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Full text of "International law and the War on Terror"

International Law Studies 



Volume 79 



International Law and the War on Terror 



Fred L. Borch & Paul S. Wilson 
Editors 




Naval War College 
Newport, Rhode Island 

2003 



International Law Studies 



Volume 79 






Library of Congress Cataloging-in-Publication Data 

International law and the war on terror / Fred L. Borch & Paul S. 
Wilson, editors. 

p. cm. — (International law studies, v. 79) 
Includes bibliographical references and index. 
ISBN 1-884733-28-X (hardcover : alk. paper) 

1. Terrorism. 2. War (International law) I. Borch, Frederic L.,1954— 
II. Wilson, Paul S., 1964- III. Series. 
K5256.I584 2003 
345'.02-dc22 

2003019449 



Table of Contents 



International Law and the War on Terrorism 



Foreword ix 

Introduction xi 

Preface xiii 

I Welcoming Address 

Rear Admiral Rodney P. Rempt 1 

PART I: JUS AD BELLUM 



II Counter-Terrorism and the Use of Force in International Law 

Michael Schmitt 7 

III Jus Ad Bellum and International Terrorism 

ReinMtillerson 75 

IV Commentary — Jus ad Bellum 

RobertTurner 129 

V Commentary — Jus ad Bellum 

William Dalton 137 

VI Discussion — Jus ad Bellum 

Application of Force to al Qaeda and Taliban Members . . . 139 

Legitimacy of the Use of Force 143 

P.egime Change in Iraq 146 

PART U: JUS IN BELLO 

VII Unlawful Combatancy 
Yoram Dinstein 151 



VIII The Laws of War in the War on Terror 

Adam Roberts 175 

IX Commentary — Jus in Bello 

Charles Garraway 23 1 

X Commentary — Jus in Bello 

Leslie Green 235 

XI Commentary — Jus in Bello 

Tony Montgomery 243 

XII Discussion — Jus in Bello 

The Overlap Between Jus ad Bellum and Jus in Bello .... 247 

The Power of the Security Council 248 

The Nature of the Current Conflict in Afghanistan 249 

Shielding Military Targets with Noncombatants 250 

The Currency of the Law of Armed Conflict 251 

Unprivileged Combatants 251 

PART III: MARITIME AND COALITION OPERATIONS 

XIII The Legality of Maritime Interception/Interdiction Operations 

Within the Framework of Operation ENDURING FREEDOM 
Wolff von Heinegg 255 

XIV The Limits of Coalition Cooperation in the War on Terrorism 

Ivan Shearer 275 

XV Commentary — Maritime and Coalition Operations 

Kenneth O'Rourke 297 

XVI Commentary — Maritime and Coalition Operations 

PaulCronan 301 

XVII Commentary — Maritime and Coalition Operations 

Neil Brown 303 

XVIII Commentary — Maritime and Coalition Operations 

Jean-Guy Perron 309 



VI 



XIX Discussion — Maritime and Coalition Operations 

Abduction or Extradition of Terrorists 313 

Application of the Laws of Armed Conflict 319 

Terrorism as a Criminal or International Law Problem . . . 320 

PART IV: Bringing Terrorists to Justice: The Proper Forum 

XX International Criminal Law Aspects of the War Against Terrorism 

Michael Newton 323 

XXI Terrorism: The Proper Law and the Proper Forum? 

Christopher Greenwood 353 

XXII Commentary — Bringing Terrorists to Justice 

Manuel Supervielle 371 

XXIII Commentary — Terrorism and the Problem of Different Legal 

Regimes 
DanielHelle 375 

XXIV Discussion — Bringing Terrorists to Justice 

The Distinction Between Armed Conflict and Armed 

Attack 381 

September 11th — Armed Attack, Armed Conflict or 

CriminalAct? 381 

Military Commissions 386 

The Challenges Associated with Defining and 

Addressing Terrorism 387 

PARTV: THE ROAD AHEAD 

XXV International Law and the War on Terrorism: The Road Ahead 

JohnMurphy 391 

XXVI Al Qaeda And Taliban Detainees — An Examination of 

Legal Rights and Appropriate Treatment 
]ames Terry 44 1 

XXVH Commentary — The Road Ahead in Afghanistan 

James Terry 455 



vn 



XXVIII Commentary — The Road Ahead 

Nicholas Rostow 461 

XXIX Commentary — The Road Ahead 

Michael Saalfeld 467 

XXX Commentary — The Road Ahead 

Ronald Winfrey 473 

XXXI Commentary — The Road Ahead 

JaneDalton 477 

XXXII Discussion — The Road Ahead 

Iraq 483 

Terrorism 486 

Appendix A — Contributors 49 1 

Index 501 



Vlll 



Foreword 



I 



he International Law Studies "Blue Book" series was initiated by the 
Naval War College in 1901 to publish essays, treaties and articles 
that contribute to the broader understanding of international law. This, the 
seventy- ninth volume of the series, contains edited proceedings of a scholarly 
colloquium entitled International Law and the War on Terrorism hosted here at 
the Naval War College on June 26-28, 2002. 

The colloquium's mission was to examine international law and its continu- 
ing relevance after the events of September 11th, 2001 and the subsequent 
military operations against al Qaeda and the Taliban. In doing so, the collo- 
quium participants focused on the basis for the use of force against organiza- 
tions such as al Qaeda and the Taliban, the rules applicable to military 
operations against such organizations, the challenges associated with maritime 
and coalition operations in the war on terrorism, the proper forum for bringing 
terrorists to justice, and finally, the path before us in this war on terrorism. 

Renowned international scholars and practitioners, both military and civil- 
ian, representing government and academic institutions from throughout the 
world participated in the colloquium, which was co-sponsored by the Center 
for National Security Law of the University of Virginia, Charlottesville, Vir- 
ginia, the Israeli Yearbook on Human Rights, Tel Aviv, Israel, the Roger Wil- 
liams University Ralph R. Papitto School of Law, Bristol, Rhode Island, the 
Pell Center for International Relations and Public Policy of Salve Regina Uni- 
versity, Newport, Rhode Island, and the International Law Department of the 
Center for Naval Warfare Studies, United States Naval War College. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations, and 
the Commandant of the Marine Corps, I extend to all the co-sponsors, the 
contributing authors, and the co-editors, our thanks and gratitude for their in- 
valuable contributions to this project and to the future understanding of the 
laws of war. 



RODNEY P. REMPT 
Rear Admiral, U.S. Navy 
President, Naval War College 



T 



Introduction 



he events of September 1 1th brought home to the United States that, 
perhaps unlike any time in its past, the "tyranny of distance" could not 
be relied upon to protect its citizens from harm. The destruction of the World 
Trade Center and the attack on the Pentagon wrought countless millions in 
damages to those affected and to the economy of the United States as a whole. 
More importantly, the attacks caused the deaths of some 3,000 and injury to 
countless others. Many of the victims were, of course, from countries other 
than the United States. With the benefit of hindsight, it seem clear that an act 
of the magnitude of September 1 1th would eventually strike the United States. 
Still, terrorism on this scale is clearly new to the United States and the world 
and brings with it challenges to the law of armed conflict paradigm that has 
lasted since the closure of World War II. This changed environment and its 
impact on the existing laws of armed conflict require careful study and debate 
to develop insight into the future legal framework for responding to terrorism. 
This was the purpose of the colloquium that this book, volume 79 of the Inter- 
national Law Studies ("Blue Book") series, memorializes. 

In June, 2002, the Naval War College conducted a symposium on Interna- 
tional Law and the War on Terrorism. The colloquium, organized by Lieuten- 
ant Colonel Steven Berg, JAGC, US Army, was made possible with the 
support of the Center for National Security Law of the University of Virginia, 
Charlottesville, Virginia, the Israeli Yearbook on Human Rights, Tel Aviv, Is- 
rael, the Roger Williams University Ralph R. Papitto School of Law, Bristol, 
Rhode Island, and the Pell Center for International Relations and Public Pol- 
icy of Salve Regina University, Newport, Rhode Island. Without the support 
and assistance of these organizations, the colloquium would not have been the 
success that it was, and this volume would not be before you as it is. Their sup- 
port is greatly appreciated. 

Colonel Frederick L. Borch, JAGC, US Army, and Major Paul S. Wilson, 
JAGC, US Army, both of our International Law Department, collaborated as 
editors of this volume. Their dedication and perseverance are responsible for 
the production and completion of this product. 

A special thank you is necessary to Dr. Alberto Coll, the current Dean of 
the Center for Naval Warfare Studies and Rear Admiral Rodney P. Rempt, 
the President of the Naval War College for their leadership and support in the 



planning and conduct of the colloquium and the funding for the printing of 
this book. 

The "Blue Book" series is published by the Naval War College and distrib- 
uted throughout the world to academic institutions, libraries, and both US 
and foreign military commands. This volume on International Law and the 
War on Terrorism is a fitting and necessary addition to the series as the world 
continues to grapple with the senseless acts of terrorism common in our world 
today. 



DENNIS L MANDSAGER 
Professor of Law & Chairman 
International Law Department 



xn 



Preface 



The September 1 1, 2001 attacks on the World Trade Center and the Pen- 
tagon catapulted the United States — indeed the world — into a new war on 
terrorism. On September 14th, the US Congress passed a joint resolution au- 
thorizing President George W. Bush "to use all necessary and appropriate 
force against those nations, organizations, or persons he determines planned, 
authorized, committed or aided the terrorist attacks ... or harbored such orga- 
nizations or persons." On September 28th, the UN Security Council adopted 
Resolution 1373. It not only condemned terrorism as a threat to international 
peace and security, but implicitly recognized that al Qaeda's use of commer- 
cial aircraft as weapons constituted an "armed attack" within the meaning of 
Article 51 of the UN Charter. In any event, on October 7, 2001, less than a 
month after the terrorist attacks on America, US forces began operations 
against al Qaeda and Taliban forces in Afghanistan. 

For lawyers and academics practicing and studying international law and 
the Law of Armed Conflict, "9/11" and subsequent legal actions taken by the 
US Congress, the United Nations, and the North Atlantic Treaty Organiza- 
tion, meant a greatly renewed interest in a subject that had not received 
enough attention over the last 10 years. The same was true of military actions 
taken by the United States and its allies, as the nature of the fighting against 
the Taliban and al Qaeda in Afghanistan raised new jus in bello issues. Recog- 
nizing that a forum in which scholars and practitioners could meet and exam- 
ine legal issues in the war on terrorism would be exciting, instructive, and 
rewarding, the International Law Department began planning a conference in 
November 2001. The result was a June 26—28, 2002 symposium called "Inter- 
national Law and the War on Terrorism," and this book records the events oc- 
curring during those three days, bringing together the perspectives and 
ruminations of the roughly 100 conference participants. 

Almost from the beginning of the symposium, a major theme emerged: that 
while al Qaeda's attacks on the World Trade Center and Pentagon repre- 
sented a type of armed conflict not anticipated by those participating in the 
conference, the Law of Armed Conflict was capable of addressing the myriad 
legal issues raised by terrorism after 9/11. This is not to say that the scholars 
and practitioners agreed on all jus ad bellum or jus in bello issues discussed; 
they did agree, however, that the Law of Armed Conflict and other existing 



Preface 

laws as they now exist provide an adequate framework for regulating armed 
conflict with terrorism. 

The first session, titled "Jus ad Bellum," had two presenters. Prof. Michael 
N. Schmitt, George C. Marshall European Center, Garmisch, Germany, be- 
gan with a paper titled "Counter-Terrorism and the Use of Force in Interna- 
tional Law." Schmitt explored the circumstances under which a victim state 
may react forcibly to an act of terrorism, and concluded that "in most respects 
the law on the use of force has proven adequate" in countering terrorist at- 
tacks. That is, while the current "normative system developed for state-on- 
state conflict," it nonetheless has shown itself to be sufficiently flexible to re- 
spond to terrorist attacks by non-state actors. 

In the absence of a post-9/1 1 resolution from the UN Security Council, Prof. 
Schmitt asserted that the sole basis for the United States and its coalition part- 
ners to take action was self-defense. No advance Council authorization is re- 
quired for force used in self-defense; all the U.N. Charter requires is 'notice.' It 
follows that while a state's use of force in self-defense does not deprive the 
Council of its 'right' to respond to any terrorist attack, the Council's failure to 
take action does not deprive a state of its inherent right to exercise individual or 
collective self-defense. In Prof. Schmidt's view, it is "tragically self-evident" that 
the al Qaeda attacks on September 11, 2001 were of sufficient "scale and effects" 
to qualify as an "armed attack" within the meaning of Article 5 1 of the UN 
Charter. Consequently, US and coalition operations against al Qaeda in Af- 
ghanistan were a legitimate exercise of individual and collective self-defense. 
Self-defense requires 'necessity" ("a sound basis for believing that further at- 
tacks will be mounted") and 'imminency' ("self-defense may be conducted 
against an ongoing terrorist campaign"); the use of force also must be propor- 
tional. Schmitt concluded his paper with an examination of the legality of us- 
ing force against the Taliban. While he determined that the legal authority for 
acting in self-defense against al Qaeda was much clearer than the legal basis for 
using force against the Taliban, Schmitt nonetheless was satisfied that the 
principle of state responsibility established in the Corfu Channel case justified 
US and coalition military operations against Taliban forces in Afghanistan. 

Prof. Rein Mullerson, Kings College, Univ. of London, followed Schmitt 
with an oral presentation of his paper, "Jus ad Bellum and International Ter- 
rorism." In examining terrorism and the law of war, Mullerson concluded that 
not all terrorist attacks are contrary to jus ad bellum; if they lack a link to a 
state or are "relatively insignificant" in size and scope, the attacks fall outside 
the scope of jus ad bellum. However, any terrorist attack that does "come un- 
der" jus ad bellum (like 9/11, which Mullerson believes is an armed attack) by 



xiv 



Fred Borch & Paul Wilson 



definition also violates jus in bello. The fact, says Miillerson, that those draft- 
ing Article 51 in 1945 contemplated that only states would be conducting 
armed attacks does not mean that a non-state entity cannot launch an armed 
attack. To conclude otherwise is both illogical and ignores "current realities." 
Miillerson further argued that the September 11th attacks are crimes against 
humanity as defined by Nuremberg Tribunals and "the statutes of interna- 
tional criminal tribunals recently adopted." Like Prof. Schmidt, Prof. 
Miillerson also arrives at the same "bottom line:" that our existing interna- 
tional legal framework provides more than adequate authority to use force 
against terrorists. 

After comments from Prof. Robert Turner and Mr. Harvey Dalton, and 
questions from the audience, the conference shifted from jus ad bellum to an 
examination of jus in bello issues. Leading off this session was Prof. Yoram 
Dinstein, Visiting Professor, DePaul Univ. College of Law, who talked about 
"Unlawful Combatancy." Calling this topic "a matter a of great practical sig- 
nificance in present-day international law," Dinstein began with the basics: 
that combatants are individuals who are either members of the armed forces 
(except religious or medical personnel) or persons who take an active part in 
hostilities; that noncombatants are civilians (who are not allowed to actively 
participate in the fighting); and that one cannot be both at the same time. As 
the US, its friends, and allies are involved in a war with terrorists who are al- 
most by definition unlawful combatants, Prof. Dinstein devoted the remainder 
of his remarks to explaining the distinction between lawful and unlawful com- 
batants. In Dinstein's view, combatants must satisfy "seven cumulative condi- 
tions" to qualify as lawful combatants and enjoy immunity from prosecution or 
punishment for killing and wounding the enemy or destroying and damaging 
his property. They must: 

(1) Be subordinate to a responsible command (thus excluding "one-man" 
armies) ; 

(2) Wear a fixed distinctive emblem recognizable at a distance (so that 
the principle of distinction may be observed) ; 

(3) Carry arms openly (so that they will not be confused with civilians); 

(4) Fight in accordance with the jus in bello (so that in claiming the law's 
protections if captured, a combatant must be willing himself to 
respect this same law); 



xv 



Preface 

(5) Act within a hierarchic framework, embedded in discipline and 
subject to supervision by upper echelons; 

(6) Belong to a party to the conflict; and finally 

(7) Not have any allegiance (or nationality) to the Detaining Power (so 
that a German soldier in the French Foreign Legion would be entitled 
to POW status if captured while fighting in Indo-China but would not 
be entitled to such status if fighting in a war against Germany.) 

Based on these seven cumulative conditions, Prof. Dinstein concluded that 
both the Taliban and al Qaeda failed to qualify for POW status, but for very 
different reasons. The Taliban fighters were members of regular armed forces 
professing allegiance to a government unrecognized by the Detaining Power. 
This meant that they could qualify for POW status in the same manner as De 
Gaulle's Free French forces were entitled to be POWs when captured by the 
Germans in World War II. That was not the principal reason, however, that 
captured Taliban fighters were not POWs. Rather, because they did not com- 
ply with virtually all of the seven factors earlier identified by Dinstein as re- 
quired for POW status (e.g. the Taliban wore no uniform of any kind, much 
less any distinctive insignia), they were not entitled to claim POW status. Al 
Qaeda combatants, however, belong in an entirely different category. In con- 
trast to the Taliban, al Qaeda combatants were irregular forces who failed to 
wear uniforms and who "displayed utter disdain toward the jus in bello." This 
contempt for the Law of War meant that no al Qaeda fighters were entitled to 
POW status. Prof. Dinstein concluded his remarks with the warning that the 
"constraints of the conditions of lawful combatancy must not ... be seen as 
binding only on one Party to the conflict." Some American combatants, nota- 
bly special forces troops and CIA agents in the field, were not wearing uni- 
forms while in combat. Dinstein cautioned that had any US combatants in 
civilian clothing been captured by al Qaeda or Taliban forces, they would not 
have been entitled to POW status. 

Sir Adam Roberts followed Prof. Dinstein. Sir Adam, a professor of inter- 
national relations at Oxford, began by asking these questions: Are the laws of 
war "formally applicable" to the war on terrorism? If counter-terrorism opera- 
tions involve "situations different" from those envisaged by the laws of war, 
should we still try to apply that body of law? Are terrorists entitled to POW 
status? If not, what "international standards apply to their treatment?" 
Finally, Sir Adam asked whether the laws of war should be "revised" to take 



XVI 



Fred Borch & Paul Wilson 



into account the "special circumstances" of the war on terrorism. Sir Adam 
concluded that there were "particular difficulties" in applying the laws of war 
to counter-terrorism. That is, while Operation ENDURING FREEDOM might 
look like an "ordinary" international armed conflict, "a war that has as a pur- 
pose the pursuit of people deemed to be criminals involves many awkward is- 
sues for which the existing laws of war are not a perfect fit." With that said, 
the UN Security Council, states, and non-governmental organizations have 
all assumed that the laws of war do apply. Consequently, this reality — and 
considerations of "reciprocity" and "prudence" — require that the US and its 
coalition partners apply the law of war "to the maximum extent possible." 
Professor Roberts also concluded that the US decision to deny POW status to 
al Qaeda combat captives was sound both as a matter of law and policy. How- 
ever, he faulted the Bush administration for failing to highlight that the de- 
tainees would be accorded humane treatment in accordance with Common 
Article 3. Sir Adam also stressed that the United States missed an opportu- 
nity to show the world that it is scrupulous in observing the laws of war when 
it did not announce that all Taliban and al Qaeda detainees would be treated 
in accordance with Articles 45 and 75 of the 1977 Geneva Protocol I. The 
latter articles elaborate a range of minimum rules of protection for all those 
who are not entitled to POW status. Since the US treatment of the detainees 
comported with these two Protocol provisions, and since most nations are sig- 
natories to Protocol I, announcing that it would adhere to these Protocol pro- 
visions would have been smart public relations. Finally, Prof. Roberts opined 
that "there is a case for consideration of further revision" of the law of war. 
While rejecting the idea that existing laws of war are inadequate in the face of 
the "terrorist challenge," Roberts did believe that "some modest evolutionary 
changes" should be examined. In Sir Adam's view, legal issues involving "tar- 
geting, cluster bombs, and the classification and treatment of detainees" were 
appropriate topics, as was "the whole difficult problem of . . . suicide bombers 
who by definition cannot be deterred by normal means." 

After commentary from Col. Charles Garraway, Prof. Leslie C. Green, and 
Lt. Col. Tony E. Montgomery, and questions from the audience on jus in bello 
issues, the conference participants shifted their focus to a third topic: coalition 
operations. Prof. Wolff Von Heinegg, a member of the international law fac- 
ulty at Europa-University in Frankfurt, Germany, presented an article on the 
legality of maritime interception and interdiction operations (MIO) in Opera- 
tion ENDURING FREEDOM, the name given to the military operation launched 
in the aftermath of 9/1 1. In von Heinegg's view, MIO seek to disrupt supplies 
for terrorist groups (especially by preventing materiel support for, and 



xvn 



Preface 

financing of, international terrorism), eliminate terrorist command and train- 
ing facilities, and capture international terrorists for the purpose of prosecut- 
ing them. 

Von Heinegg first observed that the Security Council has neither required 
flag states to permit MIO against ships flying its flag, nor authorized the US 
and its coalition partners to conduct MIO. It follows that the legal basis for 
MIO must be individual or collective self-defense as permitted by customary 
international law and reflected in Article 5 1 of the UN Charter. But von 
Heinegg also argued that Resolution 1373, because it obligates all UN mem- 
ber states to prevent and suppress within their territories all acts of interna- 
tional terrorism, provides an additional legal basis for MIO. In Prof, von 
Heinegg's view, the clear language of Resolution 1373 acts to waive any mem- 
ber states's objection to MIO conducted against terrorists. The right of self- 
defense and Resolution 1373, taken together, provide the legal authority for 
the "the US and its coalition partners, [to] control international shipping and 
aviation in order to verify the innocent status of such shipping and aviation." 
With that said, because the principle of proportionality applies to a state's 
right of self-defense, "indiscriminate implementation and enforcement of 
MIO covering vast sea areas" would be impermissible as disproportionate. 
Consequently, all MIO must be based upon "sufficient intelligence indica- 
tors ... of conspiracies to commit, or acts of, international terrorism." Prof, 
von Heinegg concluded his presentation by explaining that the US and its co- 
alition partners "are entitled to establish maritime interdiction areas" (i.e. to 
restrict "neutral" or third party state access to certain sea areas) for the pur- 
pose of identifying ships carrying terrorists or materiel for them. He also briefly 
examined the limitations imposed on MIO "by the law of naval warfare and by 
the law of maritime neutrality." 

Ivan Shearer, Challis Professor of International Law at the University of 
Sydney, Australia, followed Von Heinegg with a paper titled "The Limits of 
Coalition Cooperation in the War on Terrorism." In Shearer's view, there 
were a number of obstacles to successful coalition warfare against interna- 
tional terrorism. First, as there is no universal definition of terrorism, each 
state is free to adopt its own definition. These varying domestic law definitions 
of terrorism are certain to make coalition efforts against terrorists more prob- 
lematic, especially regarding extradition for prosecution. Second, while there 
are international norms of human rights, how each state interprets these 
norms in the detention and prosecution of terrorists is very much controlled 
by domestic law. For example, Article 5 of the Universal Declaration oi Hu- 
man Rights provides that "no one shall be subjected to . . . cruel, inhuman, or 



XVlll 



Fred Borch & Paul Wilson 



degrading treatment of punishment." But how this provision is viewed in the 
United States is quite different from how Article 5 is interpreted in the Euro- 
pean Union. A third potential obstacle is extradition. Since there is no cus- 
tomary international law requirement for a state to honor an extradition 
request from another, bi-lateral and multi-lateral extradition treaties have 
been negotiated. Many of these existing treaties prohibit the extradition of 
their own citizens. They also prohibit the extradition of "politically motivated 
offenders." In Shearer's view, these two provisions are certain to create obsta- 
cles to the successful prosecution of terrorists. Fourth, the death penalty poses 
a very real obstacle, especially since it has been retained in the United States. 
The countries of the European Union, Australia, Canada, and New Zealand, 
for example, will only extradite a terrorist to the United States on the condi- 
tion that any death penalty, if imposed, will not be carried out. Finally, Prof. 
Shearer addressed the role of the International Criminal Court (ICC) in coali- 
tion operations against terrorism. He noted that terrorism is not a crime 
within the jurisdiction of the ICC; it was specifically excluded out of fear that 
its inclusion as a crime might politicize the ICC. That said, Shearer concluded 
that as some acts of terrorism — such as a widespread or systematic attack 
against any civilian population — might constitute a crime against humanity 
and, as the ICC has subject-matter jurisdiction over this offense, some terror- 
ists could be prosecuted in that forum. 

After commentary by Commanders Neil Brown (UK) and Kevin O'Rourke 
(US), Wing Commander Paul Cronan (Australia), and Lt. Col. Jean-Guy 
Perron (Canada), and questions and comments from the audience and pre- 
senters, the conference moved to its next topic: The "proper" forum for 
"bringing terrorists to justice." Lt. Col. Michael Newton, an Army judge advo- 
cate and faculty member at the U.S. Military Academy, and Christopher 
Greenwood, a professor at the London School of Economics and Political Sci- 
ence, presented papers on this subject. 

The thrust of Newton's presentation was that existing international law 
provides a sufficient framework to prevent and punish terrorism. Newton rec- 
ognized, however, that the current state of the law, predicated as it is on "the 
voluntary efforts of sovereign states to implement and enforce international 
norms ... is not a panacea" for combating terrorism. Nonetheless, after exam- 
ining the Nuremberg trials, the UN tribunals for Rwanda and the Former Yu- 
goslavia, and the International Criminal Court, Newton concludes that the 
creation of "a new superstructure of supranational justice" — an international 
terrorist tribunal — would not "materially enhance" the law. In his view, estab- 
lishing an international court to prosecute terrorists is "abdicating state 



xix 



Preface 

responsibility to an internationalized process [and this] would be the first step 
toward paralyzing politicization of the fight against terrorism." 

Prof. Chris Greenwood responded that he believed that the national courts 
were the best forum in which to prosecute terrorists. He objected to the idea 
that al Qaeda members were guilty of war crimes prior to the commencement 
of international armed conflict in Afghanistan in mid-October 2001; rejecting 
the idea that there could be a war between a non-state actor and the United 
States prior to that time. 

After commentary by Col. Manuel E.F. Supervielle, by Mr. Daniel Helle, 
and questions and comments from the audience, the conference moved to its 
final topic: "The Road Ahead." Prof. John Murphy, Mr. James P. Terry, and 
Dr. Nicholas Rostow made presentations. Murphy, a professor of law at 
Villanova University, discussed "the application of legal lessons learned [and] 
review of the role of international conventions on terrorism." Prior to examin- 
ing these issues, however, Murphy identified a number of "trends" in terror- 
ism. These include the "globalization" of terrorism," as reflected in the 
worldwide expansion of the al Qaeda network of terrorists now operating in as 
many as 60 different countries, and the reality that September 11, 2001 signals 
"the increased willingness of terrorists to kill large numbers of people and to 
make no distinction between military and civilian targets." Another trend is 
that terrorists appear to be increasingly "smarter and more creative . . . and 
better equipped to take advantage of the information on weapons, targets, and 
resources available on the internet," and that some terrorist organizations are 
cooperating with each other (e.g. the IRA traveled to Colombia to assist the 
FARC in planning an urban bombing campaign). But Murphy also noted a 
"positive" trend in terrorism: the relative decline of state-sponsored terrorism 
when compared to the 1970s and 1980s. 

With this as background, Prof. Murphy examined how international law 
has addressed these developments. He first stressed that international terror- 
ism had been treated primarily as a domestic criminal law matter prior to Sep- 
tember 11, 2001. Now, however, it seems clear that the scope and scale of al 
Qaeda's attacks on the World Trade Center and Pentagon — and the US and 
coalition response to it in Afghanistan — have given the law of armed conflict 
a much greater role in combating international terrorism. But Murphy re- 
minded the audience that international criminal law — in the form of 12 UN- 
related antiterrorism conventions — : will also have an important role in the 
future. 

In his view, these anti-terrorism conventions have taken a piecemeal ap- 
proach to terrorism because it has been impossible to develop a 



xx 



Fred Borch & Paul Wilson 



comprehensive convention against terrorism, primarily because agreeing upon 
a definition of terrorism has not been possible. In any event, while a compre- 
hensive treaty might have been preferable, these individual conventions have 
provided much coverage, especially those negotiated in the 1990s like the In- 
ternational Convention for the Suppression of the Financing of Terrorism; in Prof. 
Murphy's view, all that is missing is a convention directed toward the use of 
weapons of mass destruction by terrorists. In short, while recognizing that re- 
sponding with military force in self-defense may be increasingly necessary in 
the war against terrorism, Prof. Murphy's paper highlighted that international 
criminal law conventions will remain important and valuable tools in the 
struggle as well. 



