TERRORIST ATTACKS

      On 9 September 2001, a date now better known as "9-11," suicide bombers flew into the World Trade Center in New York City, and succeeded in toppling its twin towers, thus killing some 5,000 Americans. Consequently, the United States, heading a coalition which notably includes the United Kingdom, went to war against the Taliban government in Afghanistan. The U.S. accused the Taliban government of sponsoring or at least providing safehaven to the international terrorist network al-Qaeda, led by Osama bin Laden.

     Although the U.S. targeted its air strikes against military installations and al- Qaeda camps, the war inflicted civilian casualties. The war served to topple the Taliban government, which has been replaced with an interim government. The U.S. military has transported its Taliban captives to a detention center in its military camp at Guantanamo Bay, Cuba. At present, American troops continue to engage in military activities in Afghanistan.

     On a related front, the U.S. this year invoked the RP-US Visiting Forces Agreement, or VFA, to send troops to Mindanao. The U.S. alleges that it advises and trains Philippine troops engaged in a similar war against alleged al-Qaeda cells. However, unlike the war in Afghanistan, the war in Muslim Mindanao is complicated by the fact that the alleged terrorists are reportedly freedom fighters under the MILF, Abu Sayyaf, or other Muslim rebel groups.

DEFINITION OF TERRORISM

      In order to assess the legality of the ongoing RP-US Balikatan exercises under the VFA, it is relevant to assess the legality of the U.S.-Afghan war, which the U.S. calls a "war against terrorism." Before we can determine the legality of a so-called war against terrorism, it is necessary to define what terrorism is. The definition of terrorism is very elusive. In the United Nations, states have tried to reach a definition for more than 30 years. The controversy over the definition of terrorism arises from the insistence of Third World countries that the term "terrorism" should not cover acts of violence committed by freedom fighters, meaning, individuals and groups struggling to claim the right to self-determination.

     Hence, the U.N. members set aside the problem of a definition until 1994, when the U.N. General Assembly adopted Resolution 49-60. This resolution contains an annexed Declaration which states in paragraph 3:

      Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.

      Under this resolution, I suggest the following definition of terrorism: Terrorism is an act constituting a criminal offense, which is politically motivated, aimed at spreading terror among the public. For an act to qualify as terrorism, there should be two elements: (1) a criminal intent; and (2) an intent to spread terror. The element of criminal intent refers to the perpetration of the acts, killing or injuring persons, or destroying property. Terrorism is an international crime, and states have universal jurisdiction over any international crime. Hence, any state is legally entitled to bring to trial the alleged terrorists, when they are located in its territory.

SELF-DEFENSE IN INTERNATIONAL LAW

      The United Nations was inaugurated in 1945. Under the U.N. Charter, states are required to settle their disputes peacefully, and never to use force. Thus, Article 4 para. 1 provides: "Membership in the U.N. is open to all peace-loving states." However, the principle that states should never use force, is subject to the exception of self-defense. Thus, Article 51 provides: "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."

      The U.N. Charter also provides that the Security Council shall have broad powers of forcible intervention. Under Article 39, the Security Council has the power to determine if there is a threat to the peace, a breach to the peace, or an act of aggression. Thereafter, under Article 42, the Security Council may take armed action against the aggressor, or the state threatening the peace.

LIMITS TO SELF-DEFENSE

  Although the U.N. Charter recognizes the right of self-defense, it also imposes two limitations upon this right. Both under the U.N. Charter and under general international law, the two limitations on the right of self-defense are as follows:

1. The use of force is allowed only in order to repel an armed attack;
2. The state under attack must immediately inform the Security Council of its armed action in self-defense.

     Thus, Article 51 considers self-defense as a preliminary or provisional measure only. The victim of an armed attack may defend itself only for a limited period of time, until the Security Council takes over the problem. Not surprisingly, certain states have made increasing use of the right of individual self-defense. They even engage in war, using the concept of self-defense as a subterfuge.

     It has to be emphasized that when one state commits an act of aggression against another, the aggressor state violates the sovereign rights of the victim state. While the armed attack is taking place, the victim state may resort to self-defense. This is allowed, because the victim state, at that particular time, is the only actor that can enforce the law. Therefore, the act of self-defense should be limited to a rejection of the armed attack. Beyond this, self-defense is not allowed.

     The International Court of Justice discussed self-defense under international law in 1986 in the famous Nicaragua case. At that time, the U.S. military placed mines in Nicaraguan harbors, and funded the group called Contras in Nicaragua. The World Court rejected the U.S. claim that it was acting under Article 51 to defend Nicaragua's neighbors. The World Court condemned the U.S. for attacking Nicaragua. As a result, the United States withdrew from the World Court, and no longer recognizes its jurisdiction.

 According to the World Court, in self-defense a state may take only "measures which are proportional to the armed attack and necessary to respond to it." Under the World Court decision, self-defense is subject to the following limitations:

1. The victim of aggression must not occupy the aggressor's state territory, unless this is strictly required by the need to hold the aggressor in check, and prevent him from continuing the aggression by other means.
2. Self-defense must end as soon as the Security Council steps in, and takes over the task of putting an end to the aggression. Self-defense may continue only until the Security Council has taken effective action.
3. If the Security Council fails to take action, self-defense must cease as soon as its purpose - which is to repel the armed attack - has been achieved.

     According to the former president of the U.N. International Criminal Tribunal for former Yugoslavia, Antonio Cassese: "Article 51 and the corresponding norm of general international law do not authorize or condone any military action overstepping mere rejection of aggression. In particular, they prohibit prolonged military occupation and annexation of territory belonging to the aggressor."

