SET 5 - READING NOTES

1. International Law, US Foreign Policy and Post 9/11 Islamic

Fundamentalism: The Legal Status of War on Terror - Javaid Rehman
I. Introduction
• The days immediately after 9/11 saw tension, anger and anxiety. These days saw
considerable activity in the UNGA and UNSC wherein UNSC passed two resolutions -
1368/2001 and 1373/2001 where extensive measures were agreed to be put in place to
counter terrorism. The world community, including the Organisation of Islamic
Conference showed unanimous solidarity.
• However, this particular terror attack was used by the US Government to undermine the
established norms, practices, principles and framework of international law.
• This was called 'War on Terror', unilaterally launched by the US, and was characterised
by ambiguity and lack of prrecision. In 2006, G. W. Bush called it similar to the cold war,
referring to an 'idelogical war'
• However, such vague and ambiguous political standpoints were problematic and
dangerous. They were leading humanity towards the path of 'clash of civilisations'.
Instead, the US government should have promoted a dialougue between the west and the
islam.

II. Legal Analysis of the Scope and Definition of the War on Terror
The term 'war on terror' was ambiguous and problematic for the following reasons;
• Historically, war was seen as a form of aggression resulting in occupation of terrirory.
This was evident in the first and second world war. Chastened by these experiences, the
UN Charter placed empahsis on the prohibition of illegitimate 'use of force' under article
2(4). There were only two possible justifications for use of force: self defence (article 51)
and authorisation by Security Council (article 42). However, war on terror distorted the
meaning of use of force. The war on terror was different from traditional wars since it
was not against a particular state or believers of Islam. As, Bush clarified in 2006, it was
focussed on Al Quaeda, and all those who supported religious extremism and terrorism.
Use of force was still involved, so it could not be called a psychological war like war on
drugs, or war on poverty.
• Although, current terrorists are readily identifiable, the international community lacks a
clear definition of who terrorists are. In fact, exercise of self determination, by the
oppressed at the time of colonialism were called terror activities by the oppressors. For
example, African, Asian and Irish struggle for independence. 'One man's freedom is
another man's terrorism.' There were economic, social and political injustices underlying
terrorism, which needed to be eliminated to reach to a consensus on the definition of
terrorism. There is no specific treaty which deals with the general subject of terrorism.
 Even the Rome Statute does not include terrorism as a crime of concern.
Therefore, there is ambiguity around the term 'war on terror'.
Later, via a speech by Bush, Axis of Evil - including Iraq, Iran and North Korea, was included in
the War on Terrror.

III. Implementation of the War on Terror

The key geographical battlegrounds of the War on Terror were: Afghanistan and Iraq.
The two Security Council resolutions passed after 9/11 did not authorise use of force. The
resolutions called for consolidated effort to prohibit and condemn all forms of terrorism.
The US and its partners codenamed the operation 'Operation Enduring Freedom' and aerially
bombed Afghnaistan. They did so knowing that Afghanistan was willing to extradite Osama Bin
Laden to a third country for fair trial. Even the OIC made efforts to mediate and obtain the
custody of Bin Laden. The US govt. was very clear with the fact that the bombing would expose
Afghan people to the risk of collateral damage.
US justified its actions by stating that use of force had been was sanctioned by the UNSC to
preserve individual and collective self defence. However, this justification is flawed for the
following reasons;
• The UNSC resolutions did not mention the right of self defence- either individual or
collective- anywhere.
• The Security Council deliberately omitted 'armed attack' from the resolution which is
necessary to trigger this right.
• The resolutions were generally meant for terrorism, and the acts were not attributed to
one particular entity like Taliban or Al Quaeda.
• In accordance with the reading of Article 51, the right to take action on the basis of self
defence was exhausted because the Securtiy Council had taken the necessary action.
• The US had failed to establish that the bombing was actually an act of self defence and
not an act of reprisal.