Jim Terry, a retired Marine Corps lawyer now serving as a Deputy Assistant 
Secretary at the U.S. State Department, next offered a series of observations 
on the Road Ahead in Afghanistan. Recognizing that the United States must 
use all available instruments of power, Terry provided a fascinating road map of 
those actions that should take place in Afghanistan over the course of the next 
few years. Terry noted particularly that within the next two years, the United 
States must help Afghanistan: move toward increased stability and prosperity; 
develop an emerging economy, facilitate the establishment o( a national mili- 
tary and police force, and be prepared for the process to be long and hard. 

Jim Terry then presented a legal analysis of the "legal rights" of, and "appro- 
priate treatment" of al Qaeda and Taliban detainees held by the United States 
in Guantanamo Bay, Cuba. In Terry's view, two questions are central to this 
analysis: After the United States and its allies commenced military operations 
against Afghanistan in mid-October 2001, did the 1949 Geneva Conventions 
apply to the conflict? If so, were members of al Qaeda as a group, and the 
Taliban individually or as a group, entitled to POW status if captured? 

Terry explained that the US government view was that the al Qaeda orga- 
nization was not part of "the armed forces of a Party," or the "militias and vol- 
unteer corps forming part of such armed forces." It followed that al Qaeda was 
a non-state actor and its members did not qualify for POW status. As for the 
Taliban, Mr. Terry agreed that, as the Taliban were the de facto government of 
Afghanistan, it followed that there was an international armed conflict be- 
tween the U.S. and its allies and Afghanistan. However, the Taliban's failure 
to require its fighters to wear uniforms or other distinctive insignia, or be sub- 
ject to a command structure that enforced the law of war, meant that cap- 
tured Taliban combatants also were not entitled to POW treatment. But, 
explained Mr. Terry, "Part II of Geneva Convention III [Relative to the 
Treatment of POWs] " requires humane treatment, including food, medical 



xxi 



Preface 

attention, the opportunity to worship, and other benefits. In short, while not 
legally entitled to POW status, the detainees were entitled to much the same 
treatment afforded POWs. Jim Terry closed with a brief discussion about mili- 
tary commissions, and how Taliban and al Qaeda personnel who committed 
violations of the law of war would be subject to trial and punishment by such 
commissions. 

Nick Rostow, General Counsel to the US Mission to the United Nations, 
presented "a few words about the UN and terrorism before September 11, 
2001, the impact of September 11th and where the UN seems to be headed 
from here." Rostow repeated a remark made recently by the Secretary Gen- 
eral: "Terrorism against innocent civilians is clearly a bad thing and yet most 
of you wouldn't be here except for acts of what are now called terrorism or 
what the colonial powers regarded as terrorism." In Rostow's view, this com- 
ment "aptly captures the tension at the UN" when it comes to terrorism. With 
that said, Nick Rostow believed that the events of September 11th "changed 
the focus of both the Security Council and the General Assembly," and there 
was every reason to think that the UN would "finally . . . make progress toward 
addressing terrorism on the world stage." 

Comments from Messrs. Michael Saalfeld and Ronald Winfrey, and Capt. 
Jane Dalton followed, with discussion from conference participants. When 
the symposium closed shortly thereafter, all who attended better understood 
the complexity and difficulty involved in the challenges facing lawyers and op- 
erators in the war on terrorism. 

In editing the papers presented and transcribing the hundreds of pages of 
oral commentary, we have striven to be accurate and yet retain the tenor of 
the conference. We could not have brought this 79th volume of the Interna- 
tional Law Studies to print without the unsung, but outstanding efforts of Ms. 
Susan Meyer and Mr. Matthew Cotnoir in Desktop Publishing. Nor would 
this volume be complete without the incredible efforts of Ms. Pat Goodrich, 
Ms. Wilma Haines, Ms. Kathleen Koegler, Ms. Erin Poe, Ms. Margaret Rich- 
ard, and Mr. Jeremiah Lenihan in proofreading and correcting the multiple er- 
rors we surely made. Finally, a special note of thanks to Captain Jack 
Grunawalt, JAGC, USN (Ret.) for his willingness to again support the Inter- 
national Law Studies series in an effort to insure it remains the standard that it 
is. It is only due to these individuals' efforts that the International Law 



xxn 



Fred Borch & Paul Wilson 



Department is able to bring you this volume. However, there are sure to be er- 
rors, and these are our responsibility alone. 

Last but not least, we dedicate this book to Janet and Pauline, without 
whose support and love we would be lost. 



Fred L. Borch Paul S. Wilson 

Colonel, U.S. Army Major, U.S. Army 

Judge Advocate General's Corps Judge Advocate General's Corps 



xxm 



I 



Welcoming Address 



Rear Admiral Rodney Rempt 



W: 



elcome to the US Naval War College in Newport, Rhode Island as 
we undertake what should prove to be very fruitful discussions and 
debate about the defense of our nation and the critical operational and legal is- 
sues that confront the United States today. In particular, welcome to our Col- 
lege's conference on International Legal Issues in the Global War on 
Terrorism. It is exceedingly helpful to have scholars of international renown 
and practitioners charged with dealing with these particularly thorny issues 
come together to identify and discuss the bases for the conduct by the US and 
its coalition partners of military operations against terrorists and those who 
support them. As it is in many such cases, over the next few days participants in 
this conference will plow new ground and review history at the same time. 
Such goals are an important purpose of the US Naval War College and it is im- 
portant that you strive to do this while you are here. 

Our academic environment permits us to exchange thoughts, analyze ideas 
and be forward leaning. From conferences such as these, policy is developed 
and written, and significant consequences can emerge. As we exchange ideas 
amongst ourselves, I encourage you to press the envelope and challenge each 
other with creative new thinking because frankly our world is currently en- 
gaged in a rapid paradigm shift. Current norms must be flexible and adaptive 
or they must be discarded as new norms press to the front as we peer into the 



Welcoming Address 



future in an effort to vigilantly protect our citizens, our property, indeed our 
very way of life from cowards who call themselves terrorists. 

Your presence here for these several days is extremely important. Bringing 
together international scholars and practitioners to examine and study the ba- 
sis for how the United States and other nations partner together in this com- 
mon cause of conducting military operations against terrorists and those state 
agencies and organizations that support them is of vital importance to the 
United States and to the international community at large. 

As an example, a current discussion of great interest deals with Iraq. In 
some sense, Iraq presents a simple situation. Iraq has a very unstable ruler who 
is closing in on his goal of greater access to weapons of mass destruction. 
While not currently a policy maker, I recognize that if the need arises to deal 
with Saddam Hussein militarily, we must be clear as to the international basis 
for the use of force against him. What would be the legal basis for a regime 
change? How do we proceed on the best possible terms to address the circum- 
stances that we face? The question is not whether it is desirable to oust 
Saddam Hussein from Iraq. Instead, since we are a nation founded upon the 
rule of law, the question is how do we pursue what is determined to be in the 
national interest while remaining squarely within the parameters of customary 
international law and the treaties and conventions of which we are currently 
signatories? 

You must look at how the law of armed conflict applies to our combat oper- 
ations in Afghanistan, the Philippines and elsewhere around the world as it 
seems clear that we will be conducting combat operations for the foreseeable 
future in many of these areas. So the question is how to proceed in an area and 
in a situation that is starkly new in our nation's history. In addressing this 
question you must analyze and debate many other difficult questions. 

Specifically, we need answers to the following tough questions: Do mem- 
bers of terrorist organizations ever qualify as prisoners of war under the 
Geneva Conventions? Do members of the Taliban qualify for such protection? 
Should the Geneva Conventions be amended, updated, changed? In this sin- 
gle series of questions, I have, in some sense, questioned the continuing valid- 
ity of the Geneva Conventions. The root question is how do the legal 
conventions we have in place apply to the circumstances confronting the 
United States and the international community? The current international le- 
gal regime applicable to the law of armed conflict remains heavily influenced 
by World War I and World War II. If our society is truly entering a new era, 
should this continue to be the case? Or must international law change to re- 
flect the new reality of non-state actors and other amorphous groups? 



Rear Admiral Rodney Rempt 



Other difficult questions to be considered include: what is the legal status 
of members of the US Central Intelligence Agency and Federal Bureau of In- 
vestigation who engaged directly in combat activities in the armed conflict in 
Afghanistan? Are these personnel combatants, privileged combatants, unlaw- 
ful combatants, civilians, or are they entitled to some other status? Did these 
personnel uphold or violate the law of armed conflict? Similarly, what are the 
standards for the treatment of captured terrorists? How long may they be de- 
tained? What if these terrorists are US citizens? What due process are they en- 
titled to receive? 

From these questions must be asked: what are the lessons learned from the 
Global War on Terrorism? What action should the legal community take re- 
garding future military operations against terrorists and those states support- 
ing terrorist activity? These are not the only difficult questions as there are 
many others. These are, however, a small sampling of the types of issues I ex- 
pect you will consider during the next few days. These are questions of great 
significance, not only to lawyers but more importantly to commanders and 
policy makers. 

Two weeks ago, the Naval War College hosted our Current Strategy Fo- 
rum. It brought together the best of military and civilian leadership, academia, 
and the defense industry to address the strategic challenges confronting our 
nation. The present conference is a like effort to bring together the best minds 
in international law to further define and seek answers to the critical ques- 
tions that must be identified and resolved for our military and our nation's fu- 
ture. Your work here is important to how our nation proceeds in its war 
against terror in the future. 

Again, welcome to this conference. I wish you an enjoyable and productive 
stay here at the Naval War College. Your challenge awaits you. 



Panel I 

Wednesday — June 26, 2002 

9:00AM-12:00PM 

Jus ad Bellum 

Moderator: 

Lieutenant Andru Wall, 
Judge Advocate, US Navy 
International Law Department 
US Naval War College 

Presenters: 

Professor Michael Schmitt 

George C. Marshall European Center 

Professor Rein Miillerson 

Kings College, University of London 

Commentators: 

Professor Robert Turner 

Center for National Security Law 

University of Virginia School of Law 

Mr. William Dalton 

Office of the General Counsel 

US Department of Defense 



II 



Counter^Terrorism and the Use of Force in 

International Law 



T 



Michael Schmitt 1 



he terrorist attacks of September 11th undoubtedly ushered in a new 
era in international security affairs. Although terrorism has been a 
tragically prominent feature of the global condition for most of the past half 
century, these operations were quantitatively and qualitatively different than 
those of the past. They involved extensive and sophisticated long-term plan- 
ning by a group that cuts across lines of nationality and which operates from 
within many countries. 2 The scale of the destruction in both human and physi- 
cal terms was shocking; the fact that the attacks and their aftermath were 
broadcast live only served to further exacerbate their psychological impact. 



1. Professor of International Law, George C. Marshall European Center for Security Studies, 
Garmisch-Partenkirchen, Germany. The views expressed herein are those of the author in his 
personal capacity and do not necessarily represent those of any United States or German 
government agency. 

2. For an excellent discussion of how the attacks were a turning point in the evolution of 
international terrorism, see Paul J. Smith, Transnational Terrorism and the al Qaeda Model: 
Confronting New Realities, PARAMETERS, Summer 2002, at 33. See also, Michael Howard, What's 
in a Name? How to Fight Terrorism, FOR. AFF'S, January/February 2002, at 8, which argues that 
declaring a "war" on terrorism was a "terrible and irrevocable error." Id. at 8. 



Counter -Terrorism and the Use of Force in International Law 

That all 19 terrorists directly involved executed them with great precision de- 
spite the certainty of their own deaths may well portend a terrifying face of 21st 
century terrorism — a genre of terrorism likely to prove extraordinarily difficult 
to counter by traditional means. 

Combating this aggravated form of terrorism will require new cooperative 
security strategies. Certainly, the Global War on Terrorism articulated by the 
United States represents one such strategy. 3 As time passes and opportunities 
and threats become clearer, the worldwide war on terrorism will evolve re- 
sponsively. Other governments and intergovernmental organizations are al- 
ready developing parallel and complimentary strategies. 

Lest the lawlessness inherent in terrorism spread to its victims, counter- 
terrorism strategy must be formulated with great sensitivity to the international 
law governing the use of force. Some have suggested that this body of law, in- 
cluding that facet regarding the right to self-defense, is not up to the task? 



3. The extent to which the GWOT represents a fundamental shift in US strategies for dealing 
with threats is apparent in President Bush's discussion of preemptive strategies. See Remarks by 
the President at 2002 Graduation Exercise of the United States Military Academy, June 1, 2002, 
available at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html (Jun. 18, 2002). 
Released on September 17, 2002, the US National Security Strategy incorporates such strategies. 
See U.S. National Security Strategy, at 4, available at http://www.whitehouse.gov/nsc/nss.html 
(Nov. 4, 2002). 

4. See Michael J. Glennon, The Fog of Law. Self -Defense, Inherence, and Incoherence in Article 5 1 of 
the United Nations Charter, 25 HARV. J. L. & PUB. POL. 539 (2002). Professor Glennon argues 
that: 

The international system has come to subsist in a parallel universe of two systems, one 
de jure, and the other de facto. The de jure system consists of illusory rules that would 
govern the use of force among states in a platonic world of forms, a world that does not 
exist. The de facto system consists of actual state practice in a real world, a world in 
which states weigh costs against benefits in regular disregard of the rules solemnly 
proclaimed in the all-but-ignored de jure system. The decaying de jure catechism is 
overly schematized and scholastic, disconnected from state behavior, and unrealistic in 
its aspirations for state conduct. 
Id. at 540. 



8 



Michael Schmitt 



Others counter that effective responses to terrorism and state "supporters" 
thereof are proving entirely consistent with existing prescriptive norms. 5 This 
article explores those norms, specifically the relevant jus ad bellum, 6 in the con- 
text of the response to the 9/1 1 attacks. Under what circumstances can a victim 
state react forcibly to an act of terrorism? Against whom? When? And with 
what degree of severity? It concludes that a natural evolution in the community 
understanding of limitations on the use of force has occurred over the past de- 
cades, such that claims o( international law's present insufficiency are over- 
blown. However, assertions that the law as traditionally understood supports a 
full range of forceful responses to terrorism equally overstate reality. As is usu- 
ally the case, the truth lies between the extremes. 

The Relevant Facts 

In order to effectively appraise the international law governing the use of force 
in counter-terrorism today, and to acquire a sense for its normative vector, it is 
necessary to first paint the factual backdrop. Law tends to be reactive and re- 
sponsive to the factual context in which it operates. Obviously, this is the case 
for customary international law, which relies, inter alia, on state practice for its 
emergence. The same is true, however, for convention-based law. Despite dec- 
larations that international agreements, such as the UN Charter, should be in- 
terpreted in accordance with the ordinary meaning of their text, it is 
undeniable that community understanding of law shifts over time to remain 



5. See, e.g., Jack M. Beard, America's New War on Terror: The Case for Self-Defense Under 
International Law, 25 HARV. J. L. & PUB. POL. 559 (2002). 

[T]he case for America's forcible response to the September 11 attacks as being fully 
consistent with the inherent right of self-defense under customary international law and 
Article 51 of the U.N. Charter is very strong. The unanimous condemnation of the 
attacks by the U.N. General Assembly, the affirmation of the right of self-defense by the 
Security Council, the growing consensus in the international community to hold states 
accountable for terrorist actions, and the repeated condemnation by the Security 
Council of the Taliban Regime's support of terrorists in particular, clearly help establish 
an appropriate framework under international law for the exercise of self-defense by the 
United States. 

Id. at 589-90. 

6. That component of international law that governs when it is that a state may resort to force in 
pursuit of its national interests, such as defending itself from armed attack. 



Counter -Terrorism and the Use of Force in International Law 

coherent and relevant to both current circumstances and the global commu- 
nity's normative expectations. 7 

Sadly, the facts of 9/11 are all too familiar. On 11 September 2001, terror- 
ists seized control of four passenger aircraft in the United States. Two were 
flown into the Twin Towers of the World Trade Center in New York City, a 
third was driven into the Pentagon in Washington D.C. and the fourth 
crashed in Pennsylvania following an unsuccessful attempt by passengers to 
regain control from the highjackers. Roughly 3000 people of over 80 national- 
ities perished. 

Investigation quickly led authorities to focus their attention on Osama bin 
Laden and his al Qaeda terrorist organization. 8 Al Qaeda operates from more 
than 60 countries through a compartmentalized network using operatives of 
numerous nationalities. By October, the British government felt sufficiently 
confident in intelligence reports at its disposal to release certain facts and con- 
clusions regarding the group. These were subsequently confirmed by the 
United States. Specifically, 10 Downing Street announced that al Qaeda had 
planned and conducted the attacks, that it continued to have the resources to 
mount further operations, that US and UK citizens were potential targets and 
that "Usama Bin Laden and Al-Qa'ida were able to commit these atrocities 



7. Pursuant to Article 31 of the Vienna Convention on the Law of Treaties: 

1 . A treaty shall be interpreted in good faith in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in light of its object and 
purpose . . . ; 

2. There shall be taken into account together with the context: . . . 

b. any subsequent practice in the application of the treaty which establishes the 
agreement of the parties regarding its interpretation. . . . 
Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, 1155 U.N.T.S. 331, 8 I.L.M. 
679 (1969). This point was reiterated by the International Court of Justice in Competence of the 
General Assembly for the Admission of a State to the United Nations. There, the Court noted "the 
first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to 
endeavour to give effect to them in their natural and ordinary meaning in the context in which 
they occur." 1950 I.C.J. 4, 8. 

8. For background on bin Laden, see PETER L. BERGEN, HOLY WAR, INC.: INSIDE THE SECRET 
WORLD OF OSAMA BIN LADEN (2001); Michael Dobbs, Bin laden: Architect of New Global 
Terrorism, WASH. POST, Sep. 16, 2001, at A8. 



10 



Michael Schmitt 



because of their close alliance with the Taleban regime, which allowed them 
to operate with impunity in pursuing their terrorist activity." 9 

Of particular relevance to the use of force issue is the fact that al Qaeda was 
hardly venturing into terrorism for the first time on September 11th. The or- 
ganization had allegedly been involved in the 1993 World Trade Center 
bombing, the 1998 bombings of the US embassies in Kenya and Tanzania (at- 
tacks for which Osama bin Laden has been indicted 10 ), and the attack on the 
USS Cole in 2000; the group had also claimed responsibility for the 1993 at- 
tack on US special forces in Somalia, as well as three separate 1992 bombings 
intended to kill US military personnel in Yemen. Moreover, the US Depart- 
ment of State alleges the existence of al Qaeda ties to plots (not executed) to 
kill the Pope, attack tourists visiting Jordan during the millennium celebra- 
tion, bomb US and Israeli embassies in various Asian capitals, blow up a dozen 
passenger aircraft while in flight and assassinate President Clinton. 11 

That al Qaeda represents a continuing threat is apparent not only from its 
track record, but also from statements periodically issued by Osama bin Laden 
himself. The British government's October Press Release cited a number of his 
most virulent: 

The people of Islam have suffered from aggression, iniquity and injustice 
imposed by the Zionist-Crusader alliance and their collaborators .... It is the 
duty now on every tribe in the Arabian peninsula to fight jihad and cleanse the 
land from these Crusader occupiers. Their wealth is booty to those who kill 
them. (1996) 

[T]errorising the American occupiers [of Islamic Holy Places] is a religious and 
logical obligation. (1996) 

We — with God's help — call on every Muslim who believes in God and wishes to 
be rewarded to comply with God's order to kill Americans and plunder their 
money whenever and wherever they find it. We also call on Muslims ... to 



9. United Kingdom Press Release, 10 Downing Street Newsroom, Responsibility for the Terrorist 
Atrocities in the United States, Oct. 4, 2001, at paras. 21-22, available at http://www.number- 
10.gov.uk/news.asp?NewsId=2686 (J un - 18, 2002). As to US confirmation of the facts, see 
David E. Sanger, White House Approved Data Blair Released, N.Y. TIMES, Oct. 6, 2001, at B6. 

10. Indictment, United States v.Usama bin Laden et al, S (2) 98 Cr. 1023 (LBS) (S.D.N.Y.Nov. 
4, 1998). 

11. Department of State, Patterns of Global Terrorism, app. B: Background Information on 
Terrorist Groups, al-Qa'ida, April 30, 2001, available at http://www.state.gOv/s/ct/rls/pgtrpt/ 
2000/2450.htm Gun. 18, 2002). 



11 



Counter -Terrorism and the Use of Force in International Law 

launch the raid on Satan's US troops and the devil's supporters allying with 
them, and to displace those who are behind them. (1998) 

[Acquiring [chemical or nuclear] . . . weapons for the defence of Muslims [is] a 
religious duty. (1998) 

Thus, in al Qaeda we have a determined terrorist organization that has com- 
mitted multiple acts of terrorism over the course of a decade — acts which re- 
sulted in the deaths of thousands and caused property and financial damage 
measured in the billions of dollars — and views its continuing campaign in terms 
of jihad. 

The US reaction was swift. Within a week, President Bush formally pro- 
claimed a national emergency 12 and called up members of the reserve compo- 
nent of the armed forces. 13 He also established the Office of Homeland Secu- 
rity and the Homeland Security Council in order to facilitate a coordinated 
response to the terrorist threat. 14 For its part, Congress passed a joint resolution 
that authorized the President to "use all necessary and appropriate force 
against those nations, organizations, or persons he determines planned, autho- 
rized, committed, or aided the terrorist attacks that occurred on September 11, 
2001, or harbored such organizations or persons, in order to prevent any future 
acts of international terrorism against the United States by such nations, orga- 
nizations or persons." 15 Essentially, the United States was placed on a war foot- 
ing. Indeed, the President characterized the attacks as "an act of war against 
our country." 16 Thus, the US government quickly moved beyond a criminal 
law enforcement paradigm in determining how to respond to the attacks. 

Almost immediately, the spotlight focused on Taliban connections to 
al Qaeda, which was "headquartered" in Afghanistan. Although the United 



12. Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sep. 18, 2001). 

13. Exec. Order No. 13,223, 66 Fed. Reg. 48,201 (Sep. 18, 2001). A number of other steps were 
taken. For instance, President Bush gave the Treasury Department greater power to undermine 
financial support for terrorism through freezing assets and imposing financial sanctions on those 
who refused to cooperate in the effort. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 
2001). 

14. Exec. Order No. 13,228, 66 Fed. Reg. 51,812 (Oct. 10, 2001). 

15. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). 

16. President George W. Bush, Address Before a Joint Session of the Congress on the United 
States Response to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES. DOC. 1347 
(Sep. 20, 2001). 



12 



Michael Schmitt 



States did not formally recognize the Taliban as the legitimate government of 
the country, the Taliban controlled the greatest amount of territory, including 
that where al Qaeda was based. 17 Working through the Pakistani government, 
which maintained diplomatic relations with the Taliban, the United States is- 
sued a series of demands. These were set forth publicly in late September dur- 
ing a Presidential address to a joint session of Congress. Specifically, the 
United States insisted that the Taliban: 

Deliver to United States authorities all the leaders of Al-Qa'ida who hide in 
your land. Release all foreign nationals, including American citizens, you have 
unjustly imprisoned. Protect foreign journalists, diplomats, and aid workers in 
your country. Close immediately and permanently every terrorist training camp 
in Afghanistan, and hand over every terrorist and every person in their support 
structure to appropriate authorities. Give the United States full access to 
terrorist training camps, so we can make sure they are no longer operating. 18 

President Bush made it quite clear that there would be no negotiation and that 
he expected immediate compliance. Moreover, he unambiguously laid out the 
consequences of non-compliance: "They will hand over the terrorists, or they 
will share in their fate." 19 

Despite the "no-negotiations" stance, the Taliban expressed a desire to re- 
solve the matter. These entreaties were rebuffed and on October 6 the Presi- 
dent issued a final public warning to cooperate. 20 The following day the 
United States and United Kingdom launched the first phase of Operation EN- 
DURING FREEDOM, consisting of airstrikes against both al Qaeda and Taliban 
targets. The scope and nature of the campaign quickly expanded to encom- 
pass ground and maritime operations. 



17. For background on the Taliban, see AHMED RASHID, TALIBAN: MILITANT ISLAM, OIL 
AND FUNDAMENTALISM IN CENTRAL ASIA (2001); PETER MARSDEN, THE TALIBAN: WAR, 
RELIGION AND THE NEW ORDER IN AFGHANISTAN (1998). 

18. Address Before a Joint Session of the Congress, supra note 16. 

19. Id. 

20. President George W. Bush, Radio Address, 37 WEEKLY COMP. PRES. DOC. 1429, 1430 
(Oct. 6, 2001). 



13 



Counter 'Terrorism and the Use of Force in International Law 

As required by Article 51 of the United Nations Charter, the United States 
promptly notified the Security Council that it was acting in individual and col- 
lective self-defense. 21 In the report, the United States asserted that it had 
"clear and compelling information that the Al-Qaeda organization, which is 
supported by the Taliban regime in Afghanistan, had a central role in the at- 
tacks" and that there was an "ongoing threat" made possible "by the decision 
of the Taliban regime to allow the parts of Afghanistan that it controls to be 
used by [al Qaeda] as a base of operations." The purpose of the military opera- 
tions was to "prevent and deter further attacks on the United States." Omi- 
nously, the United States warned, "We may find our self-defense requires 
further actions with respect to other organizations and other States." 22 In an 
address to the nation, the President echoed the threat contained in the Arti- 
cle 51 notification: "Every nation has a choice to make. In this conflict, there 
is no neutral ground. If any government sponsors the outlaws and killers of in- 
nocents, they have become outlaws and murderers, themselves. And they will 
take that lonely path at their own peril." 23 

Because it had participated in the strikes, the United Kingdom also trans- 
mitted the requisite report to the Security Council. It announced that the at- 
tacks were conducted in self-defense against "Usama Bin Laden's Al-Qaeda 
terrorist organization and the Taliban regime that is supporting it." The 
avowed purpose was "to avert the continuing threat of attacks from the same 
source." 24 Thus, although limiting the scope of its operations to al Qaeda and 



21. U.N. CHARTER, art. 51. Article 51 provides that: 

Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defence if an armed attack occurs against a Member of the United Nations, until 
the Security Council has taken measures necessary to maintain international peace and 
security. Measures taken by Members in the exercise of this right of self-defence shall be 
immediately reported to the Security Council and shall not in any way affect the 
authority and responsibility of the Security Council under the present Charter to take at 
any time such action as it deems necessary in order to maintain or restore international 
peace and security. 

22. Letter from the Permanent Representative of the United States of America to the United 
Nations Addressed to the President of the Security Council (Oct. 7, 2001), U.N. Doc. S/2001/ 
946, available at http://www.un.int.Zusa/s-2001-946. htm (Jun. 18,2002) [hereinafter US Letter]. 

23. President George W. Bush, Address to the Nation Announcing Strikes Against Al Qaeda 
Training Camps and Taliban Military Installations, 37 WEEKLY COMP. PRES. DOC 1432, (Oct. 
7,2001). 

24. Letter from the Charge d'Affaires of the Permanent Mission of the United Kingdom of 
Great Britain and Northern Ireland to the United Nations addressed to the President of the 
Security Council (Oct. 7, 2001) available at http://www.ukun.org/xq/asp/SarticleT>pe.l7/Article_ 
ID.328/qx/articles_show.htm Gun. 18, 2002). 

14 



Michael Schmitt 



the Taliban, like the United States it suggested that action was necessary to 
prevent further attacks. 

