Is Egypt Violating International Law by Closing Rafah Crossing?

Since Hamas takeover of the Gaza Strip in June of 2007, and even in light of the severe humanitarian crisis in the Gaza Strip in December 2008-January 2009 as the result of Israel’s military offensive against the Gaza Strip, under harsh criticism from the Arab world and Egyptian public opinion, Egypt refused to open Rafah Crossing to regular traffic opposite the Hamas regime (Kadman, p. 132), and supported the reopening according to a renewed agreement of all parties who consented to the AMA—Israel, the PA, the US, and the EU—regarding opening the Palestinian side of the border (p. 126). However, Egypt agreed to open the border, ad hoc, in response to humanitarian needs of the Gaza Strip (p. 125). Furthermore, Egypt viewed Hamas as devoid of international legitimacy and recognizes the PA as the sole legitimate leadership of the Palestinian people (Kadman, p.126), and argued that opening the Crossing opposite Hamas it automatically translates into a new political reality, a de facto recognition of Hamas's legitimacy (Howeidy, 2009. P.1).

However, the Israeli closure of the Gaza Strip created an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation and was not renewed (Janis & Noyes, 2006, p. 92). Therefore, Egypt seemed to be in violation of the laws of jus cognes, the law of compelling norms, which are human rights violations and humanitarian crisis in Gaza caused by the blockade and the war.


On November 15, 2005, negotiators from Israel and the Palestinian Authority (PA) signed the Agreement on Movement and Access (AMA) facilitating the movement of people and goods within the Palestinian Territories and on opening an international crossing on the Gaza-Egypt border, also known as Rafah Crossing that will put the Palestinians in control of the entry and exit of people. The negotiations were facilitated by US Secretary of State Condoleezza Rice, European Union High Representative for the Common Foreign and Security Policy Javier Solana. The agreement also aimed at promoting peaceful economic development and improving the humanitarian situation in the Palestinian Territories and was heralded as a relative breakthrough in the Israeli-Palestinian stalemate: an agreement on border crossings in and out of the Gaza Strip (Prusher & Murphy, 2006, p. 1). A mix of Egyptian soldiers and European observers would monitor and control transit of goods and people in coordination with the Palestinian Authority (PA) security forces. In theory, it was ideal. Israelis would meet security needs by tracking cross-border travel - but only from a distance. Gazans would enjoy longed-for freedom from loathed Israeli checkpoints.

According to the terms of the AMA which is published on the United Nations Website, the parties have agreed that:
-The PA will ensure that the passages will be protected on the Palestinian side of the border and will train and upgrade the management of all crossings to ensure efficiency and effectiveness.
-The PA will establish, without delay, a unified system of border management.
-It is understood that security is a prime and continuing concern for Israel and that appropriate arrangements to ensure security will be adopted.
-Rafah will be operated by the Palestinian Authority on its side, and Egypt on its side, according to international standards, in accordance with Palestinian law and subject to the terms of this agreement. --Rafah will be opened as soon as it is ready to operate at an international standard in accordance with the specifications of this agreement and as soon as the 3rd party is on site, with a target date of November 25.
-Use of the Rafah crossing will be restricted to Palestinian ID card holders and others by exception in agreed categories with prior notification to the GoI (Government of Israel) and approval of senior PA leadership.
-The 3rd party will ensure the proper procedures are followed and will advise both sides of any information in its possession pertaining to the people applying to cross under these exceptions.
-These procedures will remain in place for a period of 12 months, unless the 3rd party delivers a negative evaluation of the PA running the Rafah crossing. This evaluation will be done in close coordination with both sides and will give due consideration to the opinion of both sides.
-Rafah will also be used for export of goods to Egypt.
-Rafah will be the only crossing point between the Gaza Strip and Egypt (with the exception of Kerem Shalom for the agreed period).
-The PA will act to prevent the movement of weapons and explosives at the Rafah crossing. The 3rd party will have the authority to ensure that the PA complies with all applicable rules and regulations concerning the Rafah crossing point and the terms of this agreement. In case of non-compliance the 3rd party has the authority to order the re-examination and reassessment of any passenger, luggage, vehicle or goods. The 3rd party will be the European Union.