The bombing was nothing short of disaster becuase of the following-

• Collateral damage suffered to the people due to the bombing
• Al Quaeda and its sympathisers have mushroomed
• Future of democracy and human rights remains highly uncertain
• Afghanistan is now governed by people infamous of their violationof human rights.
However, a greater tragedy was, fusion of this war on terror with the threat to international peace
and security to legitimise US' Iraq invasion. It was alleged by the United States that the threat
from Iraq’s weapons of mass destruction (WMDs) was so substantial and real that the
international community had to take immediate military action. So, US turned towards the
security council to authorise military force against Iraq but this did not materialise. So, US
claimed right of premptive self defence to use of foce and invade Iraq. They relied upon a
misleading interpretation of some previous resolutions of the security council. However, no
WMDs were found in Iraq.
Therefore, the US invasion not only resulted in enourmous suffering for iraqi people but alos
flagrant violation of human rights.

IV. Violation of International Humanitarian and Human Rights Law

• The US government transferred captured individuals from Afghanisgtan to Camp X ray
(Camp Delta). Detentions, torture and inhuman and degrading treatment has been
inflicted upon these individuals.
• In Hamdan v Rumsfield, the US Supreme Court held that the milirary commission
established to try detainees is illegal and the federal government lacked the authority to
establish such a commission.

V. United States Foreign Policy, the War on Terror and Human Rights Agenda
• The Bush administration used human rights arguments to justify its actions in
Afghanistan and Iraq, citing atrocities committed by the Taliban and Saddam Hussein.
The removal of these dictatorial regimes has been welcomed by those who were
terrorized by these regimes.
• However, the US foreign policy arguments are fallacious and deceitful. For decades, the
US supported human rights violators, including General Ziaul-Haq, a military dictator
and religious fundamentalist in Pakistan. This led to the destruction of religious
minorities, the collapse of radical Madrassas, and the arming of radical groups. This led
to the birth of Al-Qaeda, Osama Bin Laden, and the spread of religious extremism in
Afghanistan and Kashmir.
• There was a significant link between Osama Bin Laden, Al-Qaeda, and Saudi Arabia,
with 15 of the 19 highjackers being Saudi nationals. Despite substantial evidence, no
action was taken against Saudi Arabia, which has consistently aided radicalism and
religious fundamentalism. The Saudi Royal Family remains close friends of the Bush
family and is the closest ally of the US in the 'war on terror'.
• The promotion of human rights is primarily driven by the political ambitions of the
United States and other powerful countries, with the worst violators in the Iraqi region
 being close allies. The 'war on terror' has allowed dictatorial regimes to repress, torture,
and violate fundamental human rights.

VI. Conclusion
• Modern international law has perpetuated a vicious pattern of world governance where
powerful, rich states dominate at the expense of others. The post-colonial world emerged
after World War II, shaped by the imperialist political elite. The Security Council,
established to maintain peace and security, has been criticized for denial of justice, equity,
and fairness.
• The Islamic world has suffered due to this unfairness, with the Security Council being
least supportive in matters affecting the Muslim community. The US's policy of
appeasing dictators and installing puppet regimes in the 'war on terror' has angered
Muslim communities, leading to a resurgence of anti-Western sentiments. The majority of
the Muslim population is disillusioned with their leadership and suffers from poverty,
hopelessness, and disenfranchisement. The 'war on terror' may generate a backlash,
leading to fundamentalist and violent Jihadis emerging as dominant forces.

2. International Law and its Transformation through the Outlawry of War -

Oona A. Hathaway and Shapiro
I. Introduction
The First World War began with a legal wrong, when Bosnian Serb Gavrilo Princip assassinated
Archduke Franz Ferdinand and his wife Sophie. Austria-Hungary responded by issuing an
ultimatum to Serbia, which Serbia agreed to. Austria-Hungary declared war on Serbia, Russia,
and Germany, asserting its right of self-defense. Germany asked France for neutrality, but
Belgium refused, leading Great Britain to declare war on Germany. Austria-Hungary declared
war on Britain and France, which returned the favor. Italy, Japan, the Ottoman empire, and
Bulgaria also sided with France, Russia, and Britain. The United States stayed out until 1917,
when it declared war due to Germany's U-boat campaign. The victors demanded indemnification
for the costs imposed on them and carved up the territory of the losing states. The Ottoman
empire was dissolved, Austria-Hungary was dismembered, and Bulgaria was reduced.
The first world war marked the end of the old world order. A world order where war was a
legitimate means to rectify legal wrongs and victor's justice. This was the international law at
that time. For a change, the Kellogg Brandt Pact was signed in 1928, which outlawed war.
However, generally, as per realists, law changes incentive, but here an incentive - the Kellogg
Brandt Pact was changing the law. This shows the role of law in transformation.

