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National Self-Defence in the Age of Terrorism: Immediacy and State Attribution

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Post 9/11 and the State of Permanent Legal Emergency

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 14))

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Abstract

This chapter reviews the current literature and jurisprudence regarding the legitimacy of the use of military force against terrorism under international law. Trends have favored greater competence of states to trespass on the sovereignty of other states in the name of counter-terrorism. These efforts received a boost in the wake of 911 with the UN Security Council’s resolution 1368 and 1373 and have led some scholars to conclude that this application of UN Charter article 51 is now customary international law. Yet, the International Court of Justice has refused to make this holding, though it has had ample opportunity. Thus, this issue remains unclear. In the post-911 age there are some indications that prior assumptions may have jumped the gun and that easy resort to counter-terrorism as justification for aggression has lost its allure.

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Notes

  1. 1.

    D. Walsh, Osama bin Laden Killed in US Raid on Pakistan Hideout, The Guardian News Service, May 2, 2011 at http://www.guardian.co.uk/world/2011/may/02/osama-bin-laden-dead-pakistan/print (last visited May 20, 2011).

  2. 2.

    S/RES/1189 (1998). Though the connection between international peace and security and counter-terrorism had been forged by the Security Council before resolution 1189 (e.g., Lockerbie resolution) it was reiterated in resolution 1189 at a crucial time in the historic development of international security law, in close proximity to the events of 9–11, and contributed to the expansion into its current form.

  3. 3.

    United Nations Charter art. 41, 42 at http://www.un.org/en/documents/charter/chapter7.shtml.

  4. 4.

    S/RES/1267 (1999).

  5. 5.

    Ibidem at 4(a)(b).

  6. 6.

    Ibidem.

  7. 7.

    S/RES/1373(2001).

  8. 8.

    J. von Elbe, “The Evolution of the Concept of the Just War in International Law,” American Journal of International Law 33 (1939): 665, 666, n. 9 citing the Nicomacheon Ethics,Book X, Ch. VI XVII, 6 and; Politics, VII, 14.

  9. 9.

    W. G. Grewe, The Epochs of International Law, 108–111, trans. Michael Byers and revised, 2000; Arthur Nussbaum, A Concise History of the Law of Nations 35 (revised ed., 1954); cited in M. E. O’Connell, International Law and the Use of Force, 2nd ed. (New York: Foundation Press, 2009), 118.

  10. 10.

    M. E. O’Connell, International Law and the Use of Force (New York: Foundation Press, 2009) at 118–119.

  11. 11.

    See Y. Dinstein, War Aggression and Self-Defense, 4th ed. (Cambridge: Cambridge University Press, 2005), citing A. Nussbaum, A Concise History of the Law of Nations (1954): 10–11.

  12. 12.

    M. E. O’Connell, International Law and the Use of Force, at 123.

  13. 13.

    Ibidem at 67, see also H. Kelsen, Principles of International Law 311 (1st ed., 1952); H. Kelsen, General Theory of Law and State (1945): 331–333.

  14. 14.

    Ibidem.

  15. 15.

    These provisions were themselves subsequent reiterations of the principles laid out in the Charter of the League of Nations as well as the Kellogg Briand Pact outlawing recourse to war and obliging states to find pacific means to resolve disputes – though they did not forbid recourse to war in self-defense.

  16. 16.

    UN Charter art. 2(4).

  17. 17.

    While efforts were afoot to create more definite norms regulating the waging of war in the early 20th century in the treaty of Versailles and the Kellogg Briand Pact, the United Nations Charter was the first International instrument which approached the issue in a practical and enforceable manner. “Until the end of the First World War, resorting to armed force was regarded not as an illegal act but as an acceptable way of settling differences. In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (Briand-Kellogg Pact) sought to outlaw war. The adoption of the United Nations Charter in 1945 confirmed this trend: the members of the Organization shall abstain, in their international relations, from resorting to the threat or use of force…” On the Prohibition of War, International Committee of the Red Cross, January 1, 2004 at http://www.icrc.org/eng/resources/documents/misc/5kzjjd.htm (last visited June 16, 2011); also see McDougal, MS / Feliciano, FP, The International Law of War, 138–143 (The Hague: Martinus Nijhoff, 1994).

  18. 18.

    UN Charter, art. 51.

  19. 19.

