Article 2(4) and the Rise of the Non-State Actor
In 1993, Samuel Huntington published The Clash of Civilizations. Huntington theorized that nation states will remain powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. While Huntington’s theory is not perfectly applicable to the world today, it is not without salience. A considerable portion of contemporary conflict arises from the action and reaction to non-state actors.
The rise of the non-state actor in global conflict is problematic because it threatens the integrity of certain aspects of the UN Charter which was written, drafted, and ratified during a time when the “principal conflicts of global politics” were between nation states. The UN Charter, Art 2(4) reads: “All Members shall refrain in their international relations from the threat or use 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.” Contemporary national security concerns put significant stress on this section of the charter. Targeted killing and capture may be the most effective and efficient form of defense the United States has against non-state aggressors such as al-Qaeda, but such practice often conflicts with Article 2(4).
Article 2(4) does not permit the targeted killing or capture of individuals residing in other states without consent, as such use of force would violate the other state’s sovereignty. However, in instances of targeted killing or capture, the United States has generally circumvented the issue of state sovereignty by relying on the 2001 Authorization for the Use of Military Force (AUMF) or Article 51 of the UN Charter.
Washington asserts the “right to self-defense” under Article 51 permits the killing or capture of high-level al-Qaeda operatives in other states, regardless of that state’s consent. This broad interpretation of Article 51, as well as assertions of justification under domestic law (AUMF), suggests the rise of non-state actors makes state sovereignty and Article 2(4) only a secondary concern.
On October 5, 2013, U.S. forces captured al-Qaeda leader Nazih Abdul-Hamed al-Ruqai, commonly known as Abu Anas al-Liby outside of Tripoli. Anas al-Liby is accused of masterminding the bombing of U.S. embassies in Kenya and Tanzania in 1998. Subsequently, he was indicted in a federal court in Manhattan and placed on the FBI’s most wanted list. Washington’s assertion that al-Liby was a “legal and appropriate target” is valid; given the charges against al-Liby, the United States had the right and the obligation to take the necessary steps to apprehend him. Under domestic law, the United States committed no error in his capture. Furthermore, a broad interpretation of Article 51 might also affirm the legality of this capture. Given al-Liby’s alleged involvement in past attacks and his association with al-Qaeda, the United States could argue the capture was a necessary and proportionate force made in self-defense.
However, under Article 2(4), al-Liby’s capture loses international legality. Libya is a member state of the United Nations, making the use of force by another state in Libyan territory absent Libya’s consent expressly prohibited by Article 2(4). In al-Liby’s case, the issue of consent is unsettled: Libya maintains that it did not authorize the “kidnapping” of al-Liby, while U.S. officials suggest that Libya did consent to the capture operation. By contrast, a failed raid targeting al-Shabab leader, Ahmed Godane, in Somalia coincided with the raid in Libya but had the express consent of Somalia’s prime minister.
At best the international legality of al-Liby’s capture is unclear under Article 2(4). Yet according to legal scholar, Stephen Vladeck, “[T]he legality of the raid under international law shouldn’t—and almost certainly won’t—bear on the ability of the United States to try al-Libi in a criminal court”. Vladeck supports this statement by citing the Ker-Frisbie doctrine, which holds that criminal suspects cannot object to how they got into court, even if there are international law concerns with the means by which they were captured.
Using domestic law to circumvent an international standard that does not effectively consider current international circumstances may very well be the best way to serve U.S. national security concerns. However, such a practice sets a precedent that the U.S. doesn’t necessarily want other states to follow. While the increasingly salient role of non-state actors in global conflict puts pressure on Article 2(4), state sovereignty is still an important concern. In some situations, such as the capture of al-Liby, breaking from the language of Article 2(4) supplies the best remedy for a security threat. Nonetheless, the circumvention of Article 2(4) creates legal ambiguity around an international standard that carries with it significant national security interests.