According to Gutman, 2009, the Palestinians took control of the border as soon as Nov. 25, according to the agreement. The Palestinian Authority pledged to prevent smuggling of weapons or militants across the border. European Union representatives on the ground will monitor compliance, as will a joint Israeli-Palestinian-European control room, according to the agreement. Goods coming into Gaza from its revamped border terminal at Rafah will be monitored by sophisticated X-ray equipment. Israel also agreed to ease restrictions it applied to West Bank travel after Palestinian attacks on Israelis

However, in June of 2007, the militant Islamic group Hamas, took control of the internal government in Gaza Strip, ousting the Palestinian Authority and its security forces which belonged to the Fattah movement, Hamas’s rival. In the year between the capture of Israeli soldier Gilad Shalit in June of 2006 and the Hamas takeover in June of 2007, Israel kept Rafah Crossing closed 85% of the time, since June 2007, Rafah Crossing has been closed permanently, except for random and limited openings by Egypt, which meet only 3% of the needs of the residents of the Gaza Strip to enter and leave (Kadman, 2009, p. 7).

Following Hamas’s took control of the Gaza Strip, Israel as well as the EU were no longer involved in the monitoring of the Rafah crossing. Israel imposed a blockade on Gaza borders to force Hamas to concede power, and hence the Rafah Crossing was closed. It was exacerbated when Israel imposed a strict economic siege on Gaza both as a punishment for Gazans having elected Hamas in free and fair elections, and as a tactic to remove it from power. The Rafah border crossing, the Gazans' only gateway to the world that isn't controlled by their occupier, inevitably emerged as a symbol for the latest stage of the 60-year-old conflict, serving as a litmus test of Egypt's relations with the three parties on the other side of the border, Hamas, the PA and Israel (Howeidy, 2009, p.1)

Several Israeli politicians called for a unilateral reoccupation of the "Philadelphi" route, the name for the strip of land between Gaza and Egypt. On December 27, 2008, Israel launched massive air and ground campaign into Gaza in response to rocket attacks by Hamas in the Gaza Strip into northern Israel, in order to destroy Hamas rockets launching capabilities and bombarded the Gaza-Egypt border in what officials say are antismuggling operations (Prusher & Murphy, pp. 1-2).

According to the 2009 report by the Israeli Physicians for Human Rights (Gisha) organization, the closure of Rafah had severe implications for the residents of Gaza Strip, including preventing access to health care services that are not available in Gaza, preventing access to students and employees, forcing long separations of family members on either side of the border. Therefore, the closure of the Crossing was considered a severe violation of the rights of residents of the Gaza Strip (p. 7)

One of the most pivotal points in the Rafah Crossing agreement was that the role of the Egyptian Army in guarding the border to prevent arms and cash (p.3) smuggling or easy access for militants across the border (p. 2). Instead, Israeli officials say, the Gaza-Egyptian border is being used as a route for arming Hamas and other militant groups in anticipation of widely expected battles with the Israel Defense Forces (p. 2)

The 14km Rafah Crossing is one of five ways in and out of Gaza - It's the only crossing not guarded by Israeli forces. The Rafah border crossing has come to epitomize the geopolitical realities between Egypt and the occupied Palestinian territories -- with all their security and legal complexities -- as never before (Howeidy, 2009, p. 1). Since Hamas took control of Gaza in June 2007 the Egyptian-Gaza borders have been free of any Israeli presence for the first time since 1967. This immediately posed a complex problem for the Egyptian regime (p. 1)

Caroll J, 2007, elaborated on Egypt’s dilemma in policing the Rafah Crossing. There is "genuine concern" that Palestinian violence in Gaza could spill over into the Sinai, says Walid Kazziha, chair of the political science department at the American University in Cairo. "It is in Egypt's national interest that they have to look after" the smuggling issue. But he also notes that the Egyptian government faces domestic pressure to support Palestinians. "One thing that embarrasses the Egyptians is the Israelis asking Egypt to take [what would amount to] violence against the Palestinians," he says. "So it's a very tight rope." (p.1). Egypt itself is not a natural ally for Islamist Hamas, which is an offshoot of the country's banned Muslim Brotherhood, the country's powerful opposition movement. Terror attacks in the Sinai over the years have been blamed by the Egyptian government on local Bedouins who have been radicalized by contact with Palestinian militants (Prusher & Murphy, p. 2).