U.S. EXCEEDED LIMITS OF SELF-DEFENSE

     Applying this rule, when the suicide bombers attacked the twin towers in New York City and even the Pentagon in Washington D.C., those attacks were acts of aggression. Under international law, the United States could take military action in self-defense. But also under international law, American military action should have been limited to the rejection of the aggression. This means that American action was limited by international law to the staging of military strikes against the perceived sources of aggression, which are the al-Qaeda camps. It is illegal for the U.S. to engage in prolonged military occupation of Afghanistan.

     Article 51 allows a state to act in self-defense in order to stop an armed attack. Article 51 does not allow the victim state to punish the aggressor state, or to take further action in order to deter the aggression. These actions should be taken only by the United Nations after a resolution has been adopted by the Security Council. In Afghanistan, the United States has already succeeded in changing the Taliban government, which it accused of sponsoring terrorism. Therefore, the U.S. should now leave Afghanistan and pursue its antiterrorism initiatives in the U.N. Security Council. It is illegal for the U.S. to continue military action for punitive and deterrent purposes.

ANTICIPATORY SELF-DEFENSE IS ILLEGAL

     Self-defense in international law is complicated by a number of problematic facets. One such facet is how to establish the right facts, so that the international community will be able to judge whether the state is lawfully entitled to resort to force. At the time that the U.S. launched its war against the Taliban government in Afghanistan, it was only the American government that had control over the alleged facts. This is a problem, because there are no international mechanisms for timely and objective fact-finding, during a period when a victim state is using force under a claim of self-defense.

     Another complex facet of self-defense in international law is the concept of "anticipatory self-defense." This refers to a preemptive strike, once a state is certain or believes that another state is about to attack it militarily. The question is: Is anticipatory self-defense legal in international law? The answer is that under international law, anticipatory self-defense is legally prohibited. However, there may be cases where anticipatory self-defense is morally or politically acceptable. For example, if the United States expands its war against terrorism from Afghanistan into Iraq, such anticipatory self-defense could be defended on moral and political grounds. If so, the international community will eventually condone the anticipatory self-defense or it will issue so-called "lenient condonation."

SELF-DEFENSE AGAINST INDIRECT AGGRESSION

     The right of self-defense under Article 51 of the U.N. Charter refers to an actual use of force taking place at a definite time. However, there can also be "indirect aggression," meaning organizing, assisting, fomenting, financing, inciting, or tolerating subversive or terrorist activities carried out against another state, either to overthrow its government, or to interfere in civil conflict. The Americans allege that the al-Qaeda is committing indirect aggression against the Philippines, by allegedly giving aid to Muslim terrorists. The alleged indirect armed aggression by the al-Qaeda terrorist network in Southeast Asia is the reason given for the presence of the U.S. troops engaging in the Balikatan exercises.

     The RP-US Balikatan exercises raise this issue: Under international law, does the right to self-defense include a reaction to indirect armed aggression?

     There is no clear answer to this question. Certain states - like the U.S., Israel, and South Africa - claim that indirect armed aggression warrants self-defense. Under this view, the al-Qaeda links with the Muslim rebel groups constitute indirect armed aggression; therefore, under the RP-US Visiting Forces Agreement, force may be employed in self-defense. However, the international community has not accepted this kind of legal justification for self-defense.

     For example, in 1964, the United Kingdom proposed to proclaim the right of any country to seek military assistance from third states, should that country become the victim of unlawful intervention in the form of "subversive activities leading to civil strife in which the dissident elements are receiving external support and encouragement." This proposal was strongly attacked by a number of socialist and Third World countries, including the then Czechoslovakia, the United Arab Republic, Ghana, India, Lebanon, Algeria, and Mexico.

     International law is to a great extent dependent on state practice. The question therefore is: What is the state practice with respect to the right of self-defense against a terrorist regional or global network that supports an insurgency? In other words, is there a right of self-defense involving the use of force against the al-Qaeda terrorist network, which is allegedly supporting the Muslim rebels in Mindanao? The answer is that the right to self-defense depends upon the following factors:

1. The level of support that al-Qaeda is allegedly giving to the Muslim rebels;
2. The evidence of the al-Qaeda support to rebels in Mindanao;
3. The evaluation of that evidence by any competent U.N. organ, such as the International Court of Justice;
4. The proportionality of the response; and
5. The legality of the means used to respond.

SUMMARY OF INTERNATIONAL LAW

     International law on the U.S.-Afghan war can be summarized as follows: The U.N. Charter, Article 51 gives a state under attack the right of self-defense, but limits this right to the repulsion of an attack that is ongoing or imminent. In other words, self-defense is only a temporary measure, until the U.N. Security Council can take the necessary steps to preserve international peace and security.

     From the time of the "9-11" attacks, the Security Council has passed two resolutions condemning terrorism. But, and this is a big but, the Security Council never authorized the use of military force. This is because once an attack has stopped, the right of unilateral self-defense does not include the right to retaliate. The coalition led by the United States and the United Kingdom that attacked Afghanistan did so,without the explicit authorization of the Security Council. This is why critics say that the U.S. war on Afghanistan will not prevent terrorism, but will instead provoke more terrorism. According to the critics, the attack against Afghanistan was merely an act of vengeance and is therefore illegal.       At present, the U.S. government has a duty to prove that the continued presence of the American military in Afghanistan meets three requirements:

1. American military action in Afghanistan should be necessary and rational;
2. It should be proportional;
3. It should be subjected to independent verification.

In conclusion, even if the American military capture bin Laden, or even if the RP-US troops capture the alleged Muslim terrorists in Mindanao, the capture will not solve the underlying problems that created an environment for international terrorism, or for terrorism emanating from Mindanao. The best solution to the present problem of terrorism is for the United States to obtain a mandate from the U.N. Security Council.

The Isulong Team: Isulong SEOPh, Isulong Seoph by Benj, Pinoy Isulong by Seoph Martinez and Useless Isulong