The international reaction to the affair was almost universally one of outrage 
over the terrorist acts and support for the United States. On September 12th, 
the Security Council passed Resolution 1368 condemning the attacks as "horri- 
fying," labeling them a threat to international peace and security, and reaffirm- 
ing the "inherent right of self-defence as recognized by the Charter of the 
United Nations." 25 Resolution 1373, passed on September 28th, likewise cited 
the right to self-defense and laid out steps to combat terrorism, such as suppress- 
ing the financing of terrorism, denying safe haven to terrorists and their accom- 
plices, and cooperating in law enforcement efforts. 26 Interestingly, the General 
Assembly did not refer to self-defense in its own resolution on the attacks. 27 

Following commencement of the military campaign, the Security Council 
passed a number of relevant resolutions. For instance, on November 14th it is- 
sued Resolution 1378, which expressed support for "international efforts to 
root out terrorism, in keeping with the Charter of the United Nations"; reaf- 
firmed Resolutions 1368 and 1373 (which had cited the right to self-defense); 
condemned the Taliban for "allowing Afghanistan to be used as a base for the 
export of terrorism by the Al Qa'ida network and other terrorist groups and 
for providing safe haven to Osama Bin Laden, Al-Qa'ida and others associ- 
ated with them"; and expressed support for the "efforts of the Afghan people 
to replace the Taliban." 28 On December 20th it passed Resolution 1386, 
which (as with Resolution 1373) expressed support for rooting out terrorism 
in accordance with the Charter, reaffirmed Resolutions 1368 and 1373, and 



25. S. C. Res. 1368, pmbl., U.N. SCOR, 56th Sess, U.N. Doc. S/1378/(2001). It is interesting 
that the Security Council did not reference self-defense in response to the 1998 attacks on the 
East African embassies even though the United States formally invoked Article 51. According to 
Article 39 of the UN Charter, the Security Council has cognizance over "any threat to the peace, 
breach of the peace, or act of aggression" and decides upon measures necessary to "maintain or 
restore international peace and security." U.N. CHARTER, art. 39. Therefore, labeling the acts as 
a threat to international peace and security is normatively significant in that it empowers the 
Council to act. 

26. S. C. Res. 1373, pmbl. U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001). 

27. G.A. Res. 56/1, U.N. GAOR, 56th Sess., Agenda Item 8 (Sep. 18, 2001). 

28. S. C. Res. 1378, U.N. SCOR, 56th Sess., U.N. Doc. S/1378/(2001). 



15 



Counter -Terrorism and the Use of Force in International Law 

authorized the establishment of the International Security Assistance Force 
[ISAF]. 29 Reaffirmation of the international counter-terrorist effort, of previ- 
ous resolutions, of its prior condemnation of the Taliban and al Qaeda and of 
the fact that terrorism constitutes a threat to international peace and security 
occurred yet again on January 20th, 2002 with Resolution 1390. 30 In it, the Se- 
curity Council employed its Chapter VII authority to impose sanctions on the 
Taliban and al Qaeda, including a freezing of assets, a prohibition of travel and 
an arms embargo. 

In none of the resolutions did the Security Council explicitly authorize the 
United States, any coalition of forces, or a regional organization to use force 
pursuant to Article 42 of the Charter, as the Council is entitled to do in the 
face of a "threat to the peace, breach of peace or act of aggression." 31 How- 
ever, it is important to note that the Security Council twice referred to the in- 
herent right to individual and collective self-defense prior to coalition combat 
operations against the Taliban and a] Qaeda, that no effort was made to con- 
demn the forceful response once launched, and that the Council repeatedly 
reaffirmed the right to self-defense and expressed support for the international 
effort to "root out terrorism" as those operations were ongoing. 

Beyond the United Nations, the most powerful military alliance in the 
world articulated its position in even more unequivocal terms. The day after 
the terrorist attacks, NATO's North Atlantic Council, consisting of Perma- 
nent Representatives of all 19 NATO member states, announced that if the 
attacks originated from outside the United States, they would be "regarded as 



29. S. C. Res. 1386 U.N. SCOR, 56th Sess., U.N. Doc. S/1386/(2001). Pursuant to the 
Agreement on Provisional Arrangements in Afghanistan pending the Re-establishment of 
Permanent Government Institutions (Bonn Agreement of Dec. 5, 2001), ISAF is to assist in 
maintenance of security in the vicinity of Kabul. ISAF executed a military technical agreement 
(MTA) with the Interim Administration in Afghanistan on 4 January 2002. For the text of the 
Bonn Agreement, see http://www.uno.de/frieden/afghanistan/talks/agreement.htm (J un - 18, 
2002). The MTA text is at http://www.operations.mod.uk/isafmta.pdf Gun. 18, 2002). 

30. S. C. Res. 1390, U.N. SCOR, 57th Sess., U.N. Doc. S/1390/(2002). The operation itself is 
described by the British Ministry of Defence at http://www.operations.mod.uk/fingal/ Qun. 18, 
2002). 

31. U.N. CHARTER, art. 42. The text reads: 

Should the Security Council consider that measures provided for in Article 41 would be 
inadequate or have proved to be inadequate, it may take such action by air, sea, or land 
forces as may be necessary to maintain or restore international peace and security. Such 
action may include demonstrations, blockade, and other operations by air, sea, or land 
forces of Members of the United Nations. 



16 



Michael Schmitt 



an action covered by Article 5 of the Washington Treaty." 32 Article 5, based 
on Article 5 1 of the UN Charter, provides for collective self-defense if any of 
the member states suffers an "armed attack." 33 Within three weeks, and fol- 
lowing briefings in which US officials provided "clear and compelling" evi- 
dence that the attacks were not the work of domestic terrorists, the North 
Atlantic Council made precisely that finding and invoked Article 5. 34 There 
was no mention of whom the defense, which began five days later, could be di- 
rected against. This was a normatively significant omission given that one of 
the entities the United States and United Kingdom struck on October 7th was 
a non-state actor, whereas the other was a government supportive of that 
group, but which did not control it. 

Similarly, the Organization of American States invoked the collective self- 
defense provisions of the Rio Treaty 35 following its finding that "these terrorist 
attacks against the United States are attacks against all American States." 36 
Australia did likewise, citing Article IV of the ANZUS Treaty in offering to 



32. North Atlantic Treaty Organization (NATO), Press Release No. 124, statement by the 
North Atlantic Council (Sep. 12, 2001) available at http://www.nato.int/docu/pr/2001/p01- 
124e.htm, Gun. 18, 2002). 

33. The Parties agree that an armed attack against one or more of them in Europe or North 
America shall be considered an attack against them all and consequently they agree 
that, if such an armed attack occurs, each of them, in exercise of the right of individual 
or collective self-defence recognised by Article 5 1 of the Charter of the United Nations, 
will assist the Party or Parties so attacked by taking forthwith, individually and in 
concert with the other Parties, such action as it deems necessary, including the use of 
armed force, to restore and maintain the security of the North Atlantic area. 

North Atlantic Treaty, Aug. 24, 1959, art. 5, T.I.A.S. 1964, 34 U.N.T.S. 243. 

34. Secretary General Lord Robertson, statement at NATO Headquarters (Oct. 2, 2001) 
available at http://www.nato.int/docu/speech/2001/s011002a.htm, (Jun. 18, 2002). 

35. The High Contracting Parties agree that an armed attack by any State against an 
American State shall be considered as an attack against all the American States and, 
consequently, each one of the said Contracting Parties undertakes to assist in meeting 
the attack in the exercise of the inherent right of individual or collective self-defense 
recognized by Article 51 of the Charter of the United Nations. 

Inter- American Treaty of Reciprocal Assistance, Sep. 2, 1947, art. 3.1, 62 Stat. 1681, 21 
U.N.T.S. 77. 

36. Terrorist Threat to the Americas, Resolution 1, Twenty-Fourth Meeting of Consultation of 
Ministers of Foreign Affairs Acting as Organ of Consultation In Application of the Inter- 
American Treaty of Reciprocal Assistance, OEA/Ser.F/II.24, RC.24/RES.1/01 (Sep. 21, 2001). 



17 



Counter -Terrorism and the Use of Force in International Law 

deploy military forces. 37 Russia, China and India agreed to share intelligence 
with the United States, while Japan and South Korea offered logistics support. 
The United Arab Emirates and Saudi Arabia broke off diplomatic relations 
with the Taliban, and Pakistan agreed to cooperate fully with the United 
States. Twenty-seven nations granted overflight and landing rights and 46 
multilateral declarations of support were obtained. 38 

Once the campaign against al Qaeda and the Taliban began, offers or ex- 
pressions of support flowed in from many sources. The United Kingdom, as 
noted, participated directly in the initial strikes, whereas many other states, 
such as Georgia, Oman, Pakistan, the Philippines, Qatar, Saudi Arabia, 
Tajikistan, Turkey and Uzbekistan, provided airspace and facilities. China, 
Egypt, Russia and the European Union publicly backed the US/UK opera- 
tions. The Organization for the Islamic Conference simply urged the United 
States to limit the campaign to Afghanistan, 39 while the Asia-Pacific Eco- 
nomic Cooperation Forum condemned terrorism of all kinds. Neither organi- 
zation criticized the operations. Australia, Canada, the Czech Republic, 
Germany, Italy, Japan, the Netherlands, New Zealand, Turkey, and the 
United Kingdom offered ground troops. 40 By May 2002, the forces of several 
nations, in particular sizable British, Australian, Canadian and American con- 
tingents, were engaged in dangerous "mop-up" actions. 41 



37. Prime Minister John Howard, Government Invokes ANZUS Treaty — Press Conference (Sep. 
14, 2001), available at http://australianpolitics.com.au/foreign/anzus/01-09-14anzus-invoked.shtml, 
Gun. 18, 2002). See also White House, Fact Sheet: Operation ENDURING FREEDOM 
Overview (Oct. 1, 2001) available at http://www.state.gOv/s/ct/rls/fs/2001/5194.htm Qun. 18, 
2002). Article VI of the ANZUS Treaty provides: "Each Party recognizes that an armed attack in 
the Pacific Area on any of the Parties would be dangerous to its own peace and safety and 
declares that it would act to meet the common danger in accordance with its constitutional 
processes." Security Treaty (Australia, New Zealand, United States), Sep. 1, 1951, art. IV, 3 
U.S.T. 3420, 3422, 131 U.N.T.S. 83, 84. 

38. Fact Sheet, supra note 37. 

39. See Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. 
Charter, 43 HARV. INT'L L. J. 41, 49 (2002); Sean D. Murphy, Contemporary Practice of the United 
States Relating to International Law, 96 AM. J. INT'L. LAW 237, 248 (2002). 

40. Murphy, Contemporary Practice 2002, supra note 39, at 248. The European Council 
"confirm [ed] its staunchest support for the military operations . . . which are legitimate under the 
terms of the United Nations Charter and of Resolution 1368." Declaration by the Heads of State 
of Government of the European Union and the President of the Commission: Follow-up to the 
September 11 Attacks and the Fight Against Terrorism, Oct. 19, 2002, SN 4296/2/01 Rev. 2. 

4 1 . Perhaps best illustrative of the coalition nature of the campaign were operations that month 
from Manas airport, near Bishket, Kyrgyz Republic. Although typically a sleepy airfield, it was 
hosting US and French fighter-bombers; Australian and French tankers; transport aircraft from 
Spain, the Netherlands, Denmark and Norway; and a South Korean medical team. Americans in 
a Strange Land, THE ECONOMIST, May 4, 2002, at 41. 

18 



Michael Schmitt 



Since the counter-terrorism operations began, controversy has surfaced re- 
garding a number of legal issues. Most notable among these has been the de- 
tention, treatment and proposed prosecution of the detainees held at US 
Naval Base Guantanamo Bay. Also a point of contention, albeit more muted, 
is the extent of collateral damage and incidental injury from the strikes con- 
ducted against al Qaeda and Taliban targets. And looming on the horizon is a 
very divisive issue, i.e., carrying the fight beyond the borders of Afghanistan. 
Yet, except in legal circles, and particularly the sub-circle of academia, there 
has been minimum controversy about the lawfulness of the operations con- 
ducted within Afghanistan under the jus ad bellum. On the contrary, and as 
illustrated in the events described above, support for the US and coalition 
military response has been strong. The extent to which this support is 
grounded in either the lex lata or lex ferenda is the subject of the remainder of 
this article. 

The Normative Framework for the Use of Force 

The UN Charter expresses the basic prohibition on the use of force in interna- 
tional law. It provides, in Article 2(4), that "[a] 11 Members shall refrain in their 
international relations from the threat or use of force against the territorial in- 
tegrity or political independence of any state, or in any other manner inconsis- 
tent with the Purposes of the United Nations." 42 Within the four corners of the 
Charter, there are but two exceptions to this prohibition. The first, set forth in 
Article 39, empowers the Security Council to determine the existence of a 
threat to the peace, breach of peace or act of aggression and decide what mea- 
sures are necessary to maintain or restore international peace and security. By 
Article 42, the Council may turn to military force to resolve these situations in 
what are generally labeled "enforcement operations." 43 States would provide 
troops under a UN flag, as a coalition of the willing or individually. Regional 



42. U.N. CHARTER, art. 2(4). On this article, see Albrecht Randelzhofer, Article 2, in THE 

Charter of the United Nations: A Commentary 72 (Bruno Simma ed., 1995). 

43. U.N. Charter, art. 42. 

19 



Counter-Terrorism and the Use of Force in International Law 

organizations are also authorized to engage in "enforcement" activities, but 
only with the approval of the Security Council. 44 

The second exception is found in Article 51. It provides 

Nothing in the present Charter shall impair the inherent right of individual or 
collective self-defense if an armed attack occurs against a Member of the United 
Nations, until the Security Council has taken measures necessary to maintain 
international peace and security. Measures taken by Members in the exercise of 
this right of self-defense shall be immediately reported to the Security Council 
and shall not in any way affect the authority and responsibility of the Security 
Council under the present Charter to take at any time such action as it deems 
necessary in order to maintain or restore international peace and security. 

Thus, states victimized by an armed attack may not only defend themselves, 
but also receive assistance from others in mounting that defense. They need 
not await a Council authorization to act, but are required to report actions 
taken to the Security Council, which may itself determine that it needs to re- 
spond in some fashion. 

Some commentators assert that additional exceptions to the prohibition on 
the use of force lie outside the Charter. Most frequently cited is a right to hu- 
manitarian intervention, a topic rendered timely by NATO's 1999 interven- 
tion in the Federal Republic of Yugoslavia on behalf of the Kosovar 
Albanians. 45 However, no such purported exception, or at least none that has 



44. The Security Council shall, where appropriate, utilize such regional arrangements or 
agencies for enforcement action under its authority. But no enforcement action shall be 
taken under regional arrangements or by regional agencies without the authorization of 
the Security Council, with the exception of measures against any enemy state, as 
defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional 
arrangements directed against renewal of aggressive policy on the part of any such state, 
until such time as the Organization may, on request of the Governments concerned, be 
charged with the responsibility for preventing further aggression by such a state. 

U.N. Charter, art. 53.1. 

45. On this issue, see Adam Roberts, The So-Called 'Right' of Humanitarian Intervention, 3 Y.B. 
INT'LHUM. L. 3 (2000). 



20 



Michael Schmitt 



garnered any significant support, would apply in the case of counter-terrorist 
operations. 46 

Despite the seeming expansiveness of the Charter prohibition, there has 
been, as will be discussed, growing support for, or at least a diminishing degree 
of criticism of, forceful counter-terrorist operations. Tellingly, they are almost 
always justified in terms of the right to self-defense, rather than as an excep- 
tion to the general prohibition on the use of force. Perhaps more normatively 
significant is the fact that acceptance by other states of their legitimacy, when 
expressed, is also usually framed in self-defense terms. Thus, while it is appar- 
ent that such activities are increasingly acceptable politically, it is more appro- 
priate to consider that acceptance as bearing on the evolution of the norms 
regarding self-defense, than as exemplars of an emergent exception to a prohi- 
bition generally characterized as comprehensive in nature. 

Returning to the Charter, a more apropos inquiry is whether counter- 
terrorist operations can fall within the Chapter VII enforcement framework. 
That international terrorism may constitute a threat to international peace 
and security, as understood in the Charter use of force context, is unquestion- 
able. For instance, in 1992 the Security Council, reacting to attacks against 
Pan Am Flight 103 (the Lockerbie case) in 1988 and UTA Flight 722 the fol- 
lowing year, affirmed "the right of all states ... to protect their nationals from 
acts of international terrorism that constitute threats to international peace 
and security" and expressed concern over Libya's failure to fully cooperate in 
establishing responsibility for the acts. 47 The same year, and in response to 
Libya's failure to render the requisite cooperation, the Council re-emphasized 
that "suppression o{ acts of international terrorism, including those in which 
States are directly or indirectly involved, is essential for the maintenance of 



46. It has been suggested that the Article 2(4) prohibition does not apply in any event to limited 
strikes against terrorists based in another country. Such operations, so the reasoning goes, do not 
"violate the territorial integrity or political independence" of the state in which they occur since 
they are not directed against that state's personnel or property, are not intended to affect its 
political independence in any way, and are limited temporally to the period necessary to 
eradicate the terrorist threat. Gregory M. Travalio, Terrorism, International Law, And The Use Of 
MUtary Force, 18 WIS. INT'L L. J. 145, 166-67 (2000), citing, inter alia, Jordan J. Paust, 
Responding Lawfully to International Terrorism, 8 WHITTIER L. REV. 711, 716-7 (1986); JOHN 
NORTON MOORE ET AL., NATIONAL SECURITY LAW 131 (1990); LOUIS HENKIN, HOW 
NATIONS BEHAVE 141-45 (1979); Jean Kirkpatrick and Allan Gerson, The Reagan Doctrine, 
Human Rights and International Law, in RIGHT V. MIGHT 25-33 (Council on Foreign Relations 
1989). This article rejects the approach, favoring, as discussed infra, one that acknowledges an 
infringement on sovereignty, but balances it against other state rights. 

47. S. C. Res. 731, U.N. SCOR, 47th Sess., U.N. Doc. S/731/(1992). 

21 



Counter-Terrorism and the Use of Force in International Law 

international peace and security." It further reaffirmed that u in accordance 
with the principle in Article 2, paragraph 4, of the Charter . . . every State has 
the duty to refrain from organizing, instigating, assisting or participating in 
terrorist acts in another State or acquiescing in organized activities within its 
territory directed towards the commission of such acts, when such acts in- 
volve a threat or use of force." Finally, the Council styled the failure of Libya 
to cooperate a threat to international peace and security. 48 

Similarly, following the 1998 US Embassy bombings in Nairobi and Dar-es- 
Salaam, the Security Council condemned "such acts which have a damaging 
effect on international relations and jeopardize the security of States." As it 
did in 1992. the Council also reiterated the duty to refrain from "organizing, 
instigating, assisting or participating in terrorist acts in another State or acqui- 
escing in organized activities within its territory directed towards the commis- 
sion of such acts." 49 The following year, the Council approved Resolution 
1269 (1999), which, without being tied to any particular incident, 
"[u]nequivocally condemned] all acts, methods and practices of terrorism as 
criminal and unjustifiable, regardless of their motivation, in all their forms and 
manifestations, wherever and by whomever committed, in particular those 
which could threaten international peace and security." 

Indeed, the Security Council characterized the pre-September 11th situa- 
tion in Afghanistan as one implicating international peace and security. In 
October 1999, it "strongly condemn[ed] the continuing use of Afghan terri- 
tory, especially areas controlled by the Taliban, for the sheltering and training 
of terrorists and planning of terrorist acts, and reaffirm [ed] its conviction that 
the suppression of international terrorism is essential for the maintenance of 
international peace and security." 50 It did precisely the same in December 
2000. In July 2001, the Council made its position completely unambiguous by 
determining that "the situation in Afghanistan constitutes a threat to interna- 
tional peace and security in the region." 51 By September 2001, therefore, it 
was abundantly clear that international terrorism, as well as allowing one's 
territory to be used as a base of terrorist activities, could rise to the level of a 
"threat to the peace." This being so, the Council is entitled, pursuant to 



48. S. C. Res. 748, U.N. SCOR, 47th Sess., U.N. Doc. S/748/(1992). 

49. S. C. Res. 1 189, U.N. SCOR, 53d Sess., U.N. Doc. S/l 189/(1998). See also S. C. Res. 1044, 
U.N. SCOR, 51st Sess., U.N. Doc. S/1044/(1996) regarding assassination attempts against the 
President of Egypt, which styled "the suppression of acts of international terrorism ... an 
essential element for maintenance of international peace and security." 

50. S. C. Res. 1267, U.N. SCOR, 54th Sess., U.N. Doc. S/1267/(1999). 

51. S. C. Res. 1363, U.N. SCOR, 56th Sess., U.N. Doc. S/1363/(2001). 



22 



Michael Schmitt 



Article 39, to decide on the appropriate measures to take to "maintain or re- 
store international peace and security," and such measures include the use of 
force. 

In the aftermath of the attacks, the Security Council labeled them threats 
to the peace. On September 12, 2001, it "[sjtrongly condemned] in the 
strongest terms the horrifying terrorist attacks which took place on September 
11, 2001 in New York, Washington D.C. and Pennsylvania and, regard [ed] 
such acts, like any act of international terrorism, as a threat to international 
peace and security." 52 On September 28, it did so again in nearly identical lan- 
guage. 53 Meeting at the ministerial level on November 12, 2001, the Council 
issued Resolution 1377, in which it declared "that acts of international terror- 
ism constitute one of the most serious threats to international peace and secu- 
rity in the twenty-first century." 54 In subsequent resolutions on the situation 
in Afghanistan, it adopted the practice of reaffirming all previous resolutions, 
thereby continuing to characterize the September 1 1 attacks, as well as any 
other act of international terrorism, as a threat to international peace and se- 
curity. Such a finding is the sine qua non of an authorization for a forceful re- 
sponse pursuant to Chapter VII (with the exception of self-defense) . 

Thus, it is unquestionable that the Security Council could have elected to 
mount enforcement operations — either under the UN banner or by granting a 
mandate to member states or an intergovernmental organization — in an effort 
to restore and maintain international peace and security. 55 Since the demise of 
the Cold War, the Council has not hesitated to exercise its enforcement au- 
thority, sometimes in quite creative fashion. Chapter VII enforcement opera- 
tions have been conducted in response to such diverse situations as the Iraqi 
invasion of Kuwait, the failed-state disorder in Somalia, fighting resulting 
from the breakup of Yugoslavia and internal violence in Indonesia. It has 
even, in the case of Operation DENY FLIGHT, authorized a regional security 
organization, NATO, to maintain a no-fly zone. And when that same organi- 
zation mounted Operation ALLIED FORCE to stop human rights abuses against 
the Kosovar Albanians by forces of the Federal Republic of Yugoslavia, ad 



52. S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001). 

53. S. C. Res. 1373, U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001). 

54. S. C. Res. 1377, U.N. SCOR, 56th Sess., U.N. Doc. S/1377/(2001). In the resolution, it 
adopted the Declaration on the Global Effort to Counter Terrorism. 

55. For an article arguing that there is "a continuing process of attempting to widen customary 
rights while eroding the effective powers of international organizations," of which Operation 
ENDURING FREEDOM is an excellent example, see Eric P.J. Myjer and Nigel D. White, The Twin 
Towers Attack: An Unlimited Right to Self Defence?, 7 J. CONF. & SEC. L 5 (2002). 

23 



Counter -Terrorism and the Use of Force in International Law 

bellum-based criticism of the bombing centered on the fact that the NATO 
members had not turned to the Council for authorization to conduct their hu- 
manitarian intervention, rather than on the operation itself. Perhaps best il- 
lustrative of the flexibility with which the Council has interpreted its Chapter 
VII authority is creation of international tribunals to try those charged with 
human rights and humanitarian law violations during both international and 
non-international armed conflicts. 56 

In fact, the Security Council has used its Chapter VII authority to respond 
to terrorism in the past by imposing sanctions on both Libya and Sudan for al- 
lowing terrorist organizations to operate from their territory. 57 Yet the Secu- 
rity Council was never asked to issue a mandate in response to the 9/11 
attacks and in no resolution did it do so. Although some commentators have 
searched for an implied use of force authorization in the post-attack Security 
Council resolutions, 58 such efforts are unnecessary. There was no reason for 
the Council to issue one. The sole basis for conducting Coalition operations 
was self-defense, which does not require advance Council authorization. All 
the Charter requires is notice whenever such activities are undertaken. By the 
terms of Article 51, an operation in self-defense does not deprive the Council 
of its "right" to respond to the situation, but, by the same token, that fact does 
not deprive states of their inherent right to exercise individual or collective 
self-defense, a form of armed self-help. 59 



56. See, e.g., Statute of the International Tribunal for the Former Yugoslavia, available at http:// 
www.un.org/icty/index.html Gun. 18, 2002) [established by S. C. Res. 827, U.N. SCOR, 47th 
Sess., U.N. Doc. S/827/(1993)]; Statute of the International Tribunal for Rwanda, available at 
http://www.ictr.org/ Gun. 18, 2002) [established by S. C. Res. 955, U.N. SCOR, 50th Sess., U.N. 
Doc. S/955/(1994)]; Statute of the Special Court for Sierra Leone, available at http://www.sierra- 
leone.org/specialcourtstatute.html (Jun. 18, 2002) [established by S. C. Res. 1315, U.N. SCOR, 
55th Sess., U.N. Doc. S/13 15/(2000)]. Note that the authority of the Council to establish such 
tribunals was unsuccessfully challenged in an interlocutory appeal before the Appeals Chamber 
of the International Criminal Court for Yugoslavia. Prosecutor v. Tadic, Case IT-94-1-T, 
Decision on Jurisdiction (Aug. 10, 1995). See George H. Aldrich, Comment: Jurisdiction Of The 
International Criminal Tribunal For The Former Yugoslavia, 90 AM. J. INT'L L. 64 (1996). 

57. S. C. Res. 748 U.N. SCOR, 47th Sess., U.N. Doc. S/748/(1992) (Libya); S. C. Res. 1054, 
U.N. SCOR, 51st Sess., U.N. Doc. S/1054/(1996) (Sudan). 

58. See, e.g., Carsten Stahn, Addendum: Security Council Resolutions 1377 (2001) and 1378 
(2001), ASIL Insights, Dec, 2001, http://www.asil.org/insights/insigh77.htm Gun. 18, 2002). 

59. Report of the International Law Commission, 32d Sess., 11(2) Y. B. INT'L L. COMM. 1, 54 
(1980). 

24 



Michael Schmitt 



Self-Defense 

As noted, Security Council Resolutions 1368 and 1373 cited the inherent right 
to self-defense in the specific context of international terrorism. Further, both 
the United States and the United Kingdom notified the Security Council that 
they were conducting operations against the Taliban and al Qaeda pursuant to 
their right of individual and collective self-defense. They received verbal and 
actual support from an array of states and intergovernmental organizations, 
and there was no significant criticism of either the general premise that states 
may respond to international terrorism in self-defense or of its invocation in 
this particular case. However, the operations that have been mounted against 
the Taliban and al Qaeda raise a number of issues regarding the precise (or not 
so precise) parameters of the right to self-defense and the nature of its evolu- 
tion. Before turning to them though, it is useful to survey several of those sur- 
rounding self-defense generally. 60 

One involves ascertaining whether an action constitutes an "armed at- 
tack," for under Article 51 the right to defend oneself surfaces only in the face 
of such an attack. Not all uses of force rise to this level. For instance, it is argu- 
able that certain operations that do not involve physical force, such as a com- 
puter network attack, might be a "use of force" [and thereby contrary to 
Article 2(4)], but not an "armed attack." 61 Similarly, the International Court 



60. One important issue is whether or not Article 5 1 represents the entire body of the law of self- 
defense. In the Nicaragua case, the International Court of Justice held that the customary 
international law right of self-defense "continues to exist alongside treaty law," specifically 
Article 51 of the Charter. To begin with, the article itself refers to the "inherent right" of 
individual and collective self-defense. More to the point in this inquiry is the fact that Article 51 
leaves unanswered certain aspects of its exercise. As the Court pointed out, for instance, 
although Article 5 1 sets a threshold of "armed attack" for vesting of the right, there is no 
definition of that term. The Charter also fails to articulate the well-accepted requirements that 
acts of self-defense be proportional and necessary. Military and Paramilitary Activities in and 
against Nicaragua (Nicaragua v. US), Merits, I.C.J. Reports 1986, para. 176 [hereinafter 
Nicaragua]. See also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 
I.C.J. Reports 1996, para. 41 [hereinafter Nuclear Weapons]. Customary international law can 
prove useful in filling voids in the understanding of self-defense. This fact renders the current 
campaign normatively significant in that pervasive state practice over time, when the product of 
a sense of legal obligation, matures into received customary international law. The Afghanistan 
operations therefore represent important data points in the development of the right of self- 
defense. 

61. See Michael N. Schmitt, Computer Network Attack and the Use of Force in International Law. 
Thoughts on a Normative Framework, 37 COLUM. J. TRANSNAT'L L. 885, 896 (1999). 

