Self-Defense Claim Should Hold Up, Experts Say

There is scant precedent in international law for military attacks that cross national borders to strike terrorist organizations operating independently of government sponsorship. But legal experts said a U.S. claim of self-defense in Thursday’s missile strikes is likely to withstand diplomatic scrutiny in the United Nations and other forums.

Moreover, they added that the proliferation of freelance terrorist networks around the world means more such attacks are likely in the future.

“There is a right of preemptive self-defense . . . to send a message to the attackers that their actions are not without cost,” said Joseph Montville, director of preventive diplomacy at the Center for Strategic and International Studies in Washington.

Ian Lesser, a senior analyst of international terrorism at the Rand Corp. in Santa Monica, agreed. “Terrorism has become individuals rather than states; it is a transnational phenomenon,” he said.

“We have terrorists with agendas that are more open-ended, with more religious and ideological motivations,” Lesser added. “It is messier and more lethal now. . . . I think you are looking at the shape of the future both in terms of the threat, as we saw in Africa, and the response, as we saw today.”

Bill Richardson, the outgoing U.S. ambassador to the United Nations, filed a formal notice with the Security Council on Thursday citing the self-defense clause of the U.N. Charter as justification for the U.S. attacks. The council could take up the issue when it meets today.

“These attacks were carried out only after repeated efforts to convince the government of Sudan and the Taliban regime in Afghanistan to shut these terrorist activities down and to cease their cooperation with the [Osama] bin Laden organization,” Richardson wrote, citing the network of Saudi millionaire Bin Laden. “. . . We have convincing evidence that further such attacks were in preparation from these same terrorist facilities. The United States, therefore, had no choice but to use armed force to prevent these attacks from continuing.”

The U.S. argues that the strikes were not directed against the Sudanese government or the Taliban, the Islamic fundamentalist movement that controls most of Afghanistan but is not recognized as a government by most nations or the U.N.

But Elfatih Mohammed Ahmed Erwa, Sudan’s ambassador to the U.N., and spokesmen for the Taliban rejected that argument and demanded proof that the targets struck Thursday were terrorist bases.

“You can’t just say these allegations without proving them,” Erwa said.

He told reporters that the building identified by President Clinton as a chemical weapons factory was “a small, humble facility” that manufactures antibiotics. He said his own home is a short distance from the site and that he had not heard if any members of his family were hurt.

Erwa said Sudan would ask the Security Council to investigate the attacks, but admitted with a laugh that he does not expect it to act because the United States is one of the five members of the council with the power to veto any action.

Ruth Wedgewood, a professor of international law at Yale and visiting scholar at the Naval War College, said there aren’t many past attacks that parallel Thursday’s raids in all their details, but that the U.S. position is adequately grounded in law.

“It’s pretty close to classic Article 51,” she said, referring to the section of the U.N. Charter permitting states to act militarily in self-defense. One aspect weighing on the issue is the number of casualties and the amount of damage, if any, inflicted on people and buildings not linked to the terrorist targets, Wedgewood added.

“It helps to get discrete, clean targets,” she said. “Having a cluster of [terrorist] training camps in the middle of the desert is pretty important.”

Lesser, a former policy advisor in the Clinton administration, said it also is important to note that the attacks did not target Bin Laden for assassination.

“The administration is being very careful to distinguish between an attack on infrastructure and not on Osama bin Laden himself,” he said. “We don’t assassinate. As an instrument of foreign policy we don’t do that.”

But Lesser said the new kind of terrorism requires new remedies.

“One new aspect is [the] willingness to forcefully apprehend individuals even against the host country’s wishes. . . . As part of this privatization of terror, we are also likely to see more confiscation of assets and freezing of assets. In this case we should look seriously at how we separate someone like Bin Laden from his money.”

Lesser cited two previous examples of the United States operating in foreign airspace and on foreign soil to capture terrorist suspects.

In October 1985, four Navy F-14 fighters forced an EgyptAir passenger jet to land at an American air base near Catania in Sicily, and four men on board suspected of having been involved in the hijacking of the cruise ship Achille Lauro were arrested. The incident caused a rift with the Italian government, which freed the men.

In June 1997, FBI agents captured Mir Aimal Kasi, a Pakistani charged in the 1993 killings of two CIA employees in Langley, Va. Kasi was captured in a Pakistani hotel and spirited out of the country without consulting Pakistani officials.

Also cited was Israel’s 1976 raid on Entebbe Airport in Uganda, in which commandos freed airline passengers taken hostage by Palestinian hijackers.

Israel’s ambassador to the United States, Zalman Shoval, enthusiastically endorsed Thursday’s attacks, as did British Prime Minister Tony Blair. Other diplomatic response from traditional U.S. allies was more restrained.

“I don’t, of course, know the full details of America’s action at this moment, but Israel salutes the United States, which has proven once again that it will fight the scourge of terrorism which, as [the Aug. 7] bombings in East Africa have shown, endangers the entire free world,” the Israeli Embassy quoted Shoval as saying.

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Turner reported from the United Nations and Tempest from Los Angeles. Times staff writer Marjorie Miller in London also contributed to this report.