The global war against terrorism and the jus ad bellum. The invocation of self-defense in counter terrorism actions

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TRABAJO FIN DE ESTUDIOS / IKASGAIEN AMAIERAKO LANA [PROGRAMA INTERNACONAL EN ADE Y DERECHO]

The Global War Against Terrorism and the jus ad bellum. The invocation of self- defense in counter-terrorism actions

[TÍTULO DEL TRABAJO / LANAREN IZENBURUA]

[Raquel Casales González]

DIRECTOR / ZUZENDARIA [Ana Isabel Aldave Orzaiz]

Pamplona / Iruñea [11 de enero de 2023]

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Abstract

The so-called "Global War Against Terrorism", which emerged after the famous attacks of 11 September 2001 in EEUU, has brought with it a host of practices and discourses that advocate not only making the principles that had hitherto governed Public International Law more flexible or broadening them, but also questioning their usefulness, relevance and validity.

The aim of this paper is to examine the War Against Terrorism in depth, analyzing they key points of its development and the justification of the military interventions from the point of view of International Law. To do so, we will analyze the regulatory framework involved, focusing especially on the “jus ad bellum” and the decisions taken by the international community, specially U.S. during this war.

Key words: Global War Against Terrorism, 11-S, Public International Law, “jus ad bellum”.

Resumen

La denominada “Guerra Global Contra el Terrorismo”, surgida tras los famosos atentados ocurridos el 11 de septiembre de 2001 en EEUU, ha traído consigo un sin fin de prácticas y discursos que abogan no solo por flexibilizar o ampliar los principios que hasta el momento regían el Derecho Internacional Público, sino que llegan a cuestionar la utilidad, relevancia y vigencia del mismo.

El objetivo de este trabajo es profundizar en la Guerra Contra el Terrorismo, analizando los puntos clave de su desarrollo y la justificación de las intervenciones militares desde el punto de vista del Derecho Internacional. su justificación desde el punto de vista del Derecho Internacional. Para ello, analizaremos el marco normativo implicado, centrándonos especialmente en el “jus ad bellum” y en las decisiones tomadas por la Comunidad Internacional, con Estados Unidos a la cabeza, durante esta guerra.

Palabras clave: Guerra Global Contra el Terrorismo, 11-S, Derecho Internacional Público, “jus ad bellum”.

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What is known as American exceptionalism and the ideological conception so deeply rooted in the American people that identifies the U.S. as the leading nation on the world stage and therefore responsible for the future of humanity, has much to do with the - questionable - response of then President George W. Bush.

As was to be expected in the face of such an attack on emblems of both the financial and political model of the United States, Bush's reaction was “commensurate” with the events. He did not hesitate to immediately declare war on Al Qaeda, extending it days later to all terrorists of global reach. Hence the name by which it is called, Global War Against Terrorism. Nor did Bush doubt to declare that "civilization" was at war with evil^2, with all that this implies. Indeed, in March 2003, a U.S.-led coalition invaded Iraq under the pretext of Iraq's alleged possession of weapons of mass destruction and links to Al- Qaeda.

Later on, we will analyze how this declaration of war is far from complying with all the necessary elements to be considered "justified" according to the applicable normative instruments. Not to mention the countless practices carried out that overlooked a number of basic rights inherent to all human beings, and which hardly fit in the regulation of the

"jus in bellum".

It should not be necessary to go into these deviations from the normative framework in depth to expect - at the very least - opposition from both the public and the pundits.

Nevertheless, far from it, this war was carried out and overwhelmingly supported by many sectors of the world's population.

1 Terrorist organization that emerged in Afghanistan as part of the war against the URS invasion, based on Islamic fundamentalism and linked to the emblematic figure of its founder, Bin Laden.

2 Speech by President G.W. Bush, September 20, 2001. Bush, G.W., Address to a Joint Session of Congress and the American People, United States Capitol, Washington, D.C., September 20, 2001.

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How did the United States justify the interventions carried out during this war project?

How did the U.S. Government manage to convince a large part of the population that the invasions and attacks carried out in Iraq and Afghanistan were necessary and legitimate?

The answer has to do with the effective discourse that accompanied this war. The Bush Administration´s use in its favor of such human elements as ideology, theology, psychology or philosophy and the allusion to powerful emotions as a sense of justice and fear, made it possible for a long time for few -or at least not enough- to question the legitimacy of this war.

II. IDENTIFYING ELEMENTS OF THE INITIAL DISCOURSE ³ 1. A just war project

From the outset, the United States has been at pains to present the Global War Against Terrorism as a “just war” project. This “just war” tradition⁴ is not at all innovative⁵ but it has been shown that it remains highly effective.

Despite the fact that -and thanks to Alberico Gentile among others⁶-, with the advent of the Peace of Westphalia and the establishment of the new international order, we seemed to have left behind the medieval just war paradigm and its moral, religious and philosophical judgements, nothing could be further from the truth. Neither the progressive development of the “jus publicum europaeum” nor even the criminalization of the war of aggression in the 1945 U.N. Charter achieved this. The Global War Against Terrorism has brought that the requirement of “just material cause”⁷ is once again in the spotlight

3 This chapter is based on La Guerra Global contra el Terrorismo: un análisis del derecho internacional antes y después del 11-s. A. Aldave Orzaiz, La Guerra Global contra el Terrorismo: un análisis del derecho internacional antes y después del 11-s, Universidad Pública de Navarra, Pamplona, 2017, pp. 269-309.

4 According to D. Rodin: “It is more accurate to talk about the “just war tradition” rather than the “just war theory”, as it includes a large number of diverse yet related positions”. D. Rodin, War and self-defense, Oxford University Press, Oxford, 2005, pp.103-105.

