| Summary: | 碩士 === 臺灣大學 === 政治學研究所 === 95 === Abstract
This study aims at defining the concrete content and requirements of the right of self-defense under the international law in the view of positivism theory. Through an exploration on the case of the US’ War on Afghanistan in response to the terrorist attack on 11th September, 2001, this study also examines the applicability and the legality of taking self-defense as a instrument to combat terrorism. Owing to its highly political nature, the law on the use of force（jus ad bellum）is one of the most debated issues of international law. The debate of the 2001 “Operation Enduring Freedom” is in essence a sequel following the debates in respect to the 1982 Israeli invasion of Lebanon, the 1984 Israeli bombing Tunisia and the 1986 US’ bombing Libya, but larger in military gravity and more legitimately persuasive in victimhood.
An analysis on this case from a reflection upon the state-will-centric positivist perspective has led to four points for our reference as follows:
First, the cons insist that a correct understanding of the term “armed attack” in the UN Charter must be an act of a state, and violence originated from private individuals or groups is not included; while the pros argue that the scale and effects of 911 are no less than a regular war. In the aftermath of 911, the dichotomy of armed conflicts and terrorism crimes has been greatly blurred and tangled.
Second, even those who argue that 911 constitutes an armed attack, still adhere to a nexus between the attack and a sovereignty state. Without such nexus, it therefore implies that no state is attributable for the terrorist attack, resulting in that the US cannot direct forcible response towards any other state! What is revolutionary is that vicarious (indirect) responsibility weighs equal to original (direct) responsibility when invoking the so-called sovereign duty. In US’ eyes, harboring terrorists by Taliban makes no difference from a direct attack by it.
Third, to examine “Operation Enduring Freedom” with Webster’s formula in the Caroline Case, not only both the necessity and immediacy cannot stand, but the proportionality is violated as well.
Fourth, the issue in question is not technical uncertainty of norms about the use of force and self-defense, but the lack of crucial proof of the existence of facts that allow the US to trigger the right of self-defense. Had the US revealed substantial proof in public, its “Operation Enduring Freedom” might have never given rise to fierce challenges.
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