Legal implications of retaliation

Military retaliation seems almost inevitable

By Diplomatic Correspondent Barnaby Mason

President Bush has said that, as a result of the attacks on New York and Washington, the United States is engaged in the first war of the 21st Century.

Are we not supposed to in any way react, and are we supposed to simply respect the sovereignty, say, of Afghanistan if they indeed were behind this?

State Department official Richard Haass

Retaliatory military action of some kind seems almost inevitable.

The United States is of course conducting a criminal investigation and collecting evidence.

But beyond the normal legal process, the Bush administration is drawing up a whole range of options for action against presumed culprits and the countries it decides are sheltering them.

A senior State Department official, Richard Haass, told the BBC that the United States would have the moral high ground and indicated that it would not be restrained by legal questions of sovereignty.

"Governments who violate the sovereignty of other countries - the United States has just intervened against," he says.

"Are we not supposed to in any way react, and are we supposed to simply respect the sovereignty, say, of Afghanistan if they indeed were behind this, as absolute and not do anything? I think governments have obligations as well as rights."

Recent interventions

If it comes to American military intervention, comparisons with the recent past will be made.

The expulsion of Iraqi troops from Kuwait by an American-led coalition was specifically authorised by the United Nations.

The expulsion of Iraqi troops from Kuwait was authorised by the UN

The Nato bombing campaign over Kosovo was not, although Security Council resolutions demanding the end of Serbian repression provided some legal cover.

Now, the United States will certainly refer to the Security Council resolution passed on Wednesday.

It said the horrifying terrorist attacks in New York and Washington were a threat to international peace and security.

The council said it was ready to take all necessary steps to respond to them and stressed that those harbouring the perpetrators would be held accountable.

The resolution does not authorise American military action, but the Bush administration will certainly argue that it gives political and moral justification for what it may do.

World opinion

Then there is Article Five of the Nato charter, invoked this week for the first time, which commits the whole alliance to assist any member state that comes under armed attack.

This refers to the right of self-defence, well established under international law.

In a war, that includes the right to take pre-emptive action.

The difficulty is that normally the target is an enemy state.

It is not entirely clear what the legal position is if an operation is directed against a handful of individuals, or a state which maintains it is not responsible for their actions.

Ultimately, it is the court of world opinion that will decide whether the action is justified - and it is unlikely to speak with one voice.