5 In fact, the first war legitimizing theories date back to the Middle Ages. J.T. Johnson states that: “while the deepest roots of this tradition are to be found in the Hebraic and Greco-Roman antecedents to western culture and in early Christian thought, we know it today substantially in the conceptual form that was given just war doctrine in the late middle ages and the early modern period”. J.T Johnson, “Recent strategic developments: a critical overview from a just war perspective”, in Analyse & Kritik, Vol. 9, No. 1-2, 1987, pp. 120–141, p. 121.

6 A. Gentili, De iure belli Libri tres, Oxford, Clarendon Press, 1877, p. 55.

7 R. Campione, “Retorno al Bellum Iustim” in R. Campione & F. Ruschi. (coords), Guerra, Derecho y Seguridad en las Relaciones Internacionales, Valencia, Tirant lo Blanch, 2017, p.199.

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and moral parameters such as "good" or "just" are deliberately mixed with concepts such as "self-defense", "aggression", "human rights" or "terrorism".

While both defensive and humanitarian arguments stand out among these justifications, everything points to (in)security as the new paradigm of just cause for going to war.

However, what is most relevant and "dangerous" to this effect is that the just war doctrine does not only come from the discourse and actions of political leaders, but that several international bodies - including the High-Level Panel on Threats, Challenges and Change⁸, or the International Commission on Intervention and State Sovereignty⁹ – and scholars such as J. Baqués come to internalize and even defend this tradition.

There are many problems inherent in this doctrine, among which the impossible determination of the true origin of justice or its intrinsic abusive nature, stand out. The drawbacks to contemplating a just cause for waging war are also remarkable. However attractive it may seem at first glance, defining terms such as just, good or moral, and categorizing an infinite number of diverse and controversial situations as such, is to all intents and purposes subjective and problematic.

In other words, the Global War Against Terrorism has brought with it a step backwards when it comes to contemplating the war and its regulation. The discourse used by the authorities of the United States alluding to a just war implies leaving behind all the advances achieved in the 20th century with the positive regulation of international law and the legal grounds for using armed force¹⁰.

2. The representation of the enemy: Manichaeism and religion.

While it is true that in any war there are two opposing sides, the discourse carried out by the Bush Administration went one step further. It reflected a clear and “powerful”

8 The Report entitled, A More Secure World: Our Shared Responsibility, alludes to terms such as "moral reasons", "good reasons, both moral and legal", and "matters of conscience and common sense" for using force. High-level panel on threats, challenges and change, U.N, A More Secure World: Our Shared Responsibility, 2 December, 2004.

9 The Report entitled, The Responsibility to Protect, reproduces some criteria for justifying armed interventions that are highly reminiscent of the medieval doctrine of just war: competent authority, just cause, right intention, extreme ratio, proportionality of means and reasonable expectation of success.

International Development Research Centre, ICISS, Responsibility to Protect, Ottawa, 2001.

10 Such as The Hague Peace Conferences, the League of Nations Pact, the Geneva Protocol for the Peaceful Settlement of Disputes or the General War Renouncement Pact.

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Manichean representation of the enemy, going so far as to call States such as Iraq, Iran and North Korea and their terrorist allies “the axis of evil”¹¹. Consequently, it ended up transmitting to the rest of the world a vision of "Either with the United States or for terrorism", that divided the world into two, the good side and the terrorists.

Furthermore, and while it is not particularly novel for U.S. political leaders to allude to religion to achieve their goals, Bush's use of religious language again went beyond what has been seen so far. In fact, there are numerous speeches in which the President Bush made reference to God and the mission of men on earth. Notable among them are his statements that "God is not neutral"¹² and that "the freedom we cherish is not America's gift to the world. It is God's gift to humanity"¹³.

All this, coupled with the aforementioned American exceptionalism, conveyed the view that the United States was not a conqueror, but a liberator. Even so, far from providing security and guaranteeing peace, the mixture of these powerful elements eventually led to disastrous consequences, overstepping previously unbreakable boundaries, such as the identification of terrorism with Islam.

3. A new theory: security and “securitization”

The consequences of the 9/11 attacks did not only hurt the American people in terms of casualties or damage caused. It surpassed that. It showed that the United States was not an unshakable giant, but that on the contrary, it had been attacked tremendously not only without the use of the latest weapons technology, but also without the need to carry out an excessively complex plan.

The vulnerability they conveyed outwardly was not everything, the American people themselves felt threatened and outraged, so it was an easy task for the Bush Administration to convince much of the American people -and of the world at large- that

11 Bush, in his State of the Union address on 29 January 2002, applied this label to States that supported terrorism, which he initially focused on Iran, Iraq and North Korea. Speech by President G.W. Bush, January 29, 2002. Bush, G.W., The President's State of the Union Address, United States Capitol, Washington, D.C., January 29, 2002.

12 Speech by President G.W. Bush, September 20, 2001. Bush, G.W., Address to a Joint Session of Congress and the American People, United States Capitol, Washington, D.C., September 20, 2001.

13 Speech by President G.W. Bush, January 28, 2003. Bush, G.W., The President's State of the Union Address, United States Capitol, Washington, D.C., January 28, 2003.

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the only way to ensure national and international security was the war. They were facing the greatest security problem of our time: terrorism.

