Kk-Fourm,
mer om internasjonal rett.
Knut Rognes
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The Australian
January 14, 2002, Monday
SECTION: FEATURES; Pg. 11
HEADLINE: Vengeful nations a law unto themselves
SOURCE: MATP
The wars against terrorism are undermining international legislation, warns
Donald Rothwell
Trick will be to defeat terrorism but also respect rule of law
THE past four months have seen significant responses by three countries to
terrorist attacks on their soil.
In the case of the US, the reaction to the September 11 attacks was to not
only declare a war on terrorism but also effectively a war against
Afghanistan. For Israel, the attacks by suicide bombers in November have
seen extraordinary military responses against the Palestinian Authority and
a hard line that suggests Israel will no longer deal with Yasser Arafat. For
India, terrorist attacks against its parliament in New Delhi have reopened
old wounds in its relationship with Pakistan, which have pushed the two
neighbours to the brink of war in Kashmir. The US, Israel and India seek to
justify their diplomatic and military responses to terrorist attacks in
terms of self-defence. But there has been little full discussion of the
consequences of these actions for international peace and security within
the post-World War II framework of international law. Indeed, the three
nations seem to have forgotten that one of the principal goals of the 1945
UN Charter was a prohibition on the use of force as an instrument of
international relations. Emphasis was instead placed on the peaceful
settlement of international disputes through negotiation, mediation or the
International Court of Justice. Chapter 7 of the UN Charter, however,
anticipated that not all disputes could be peacefully resolved and gave to
the Security Council powers to authorise limited use of force where
circumstances demanded. Both the Gulf War and East Timor were cases where
the UN did authorise the use of force.
As a further concession, individual and collective self-defence remains a
legitimate basis for the use of force. But self-defence does not justify
unlimited military intervention. There are clear limits. It must be
conducted as an immediate response to an armed attack. The response must be
proportionate to the threat posed. The UN must also be kept informed.
Importantly, any act undertaken in self-defence may also be governed by
other international laws, especially those dealing with the law of armed
conflict and international humanitarian law.
The conduct of the three-month US and allied military campaign in
Afghanistan, justified on the grounds of self-defence, has raised serious
issues as to the violation of international law. For example, no matter how
unintended they may have been, civilian casualties are not acceptable under
existing international law. Likewise, weapons that cause long-term effects
for the civilian populations, such as cluster bombs and mines, are subject
to controls. There are also constraints on the levels of environmental
damage permissible even in the midst of armed conflict.
Contrary to Washington's stated position adopted over the weekend, captured
Taliban and al-Qa'ida fighters have rights of protection as prisoners of war
under the Geneva Convention and general human rights law. Yet,
notwithstanding that the US and its allied partners, including Australia,
are parties to many of the international conventions that place limitations
on warfare, the infringement of these international laws has passed largely
without comment.
The military action in Afghanistan should be cause for reflection. Has
international civil society been so taken aback by the horrors of September
11 that any means of bringing down Osama bin Laden and his terrorist network
are justifiable? Likewise, can any nation threatened by terrorist activity
which is either sponsored or even tacitly supported by another country use
the precedent of the US response to justify any military action it may
choose to take against those terrorists? It is clear that both Israel and to
a lesser extent India have used precisely this argument in recent months.
At a related level there has been renewed emphasis on "homeland defence".
For Australia, this has coincided with naval patrols of our northern waters
to interdict boats of asylum-seekers. But these post-Tampa operations have
also seen rights under the law of the sea and international human rights law
flouted as Australia has embarked on a course of unilateralism towards
international law that has never been matched in our history.
The task, then, for the international community will be to take stock of the
unilateral and collective responses to terrorism combined with a renewed
emphasis on sovereignty and ask whether the international system can
withstand such challenges. Fundamental customary principles of international
law which evolved in the 20th century are now threatened not only by
terrorism but by the international response. The trick will be to not only
defeat terrorism but also ensure that respect for the rule of law upon which
the international system has been founded since 1945 is not sacrificed in
the process.
Donald Rothwell is an associate professor of international law at the
University of Sydney
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