Furthermore, Egypt viewed Hamas as devoid of international legitimacy and recognizes the PA as the sole legitimate leadership of the Palestinian people (Kadman, p.126). Therefore, Egypt increased border patrols in response to Israel's complaints to quell weapon smuggling across the border, and a result Israel's critique has focused more on the smuggling and less on the Egyptian role, perhaps in part due to the sensitive point in negotiations over a possible prisoner exchange (Prusher & Murphy, p.2)

In the course of a week President Hosni Mubarak addressed the issue twice. He said that Egypt will not open the border because Gaza is an occupied territory and remains, therefore, the responsibility of Israel, the occupying force (Howeidy, 2009, p. 1). A few days later he said that Egypt would not open the border "in the absence of the Palestinian Authority and European monitors", a reference to the 2005 border agreement formulated between the Palestinian Authority (PA) and Israel a year before the 2006 Palestinian parliamentary elections brought Hamas to power. The agreement expired a year after it went into effect and has not been renewed since (p. 1)

At the heel of the Israeli offensive in Gaza in December of 2008, various statements by the UN Secretary-General described the level of the humanitarian crisis in Gaza Strip. On December 27, 2008, the Secretary-General expressed deep concern about the heavy bloodshed in Gaza, which he described as “unacceptable”, as well as the continuation of violence in southern Israel. The Secretary-General also “reiterated Israel’s obligation to uphold international humanitarian and human rights law and condemns excessive use of force leading to the killing and injuring of civilians”, and “large scale destruction” in Gaza. Moreover, the Secretary-General reiterated his previous calls for humanitarian supplies to be allowed into Gaza to aid the distressed civilian population. In another statement on December 29, 2009, the Secretary-General “stressed the need for the strict observance of international humanitarian law”, and reiterated his call that “unhindered access should be ensured for the delivery of humanitarian assistance” “much needed assistance and alleviate civilian suffering”. He also stated that “Israel must keep opening all border crossings necessary for the continued provision of humanitarian supplies”

Moreover, the World Bank warned of a growing public health risk because of the lack of drinking water and a collapse of Gaza's wastewater systems that has sent sewage into the streets (Mitnick, 2009, p. 1). The US Congress expressed the signers' "deep concern for the humanitarian situation in the Gaza Strip" and requested "immediate action by the U.S. to address this crisis.” It described in detail the "dire" situation on the ground in Gaza and stated "it is imperative that we work with Israel to open the borders so that the wounded can be treated, basic aid can reach those in need, and rebuilding can begin." Adding that "the failure to address this humanitarian emergency has the potential to produce a crisis of even more unspeakable proportions." (McArther, 2009, p. 23). Congressman Brian Baird (D-WA) after his visit to the Gaza Strip on February 20, 2009 stated that “The amount of physical destruction and the depth of human suffering here is staggering," said Baird. "Entire neighborhoods have been destroyed, schools completely leveled, fundamental water, sewer, and electricity facilities hit and relief agencies heavily damaged. The personal stories of children being killed in their homes or schools, entire families wiped out, and relief workers prevented from evacuating the wounded are heart wrenching--what went on here, and what is continuing to go on, is shocking and troubling beyond words." (Baird, 2009, p.21)

However, since Hamas takeover of the Gaza Strip in June of 2007, and even in light of the severe humanitarian crisis in the Gaza Strip in December 2008-January 2009 as the result of Israel’s military offensive against the Gaza Strip, under harsh criticism from the Arab world and Egyptian public opinion, Egypt refused to open Rafah Crossing to regular traffic opposite the Hamas regime (Kadman, p. 132), and supported the reopening according to a renewed agreement of all parties who consented to the AMA—Israel, the PA, the US, and the EU—regarding opening the Palestinian side of the border (p. 126). However, Egypt agreed to open the border, ad hoc, in response to humanitarian needs of the Gaza Strip (p. 125). Egypt stated that it is committed to the AMA agreement although Egypt itself was not a party to the agreement. Therefore, Egypt says it has not been able to open Rafah to regular traffic since Hamas takeover of the Gaza Strip in June 2007, and by opening the Crossing Egypt would violate the AMA, which requires the presence of the PA and the European force on the Palestinian side of the border, and Israel’s presence at Kerem Shalom—conditions which have not been fulfilled since that date (p. 126)

Egypt further argued that Israel consent to the open the Crossing was necessary since Israel continues controlling the West Bank and the Gaza Strip, and that the peace process, which Egypt supports, includes the gradual transfer of power from Israel to the PA, the legitimate representative of the Palestinians, according to Egypt (p. 126). Furthermore, in order to reach a new or renewed international arrangement on opening Rafah, Egypt is negotiating with various parties including Israel, Hamas, and the PA to open the border, including the EU and the US (p. 130). However, the Palestinian parties’ refusal to compromise on dividing control of the crossing constitutes the largest obstacle to opening Rafah (p. 131). For its part, the Palestinian Authority objected to opening the Crossing on a regular basis by Egypt opposite Hamas, so as not to legitimize the latter’s rule (Kadman, p. 136)