II. The Old World Order

• The old world order was characterized by the belief that war was a legitimate means of
 righting wrongs. States were legally permitted to go to war when a court was
unavailable. This principle, as stated by Hugo Grotius in 1625, allowed states to enforce
their rights through war.
• States had the right of conquest, where they could retaliate with force and capture
territory as compensation. They could also threaten to wage war for the same purpose, as
seen in the United States' 1846 war over unpaid debts.
• The old world order also granted immunity to those who waged war, authorizing mass
homicide. This allowed states to enforce their rights and maintain their legal authority
over their subjects.
• Waging aggressive war was immune from prosecution, and neutral states seeking to
punish aggressive states by imposing economic sanctions was violating their duty of
neutrality.
• These rules supported and reinforced one another, ensuring that states could use war to
right wrongs and maintain a coherent system.
• Towards the end of the first world war, the old world order was under strain.
• The victors demanded reparations for the war's costs. Article 231 of the treaty, known as
the 'war guilt' provision, demanded compensation for damages caused to the Civilian
Populations of Allied and Associated Powers. This broke with past practice, where
European peace treaties shied away from moral or legal attributions.
• The Treaty of Versailles also introduced the moralization of war, with article 227
arraigning Wilhelm II of Hohenzollern for a supreme offense against international
morality and the sanctity of treaties. This was the first time a European sovereign was
held liable for starting an aggressive war.
• Despite the challenges, the legal commitments of the old world order remained, with the
longstanding rule against criminal prosecution of sovereigns and combatants for waging
war eventually prevailing.
• The League of Nations, established in 1871, was a significant step in preventing another
global war by implementing compulsory dispute resolution. Articles 13 and 15 of the
Covenant required member states to submit their disputes to the League, either to an
arbitral tribunal, the Permanent Court of International Justice, or an inquiry by the
League Council.
• If a state won the dispute and the loser complied with the judgment, the winner could not
go to war. If a state lost and did not want to comply, it could resort to war, provided it
waited three months before doing so. The Covenant also created a mechanism of
collective coercion, imposing sanctions on members who went to war in contravention of
the Covenant.
• This legal novelty was a significant departure from the past, as neutral states were legally
prohibited from granting privileges to one belligerent and not its enemy.
 • The League of Nations aimed to contain the right of war, but it did not deny it. States that
took their disputes to the League, followed its prescribed process, and waited three
months were within their legal rights to wage war.
• Despite these changes, the right of war remained intact, allowing states to use force as a
last resort to right wrongs done to them. The League Covenant affirmed the right of war
but exposed its implications. However, the efforts to find a new order in Europe failed,
and the right of war remained unaddressed.

III. The Outlawry of War

• The First World War led to a chain of events that transformed the international legal order
and eventually ended its dependence on war. Anti-war activists, such as Salmon
Levinson, aimed to make the legal right to wage war illegal.
• The American Committee for the Outlawry of War, founded by Levinson, tapped into the
existing peace movement, which included hundreds of loosely coordinated groups.
Levinson targeted the League of Nations, arguing that it perpetuated the legality of war
and that outlawing war meant abolishing the lawful institution.
• Some members of the Senate, who were required to approve the Versailles Treaty, agreed,
particularly on provisions of the proposed Covenant that required members to come to
one another's aid in the event of an act of aggression. Republican Senator William Borah
and Senator Lodge opposed the Versailles Treaty, fearing it would destroy the atmosphere
of freedom. They opposed the League's demands, including the need to go to war against
an aggressor. The Senate rejected the Versailles Treaty, leading to Levinson and his allies
devising a plan for peace based on outlawry.
• In 1919, Levinson and Senator Philander Chase Knox worked on a pamphlet called Plan
to outlaw war. The plan resulted in the Kellogg-Briand Pact, signed by 15 foreign
ministers in 1928. However, the pact did not cure the "disease" of war, as Japan, Italy,
and Germany invaded countries within a year.

IV. Transformation Set in Motion

• The Kellogg-Briand Pact, a global treaty that banned war, was criticized by many
historians for its naivety and lack of legal effect. However, it set a significant
transformation in the international legal order, which took over a decade to build.
• The pact's failure to address the world's long reliance on war led to the League's paralysis
in 1931 when Japan invaded Manchuria. Henry Stimson, the American Secretary of State
and successor to Frank Kellogg, argued that the outlawry of war should obliterate the
right of conquest, ensuring that nations could no longer acquire indefeasible title to
anything. This refusal to recognize conquests would act as a real sanction against would-
be conquerors.
 • In 1932, Stimson drafted a diplomatic note stating that the American Government would
not recognize any situation, treaty, or agreement contrary to the covenants and obligations
of the Paris pact. The League of Nations followed suit, calling on member states not to
recognize any conquest "brought about by means contrary to the Covenant of the League
of Nations or to the pact of Paris."
• This led to the outlawry of war in 1928, which ended the legal recognition of conquest.
International lawyers and politicians began to rethink other rights connected to the legal
right to resort to war.
• It even altered the dependent concept of neutral obligations, allowing neutral states to aid
one belligerent without violating any legal duties.
• The Stimson Doctrine made conquest illegal, and neutral states were no longer required
to remain impartial. Economic sanctions became a new tool for international law
enforcement. Gunboat diplomacy and impunity against criminal prosecution for
aggression were also on the brink of collapse.
• The end of the Second World War led to the Nuremberg Trials, declaring aggressive war
as criminal.

V. International Law in the New World Order

• The United Nations is often seen as a reboot of the League of Nations, with key
institutions like the Permanent Court of International Justice and Security Council
renamed. However, the key difference lies in the United States' involvement in the
organization, not retreating from the global community after the Second World War.
• The League of Nations was a creation of the old world order, retaining the right of states
to resort to war. The United Nations, on the other hand, is the culmination of the outlawry
vision, placing the prohibition on the use of force at its core.
• This prohibition applies to all states, regardless of their status as a model democracy,
autocracy, or failing state. This creates a dilemma, as the rules of the new world order
protect all states from the use of force, including those considered weak, chaotic,
authoritarian, or evil. Examples of this have been seen in Syria and Ukraine.
• The UN Charter has a mechanism to override universal protection through a UN Security
Council vote, but disagreements among five permanent members prevent the Council
from overriding the prohibition on force and enabling intervention.
• The prohibition on war in international law prevents states from intervening to protect
others' rights unless authorized by the Security Council or a state requests assistance
defending itself from armed attack. It also prohibits states from using force to protect
their own rights, except in self-defense cases.
• States can refuse to join treaties with other states, as gunboat diplomacy is no longer
allowed. The outlawry of war no longer permits states to take unilateral decisions to wage
 war to right wrongs. The human rights revolution began just as international law could no
longer be enforced with force.
• The emergence of international legal human rights protections at the moment they could
no longer be enforced with war is unlikely to be coincidental. The idea of going to war
over a treaty violation was once commonplace, with nearly half of the war manifestos
citing treaty violations as just causes for war. After the Kellogg-Briand Pact outlawed war
and reinforced in the UN Charter, such treaties were no longer so dangerous.
• The new world order has led to a proliferation of treaties and international organizations.
However, the system of outcasting, where a group denies those who break its rules the
benefits available to the rest of the group, is often more effective than initially thought.
Outcasting occurs when a group denies those who break its rules the benefits available to
the rest of the group.
• This non-violent approach allows states to break rules in return, resulting in lower trade
barriers. This system is found in various international law organizations, such as the
International Coffee Organization and the Convention on International Trade in
Endangered Species of Wild Fauna and Flora. Outcasting is a victim of its own success,
as it is so ubiquitous and often effective that it is usually invisible.
• During the First World War, outcasting was illegal due to the old world order's
prohibition of economic sanctions by neutrals against belligerents.
• The Kellogg-Briand Pact changed the law of neutrality, allowing states to distinguish
between belligerents at war without violating neutrality.
• Today, human rights treaties can be enforced with outcasting, but it requires careful
institutional design. The European Convention on Human Rights is an example of an
international human rights regime that uses cross-countermeasures to enforce human
rights treaties. A state violating the Convention can be sued in the European Court of
Human Rights, and if found guilty, must obey its judgment. If not, it may be cast out of
the Council of Europe, denying it benefits from participating in the Council's economic,
political, and legal ties.

