April 24, 2015

OLD RULES- NEW THREATSKEEPING THE PEACE IN THE 21ST CENTURY

The world essentially experienced the coming of the 21st

century with one of the most dramatic terrorists attacks

ever perpetrated. The events of 911 contained all of the

ingredients of the new paradigm in global threats. First,

the attack was conducted by an ideologically motivated

transnational group based in and emanating from a “failed

state”. Second, the attack was conducted on a financially

and militarily powerful liberal democracy. Third, the

attackers transformed common technology into weapons of mass

destruction, killing thousands for world wide media

consumption. Fourth, they did this using the individual

freedoms and permissiveness of the targeted open society to

wage asymmetrical warfare against it. This is the new face

of the threat that confronts us in the 21st century. This

case however has opened up a new legal dialogue on the

international use of force and the ability of countries to

defend themselves ostensibly by invading other countries.

The 911 case pushed the envelope of legal and strategic

doctrine because at the time there were only two bodies of

law codified in treaty that aggrieved nations could draw on.

They were the NATO Treaty and of course UN Conventions for

the use of force. In order to gain a fuller understanding of

where we are as an international community are now we must

also understand what series of legal and political events

occurred immediately after 911. As with any forensic

investigation we must first look at the facts surrounding

the occurrence and subsequent legal, military and political

actions.

On September 11, 2001, planes flown by radical Islamic

terrorists, crashed into the World Trade Center towers in New

York. An additional plane was deliberately piloted into the

Pentagon in Arlington, Virginia, while a fourth crashed into a

farm field in Pennsylvania.

These attacks destroyed the World Trade towers, severely

damaged the Pentagon, and resulted in the death of nearly

3,000 American citizens.1

Among those killed in New York were 343 members of the New

York City Fire Department

(including its chief), 37 members of the Port Authority Police

Department, 23 members of

the New York City Police Department, and 2,152 civilians. 2

As a result of this horrendous tragedy, the UN Security

Council issued Resolution 1368 on September 12, condemning the

terrorist attacks and recognizing the inherent right of

individual and collective self-defense.3

It was soon asserted by the US intelligence services that they

had conclusive proof that the attacks had indeed been

conducted by the terrorist organization al-Qaeda.4

While the attacks only lasted for approximately four hours,

the U.S. claimed that al-Qaeda posed an “ongoing threat to the

United States,” a threat that was “made possible by the

decision of the Taliban regime to allow the parts of

Afghanistan that it controled to be used by al Qaeda as its

base of operation.”5

The Security Council did support the view that the Taliban

planned the attacks, they did condemn the Taliban “for

allowing Afghanistan to be used as a base for the export of

terrorism by the al-Qaeda network...and for providing safe

haven to Osama bin Laden, al-Qaeda and others associated with

them.”6

President Bush quickly issued an ultimatum to the Taliban:

“The Taliban must act, and act immediately...they will hand

over the terrorists, or they will share in their fate.”7

In this now well-known speech, the President stated in

absolute terms that it was the policy of the United States to

make “no distinction between the terrorists who committed

these acts and those who harbor them.” This speech was

supported in U.S. domestic law on September 14, 2001 when both

houses of Congress supported a joint resolution that

authorized the President “to use all necessary and appropriate

force against those nations, organizations, or persons he

determines planned, authorized, committed, or aided the

terrorist attacks that occurred on September 11, 2001, or

harbored such organizations or persons, in order to prevent

any future acts of international terrorism against the United

States by such nations, organizations or persons.”8

Following the attacks, in October 2001, the Taliban refused

to hand over Osama bin Laden and his al-Qaeda associates. On

October 7, 2001, the United States invoked its right to self-

defense and initiated Operation Enduring Freedom in order “to

prevent and deter further attacks on the United States.”9

The US Ambassador to the United Nations, John Negroponte,

informed the Security Council that the U.S. would undertake

self-defense operations imminently. He delivered this message

in the form of a letter. In this letter to the Security

Council, Negroponte wrote that the United States and its

allies had “initiated actions in the exercise of its inherent

right of individual and collective self-defense following the

armed attacks that were carried out against the United States

on 11 September 2001.”10

The letter claimed that this action was to be taken against

“al-Qaeda training camps and

military installations of the Taliban regime in Afghanistan.”

