Cruise Missile Strikes in Afghanistan and Sudan

Frederic L. Kirgis
August 18, 1998
On August 20, American cruise missiles struck targets in Afghanistan and Sudan. The target in Afghanistan was identified as an extensive terrorism training complex. U.S. officials said that the United States had convincing evidence that the organization of Osama Bin Laden was responsible for the bombings of U.S. embassies in Kenya and Tanzania on August 7, and that a meeting of members of an international terrorist network he supported was imminent at the Afghan site when the missile attack occurred.
The target in Sudan was a factory that American officials said made a precursor element used in the production of a potent nerve gas. Sudanese officials said that it was a pharmaceutical plant.
Bill Richardson, U.S. Ambassador to the United Nations, said that the attacks were carried out only after repeated efforts had been made to convince the Sudanese government and the Taliban regime of Afghanistan to cease their cooperation with the Bin Laden organization. President Clinton described the missile strikes as acts of self-defense and of retribution for the bombings of the embassies in Kenya and Tanzania.
Article 51 of the United Nations Charter recognizes the inherent right of self-defense if an armed attack occurs against a UN member, until the Security Council has taken measures necessary to maintain international peace and security. The inherent right of self-defense antedates the Charter. It is subject to two conditions: the necessity of the use of force for defensive purposes, and the proportionality of the force actually used to the force defended against.
A widely accepted test of necessity dates back to 1842 when U.S. Secretary of State Daniel Webster rejected a British claim of self-defense arising out of a raid on a small steamship that was being used in support of a Canadian insurrection against Great Britain. A British raiding party boarded the ship while it was moored on the New York side of the Niagara River, attacked those on board and set it afloat over Niagara Falls. Webster said that although a right of self-defense existed, it should be confined to cases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation." The British government acquiesced in that test, and it was adopted by the International Military Tribunal at Nuremberg after World War II. It has sometimes been questioned since the Nuremberg trials, primarily in the context of defense against a threatened nuclear attack.
The proportionality aspect of self-defense comes into play if the necessity test has been met. It has been formulated in either of two ways. It could mean that the intensity of defensive force must be approximately the same as that defended against, or it could mean that the defensive force-even if more intensive-is permissible so long as it is not designed to do anything more than defend against the reasonably perceived threat. There is no authoritative international decision favoring one of these formulations over the other.
International law recognizes a limited right of reprisal (retaliation) in addition to the right of self-defense. It is a form of self-help legitimizing certain action that would otherwise be unlawful, in response to an illegal act by or under the aegis of another state. It, too, is subject to the general requirements of necessity and proportionality, though they are not in all respects defined or applied in the same manner as in connection with the right of self-defense. In particular, the right of reprisal includes a requirement that non-coercive means of settling the matter be attempted before a reprisal is carried out. There is a substantial body of legal opinion that the UN Charter further limits permissible reprisals to measures other than armed force, since Article 2(4) prohibits any "threat or uses of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This would still permit the use of armed force if it meets the requirements of self-defense.
About the author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
Hisham al-Zoubeir
October 1998
Frederic Kirgis writes a very interesting article regarding the American cruise missile attacks on Sudan and Afghanistan. Similar in style to the US press, he tries to prove that the strikes were indeed valid and neccessary according to international law. 
Kirgis claims that the target in Afghanistan was identified as 'an extensive terrorism training complex', and ergo it was a valid target. However, is it not interesting that very 'complex' never would have existed had it not been for extensive CIA training and funding? A fact that seems to have been overlooked, as well as the fact that even if it was a terrorism complex, it is still illegal to arbitrarily take life without due process. Without the rule of law, what are the international treaties that the nations of the world sign to worth? In this case, the US decided to become the prosecutor, defender, judge, jury and executioner. And what a trial; most of the 'criminals' were innocent civilians, and their murderers will most likely never be brought to trial. 
The factory in Sudan was identified as a chemical warfare plant, according to US officials. Yet, prior to the bombings, we heard no evidence given to that effect. And after the event, when numerous neutral observers called for an independent investigation, even former US President Jimmy Carter, we heard nothing from the US, except a flat 'no'. Surely if the evidence is as irrefutable as to warrant such a response, it can be heard in open court? 
In the article, Kirgis claims that this was self-defense, but it obviously was not. Self defense occurs between an attacker and his victim; in this case, the attacker was unidentified. No evidence was proven or even shown; only speculation. 
However, article 51 of the UN Charter does recognise the right of self -defense. In that case, Sudan and Afghanistan would legally be allowed to exact measures against the US, if we are to take Frederic Kirgis's interpretation, since there is no doubt that the US did in fact take civilian life, without adhering to international law in the slightest. 
There should be no double standard. The United States of America acted contrary to international law, and its own domestic constitutional law ( as well exposed by Professor Francis Boyle). It should be brought to justice, but as my law professor used to say,' law, especially international law, is always interwoven with politics.' 
Professor Kirgis responds:  
The Flash Insight series is intended to shed light on the international law issues raised by significant current events, taking into account the positions taken by the governments involved. The Flash Insight on cruise missile strikes in Afghanistan and Sudan reported the assertions of the United States government (as well as a statement by Sudanese officials), not as an endorsement of any position, but as a necessary basis for framing the legal issues. In accordance with ASIL policy, the Flash Insight made no attempt to show that the strikes were either proper or improper under international law.