After the Paris attacks and the act of terrorism against a Russian airliner in Egypt, Russian President Vladimir Putin gave a clear signal to terrorists and those who are behind them.
From left: head of General Staff, Gen. Valery Gerasimov, Defense Minister Sergei Shoigu, Russian President Vladimir Putin, Federal Security Service (FSB) head Alexander Bortnikov, Foreign Minister Sergey Lavrov and Foreign Intelligence Service head Mikhail Fradkov stay during a minute of silence before a meeting on Russian plane crash in Egypt in Moscow's Kremlin, Russia, early Tuesday, Nov. 17, 2015. Photo: Kremlin Pool Photo
On Nov. 17, Russian President Vladimir Putin chaired a meeting on the results of the investigation into the crash of the Russian airliner in the Sinai. At this meeting, Alexander Bortnikov, the director of the Federal Security Service (FSB), confirmed what had already been speculated since the earliest days of the crash of the Russian Boeing A321 – this was a terrorist attack.
In response, Putin said that Russia would invoke Article 51 of the UN Charter, which enshrines the right to individual and collective self-defense. What does that mean, and will it be legitimate to carry out air strikes on the positions of terrorists located in the territory of another state?
Is it legitimate to refer to the right of self-defense as a response to a terrorist act?
Indeed, the UN Charter was written at the end of the Second World War, when everyone’s understanding of what constituted threats to peace and security was unequivocal. Accordingly, for many years the right to self-defense was perceived solely as an opportunity for a state to put an end, using all possible (but legal) means, to aggression coming from another state or combination of states.
However, for nearly 15 years now, the right to self-defense has been interpreted by the UN Security Council in a much broader sense. After 9/11, the UN Security Council (in Security Council resolutions 1368, 1373 and subsequent ones) qualified the terrorist attacks carried out by al-Qaeda, being supported by the Taliban, as a threat to international peace and security, and essentially confirmed the right of the United States to defend itself and, in general, legalized the actions of the anti-terrorist coalition in Afghanistan.
Thus, the UN Security Council equated the terrorist attacks against the United States with armed aggression within the meaning of Article 51 of the UN Charter.
Interestingly, the author of this idea of the right to self-defense against terrorists was not the United States, but their strategic partner, Israel. Already in the 1980s, this country carried out bombing raids against Lebanon and Tunisia, claiming its “right to self-defense” against “terrorists” of the Palestinian Liberation Organization (PLO).
In all fairness, it should be noted that international law norms of self-defense in response to terrorist attacks are still poorly developed today.
As Leonid Skotnikov, judge at the International Court of Justice, noted, even with respect to the response of the United States and its allies after 9/11, the UN Security Council did not determine whether the U.S. had a right to attack a particular state or non-state actor. Moreover, it did not set any time limits for the exercise of the right to self-defense. The resolutions of the Security Council contained only generalities, reaffirming the inalienable right of any state to defend itself.
Nevertheless, the precedent of attacking the terrorist bases of Al-Qaeda, with the approval of the Security Council, to this day continues to place into practice the implementation of the relevant norms of international law.
Who has the right to invoke self-defense provisions?
As we already mentioned, the right to self-defense has historically been implemented against aggressors. In principle, the concept of “self-defense against terrorists” is still legal nonsense. The specific people carrying out terrorist acts are criminals, whose deeds are certainly ambitious, and do have global impact.
However, they are not the same as states, and cannot be placed at the same level and treated as equal opponents of nation-states. Terrorists are not arbiters of destinies, but criminal elements. The “war on terrorism” is only a figurative expression. Countering them in practice is the job of law enforcement agencies, albeit often in the form of special operations units.
It is another matter, when we speak of states that order terror attacks and/or are the accomplices of the terrorists. These may be justifiably subject to the full-scale application of the right to self-defense. Thus, the UN definition of aggression recognizes this to also mean the sending, by or on behalf of a state, armed bands, groups, irregulars or mercenaries, which carry out acts of armed aggression against another state. The legal response to such actions is the same right to self-defense under Article 51 of the UN Charter.
In the case of the banned Islamic State of Iraq and the Greater Syria (ISIS), this situation applies. Within nation-states, in particular Syria, being carried out are terrorist activities directed against the interests of other countries, particularly Russia. Of course, the Syrian government is unable to stop the terrorist activity on its own, because it simply does not control a part of its territory. Accordingly, it cannot be held responsible for the actions of the terrorists.
Confirmation of this is the request made by the government of President Assad, seeking Moscow’s help in the fight against terrorists in the territories not controlled by Damascus. Large parts of the country are under the control of a number of terrorist groups, the largest and most organized of which are ISIS and the al-Nusra Front. The leaders of these organizations claim the role of a peculiar type of “government,” and generally position themselves as independent autonomous actors, something that has been often noted by Russian Foreign Minister Sergey Lavrov.