The international community

strongly supported U.S. action. The Security Council did not

officially authorize or endorse the use of force, it did

express its support for “international efforts to root out

terrorism”11

It also underscored a nation’s inherent right of self-defense

as recognized by the Charter of the United Nations.12

The North Atlantic Treaty Organization (NATO) on the other

hand officially stated that it had “determined that the attack

against the U.S. on September 11 was directed from abroad and

shall therefore be regarded as an action covered Article 5 of

the Washington Treaty.”13

Article 5 of the NATO Treaty states that an attack on one of

its members will be deemed as an attack against all NATO

members. The Organization of American States similarly invoked

the collective self-defense provisions of the Rio Treaty, 14

stating that the “terrorist attacks against the United States

are attacks against all American states.”15

A number of countries all over the world showed great sympathy

and support for the U.S. Several states decided to share

intelligence with the United States. Australia, citing Article

IV of the ANZUS Treaty, offered military support, as did

Canada, the Czech Republic, Germany, Italy, Japan, the

Netherlands, New Zealand, Turkey, and the United Kingdom.16

In early October of the same year, the U.S. and its allies

began air missions against al-Qaeda targets. These air raids

were the pre-cursor for a full-scale ground mission in order

to overthrow the Taliban regime in Kabul and eliminating al-

Qaeda’s sanctuary in Afghanistan.17

The coalition’s success against the Taliban was fast and

complete. In just one short month the Taliban regime was

overthrown in Kabul and every other major city in the country

was rid of them. A month later an administrative entity was

created to decide upon and develop a new government. The

Taliban as well as al-Qaeda were effectively eliminated as

threats throughout the country as they went into hiding in

Pakistan. Many others were killed. While based on the

preceding list of international events and support that led to

the invasion it still cannot be with universal legality stated

that the US and its allies acted in a wholly legal sense. We

should remember that just because there might exist an

international consensus, it does not automatically demonstrate

that it conforms to the international laws regarding the use

of force, as will be discussing throughout the paper.

While this attack focused world-wide attention not only on

the threat and its root causes, it called for a re-

examination of both security doctrine and more importantly

legal doctrine for addressing the threat. While the world

was quick to react to the 911 attacks, it has been slow

overall to address the emerging threats from a legal

perspective. Instead it has relied as shown above on legacy

legal doctrines that literally date back to midway through

the previous century. 911 was actually the culmination of

decades of such attacks. The “new” paradigm has been

evolving faster than we have evolved our security

apparatuses and international legal doctrines. We then must

turn to the question of how not only to protect ourselves

from these threats but also how to interdict threats with

legal authority? How does the world community “keep the

peace” effectively while acting morally, ethically and most

importantly legally using what some consider being out-dated

UN Charters and antique case law? Are the present legal

standards sufficient? How are states obligated, authorized

and indeed culpable when keeping the peace through coercion?

In order to better understand this we should first turn our

attention to what is probably considered the overarching

international body that guides the standards of

international behavior- the UN Charter.

Chapter 1, Article 1 of the United Nations Charter states that

the purpose of the United Nations is:

“To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”18

The United Nations Charter provides that “all Members shall

settle their international disputes by peaceful means in such

a manner that international peace and security, and justice,

are not endangered,”19 and establish what is now known as the

“prohibition on the use of force.” This prohibition is

codified in Article 2(4) of the UN Charter, which states that

all member states must “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.”20

The severe limitation on the use of force is binding not only

due to its enumeration in Charter law, but also because it has

become a preemptory norm of international law that no treaty

can void and from which no state can deviate. 21 Articles 2(3)

and 2(4) should be interpreted together in light of their

purpose “to save succeeding generations from the scourge of

war”22

and to make peace and tranquility the norm.23 Together with

its overall mission to maintain “international peace and

security,” the Charter also authorizes the Security Council

“to decide what measures not involving the use of armed force

are to be employed to give effect to its decisions, and it may

call upon the Members of the United Nations to apply such

measures.”24 These measures include complete or partial

interruption of economic relations, the severance of

diplomatic relations, and suspension of rail, sea, air,

portal, telegraphic, radio, and other means of communication.25

These peaceful measures are to be the primary tool in

sustaining peace. While the authors of the United Nations

Charter realized that peaceful measures while nearly in all

cases desirable, would at times be insufficient to maintain

international peace and security, and that, in some

circumstances, it would be necessary to violate the use of

force provision.