    The English Common law case of R v. Dudley and Stevens can be cited to distinguish the concept of self-defense from that of self-preservation. In that case two men conspired and killed a third for the purpose of cannibalism after they were cast adrift in a small dingy for 18 days. They argued the necessity of killing for self-preservation, but their defense was unsuccessful and they were sentenced to hang – subsequently commuted to 6 months penal servitude. R v. Dudley and Stevens, 14 Q.B.D. 273 (1884).

  20. 20.

    J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th ed. Sir Humphrey Waldock (Oxford: Oxford University Press, 1963), at 404.

  21. 21.

    Ibidem at 406.

  22. 22.

    Ibidem.

  23. 23.

    The Preamble of the UN Charter proposes “ to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …”

  24. 24.

    T. Franck, “Who Killed Article 2(4)?,” American Journal of International Law 64 (1970): 809–810.

  25. 25.

    See Department of State [Mr. Webster to Lord Ashburn], Washington, 6th August 1842, Avalon Project – British-American Diplomacy: The Caroline Case, at http://avalon.law.yale.edu/19th_century/br-1842.asp (last visited June 18, 2011).

  26. 26.

    Ibidem.

  27. 27.

    Naturally, under this scenario, other remedies would be available to the anticipated victim such as restraint on the other party, heightened scrutiny, etc., but justified self-defense calculated to bring death or serious bodily harm would not be available to the potential victim.

  28. 28.

    The other exception to the use of force in article 42 provides authority to the Security Council to instigate military action in order to maintain international peace and security.

  29. 29.

    Japan raised this issue on the weight of the US Declaration to the Kellogg-Brand Pact which proposed that “[the State] is competent to decide whether circumstances require recourse to war in self-defense.” Germany also raised the self-defense reservations to Brand-Kellogg Pact in defense at the Nuremberg Tribunals. Brierly, The Law of Nations, at 407.

  30. 30.

    Ibidem at 408.

  31. 31.

    For a detailed analysis of counter-terrorism approaches see generally M. D. Kielsgard, “A Human Rights Approach to Counter Terrorism,” California Western International Law Journal 36 (2006): 1.

  32. 32.

    S/RES/1373(2001).

  33. 33.

    See generally, Brierly, The Law of Nations, already cited.

  34. 34.

    Obviously the exceptions to this general rule were the tribunals at Nuremburg and Tokyo, but they consisted of prosecutions for international crimes that had recently become recognized and arguably differ from the crimes associated with terrorism.

  35. 35.

    The League of Nations Counter-terrorism Convention never entered into force for failure to receive the necessary number of ratifying signatures. Convention For the Prevention and Punishment of Terrorism, 19 League of Nations O.J. 23 (1938), League of Nations Doc. C.546(I).M.383(I).1937.V(1938)(16 November 1937).

  36. 36.

    By emphasizing jus in bello, or the constraints on tactics of war, and deemphasizing jus ad bellum, constraints on waging war, international law still provided great latitude for state sovereignty. Pre-Charter efforts had been made in the Treaty of Versailles and the Kellogg-Briand Pact, but neither had much impact nor evinced a realistic commitment to interfering with the states right to wage aggressive war.

  37. 37.

    Dinstein abovr n. 12, at 181–182; see also Brownlie, I, International Law and the Use of Force by States, 269 (1963).

  38. 38.

    Id. Among those who believe that national self-defense justifications exist outside the scope of the Charter is Judge Schwebel of the ICJ who, in his dissent in Nicaragua, found that self-defense justifications can be found in customary international law even if no armed attack can be shown. See D. W. Bowett, Self-Defense in International Law (1958): 187–192; M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order (1961): 232–241; J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression 44 (1958) cited in Dinstein War Aggression and Self-Defense, already cited.

  39. 39.

    Ibidem.

  40. 40.

    Vienna Convention on the Law of Treaties, art. 32.

  41. 41.

    UN Charter preamble, already cited.

  42. 42.

    While “obsession” is a relatively subjective description, it can be inferred by the spate of counter-terrorism initiatives of the early twenty-first century including numerous Security Council and General Assembly resolutions, the formation of the Counter-Terrorism Committee (the sitting Security Council), horizontal law enforcement initiatives from Interpol, Europol, and national law enforcement agencies, additional counter-terrorism conventions and the so-called “Global War on Terrorism” launched by the United States in 2001/2002.

  43. 43.

    B. Simma, The Charter of the United Nations: A Commentary, 2nd ed., vol. 1 (Oxford: University Press, 2002) at 722.

  44. 44.