It cannot be overlooked the fact that these attacks are taking place at the height of the Macro-Securitization theory. This postulate, developed by the Copenhagen school in the 2000s¹⁴, moves away from objective and subjective conceptions of security -focused on the absence of concrete threats or perceptions of being attacked- to develop a "discursive"

conception of it. Thus, his main argument is that threats and insecurity in general are social constructions derived from our knowledge and the discourses that represent them as such, an argument that, as we can see, fits perfectly with the discourse that has always accompanied the GWAT.

As previously discussed, particularly sensitive dimensions of the individual, such as fear or the desire to live free from attack, are used in this war to identify an issue and qualify it as a threat, premise underlying securitization, and which shows that it is an existing factor in the GWAT. Consequently, in the aftermath of 9/11, this idea gained popularity, and today a number of theories have been developed around this

“Securitization” concept ^15.

What may at first appear to be simply a new understanding of security, has a dangerous implication. The reason is that those who push for securitization, by identifying an event as a threat, claim responsibility for putting an end to it. To do so, and understanding this threat as "extraordinary" it is required the use of exceptional measures, such as permanent States of emergency or the hyper-militarization of the fight against terrorism.

As if this were not “dangerous” enough, this new security vision helps to activate psychological processes in society which, together with the elements analyzed above,

14 Although O. Wæver began working on this theory in the late 1980s, and made some contributions in the early 1990s, it was not until the publication of Security: a new framework of analysis, which he produced together with B. Buzan and J. De Wilde, that this theory was presented in its classic formulation and became widely disseminated in the discipline. O. Wæver, B. Buzan, J. De Wilde, Security: a new framework of analysis, USA, Lynne Rienner Publishers, 1998.

15 As set out by F. Verdes-Montenegro Escánez in his paper “Securitization: open research agendas for the study of security” Such has been the proliferation of discussions on securitization that today some authors even refer to it in the plural to allude to the set of theories that fall under the same denomination.

In this paper, on the other hand, we will focus on the research agendas that are currently open and therefore, while taking into account the ontological and epistemological differences assumed by the different theories, we will pay special attention to clarifying what kind of questions derive from each of the proposed agendas.

F. Verdes-Montenegro Escánez, “Securitización: agendas de investigación abiertas para el estudio de la seguridad” in Relaciones Internacionales, Vol. 29, June 2015.

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create a very radical positioning between the parties -Civilization vs. terrorism-. Paving therefore the way for violations of norms such as the prohibition of the use of force or the guarantee of individual rights and freedoms to appear admissible under the justification of "security".

4. Fear as a common thread

All of the above-mentioned elements have been part of numerous legitimizing strategies throughout our history. Therefore, they cannot be considered on their own as decisive for the effectiveness of the Global War Against Terrorism legitimizing strategy.

In fact, their individual use in the discourse of the GWAT would have been ineffective had they not always been accompanied by a fourth element: fear.

The use of this powerful element can be seen in every speech, every action and every argument. Thus, although it is sometimes difficult to discern, it is found in each of the three characterizing variables previously mentioned. Fear is the common thread; every movement made by the governments legitimizing the Global War Against Terrorism is accompanied by a heightening of fear. It goes without saying that no unfounded fear was being alluded to. Quite simply, the strategy used was to exploit the fear that the attacks in the United States - and later in Brussels, Berlin, London, Paris and Barcelona - had caused in the population in order to create a sense of the appropriateness of the U.S.

response. As Chomsky states¹⁶, Bush's statement that Americans "refuse to live in fear"¹⁷ was precisely the opposite of the goal and consequences of the propaganda and homeland

"security" policies instituted by his administration.

We refer to the facts when we state that the Bush administration, thanks in large part to fear, succeeded in making men like Saddam Hussein¹⁸ repudiated by Americans. It went so far as to convince a large part of the American population that Iraq was not only responsible for the 9/11 attacks, but posed a credible and imminent threat to global security. There are many experts who, like Chomsky, claim that this highly effective

16 N. Chomsky,"Truths and Myths about the Invasion of Iraq", in Socialist Register, Vol. 40, 2004, pp.

165-179, p. 173.

17 Speech by President G.W Bush, October 7, 2002. Bush, G.W., Remarks by the President on Iraq, Cincinnati Museum Center, Cincinnati, Ohio, October 7, 2002.

18 President of the Republic of Iraq at the time of the invasion (1979-2003) who was captured on 13 December 2003 by U.S. forces in the so-called Operation Red Dawn, accused of crimes against humanity related to the murder of 148 Iraqi Shiites in 1982.

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propaganda attack succeeded in "alienating the American public from the spectrum of world opinion"¹⁹. However, he did not hesitate to assert that, were it not for the panic factor, “the country's opposition would probably not be much different from the overall average, which was overwhelming”²⁰.

III. THE LAW IN THE FACE OF NEW TERRORISM

The strategy followed by the U.S. to legitimize its discourse is clear. However, focusing on the legality itself, what do the applicable rules say about it? What international laws should have been taken into account before responding to such attacks?

1. Public international law as a legal order

It is highly remarkable that International law has been criticized on numerous occasions throughout its history on grounds such as uselessness, ineffectiveness or obsolescence. However, as we will see throughout this paper, this has been clearly enhanced by the Global War Against Terrorism.

Its peculiarities in relation to domestic legal systems are evident, as Public International Law is highly dependent on the social and historical circumstances of the global landscape. Indeed, the major legal developments in this area have developed in response to global events²¹. However, the fact that Public International Law is subject to constant development by States and can therefore be said, as Rodriguez Carrión put it, to be "in constant search of its fullness”²²is not sufficient reason to question its validity.

Consequently, this paper starts from the premise that international law is a "positive" law that is constituted as a legal order by the prohibition of war contained in the 1945 U.N.

Charter.