25 



Counter -Terrorism, and the Use of Force in International Law 

of Justice, applying customary international law, held in the Nicaragua case 
that: 

the prohibition of armed attacks may apply to the sending by a State of armed 
bands to the territory of another State, i/such an operation, because of its scale 
and effects, would have been classified as an armed attack rather than as a mere 
frontier incident had it been carried out by regular armed forces. But the Court 
does not believe that the concept of "armed attack" includes only acts by armed 
bands where such acts occur on a significant scale but also assistance to rebels in 
the form of the provision of weapons or logistical or other support. Such 
assistance may be regarded as a threat or use of force, or amount to intervention 
in the internal or external affairs of other States. 62 

It is therefore the "scale and effects" of the act that are determinative in as- 
sessing whether an armed attack is taking place such that a right to respond in 
self-defense vests. By the Court's standard, acts of a "significant scale" suffice. 
That said, the Court's reference to a mere frontier incident, as well as the ac- 
ceptance of actions by other than a state's armed forces, imply that the requi- 
site significance oi the scale and effects is rather low. Border incidents are 
characterized by a minimal level of violence, tend to be transitory and spo- 
radic in nature, and generally do not represent a policy decision by a state to 
engage an opponent meaningfully. They are usually either "unintended" or 
merely communicative in nature. By negative implication, it would not take 
much force to exceed this threshold. 

It is possible, then, that a state employing violence will have "used force," 63 
and in doing so committed an international wrong, or even engaged in activity 
constituting a threat to the peace, breach of the peace or act of aggression 
(thereby allowing the Security Council to take cognizance of the matter under 
Chapter VII), but not have conducted an armed attack as that term is 



62. Nicaragua, supra note 59, para. 195 (emphasis added). 

63. Note that Article 2(4) prohibition on the use of force applies only to states. 

26 



Michael Schmitt 



understood normatively in the context of self-defense. 64 Analogously, actions 
by non-state actors (the applicability of self-defense in such situations is dis- 
cussed infra) might be criminal in nature and/or represent threats to the 
peace, breaches of the peace or acts of aggression, but not be of a scale suffi- 
cient to implicate the international law right of self-defense. Despite the gaps, 
however, it would appear that the level of violence necessary to rise to the 
level of an armed attack is markedly low. 

Once an armed attack has been launched, the victim state may respond 
with force in self-defense. However, customary international law imposes cer- 
tain requirements on self-defense. In the 19th century Caroline case, Secretary 
of State Daniel Webster set out the standard that has since achieved nearly 
universal acceptance. According to Secretary Webster, there must be a "ne- 
cessity of self-defence, instant, overwhelming, leaving no choice of means, 
and no moment for deliberation" and the defensive acts must not be "unrea- 
sonable or excessive." 65 This standard has matured into the requirements that 
self-defense be necessary and proportionate. The International Court of Jus- 
tice confirmed their existence in both the Nicaragua case 66 and the Nuclear 
Weapons advisory opinion. 67 In the latter case, the Court noted "this dual 



64. In ascertaining whether an armed attack has occurred, resort is sometimes made to the term 
"aggression," which was defined in General Assembly's Definition of Aggression Resolution. 
However, aggression is not wholly synonymous with armed attack. As Randelzhoffer has noted, 

The travaux preparatoires of the Definition illustrate that a definition of 'armed attack' 
was not intended. In the special committee that worked out the Definition, the United 
States, supported by other Western states, strongly opposed tendencies to include the 
'armed attack'. [C/ the statements made by the US representative (U.N. Doc. A/ 
AC.134/S. C. 113, S. C. 105, p. 17 and S. C. 108, p. 43), the representative of Japan 
(U.N. Doc. A/AC.134/S. C. 112), and the UK (U.N. Doc. A/AC. 134/S. C. 113)]. Like 
the Soviet Union [see stmt by the Soviet Representative (U.N. Doc. A/ AC. 134/S. C. 
105, p. 16)], they also expressed the view that the notions of 'act of aggression' and 
'armed attack' are not identical [see the statement by the US representative (U.N. Doc. 
A/AC.134/S.C. 105, p. 17)]. 

Albrecht Randelzhofer, Article 51, in THE CHARTER OF THE UNITED NATIONS: A 
COMMENTARY 661, 668 (Bruno Simma ed., 1995). 

65. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), 29 BRITISH AND FOREIGN 
STATE PAPERS 1129, 1138 (1840-1). 

66. Nicaragua, supra note 60, para. 176. 

67. Nuclear Weapons, supra note 60, para. 41. See also RESTATEMENT (THIRD) OF THE 
FOREIGN RELATIONS LAW OF THE UNITED STATES 905 (1987). Ian Brownlie labels 
proportionality "the essence of self-defence." IAN BROWNLIE, INTERNATIONAL LAW AND THE 
USE OF FORCE BY STATES 279 n. 2 (1963). 



27 



Counter -Terrorism and the Use of Force in International Law 

condition applies equally to Article 51 of the Charter," thereby verifying the 
applicability of the requirements in both customary and conventional law. 68 

The principle of necessity requires that the resort to force occur only when 
no other reasonable options remain to frustrate continuation of the armed at- 
tack. Obviously, directly reacting with force to an armed attack that is under- 
way would seldom be deemed unnecessary. More normatively complex is the 
situation where an armed attack has taken place, but for some reason has 
paused. Perhaps it has achieved its intended objectives. Or cooler heads may 
have prevailed in the attacking state's government. Maybe the government 
that ordered the attack has been ousted and a successor government opposed 
to the conflict is now in power. Whatever the case, necessity mandates other 
than forceful responses whenever feasible. 

Transposing the standard to terrorism, the question is generally whether 
law enforcement operations are likely to be sufficient to forestall continuation 
of the armed attack. Such operations/may be undertaken by the victim state, 
the state where the terrorists are based, or, for that matter, any other state. 
Similarly, if a state in which the terrorists are located conducts military opera- 
tions with a high probability of success, there would be no necessity basis for 
self-defense by the victim state. 

The proportionality principle simply requires that the response in self- 
defense be no more than necessary to defeat the armed attack and remove the 
threat of reasonably foreseeable future attacks. Yet, it is sometimes wrongly 
suggested that the size, nature and consequences of the response must be pro- 
portional to the size, nature and consequences of the armed attack. As to the 
size of the attack, it would be absurd to suggest that there must be an equiva- 
lency of force between the armed attack and self-defense. On the contrary, 
the attacker typically seizes the initiative, thereby acquiring an advantage. To 
successfully defend against an opponent enjoying such an advantage may take 
much greater force than that used to mount the attack. 

Requiring equivalency of nature is equally inappropriate. The International 
Court of Justice suggested as much by implication in its Nuclear Weapons opin- 
ion. When assessing the proportionality of the use of nuclear weapons, the 
Court opined that "(t)he proportionality principle may . . . not in itself exclude 



68. Nuclear Weapons, supra note 60, para. 41. 



28 



Michael Schmitt 



the use of nuclear weapons in self-defense in all circumstances." 69 While rep- 
resenting a non-decision on the issue at hand, the Court had admitted the 
possibility that use of a nuclear weapon might be legitimate in the face of a 
non-nuclear attack. Scaled down from the nuclear level, such a criterion re- 
mains equally malapropos. By way of illustration, in responding to a maritime 
attack the most productive tactic may be to disrupt land-based maritime com- 
mand and control assets. Likewise, in an effort to cause an attacker to desist by 
altering his cost-benefit calculations, it may be more effective to concentrate 
on targets of particular value to him rather than those directly involved in the 
attack. 70 In fact, doing so may well result in a lesser level of violence than 
would be necessary to definitively defeat the attacking units themselves. 
Surely international law does not mandate tit-for-tat exchanges. 

At first glance, a standard of proportionality vis-a-vis the harm caused (or 
possible) to the victim might seem more reasonable. In other words, the state 
engaging in self-defense should not be entitled to cause more harm than it has 
suffered. But such a standard ignores the fact that international law grants 
states the right to self-defense in order that they not be rendered helpless in 
the face of an attack. To suggest that a state cannot use the destructive force 
necessary to cause an attacker to discontinue (or to prevent future attacks) 
because the resulting destruction outweighs that the victim state originally 
suffered is to effectively deprive the victim of the right to self-defense. 

Finally, there have been suggestions that self-defense operations are dispro- 
portionate if they cause more collateral damage and incidental injury than the 
civilian casualties and damage to civilian objects originally suffered by the vic- 
tim state. Such assertions have been made in the context of the current 



69. Id., para. 42. There are, as noted in the discussion of self-defense, competing views of 
proportionality. India argued that the principle meant a nuclear weapon could not be used 
except in response to a nuclear attack. But even in such a case, so India argued, the use of nuclear 
weapons would be malum in se. Thus, any nuclear reprisal would be unlawful. Written statement 
of the Government of India, June 20, 1995 (Legality of the Threat or Use oi Nuclear Weapons) , 
at 2-3. Other approaches include proportional to the harm caused, vice technique employed to 
cause the harm, and proportional to the force needed to cause the other side to desist. Compare 
the approach of the Netherlands and United States, both of which argued that the legality would 
be situational, with that of India. Observations of the Government of the Kingdom of the 
Netherlands, June 16, 1995 (Legality of the Threat or Use of Nuclear Weapons), at 12; Written 
statement of the Government of the United States of America, June 20, 1995 (Legality of the 
Threat or Use of Nuclear Weapons), at 30. 

70. In a slightly different context, this approach lies at the heart of compellance strategies. On 
the issue of affecting an enemy's decision-making, see Jeanne M. Meyer, Tearing Down the 
Faqade: A Critical Look at the Current Law on Targeting the Will of the Enemy and Air Force 
Doctrine, 51 A. F. L. REV. 143 (2001). 

29 



Counter -Terrorism and the Use of Force in International Law 

counter-terrorist operations, in which the number of civilian casualties alleg- 
edly exceeds the number of fatalities resulting from the 9/1 1 attacks. 71 Claims 
of this nature confuse the self-defense proportionality requirement of the jus 
ad bellum with the jus in bello proportionality principle that forbids attacks 
"expected to cause incidental loss of civilian life, injury to civilians, damage 
to civilian objects, or a combination thereof, which would be excessive in re- 
lation to the concrete and direct military advantage anticipated." 72 But even 
by the in bello standard, the correct phenomena to compare are incidental in- 
juries/collateral damage and military advantage. The issue is whether or not the 
military advantage accruing from an attack justifies the civilian casualties and 
damage to civilian objects; there is no balancing of the civilian suffering on the 
opposing sides of the conflict. 

Restated in the context of terrorism, the proportionality standard allows 
only that degree of force necessary to fend off a terrorist attack and protect 
oneself from a future continuation thereof. But the force necessary to achieve 
this purpose may far exceed that employed in the attack. Terrorists often op- 
erate in loose networks from dispersed locations, receiving logistic support in 
ways intended to mask their nature. Further, they may be fanatical devotees 
willing to die for their cause; this makes it extremely difficult to meaningfully 
affect their cost-benefit calculations. Taking them on is a daunting task that 
typically requires extremely aggressive measures. 

Beyond necessity and proportionality, the Caroline standard has also often 
been deemed to impose an imminency requirement, i.e., that the attack be 
ongoing, or at least so imminent that the victim state has to react almost re- 
flexively to counter it. This requirement has generated enormous debate 
about precisely when it is that an attack becomes imminent enough to merit 



71. Estimates of civilian casualties vary widely. Compare, e.g., Marc W. Herold, A Dossier on 
Civilian Victims of United States' Aerial Bombing of Afghanistan: A Comprehensive Accounting, Dec. 
10, 2001, available at http://www.cursor.org/stories/civilian_deaths.htm (J un - 18, 2002) 
(approximately 4000 by Jan. 1, 2002) with Carl Connetta, Operation Enduring Freedom: Why a 
Higher Rate of Civilian Bombing Casualties, Jan. 18, 2002, available at http://wwAv.comw.org/pda/ 
0201oef.html#ref7 Qun. 18, 2002) (1000-13000 over the same period). A Human Rights 
Watch Report is forthcoming on the subject (unreleased as of Jun. 19, 2002). 

72. Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, arts. 51.5(a) <St 57.2 (a) (hi) & (b), Dec. 
12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977), reprinted in ADAM ROBERTS & RICHARD 
GUELFF, DOCUMENTS ON THE LAWS OF WAR 419 (3d ed. 2000). On proportionality, see 
William J. Fenrick, The Rule of Proportionality and Protocol Additional I in Conventional Warfare, 98 
MIL. L. REV. 91 (1982); Judith G. Gardam, Proportionality and Force in International Law, 87 AM. 
J.lNT'LL. 391 (1993). 

30 



hiichael Schmitt 



"pre-emptive" action in self-defense. This is the issue of the appropriateness of 
"anticipatory self-defense." 73 

Certain commentators who read Caroline narrowly suggest a high standard 
of imminence. 74 Such a reading logically flows from Webster's "instant, over- 
whelming, leaving no choice of means, and no moment for deliberation" ver- 
biage. However, the nature of combat has evolved dramatically since the time 
of the Caroline correspondence. In the 21st century, the means of warfare are 
such that defeat can occur almost instantaneously. Indeed, the linear blitz- 
krieg strategies of the Second World War appear slow and unwieldy by today's 
standards, in which the battlespace is four-dimensional and effects are gener- 
ated in fractions of a second. 

In such an environment, the most apropos approach is to concentrate on 
the underlying intent of the right to self-defense. Its primary purpose is to af- 
ford states a self-help mechanism by which they may repel attackers; it recog- 
nizes that the international community may not respond quickly enough, if at 
all, to an armed attack against a state. Yet, the limitations of necessity, propor- 
tionality and imminency play to the community's countervailing aversion to 
the use of violence by states. Thus, there is a balancing between the state's 
right to exist unharmed and the international community's need to minimize 
the use of force, which is presumptively destabilizing. 

The most responsive balance between these two interests lies in permitting 
a use of defensive force in advance of an attack if "the potential victim 
must immediately act to defend itself in a meaningful way and if the poten- 
tial aggressor has irrevocably committed itself to attack." 75 This standard 
combines an exhaustion of remedies component with a requirement for a rea- 
sonable expectation of future attacks — an expectation that is more than 
merely speculative. 



73. Yoram Dinstein has rejected the terminology "anticipatory" in favor of "interceptive" on the 
basis that the former term suggests that preventive actions in the face of a "foreseeable" armed 
attack are legitimate. For Professor Dinstein, the question is whether or not the "other side has 
committed itself to an armed attack in an ostensibly irrevocable way." As he explains, "[t]he 
crucial question is who embarks upon an irreversible course of action, thereby crossing the 
Rubicon. This, rather than the actual opening of fire, is what casts the die and forms what may be 
categorized as an incipient armed attack. It would be absurd to require that the defending state 
should sustain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate 
conception of self-defence." YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 172 
(3rd ed. 2001). 

74. See, e.g., Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 
1634-35 (1984). 

75. Schmitt, supra note 61, at 932. 

31 



Counter-Terrorism and the Use of Force in International Law 

However, what if an attack is "complete" at the time of the proposed re- 
sponse in self-defense? To some extent, this question bears on the necessity 
requirement; the termination of the initial action may allow for other than 
forceful resolution of the situation, thereby rendering a use of force in self- 
defense unnecessary. But the query also touches upon the imminency require- 
ment. Must defense against a future attack be measured by the same standard 
of imminency as defense against an initial one? 

The answer is "yes," but the mere fact that an entity has attacked once 
makes it easier to conclude that it will do so again. After all, the "potential" at- 
tacker's mens rea has now been tangibly demonstrated. Much more to the 
point, it may also be reasonable to conclude that the first attack was part of an 
overall campaign that in itself constitutes a single extended armed attack. By 
this understanding, an after-the-fact reaction to an initial attack constitutes a 
response to an on-going armed attack in which there is but a tactical pause. 
The approach reflects the reality of combat, in which pauses are the norm, not 
the exception. They may be necessary for logistical purposes, as a result of 
weather, due to enemy responses, pending acquisition of further intelligence, 
to leverage surprise, etc. The question is whether the attack that has occurred 
is part and parcel of a related series of acts that will continue to unfold. 

Treating a series of actions as a unitary whole makes particular sense in the 
context of terrorism. Terrorist campaigns generally consist o{ a series of ac- 
tions that occur periodically over extended periods of time. Moreover, given 
their nature, they are very difficult to defend against while underway — the 
potential target is usually only revealed by the attack itself, all of society repre- 
sents a potential target thus rendering effective on-the-spot defense problem- 
atic, the actual violence may occur after the terrorists have left the scene (as 
in a bombing), the terrorists may be willing to die in the attack, and the iden- 
tity and location of the terrorists may not be uncovered until after the com- 
pletion of a particular action. In fact, in the majority of cases it is only after 
the attack that the victim state can mount its response. Therefore, unless one 
is willing to deny victim states a consequential right of self-defense against 
terrorists, it is reasonable to interpret self-defense as permitting the use of 
force against terrorists who intend, and have the capability to, conduct fur- 
ther attacks against the victim. By this interpretation, it is not the imminency 
of an isolated action that is relevant, but rather the relationship between a se- 
ries of attacks. Once the first of the related attacks has been launched, the 
question becomes whether the victim state has sufficient reliable evidence to 
conclude that further attacks are likely, not whether those further attacks are 
themselves imminent. 



32 



Michael Schmitt 



Self-Defense Against al Qaeda 

"Armed attacks" by terrorists. That the attacks of 9/11 were of sufficient "scale 
and effects" to amount to an armed attack is tragically self-evident. However, 
the self-defense operations launched against the al Qaeda terrorist network in 
Afghanistan raise a number of other interesting issues. The first is whether an 
"armed attack" can be carried out by a terrorist group or, stated conversely, 
whether self-defense can be conducted against one. 

Some commentators have suggested that until 9/11, the understanding oi 
self-defense against an armed attack was essentially limited to aggression by 
states. 76 But Article 51 makes no mention of the nature of the entity that must 
mount the attack that in turn permits a forceful response in self-defense. This 
omission is particularly meaningful in light of the fact that Article 2(4)'s pro- 
hibition on the use of force specifically applies only to actions by Members of 
the United Nations, all of which are states. That one key provision on the use 
of force [2(4)] includes a reference to states, whereas another (51) does not, 
implies that the latter was not meant to be so limited. This distinction makes 
sense in the Charter context. The Charter was meant to govern state behav- 
ior, but in doing so it both limits what states may do and empowers them. 
Thus, in 2(4) it restricts a state's resort to force, but in 51 authorizes it to use 
force in the face of armed attack. It would make no sense to limit the authori- 
zation to attacks by states because at the time the Charter was drafted, that 
was the greater threat. 

Article 39 is similarly devoid of reference to state action when charging the 
Security Council with responsibility for deciding on the measures to take in 
the face of a threat to the peace, breach of the peace or act of aggression. In 
the various resolutions regarding the events of 9/1 1 (and those resulting from 
it), the Council characterized the situation as a threat to international peace 
and security. Moreover, it specifically noted that as a general matter terrorism 
constituted such a threat. While Article 39 does not directly address self- 
defense and armed attacks, both it and Article 51 fall within Chapter VII, 
which is entitled "Action with Respect to Threats to the Peace, Breaches of 
the Peace, and Acts of Aggression." Considering these related points vis-a-vis 



76. See, e.g., Antonio Cassese, Terrorism is also Disrupting Some Crucial Legal Categories of 
International Law, European Journal of International Law Discussion Forum, available at http:// 
www.ejil.org/forum_WTC/ny-cassese.html (Jun. 18, 2002). See also Giorgio Gaja, In What Sense 
Was There an "Armed Attack"?, European Journal of International Law Discussion Forum, 
available at http://www.ejil.org/forum_WTC/ny-gaja.html (Jun. 18, 2002). 



33 



Counter-Terrorism and the Use of Force in International Law 

Articles 39 and 51, it is reasonable to conclude that the entire chapter deals 
with actions that threaten international peace and security, whatever the 
source. 

Moreover, recall that Security Council Resolutions 1368 and 1373, which 
both cited the inherent right of self-defense, were issued before the counter- 
terrorist campaign began and at a time when suspicion was focused on an in- 
ternational terrorist group as the culprit. In particular, recall that Resolution 
1368 passed the very day after the attack, when no one was discussing the pos- 
sibility that a state may have been behind the actions. This indicates that the 
Council's understanding of self-defense includes defending against armed at- 
tacks by non-state actors. 

State practice in the aftermath of 9/1 1 further supports the applicability of 
self-defense to acts by non-state actors. No voices were raised claiming that ei- 
ther the customary right of self-defense or Article 5 1 was limited to the con- 
text of state actions. On the contrary, there were very visible illustrations, 
such as NATO's invocation of Article V for the first time in its existence, of 
the fact that most states viewed 9/1 1 as an armed attack meriting actions in 
self-defense; in no case was there any suggestion that the right was dependent 
on identifying a state as the attacker. Lest there be any question on this point, 
once the self-defense actions commenced against both a state and a non-state 
actor on October 7th, the dearth of controversy over using self-defense 
against non-state actors persisted. 77 In fact, post-October 7th Security Coun- 
cil resolutions went so far as to urge member states to "root out terrorism, in 
keeping with the Charter of the United Nations." 78 

Necessity and the impact of law enforcement alternatives. It is interesting to 
note that support for using force was widely evident despite the fact that a log- 
ical alternative to self-defense existed — criminal law enforcement. 79 After all, 
the September 1 1th terrorist acts constituted a variety of criminal offences un- 
der the laws of a number of jurisdictions. Because it allows for universal 



77. Ireland's Ambassador to the United Nations, who was acting as President oi the Security 
Council, noted the unanimous support of the Council following the briefing on the United 
States' and United Kingdom's operations in self-defense. Christopher S. Wren, U.S. Advises U.N. 
Council More Strikes Could Come, N.Y. TIMES, Oct. 9, 2001, at B5. 

78. S. C. Res. 1378, U.N. SCOR, 57th Sess., U.N. Doc. S/1378/(2002); S. C. Res. 1386, U.N. 
SCOR, 56th Sess., U.N. Doc. S/1386/(2001); S. C. Res. 1390, U.N. SCOR, 57th Sess., U.N. 
Doc. S/1390/(2002). Specific reference was made to Osama bin Laden and the al Qaeda network 
in the January resolution. 

79. For a pre 9/11 discussion of the alternatives, and the appropriateness of each, see Walter 
Gary Sharp, The Use of Armed Force Against Terrorism: American Hegemony or Impotence?, 1 CHI. 
J. INT'LL. 37(2000). 



34 



Michael Schmitt 



jurisdiction, of particular significance is the offense of crimes against human- 
ity. 80 Further, relevant international law instruments that bear on the incident 
(or analogous terrorist incidents) include, inter alia, the Hague Convention 
for the Suppression of Unlawful Seizure of Aircraft, the Tokyo Convention on 
Offences and Certain Other Acts Committed on Board Aircraft, the Mon- 
treal Convention for the Suppression of Unlawful Acts against the Safety of 
Civil Aviation, and the International Convention for the Suppression of Ter- 
rorist Bombings. 81 Although these treaties do not directly criminalize the ac- 
tions, they often require criminalization at the domestic level and/or set forth 
mutual law enforcement cooperation and extradition procedures. 82 Under US 
federal law, the acts violated certain sections of the Antiterrorism Act of 
1990 83 and the US statutes implementing the Montreal Convention. 84 Of 
course, specific elements of the attacks violated the criminal law of the US 
states (and the District of Columbia) where they occurred, such as the prohi- 
bitions on murder and the various forms of accomplice participation. 



80. A crime against humanity involves the commission of certain acts, including murder and 
"other inhumane acts . . . causing great suffering, or serious injury to body or to mental or physical 
health" when committed as part of a widespread or systematic attack directed against any civilian 
population." Rome Statute for the International Criminal Court, art. 7.1, reprinted in 37 I.L.M. 
999 (1998), M. CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL COURT: A 
DOCUMENTARY HISTORY 39 (1999), available at http://www.un.org/law/icc/statute/ 
romefra.htm G un - 18, 2002). Widespread consensus exists that the attacks of 9/11 constituted 
crimes against humanity. For an analysis of its applicability to the 9/1 1 attacks, see Cassese, supra 
note 76. 

81 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 
1, 22 U.S.T. 1641, 10 I.L.M. 133 (1971); Tokyo Convention on Offences and Certain Other 
Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219; 
Montreal Convention on the Suppression of Unlawful Acts Against The Safety of Civil 
Aviation, Sept. 23, 1971, 24 U.S.T. § 565, T.I.A.S. No. 7570; Convention for the Suppression 
of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 1, 22 U.S.T. 1641, 860 U.N.T.S. 105, 107. 
On the applicability, or difficulties thereof, of the treaties to the 9/11 attacks, see Arnold N. 
Pronto, Comment, ASIL INSIGHTS, Sep. 2001, available at http://www.asil.org/insights/ 
insigh77.htm (Jun. 18, 2002). 

82. Professor M. Cherif Bassiouni has convincingly argued that the international law governing 
this topic is not comprehensive. "lG]overnments have avoided developing an international legal 
regime to prevent, control, and suppress terrorism, preferring instead the hodgepodge of thirteen 
treaties that currently address its particular manifestations." M. Cherif Bassiouni, Legal Control of 
International Terrorism: A Policy-Oriented Assessment, 43 HARV. INT'L L. J. 83 (2002). 

83. Antiterrorism Act of 1990, 18 U.S.C. §§ 2331 et seq. (2000). 

84. 18 U.S.C. § 32 (2000). See Jordan J. Paust, Addendum: Prosecution of Mr. bin Laden et al. for 
Violations of International Law and Civil Lawsuits by Various Victims, ASIL INSIGHTS, Sep. 21, 
2001, available at http://www.asil.org/insights/insigh77.htm (Jun. 18, 2002). Professor Paust also 
discusses the possibility of civil suits against the perpetrators. 

35 



Counter-Terrorism and the Use of Force in International Law 

It is apparent, therefore, that the international community does not view 
the applicability of a criminal law enforcement regime as precluding a re- 
sponse in self-defense to an armed attack by terrorists. That said, the prospect 
of law enforcement bears on the issue of whether particular acts of self-defense 
are necessary. Recall that necessity requires an absence of reasonable alterna- 
tives to the defensive use of force. In this context, then, the state may only act 
against the terrorists if classic law enforcement reasonably appears unlikely to 
net those expected to conduct further attacks before they do so. One must be 
careful here. There is no requirement for an expectation that law enforcement 
will fail; rather, the requirement is that success not be expected to prove 
timely enough to head off a continuation of the terrorist campaign. Of course, 
if no further attacks are anticipated, the necessity principle would preclude re- 
sort to armed force at all, since self-defense contains no retributive element. 

In this case, the necessity of resort to force was obvious despite the nearly 
global law enforcement effort to identify and apprehend members of the 
al Qaeda network and prevent further attacks. Recall that al Qaeda had been 
implicated in numerous prior acts of terrorism, most notably the 1998 East Af- 
rican embassy bombings, and was at the time of the 9/11 attacks already the 
target of a massive international law enforcement effort. Nevertheless, law en- 
forcement failed to prevent the tragic events of September 11th. That is 
hardly surprising. Al Qaeda is a shadowy, loose-knit terrorist organization in 
which cells operate with substantial autonomy from scores of countries. The 
complexity of coordinating law enforcement efforts in the face of widely diver- 
gent capabilities, domestic laws and national attitudes was daunting. Further, 
al Qaeda was headquartered in Afghanistan, then ruled by a government 
seemingly oblivious to international pressure to deny al Qaeda its main base of 
operations. Simply put, there was no guarantee that even a law enforcement 
effort that was proving successful against much of the organization could ef- 
fectively eradicate the threat of another major attack. At the same time, ag- 
gressively attacking the senior leadership and denying it a base of operations 
promised great returns in alleviating the threat, far greater than would likely 
be realized by law enforcement in a comparable period. And it must be re- 
membered that the clock was ticking. As the United States and its coalition 
partners planned their response, warnings of imminent attacks flowed through 
intelligence channels with great frequency. 

Proportionality. The second core requirement of self-defense, that of propor- 
tionality, also limits when a state may resort to self-defense in responding to a 
terrorist act. Whereas necessity asks whether the use of force is appropriate, 
proportionality asks how much may be applied. 

36 



Michael Schmitt 



Like necessity, proportionality is affected by the prospect of law enforce- 
ment activities. Even if armed force is necessary, the extent of that force may 
be diminished by on-going or future law enforcement activities. In counter- 
terrorist operations, law enforcement and military force can act synergisti- 
cally, thereby reducing the level of force that needs to be applied (and affect- 
ing its nature). For instance, law enforcement disruption of a number of 
terrorist cells within an organization may lessen the extent (number, location, 
etc.) of military strikes that need to be conducted. That is exactly what hap- 
pened in the aftermath of 9/1 1. Thousands of potential terrorists were arrested 
or detained worldwide, thereby dramatically reducing the need to resort to 
force in countering future terrorism. 