    Mutually assured destruction is a “defensive strategy based on the concept that neither the United States nor its enemies will ever start a nuclear war because the other side will retaliate massively and unacceptably.” Col. A. J. Parrington, USAF, Mutually Assured Destruction Revisited, (Winter 1997) Airpower Journal, at http://www.airpower.maxwell.af.mil/airchronicles/apj/apj97/parrin.html.

  45. 45.

    A superpower has been defined as “a country that has the capacity to project dominating power and influence anywhere in the world, and sometimes, in more than one region of the globe at the same time, and so may plausibly attain the status of global hegemon.” L. Miller, “China an Emerging Superpower?” (2006) Stanford Journal of International Relations.

  46. 46.

    Vienna Convention on the Law of Treaties, art. 31(3)(b).

  47. 47.

    United Nations General Assembly, Special Committee on the Problem of Hungary (1957) Chap. Ii. C, para. 58 (at 20).

  48. 48.

    The invasion of Afghanistan resulted in a widespread international outcry that included the US boycott of the 1980 Summer Olympics in Moscow and General Assembly resolutions calling for the withdrawal of the USSR. G/ RES/ES-6/2 (1980) 14 January 1980.

  49. 49.

    US Department of State, Foreign Relations of the United States, 1964–1968, vol. XXXII, Dominican Republic; Cuba; Haiti; Guyana, Document 43, at http://history.state.gov/historicaldocuments/frus1964-68v32/d43.

  50. 50.

    The Vietnam War cost the US approximately 58,000 lives (350,000 casualties) and between one and two million Vietnamese deaths. The US price tag for the war was the equivalent of 662 billion dollars (in 2007 dollars). Yassin Musharbash, War on Terror More Expensive than Vietnam, Spiegel Online International, Jan. 16, 2007 at http://www.speigel.de/international/0,1518,460007,00.html.

  51. 51.

    The United States and South Vietnam justified attacks into these territories on the basis that the North Vietnamese forces were retreating there in order to recover from attacks and stockpile equipment, food and arms.

  52. 52.

    The Panorama Middle East Archives: Six-Day War, BBC, Feb. 6, 2009, at http://news.bbc.co.uk/panorama/hi/front_page/newsid_7875000/7875655.stm.

  53. 53.

    GA/8082 24October1970.

  54. 54.

    GA/3034 18 December 1972.

  55. 55.

    Ibidem.

  56. 56.

    UN Treaty Collection, Conventions on Terror, at http://untreaty.un.org/English/Terrorism.asp.

  57. 57.

    The so-called “raid on Entebbe” took place in an effort to rescue Jewish hostages hi-jacked on an Air France flight from Athens to Paris. The Idi Amin Ugandan government took no measures against the terrorist group, Popular Front for the Liberation of Palestine, and forced the Israeli commandos to plan for resistance encountered by Ugandan military troops. In the raid 45 Ugandan troops were killed, 11 MIG jet fighters were destroyed, and 3 terrorists, 1 hostage and 1 commando was killed. The Security Council took no action and the raid was applauded by many Western states and condemned by many Middle Eastern states. Terrorism: Vindication for the Israelis, TIME Magazine, July 26, 1976 at http://www.time.com/time/magazine/article/0,9171,914380,00.html.

  58. 58.

    In 1976 the Security Council adopted resolution 393 that strongly condemned the armed attacks of South Africa against the Republic of Zambia and threatened sanctions against South Africa if it persisted. S/RES/393 (1976).

  59. 59.

    This raid was in response to a terrorist bombing of a West German discotheque earlier in 1985 and resulted in a General Assembly resolution condemning the United States for its armed attack against Libya and characterized it as a violation of the Charter of the United Nations and international law. G/RES/41/38 (1985).

  60. 60.

    See generally W. M. Reisman, “The Baghdad Bombing: Self-defense or Reprisal?,” European Journal of International Law 5 (1994): 120–133.

  61. 61.

    The bombing missions against targets in Afghanistan and Sudan were in retaliation against the terrorist bombings of American embassies in Kenya and Tanzania earlier that same year. The international response was mixed and the Security Council refused to place the matter on the agenda. See generally, J. Lobel, “The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan,” Yale Journal of International Law 24 (1999): 537.

  62. 62.

    Ibidem.

  63. 63.

    An exception was the US raid in Afghanistan in 1998 in which US forces bombed a terrorist training base on the territory of Afghanistan but without specifically targeting the Taliban government.

  64. 64.

