The Anticipatory Self Defence Of The Usa Against Terrorists International Law Essay

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Introduction

The United States of America has suffered various terrorist actions over the last three decades [1] . A more recent issue and more important event is the September 11 attack or (9/11), which has raised many issues in the area of international law because the U.S.A and its allies have started their campaign in the 'War on Terror'. This campaign has been considered by the US as a case of war, which includes military force and, as the UK government has also stated, political and financial measures. [2] The U.S.A has justified the war on terror as being in self-defense, a contention which has raised many controversial points about the right of self-defense. There are many arguments about the use of force based upon the right of self- defense; the con argument relies on the Nicaragua case [3] and Article 51 of the UN Charter [4] , and does not justify the use of force in the war on terror because that it may violate the Geneva Conventions regarding the peace and the sovereignty of states [5] . Whereas the pro argument for exercising the right of anticipatory self-defense relies on the Caroline case [6] and the weakness of the international law, and thereby attempts to justify the use of force in the war on terror. However, this paper will attempt to find the connection between the pro and con arguments to figure out the legality of the war on terror by examining the two sides' justifications - such as the Caroline and Nicaragua Cases.SIEMENS2010-08-31T07:31:00 Insert Citation into footnote for all cases including page number if necessary if you are quoting from it Article 51 of the UN Charter states that: 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. [7] According to Article 51, the state under attack has the right to defend its territory from that attack [8] . In actual fact, the defending state is limited by some conditions such as the occurrence of the armed attack, and in reporting to the UN Security Council. [9] First, the most controversial point is defining an 'armed attack' because Article 51 allows force only in the event of an armed attack from another state. [10] Therefore, the use of force in self- defense is prohibited if there is no real attack. Moreover, the argument of anticipatory self defense, which is used as the justification for the war on terror is, according to Article 51, illegal. [11] Furthermore, the anticipatory self-defense in the Nicaragua case requires the state defend its territory from other state. [12] Recognizing that the war on terror is not against a specific state because it is a war against aon the terrorist group, and in addition that the September 11 attack is not considered to beas an attack from another state, so the use of force as self- defense is not legal. In comparison When comparingbetween the rebels in theof Caroline Case [13] and the terrorists in the September 11 attack, both the rebels [14] and the terrorists fought out of their states, and attacked other state possessions. For example, the terrorists attacked the World Trade Centre buildings which meants attacking the economy of the state [15] , and the rebels [16] attacked the British ships and burned themit. Also, the rebels attacked the British military in Canada [17] , and the terrorists attacked the Defense Ministry [18] . Therefore, the anticipatory self defense can be justified in customary international law. Therefore, according to Based upon the Caroline case [19] the U.S.A attack against Afghanistan is justified and legal. In addition, the iInternational cCourt of Jjustice stated in the Nicaragua case that is illegal for a state to send irregular forces into another country [20] . Iindeed, relevant here is thein concept of the state sponsored terrorism, which is describes whered athe state givesthat support terrorists in military , diplomatic, orand financial support. Military supporting is includesing the training of the terrorists and supplying them with weapons [21] . Diplomatic support is includesing the issuing of fake passports, and helping to transport the weapons through the diplomatic pouches [22] . Financial support is includes supplyinging the supplement of food and medical treatment to terroristssm and medical treatment [23] . ForIn these reasons, it seems that since some of the terrorists came from Afghanistan and sincesent some of the terrorists who they are also considered to beas irregular combatants againstto the U.S.A, and because the Afghan government because it refused to extradite the leader of al-Qaeda to the U.S.A government, and hadit harbored and supported the al-Qaeda organization [24] that. As a result, the anticipatory self defense against Afghanistan is justified because the terrorists and rebels inin the Caroline case have a similarity of positions. Also, al-Qaeda is contributed to Afghanistan, so Afghanistan harbored al-Qaeda members and trained them in its territory and supported them by supplying food and medical treatment. [25] In contrast, the Caroline case and the September 11 attack differ in several respectsare not similar in several reasons. First, the rebels in the Caroline case have attacked the British forces in Canada several times in the same territory [26] ;, even if the terrorists have attacked the U.S.A embassies or any property of the U.S.A, thesebut the attacks were in several places and they attacked the U.S.A in its home territory only once. Second, the Caroline rebels hadve ambitions to take the land of Canada from the British government [27] , whilebut the terrorists' attack was infor protesting against the U.S.A's foreign policies [28] . As Brian Jenkins stated, that the terrorists do not usually want kill a lot of people, however but they do want a lot of people to watch what theyterrorists have done, and to listen to what theyerrorists have said. [29] Third, the Caroline rebels' organization whas located in Canadiana territory which is belonged to the British government [30] , whereas the terrorists' organization was located in Afghanistan. Finally, the U.S.A and Canada are neighbors, also the U.S.A has its predecessor in the revolution inon the British government, and that posed an imminent threat and danger against the Britain, whereas the Afghanistan territory is far away from the U.S.A, and also in comparison the Afghani forces areis weaker than the American forces. Furthermore, in the Nicaragua case the International Court of Justice has found the U.S.A had violated the international treaties coveringof customary international law by violatinginterfered in Nicaraguan territory, and it refused the U.S.A's justification of self defense [31] . In the review of these arguments, it is difficult to say that the anticipatory self defense in the war against terrorism is legal or not. On one hand, the anticipatory self defense is conditioned covered in Article 51 by the existence of the armed attack, and the permission of the UN Security Council. Furthermore, the concept of sovereignty, which was born in the Ttreaty of Westphalia, had prohibitsed the intervention of any state into another state's internal affairs. [32] On other hand, the terrorism is an international problem , so the states should co-operate to stop it. Iindeed, the use of force in anticipatory self defense in accordance with Article 51 and the international treaties is illegal [33] . Also , Furthermore, the state sovereignty was conditionaled onby the success of the state defined asto providinge a good treatment to itstheir citizens because the Charter of United Nations in Article 2 has urges themd to promote Democracy and to protect human rights. [34]

Conclusion

Knowing that tThe similarity between the terrorists and the Caroline's rebels and the conditions of the concept of state sovereignty can justify the anticipatory self- defense, whereas the differences between the terrorists and Caroline's rebels and the original concept of sovereignty can not justify the anticipatory self- defense. Therefore, the use of force in anticipatory self defense is illegal accordance with Article 51 and the customary international law. However, tThe use of force in anticipatory self defense logically is legal in some cases [35] . BibiliographyUser2010-09-03T20:29:00 Duffy, Helen, the 'War on Terror' and the fFramework of Iinternational Llaw (Cambridge University Press, 4th ed, 2007). Hamid, Adul gGhafur, ' The Llegality of aAnticipatory sSelf-defense in the 21st cCentury wWorld oOrder: A Re-appraisal' [2007] Netherlands International Review 441. International Council On Human Rights policy, Human Rights after September (January 2002) < http:// www. ICHP.org/files/reports/29/118_report_en.pdf> Ulfsten, Geir, 'Terrorism and the use of force' (2003), 34(2) Security Dialogue 153 < http:sdi.sagepub.ezproxy.flinders.edu.au/content/34/2/153.full.pdf>. Wood, Michael, SIEMENS2010-09-02T18:26:00 Write the bibiliography in separate paper using Austarlian Guide to Legal Citation
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