2. International Legal Framework

As we have just noted, the United Nations Charter, which was established with the aim of avoiding the interventionist tendency of sovereign States that had characterized the international order up to that time, provides for the principle of the prohibition of

19 N. Chomsky, op. cit., p.174.

20 “Ibidem.”

21 For instance, The United Nations Charter was created in 1945 in the aftermath of the two World Wars, with the aim of ensuring peaceful coexistence between States.

22 A.J. Rodríguez Carrión, Lecciones de Derecho Internacional Público, Madrid, Tecnos, 2009, p. 65.

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force. In particular, Article 2(4) states the following “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations”. Both, the principle of prohibition of the use of force and the principle of non-intervention are understood by the doctrine as the basis of the “jus ad bellum”²³.

This area of law, which can also be defined as the “jus” to go to war, is concerned with defining the conditions under which States may resort to the use of force. To this end, it is necessary to highlight that the United Nations Charter itself completes the regulation on the "jus ad bellum" by incorporating two cases in which the use of force is exceptionally admissible.

The first, -and most controversial, since the limits of it have been the subject of much debate and discussion- is recognized in Article 51, by stating that it is permissible to use force in self-defense. In particular, it stablishes the following:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

The second one -which once again highlights the decisive role of the Security Council, despite been conditioned by the veto right of one of its members- refers to those acts or

23However, this has not always been the case. As we have already mentioned, there was a change in the law after the end of the world wars. As S. Pietropaoli states, in the past, jus ad bellum was defined as the right to use armed force, and thus a right to which any political entity worthy of being called a "State" was entitled. However, after the two world wars, the old "right to wage war" turned into its opposite and war became a crime. From being jus ad bellum it became jus contra bellum, i.e. the law that - at last - prohibited the arbitrary use of force in international relations.S. Pietropaoli, “¿Jus contra bellum? Consideraciones sobre legítima defensa y uso de la fuerza en la época de la guerra global”, in R. Campione & F. Ruschi.

(coords), Guerra, Derecho y Seguridad en las Relaciones Internacionales, Valencia, Tirant lo Blanch, 2017, pp. 169-170.

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measures authorized by the Security Council following a determination of a breach of national peace and security.

To this end, we should take into account both, articles 39 and 42 of the Charter which specifically state the following “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”^24, and “should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”²⁵.

At first glance, it may seem like a simple and straightforward regulation. In fact, it may even appear that the exceptions to the prohibition of the use of force are perfectly clear-cut and should therefore be uncontroversial. However -and unfortunately- the reality is quite different. The need for States to justify the use of force and the consequent obligation to frame this use in one of the two situations previously mentioned, has provoked a number of discourses - perfectly measured, well-considered and chosen - that seek to evade the existing legal regime by appearing to respect it. This was the strategy - how not - followed by the U.S. government.

3. The use of force and the right to self-defense.

3.1 Use of force, armed attack and unlawful aggression

As is easily observable, while Article 2(4) of the U.N. Charter refers to the concept of "use of force", article 51 allows for self-defense in cases of “armed attack”. As much as there is a tendency to overlook it these days, from this different wording, it can be clearly deduced that “use of force” and “armed attack” cannot be regarded as equal concepts.

Consequently, while the “use of force” constitutes an essential part of an “armed attack”, there are certain characteristics that the former has to meet in order to be

24 Article 39 UN Charter.

25 Article 41 UN Charter.

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considered the latter. A kind of "qualified use of force" is thus created, existing a “force gap” between the two concepts, based primarily on its scale, gravity and intensity.

Many authors have endeavored to define the differences between these two notions, including Brownlie²⁶,which advocated that a certain degree of seriousness and gravity is required for a use of force to be considered an “armed attack”. In fact, the relationship between these two basic concepts has been mainly addressed by the International Court of Justice -hereafter ICJ-. This body, in the Nicaragua case²⁷, has drawn a distinction between “most grave forms of use of force” -and therefore constitutive of being defined as an armed attack- and “other less grave forms” -when the acts referred to involve a threat of use of force, but not amounting to an armed attack-²⁸.

With regard to the concept of “aggression”, set out in article 39, it is defined by the U.N. General Assembly Resolution 3314 (XXIX) of 14 December 1974²⁹ as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”. Although its resemblance to article 2(4) of the U.N. Charter is evident, at no point is there any reference to a threat of force, being therefore understood that an effective use of armed force is required.

The relationship between the aforementioned concept and the “use of force” is specified in article 2 of the same Resolution, which states that “the first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression”. However, the General Assembly refers again to the gravity parameter, stating that “the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity”. Subsequently, the

26 I. Brownlie, International Law and the Use of Force between States. Oxford University Press, Oxford, 1963, p.366.

27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports (1984), paragraph. 191. Hereafter, Nicaragua case.

28 Specifically, in the Nicaragua case, it is excluded as armed attacks the assistance to rebels in the form of the supply of arms or logistical or other support.

29 G.A. Res. 3314, U.N. Doc. G/RES/3314, Dec. 14, 1974, Annex, article 3. e).

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difference between use of force and act of aggression, is again clearly marked by the severity factor.

It therefore only remains to analyze the relationship between the terms “aggression”

and “armed attack”. These notions have much in common. In fact, the aforementioned Resolution 3314 on the definition of aggression has been used on several occasions to elaborate and concretize the notion of armed attack³⁰. Besides, both the General Assembly and the ICJ consider it to be the most serious and grave representation of the use of force, stating the former in the preamble of the Resolution that “aggression is the most serious and dangerous form of the illegal use of force” and the latter that the gravest forms of the use of force will be considered as armed attacks³¹. Hence, the doctrine has mostly agreed to this effect that an armed attack necessarily constitutes an aggression.