Janis & Noyes, 2006, stated that there are three principal formal sources of IL set forth in Article 38(1) of the ICJ; these are the rules that the Court “shall apply” as it decided “in accordance with IL such disputes as submitted to it”:”(a) International conventions, whether general or particular, establishing rules expressly recognized by the consenting states; (b) international custom, as evidence of a general practice accepted as law; (c) the principles of law recognized by civilized nations. Although the first two sources—treaty and custom—may be said by positivists to be more or less consensual among states, the third source—general principles of law—clearly involves some judicial or doctrinal initiative beyond a search for inter-state agreement on rules (p. 138). Historically, one of the most important sources of the law of nations was natural law, referred to as jus cognes or compelling norms (p. 138)

Compelling norms or jus cognes a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules, principle at most issue cannot be derogated from by States through int’l treaties or local or special customs or even general customary rules not endowed with the same normative force (Janis & Noyes, p. 147)

Vienna’s Professor Alfred von Verdross wrote in 1937, that jus cognes consists of the general principle prohibiting states from concluding treaties contra bonos mores, which means that no judicial order can, therefore, admit treaties between juridical subjects, which are obviously in contradiction to the ethics of a certain community. Furthermore, treaties are regarded as being contra bonos mores if it restricts the liberty of one contracting party in an excessive or unworthy manner or which endanger its most important rights. Those norms of treaties which are incompatible with this goal of all positive law must be regarded as void (Janis & Noyes, p. 144). In other words, Professor Verdross argued, a treaty norm is void if it is either in violation of a compulsory norm of general international law or contra bonos mores. A treaty norm is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state (p. 145). Contra bonos mores is a category Verdross justified as stemming from the general principle of law recognized by civilized nations (p. 146)

The 1937 article above by Vienna’s Professor Alfred von Verdross has been singled out as an important step in the development of Article 53 of the Vienna Convention on the law of the Treaties concerning peremptory norms of international law (Janis & Noyes, p. 146), which stipulates that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Therefore, Egypt’s claims that it’s obligated by the expired Agreement on Movement and Access, which Egypt was not even a party, not to open the Rafah Crossing unless a new or renewed agreement is reached is considered a violation of the peremptory norm of general international law, which in this case the humanitarian crisis in Gaza and the human rights violations.

Article 43 of the Hague Regulation, which are part of international customary law, binding upon all countries imposes upon an occupying power the obligation to maintain public order and guarantee the existence of normal public life for the civilian population. Freedom of movement is necessary to guarantee normal life (Kadman, p. 150). Moreover, Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts, to which both Israel and Egypt are parties stated that “protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practice, and their manners and customs” “No protected person may be punished for an offense he or she has not personally committed” and adds that collective punishments are prohibited (Kadman, p. 151)

Egypt has an obligation under international humanitarian law to open the Rafah Crossing to allow the passage of humanitarian aid, which is derived from Israel’s actions by closing other crossings to and from Gaza and uses Rafah Crossing to implement a policy of collective punishment. Therefore, the Israeli closure of the Gaza Strip creates an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation (Janis & Noyes, 2006, p. 92)

Positivists would argue that Egypt as a sovereign has the power to decide who and what shall enter its territory, and it has no obligation to allow passage through its border, except for its obligation to allow the passage of humanitarian aid, which Egypt continued to do only on ad hoc bases. In fact the judgment of PCIJ in 1927 (Permanent Court of International Justice) in the Lotus case has become of the most usually cited positivist opinions about the nature of IL, because it argued in part III that the “rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law”. The ruling of an evenly divided Court in Lotus maintained that all international legal rules are based on state consent: “restrictions upon independence of States cannot therefore be presumed.” No room was given to general principles of IL: fundamental norms, natural law, or equity as sources of IL; state sovereignty was seen as the fundamental principle of IL from which all other international legal principles and rules are derived (Janis & Noyes, p. 116)

Furthermore, in the 1966 Southwest Africa Cases, the ICJ ruled that humanitarian considerations are not sufficient in themselves to generate legal rights and obligations. The Court can take account of moral principles only in so far as these are given sufficient expression in legal forms. The secret trust itself must be or becoming something more than a moral or humanitarian ideal. It must be given judicial expression and be clothed in legal form. However, the Court in 1970 moved closer to Verdross position when it recognized in the Barcelona Traction Case, the concept of “obligations erga omnes”—the obligations of a state towards the international community as a whole. The Court cited as examples, the international legal proscriptions against interstate aggression, genocide, slavery, and racial discrimination (Janis & Noyes, p. 147)

