Everyone who was of some age has their where I was on 9/11 story. I vividly remember skipping school that week while suffering a bout of malaria. Being homesick, I had the freedom of flipping through channels when I finally settled on one that had an airplane heading directly towards a skyscraper. This looks like a nice movie, was all my ignorant 7 year old self was thinking back then. Little did I know that was a horrific act of terror which took the lives of thousands of people that day and led to tens of thousands more losing their lives in the War on Terror that ensued.
One of the most relevant topic in Public International Law is Use of Force and its prohibition. Cognizant of that part of history which saw recklessness in the use of force by nation states and the damage it wrecked on humanity, the UN Charter in Article 2(4) declares that 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. This emphatic outlawing of the threat or use of force is in keeping with the UN’s larger goal of ensuring world peace and stability. However, the same charter allows for derogation from this prohibition.
In Article 51, the charter declares 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 the measures necessary to maintain international peace and security. This provision allows for situations where a nation has been under armed attack, to assert an inherent right of individual or collective self-defense. The question that has been up for answering is what constitutes an armed attack?
The facts as settled thus far from the 9/11 attacks, minus YouTube conspiracy theories, has it that al Qaeda, a globally designated terrorist group, planned and orchestrated the attacks on mainland USA (for reasons which are not of interest in this paper). Al Qaeda at the time was operating out of Afghanistan at a time when the de-facto government which had some international recognition was the Taliban. This meant that the attacks had been perpetrated by a non-state actor against another state. The relevance of this distinction of the actors in the 9/11 attack is borne out of the fact that the International Court of Justice stated in the locus classicus Nicaragua case that only attacks attributable to another state qualifies as armed attacks under the construction of Article 51. To that extent, it was necessary for the US to pin the attacks on the then de-facto Taliban government to allow it assert its inherent right of self-defense.
The extent to which the Taliban government supported Al Qaeda in the build up to the 9/11 attacks and its aftermath is not entirely clear but the following are clear: The Taliban did play host to Al Qaeda in those days, it refused to condemn the attack and also refused to hand over Osama Bin Laden and other leaders of Al Qaeda when the United States of America asked that they do. Whether these were enough to make the Taliban government responsible is a matter for the ICJ to deliberate upon but it is clear that the position of the ICJ as stated in the Nicaragua case is not congruent with the ensuing action of the USA. In any case, state responsibility is based on the three pronged test of: existence of an international obligation, an act or omission constituting a breach of that obligation and imputing of the breach on another state. Cognizant of the aforementioned, pining responsibility on the then Taliban government within the provisions of the International Law Commission’s draft articles of state responsibility becomes even more challenging. And so it seems to be the case that Resolution 1368 which was adopted by the UN Security Council in the aftermath of the horrendous attacks of 9/11 was itself a departure from the customary understanding of Article 51 of the UN Charter.
In the aftermath of the 9/11 attack, state practice seems to have derogated from the ICJ’s understanding of armed attack as put forth in the Nicaragua case (and referenced above) and toed the line of the United States of America. Today, a terrorist attack by Houthi rebels on mainland Saudi Arabia is viewed as an armed attack which triggers the Saudi government’s “inherent right” to self-defense. The Jordanian government for instance in responding to the immolation of one of its fighter jet pilots by ISIS bombed up territories in the control of ISIS but within the jurisdiction of the Syrian government. It seems to be the case that the “territorial integrity” of states is only breached in response to terrorist attacks when those states perceived to be hosting the terrorists have weak state structures and are not in full control of their territories hence the territory already being bereft of absolute integrity to begin with.