Continuing with the analysis of “aggression”, it should also be highlighted that in the article 3 of the Resolution 3314, a number of specific acts are listed, which, irrespective of whether war has been declared or not, will be qualify as acts of aggression³². Accordingly, it can be concluded that one of the basis of a legitimate self-defense is the existence of an unlawful aggression, embodied in an armed attack.

30 Specifically, in the cases Nicaragua; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J Reports (2005). Hereafter, Armed Activities case; and Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement I.C.J Reports (1996).

Hereafter Oil platforms case.

31 Nicaragua case, paragraph 191.

32 (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

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With regard to the authorship of the armed attack, paragraph c of Article 3 is particularly noteworthy, as it includes "indirect aggression" among the acts of aggression, thus opening the door to recognizing any sufficiently serious aggression as an armed attack, regardless of whether it is perpetrated by a State, a group or a gang.

This precept was materialized in the Nicaragua case, by the ICJ stating that “an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein"³³.

As can be observed, the traditional tendency of States has always been to justify self- defense only in those cases in which the armed attack had been committed by or attributable to a State -as confirmed by the ICJ, “by or on behalf of a State”-. This body, as well as respecting this traditional view in the Nicaragua case, introduced two news criteria for determining whether an armed attack could be attributable to a State.

The first and less popular, known as “strict control test” or “agency test”, is mainly based on the relationship between the correlative elements of dependence -on the part of the group- and control -by the State to which responsibility is to be attributed-. This means that, in order to equate a group of individuals with an organ of a State -or consider it a de facto organ of the corresponding State-, a strong relationship of dependence and control -bordering on complete dependence- is required ³⁴. To analyze this reliance, the ICJ takes into account not only the actual exercise of control, but also the potential control that the State can have over the group. Besides, it is established that the control must extent to

“all fields” of the group´s activity.

It can be easily deduced that, due to the amount of evidence that must be proven - actual, potential and extensive control-, it is very difficult for an applicant State to satisfy this high threshold. This restrictive and demanding interpretation, is based on both, the

34 S. Talmon, “The responsibility of outside powers for the acts of secessionist entities” in International and Comparative Law Quarterly, Vol. 58, 2009, pp. 497-498.

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respect of one of the general principles of international law, which declares that States are only responsible for their own conduct and the fact that the equation with a State organ involves the holding of responsibility also for ultra vires acts³⁵.

The second of the control tests introduced by the ICJ is the so-called "effective control test". Through this mechanism, this institution examines the responsibility of a State for certain acts committed by a group, thus narrowing the scope for international responsibility. Precisely, it follows that, in order to hold a State liable for the actions committed by a group of individuals within the territory of another State, have to be in principle proved, that “the State had effective control of the military or paramilitary operations in the course of which the alleged violations are committed³⁶”.

Therefore, the main difference between this test and the one explained above lies in the fact that the liability being assessed in the “effective control” evaluation, far from being a general responsibility, is only for those acts over which the State has effective control. However, although the reduction in evidence needed to prove it is notorious, it is still a demanding test, as evidence of control in relation to the specific acts at issue should also be provided.

As the court has made clear, the relationship between these two tests is subsidiary.

The first to be applied is the “strict control test” since what must first be determined is whether or not individuals can be considered de facto organs. Collaterally, and in the event of a negative result in the first test, the “effective control test” should be applied, in order to decide if the specific operations at stake were done under the State’s direction or control ³⁷.

Both mechanisms introduced by the ICJ in the Nicaragua case to help resolve disputes regarding responsibility for armed attacks have been corroborated by subsequent jurisprudence, as in the Armed Activities case³⁸ or the Genocide Convention case³⁹ and

35 Article 7 of The Responsibility of States for Internationally Wrongful Acts. UN Commission at its 53^rd session 2001, U.N, The Responsibility of States for Internationally Wrongful Acts, 2001.

37 Application of the Convention on the prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports (2007), paragraphs 392-393. Hereafter, Genocide Convention case.

38 Armed Activities case, paragraph. 168.

39 Genocide Convention case, paragraph 43.

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by the International Law Commission⁴⁰, affirming the latter that “the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.

However, these tests have not been supported by all International courts and organisms. In fact, the International Criminal Tribunal for the former Yugoslavia – hereafter, ICTY- in the case known as Tadic case⁴¹ affirmed that the Niacaragua case is not persuasive, mainly due to -in its own words- its inconsistency with the logic of State responsibility and its contradiction with judicial and State practice.

They therefore provide for a new test, also known as “overall control test” which consists mainly on proving that “the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity⁴²” consequently lowering the threshold of control required for attributing responsibility for States.

Nonetheless, the ICJ´s response to this “effective control test” has not been long in coming, strongly criticizing the lowering of the threshold of control that this test entails.

In particular, the court stated that “the overall control test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for his own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. [...]

the “overall control” test is unsuitable, for it stretches too far, almost to breaking point the conduct of a State’s organs and its international responsibility⁴³”, basing its reasoning mainly on the lack of requirement for specific instructions by States to individuals in order to assert the responsibility of the former.

The European Court of Human Rights -ECtHR- in Loizidou v Turkey case⁴⁴ also developed its own control test, so called “effective overall control test”, which lowers

40 Article 8 of The Responsibility of States for Internationally Wrongful Acts. UN Commission at its 53^rd session 2001, U.N, The Responsibility of States for Internationally Wrongful Acts, 2001.