They therefore created two legal exceptions to Article 2(4),

which are contained in Article 42

and Article 51 of the Charter. Article 42 provides for a

multinational force to be employed in situations when peaceful

measures have been insufficient in maintain international

peace and security. Though Article 43 provides the option of

having a standing UN security

force to carry out military action in situations described in

Article 42, the Security Council

has usually opted to “contract out” its security missions to

“coalitions of the willing”

comprised of individual member states.26

The only instance in which member states can use force in

absence of an Article

42 authorization by the Security Council is described in the

“self-defense exception” of

Article 51. The text of Article 51 is intentionally not

entirely specific. It requires that self-defense be exercised

only “if an armed attack occurs against a member of the United

Nations,” Article 51 fails to define what constitutes an

“armed attack.” Once again we must ask what the definition of

an armed attack is under international law. It was initially

limited to more or less traditional cross-border attacks by

regular forces, it has, through necessity and the events over

the past two decades, evolved to include “the sending by a

State of armed bands to the territory of another State, if

such an operation, because of its scale and effects, would

have been classified as an armed attack rather than as a mere

frontier incident had it

been carried out by regular armed forces.” This was the

precedent set in the case of Nicaragua v. United States

opinion of the International Court of Justice.27

In the Nicaragua decision, the International Court of Justice

(ICJ) utilized the 1970 definition of “Aggression”, which

basically stated that it included “the sending 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 an actual armed attack conducted by

regular forces, or its substantial involvement therein.”28

Given its now codified definition in the Definition of

Aggression and the Nicaragua decision, the expanded version of

the definition of an armed attack may now be considered to

reflect customary international law.29 The Charter also fails

to precisely define exactly what constitutes a proper use of

“self-defense.” International law has deferred to the

customary law formed in the wake of the famous Caroline

incident of 1837.30 In this antique but still very relevant

case, the British believed that the ship Caroline was being

used by rebels based in the United States to launch attacks

against British forces stationed in Canada. After attempting

negotiations with U.S. officials to put an end to the attacks,

the British launched a raid in which they took over, set

afire, and directed the Caroline over Niagara Falls.31 In a

series of letters between British and U.S. officials, the

British claimed that its forces had been acting in self-

defense. In response, U.S. Secretary of State Daniel Webster

acknowledged that the United Kingdom was not obligated to wait

until a threatened attack had been carried out in order to

take action in self-defense, with the caveat that the

“necessity of that self-defense is instant, overwhelming, and

leaving no choice of means and no moment for deliberation.”

Since this decisional precedent, states have begun to believe

that they are legally binding, and accepted as customary law.

This acceptance means that a state can act in self-defense not

only to repel an armed attack it has already suffered, but

this is vitally important - also to repel an “imminent” armed

attack. The Caroline incident is now usually interpreted as

requiring that self-defensive action be necessary to repel an

ongoing or “imminent” armed attack. If force were used by a

state once hostilities had ceased and there was no longer a

danger of further attack, it would not meet the requirement of

necessity and would thus be considered illegal . The

Declaration on Friendly Relations acknowledges this fact,

noting that

“States have a duty to refrain from acts of reprisal involving

the use of force.”32 In the years since the Caroline incident,

states too have come to believe themselves to be bound by the

“necessity requirement.” Apart from requiring that the use of

defensive force be necessary, customary law as defined by the

Caroline incident also requires self-defense to be

proportionate. This has been interpreted to mean that any

action taken in self-defense that uses more force than

necessary to drive back an armed attack or to prevent an

imminent armed attack is deemed disproportional.33 34 States

have determined that their self-defense actions are legally

limited by necessity and proportion, and these requirements

are now a part of customary law. Their place in customary law

was further solidified when the ICJ confirmed that self-

defense must be both necessary and proportional in its

Nicaragua v. United States decision and in its advisory

opinion in Legality of the Threat or Use of Nuclear Weapons.35

The discussion of the above precedents while antique in nature

are nonetheless relevant. These two precedents in

international law provide the legal basis of what is commonly

known as the “Bush Doctrine.” The so called “Bush Doctrine”

was the enabling doctrine that animated the US and its allies

to launch attacks not only on Afghanistan which provided a

clear and imminent danger to the US but also and we might add

dubiously to the invasion of Iraq under the assumption of

weapons of mass destruction. At the present time the current

Administration has been reluctant to invoke the “Bush

Doctrine” in places like Libya, Yemen, Syria and locations in

Africa as it does not view them as “imminent” threats to the

US Homeland.