    The distinction between reprisal and self-defense was presented to the Security Council in 1964 regarding the British air strike on the Yemen Arab Republic. The UK representative claimed their action “was not a retaliation or reprisal. On the contrary, the action was taken in response to an urgent request from ministers of the Federation to protect the interests and integrity of their country. It was a measure of defense.” The representative explained that there are punitive attacks and then counter-attacks to repel or prevent an attack. Repertoire of the Practice of the Security Council, Supplement 1964–1965 (United Nations publication, Sales No. E68, VII.1), chap. XI, part IV, Case No. 7, cited in Reisman, WM / Arsanjani, MH / Wiessner, S / Westerman, GS, International Law in Contemporary Perspective, 948–949 (New York, Foundation Press, 2004). The counter-attack might be seen as defensive as otherwise precluding an aggressor from further attacks by incapacitating their ability to launch future attacks.

  65. 65.

    Argentina, which still maintains that the Falkland Islands are within its sovereign territory, were requested to leave the islands by the Security Council and eventually the Council provided Britain with express authorization to take article 51 defensive measures in Security Council resolution 502. S/RES/502 (1982).

  66. 66.

    Ethiopia’s claim to self-defense was a hybrid of several different bases, including as a defense against terrorist incursions but also based on a claim of aggression. See generally, A. K. Allo, “Ethiopia’s Armed Intervention in Somalia: The Legality of Self-Defense in Responding to the Threat of Terrorism,” Denver Journal of International Law and Policy 39 (December 1, 2010): 139.

  67. 67.

    Note that this was collective self-defense and with Security Council approval under art. 42, S/RES/0678 (1990) 29 Nov. 1990.

  68. 68.

    Below n. 87.

  69. 69.

    Israel’s action was strongly condemned by the Security Council later that year. S/RES/487 (1981) 19 June 1981.

  70. 70.

    The Security Council called upon Israel to withdraw troops from Lebanon in 1978 in UN Security Council Resolution 425. S/RES/425 (1978).

  71. 71.

    This was justified on article 51 grounds both as pre-emptive self-defense and in retaliation for the terrorist bombings of the US embassies in Kenya and Tanzania earlier that year. J. Lobel. “The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan,” already cited.

  72. 72.

    The US State Department cited four grounds for the incursion: 1. To protect American lives; 2. To assist the lawful and democratically elected government in Panama in fulfilling its international obligations; 3. To seize and arrest Manual Noriega for drug trafficking; 4. To defend the integrity of US rights under the Panama Canal treaties.’ New York Times, A Transcript of President Bush’s Address on the Decision to Use Force, Dec. 21, 1989.

  73. 73.

    J. Quigley, “The United States Invasion of Grenada: Stranger than Fiction,” University of Miami Inter-American Law Review 18 (1986): 275.

  74. 74.

    (U.K. v. Alb.) 1949 I.C.J. 4, 29–35 (Dec. 15).

  75. 75.

    Nicaragua v. United States, ICJ Rep 14 [1986].

  76. 76.

    Ibidem at para 195.

  77. 77.

    A. Cassese, “The International Legal Community’s “Legal” Response to Terrorism” (1989) 38 ICQL 589.

  78. 78.

    State obligation under customary international law is reflected in General Assembly Resolution 2625 (Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations) which states, “Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed toward the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.” G/RES/2625 (24 October 1970).

  79. 79.

    Nicaragua v. United States, at para 231–232.

  80. 80.

    Ibidem.

  81. 81.

    S/RES/487 (1981) 19 June 1981.

  82. 82.

    Christine Gray, The Use of Force and the International Legal Order in International Law, 3rd ed., ed. Malcolm D. Evans (Oxford: Oxford University Press, 2010), 628.

  83. 83.

    Ibidem.

  84. 84.

    See M. S. McDougal, et al., The International Law of War, at index.

  85. 85.

    In 1988, the US shot down a civilian Iranian commercial plane and claimed it was in response to a mistakenly anticipated armed attack from Iran.

  86. 86.

    In a report issued by the United States Institute of Peace, “Potential pitfalls of intelligence analysis include being too reliant on data from clandestine and highly technical sources, being subject to political pressure, and being insufficiently collaborative.” L. Woocher, Conflict Assessment and Intelligence Analysis, Commonality, Convergence, and Complementarity, USIP, June 2011 at http://www.usip.org/publications/conflict-assessment-and-intelligence-analysis (last visited June 15, 2011).

  87. 87.

    S/RES/487 (1981) 19 June 1981; G/RES/36/27 (1981) 13 Nov. 1981.

  88. 88.

    Ibidem.

  89. 89.

    The National Security Strategy of the United States of America, September 2002, at http://www.whitehouse.gov/nsc/nss.html, at 15.