Accordingly, against the administrative centers of these quasi-public entities, Russia can now carry out attacks, invoking the right to self-defense.
A similar story was observed during Operation Enduring Freedom against Afghanistan, which was then ruled by the Taliban. This movement not only exercised effective control of most of the state and exercised the corresponding powers, but also positioned itself as the legitimate government of Afghanistan, with which, by the way, a number of countries even maintained diplomatic relations.
Thus, the U.S. and its allies exercised their rights to self-defense not against an abstract terrorist network or individual, disparate militant groups, but against quasi-state with a territory under its control, administrative centers, etc.
Did Russia now adopt this concept of self-defense against terrorists, and what are the causes?
In fact, the idea of imposing possible self-defense measures in the event of terrorist attacks was announced in the early 2000s, by the then Russian Defense Minister Sergey Ivanov. He and then Chief of General Staff Yuri Baluyevsky talked about Russia’s readiness to strike terrorist bases in any region of the world. The necessary legal framework for this was also developed.
The Federal Law “On Combating Terrorism” of 2006 (Article 10) authorizes the use of weapons from the territory of Russia against terrorists residing abroad and (or) their bases, as well as the use of military units to carry out the tasks of combating international terrorist activities abroad.
Another law – “On the Federal Security Service” – indicates that the Russian president can decide to use special units against terrorists located outside of Russia and (or) against their bases.
However, we should note that the use of weapons, and even armed forces, to perform counter-terrorism tasks abroad can be assigned to defense and/or law enforcement agencies, depending on against whom such measures are being taken.
If the objects are a state or quasi-state structures, then we can talk about invoking self-defense. If the counter-terrorism measures are directed against individuals and their associations, then this is a law enforcement function, regardless of the agency, volume and duration of use of particular resources and capabilities.
Therefore, we are not talking about defense in relation to the use of Russian armed forces for domestic counter-terrorism operations. Counter-terrorist operations were carried out in the territory of the North Caucasus, and the right self-defense against terrorists was not invoked. It is inappropriate to talk about self-defense also when it comes to counter-terrorism operations by special operations abroad.
The complexity of defining terrorism at the level of international institutions
We should not forget the old axiom – one person’s “terrorist” is another person’s “freedom fighter.” Unfortunately, this is the practice of “double standards” – and it was always like this in the past, and continues at present.
That is the reason we cannot, nor will be able to, in the foreseeable future, agree on an international definition of terrorism, the absence of which many experts like to talk about. For many years, the UN has been trying to reach agreement on the draft Comprehensive Convention on International Terrorism, initiated by India. The stumbling block here is the same as in the question of distinguishing terrorist acts from the right of self-determination.
On the other hand, the absence of a common definition is no reason to sit back and do nothing. At the national level, terrorism is considered a criminal activity, and is accordingly treated in all countries of the world. This is not a common internationally accepted definition, but it is better than nothing.
At the UN level, the existence of any threat to the peace or an act of aggression, in accordance with the UN Charter, is defined by the Security Council. Moreover, the Council does this ad hoc. In each case, it takes into account all the circumstances, coordinating positions and often the different approaches of its members.
A single definition of terrorism will not help here, because no influential state is likely to change its political motives and recognize, or not recognize, a certain organization as “terrorist,” if relying just on the definition of terrorism in international law.
Another matter is the right to self-defense. Under the United Nations Charter, until the Security Council adopts measures to remove threats to the peace, or an act of aggression, each country has the right to act alone, or collectively, in implementing this right.
Thus, if the Security Council cannot make a quick decision when there is a real threat to security, a state has the right to take urgent measures on its own (with subsequent notification of the Security Council).
Thus, if after a major subversive terrorist attack, there appears irrefutable evidence that some state or states were behind this attack, the affected country has the right to retaliate. States that act as accomplices to a terrorist attack can be reasonably held responsible for indirect aggression against a country that is a victim of such an attack.
It seems that this was what President Putin was referring to when he spoke about the right of Russia to defend itself after the A321 was blown up. Putin promised retribution against all those involved in the crash of the Russian Boeing over the Sinai, regardless of where they are located now. This was a warning for countries that are playing their games using ISIS as a cover.
Thus, awaiting terrorists is the implementation of law enforcement special operations, including in other countries. Moreover, in respect to the states, Russia will gather information about their implication in the preparation of the terrorist attack against the airplane – be it negligence, criminal connivance, or direct assistance and support. Depending on the collected evidence, a response will be prepared, and it is possible that the right to self-defense will be invoked.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.