Were the strikes against al Qaeda proportionate, particularly in light of the 
extensive parallel law enforcement campaign? Clearly, they were. Al Qaeda 
forces in Afghanistan numbered in the thousands and were widely dispersed. 
Moreover, to be disproportionate, the use of force would have had to be exces- 
sive in relation to the degree of force actually needed to prevent continuation 
of al Qaeda's terrorist campaign. As of June 2002, al Qaeda forces remain in 
the field, periodically engaging coalition forces, albeit in small unit fashion. 
Further, intelligence sources have reported that mid-level al Qaeda operatives 
have pulled the organization back together again and are forging alliances 
with other terrorist groups. The organization reportedly "is as capable of plan- 
ning and carrying out potent attacks on U.S. targets as the more centralized 
network once led by Osama bin Laden." 85 So, despite the success of interna- 
tional law enforcement and military efforts, al Qaeda remains a very viable 
threat, continuing to operate from bases in any number of countries. The 
group may have been gravely wounded, but it would be highly premature to 
contend the wounds are fatal. 

That said, the increasing effectiveness of international counter-terrorist 
law enforcement efforts and the fact that the fight may now need to be taken 
outside the borders oi Afghanistan do raise questions regarding the propor- 
tionality of future military efforts. Using an extreme example for the sake of il- 
lustration, one might question the proportionality of a large scale military 
operation mounted into an uncooperative state which refuses to hand over a 
small number of low-level operatives. The action might be necessary in the 
sense that diplomacy and law enforcement offered slim prospects of taking 



85. David Johnson et al., Qaeda Lieutenants Form Terror Alliance, INT'L HERALD TRIBUNE, June 
17, 2002, at 1. 



37 



Counter-Terrorism and the Use of Force in International Law 

them out of the terrorist network, but the extent of the use of force would ap- 
pear to be more than reasonably required to accomplish the objective. 

Imminency. As noted above, it would make little sense to evaluate each ter- 
rorist attack individually in every case. Doing so would deny the reality that 
most conflict, even conventional conflict between states, is a series of engage- 
ments, with contact repeatedly made and broken. This being so, in many situ- 
ations it may be reasonable to conclude that an attack was merely the opening 
shot in an overall campaign that in itself constitutes a single on-going armed 
attack. 

That is exactly the case with regard to the 9/1 1 attacks. Al Qaeda had been 
involved in terrorism against US assets for a decade, terrorism that resulted in 
extensive property damage, loss of life and injury. Although there was often a 
hiatus between attacks, they did occur with some regularity. In light of this 
record, it is absurd to suggest al Qaeda would terminate the campaign after 
achieving its most significant victory; logic would impel just the opposite con- 
clusion. Additionally, not only did al Qaeda's own statements style continued 
attacks as a religious duty, one of the organization's central objectives, with- 
drawal of US and coalition forces from Islamic territory, remained unfulfilled. 
Since 9/11, multiple al Qaeda related plots have been uncovered or foiled, 
most recently that involving use of a "dirty (radiological) bomb" against a US 
population center. 86 Thus, it is not necessary to speculate on whether further 
attacks were likely and imminent on October 7th; they clearly were (and re- 
main so). 

Cross-border counter -terrorist operations. While it is appropriate to extend 
self-defense to acts committed by non state actors, and though the availability 
of criminal law enforcement responses does not preclude doing so, since non- 
state actors possess no territory as a matter of international law (they may in 
fact), can the victim state enter another state's territory in order to conduct 
self-defense operations? The answer requires balancing the rights and duties 
of the respective states involved. The state in which the terrorists are located 
has a right of territorial integrity. This well-established customary interna- 
tional law right creates corresponding duties in other states. For instance, Ar- 
ticle 2(4) of the UN Charter prohibits the threat or use of force against the 
"territorial integrity ... of any State." 87 Commentators generally agree that 



86. On the continuing operations of the organization, see David Johnston et al., Qaeda's New 
Links Increase Threats From Far-Flung Sites, N.Y. TIMES, June 16, 2002, at 1. 

87. U.N. CHARTER, 2(4). 



38 



Michael Schmitt 



the prohibition extends to any non-consensual penetration of a state's terri- 
tory, not simply those intended to seize parts of that territory. 88 Non-compli- 
ance may amount to an act of aggression. 89 

However, the state victimized by terrorism has a right to self-defense. No 
one would dispute that a state forfeits a degree of its right to territorial integ- 
rity when it commits acts that vest the right to self-defense in another state, at 
least to the extent necessary for self-defense to be meaningful. Thus, an armed 
attack by state A may justify the crossing of state B's military forces into state 
A to put an end to the attack. 

Lest the right to self-defense be rendered empty in the face of terrorism, in 
certain circumstances the principle of territorial integrity must yield to that of 
self-defense against terrorists. Putting aside the issue of when the acts of ter- 
rorists may be ascribed to a state, thereby justifying self-defense directly 
against that state, the balancing of self-defense and territorial integrity de- 
pends on the extent to which the state in which the terrorists are located has 
complied with its own responsibilities vis-a-vis the terrorists. 

As John Basset Moore noted in the Lotus case, "it is well settled that a State 
is bound to use due diligence to prevent the commission within its dominions 
of criminal acts against another nation or its people. . . ." 90 This principle has 
been reflected in numerous pronouncements on terrorism. For instance, the 
1970 Declaration on Friendly Relations urges each state to "refrain 
from . . . acquiescing in organized activities within its territory directed toward 



88. Randelzhoffer, Article 2(4), supra note 42, at 117. See also Declaration on Principles of 
International Law Concerning Friendly Relations and Cooperation Among States in 
Accordance with the Charter of the United Nations: 

Every State has a duty to refrain in its 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. Such a threat or 

use of force constitutes a violation of international law and the Charter of the United 

Nations and shall never be employed as a means of settling international issues. 

G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., anx, U.N. Doc. A/Res/2625 (1970), reprinted in 

65 AM. J. INT'L L. 243 (1971) and in KEY RESOLUTIONS OF THE UNITED NATIONS GENERAL 

ASSEMBLY, 1946-1996 (Dietrich Rauschning, Katja Wiesbrock & Martin Lailach eds., 1997), at 

3 [hereinafter Declaration on Friendly Relations]. The resolution was adopted by acclamation. 

89. Aggression is the use of "armed force by a State against the . . . territorial integrity ... of 
another State." Definition of Aggression, anx, art. 1, G.A. Res. 3314 (XXIX), U.N. GAOR, 29th 
Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1975), 13 INT'L LEG. MAT'L 710 (1974). 
Additionally, pursuant to Article 3, aggression includes "[t]he invasion or attack by the armed 
forces of a State of the territory of another State. . . ." 

90. S.S. Lotus (Fr. v. Turk.) 1927 P.C.I.J. (ser. A) No. 10, at 4, 88 (Moore, J., dissenting). 



39 



Counter -Terrorism and the Use of Force in International Law 

the commission of [terrorist acts in another state]," 91 a proscription echoed in 
the 1994 Declaration on Measures to Eliminate Terrorism. 92 In the context of 
the instant case, recall the 1999, 2000 and 2001 Security Council resolutions 
condemning the Taliban's willingness to allow territory they controlled to be 
used by al Qaeda. 

Should a state be unable or unwilling to comply with this obligation, the 
victim state is then permitted to enter the territory of the state where the ter- 
rorists are located for the limited purpose of conducting self-defense opera- 
tions against them. This is only logical, since the unwillingness or inability of 
state A to comply with the requirements of international law cannot possibly 
be deemed to deprive state B of its authority to defend itself against an armed 
attack, the seminal right of the state-centric international normative archi- 
tecture. Of course, all requirements of self-defense must be met. There must 
be an on-going armed attack (or armed campaign), no reasonable alternative 
to the penetration of state A's territory for the purpose of using force against 
the terrorists can exist, and the force used has to be limited to that necessary 
to accomplish the defensive objectives. Once those objectives are attained, 
state B must immediately withdraw because at that point there is no right of 
self-defense to justify its "violation" of state A's territorial integrity. Further if, 
during the self-defense operations, state A takes actions that comply with 
its obligation to deny use of its territory to terrorists, state B's right of self- 
defense will diminish accordingly. Finally, state A may not interfere with the 
self-defense operations, as state B is simply exercising a right under interna- 
tional law. Since state B's use of force is lawful, any other state's use of force 
against it would constitute an "armed attack." 93 

In fact, there have been numerous instances of states exercising this self- 
help right of self-defense. In the aftermath of the coalition operations against 



91. Declaration on Friendly Relations, supra note 88. 

92. Declaration on Measures to Eliminate International Terrorism, G.A. Res. 49/60, U.N. 
GAOR 6th Comm., 49th Sess., 84th plen. mtg., U.N. Doc. A/49/743 (1994); Declaration to 
Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, G.A. Res. 
51/210, U.N. GAOR 6th Comm., 51st Sess., 88th plen. mtg., U.N. Doc. A/51/631 (1996). 

93. Professor Robert Turner perceptively offered an analysis along these lines in the aftermath of 
the September 11th attacks. Robert F. Turner, International Law And The Use Of Force In 
Response To The World Trade Center And Pentagon Attacks, JURIST, available at http:// 
jurist.law.pitt.edu/forum/forumnew34.htm (Jun. 18, 2002). On the subject of self-help, see also 
Guy B. Roberts, Self-Help in Combating state-Sponsored Terrorism: Self Defense and Peacetime 
Reprisals, 19 CASE W. RES. J. INT'L L. 243 (1987); Franz W. Paasche, The Use of Force in 
Combating Terrorism, 25 COLUM. J. TRANSNATL L. 377 (1987); Oscar Schachter, The Extra- 
Territorial Use of Force against Terrorist Bases, 11 HOUS. J. INT'L L. 309 (1989). 

40 



Michael Schmitt 



al Qaeda, the most often cited has been US General John Pershing's unsuc- 
cessful 1916 foray into Mexico after Pancho Villa and his bandits killed 18 
Americans in New Mexico. At the time, Mexico was in the midst of a revolu- 
tion and, thus, incapable of effectively controlling Villa. Note that the Mexi- 
can government asked the US forces to withdraw three months after they 
entered Mexican territory, a demand refused on the basis of Mexico's inability 
to police Villa. Similarly, during the Vietnam conflict, the United States con- 
ducted aerial and ground attacks against enemy forces that had sought refuge 
in Cambodia. Although criticized widely, such criticism was arguably more the 
product of general anti-war fervor, than concern over the legality of the opera- 
tions. 94 In another example, Israel conducted airstrikes against PLO facilities in 
Tunisia during 1985 on the grounds that the PLO was using Tunisia as a base of 
operations for terrorist attacks on Israel — with the acquiescence of the Tunisian 
government. 95 The Security Council, with the United States abstaining, con- 
demned the bombings as an "act oi armed aggression perpetrated by Israel 
against Tunisian territory in flagrant violation of the Charter of the United Na- 
tions, international law and norms of conduct" in a 14-0 vote. 96 Whether con- 
cern centered on the alleged violation of international law or on the fact that 
the operation posed a "threat to the peace and security in the Mediterranean 
region" 97 (and on general hostility to Israel) remains an open question. 

Political unacceptability instead of normative concern also drove most in- 
ternational criticism of South Africa's operations against African National 
Congress groups based in Angola during the 1970s. 98 Similarly, the interna- 
tional community was unsupportive as Turkey mounted regular incursions 
into Northern Iraq against Kurdish terrorists throughout the 1990s. As in the 
South African case, opposition arguably was driven by factors other than the 
legal acceptability of crossing into Iraq. At the time there was de minimus 
concern over violation of Iraq's territorial integrity, as Iraqi forces and 



94. On the Cambodian incursions, see Timothy Guiden, Defending Americas Cambodian 
Incursion, 1 1 ARIZ. J. INT'L &COMP. L. 215 (1994) ; John Fried, United States Military Intervention 
in Cambodia in the Light of International Law, reprinted in 3 THE VIETNAM WAR AND 
INTERNATIONAL LAW 100 (Richard Falk, ed. 1972); International Law and Military Operations 
Against Insurgents in Neutral Territories, 68 COLUM. L. REV. 1127 (1968). 

95. See statement of [then] Israeli Ambassador to the UN, Benjamin Netanyahu, U.N. Doc. S/ 
PV.2615, at 86-7 (Oct. 4, 1985). 

96. S. C. Res. 573, U.N. SCOR, 40th Sess., U.N. Doc S/573/(1985). 

97. Id. 

98. See W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT'L L. 3, 
53 (1999) ; G.A. Res. 45/150, U.N. GAOR, 3d Comm., 45th Sess., 69th plen. mtg., U.N. Doc. A/ 
Res/45/150 (1990). 

41 



Counter-Terrorism and the Use of Force in International Law 

government officials were already excluded from the area due to their suppres- 
sion of the Kurds. Rather, criticism most likely derived from irritation over in- 
terference with the relief and no-fly operations in northern Iraq" and concern 
over a track record of human rights abuses against the Kurds during Turkish 
military operations conducted in Southeastern Turkey. 100 

Most recently, the United States launched raids on terrorist facilities in Af- 
ghanistan and Sudan following the 1998 bombings of the US embassies in 
Nairobi and Dar-es-Salaam. 101 Although the cruise missile strike against the al 
Shifa pharmaceutical plant in Sudan (it was allegedly involved in chemical 
weapons production) was criticized, most censure surrounded the alleged in- 
validity of the claim of a connection between the plant and international ter- 
rorism, not the violation of Sudanese territory; 102 the attacks against al Qaeda 
training bases in Afghanistan evoked little condemnation. Nor did the 1999 
pursuit of Hutu guerrillas in the Democratic Republic of Congo by Ugandan 
forces following a massacre of foreign tourists, 103 although the international- 
ization of the conflict did draw international concern and resulted in the dis- 
patch of a peacekeeping force by the Security Council. 104 

Of greatest normative relevance on the issue of cross-border counter- 
terrorist operations is the famous Caroline incident cited above in regard to 
the core requirements of self-defense. 105 Recall the facts. In 1837 a rebellion 
was underway in Canada against the British. Some of the rebels were based in 
the United States. The British attempted to negotiate with the American 
side, in particular the Governor of New York, to no avail. At that point they 



99. First Operation PROVIDE COMFORT, later NORTHERN WATCH. The author was staff judge 
advocate of the operations during this period. 

100. See, e.g., Department of State, 1999 Country Reports on Human Rights Practices: Turkey, 
available at http://www.state.gov/www/global/human_rights/1999_hrp_report/turkey.html Qun. 
18, 2002). 

101. Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 YALE J. INT'L L 
559 (1999); Leah M. Campbell, Defending Against Terrorism: A Legal Analysis of the Decision to 
Strike Sudan and Afghanistan, 74 TUL. L. REV. 1067 (2000). 

102. On the confusion surrounding whether the facility was involved in terrorist activities, see 
Vernon Loeb, U.S. Wasn't Sure Plant Had Nerve Gas Role; Before Sudan Strike, CIA Urged More 
Tests, WASH. POST, Aug. 21, 1999, at Al. 

103. Reisman, supra note 98, at 54. 

104. In S. C. Res. 1291, U.N. SCOR, 55th Sess., U.N. Doc. S/l 29 1/(2000), the Council 
authorized the United Nations Organization Mission in the Democratic Republic of the Congo. 
For details and background, see http://www.un.org/Oepts/dpko/monuc/monuc_body.htm (Jun. 
18, 2002). 

105. On the Caroline incident in the context of the issue at hand, see Reisman, supra note 98, at 
42^7. On the facts, see R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L 82 (1938). 



42 



Michael Schmitt 



mounted a small raid (80 men) into the United States where they seized the 
Caroline, a vessel used by the rebels and their supporters. The ship was set 
ablaze and sent over Niagara Falls. 

The incident generated a fascinating correspondence over the next several 
years between the British Foreign Office and the United States Department of 
State. The issue in dispute, though, was not whether the British could legiti- 
mately cross into the United States for the limited purpose of attacking the re- 
bels. Instead, controversy focused on the circumstances permitting them to do 
so and how. As Lord Ashburton, the Foreign Minister, wrote to his US coun- 
terpart, Daniel Webster: 

I might safely put it to any candid man, acquainted with the existing state of 
things, to say whether the military commander in Canada had the remotest 
reason, on the 29th day of December, to expect to be relieved from this state of 
suffering by the protective intervention of any American authority. How long 
could a Government, having the paramount duty of protecting its own people, 
be reasonably expected to wait for what they had then no reason to expect? 106 

Ashburton's premise that crossing the border was proper in the absence of ef- 
fective action by the authorities where the rebels were based went unchal- 
lenged, with Webster simply asserting that the action had been excessive in the 
particular circumstances of the case. 107 



106. Letter from Lord Ashburton to Daniel Webster Ouly 28, 1842), 30 BRITISH AND FOREIGN 
STATE PAPERS 195. 

107. A necessity of self-defence, instant, overwhelming, leaving no choice of means, and no 
moment for deliberation. It will be for it to show, also, that the local authorities of 
Canada, even supposing the necessity of the moment authorized them to enter the 
territories of The United States at all, did nothing unreasonable or excessive; since the 
act, justified by the necessity of self-defence, must be limited by that necessity, and kept 
clearly within it. It must be shown that admonition or remonstrance to the persons on 
board the Caroline was impracticable, or would have been unavailing; it must be shown 
that day-light could not be waited for; that there could be no attempt at discrimination 
between the innocent and the guilty; that it would not have been enough to seize and 
detain the vessel; but that there was a necessity, present and inevitable, for attacking 
her in the darkness of the night, while moored to the shore, and while unarmed men 
were asleep on board, killing some and wounding others, and then drawing her into the 
current, above the cataract, setting her on fire, and, careless to know whether there 
might not be in her the innocent with the guilty, or the living with the dead, 
committing her to a fate which fills the imagination with horror. A necessity for all this, 
the Government of The United States cannot believe to have existed. 

Jennings, supra note 105, at 89 (quoting Daniel Webster). 



43 



Counter-Terrorism and the Use of Force in International Law 

Therefore, quite aside from the trinity of self-defense criteria, Caroline sup- 
ports the principle that a state suffering attack from non-state actors in another 
may, after seeking assistance from that state (assuming the requested state is 
capable of doing so), enter its territory for the limited purpose of preventing fur- 
ther attacks, although its actions must be necessary and proportional. State 
practice seems guardedly consistent. Objections to such limited cases as have 
occurred are usually attributable to political, vice normative, motivations. Of 
course, in fairness, the same could be said regarding the relative absence of criti- 
cism when penetrating the territory of ostracized states, such as Afghanistan, in 
operations against organizations which enjoy no consequential support from 
members of the international community, such as al Qaeda. The better interpre- 
tation, however, is that, as a general matter, state practice, beginning with the 
Caroline case, supports the approach posited. 

Do US and coalition operations in Afghanistan comport with this stan- 
dard? Recall the Security Council's pre and post 9/11 demands that the 
Taliban cease allowing territory they controlled to be used as a terrorist base 
and that they cooperate in bringing Osama bin Laden and al Qaeda to justice. 
Recall also the US demands that the Taliban unconditionally surrender bin 
Laden and other al Qaeda leaders and grant the United States sufficient ac- 
cess to terrorist bases to ensure their inoperability. In reply, the Taliban re- 
gime first stated it wished to see the evidence linking bin Laden to the 9/1 1 
attacks. 108 As the likelihood of US strikes drew closer, the Taliban indicated 
that they had Osama bin Laden and might be willing to negotiate, possibly 
about turning him over to a third country. The United States again stated that 
only an unconditional surrender of bin Laden and other al Qaeda leaders 
would suffice. 109 After the coalition attacks commenced, the Taliban renewed 
the offer. However, the US administration maintained its no-negotiation 
stance. 110 

Were the US demands, particularly in that they were unconditional, suffi- 
cient? It might be argued that no demand at all was necessary, for on multiple 
occasions the Security Council had insisted that the Taliban comply with the 



108. Murphy, Contemporary Practice 2002, supra note 39, at 244. The situation caused divisions 
within the Taliban and Afghan religious leadership. Clearly, unanimity did not exist as to how to 
respond to the US demands. John F. Burns, Afghans Coaxing bin Laden, But VS. Rejects Clerics' 
Bid, N.Y. TIMES, Sep. 21, 2001, at Al. 

109. Murphy, Contemporary Practice 2002, supra note 39, at 244. 

1 10. Elisabeth Bumiller, President Rejects Offer By Taliban For Negotiations, N.Y. TIMES, Oct. 15, 
2001, at Al. 

44 



Michael Schmitt 



measures sought by the United States. Consider, for instance, the following 
unambiguous language in Security Council Resolution 1333 (2000): 

[The Security Council] Demands . . . that the Taliban comply without further 
delay with the demand of the Security Council in paragraph 2 of resolution 1267 
(1999) that requires the Taliban to turn over Usama bin Laden to appropriate 
authorities in a country where he has been indicted, or to appropriate 
authorities in a country where he will be returned to such a country, or to 
appropriate authorities in a country where he will be arrested and effectively 
brought to justice; 

Demands further that the Taliban should act swiftly to close up all camps where 
terrorists are trained within the territory under its control, and calls for the 
confirmation of such closures by the United Nations, inter alia, through 
information made available to the United Nations by Member States in 
accordance with paragraph 19 below and through such other means as are 
necessary to assure compliance with this resolution. . . . m 

Extended non-compliance with the Security Council demands arguably 
provided a good faith basis for determining that further exhortations would 
prove fruitless. However, the Council's insistence was made in the context of 
cooperative law enforcement (albeit in the face of a threat to international 
peace and security) rather than self-defense. Therefore, the most defensible 
position is that while non-compliance strengthened the political case for ac- 
tion by the Security Council under Chapter VII, a separate demand was re- 
quired for action by a state pursuant to the right to self-defense. 

As noted, the United States made one. Unconditionally was certainly rea- 
sonable in the circumstances. The United States had just suffered a horren- 
dous terrorist attack, with every reason to believe more were imminent. The 
Taliban request for evidence oi al Qaeda's complicity might have made sense 
but for the previous Security Council resolutions, which clearly rendered the 
request superfluous. Moreover, the United States government, which had 
been conducting talks with the Taliban since 1996 over the presence oi 
al Qaeda in Afghanistan, had previously provided evidence of al Qaeda respon- 
sibility for the 1998 bombings of the two US embassies in East Africa — at the re- 
quest of Taliban officials. 112 The provision of that evidence, and the continuing 
talks, had no discernible affect on the Taliban's continued harboring of the ter- 
rorist organization. 



111. S. C. Res. 1333, U.N. SCOR, 55th Sess., U.N. Doc. S/1333/(2000). 

112. UK Press Release, supra note 9, at paras. 14-15. 



45 



Counter-Terrorism and the Use of Force in International Law 

Additionally, unless the Taliban regime controlled al Qaeda absolutely, 
which it did not, post 9/1 1 negotiations would merely have extended the win- 
dow of vulnerability for the United States. If the right to self-defense was to be 
meaningful in these circumstances, the United States needed to act as quickly 
as possible. This meant that either the Taliban should have complied with the 
demands promptly or acknowledged they lacked the capability to do so and 
stood aside as the United States entered Afghanistan to engage al Qaeda. 

In other words, the adequacy of a request to the state in which terrorists are 
located, as well as the sufficiency of the response thereto, must be assessed 
contextually. Have there been prior requests? For what. 7 What is the nature of 
relations between the requesting and requested state. 7 Between the terrorist 
group and the state in which it is located 7 What capability does the requested 
state have to counter or control the terrorists 7 What is its track record in do- 
ing so 7 What are the nature and the imminency of the threat by the terrorists 
against the requesting state 7 Under the circumstances, the US decision to at- 
tack al Qaeda on October 7th, despite Taliban quibbling over the US request 
to turn over members of the organization, was reasonable and legally 
defensible. 

There are two other circumstances in which it is unquestionable that one 
state can enter the territory of another to conduct defensive counter- terrorist 
operations. The first is upon invitation, though any such operation would 
have to comply with the relevant provisions of human rights and humanitar- 
ian law, as well as any conditions imposed by the host state. 113 Obviously, that 
did not occur in the case of Afghanistan. More problematic is the situation in 
which the terrorist group acts on behalf of the state such that its attacks can 
be deemed those of the state itself. As in traditional armed attacks by a state 
actor, the sole question regarding the penetration of the attacker's territory is 
whether cross-border operations are necessary, proportional and in response 
to an armed attack. To the extent the state could be attacked in self-defense, 
so too can the terrorist group that actually executed the armed attack. The is- 
sue of Taliban support for al Qaeda is considered in the following section. 

Summarized, the campaign against al Qaeda in Afghanistan is a legitimate 
exercise of the right to individual and collective self-defense. The right ex- 
tends to armed attacks from whatever source, the 9/1 1 attacks met the thresh- 
old requirement of being "armed," crossing into Afghanistan was appropriate 



113. On the conduct of forces in another country, see THE HANDBOOK OF THE LAW OF 
VISITING FORCES (Dieter Fleck ed., 2001). 



46 



Michael Schmitt 



once the Taliban failed to police the territory they controlled, the attacks 
were necessary and proportionate, and they occurred in the face of an immi- 
nent, credible continuation of an al Qaeda campaign that had been underway 
for a period measured in years. 

Operations Against the Taliban 

In his address to a Joint Session of Congress on 20 September, President Bush 
uttered his ominous warning that "[ejither you are with us, or you are with the 
terrorists. From this day forward, any nation that continues to harbor or sup- 
port terrorism will be regarded by the United States as a hostile regime." 114 
When the attacks began, the United States cited the Taliban's decision to "al- 
low the parts of Afghanistan that it controls to be used by [al Qaeda] as a base 
of operation," a policy which the Taliban refused to alter despite repeated en- 
treaties to do so, as justification for their actions. 115 It should be noted that in 
June 2001 the United States had already warned the Taliban regime that it 
would be held responsible for any terrorist acts committed by terrorists that it 
was sheltering. 116 

The United Kingdom has released the most extensive information to date 
regarding the relationship between al Qaeda and the Taliban. 117 Al Qaeda 
provided troops, weapons and financing to the Taliban for its conflict with the 
Northern Alliance. The organization was also reportedly involved in the plan- 
ning and execution oi Taliban operations, assisted in training Taliban forces, 
and had representatives assigned to the Taliban command and control struc- 
ture. Additionally, al Qaeda was a source of "infrastructure assistance and hu- 
manitarian aid." 118 In return, the Taliban granted al Qaeda safe haven and a 
base for its terrorist training camps; essentially, al Qaeda enjoyed free rein to 
do as it pleased in Taliban controlled territory. Further, the two groups coop- 
erated closely in the drug trade, with the Taliban providing security for 
al Qaeda's drug stockpiles. 119 Was this relationship such that conducting 



114. President George W. Bush, Address Before a Joint Session of the Congress, supra note 16, at 
1349. 

115. US Letter, supra note 22. 

116. UK Press Release, supra note 9, para. 16. 

117. See id. generally. See also the update to the UK press release. United Kingdom Press Release, 
10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the United States, Nov. 
14, 2001, available at http://www.pm.gov.uk/news.asp?NewsId = 3025 Gun. 18, 2002). 

118. UK Press Release, supra note 9, para. 12. 

119. Id., para. 13. 

47 



Counter -Terrorism and the Use of Force in International Law 

military operations against the Taliban on October 7th was a legitimate exer- 
cise of the use of force by the United States and United Kingdom? 

State Responsibility. Unfortunately, there has been much confusion sur- 
rounding the relationship between Taliban obligations and the attacks 
mounted against them on October 7th. In the discussion of self-defense 
against al Qaeda, it was noted that the Taliban had a duty to keep their terri- 
tory from being used as a base of terrorist operations. Failure to comply with 
that duty in part justified penetrating Afghan territory when attacking al 
Qaeda, albeit only to conduct operations against al Qaeda. If the Taliban were 
incapable of stopping al Qaeda, then they would incur no responsibility for 
their failure to address the situation. 