  90. 90.

    C. Gray, The Use of Force and the International Legal Order in International Law, at 631–632.

  91. 91.

    United Nations Charter art. 41, 42; D. Walsh, Osama bin Laden Killed in US Raid on Pakistan Hideout, already cited.

  92. 92.

    Antonio Cassese, International Law, 2nd ed. (Oxford: Oxford University Press, 2005), 354–355.

  93. 93.

    C. Gray, The Use of Force and the International Legal Order in International Law, at 629.

  94. 94.

    See UN Doc. S/2001/967 (European Union); UN Doc S/2001/1005 (Canada); UN Doc S/2001/1127 (Germany); UN Doc S/2001/1193 (New Zealand); see also Triggs, G, International Law: Contemporary Principles and Practice (2006).

  95. 95.

    UN Doc S/PV.5493 (2006); see also Trapp, KN, ‘Back to Basics: Necessity, Proportionality and the Right of Self-Defense Against Non-State Terrorist Actors’ (2007) 56(1) International and Comparative Law Quarterly 141, 154.

  96. 96.

    UN DOC S/PV.5493 (2006); see also Ibidem.

  97. 97.

    Secretary General Kofi-Annan stated that the US-led invasion of Iraq was an illegal act that contravened the UN Charter. Iraq War Illegal, Says Annan, BBC News, September 16, 2004 at http://news.bbc.co.uk/2/hi/middle_east/3661134.stm. Others predicted that if the Security Council had voted on a resolution calling for an invasion of Iraq only 4 members would have voted in favor of it. Ronan Bennett, Ten Days to War, The Guardian UK, March 8, 2008 at http://www.guardian.co.uk/world/2008/mar/08/iraq.unitednations…

  98. 98.

    The level of protests in response to the invasion of Iraq prompted one journalist to observe “that there may still be two superpowers on the planet: the United States and the world public opinion.” P. E. Tyler, Threats and Responses: News and Analysis; A New Power in the Streets, The New York Times, 17 February, 2003 at http://www.nytimes.com/2003/02/17/world/threats-and-responses-news-analysis-a-new-po…

  99. 99.

    UN Doc. S/2002/1012 (2002) cited in Teresa Reinhold, “State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9-11” (April 2011) 105 American Journal of International Law 244.

  100. 100.

    Ibidem.

  101. 101.

    Ibidem.

  102. 102.

    Statement by Russian Federation President V.V. Putin, Annex to Letter Dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United nations Addressed to the Secretary-General, UN DOC. S/2002/1012, at 2 (2002), cited in Reinold, ibidem.

  103. 103.

    Though international reaction was constrained, the incident threatened to ignite a regional War involving Colombia, Ecuador and Venezuela and was ultimately resolved diplomatically at a Rio Group meeting later that year. J. Glusing, Saber-Rattling in South America, Speigelonline International, March 4, 2008 at http://www.spiegel.de/international/world/0,1518,539294,00.html (last visited June 30, 2011); Ecuador Seeks to Censure Colombia, BBC News, March 5, 2008 at http://news.bbc.co.uk/2/hi/americas/7278484.stm (last visited June 30, 2011).

  104. 104.

    Iran v. United States, ICJ Rep. 161 [2003] para. 72.

  105. 105.

    Legal Consequences of the Construction of a Wall (Advisory opinion) [2004] ICJ Rep 136, at para 139 (hereinafter The Wall Opinion).

  106. 106.

    DRC v Uganda [2005] ICJ 116 para. 131–135 (hereinafter DRC).

  107. 107.

    Ibidem at para 147.

  108. 108.

    The Wall Opinion, already cited.

  109. 109.

    Ibidem.

  110. 110.

    DRC, already cited, para. 26.

  111. 111.

    G/RES/3314, article 3 (g).

  112. 112.

    Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission, 48th Session, [1996] II (2) International Law Commission Yearbook 17.

  113. 113.

    The States Parties to the Rome Statute at http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 04, 2012).

  114. 114.

    The definition at Kampala specified, “Any of the following acts … shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.” Rome Statute art. 8 bis (2)(inserted by RC/Res. 6 of 11 June 2010).

  115. 115.

    Definition of Aggression, Rome Statute art. 8bis (2)(g).

  116. 116.

    The agreement was subject to limitations imposed under article 15bis and 15ter requiring additional ratification, ability for states parties to opt out and delay of temporal jurisdiction until 1 January 2017.

  117. 117.