Therefore, Egypt under obligations erg omnes, has an obligation towards the international community as a whole to intervene using its sovereign power and ease suffering of 1.5 million Palestinians and open the Rafah Crossing to allow the flow of humanitarian aid, and allow Palestinians their basic human right of movement and access. Furthermore, Egypt should invoke Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts by allowing civilians in Gaza passage to seek refuge and humanitarian assistance. By not doing so, Egypt is in violation of the law of compelling norms, jus cognes, created by the humanitarian crisis in Gaza and expressed in the UN Secretary-General statements and members of the US Congress.

References

Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing

Baird, B. (April, 2009). U.S. Congressmen visit Gaza, call for immediate relief, changes in U.S.
policy. Washington Report on Middle East Affairs, 28 (3), pp. 21-31.

Carroll, J. (May, 2007). Egypt's Gaza gateway: crossroad of frustration. Christian Science
Monitor, 99 (109), pp.1-4.

Gutman M. (November, 2005) Mideast deal gives Palestinians control of Gaza-Egypt
border. USA Today (n.d).

Howeidy, A. (January, 2009). All eyes on Rafah. Al Ahram weekly.

Kadman, N. (March, 2009). Rafah Crossing: Who holds the keys? Physicians for Human
Rights-Israel.

McArthur, S. (April, 2009). 111th Congress expresses its “vigorous support” for Israel’s Gaza
massacre. Washington Report on Middle East Affairs, 28 (3), pp. 22-23.

Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St.
Paul, MN: West Publishing

Mitnick, J. (January, 2009). Can Egypt broker a Gaza true again? Christian Science Monitor, 101 (30), pp. 1-5.

Prusher, I. & Murphy, D. (October, 2006). Trouble sealing Egypt-Gaza border. Christian
Science Monitor, 98 (233) pp. 1-6.

UN-Agreement on Movement and Access (AMA), retrieved from
http://domino.un.org/UNISPAL.NSF/361eea1cc08301c485256cf600606959/c9a5aa5245d910bb852570bb0051711c!OpenDocument,

Keeping the peace in 21st century, role of international organizations

In the 19th and 20th centuries, the international legal circuits rejected the just war doctrine prevailed during the 5th and 6th centuries, which was pursued to avenge injuries against the enemy. War became a legitimate exercise of sovereign power, and sometimes inevitable if the parties involved chose so. Despite of its perceived legality, use of force was subject to restraints set forth by treaties, for example the 1907 Hague Convention No. II, and the authority of the general international law.

According the UN Charter, the Security Council should be the sole grantor of legitimacy regarding the use of force, assuming that all member states abide by Article 2 (4). The exceptions to the use of force without Security Council's approval would be the states' inherent right of self-defense (individual or collective) against an armed attack and only pending UN measures. Chapter VII lists several other measures to combat a belligerent state such as sanctions, with the approval of the major powers, before agreeing on the collective use of force to counter threats to peace and security. Article 51, which held legitimate “the inherent right of individual or collective self-defense in response to an “armed attack” even before the Security Council takes “the necessary measures to maintain international peace and security”

The Caroline case has been regarded as legal foundation of international law rules governing the legality of use of force in self-defense. The Caroline dictum says that every state has a right to strike first when the threat posed is "instant, overwhelming, leaving no choice of means and no moment for deliberation.". The Nuremberg Tribunal invoked the rule in Caroline when rejecting German leaders’ arguments that they had been entitled to attack Norway in self-defense. The concept of anticipatory or preemptive self-defense was then created, particularly in the context of nuclear strategy by some publicists as result of the Caroline case arguing that the right of self-defense was available when “the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation”. However, following WWI, states adopted new legal constraints on the use of force (p. 547). After WWII, the UN Charter generally prohibited the unilateral use of force by states.

Less than a decade into the 21st century, there is already a widespread sense that the world faces challenges and threats of unprecedented scope, scale and complexity. Global terrorism emerged as one of the main challenges to international peace and security since beginning of the 21st century. The current rules of international law were written for conventional, inter-state conflicts, while even the definition of terrorism and terrorists remains elusive and ill-defined. Yet, in the era of globalization and heightened interconnectedness, the existing international organizations, mainly the UN through its organizations such the Security Council, the General Assembly and International Court of Justice should remain at the forefront to meet the challenges of world peace in the 21 century.

