern Albania.

Prof Henkin writes that "a state that has been the victim of an act of terrorism will have to pursue other remedies ag! ainst states that it believes responsible and against the states that encourage, promote, condone, or tolerate terrorism or provide a haven to terrorists".

So far, the US has not pursued other remedies. It has not moved the UN, nor has it responded to the Taliban statement that they would extradite bin Laden given proof of his involvement in last week's terrorist attacks. The Taliban may be bluffing, but international law requires the US to seek peaceful resolution of the crisis and not resort to the unilateral use of force

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