Article 51: Self-Defense and its Limits in the UN Charter

18 July 2005
Article
 
Phyllis Bennis

Article 51: Self-Defense and its Limits in the UN Charter
Phyllis Bennis
TNI Website, 1 February 2002

The US has claimed that Article 51 of the UN Charter, allowing a nation to use self-defense, authorizes its entire unilateral war in Afghanistan. But Article 51 is quite limited in its authority. It allows the use of military force by a nation that has been attacked only "until the Security Council has taken measures necessary" to deal with the problem [emphasis added]. If, for example, the Pentagon had been able to scramble a jet to shoot down the second plane before it hit the World Trade Center, that would have been a legal, if horrifying, use of military force for self-defense. In terms of gaining Security Council authorization for the use of force BEYOND the immediate emergency force required, the US did indeed convene an emergency meeting of the Council within 24 hours of the 11 September attacks, and could have requested authorization at that time. There is little doubt that such a request would have been granted most likely with the same unanimity emotional fervor as the actual resolution.

But Washington specifically abjured from calling for Council or other UN action to respond. Instead, Council resolution 1368, passed on 12 September, was taken unanimously and with enormous emotional fervor, but its text was limited, and did NOT authorize either UN, or coalition, or further US unilateral military action. It was not taken under the explicit authority of Chapter VII of the UN Charter, a requirement for any authorization of the use of military force. Absent that authorization, unilateral US military force weeks after the New York and Washington attacks, launched across the world against uncertain targets of unproven responsibility with inevitable and disastrous civilian consequences, remains a complete violation of international law and the UN Charter.

The text of 1368 "unequivocally condemns" the 11 September attacks, and expresses deepest sympathy to the victims and the people and government of the US The Council then goes on to call on "all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable". It "calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions". The reference to the conventions is particularly significant since the US has refused to sign several of the relevant anti-terror initiatives.

Crucially, the Council then "expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations; and [d]ecides to remain seized of the matter".

What it does NOT do is authorize any military force. Expressing "readiness to take all necessary steps" is a far cry from taking any specific step, including the authorization of force, a legal definition clarified further by the lack of a Chapter VII reference, and the crucial concluding language that the Council "remains seized" of the issue. In UN diplo-speak, that means it remains on the Council's agenda, and under the Council's jurisdiction, to be revisited as necessary.

The creative US claim of what amounts to a new concept of "pre-emptive self-defense" is not a concept within the UN Charter or international law. Such a claim may indeed apply to collaborative law enforcement operations to prevent future crimes, especially such horrific crimes against humanity, but does not fall within the deliberately restrictive confines of the [rarely] legal use of military force.