Paul Szasz in 2002 argued that in recent years the Security Council has increasingly adopted decisions that deal not with any particular conflict or situation but, rather with conflicts in general. Thus, it has addressed the protection of children and civilians, the role of women with respect to peace and security, humanitarian questions and even international terrorism. Nevertheless, the operative paragraphs of these resolutions are not formulated in compulsory terms. He added that the council might even consider extreme violations of human rights or humanitarian law, or massive assaults on the international environment, to constitute unacceptable threats to the peace. Furthermore, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent

On September 28, 2001, the Security Council departed from its previous limited and cautious practice and adopted Resolution 1373, by which it decided that all states shall take certain actions against the financing of terrorist activities, as well as a miscellany of other actions designed to prevent any support for terrorist activities. Security Council’s Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, which then gave the State(s) the right of individual or collective self-defense under Article 51. However, in order to ensure that the authorization to use force to combat terrorism will further contribute to peace and stability; the UN Charter still imposed restriction on the right of states to use force in self-defense against an armed attack of sufficient scale and effect by requiring the victim state to abide by the rules of “necessity” and “proportionality” in assessing an armed attack and measuring its [state] response.

Richard Gardner, critic of the Bush's Doctrine, suggested four modest reinterpretations of the UN Charter, which seem to be in the right direction that the world should head into in response to unprecedented circumstances of terrorism and issues of states’ rights to self-defense. These measures include:

(1) Armed force may be used by UN member even without the Security Council approval to destroy terrorist groups operating on the territory of other members when those other members fail to discharge their international law obligations to suppress them
(2) Armed force may also be used to prevent a UN member from transferring WMDs to terrorist groups
(3) Article 51 continues to limit self-defense to cases of actual or imminent armed attack in accordance with the Caroline doctrine, but self-defense can be extended to permit a state to rescue its citizens (and others) faced with clear threat to their security.
(4) A right of “humanitarian intervention” permits military action by the UN or regional organizations to prevent genocide or similar massive human rights violaitons

Furthermore, the Report of the High-Level Panel on Threats, Challenges and Change, in 2004, asserted that the effectiveness of the global collective security system depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy. In considering whether to authorize or endorse the use of military force, the Security Council should always address at least five basic criteria of legitimacy:

(a) Seriousness of threat. The threat must be considered clear and serious.
(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question?
(c) Last resort. Has every non-military option for meeting the threat in question been explored?
(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?
(e) Balance of consequences. Will the consequences of action not likely to be worse than the consequences of inaction?

However, wider participation by other states is required the decision-making process in order to ensure Security Council’s Resolutions regarding war and peace more credible and representative of the will of the international community. The Uniting for Peace Resolution in 1950, or Acheson Plan, argued based on Articles 10, 11, 14 of the Charter making the Assembly the Council’s partner in wielding “authority and responsibility for matters affecting international peace, sounds more promising today in circumventing the veto-bound Council, which has often been accused of yielding to the wishes of its permanent members. By giving the Assembly more authority, it would step in to organize the collective use of force against an aggressor as it happened during the Korean conflict.

Among areas where international organizations’ efforts are falling short are peacekeeping efforts and effects of economic sanctions invoked by Chapter VII on ordinary population and non-target states. The Suez crisis in 1956 thus confirmed the UN in its most fruitful line of endeavor: the stationing of international peacekeeping forces between mutually hostile antagonists at the crucial moment in a dispute when both sides perceive disengagement as preferable to continued hostilities. In order to make the complex peacekeeping or peace-building operations more effective, it is important to identify specific authority for peacekeeping in the text of the Charter.

Furthermore, the 1962 ICJ ruling that the Assembly should not recommend measures while the Council is dealing with the same matter unless the Council requests it to do should also be overturned in order to allow the Assembly to approve peacekeeping operations when the Council refused to act. Another challenge to make the peacekeeping or building more effective is to ensure reliable funding for and national support of broad UN mandates.

Sanctions imposed through Chapter VII of the UN Charter prohibit imports into a target country, exporters in other states and the economies of other states may be harmed (double-edged sword). Security Council should take appropriate measures to ensure that sanctions do not create severe hardships for the ordinary population of a target state and to mitigate the hardships of sanctions in non-target states. Furthermore, a mechanism must be regularly available to review the humanitarian impact of sanctions.

References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing

Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing