UN Charter Article 51 and the Right to ‘Anticipatory Self-defense’: Validity of the US Preventive War Doctrine against Al Qaeda

Abstract

This article investigates whether the US war against Al Qaeda in Afghanistan is a customary ‘inherent right’ under the right to force doctrine as codified in Article 51 of the UN Charter. While its fool-proof nucleus covers national states inter partes relations, the provision's applicability to non-governmental organizations (NGOs) is unclear, especially in cases of conflicts, where a NGO is a party in an international conflict, such as the US-Al Qaeda conflict in Afghanistan. Because Article 51's foundation is in ‘a defensive strategy,’ states that deploy military troops across borders under the cover of self-defense must notify the UN Security Council immediately and must justify their actions. The distinction between armed attack and armed defense is the most important element defining the legality of a state's conduct. However, the Article 51 inherent right of self-defense arises solely to protect against ‘armed attacks,’ and under international law, an ‘armed attack’ alone triggers the right of self-defense. This raises the question as to whether a terrorist attack undertaken by a NGO qualifies as an armed attack? What guidance do the UN Security Council resolutions of September 2001 provide to support the US claim of anticipatory self-defense, as they do not invoke the notions of war, armed attack, or military measures, as they refer only to ‘terrorist attack,’ a term that is not a defined and internationally accepted term of war?