    The agreement reached at Kampala, in some ways, exceeds the breadth of the definition of aggression provided for in GA Res 3314 as resolution article 5(2) distinguishes between acts of aggression that create individual criminal liability in the case of a “war of aggression” and just “aggression” which gives rise to international responsibility but not personal liability. The International Criminal Court does not make this distinction.

  118. 118.

    Noam Chomsky, Bin Laden’s Death: Much More to Say, RSN, May 21, 2011 at http://readersupportednews.org/opinion2/277-75/6014-bin-ladens-death-much-more-to-say (last visited May 22, 2011); Y. Dreazen, A. Madhani, M. Ambinder, The Goal was Never to Capture bin Laden, The Atlantic, May 4, 2011 at http://www.theatlamtic.com/politics/print/2011/05/the-goal-was-never-to-capture-bin-laden… (last visited May 22, 2011) quoting former West German Chancellor Helmut Schmidt.

  119. 119.

    Koh, HH, The Lawfulness of the US Operation Against Osama bin Laden, Opino Juris, May 19, 2011 at http://opinojuris.org/2011/05/19/the-lawfulness-of-the-us-operation-against-osama-bin-lad… (last visited on May 22, 2011).

  120. 120.

    Ibidem.

  121. 121.

    Ibidem.

  122. 122.

    Ibidem.

  123. 123.

    Ibidem.

  124. 124.

    McCann v. The United Kingdom, 21 ECHR 97 GC.

  125. 125.

    R. Alford, “More from O’Connell on bin Laden Killing as Peacetime Use of Force,” Opinio Juris, May 4, 2011 at http://opiniojuris.org/2011/05/04/more-from-oconnell-on-bin-laden-killing-as-peacetime-us… (last visited May 22, 2011).

  126. 126.

    Ibidem.

  127. 127.

    See, ‘The Yemen Arab Republic submitted a complaint to the UN Security Council, which on 9 April 1964 passed Resolution 188 condemning reprisals in general as incompatible with the principles of the UN Charter and “deploring” Britain’s military action against Harib.’ Wm Roger Louis and Avi Shlaim (eds), The 1967 Arab-Israeli War Origins and Consequences (Cambridge University Press: New York 2012) 160. In that case “The Security Council did not accept the wider view of anticipatory self-defence against attacks which were not imminent, condemned punitive action, and rejected the plea of self-defence in cases of a proportionate reaction to a threat or use of force...There was a long delay between the initial use of force and the response.” Stanimir A. Alexandrov, Self Defence Against the Use of Force in International Law (Kluwer Law International, The Hague 1996) 170-171.

  128. 128.

    Reinold, “State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9-11”, at 251–252.

  129. 129.

    See S. E. Smith, “Blaming Big Brother: Holding States Accountable for the Devastation of Terrorism,” Oklahoma Law Review 56 (2003): 735.

  130. 130.

    W. M. Reisman, “International Legal Responses to International Terrorism,” Houston Journal of International Law 22 (1999): 3.

  131. 131.

    Dinstein, War Aggression and Self-Defense, already cited.

  132. 132.

    See Advisory Opinion on Certain Expenses of the United Nations (Article17, Paragraph 2, of the Charter), [1962] ICJ Rep. 151, 167.

  133. 133.

    The issue of ICJ authority for judicial review over Security Council resolutions was tangentially raised in the Lockerbie case and has been the subject of extensive scholarship, see B. Martenczuk, “The Security Council, the International Court of Justice and Judicial Review: What Lessons from Lockerbie?,” European Journal of International Law 10 (1999): 517, 532; R. F. Kennedy, “Libya v. United States: The International Court of Justice and the Power of Judicial Review,” Virginia Journal of International Law 33 (1992): 899, 908.

  134. 134.

    D. Akande, “The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?,” International and Comparative Law Quarterly 46 (1997): 309, 322, cited in Y. Dinstein, War Aggression and Self-Defense, already cited.

  135. 135.

    Denotes Afghanistan and Pakistan as a single theater of operation.

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    Mark D. Kielsgard

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  1. , Comparative Legal History, University of Valencia, Avda. de los Naranjos, Valencia, 46071, Spain

    Aniceto Masferrer

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© 2012 Springer Science+Business Media B.V.

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Kielsgard, M.D. (2012). National Self-Defence in the Age of Terrorism: Immediacy and State Attribution. In: Masferrer, A. (eds) Post 9/11 and the State of Permanent Legal Emergency. Ius Gentium: Comparative Perspectives on Law and Justice, vol 14. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4062-4_14

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