41 Prosecutor v Tádic case (IT- 94-1-A), Appeals Chamber of ICTY, Judgment of 15 July 1999. Hereafter, Tádic case.

42 Tádic case, paragraph 131.

43 Genocide Convention case, paragraph 406.

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even more the threshold required for the attribution of State responsibility. Precisely, and despite the fact that the requirements are not listed exactly, the court states that it is not necessary to justify a detailed control, thus disappearing any reference to the ability to control or direct the group. Besides, it is worth noting that the test introduced by this court -in contrast to those previously analyzed- does not refer to control over the individuals or groups whose acts are attributed to a State but to the territory in which those individuals are and where the acts have been committed. Therefore, the stringency of the “strict control test” introduced by the ICJ was diminished, since a general and diffuse control over the territory does not necessarily involve a relevant level of control of the group activities⁴⁵.

Regarding this last test, it should be highlighted the obvious affectation to the principle of holding the State only responsible for its conduct. To this end, it is useful to recall that “the attribution of conduct to the State as a subject of international law is based on criteria determined by international law and not on the mere recognition of a link of factual causality⁴⁶”, and for this purpose reference should be made to the ILC Articles on Responsibility of States for Internationally Wrongful Acts, specifically to articles 4 to 11, that should be taken as numerous clausus.

Therefore, while it is true that the aforementioned tests are used in controversial cases to help determine State responsibility, these ILC precepts must always be respected by them. And in the case of the last test, this is not fulfilled.

3.3 Reactive and Anticipatory self-defense.

Since the adoption of the U.N. Charter, there has been a major debate on whether anticipatory self-defense would be admissible under article 51. However, the literal wording of the provision is once again very clear on this point, by allowing self-defense only "if an armed attack occurs”, thus limiting the self-defense of States only in the face

44 Loizidou v Turkey, ECTHR, Judgement, Application no 15318/89, 18 December 1996.

45 S. Talmon claims, “the ECtHR’s test is not used in lieu of the ICJ’s “effective control” test but replaces its “strict control test” [...] is used as a basis for equating the authorities of the secessionist entity with de facto State organs or “agents” of the outside power for whose acts it may generally be held responsible”.

S. Talmon, “The responsibility of outside powers for the acts of secessionist entities” in International and Comparative Law Quarterly, Vol. 58, 2009, pp. 493-517, p.510.

46 J. Crawford, The International Law commission’s articles on State responsibility: introduction, text and commentaries, Cambridge University Press, Cambridge, 2002, p. 91.

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of an armed attack they have already suffered -reactive self-defense⁴⁷-. Consequently, much of the doctrine has opted for the positivist theory, restricting the right to self-defense to the reaction to armed attacks.

It is certain that part of this doctrine state that the introduction of the adjective

"inherent" in article 51 served to indicate that not only U.N. members can defend themselves against armed attack⁴⁸, while another part of the doctrine and the ICJ itself interpret the qualifier “inherent” as a reference to existing customary law. However, all of them agree that the U.N. Charter constituted a new right to self-defense, thus replacing the customary right of self-defense -if it can be so called- that States already possessed before the creation of the United Nations⁴⁹.

Indeed, the leading Spanish representative of this school of thought, which is Gutierrez Espada, states that what the U.N. Charter allows for is the possibility for States to use armed force as a defensive response to an armed attack in actu by another State, as a "response to a genuine and prior armed attack"⁵⁰.

The supporters of this doctrine in general and this author specifically, based its reasoning not only in the literal wording of the article, but also in the United Nations Conference on International Organization -UNCIO- and the usual meaning given to the terms of Article 51 of the Charter⁵¹, all of which point to the conclusion that self-defense should only be admitted in the face of an armed attack in progress. In fact, it should not be forgotten that the system embodied in the Charter is expressly designed to prevent war and maintain peace, for this reason, the use of force must at all times be interpreted restrictively.

However, waiting to be attacked before responding implies assuming certain consequences that some countries - such as the U.S. - are unwilling to assume. Thus, in

47 M. Bothe,“Terrorism and the Legality of Pre-emptive Force”, in European Journal of International Law, Vol. 14, No. 2, 2003 pp. 229-230; I. Brownlie,op. cit., p. 275.

48 N. Ronzitti, Diritto internazionale dei conflitti armati, Giappichelli Editore, Torino, 1998, p. 32.

49 I. Brownlie,op. cit., p. 310.

50 C. Gutiérrez espada, El uso de la fuerza y el Derecho internacional después de la descolonización, Valladolid, 1988 pp.14-15.

51 C. Gutiérrez Espada, “El ‘uso de la fuerza’ en los informes del Grupo de Alto nivel (2004), del Secretario General (2005) y, a la postre, en el documento final de la cumbre de Jefes de Estado y de Gobierno (naciones unidas, nueva York, septiembre de 2005)”, in Revista Unisci, 2006, vol. 10, p. 29.

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recent years, a new school of thought has emerged, advocating a more extensive right to self-defense.

In particular, supporters of this doctrine assert that the regulation in article 51 of the Charter of an inherent right to self-defense does not imply the limitation, let alone the replacement of the pre-Charter customary law, which is an intrinsic and inherent right of each State.

Therefore, according to the authors that support this legal theory, U.N. Charter would not need to be respected with regard to the regulation of self-defense, as the legal regime on self-defense developed therein -restrictive self-defense- is seen as a possibility rather than a requirement. Consequently, the fact that there is an armed attack is one of the legitimizing facts for the use of self-defense, but not the only one, as for example, it is also lawful the armed response to the threat of military aggression ⁵². Therefore, according to this theory and on the basis of customary law, States could engage in anticipatory self-defense, without the need to wait until they are actually attacked.