On the other hand, if capable, but unwilling, the Taliban would be responsi- 
ble for their failure under the international law of state responsibility. 120 The 
duty to desist from assisting terrorists in any way is manifest. In 1996 the Gen- 
eral Assembly articulated this duty in the Declaration on the Strengthening of 
International Security. Specifically, it stated that: 

States, guided by the purposes and principles of the Charter o( the United 
Nations and other relevant rules of international law, must refrain from 
organizing, instigating, assisting or participating in terrorist acts in territories of 
other States, or from acquiescing in or encouraging activities within their 
territories directed towards the commission of such acts. 121 

In doing so, it echoed earlier exhortations in the 1970 Friendly Relations 
Declaration 122 and its 1965 progenitor, Resolution 2131 (1965). 123 Similar 



120. On the issue of state responsibility, see Gregory Townsend, State Responsibility for Acts ofDe 
Facto Agents, 14 ARIZ. J. INT'L & COMP. L. 635 (1997); Ian Brownlie, International Law and the 
Activities of Bands, 7 INT'L & COMP. L. QTRLY 712 (1958). 

121. Declaration on Measures to Eliminate International Terrorism, G.A. Res. 49/60, U.N. 
GAOR, 6th Comm., 49th Sess., 84th plen. mtg., U.N. Doc. A/49/743 (1994); Declaration to 
Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, G.A. Res. 
51/210, U.N. GAOR, 6th Comm., 51st Sess., 88th plen. mtg., U.N. Doc. A/51/631 (1996). 

122. "Every state has the duty to refrain from organizing, instigating, assisting or participating in 
acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its 
territory directed towards the commission of such acts, when the acts referred to in the present 
paragraph involve a threat or use of force." Declaration on Friendly Relations, supra note 88, 
prin. 1. 

123. "No state shall organize, assist, foment, finance, incite, or tolerate subversive, terrorist or 
armed activities directed toward the violent overthrow of another regime. . . ." G.A. Resolution 
2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 107, U.N. Doc. A/6221 (1965). 



48 



Michael Schmitt 



prohibitions can be found in Article 2(4) of the International Law Commis- 
sion's 1954 Draft Code of Offenses against the Peace and Security of Man- 
kind. 124 

Case law supports these declarations. Most notably, in the Corfu Channel 
case the International Court of Justice held that "every State has an obliga- 
tion to not knowingly allow its territory to be used in a manner contrary to the 
rights of other States." 125 Corfu Channel involved an incident in which two 
British destroyers struck mines in Albanian waters while transiting the Corfu 
Strait in 1946. Though the evidence was insufficient to demonstrate that the 
Albanians laid the mines, the Court nevertheless held that they had the obli- 
gation to notify shipping of the danger posed by the mines. Albania's failure to 
do so represented an internationally wrongful act entailing the international 
responsibility of Albania. Other case law and arbitral decisions are in ac- 
cord. 126 

Applying the Corfu Channel principle to the case of terrorism, states that 
permit their territory to be used as a base of operations for terrorist acts against 
other countries have committed an international wrong. There is no question 
that Taliban acquiescence in allowing Afghan territory to be used by al Qaeda, 



124. The organization, or the encouragement of the organization, by the authorities of a 
State, of armed bands within its territory or any other territory for incursions into the 
territory of another state, or the toleration of the organization of such bands in its own 
territory, or the toleration of the use by such armed bands of its territory as a base of 
operations or as a point of departure for incursions into the territory of another State, as 
well as direct participation in or support of such incursions. 

Draft Code of Offenses Against the Peace and Security of Mankind, art. 2(4), available at http:// 
www.un.org/law/ilc/texts/offfra.htm G un - 18, 2002). 

125. Corfu Channel Case (Merits), 1949 I.C.J. Rep. 4, 22. 

126. See discussion in JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S 

Articles on State Responsibility: Introduction, Text and Commentaries 77-85 

(2002). Article 2 of the International Law Commission's Articles on State Responsibility 
(adopted by the Commission in 2001) provides that "There is an internationally wrongful act of a 
State when conduct consisting of an act or omission: (a) is attributable to the State under 
international law; and (b) constitutes a breach of an international obligation of the State." 
International Law Commission, Articles on State Responsibility, reprinted in id. at 61. These 
elements have been articulated in a number of tribunals. Among those referenced specifically by 
Professor Crawford are: Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/ 
B, No. 74, p. 10; United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 
3; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Merits, I.C.J. 
Reports 1986, p. 14, 117-118, para. 226; Gabcikovo-Nagymaros Project (Hungary /Slovakia), 
I.C.J. Reports 1997, p. 7, 54, para. 78. 



49 



Counter 'Terrorism and the Use of Force in International Law 

assuming arguendo that their conduct is attributable to the "State" of Afghani- 
stan, 127 created responsibility under international law for that wrongful act. 
Does this responsibility justify the October 7th attacks by the United States 
and the United Kingdom? 

Despite occasionally loose discussion of the subject in the aftermath of 9/ 
11, the existence of state responsibility for an international wrong does not 
justify the use of force in self-help to remedy the wrong. Traditional repara- 
tions for an international wrong come in the form of restitution, compensation 
or satisfaction. 128 It is also permissible to take countermeasures in response to 
an internationally wrongful act. 129 Countermeasures are "measures which 
would otherwise be contrary to the international obligations of the injured 
State vis-a-vis the responsible State if they were not taken by the former in re- 
sponse to an internationally wrongful act by the latter in order to procure ces- 
sation and reparation." 130 Various requirements, such as the existence of an 
on-going wrong, 131 proportionality oi the countermeasure to the injury suf- 
fered, 132 and a call on the state committing the wrong to comply with its 
obligations 133 apply to the taking of countermeasures. 

But it is generally agreed that countermeasures employing armed force are 
prohibited. 134 Article 50 of the Articles on State Responsibility specifically 
provides that "Countermeasures shall not affect . . . the obligation to refrain 
from the threat or use of force as embodied in the Charter of the United Na- 
tions." 135 This provision tracks the holding in Corfu Channel. There the 



127. The Commentary to the ILC Articles on State Responsibility describes a "state" as "a real 
organized entity, a legal person to act under international law." Crawford, supra note 126, at 82 
(para. 5 of commentary to art. 2). 

128. Articles on State Responsibility, supra note 126, arts. 34-37. Restitution is reestablishing 
"the situation which existed before the wrongful act was committed" (art. 35); compensation is 
covering any financially assessable damage not made good by restitution (art. 36); satisfaction is 
"an acknowledgement of the breach, an expression of regret, a formal apology or another 
appropriate modality" that responds to shortfalls in restitution and compensation when making 
good the injury caused (art. 37). 

129. Id., art. 49.1. 

130. Crawford, supra note 126, at 281. 

131. Articles on State Responsibility, supra note 126, art. 52.3(a). 

132. Id., art. 51. 

133. Id., art. 52.1. 

134. Certain countermeasures employing force are permissible. An example would be sending 
agents into a state to apprehend a terrorist who that state wrongfully refused to extradite. Mary 
Ellen O'Connell, Lawful Responses to Terrorism, JURIST, available at http://jurist.law.pitt.edu/ 
forum/forumnew30.htm (Jun. 18, 2002). 

135. Articles on State Responsibility, supra note 126, art. 50.1(a). 



50 



Michael Schmitt 



International Court of Justice held that Albania's failure to comply with its re- 
sponsibility did not justify the British minesweeping of the Strait, an act that 
therefore constituted a violation of Albanian sovereignty. Thus, breach of the 
obligation not to allow Afghanistan to be used as a base for terrorist activities 
did not, alone, justify use of force against the Taliban. 

An identical analysis would apply in assessing whether the actions of 
al Qaeda in conducting the 9/1 1 (and other) attacks can be attributed to the 
Taliban under the law of state responsibility. The International Law Commis- 
sion's Articles on State Responsibility set forth the standards for imputing an 
armed group's acts to a state for the purpose of assessing state responsibility. 
Two are relevant here. 

Article 8 provides that the "conduct of a person or group shall be consid- 
ered an act of a State under international law if the person or group of persons 
is in fact acting on the instructions of, or under the direction or control of, 
that State in carrying out the conduct." 136 This was the issue in the Nicaragua 
case, where Nicaragua argued that the United States was responsible under 
international law for violations of humanitarian law committed by the 
Contras, the anti-Sandinista rebel group it supported. After finding that the 
United States had provided "subsidies and other support", the Court held 
that: 

United States participation, even if preponderant or decisive in the financing, 
organizing, training, supplying and equipping of the contras, the selection of its 
military or paramilitary targets, and the planning of the whole of its operation, is 
still insufficient in itself, ... for the purpose of attributing to the United States 
the acts committed by the contras in the course of their military or paramilitary 
operations in Nicaragua. All the forms of United States participation 
mentioned above, and even the general control by the respondent state over a 
force with a high degree of dependency on it, would not in themselves mean, 
without further evidence, that the United States directed or enforced the 
perpetration of the acts contrary to human rights and humanitarian law alleged 
by the applicant State. . . . For this conduct to give rise to legal responsibility of 
the United States, it would in principle have to be proved that that State had 
effective control of the military or paramilitary operations in the course of which 
the alleged violations were committed. 137 

Aside from the Contras, certain individuals, not of US nationality, were 
paid by the United States and directly instructed and supervised by US 



136. Id., art. 8. 

137. Nicaragua, supra note 60, para. 115. 



51 



Counter-Terrorism and the Use of Force in International Law 

military and intelligence personnel. For instance, they carried out such opera- 
tions as mining Nicaraguan ports. The Court easily found their actions imput- 
able to the United States, either because they were paid and instructed by the 
US, and were therefore agents thereof, or because US personnel had "partici- 
pated in the planning, direction, support and execution" of particular opera- 
tions. 138 

The evidence released to date regarding Taliban ties to al Qaeda does not 
suggest that al Qaeda was under the direction or control of the Taliban in con- 
ducting the 9/1 1 attacks or any other acts of international terrorism. In fact, 
some have suggested precisely the opposite — that it was the Taliban that was 
dependent on al Qaeda, both financially and militarily. While that may be a 
more accurate characterization, such dependency bears little direct connec- 
tion to al Qaeda's international terrorist campaign. 

Article 11 sets forth a second possibly relevant standard. It provides that 
"[c]onduct which is not attributable tp a State under the preceding articles shall 
nevertheless be considered an act of that State under international law if and to 
the extent that the State acknowledges and adopts the conduct as its own." 139 
This principle lay at the core of the International Court of Justice's Diplomatic 
and Consular Staff case. 140 There the Court held that the Iranian government vi- 
olated its responsibility to prevent the 1979 seizure by militant students of the 
US Embassy in Tehran and subsequently failed to meet its obligation to act 
promptly in ending the seizure. 141 Following the takeover, the Iranian govern- 
ment, including its leader, the Ayatollah Khomeni, expressed approval of the 
student actions. Indeed, in a decree issued within two weeks of the seizure, 
Khomeni declared that "the hostages would remain as they were until the U.S. 
had handed over the former Shah for trial" and that "the noble Iranian nation 
will not give permission for the release . . . until the American Government acts 
according to the wish of the nation." 142 For the International Court of Justice, 
"[t]he approval given ... by the Ayatollah Khomeni and other organs of the Ira- 
nian state, and the decision to perpetuate them, translated continuing occupa- 
tion of the Embassy and detention of the hostages into acts of that State." 143 



138. Id., para. 86. 

139. Articles of State Responsibility, supra note 126, art. 11. 

140. United States Diplomatic and Consular Staff in Tehran (Iran v. USA), 1980 I.C.J. 3. 

141. According to the court, Iranian authorities were "fully aware of their obligations to protect 
the premises of the U.S. Embassy and its diplomatic and consular staff from any attack [,]... had 
the means at their disposal to perform their obligations [but,] . . . completely failed to comply." 
Id., para. 68. 

142. Id., para. 73. 

143. Id., para. 74. 

52 



Michael Schmitt 



Therefore, while the Iranian government breached its own obligations when the 
Embassy was taken, it became responsible for the seizure itself (or at least the 
continuing occupation thereof) when it supported the student actions and took 
steps to continue the occupation. 

Are the Taliban responsible for the 9/1 1 attacks under the principle of at- 
tribution of state responsibility? The level of Taliban support falls far below 
that of the Iranian government in the Embassy case. It did not express open 
and public support for the attacks, nor did it ever assume control of the terror- 
ist campaign in the way that the Iranian government took control over release 
of the US hostages. Further, although its military did conduct combat opera- 
tions against US and coalition forces in concert with al Qaeda, that was only 
after October 7th, following air attacks on its own facilities and personnel. 

By either of these two standards of state responsibility, it is difficult to attrib- 
ute al Qaeda's terrorist attacks to the Taliban. That said, any such assessment is 
fact-dependant; unfortunately, many of the relevant facts tying the Taliban to 
al Qaeda and vice versa remain either unreleased or as yet undiscovered. How- 
ever, what must be remembered in discussions over the state responsibility of 
the Taliban is that the existence of responsibility in the general sense is a ques- 
tion quite distinct from that of whether an armed attack has been committed by 
that state, so as to justify self-defense by the state attacked. This is a very fine 
point. The principles of state responsibility determine when a state may be held 
responsible for an act and thus subject to reparations or countermeasures. But 
as noted, forcible countermeasures are not an acceptable remedy for violations 
of state responsibility. That is so whether the issue is harboring a terrorist group 
or being responsible for an act committed by one. 

Nevertheless, certain acts that generate state responsibility may at the 
same time justify a violent response. Although forcible countermeasures are 
impermissible to make whole the victim or cause the wrongdoer to desist in 
breaching an international obligation, the application of force against the 



144- This reality explains why the prohibition on forcible countermeasures is reasonable; the ban is 
compensated for in those cases where one might most want to engage in them — when victimized by 
an armed attack — by the existence of the right to self-defense. Conversely, the various limits on self- 
defense are compensated for by the fact that once the need for self-defense vanishes, the state that 
committed the wrongful attack remains liable for the consequences under the law of state 
responsibility. The classic example is the Iraqi invasion of Kuwait in 1990. In S. C. Res. 681, U.N. 
SCOR, 46th Sess., U.N. Doc. S/681/(1991), the Security Council found that "Iraq ... is liable under 
international law for any direct loss, damage, including environmental damage and the depletion of 
natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's 
unlawful invasion and occupation of Kuwait." It subsequently established the United Nations 
Compensation Commission to handle claims in S.C. Res. 692, 46th Sess., U.N. Doc. S/69 2/(1 991). 

53 



Counter -Terrorism and the Use of Force in International Law 

wrongdoer may be justified as an act of self-defense in the face of an imminent 
or on-going armed attack. 144 Restated in the context of the present case, the 
proper query in assessing the lawfulness of attacking the Taliban on October 
7th is not whether the Taliban are in any way responsible under principles of 
state responsibility for the acts of 9/1 1. Rather, it is whether or not the Taliban 
can be determined to have committed the armed attack under the law of self- 
defense. 

Self-Defense. No evidence has been released to suggest that Taliban forces 
played a direct role in the attacks of 9/11 or any other al Qaeda operation. 
Was the Taliban relationship with al Qaeda nevertheless such that the terror- 
ist acts constructively amounted to a Taliban armed attack? 

The precise degree of association between a non-state organization and 
state sponsor necessary for attribution of an armed attack to the state is a mat- 
ter of some controversy. 145 However, on September 1 1th, the most widely ac- 
cepted legal standard on the issue was that set forth in the Nicaragua case. 
That case was discussed earlier vis-a-vis the nature of an armed attack, as well 
as state responsibility. However, the International Court of Justice also ad- 
dressed the issue of imputing an armed attack to a state. 

In the case, the United States argued that Nicaragua had conducted an 
armed attack against El Salvador through support to guerillas attempting to 
overthrow the El Salvadoran government. This being so, US activities di- 
rected against Nicaragua were, so the argument went, legitimate exercises of 
the right of collective self-defense with El Salvador. The Court rejected the 
assertion, setting a high standard for attributing the actions of a non-state ac- 
tor to a state in the context of an armed attack. 

There appears now to be general agreement on the nature of the acts which can 
be treated as constituting armed attacks. In particular, it may be considered to 
be agreed that an armed attack must be understood as including not merely 
action by regular armed forces across an international border, but also "the 
sending by or on behalf of a State of armed bands, groups, irregulars or 
mercenaries, which carry out acts of armed force against another State of such 
gravity as to amount to" (inter alia) an actual armed attack conducted by 
regular forces, "or its substantial involvement therein". This description, 



145. For instance, Oscar Schachter has argued "When a government provides weapons, technical 
advice, transportation, aid and encouragement to terrorists on a substantial scale, it is not 
unreasonable to conclude that an armed attack is imputable to the government." Oscar Schachter, 
The Lawful Use of Force by a State Against Terrorists in Another Country, reprinted in HENRY H. HAN, 
TERRORISM AND POLITICAL VIOLENCE 250 (1993). See also Alberto Coll, The Legal and Moral 
Adequacy of Military Responses to Terrorism, 81 PROC. AM. SOC. INTL L. 297 (1987). 



54 



Michael Schmitt 



contained in Article 3, paragraph (g), of the Definition of Aggression annexed 
to General Assembly resolution 3314(XXIX), maybe taken to reflect customary 
international law. 146 

By this standard, the state to which the acts are to be attributed must be 
"substantially involved" in an operation that is so grave it would amount to an 
armed attack if carried out by regular members of its armed forces. Recall from 
the earlier discussion of the holding that armed attacks are measured in terms 
of their scale and effects, and that the Court specifically held that the provi- 
sion of "weapons or logistical or other support" was insufficient. Further, to 
constitute an armed attack by the state, that state must have "sent" the group 
into action or it must be acting on the state's behalf. These criteria resemble 
the requirement under state responsibility that the group in question act on 
the instructions of, or under the direction or control o{ y the state to which re- 
sponsibility is to be imputed. In this sense, the principles of state responsibility 
can assist in determining whether specific conduct is an armed attack. 

It should be noted that the Court was not unanimous in its findings. Most 
notably, Judge Stephen Schwebel of the United States dissented, arguing that 
there had been an armed attack: 

The delictual acts of the Nicaraguan government have not been confined to 
provision of very large quantities of arms, munitions and supplies (an act which 
of itself might be viewed as not tantamount to an armed attack) ; Nicaragua 
(and Cuba) have joined with the Salvadoran rebels in the organization, 
planning and training for their acts of insurgency; and Nicaragua has provided 
the Salvadoran insurgents with command-and-control facilities, bases, 
communications and sanctuary, which have enabled the leadership of the 
Salvadoran insurgency to operate from Nicaraguan territory. Under both 
customary and conventional international law, that scale of Nicaraguan 
subversive activity not only constitutes unlawful intervention in the affairs of El 
Salvador; it is cumulatively tantamount to an armed attack upon El Salvador. 147 

What seems to run through both the Court's and Judge Schwebel's position 
is that the state must at least exercise significant, perhaps determinative, in- 
fluence over the group's decision-making, as well as play a meaningful role in 
the specific operations at hand, before an armed attack will be imputed to it. 
The facts asserted by Judge Schwebel suggest that Nicaragua not only pro- 
vided the means to conduct operations against El Salvador, but it did so in a 



146. Nicaragua, supra note 60, at 195. 

147. Id., (Schwebel dissent) at 258-259, para. 6. 



55 



Counter -Terrorism and the Use of Force in International Law 

manner that would allow operations it helped plan to be mounted. Further, by 
organizing and planning the actions, Nicaragua occupied a central position in 
the decision-making hierarchy. By contrast, the Court focused almost exclu- 
sively, as it did regarding the issue of state responsibility, on the extent of con- 
trol the state has over the specific actions of the group. 

There seems to be little evidence that the Taliban "sent" al Qaeda 
against any particular targets or even that they provided the materiel and lo- 
gistic support that the Nicaragua Court found insufficient to amount to an 
armed attack. In essence, the key contribution made by the Taliban was 
granting al Qaeda a relatively secure base of operations. By the classic Nicara- 
gua test, or even the lower standard advocated by Judge Schwebel, it would be 
difficult to argue that the Taliban, through complicity with al Qaeda, 
launched an armed attack against the United States or any other country. 
Harboring terrorists is simply insufficient for attribution of an armed attack to 
the harboring state. Rather, the situation appears to have been a marriage o{ 
convenience — convenient for al Qaeda's conduct of external terrorist acts 
and convenient for the Taliban's control over territory within Afghanistan 
and their battles with internal enemies. 

One further judgment of relevance is that rendered by the Appeals Cham- 
ber of the International Criminal Tribunal for the Former Yugoslavia in Prose- 
cutor v. Tadic. There the issue was whether acts of Bosnian Serb forces could 
be attributed to Yugoslavia. The Chamber held that the degree of control nec- 
essary for attribution would vary according to the factual circumstances of the 
case. Refusing to apply the Nicaragua approach in its entirety, the Chamber 
adopted a standard of "overall control going beyond the mere financing and 
equipping of such forces and involving also participation in the planning and 
supervision of military operations" for acts by an "organized and hierarchically 
structured group." 148 It felt the dual requirements of effective control of the 
group and the exercise of control over a specific operation were excessive, ex- 
cept in the cases of individuals acting alone or disorganized groups. 

By way of caveat, it must be noted that Tadic involved neither state respon- 
sibility nor the criteria for attribution of an armed attack. Rather, the issue was 
whether the Bosnian Serb actions could be attributed to Yugoslavia such that 
there was an international armed conflict. The existence of such a conflict 
was a prerequisite for applicability of various aspects of humanitarian law to 



148. International Criminal Tribunal for Yugoslavia, Case IT-94-1, Prosecutor v. Tadic, 38 
I.L.M. 1518 (1999), at paras. 120 & 145. 

56 



Michael Schmitt 



the defendants before the tribunal. Because there was no jurisprudence on the 
issue, the Chamber turned to the law of state responsibility by way of analogy. 

Again, and though the opinion is only relevant by analogy to the issue at 
hand, it would appear that Taliban relations with al Qaeda did not rise to this 
level. Thus, al Qaeda actions do not appear imputable to the Taliban as a mat- 
ter of state responsibility, as an armed attack or in the context of having 
caused an international armed conflict (although no doubt exists that its har- 
boring of the terrorists was an internationally wrongful act). It must be empha- 
sized, however, that this assessment is entirely fact-dependant, and that there 
is a relative paucity of reliable open-source information on the subject. 

To summarize, al Qaeda conducted an armed attack against the United 
States on September 1 1th. That attack activated the right of self-defense, one 
that continues as long as the terrorist campaign against the United States can 
reasonably be characterized as ongoing. Once attacked, the United States 
properly demanded that the Taliban turn over al Qaeda leaders and allow the 
United States to verify that no further operations were ongoing from the 
country. When the Taliban failed to comply, the United States and its part- 
ners acquired the right to enter Afghanistan for the limited purpose of putting 
an end to al Qaeda operations. Had it done so, and had the Taliban interfered, 
the interference would have amounted to a separate attack of its own. How- 
ever, from the evidence available, it does not appear that the Taliban were 
sufficiently entwined with al Qaeda terrorist operations for the 9/1 1 attacks to 
be imputed to it, thereby justifying the immediate use of force against the 
Taliban. Were the attacks against the Taliban therefore illegal? That is a very 
uncertain matter. 

The Evolving Standard of Self'Defense 

There is little doubt that the response to the tragic events of Septem- 
ber 1 1th has tested accepted understandings of the international law regarding 
the use o{ force. Many would dispute certain of the legal conclusions set forth 
above— that a terrorist group can mount an "armed attack"; that a series of 
terrorist attacks can be treated as a single on-going attack; or that the United 
States and the United Kingdom were justified in forcibly crossing into Afghan 
territory on October 7th. Indeed, this article has concluded that use of force di- 
rectly against the Taliban is difficult to fit within traditional understandings of 
attribution of an armed attack. 



57 



Counter-Terrorism and the Use of Force in International Law 

Such unease has led some to pronounce the traditional normative system 
dead in fact, if not in law. For instance, Michael Glennon has opined that: 

the rules concerning the use of force are no longer regarded as obligatory by 
states. Between 1945 and 1999, two-thirds of the members of the United 
Nations — 126 states out of 189 — fought 291 interstate conflicts in which over 
22 million people were killed. This series of conflicts was capped by the Kosovo 
campaign in which nineteen NATO democracies representing 780 million 
people flagrantly violated the Charter. The international system has come to 
subsist in a parallel universe of two systems, one de jure, the other de facto. The 
de jure system consists of illusory rules that would govern the use offeree among 
states in a platonic world of forms, a world that does not exist. The de facto 
system consists of actual state practice in a real world, a world in which states 
weigh costs against benefits in regular disregard of the rules solemnly proclaimed 
in the all-but-ignored de jure system. The decaying de jure catechism is overly 
schematized and scholastic, disconnected from state behavior, and unrealistic 
in its aspirations for state conduct. ' 

The upshot is that the Charter's use-of-force regime has all but 
collapsed. ... I suggest that Article 51, as authoritatively interpreted by the 
International Court of Justice, cannot guide responsible U.S. policy-makers in 
the U.S. war against terrorism in Afghanistan or elsewhere. 149 

Professor Glennon's thoughtful analysis exaggerates the de jure-de facto di- 
vide. In fact, what has been happening over the past half-century is a regular 
evolution in the global community's understanding of the use offeree regime. 
This evolution has been, as it always is and always must be, responsive to the 
changing circumstances in which international law operates. Practice does 
not contradict law so much as it informs law as to the global community's nor- 
mative expectations. It is a phenomenon that is particularly important in in- 
ternational law because of the absence of highly developed constitutive 
entities and processes. 

Consider the changing context in which use of force norms have operated. 
In the immediate aftermath of the Second World War an understandable 
preference for collective remedies to threats to international peace and secu- 
rity, remedies that would be executed through inclusive international institu- 
tions, emerged — hence the United Nations and its restrictive use of force 
regime. With the outbreak of the Cold War, and its resulting bipolarity, that 
system fell into desuetude as the veto power of the permanent five members 



149. Glennon, supra note 4, at 540-41. 

58 



Michael Schmitt 



[P-5] rendered the Security Council impotent. States were therefore com- 
pelled to engage in various forms of coercive self-help to perform tasks that 
would otherwise have been the preferred prerogative of the Council. 150 

The demise of the Cold War removed two contextually determined con- 
straining influences on the use of force. First, the Security Council was rein- 
vigorated because the zero-sum paradigm of the Cold War no longer held; for 
the first time in nearly 50 years, the P-5 could share common cause (or at least 
not find themselves inevitably in opposition). This meant that the Council 
could assume its intended role in the maintenance of international peace and 
security. The Council promptly did so, authorizing one major international ef- 
fort to counter aggression, the 1990-91 Gulf War, and multiple peace en- 
forcement operations. 

Second, the Cold War had imposed an implicit limitation on unilateral uses 
of force — that they not threaten the fragile peace between East and West. 
Thus, for example, whereas intervention was deemed inappropriate as a gen- 
eral matter during the Cold War (it risked sparking a broader conflict), inter- 
vention within a zone of influence appeared more palatable (or as "the other 
fellow's business"). With this second constraint removed, states today are 
more willing to accept unilateral uses of force, as there is less chance oi 
spillover effects (as reflected by Operation ALLIED FORCE) . 

What happened is that the operational code regarding the use of force 
shifted with the emergence of new geo-political circumstances. Circum- 
stances determine the viability of normative strategies for advancing shared 



150. For instance, Michael Reisman has identified nine basic categories of unilateral uses of force 
that enjoyed a significant degree of community support: "self-defense, which has been construed 
quite broadly; self-determination and decolonization; humanitarian intervention; intervention 
by the military instrument within spheres of influence and critical defense zones; treaty- 
sanctioned interventions within the territory of another state; use of the military instrument for 
the gathering of evidence in international proceedings; use of the military instrument to enforce 
international judgments; and counter measures, such as reprisals and retorsions." W. Michael 
Reisman, Criteria for the Lawful Use of Force in International Law, 10 YALE J. INT'L L. 279, 281 
(1985). See also W. Michael Reisman, Article 2 (4): The Use of Force in Contemporary International 
Law, PROC. AM. SOC. INT'L L. LAW 74, 79-84 (1984-85); W. Michael Reisman, War Powers: 
The Operational Code of Competence, 83 AM. J. INT'L L. 777 (1989). 



59 



Counter -Terrorism and the Use of Force in International Law 

community values. 151 It is not that new law emerges or that old law fades away, 
as much as it is that the understanding of the precise parameters of the law 
evolves as it responds to fresh challenges or leverages new opportunities. That 
international law is understood in light of the circumstances in which it finds 
itself is a strength, not a weakness. 