Peace is kept by a body of rules or laws that are generally

accepted by most in any given community whether local or

international. Enforcement and use of force or threat of

force to those transgressors is what helps motivate

observance for those not persuaded by the intrinsic moral or

ethical imperatives of such observance. How does the

community or importantly those members use force to keep the

peace? Can we continue to rely on 200 year old case law or

should more contemporary definitions be constructed of

“threats” Does the Charter need to evolve or can it be said

that there are certain axioms or principles as in physics

that are immutable and can by applied to all situations?

The world looks to the UN for guidance on all manner of

issues and the use of force is no exception. The UN Charter

was crafted in 1945, the same year that the world emerged

from the trauma of World War II. It is formulated on the

paradigm of Jus Ad Bellum or justice toward war (moral

authority to use force), which can again be interpreted as

the justification for the use of force. This paradigm is

restrictive and puts the emphasis on peace as a good unto

itself with the use of force considered in extreme cases.

These concepts and definitions were crafted in a world which

consisted of nation-state actors in a post Westfalian

paradigm. This “Peace was more important than progress and

more important that justice.” 36

The key Articles of the Charter addressing the use of force,

the justification of its use and responsibilities of those

using force are Article 2 (4) and Article 51. Article 2 (4)

outlawed war and other uses of force by states that violates

territorial integrity or political independence. Article 51

however provides the legal means by which states may protect

themselves. It is this Article along with case precedent

which currently provides the legal measure for states with

regard to use of force specifically in self defense.

Much has changed since the establishment of the Charter. In

their essay International “Law and the Recourse to Force: A

Shift in Paradigms”, Anthony Clark Arend and Robert J Beck,

outline the transformation of the Charter from a “Peace

Paradigm” to what they refer to as a “ Self-Help Paradigm.

“Justice was to be sought but not at the expense of peace.

Given the experience of the first two world wars, the

framers believed that more damage was done to the

international system by taking up arms to fight for justice

than by living with a particular injustice.” 37. Clearly

incidents over the decades after the Charter was adopted

have been of a nature that the international community or at

least some members have found to be unacceptable from a

justice standpoint. “Rather than believing that more injury

to world order occurs when force is used to pursue just

goals, states have come to believe that, at certain times,

it is better to break the peace in the name of justice, than

to live with the injustice.” 38 In short, justice is more

important than peace and it is this value shift from “peace

at all costs” to one of intolerance of injustice that has

created a new paradigm. Anthony Arend and Rober Beck, the

noted International Legal scholars have described this shift

and have named it the ‘Post Charter Self Help Paradigm’.

They ascribe several trends that have led to this, most

notably, the emergence of a new value hierarchy and the

changed legal obligations of states. Michael Reisman, a

Yale University Professor of International Law, describes

this trend. “The international political system has largely

accommodated itself to the indispensability of coercion in a

legal system, on the one hand, and the deterioration of the

Charter system, on the other, by developing a nuance code

for appraising the lawfulness of individual unilateral uses

of force.” If there is a changed value hierarchy, what are

the new legal obligations and how do they apply to states

applying force in the pursuit of justice? Is the Charter

sufficient in its present form to enable states to employ

force in the new threat paradigm? States or those that

ratified the Charter are still legally obliged to follow the

Charter and therefore must look to Article 2 (4) and Article

51 for both guidance and justification for use of force.

The United States invoked Article 51 to justify the attack

on the Taliban and Al Qaeda in Afghanistan. In the case of

Operation Enduring Freedom Article 51 proved sufficient.

Mary Ellen O’Connell in her essay “Lawful Self-Defense to

Terrorism” describes how each act taken by the United States

in Operation Enduring Freedom, conformed to the Charter.