VI. Conclusion
• The world order today is a stark contrast to the old world order, which governed
neutrality, criminal liability, conquest, and gunboat diplomacy. Aggressive wars are
illegal, and states no longer have the right to conquer other states. The international
community outlawed war in 1928, making the world more peaceful and prosperous.
• However, the current generation is slowly undoing this historic process, with countries
like Russia, China, France, the United States, and the United Kingdom placing the
international order under greater stress. The world's response to these threats to the global
legal order will determine whether it has learned anything from the century since the end
of the First World War.
3. Use of Force as Self Defence against Non- State Actors and TWAIL
Considerations: A Critical Analysis of India's State Practice by Srinivas Burra
I. Introduction
• The use of force in international law has become a contentious issue in recent years,
particularly after the September 11 incident. Article 51 of the United Nations Charter
allows for the use of force as self-defense, which is generally understood to occur against
another state.
• However, in recent instances, it is asserted that this right can be invoked by a state while
using force against non-state actors operating from another state. This argument is
primarily relied upon by states like the United States, the United Kingdom, Turkey, and
France, who claim individual self-defense against the Islamic State.

II. Legal Framework and Use of Force

• The United Nations Charter prohibits the use of force in interstate relations under Article
2(4), but permits exceptions in certain circumstances. One exception is the use of force as
self-defense under Article 51 of the UN Charter, which focuses on the immediate
response of a state victim of an armed attack. Article 42 of the Charter envisages
institutional collective security response to the use of force against a state in violation of
Article 2(4).
1. Article 51
• One school of thought argues on the textul basis of article 51 and states that the article
does not mention whether self defence can be exercised against states only, or also with
respect to NSAs. Liberally interpreting the same, implies that self defence can be used
against NSAs as well. However, this argument is flawed since article 51 of the UN
Charter, which prohibits interstate use of force, is an exception that needs to be
understood within the general framework. Its reference to armed attack, including armed
attack from non-state actors, is speculative and lacks coherence in the UN Charter.
• However, as a rebuttal to this, if the drafters had intended a logical continuity between
Article 2(4) and 51, they would have constructed Article 51 similar to Article 2(4), which
prohibits the threat or use of force against the territorial integrity or political
independence of any state. This view suggests that although Article 51 provides an
exception to Article 2(4), its nature is different as it encompasses non-state actors.
However, this argument does not overcome the logical incoherence it leads to in the
larger Charter framework.

2. CIL
 • Another school of thought argues that the right of self-defense against NSAs is justified
by customary international law, which argues that there exists an existing right of self-
defense for states against non-state actors operating from a third state.
• Article 51 of the UN Charter recognizes this inherent right, but it does not create the right
of self-defense. The right of self-defense under customary international law is more
expansive than the right of self-defense under Article 51, including the use of force
against non-state actors.
• The origins of customary international law on self-defense are traced back to the 1837
Caroline incident, which involved the United Kingdom and the United States in violent
resistance against British rule. The exchanged letters between Daniel Webster and Lord
Ashburton laid the foundation for establishing the law on self-defense.
• Webster admitted the existence of self-defense but noted that it is confined to cases where
the necessity is instant, overwhelming, and leaves no choice of means. The action taken
in pursuance of self-defense must be justified by the circumstances and the circumstances
of the case.
• The Caroline incident is considered the beginning of the right of self-defense under
customary international law and is often used to justify the use of force as self-defense
against NSAs. The United Kingdom's use of force was argued to be against the acts of
NSAs, even though it took place in US waters.
• However, this view of self-defense has its conceptual and historical gaps. One is the fact
that the comprehensive prohibition of the use of force only took place in 1945 as part of
the UN Charter. Before that, states had fairly established freedom to go to war, with some
restrictions at historical junctures. The right of self-defense is difficult to establish when
there was no clear legal prohibition on the use of force. The exchange between Ashburton
and Webster in the Caroline incident, which constituted customary international law, is
filled with inconsistencies. Critics argue that the Caroline incident does not meet the
requirements of a widespread or general practice, and that it does not attempt to show
acquiescence from other states.