This is certainly true regarding responses to terrorism. During much of the 
Cold War, the pressing problem of violence outside the classic state-on-state 
paradigm was guerilla warfare by insurgents against a government. Both sides 
had their clients, whether states or rebel groups, and in many cases the con- 
flicts were proxy in nature. The geopolitical and normative appeal of proxy 
wars was that they tended to facilitate avoidance of a direct superpower clash. 
Thus, as demonstrated in Nicaragua, a very high threshold was set for attribut- 
ing rebel acts to their state sponsors or for characterizing assistance to a rebel 
group as an "armed attack" legitimizing a victim state's forceful response. This 
was a very practical approach. The (bipolar superpowers were surely going to 
engage in such activity regardless of the normative limits thereon, so a legal 
scheme that avoided justifying a forceful response by the other side contrib- 
uted to the shared community value of minimizing higher order violence. The 
result was creation of a legal fiction that states that were clearly party to a con- 
flict, were not. 

To some extent, this paradigm was illustrated by community reactions to 
counter- terrorist operations. Consider Operation EL DORADO CANYON, the 
1986 air strikes against terrorist and Libyan government facilities by US forces 
in response to the bombing of the La Belle discotheque in Berlin. The Libyan 
leader, Muammar el Qadhafi, had previously praised terrorist actions. 



151. Such as physical survival and security for individuals and the tangible or intangible objects 
on which they rely, human dignity, social progress and quality of life, and "the right of peoples to 
shape their own political community." These aims derive from those expressed in the Preamble 
to the UN Charter: 

To save succeeding generations from the scourge of war, which twice in our life- time has 
brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, 
in the dignity and worth of the human person, in the equal rights of men and women 
and of nations large and small, and to establish conditions under which justice and 
respect for the obligations arising from treaties and other sources of international law 
can be maintained, and to promote social progress and better standards of life in larger 
freedom. 
U.N. CHARTER, pmbl. The final aim was articulated in W. Michael Reisman, Allocating 
Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and Prospects, in 

Law and Force in the New International Order 26, 45 (Lori Damrosch & David J. 

Scheffer eds., 1991). 

60 



Michael Schmitt 



Moreover, in advance of the attacks the United States intercepted communi- 
cations to the Libyan People's Bureau in West Berlin containing an order to 
attack Americans. Additional intercepts immediately preceding and following 
the La Belle bombing provided further evidence of Libyan complicity. 152 

Despite Libya's support of terrorism, international reaction to the US oper- 
ation, which was justified on the basis of self-defense, was overwhelmingly 
negative. 153 Many of the United States' closest allies were critical, with the ex- 
ceptions of the United Kingdom and Israel. The General Assembly passed a 
resolution condemning the action, while Secretary-General Javier Perez de 
Cuellar issued a statement "deploring" the "military action by one member 
state against another." 154 Viewed in the then-existing international security 
context, this was an unsurprising reaction. If state sponsorship of terrorism (a 
particularly ill-defined term given the bipolarity of the period) rose to the level 
of an armed attack justifying a forceful response in self-defense, then, given 
both sides' propensity to support opponents of their foe, the risk of a super- 
power affray grew. 

However, the geopolitical context has changed dramatically in the last de- 
cade. Today there is but one superpower. Additionally, any antagonism that 
exists between it and other significant world players, such as Russia and 
China, is unlikely to erupt into open conflict. On the contrary, in many cases 
the former antagonists are cooperating against common threats, a trend illus- 
trated by the recent creation of the NATO-Russia Council. 155 

Yet, as the likelihood of inter-state conflict receded, the relative impor- 
tance of the terrorist threat grew correspondingly. For the major players on 
the world scene, it was no longer attack by another state that dominated stra- 
tegic risk assessment, but rather the spread of instability, particularly through 
the mechanism of non-international armed conflict, and the related menace 



152. Marian Nash Leich, U.S. Practice 80 AM. J. INT'L. L. 612, 633 (1986); Gregory Intoccia, 
American Bombing of Ubya: An International Legal Analysis, 19 CASE WES. RES. J. INT'L L. 177 
(1987); Jeffrey A. McCredie, The April 14,1986 Bombing of Ubya: Act of Self -Defense or Reprisal?, 
19 CASE WES. RES. J. INT'L L. 215 (1987); David Turndorf, The U.S. Raid on Ubya: A Forceful 
Response to Terrorism, 14 BROOK. J. INT'L L. 187 (1988). 

153'. See Reisman, International Legal Responses, supra note 98, 33-34, for a detailed description of 
the international reaction. See also Stuart G. Baker, Comparing the 1993 U.S. Airstrike on Iraq to 
the 1986 Bombing of Ubya: The New Interpretation of Article 51, 24 GA. J. INT'L & COMP. L. 99 
(1994). 

154. Israelis Praise It While Arabs Vow to Avenge It, CHICAGO TRIBUNE, Apr. 16, 1986, at A9. 

155. The NATO-Russia Council, approved in May 2002, is specifically tasked with countering 
terrorism. See Declaration by Heads of State and Government of NATO Member states and 
the Russian Federation, May 28, 2002, available at http://www.nato.int/docu/basictxt/ 
b020528e.htm Gun. 18, 2002). 

61 



Counter 'Terrorism and the Use of Force in International Law 

of terrorism, either domestic or international. Not surprising, normative un- 
derstandings shifted accordingly. 

That shift was dramatically illustrated by the deafening silence, described 
at the outset of this article, over the issue of the lawfulness of the US and UK 
attacks of October 7th. Of course, some academic voices pointed to the nor- 
mative faultlines in the operations, but academe was by no means united on 
the subject. Media criticism was rare, as was that by important non-govern- 
mental organizations. Most significantly, there was almost no state censure of 
the actions; on the contrary, states scrambled to join the cause. 

This reaction was a logical continuation of a trend evident in two earlier 
post-Cold War responses to terrorism. In 1993, a plot to assassinate former 
President George Bush during a visit to Kuwait was foiled. Investigation sug- 
gested Iraqi government involvement. In response, the United States 
launched cruise missiles against Iraqi intelligence facilities. President Clinton 
justified the action in the following terms: 

This Thursday, Attorney General Reno and Director of Central Intelligence 
Woolsey gave me their findings. Based on their investigation there is compelling 
evidence that there was, in fact, a plot to assassinate former President Bush and 
that this plot, which included the use of a powerful bomb made in Iraq, was 
directed and pursued by the Iraqi intelligence service. 

These actions were directed against the Iraqi Government, which was 
responsible for the assassination plot. Saddam Hussein has demonstrated 
repeatedly that he will resort to terrorism or aggression if left unchecked. Our 
intent was to target Iraq's capacity to support violence against the United States 
and other nations and to deter Saddam Hussein from supporting such outlaw 
behavior in the future. Therefore, we directed our action against the facility 
associated with Iraq's support of terrorism, while making every effort to 
minimize the loss of innocent life. 156 

Of course, Iraq is a unique case given that an international armed conflict 
with the United States had occurred in 1991 (and arguably continues today). 
Nevertheless, the international community generally supported the strikes, or 



156. President William Clinton, Address to the Nation on the Strike on Iraqi Intelligence 
Headquarters, 29 WEEKLY COMP. PRES. DOC 1180-81 i]un. 26, 1993). For an excellent 
analysis on the state of international law regarding counter-terrorism in the wake of the US 
strikes, see Robert J. Beck and Anthony Clark Arend, "Don't Tread On Us": International Law and 
Forcible State Responses To Terrorism, 12 WIS. INT'L L. J. 153 (1994). See also Robert F. Teplitz, 
Taking Assassination Seriously: Did the United States Violate International Law in Responding to the 
Iraqi Plot to Kill George Bush, 28 CORNELL INT'L L. J. 569 (1995). 

62 



Michael Schmitt 



at least muted its criticism thereof. Of the P-5, only China expressed concern. 
By contrast, support was voiced by, inter alia, the United Kingdom, Israel, 
Russia, Germany, Italy, Japan and South Korea, as well as the three Islamic 
states then sitting on the Security Council, Pakistan, Djibouti and Morocco. 
Egypt, Jordan and Iran criticized the attack, but on the basis of the civilian ca- 
sualties caused. 157 

What is normatively remarkable is that the attack was somewhat question- 
able as a traditional exercise of self-defense, the legal basis asserted by the 
United States. It was in response to a plot that had already been foiled; indeed, 
some of those directly responsible for executing it were behind bars. Addi- 
tionally, there was no assertion that this was but one phase in a continuing 
campaign by the Iraqis against the United States. Interestingly, the Security 
Council appeared more interested in the facts of the case, which it reportedly 
found sufficient to establish Iraqi involvement, than in the legal sufficiency of 
the US actions. 158 

A more viable argument legally would have been that an international 
armed conflict was still in existence between the United States and Iraq, 
punctuated only by a cease-fire agreement, the terms of which had been 
breached by Iraqi complicity in the plot. Curiously, that argument never sur- 
faced. Instead, Article 51 was the sole legal justification asserted, an assertion 
that was relatively uncontested. It is also important to note that, aside from 
the strict legal stylization, the strikes were characterized as deterrent in pur- 
pose, a warning to Iraq to desist from any further involvement in acts of terror- 
ism. This purpose has pervaded virtually every justification for striking back at 
terrorists over the past two decades. 

The relative lack of criticism is all the more striking when contrasted with 
that generated by the 1986 attacks against Libya. Some 50 Americans were in- 
jured and two died in the La Belle Disco attacks. Further, prior to the attacks 
Qadhafi had threatened that the Libyans were "capable of exporting terrorism 
to the heart of America," a threat repeated on multiple occasions. 159 There 
was no reason at the time to believe the Libyans would desist in their support 
of terrorism against the United States; indeed, such support continued after 



157. Baker, supra note 152, at 99-101. 

158. On the extent to which the Council was satisfied with the US evidence, see U.S. Photo 
Evidence Convinces the U.N., TORONTO STAR, June 28, 1993, at A13. 

159. Text of the State Department Report in Libya Under Qaddafi, N.Y. TIMES, Jan. 9, 1986, at A6. 

63 



Counter -Terrorism and the Use of Force in International Law 

the strikes, most notably with the bombing of Pan Am 103 over Lockerbie. 160 
Thus, the severity of the terrorist attack and the likelihood more were forth- 
coming make the Libya case more egregious than the plot against George 
Bush. Nevertheless, international reaction differed dramatically. 

Further evidence of the trend came in 1998 in response to the bombings of 
the US embassies in Nairobi and Dar es Salaam. Almost 300 people, including 
12 Americans, perished in the attacks, which were tied to Osama bin Laden 
and al Qaeda. In response, the United States launched cruise missile attacks 
against terrorist training camps in Afghanistan and a pharmaceutical plant 
suspected of involvement in chemical weapons production in Sudan. On the 
day they were conducted, President Clinton announced his rationale for or- 
dering the attacks: 

First, because we have convincing evidence these groups played the key role in 
the Embassy bombings in Kenya and Tanzania; second, because these groups 
have executed terrorist attacks against Americans in the past; third, because we 
have compelling information that they were planning additional terrorist 
attacks against our citizens and others with the inevitable collateral casualties 
we saw so tragically in Africa; and fourth, because they are seeking to acquire 
chemical weapons and other dangerous weapons. 161 

Formal legal justification for the actions came in the required notification 
of the Security Council that actions in self-defense had been taken. 

These attacks were carried out only atter repeated efforts to convince the 
Government of the Sudan and the Taliban regime in Afghanistan to shut these 
terrorist activities down and to cease their cooperation with the bin Laden 
organization. That organization has issued a series o( blatant warnings that 
"strikes will continue from everywhere" against American targets, and 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 



160. The accused bombers were tried in Her Majesty's Advocate v. Abdelbaset ali Mohamed al 
Megrahi and Al Amin Khalifa Fhimah, Scot. High Court of Justiciary at Camp Zeist, Case No. 
1475/99. Megrahi was found guilty and sentenced to life imprisonment in January 2001; the 
Court accepted the allegation that he was a member of Libya's Jamahariya Security Organization. 
In March 2002, Megrahi's appeal was denied. Abdelbaset Ali Mohmed Al Megrahi v. Her 
Majesty's Advocate, Appeal Court, High Court of Justiciary, Appeal No: C 104/01. Negotiations 
over Libyan compensation for the victims' families have been ongoing for some time. See, e.g., 
Rob Crilly, Libya Denies Offer of (Pounds) l.8bn Deal for Lockerbie Families, THE HERALD 
(Glasgow), May 30, 2002, at 2. 

161. President William Clinton, Remarks on Departure for Washington, D.C., from Martha's 
Vineyard, Massachusetts, 34 WEEKLY COMP. PRES. DOC. 1642 (Aug. 20, 1998). 

64 



Michael Schmitt 



armed force to prevent these attacks from continuing. In doing so, the United 
States has acted pursuant to the right of self defence confirmed by Article 51 of 
the Charter of the United Nations. The targets struck, and the timing and 
method of attack used, were carefully designed to minimize risks of collateral 
damage to civilians and to comply with international law, including the rules of 
necessity and proportionality. 162 

International reaction to the two strikes was telling. Although Iran, Iraq, 
Libya, Pakistan, 163 Russia and Yemen condemned them, Australia, France, 
Germany, Japan, Spain and the United Kingdom were supportive. 164 In other 
words, support or condemnation tended to track political alignment with the 
United States. More normatively significant is the difference in the reaction to 
the two strikes. The League of Arab States' Secretariat condemned the strikes 
against the Sudanese pharmaceutical factory, but not those against the terror- 
ist bases in Afghanistan. 165 Similarly, Sudan, the Group of African States, the 
Group of Islamic States and the League of Arab States individually asked the 
Security Council to consider the attacks against the pharmaceutical plant and 
send a fact-finding mission to Sudan, but did not do likewise vis-a-vis the 
strikes into Afghanistan. 166 

The best explanation for the difference is revealed in the brouhaha that fol- 
lowed the strikes on the Sudanese factory. Almost immediately questions be- 
gan to surface in the press regarding the accuracy of US claims that the plant 



162. Letter from the Permanent Representative of the United States of America to the President 
of the Security Council (Aug. 20, 1998), U.N. Doc. S/1998/780 (1998), available at http:// 
www.undp.org/missions/usa/sl998780.pdf (Jun. 18, 2002). 

163. Pakistan protested the violation of its airspace. Letter from the Permanent Representative 
of Pakistan to the President of the Security Council, Aug. 24, 1998, U.N. Doc. S/1998/794 
(1998). 

164. The international reaction is well-described in Sean D. Murphy, Contemporary Practice of 
the United States Relating to International Law, 93 AM. J. INT'L L. 161, 164-5 (1999). 

165. Letter from the Charge d'Affaires of the Permanent Mission of Kuwait to the United 
Nations Addressed to the President of the Security Council, Aug. 21, 1998, U.N. Doc. S/1998/ 
789 (1998). 

166. Letter from the Permanent Representative of the Sudan to the United Nations Addressed to 
the President of the Security Council, Aug. 21, 1998, U.N. Doc. S/1998/786, annex (1998); Letter 
from the Permanent Representative of Namibia to the United Nations Addressed to the President 
of the Security Council, Aug. 25, 1998, U.N. Doc. S/1998/802 (1998) (Group of African states 
request); Letter from the Charge d Affaires A.I. of the Permanent Mission of Qatar to the United 
Nations Addressed to the President of the Security Council, Aug. 21, 1998, U.N. Doc. S/1998/790 
(1998) (Group of Islamic states request); Letter from the Charge d Affaires of the Permanent 
Mission of Kuwait to the United Nations Addressed to the President of the Security Council, Aug., 
21, 1998, U.N./ Doc. S/1998/791 (1998) (League of Arab States request). 

65 



Counter-Terrorism and the Use of Force in International Law 

was tied to chemical weapon production. In the end, the United States never 
made a convincing case that the plant was engaged in the activities alleged. 167 
Moreover, even if the assertions had been accurate, the causal relationship be- 
tween the plant and the attacks against the embassies was indirect at best. By 
contrast, little doubt existed that terrorists were operating from bases in Af- 
ghanistan with the seeming acquiescence of the Taliban or that the organiza- 
tion targeted was tied to the bombings. 

The reaction of the politically relevant actors such as states, non- 
governmental organizations, and the media in this case reflects a general sense 
that it was not the fact that the United States struck back which caused con- 
cern as much as it was that the United States "got it wrong" in the Sudanese 
case. In other words, if a state is going to take the dramatic step of conducting 
military operations against terrorists, it needs to have sufficient evidence of 
the connection between the target and the act that was committed, as well as 
a reasonable belief that future acts ar,e on the horizon. 

What is the relationship between these incidents and the law of self- 
defense as it applies to international terrorism? As Professor Reisman has per- 
ceptively noted, "law is not to be found exclusively in formal rules but in the 
shared expectations of politically relevant actors about what is substantively 
and procedurally right." 168 Though such New Haven School pronouncements 
often evoke controversy, there can be little doubt that the received law — cus- 
tomary, conventional and case law — is informed by state practice and the 
practice of other politically relevant actors on the international scene. Their 
normative expectations as to how law should foster shared community values 
are determinative of international law's vector. In the context of counter- 
terrorist operations conducted in self-defense, a number of conclusions as to 
possible criteria bearing on the international community's assessment of law- 
fulness can be suggested from both the legal analysis offered earlier and the 
short discussion of the evolving international reaction to counter-terrorist 
operations. 

Armed attack. A community consensus now appears to exist that armed at- 
tacks may be conducted by terrorist organizations. At the same time, such at- 
tacks constitute violations of international and domestic criminal law. Thus, 



167. Tim Weiner & Steven Lee Myers, After the Attacks: The Overview, Flaws in the U.S. Account 
Raise Questions on Strike in Sudan, N.Y. TIMES, at A2 (Aug. 19, 1998). 

168. W. Michael Reisman, The Raid on Baghdad: Some Reflections on its Lawfulness and 
Implications, 5 EUR. J. INT'L L. 120, 121 (1994). He further notes "a prerequisite for appraisal of 
the lawfulness of an incident ... is an identification of the yardstick of lawfulness actually being 
used by the relevant actors." Id. 

66 



Michael Schmitt 



the target state may respond to them with armed force in self-defense and/or 
engage in law enforcement activities. To amount to an armed attack, the 
"scale and effects" must be "significant," although in a series of related attacks 
significance is a cumulative calculation. This is a somewhat ambiguous stan- 
dard, but factors such as the nature and capabilities of the organization con- 
ducting the attack, the extent of human injury and physical damage caused 
(or likely to have been caused if the attack is foiled or otherwise unsuccessful), 
the relation of the attack to previous attacks and the method and means used 
to conduct it bear on the appraisal. 

Necessity. For compliance with the necessity requirement of self-defense, 
there must be a sound basis for believing that further attacks will be mounted 
and that the use of armed force is needed to counter them. This requires the 
absence of a reliable means other than force to counter the prospective at- 
tacks. The relative success of any law enforcement efforts (or likelihood 
thereof) will affect the extent to which resort to armed force is necessary. Sim- 
ilarly, if self-defense operations involve crossing into another state's territory, 
that state must be unable or unwilling to prevent the terrorists from continu- 
ing to threaten the victim state. 

As an aside, the option of seeking Security Council action under Chapter 
VII has no relation to the necessity assessment. Although it is sometimes as- 
serted that states should turn to the Council for assistance if the opportunity 
presents itself, Article 5 1 contains no such legal obligation. 

Proportionality. Self-defense operations against terrorists and states in- 
volved in terrorism are limited to the nature, targets, level of violence and lo- 
cation required to defeat an on-going attack or, if that attack has ended, 
prevent any further reasonably foreseeable attacks. That said, those who act 
in self-defense should be sensitive to the other face of proportionality, its jus in 
bello face. 

Imminency. Self-defense may only be conducted against an attack that is 
imminent or ongoing. An attack is imminent when the potential victim must 
immediately act to defend itself and the potential aggressor has irrevocably 
committed itself to attack. In the context of terrorism, this point may occur 
well before the planned attack due to the difficulty of locating and tracking 
terrorists. Imminency is not measured by the objective time differential be- 
tween the act of self-defense and the attack it is meant to prevent, but instead 
by the extent to which the self-defense occurred during the last window of 
opportunity. 

More significant are responses to on-going attacks. The acceptability of 
viewing separate acts of terrorism conducted by the same organization (or 



67 



Counter-Terrorism and the Use of Force in International Law 

closely related organizations acting in concert) as a single on-going attack ap- 
pears clear in the aftermath of the response to 9/11. Thus, whereas Operation 
EL DORADO CANYON was widely characterized as punitive in nature, the US 
counter- terrorist strikes in 1993, 1998 and 2001 were generally seen as appro- 
priately preventive. In other words, the understanding of armed attack has 
evolved from one looking at particular operations in isolation, and asking 
whether each is imminent or ongoing in and of itself, to one where terrorists 
are viewed as conducting campaigns. Once it is established that an ongoing 
campaign is underway, acts of self-defense are acceptable throughout its 
course, so long as the purpose is actually to defeat the campaign. In this sense, 
deterrent self-defense has become, or is at least in the process of becoming, ac- 
cepted. As noted, almost all justifications, official and otherwise, of counter- 
terrorist strikes cite the purpose of preventing and deterring future terrorism. 

Purpose. The sole acceptable purpose for self-defense operations is to defeat 
an on-going attack or prevent one that is imminent. The motivation cannot 
be retribution, general deterrence (deterring terrorism generally vice deterring 
specific acts and actors), punishment or any other motive. Oi course, al- 
though each of these may be the logical consequence of a defensive action or, 
perhaps, a secondary goal, they are impermissible as the primary purpose of 
the actions. 

Conducting self-defense in another state. It is permissible to cross into the ter- 
ritory of another state to conduct defensive counter-terrorist operations when 
that state has granted consent to do so or when it is unable or unwilling to ef- 
fectively prevent terrorist activities on its soil. In the latter two cases, a request 
from the victim state to take the steps that are necessary must precede 
nonconsensual entry into the country. Operations may only be conducted 
against the terrorists and their assets; however, if the host state forcibly inter- 
feres with them, then that state may have committed an armed attack against 
the force carrying out the counter-terrorist actions. 

Conducting self defense against a state sponsor. The formal rules regarding the 
extent of support to a terrorist organization necessary to attribute an armed 
attack to a state appear to differ from the normative expectations of the global 
community. Those rules require a high degree of control over a specific opera- 
tion, such that the terrorist organization is sent by or on behalf of a state to 
conduct the attack. Mere harboring does not suffice. 

However, normative expectations are clearly in the process oi rapid evolu- 
tion. Seemingly authoritative articulations of the standard, such as that by the 
International Court of Justice in Nicaragua, are increasingly out of step with 
the times. Although no definitive conclusions can be drawn yet regarding the 

68 



Michael Schmitt 



extent and nature of the relationship between the state and terrorist group 
deemed sufficient to impute an armed attack, several factors seem to have in- 
formed the community's general support (or at least lack of criticism) for the 
strikes against the Taliban. Of particular importance is the fact that the Secu- 
rity Council had made repeated demands that the Taliban put an end to the 
use of its territory by terrorists, all to no avail. The existence of these warnings 
by an authoritative international body rendered the Taliban the masters of 
their own fate. Refusal to cooperate even after the unthinkable happened on 
September 11th, despite demands and an opportunity to do so, only served to 
exacerbate their culpability. 

Moreover, the terrorists being harbored were o( a particularly nasty sort. 
They had conducted multiple operations in the past that resulted in hundreds 
of casualties, and had now mounted an attack in which the death toll was 
measured in the thousands. Their attack also had global impact; financial re- 
verberations were felt throughout the world economy, citizens of over 80 
countries were killed, and a pervasive sense of fear infected millions. Clearly, 
the scale and effects of al Qaeda's attacks bore directly on the community's as- 
sessment of Taliban actions (or the lack thereof) . 

Additionally, the relationship between al Qaeda and the Taliban was ex- 
tremely close, actually symbiotic in many ways. Although no evidence has 
been released of direct complicity in the 9/1 1 attacks, it is difficult to imagine a 
more cooperative host for al Qaeda than the Taliban, cooperation that was 
the inevitable result of the Taliban's own dependence on al Qaeda. 

Finally, the Taliban were viewed as illegitimate in many ways. Only three 
countries — Saudi Arabia, the United Arab Emirates and Pakistan — recog- 
nized them as the proper government of Afghanistan, by no stretch of the 
term could they be described as democratic and their human rights record was 
horrendous. 169 To describe the Taliban as internationally ostracized would be 
an understatement. Thus, conducting assaults against them seemed to do less 
violence to countervailing international law principles such as territorial in- 
tegrity than would similar actions against other governments and states. 

Drawing these strands together, relevant factors in assessing the lawfulness 
of a response against a state sponsor include the severability (or lack thereof) 
between it and the terrorist group; the frequency, source and timing of warn- 
ings to desist from cooperation with the group; the scale and nature of the 



169. See, e.g., Department of State, Human Rights Country Report: Afghanistan, Mar. 4, 2002, 
available at http://www.state.gOv/g/drl/rls/hrrpt/2001/sa/8222.htm (Jun. 18, 2002). See also the 
various reports by Human Rights Watch, available at http://hrw.org/reports/world/afghanistan- 
pubs.php Gun. 18, 2002). 

69 



Counter 'Terrorism and the Use of Force in International Law 

cooperation; the extent to which the state is perceived as generally law abid- 
ing and legitimate or not; the inclusivity of the threat in terms of states threat- 
ened; and the severity of the acts committed by the terrorist group with which 
the state has chosen to associate itself. Further, it appears that self-defense 
vis-a-vis state involvement (like that against the terrorists themselves) is 
heading in deterrent directions. Although each determination will be fact- 
specific, it is clear that the bar is being measurably lowered. 

Evidence. As illustrated in the case of the 1998 strikes against the Sudanese 
pharmaceutical plant, the international community expects states carrying 
out counter-terrorist strikes to act only on the basis of reliable information. 
The United States learned its lesson well; in the recent attacks, the United 
States provided briefings on al Qaeda and Taliban activities to the Security 
Council, North Atlantic Council and other intergovernmental organizations, 
as well as numerous states bilaterally. 

The incidents considered above highlight the core facts that need to be 
demonstrated: that the target of the self-defense operations conducted the at- 
tack, either directly or constructively, and that the self-defense complies with 
the requirements of necessity, proportionality and imminency. A much more 
difficult question is that of how heavy the burden of proof should be. 

Because the issue at hand involves the most significant act of international 
intercourse, the use of armed force, a high standard of proof is obviously re- 
quired. A preponderance of the evidence standard (i.e., evidence that the fact 
in issue is more likely than not) is clearly insufficient to justify acts of such im- 
port. On the other hand, a beyond a reasonable doubt standard would prove 
impractical in all but the rarest of cases. The shadowy world of international 
terrorism simply does not lend itself to immediate access to credible informa- 
tion. By this standard, states would almost never have sufficient evidence to 
mount a timely and decisive response to a terrorist act. 

Mary Ellen O'Connell has suggested a "clear and convincing" standard. 170 
Although acknowledging that no accepted standard exists, she draws on do- 
mestic law evidentiary standards and an assortment of decisions by interna- 
tional courts, including the Nicaragua case, 171 as well as the work of other 



170. Mary Ellen O'Connell, Evidence of Terror, 7 J. CONF. & SEC. L. 19, 22-28 (2002). 

171. Professor O'Connell notes that the Court referred to the need for "sufficient proof [at 437, 
para. 101], which she argues equates by implication to convincing proof. Id. at 24. 

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Michael Schmitt 



scholars. 172 Her suggested standard is consistent with the US notification of 
self-defense to the Security Council, in which the United States adopted a 
"clear and compelling" evidentiary standard; 173 this was also the verbiage used 
to describe the evidence presented to the North Atlantic Council. 174 Applica- 
tion of such a standard, or an analogous one, meets the dual requirements of 
practicality and rigor — practicality in the sense that an evidentiary burden 
should not render a state paralyzed as it seeks the requisite quality of evidence, 
but rigor in that the burden should be heavy enough to preclude states from 
reacting precipitously to terrorist attacks. Ultimately, an adequacy assessment 
will rest on the international community's determination of whether a reason- 
able international actor would have acted in self-defense on the basis of the 
evidence in question. All such assessments are inherently subjective and 
contextual. 

Once a state possesses the requisite evidence must it disclose it? Professor 
Jonathan Charney argues that it must. 