Nevertheless, this argument is easily dismantled. Firstly, because what the authors call pre-U.N. Charter customary law is in fact an arbitrary use of force by States that lacked any legal limitation or standard ⁵³. Secondly, because, as mentioned above, the literal wording of the Charter is clear, and the fact of contemplating the customary origin of a right should not imply - and in fact does not imply - the elaboration of a new, more restricted right, the limits of which are expressly positivized in the said article ⁵⁴. And finally, because the ICJ has stated on several occasions that the right to self-defense is subject to the fact that the State invoking it has been the victim of an armed attack⁵⁵.

As we will see later -and unfortunately- in the aftermath of 9/11 and due to the progress of military technology, the sophistication of the instruments of war and the new modalities of warfare, there are many who advocate an extension of the system of self- defense contemplated in the Charter, including in some way the anticipatory self-defense.

52 T. Treves,Diritto internazionale: Problemi fondamentali, Giuffrè, Milano, 2005, p. 523.

53E. Jimenez de Aréchaga, “International Law in the past third of a century – General Course of Public International Law” in Hague Recueil, Vol. 159, 1789-1 p.9.

54 I. Brownlie,op. cit., p. 310.

55 Nicaragua case, paragraphs 194 y 195; Oil Platforms Case paragraph 161.

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As a rule, there are three main types of anticipatory self-defense: interceptive, preemptive and preventive.

The first, and closest to the self-defense contained in the U.N. Charter, stands for allowing an armed response by a State aimed at intercepting the attack it is about to undergo, only in those cases where the attack is manifestly and objectively imminent and unavoidable ⁵⁶. This type of anticipatory self-defense, although may apparently seem to be a slight extension of the restrictive interpretation explained above, is still in breach of the Charter as hitherto understood, since prior to the GWAT, such an interpretation had not been used.

However, this is increasingly accepted by the doctrine, considering that this use of force -by requiring a clear and convincing evidence- outside the limits of the Charter in that case is lawful and justified ⁵⁷. The reason is mostly influenced by the increasing refusal for States to wait for an attack to occur, especially after 9/11 and the discourse addressed to the population.

Even so, this “measured” concession to the traditional system of reactive self-defense seems not to be enough for some, and based on the “ineffectiveness” of reactive self- defense, and on the need to update the legal regime of the U.N. Charter in line with recent events, the pre-emptive self-defense has recently emerged. The difference between interceptive self-defense and pre-emptive self-defense is subtle but tremendously meaningful, with the latter being triggered by an imminent threat of armed attack.

The defenders of this broad concept continue to base their reasoning on the allusion to the “inherent right”, arguing that such a mention demonstrates that the framers of the Charter had in mind the earlier and broader customary right of self-defense⁵⁸, which is connatural to every State and cannot be limited by positive international law.

Surprisingly, there are many bodies and leading lights -such as Bermejo García⁵⁹- who advocate the assumption of pre-emptive self-defense within article 51. Even the

56 O. Corten,The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Oxford, Hart Publishing, 2012, pp. 411-414.

57 R. Normand, Tearing up the Rules: The Illegality of Invading Iraq, New York, Center for Economic and Social Rights, 2003, p. 6.

58 J.L. Brierly,The Law of Nations: An Introduction to the International Law of Peace, Oxford, Clarendon Press, 6th edition, 1963, p. 419.

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U.N., in the report of the High-Level Panel, A More Secure World: Our Shared Responsibility, acknowledges in some way such an expansion by stating that “However, a threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real”⁶⁰.

This is just one more example of how the GWAT has dynamited the foundations of international law, therefore creating non-unanimous, contradictory and changing positions in the doctrine⁶¹.

Finally, it is worth noting that this doctrine of legitimate self-defense in the broad sense -pre-emptive self-defense- was once again insufficient to justify certain actions on the part of States, and therefore, after 9/11 and based on the increase in terrorism and weapons of mass destruction, and the lack of credibility of the U.N. collective security system, a new type of self-defense, known as preventive self-defense, has arisen.

3.4 Requirements for self-defense. The Caroline case.

Further elaborating on this concept of self-defense, it should be highlighted the great importance of the Caroline case. In it, the correspondent American Secretary of State set out a series of premises had to be met for an armed attack to be considered legitimate self-defense, which were accepted by the British authorities, and which has been categorized by some as customary international law. In reality, and without wishing to belittle its importance, this is not entirely correct, since the court itself has stated that “the mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as such

59 R. Bermejo García, El marco jurídico internacional en materia de uso de la fuerza: ambigüedades y límites, Facultad de derecho de Universidad de Navarra, Civitas S.A., 1993.

60 High-level panel on threats, challenges and change, U.N, A More Secure World: Our Shared Responsibility, 2 December, 2004, paragraph. 188.

61 In fact, C. Gutierrez Espada has changed in recent years his opinion on preemptive self-defense, stating that "There is no one more blind than he who does not want to see that reality changes and that it is not good for legal concepts to become petrified and live their own lives disconnected from the real world".C.

Gutiérrez Espada & M.J Cervell Hortal, “La prohibición del uso de la fuerza en la sentencia de la CIJ de 19 de diciembre de 2005 (asunto sobre las actividades armadas en el territorio del Congo (República Democrática del Congo c. Uganda)”, in Revista Española de Derecho Internacional, Vol. 58 No.1, 2006, pp. 239-256.

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applicable to those States”⁶². Be that as it may, it is undeniably important in the field of self-defense, and we could not fail to analyze it.