While Article 51 is only two sentences, the international

community has evolved further definitions of self defense

and proscriptions for its use. “Governments have decided

they cannot eliminate the right to use force in self-defense

in all cases, nevertheless, they have, through international

law, limited force in self-defense to the most exigent

circumstances.” 39 For example, without UN Security Council

approval a state may act but must meet the following four

conditions: “First, the defending state must be the victim

of a significance armed attack. Second, the armed attack

must be either underway or the victim must have at least

clear and convincing evidence that that more attacks are

planned. Third, the defending state’s target must be

responsible for the significant armed attack in progress or

planned. Fourth, the force used by the defending state must

be necessary for the purpose of defense and it must be

proportional to the injury threatened.” 40. Each of these

standards was met in Operation Enduring Freedom. The US was

the victim of an armed attack, the US and Britain

established that 911 was but one in a series of on-going

attacks dating back nearly a decade and evidence found after

the invasion confirmed the existence of plans for further

attacks. The use of force in the territory of another state

was justified in that Taliban controlled Afghanistan were

closely aligned with Al Qaeda and therefore complicit in the

attacks. The metrics of proportionality for the US use of

force have been debated but in general it is assessed that

they conformed. In Operation Enduring Freedom the law under

Article 51 was apparently sufficient for the justification

for the use of force in Afghanistan as self-defense.

The events of 911 were a clear cut case of aggressive action

and understandable and proportionate defensive reaction.

Keeping the peace in this instance was to both thwart

further aggression by the Taliban support terrorist cells as

well as send a strong message internationally of the

tolerance the US has for terror. The US has taken the notion

of keeping the peace a bit further that extends beyond the

action/reaction focus of Article 51. Addressing the threat

from transnational terrorist’s organization, the US has

unveiled the National Security Strategy of the United States

of America. In it the US describes the face of the threat,

why traditional deterrence methods and tactics will not work

and redefines the term “imminent”. Because of the non-

conventional weapons and methods enemies now employ

“imminent” is no longer applicable and indeed may be too

late. Unconventional weapons can be used, it is argued,

without warning. “The United States has long maintained the

option of preemptive actions to counter a sufficient threat

to our national security. The greater the threat, the

greater the risk of inaction” 41 In the case of 911, once

again Article 51 sufficed but then again the US had already

been attacked, billions worth of damage done and over 3,000

dead. Should the US wait until this happens again? According

to the Charter apparently so. This question has been

answered by the UN High Level Panel on Threats Challenges

and Change (2004). They conclude that action should always

be put to the Security Council. “For those impatient with

such a response, the answer must be that, in a world full of

perceived potential threats, the risk to the global order

and the norm of non-intervention on which it continues to be

based is simply too great for the legality of unilateral

preventive action ….to be accepted. 42

International law seems to suffice if the scenario conforms

to one of cause and effect. In the more modern scenario of

non-state actors and murky, decentralized transnational

threats, the law seems inadequate. The “Bush Doctrine” of

anticipatory self –defense is clearly on shaky legal footing

at present however this may change as Article 51 continues

through its interpretive evolution. When the rest of the

international community recognizes the importance of

interdiction by unilateral or even multilateral action will

the definition of self-defense under Article 51 change? It

is clearly inevitable that there has been and continues to

be a paradigm shift in the types of threats the

international community faces. During and prior to the 20th

century the international community faced threats largely

perpetrated by nation-states against other nation-states. In

the last 20 years however the world has seen a number of

other non-state actors emerge on the threat stage. These

include international terrorist movements animated by

politics but lately by religious ideologies who do not fit

neatly into the 20th century nation state mold. They are

often super-empowered loosely organized groups who are hard

to track as they do not affiliate ordinarily with any

particular country in general but claim affiliate membership

with others simply through their common ideology and

willingness to advance it with violent action on an

international scale. These types of threats are not easily

provided for in the current body of international law and

therefore the body of law needs to evolve in order to cope

with these newly evolved threats while preserving the

essential nature of the law and its and original purpose.

International law has evolved over the last 200 years plus

since Jeremy Bentham coined the phrase and efforts by

international jurists should continue to do so to

accommodate the changing threat landscape.

References

1. http://www.commondreams.org/headlines04/0616-01.htm info retrieved 25, Jan

2015

2. http://www.globalsecurity.org/security/profiles/9-11.htm info retrieved 25, Jan

2015

3. Security Council Resolution 1368, 12 September 2001

4. http://www.globalsecurity.org/security/profiles/9-11.htm info retrieved 3, Jan 2015

5. Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the UnitedNations addressed to the President of the Security Council. S/2001/946 The U.S. Ambassador at the time was John Negropante.