III. India's State Practice

A. Surgical Strike of 2016
On September 29, 2016, India's Director General of Military Operations (DGMO) announced
that the army had conducted surgical strikes against terrorist launch pads across the Line of
Control (LoC), which separates Indian-and-Pakistani-administered Kashmir. The DGMO
explained that there has been increasing infiltration by terrorists across the Line of Control in
Jammu & Kashmir, with terrorist attacks at Poonch and Uri on September 11 and 18.
India's surgical strikes against Pakistan have been argued as self-defense under international law,
with some arguing that they are within India's territory and not a violation of international law.
Others argue that the strikes were justified under the right of self-defense, as they provide a solid
international legal basis for India to use force against terrorist launch pads, bases, or states that
provide aid and assistance to such groups.
Some scholarly writings also favor the justification under customary international law, rather
than under Article 51 of the UN Charter. Another view argues that India has the right to use force
in self-defense based on Pakistan's inability or failure to prevent its territory from being a safe
haven for terrorists.
However, there are also skeptical views of the justification of surgical strikes under self-defense
and the unwilling or unable doctrine. The imprecise legal position articulated by India, such as
not reporting the matter to the UNSC, and Pakistan's unwillingness to control terrorist activities,
make it difficult to contextualize the strikes within the international law framework.
Both India and Pakistan argue that the surgical strikes did not amount to use of force under
international law, implying that any use of force under international law effectively amounts to
an armed conflict between two states. This imposes responsibility on India to justify its actions in
the context of international law.

B. Balakot Strike
Right against use of force as Self Defence
On February 14, 2019, CRPF personnel were killed in a suicide bombing in Pulwama, Jammu
and Kashmir. Pakistani-based Jaish-e-Mohammed (JeM) claimed responsibility. India sent its Air
Force (IAF) aircraft into Pakistan and targeted a JeM training camp near Balakot. Later, the
pilot- Abhimanyu was released too. But both the sides did not officially categorize their action as
use of force as a right of self defence. Instead, indian officials stated that the attack was infact an
action of premptive self defence accepting that self-defense may be invoked against a non-state
actor in another state, even without attribution, would not be a violation of Article 2(4).
Unable & Unwilling Doctrine
India asserts that Pakistan denies the existence of training camps in Pakistan and PoJK, and has
repeatedly urged Pakistan to take action against JeM activities. However, Pakistan has not taken
concrete actions to dismantle the terrorism infrastructure on its soil.
India's state practice includes using force against non-state actors without clearly expressing their
views on international law.

IV. TWAILs Views

The right of self-defense against NSAs is primarily supported by North American and European
states, but some from the Global South also subscribe to this position.
Although, the right of self defence against NSAs is mostly supported by the west, some countries
of the global south also support this. However, this cannot be called 'the TWAIL approach' since
many other conditions affect a country's position to use force against NSAs. For example;
coercive geopolitical considerations.
The structural bias of the past continues to shape today's world, but there many changes are
leading to a progressive present. In terms of use of force in international law, there are gaps and
differences in its understanding of use of force and unable and unwilling doctrine which can be
used by the global south in their favour.

V. Conclusion
The law on the use of force as a right of self-defense has been a contentious issue in recent years,
especially following the September 11 incident. The permissibility view suggests that it can be
used against NSAs operating from another state, while the restrictive approach rejects this view.
India's state practice, despite military use of force against NSAs in other states, has not
subscribed to this view. A TWAIL critique can capture the ruptures in international law, such as
the UN Charter framework on force use.