Also known as Webster´s formula, this doctrine was characterized by two main aspects: necessity and proportionality. And, whereas it established that necessity of self- defense was “instant, overwhelming, leaving no choice of means, and no moment of deliberation”, proportionality was defined as an adequate proportionality of the response in relation to the threat.

Logically, many of the requirements that justified legitimate self-defense have become obsolete or meaningless, such as for example the one that alludes to “no moment of deliberation” -as time must be spent identifying the terrorist group and their location and determining whether a State has supported the terrorists and their actions-, however, this is not to say that that the need for immediacy should disappear altogether, as too long a wait for a response would somewhat undermine the deeper meaning of self-defense.

Thus, a total lack of immediacy may mean that the response is seen as punitive rather than defensive⁶³.

Nonetheless, this does not imply that the Caroline case serve as justification for anticipatory self-defense, and so affirm some experts “this repurposing of the Caroline in discussions of anticipatory self-defense, is astonishing”, as “is most easily viewed as an effort to degrade a weeks-old attack and its expansion, rather than as an attempt to forestall the first blows of a not-yet mounted assault”⁶⁴.

IV. GLOBAL WAR AGAINST TERRORISM AND ITS JUSTIFICATION UNDER INTERNATIONAL LAW

Having analyzed the moral and social factors that accompanied the Global War Against Terrorism -especially in its early days-, and being clear on the fundamental legal concepts surrounding self-defense and the use of force, we will now focus on the U.S.

action -accompanied in recent years by interventions from the European powers- from the point of view of legality and law.

63 E. P. J. Myjer & N.D. White,“The Twin Towers Attack: An Unlimited Right to Self Defense?” in Conflict & security law, Vol. 7, No. 1, 2002, pp. 5-17.

64 C. Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War, Irwin Law, 2018, p.227-228.

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1. Military interventions in response to the 9/11 attacks and their categorization as "self-defense".

While we referred in the introduction to the "questionable" U.S. response to the 9/11 attacks, we did not specify what it consisted of. Keeping in mind that it is not our task to recount the events historically, it would be useful -in order to understand how the United States attempted to frame the actions carried out under the legal regime described above- to analyze how this use of force was materialized.

President Bush's declaration of the War Against Terrorism was accompanied by two military interventions, first in Afghanistan (October 2001) and then in Iraq (March 2003).

The arguments used in each of them to justify the use of armed force were not only different, but at times shifting, situation that clearly reflects the difficulties that U.S.

authorities were encountering in not breaching the law when declaring military operations.

1.1 Operation Enduring Freedom

1.1.1 The issue of authorship

In particular, “Operation Enduring Freedom”, deployed by the U.S. in Afghanistan, was presented as an act of self-defense in response to the 9/11 attacks. However, the categorization of such an act as self-defense⁶⁵ is questionable to say the least. This operation had its beginnings on October 7, 2001, when both, U.S and British forces, started up its air campaign.

Something to keep in mind when analyzing this operation, is that, as much as the United States would insist on claiming that they were exercising its inherent right of self- defense, the Security Council at no point throughout its Resolutions adopted in the aftermath of 9/11⁶⁶ mentions Afghanistan or authorizes the use of force against this country in response to the attacks. And, the same applies to the General Assembly Resolution⁶⁷, which merely condemns the 9/11 attacks.

65 Letter Dated 7 October 2001 from John D. Negroponte the Permanent Representative

of the United States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2001/946, Oct. 7, 2001.

66 S.C. Res. 1368, U.N. Doc. S/RES/1368, Sept. 12, 2001; S.C. Res. 1373, U.N. Doc. S/RES/1373, Sept.

28, 2001.

67 Condemnation of Terrorist Attacks in the United States of America, G.A. Res. 56/1, U.N.

Doc. A/RES/56/1, July 12, 2001.

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Overlooking this, the U.S. government tried to justify such armed response in paragraph g of the Resolution 3314, which, as already suggested, specifies that “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein” will be defined as an act of aggression.

However, and taking into account that the 9/11 attacks can be indeed considered as an armed attack in terms of their content, it is difficult to impute their authorship to the State of Afghanistan.

Precisely, at the time of the U.S. response, Afghanistan was in the midst of a civil war and its territory was largely controlled by the Taliban⁶⁸. This religious group, who had been respected for decades by the U.S. and some Western countries, especially for their fight against the Soviet Union, was put in the spotlight after the 9/11, blaming the attacks on them.

The first issue that should be clarified when analyzing the situation is whether the Taliban regime be considered capable of committing attacks against other countries. The fact that Afghanistan qualifies as a State is beyond dispute, not only for being recognized as such by the international community, but also for being an established member of the U.N.

Nonetheless, determine whether the Taliban authorities were capable of being classified as the Afghani government is a more complex issue, especially considering that their authority was recognized only by three States: Pakistan, Saudi Arabia and United Arab Emirates. However, taking into consideration the Declarative Theory of Statehood⁶⁹ -ratified by the U.S and widely recognized in international law- what is important here is effective control over territory and sovereignty, not recognition as an official government.

68 S. Tanner, Afghanistan: a military history from alexander the great to the fall of the Taliban, Capo Press, 2009, pp. 271.

69 According to this theory, an entity becomes a State as soon as it meets the minimal criteria -a defined territory, a permanent population, a government and a capacity to enter into relations with other States- for statehood. Therefore, recognition by other States is purely “declaratory”. This model was most famously expressed in the 1933 Montevideo Convention. H. Lauterpacht, Recognition in International Law, Cambridge University Press, 1947, p. 419.

The global war against terrorism and the jus ad bellum. The invocation of self-defense in counter terrorism actions

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