TERRORISM AND THE RIGHT OF SELF-DEFENCE: RETHINKING OF LEGAL AND POLICY ISSUES

Abdul Ghafur Hamid Dr., Professor of Law, International Islamci University Malaysia, Kuala Lumpur, Malaysia

Abstract

Self-defence has long been understood as a right applicable only in an inter-State armed conflict. After September 11, however, there have been attempts to widen the scope of self defence to include attacks by terrorists - non-State actors. This paper reappraises the legal and policy considerations that promote a right of self-defence against terrorists, or against States havouring terrorists. The paper advocates three main arguments: (1) that ‘armed attack’ as required under Article 51 must come from a State or at least the attack must be attributable to the State to the extent that it is taken as the act of the State; (2) that there is nothing in the Security Council resolutions to suggest that a terrorist attack as such is an ‘armed attack’ under Article 51; and (3) that to use military force against another State is a serious matter that requires a higher threshold of attribution than mere harbouring. International terrorism has international dimension and it cannot be wiped out by means of unilateral use of force and regime change in the name of self-defence. As unilateralism may lead to subjectivity, selectivity, double standard, and injustices, the paper concludes that multilateralism is the most appropriate way to combat international terrorism and that the latter can be effectively dealt with by coordinated and comprehensive law enforcement measures through proper international bodies, like the UN Security Council, and through appropriate regional organizations and cooperation.