6. Security Council Resolution 1378, 14 November 2001. at paragraph 1 The UN

Security “Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security.”

7. Hamilton, Lee and the National Commission on Terrorist Attacks Upon the United States. 9/11 Commission Report . PPC Publishing, Washington D.C. 2004

8. http://www.house.gov/ryan/press_releases/2001pressreleases/useofforce91401.html info retrieved Feb 2, 2015

9. See footnote 5

10. Article 51 states, “Measures taken by Members in the exercise of the right of self-defense shall be immediately reported to the Security Council.” The Charter can be found at http://www.un.org/aboutun/charter/

11. Security Council Resolution 1378 13 November, 2001

12. Security Council Resolutions 1368 12 September, 2001 and 1373 13 November, 2001

13. http://www.state.gov/s/ct/rls/other/5197.htm

14. “The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against allthe American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defenseself-defense recognized by Article 51 of the Charter of the United Nations Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947,art. 3.1.15. OEA/Ser.F/II.24, RC.24/RES.1/01 21 September, 2001

16. Sean D. Murphy, “Terrorism and the Concept of Armed Attackin Article 51 of the UN Charter.” Harvard International Law Journal 248, 2002.

17. See footnote 6 for full citation. 9/11 Commission Report ,354. (From this point on the report will be sited as such).

18. Chapter 1 Article 1 of the Charter of the United Nations

19. Article 2(3) of the Charter of the United Nations

20. Article 2(4) of the Charter of the United Nations

21. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14, at para. 190.

22. Prologue of the Charter of the United Nations

23. Matthew Scott King. “The Legality of the United States Waron Terror: Is Article 51 A Legitimate Vehicle for the War in Afghanistan or Just a Blanket to Cover-Up International War Crimes?” ILSA Journal of International and Comparative Law, Spring 2003 pg. 39

24. Article 41 of the Charter of the United Nations.

25. See footnote 23

26. This was the case in both the Korean War of 1951 and the Gulf War of 1993. In both situations, the UN Security Council interpreted Article 42 to allow them to authorize the United States to lead coalitions to maintain internationalpeace and security.

27. Nicaragua

28. Article 3, paragraph (g), of the Definition of Aggression,annexed to General Assembly Resolution 3314 14 December, 1974

29. According the International Committee for the Red Cross “Customary law, unlike treaty law, is not written. To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists aconviction in the international community that such practice is required as a matter of law. In this context, ‘practice’

relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible because if thiscontrary practice is condemned by other states or denied by the government itself the original rule is actually confirmed.” http://www.icrc.org/eng/customary-law

30.According to Cassese, Customary law “is made up of two elements: general practice, or usus or diuturnitas, and the conviction that such practice reflects, or amounts to, law (opinio juris) or is required by social, economic, or political exigencies (opinio necessitatis)’, Antonio Cassese, International law(Oxford, 2001), 119. Cassese goes on to say that, ‘in the case of custom, States, when participating in the norm-setting process, do not act for the primary purpose of laying down international rules. Their primary concern is to safeguard some economic, social, or political interests. The gradual birth of a new international rule is the side effect of States’ conduct in international relations.

31.Michael M. Schmitt, “Counter Terrorism and the Use of Forcein International Law.” The Marshall Center PapersNo. 5 2002 at pg. 36 32. Declarationon Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations Security Council Resolution2625 24 October, 1970

33. King, 43

34. Schmitt, 20 “The proportionality principle simply requiresthat the response in self-defense be no more than necessary to defeat the armed attack and remove the threat of reasonably foreseeable future attacks.”

35. ICJ Advisory Opinion: “Legality of the Threat or Use of Nuclear Weapons.” I.C.J. Reports 1996, at para. 41

36. Henkin, Louis, Right vs Might: International Law and The Use of Force, New York, 2nd Edition; 26 September 1991

37. Charlotte Ku and Paul F. Diehl, International Law: Classic and Contemporary Readings, 3rd Edition, Colorado, Lynne Rienner, 2003

38. Ibid,

39. Mary Ellen O’Connell, “Lawful Self Defense to Terrorism” Scholary Works, 149 (2002) 599

40. UN Security Council Charter

41. Janis, Mark Westin, International Law 6th Edition (Colorado: AspenPublishers, 2002) 329

42. Ibid., 570