To limit the use of force in international relations, which is the primary goal of 
the United Nations Charter, there must be checks on its use in self-defense. 
Disclosure to the international community of the basis for such action would 
help to serve this purpose. The alleged credibility of conclusory statements by a 
state's leadership should not be a sufficient basis for actions in self-defense since 
it would encourage abuse. When attacks on a state are so grave as to justify 
actions in self-defense, the supporting evidence would normally be readily 
available. Disclosure of that evidence should be required even if the state would 
wish to claim that classified information would be disclosed. The use of force in 
self-defense is limited to situations where the state is truly required to defend 
itself from serious attack. In such situations, the state must carry the burden of 
presenting evidence to support its actions, normally before these irreversible 
and irreparable measures are taken. 175 



172. Id. at 25, citing Christopher Greenwood, International Law and the United States' Air 
Operation Against Libya, 89 W. VA. L. REV. 933, 935 (1987) ["sufficiently convincing"]; Jules 
Lobel, The Use of Force to respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 
YALE J. INT'L L. 537, 538 (1999) [clear and stringent evidentiary standard]; LOUIS HENKIN, 
HOW NATIONS BEHAVE (2d ed. 1979) [the attack must be "clear, unambiguous, subject to 
proof, and not easily open to misinterpretation or fabrication"]. 

173. US Letter, supra note 22. 

174. Robertson statement, supra note 34. 

175. Jonathan I. Charney, Editorial Comments: The Use of Force Against Terrorism and 
International Law 95 AM. J. INT'L. L. 835, 836 (2001). 

71 



Counter-Terrorism and the Use of Force in International Law 

This is a noble proposal, but unfortunately an impractical one. In the vast 
majority of cases, the information necessary to establish the material facts will 
be extraordinarily sensitive. Releasing it may endanger the lives of human 
sources, jeopardize on-going intelligence operations of use in targeting the ter- 
rorists or foiling future attacks, surrender the element of surprise, and reveal 
critical information regarding the extent to which the battlefield, and the en- 
emy's command and control, is transparent to the state engaged in self- 
defense operations. An absolute disclosure standard is not one the interna- 
tional community will ever adopt in the case of self-defense against terrorism. 

A more reasonable standard would require disclosure to the extent practi- 
cable in the circumstances. Professor Charney's concern about abuse of the 
right to self-defense is well founded; however, that concern must be balanced 
against the need to be able to conduct self-defense, and otherwise safeguard 
oneself from terrorists, effectively. Moreover, the situation is not always a 
strict disclosure/no disclosure conundrum. For instance, it may serve both 
purposes to disclose the necessary information in closed session, as was done 
when the United States briefed its NATO allies. The subsequent support of 
states that have received such briefings serves as a safeguard against abuse, al- 
beit a less than perfect one. Additionally, it may be possible to disclose infor- 
mation after the fact, as was done by the United States in 1997 regarding 
Operation EL DORADO CANYON. 176 Doing so will allow states to build a track 
record of credibility in their claims, a particularly valuable safe-guard in those 
cases where immediate disclosure is impossible. 

Conclusion 

It has been asked whether the attacks of September 1 1th ushered in a dra- 
matically new era in international law. This article has suggested that in most 
respects the law on the use of force has proven adequate vis-a-vis interna- 
tional terrorism. Where it has not, the emerging normative expectations rep- 
resent less a new era than the logical and constant evolution of the existing 
legal system in the face of changing global realities. That evolution has re- 
sulted in some degree of softening in the community understanding o( when 
self-defense is appropriate. 

Such a softening is appropriate in the face of the new threat environment. 
Terrorism today represents a particularly pernicious prospect. Unfortunately, 



176. See Bill Gertz, U.S. Intercepts from Libya Play Role in Berlin Bomb Trial, WASH. TIMES, Nov. 
19, 1997, at A13. The United States provided intercepted communications gathered by the 
National Security Agency. 

72 



Michael Schmitt 



the attacks that occurred in September 2001 may represent only the tip of the 
iceberg. Thousands of individuals trained under bin Laden are at large world- 
wide. 177 More ominously, the threat of terrorism using weapons of mass de- 
struction looms ever larger. The normative system developed for state-on- 
state conflict, in which the risk of super power confrontation was always pres- 
ent, is predictably shifting to remain responsive to community values in the 
face of the changing threat. 

Consider the apparent relaxation in the requirements for attribution of an 
armed attack. Although it may make striking at a state in self-defense more 
acceptable, thereby heightening the likelihood of state-on-state conflict, it 
may have just the opposite effect by serving as an effective deterrent to state 
sponsorship without risking the higher order conflict that was the danger dur- 
ing the Cold War. Similarly, characterizing terrorist attacks as part of a cam- 
paign rather than a series of individual actions actually gives the state acting 
in self-defense an opportunity to seek resolution of the situation without being 
compelled to immediately resort to force lest the imminency pass. This per- 
mits greater community involvement in the decision-process and greater op- 
portunity to gather and assess evidence. 

The final normative verdict on the US and coalition attacks against 
al Qaeda and the Taliban is uncertain. The attacks against al Qaeda appear 
novel, but consistent with the community expectations existing on Septem- 
ber 10th. By contrast, the attacks against the Taliban represent a less than 
crystalline glimpse of the direction in which the international law regarding 
responses to terrorism may be heading. But given the existing security land- 
scape, the vector appears positive. 



177. According to the Egyptian Minister of Interior, "as many as 80,000 people may have been 
trained in Afghanistan under bin Laden." 1 THE TERRORIST THREAT (no. 2), Apr. 2002, at 2. 

73 



Jus ad Bellutn and 
International Terrorism 



Rein Mullerson 1 

Legal Regulation of the Use of Force: The Failure of Normative Positivism 



he central tenet in international law is the legal regulation of the use of 
force. The nature, content and effectiveness of this area oi interna- 
tional law mirrors, much more clearly than any other branch, the very charac- 
ter of international law. In order to grasp the essence of the current debate in 
this area of international law it is helpful to have a brief review of the evolution 
of the proscription on the use of force. 

Thucydides' History of the Peloponnesian War demonstrates a complete ab- 
sence of any legal (or even legal-moral-religious) restriction on the recourse to 
war. As Thucydides writes, "the Athenians and the Peloponnesians began the 
war after the thirty-year truce" since "Sparta was forced into it because of her 
apprehensions over the growing power of Athens." 2 This sounds somewhat fa- 
miliar and contemporary as there was a violation of the balance of power that 
caused Sparta to ally with smaller Greek city-states — forming the 
Peloponnesian League to counter militarily the Delian League headed by 



1 . Professor of International Law, King's College, London; Institut de droit International, Membre. 

2. THUCYDIDES, THE PELOPONNESIAN WAR 11-12 (W. W. Norton & Company, 1998). 



Jus ad Bellum and International Terrorism 



Athens. But differently from today's or even from yesterday's world, Greek 
city-states did not need to justify their recourse to arms. Athenians believed it 
to be "an eternal law that the strong can rule the weak" as "justice never kept 
anyone who was handed the chance to get something by force from getting 
more." 3 Their ambassadors explained to the Melians that "those who have 
power use it, while the weak make compromises. . . . Given what we believe 
about the gods and know about men, we think that both are always forced to 
dominate everyone they can. We didn't lay down this law, it was there — and 
we weren't first to make use of it." 4 "[E]ach of us must exercise what power he 
really thinks he can." 5 

Starting from Saint Augustine, through Saint Thomas Aquinas and other 
Christian theologians, various concepts of just wars developed. War had to be 
declared and waged by proper authorities, had to have just cause and just inten- 
tion. What causes were just was, of course, open to debate. During this period, 
natural law doctrines in international relations dominated and were indistin- 
guishable from religious and moral reasoning. This period continued beyond the 
times of Hugo Grotius. Legal limits on the use of force came from the interpreta- 
tion of religious texts or Roman private law and not from what states or other 
political entities actually did. If international law at all governed (i.e., limited or 
justified) the use of armed force it was because its arguments were drawn from 
and supported by religious texts and their interpretation. 

Christianity was not the only religion that had something to say about the 
use of force, as interpreters of the Old Testament and the Koran, similarly, 
tried to distinguish between just and unjust causes of resorting to arms. There 
are some striking similarities, though no doubt there are significant differences 
too, between the main monotheistic religions in that respect. For example, the 
Spanish Dominican professor, Franciscus Victoria, explained that, as the Indi- 
ans in America, though not Christians, were nevertheless humans and there- 
fore endowed with reason, it was not possible to use force against them 
without just cause and "difference in religion is not a cause of just war." 6 At 
the same time, "the Indians had violated the fundamental right of the Span- 
iards to travel freely among them, to carry on trade and to propagate Chris- 
tianity." 7 Hence, though force could not be used to proselytise, it could be 



3. Id. at 30. 

4. Id. at 229. 

5. Id. at 227. 

6. YORAM DlNSTEIN, WAR, 
[hereinafter DINSTEIN]. 

7. Id. at 61. 



AGGRESSION AND SELF- DEFENSE 61-62 (3rd ed. 2001) 



76 



Rein Mutter son 



used when proselytes refused to be proselytised. In 1948, Sheikh Shaltut of Ah 
Azhar University in Cairo justified the Muslim conquests of Byzantine and 
Persia on the grounds of the response by the Byzantines and Persians to com- 
munications calling them to convert to Islam. He wrote that "Moslems only 
attacked people when they showed a spirit of hostility, opposition and resis- 
tance against the mission and a contempt for it." 8 As Ann Elisabeth Mayer 
comments, "here religious reasons, resistance to converting to Islam and con- 
tempt for Islamic missionaries, apparently justify recourse to military force — at 
least where the states attacked are perceived to be a danger to Muslims or the 
spread of Islam." 9 Here too, only those who refused to adhere to the true faith 
were killed and their lands conquered. 

After Emerich de Vattel, positivism gradually started to prevail in interna- 
tional law and the differentiation between just and unjust wars based on reli- 
gious laws or the laws of nature (the human nature or the nature of the state) 
lost its meaning. Although this was not a return to the naked power politics of 
Ancient Greece it was only thinly veiled power politics where any offense, real 
or perceived, may have been good enough to justify the use of military force. 
In such a situation the Caroline incident and the subsequent exchange of let- 
ters between US Secretary of State Daniel Webster and the British Minister to 
Washington was more an aberration than a pattern of behavior. 10 As will be 
discussed below, the Caroline formula holds interest for explaining some of to- 
day's conflicts but in the middle of the 19th century, it was at best opinio juris 
of two states that was not confirmed by any practice. Recall that in 1914 dur- 
ing the Vera Cruz incident, triggered by the arrest by Mexican authorities of 
several crewmembers from the USS Dolphin, the United States used military 
force against Mexico when Mexican authorities refused to honor the US flag 
with a 21 gun salute as an official apology. 11 Similarly, Great Britain and Ger- 
many used gunboats to force Venezuela to pay its debts to nationals of these 
states. 12 

Positivism, that is the resort to the use of force without limits resulted in a 
system where any offense against a state or its honor could be responded to 



8. Sheik Shaltut, Al-Azhar University Cairo, Egypt, quoted in ANN ELISABETH MAYER, WAR 
AND PEACE IN THE ISLAMIC TRADITION AND INTERNATIONAL LAW, IN JUST WAR AND 
JIHAD. HISTORICAL AND THEORETICAL PERSPECTIVES ON WAR AND PEACE IN WESTERN 
AND ISLAMIC TRADITION 204 0- Kelsay and J. T. Johnson eds., 1991). 

9. Id. at 205. 

10. See R. Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L. 82 (1938). 

11. I an brownlie, International Law and the Use of force by States, 36-37 (1963) 

[hereinafter BROWNLIE]. 

12. Id. at 35. 

77 



Jus ad Bellum and International Terrorism 



with force. At the beginning of the 20th century, this positivism, became di- 
luted by normativism. International law regulating the use of force evolved 
not to what states did to each other but what they had agreed they should or 
should not do (normative positivism). Using customary law terminology, it 
was not so much state practice as their opinio juris that mattered. Here, the 
term opinio juris is used in a wider sense and it includes authoritative state- 
ments by states as to what international law is, including those laws enshrined 
in international treaties. 13 

This has been a controversial development. It may be said that there has al- 
ways been an immense gap between words and deeds, but words as well as the 
notions and ideas expressed in those words, when repeated long enough and 
desired by many, often change reality. Though this gap may be still immense, 
the world's views on the use of force is not what it was hundreds of years ago. 
A learned few may change laws, while laws may also change the views of many 
and even force those whose views remain unchanged to act within the law. 
Here the relationship between law and behavior is a kind of chicken-and-egg 
question as it is impossible to say whether European neighbors (e.g., the 
United Kingdom, Germany and France) who warred against each other for 
ages do not do it now because they finally concluded that they needed effec- 
tive norms and institutions to protect their citizens from the scourges oi war. 
Alternatively, it may well be that Europe remains at peace because of these 
very norms and institutions. Obviously, the change in viewpoint and the cre- 
ation of norms and institutions occurred simultaneously. 

Europe is not the only, though the most prominent place (having also been 
one of the bloodiest and having become the most peaceful), where such 
changes have taken place. The American continent also has moved in the 
same direction. 

Beginning in the 20th century, the development of the League of Nations 
Covenant, the Kellogg- Briand Pact of 1928, the UN Charter and other impor- 
tant international treaties, worked to severely restrict use of military force in 
relations between states. Unfortunately, this normative system has been vio- 
lated so many times, often with impunity, that it is hardly possible to call it an 
effective (even relatively effective) legal regime. This system does, however, 
reflect the world's desire to avoid the repetition of the two world wars that 
brought untold sorrow to Europe and mankind. This system now shapes the 
mentality of many people and therefore conditions their attitude towards the 
use of force amongst states. 

13. Whether a treaty that is formally in force but that is not implemented in practice is law or not 
is another issue. The same question may be asked about opinio juris not confirmed by practice. 



78 



Rein Miillerson 



The current UN Charter paradigm concerning the use of force can be 
called normative positivism since it is based on the consent of states and not 
upon what states (or at least most of them) do in practice. It is normative since 
it is not premised on the actual practice of states. It is positivist since it does 
not make distinctions between just, unjust, more justified, and less justified 
causes for the use of force. 

The Charter paradigm sees the use of force between states as an almost ab- 
solute evil (after the two world wars it is understandable) without distinguish- 
ing between causes for the resort to force. This paradigm, as understood by the 
founding fathers of the UN, did not provide for the use of force at all except in 
response to the illegal use of force (even the collective security paradigm was 
meant to provide for the possible pre-emptive use of force in collective self- 
defense). As the UN Charter was drafted, humanitarian crises or even civil 
wars were not considered to constitute threats to international peace and se- 
curity, the magical talisman for Security Council approval. The Cold War pe- 
riod supported formal normative positivism as what was just for the West (e.g., 
containment of the Soviet expansion) was most unjust from the point of view 
of the Soviet Union and its satellites. Similarly, what was just in the eyes of the 
Soviet leaders (e.g., advancement of socialism throughout the world) was the 
thing most feared by the West. Accordingly, in this bipolar world order, inter- 
national law on the use of force had to be based on the formal norms that the 
two antagonistic groups were able to agree upon. That it was difficult, if not 
impossible, for these competing titans to agree on the proper invocation of the 
use of force, except in self-defense, is not surprising. 

Clearly, the world has now changed, though no change is ever absolute. 
There are still, and there will remain in the foreseeable future, states with 
competing interests. Additionally, religion may perhaps have replaced ideol- 
ogy as one of the main sources of confrontation, but is not religion one of the 
forms of ideology? 

With respect to the use of force amongst states, a significant transition has 
occurred towards morality or ethics and away from strict positivistic formal- 
ism. Recent uses of force not sanctioned by the UN Security Council have 
been justified by references to morality. For example, references to "humani- 
tarian intervention" have been used to legitimate if not legalize certain uses of 
force. None other than Kofi Annan, Secretary-General of the United Nations 
and the chief custodian of its Charter, speaking in Stockholm on the Kosovo 
Intervention, stated that "there is emerging international law that countries 
cannot hide behind sovereignty and abuse people without expecting the rest 



79 



Jus ad Bellum and International Terrorism 



of the world to do something about it." 14 Although the current legal regime 
may still be a far cry from the doctrine of just war, neither can it be claimed to 
be one of "formal positivism" on which the UN Charter was premised. The Se- 
curity Council itself has expanded the concept of threats to international 
peace and security, legitimizing use of force that would not have been justified 
in the eyes of the drafters of the UN Charter. Just war considerations have led 
to this flexing of the Charter paradigm and are now even reflected in the new 
National Security Strategy of the United States. In that document, President 
George W. Bush stated that "the reasons for our [preemptive] actions will be 
clear, the force measured and the cause just" (emphasis added). 15 

Changes in the World's Political Configuration and Jus ad Bellum. 
Jus ad Bellum in Treaties and Practice 

In 1963, British scholar Ian Brownlie published an excellent monograph still 
considered today as perhaps the best study of the history of the legal regulation 
of the use of force — International Law and the Use of Force by States. 16 Almost 
forty years later, a highly decorated and respected Professor Brownlie (CBE, 
QC, Member of the International Law Commission), emphasizing the continu- 
ing relevance of the ideas and conclusions developed in this book, observed: 
"whilst there have been obvious changes in the political configuration of the 
world, especially in the 1990s, these changes have not had any particular effect 
on the law." 17 What does this mean? Is it true? If it is true, what are the implica- 
tions of the gap between the "obvious changes in the political configuration of 
the world" and the absence of any particular effect of these changes on interna- 
tional law? Does this not mean that the world and the law exist as if in parallel 
universes without impacting one another at all? 



14. Tim Burton & Robert Anderson, UN Warns Yugoslavia Over Human Rights, FINANCIAL 
TIMES, May 26, 1999, at 2. 

15. The National Security Strategy of the United States of America 16 (Sep. 17, 2002) available 
at http://www.whitehouse.gov/nsc/nss.html (Nov. 26, 2002). 

16. See generally BROWNLIE, supra note 11. 

17. Ian Brownlie, A Europaeum Lecture on International Law and the Use of Force by States at 
HEI, Geneva (Feb. 1, 2001) [hereinafter Brownlie Lecture]. 

80 



Rein Miillerson 



Law, as one of the main stabilizing factors in society, is indeed a relatively 
conservative phenomenon 18 and changes in all legal systems typically lag be- 
hind transformations in "real" life. This phenomenon, a reflection of both the 
positive and negative sides of conservatism generally, is not of course wholly 
negative. Law not only cannot, but must not, vacillate in synchronicity with 
every change in society, reacting immediately to all political turmoil and social 
upheavals. In such an environment, law could not fulfill its stabilizing func- 
tions. At the same time, when economic, social or political transformations re- 
flect longer-term trends that are substantial and lead to changes in political 
configuration of society, the conservative nature of the law's change may cre- 
ate serious problems for both law and society. 

International law has relatively recently (during the last quarter of the pre- 
vious century) overcome some radical and rapid changes. However, it is true 
that such changes have mainly occurred not at the core of international law 
but instead in some, albeit important, but quite specific areas of international 
law. For example, the development of international space law occurred so 
quickly that it led to the emergence of the concept of "instant custom." 19 The 
law of the sea that had slowly developed over the centuries was codified in 
1958 but so many of its basic norms were outdated even before the four 
Geneva Conventions entered into force that the 1982 Law of the Sea Con- 
vention was adopted to codify new developments. Equally, international envi- 
ronmental law has emerged and rapidly developed within only a few decades. 20 

Despite this seemingly rapid evolution of international law in these three 
areas though, the treaties concerning the use of force have undergone little, if 
any, change since the adoption of the UN Charter in 1945. Even General 



18. Of course, law may be used not only for the stabilization of existing relations and situations 
or for the enhancement of tendencies that are already discernible. Law can perform creative 
functions as well. Through treaty making or decisions of international bodies, international law 
may help to create new relations and situations. However, even in such cases (or maybe 
especially in such cases), international law also tends to freeze (crystallize, to use the widely 
accepted, but incorrect in my opinion, term to describe the process of custom formation) 
relations that are created with the assistance of such legal mechanisms. 

19. BIN CHENG, "United Nations Resolutions on Outer Space: 'Instant' International 
Customary Law," INTERNATIONAL LAW: TEACHING AND PRACTICE 273 (Bin Cheng ed., 
1982). 

20. See, e.g., Convention on International Trade in Endangered Species of Wild Fauna and 
Flora, (Mar. 3, 1973), 27 U.S.T. 1087; Convention for the Protection of the Marine 
Environment of the North-East Atlantic, Sept. 22, 1992, art. 23, reprinted in 3 Y.B. INT'L ENVTL. 
L. 759, (1992); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution 
concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary 
Fluxes, art. 3, para. 3, 31 I.L.M. 573, (1992). 

81 



Jus ad Bellum and International Terrorism 



Assembly resolutions on international law have not contained anything that 
could be remotely defined as "progressive development of international law." 21 
Why? Why have treaties on the use of force been so conservative while in 
other areas they have demonstrated, responding to societal change (including 
international society), considerable ability for change? Perhaps the law on the 
use of force has changed but some experts and even states have not yet 
noticed? 

The aforementioned branches of international law (space law, the law of 
the sea, environmental law) have undergone significant changes following, or 
in parallel with, equally manifest transformations in these respective areas of 
human activity. In the legal regime regulating the use of force, so central to in- 
ternational law that novelties in it may affect the very foundations of the over- 
all legal system, significant changes have occurred only after the most terrible 
conflicts that shocked the conscience of humankind. In such cases, changes in 
the geo-political environment, in international law generally and in jus ad 
bellum in particular have not only coincided in time and space, but have all 
been caused by the same set of factors, simply reflecting different facets of the 
same process. 

For example, the absence, existence, content or enforceability of rules con- 
cerning preservation of living resources in the Northern Atlantic are impor- 
tant political and economic issues for many countries. However, whether 
these issues are resolved in one way or other will not alter the structure or ba- 
sic characteristics of international society or international law. At the same 
time, this is not the case depending upon how the following question is an- 
swered: Is the UN Security Council the only organization that can decide how 
and when to use force (not involving self-defense) or can states, for example, 
reclaim unpaid debts by using gunboat diplomacy? Radical changes in jus ad 
bellum reflect serious transformations taking (or that have taken) place in the 
very structure and characteristics of international society. Such transforma- 
tions create shock waves necessary for overcoming states' inertia and the tra- 
ditional conservatism found in legal regimes. 



21. For example, the 1987 Declaration on the Enhancement of the Effectiveness of the Principle 
of Refraining from the Threat or Use of Force in International Relations swearing allegiance to 
the UN Charter and confirming what had been already said in many previous UN resolutions, did 
not touch upon any controversial issue. See generally G.A. Res. 42/22, U.N. GAOR, 42d Sess., 
U.N. Doc. A/Res/42/22 (1987). See also TREVES, La Declaration des Nations Unies sur le 
renforcement de I'efficacite du principe du non-recours a la force 33 AFDI (1987) ; CHRISTINE GRAY, 
INTERNATIONAL LAW AND THE USE OF FORCE 5 (2000). 



82 



Rein Mutter son 



The Thirty Years War and its subsequent peace led to the emergence of the 
Westphalian international system. This system has served as the basis for the 
development of the modern international system as well as the development 
of international law, to include its fundamental principles such as sovereign 
equality of states and non-intervention in the internal affairs of such states. 
World War I provided the impetus for considerable innovations in interna- 
tional legal treaties generally and in the use of force in particular. The "cool- 
ing-off ' periods provided for in the Statute of the League of Nations and the 
1928 Briand-Kellogg Pact outlawing wars of aggression have been significant 
landmarks in the development of legal texts on the use of force in interna- 
tional relations. 22 Moreover, after the horror and tragedy caused by World 
War II, significant changes occurred in both jus ad bellum (the UN Charter) 
and jus in bello (the 1949 Geneva Conventions). It is reasonable then, to con- 
clude that only multi-state wars and the shocks felt in their aftermath are able 
to change international law on the use of force. Changes in jus ad bellum have 
always been accompanied by changes in the geo-political configuration of the 
world; or rather have been caused by the latter (e.g., the rise of nation-states 
instead of feudal multi-layered authority in Europe; the effect of the two world 
wars; the emergence and subsequent collapse of the Cold War bipolar world). 
If bilateral wars have usually ended with bilateral treaties on "eternal peace 
and friendship," multi-state wars have ended with attempts to create general 
norms that purport to regulate, limit or even completely prohibit the use of 
force between states. 

Geo-political restructuring does not seem, by itself to cause changes to the 
law regulating the use of force. These changes must also be accompanied by 
significant events operating to shock the conscience of the world, causing 
states to come together to ensure such events do not happen again. Such con- 
ferences took place after the Thirty Years War, the Napoleonic Wars, WW I 
and WW II. However, even after WW II, the consensus on the prohibition to 
use force was only temporary, conditional on unrealistic expectations (unreal- 
istic understood only with hindsight) that the Chapter VII collective security 
mechanism would work. Unfortunately, bilateral treaties espousing "eternal 
friendship" as well as the general limitations on the use o{ force have been 
honored more in the breach than in the observance. Things are not com- 
pletely hopeless and at least in one region, Western Europe, where both 



22. See League of Nations, arts. 10-13; General Treaty Providing for the Renunciation of War as 
an Instrument of National Policy, art. 1 (Aug. 27, 1928), 46 Stat. 2343, 94 L.N.T.S. 57. 



83 



Jus ad helium and International Terrorism 



World Wars started as well as where many earlier bloody conflicts occurred, 
the consensus to ban the aggressive use of force has been quite genuine and 
the Europeans have made it work, at least in their mutual relations. 23 

Since the end of the 1980s the geo-political structure has undergone dra- 
matic changes but this has happened without any single shocking event that 
would have implicated the vital interests of the most powerful states to the ex- 
tent, or in the manner, of the two World Wars of the last century. Rather, 
changes have been more gradual, and some of the most significant ones have 
not been bloody. Neither the genocide in Rwanda, nor the crimes against hu- 
manity committed in the former Yugoslavia, nor even the September 1 1th ter- 
rorist attacks (though the last directly affecting by far the most powerful state 
in the world), have forced the states to sit down and draft new rules corre- 
sponding to a changed political environment requiring new legal responses for 
such new threats. These developments have not impacted the evolution of in- 
ternational law treaties concerned , with the core of international law it- 
self — jus ad bellum, as the two World Wars did. However, due to the 
character of the main victim-state and the particularly tragic nature of the at- 
tacks witnessed by millions on television screens on 9/11, terrorists may well 
become victims of their own "spectacular success" for these events may have 
shocked the world enough to open the way to radical reappraisal through cus- 
tomary process of some basic principles of the jus ad bellum. 

Consequently, a new geo-political environment now exists. New threats 
exist that can be effectively dealt with only by using, inter alia, military force 
in circumstances not foreseen in 1945 and therefore not provided for (at least 
explicitly) in the UN Charter. However, states have not been, and will hardly 
be, able to draft new rules corresponding to the new geo-political environment 
and allowing for an adequate response to these new threats. No consensus ex- 
ists on responses to new global threats such as civil wars, humanitarian emer- 
gencies, international terrorism and the proliferation of weapons of mass 
destruction (including into the hands of terrorists) . Achieving consensus on 



23. The European experience, as well as various examples from other parts of the world, shows 
that there is no such thing as inherently peaceful nations or regions (or vice versa, inherently 
bellicose ones). Smaller and weaker nations have historically been more peaceful only due to 
their inability to successfully carry out more aggressive foreign policy. As the European 
experience testifies, institutions and rules that become a part of political culture are necessary to 
make peace durable. Peaceful relations between nations, like human rights in society, are not 
natural or inherent. Rather, war and human wrongs are natural. For nations and peoples to enjoy 
peace and human rights it is necessary to fight and constantly work for them as they are the rather 
fragile results of the long and difficult development and acculturation of humankind. 



84 



Rein Miillerson 



these issues is dependent, inter alia, on the co-existence in the contemporary 
world, of three different categories of states and societies — pre-modern, mod- 
ern and postmodern — each with different characteristics, values, interests 
and perceptions of security threats. Of course, societies and states with differ- 
ent levels of societal development have co-existed in the world before but 
never before have they co-existed in the world that is so interdependent and 
shrinking. 

Accounting for the fact that the treaties attempting to regulate the use of 
force which were adopted after WW I and WW II, created unrealistic expec- 
tations and noting the absence of consensus on important new issues concern- 
ing the use of force, the difficulty of drafting new rules of jus ad bellum may, 
however, not be so dramatic. The customary process may be not only more 
natural and flexible, but in today's circumstances, more rapid at consolidating 
emerging trends into law. Such a process, inevitably, has its shortcomings 
though. 

Brownlie observes that the main reason for a huge gap between the dynam- 
ics of political change and the consistency in law lies in the fact that "individ- 
ual States continue to have a fairly conservative view of the law." And he is 
critical o{ those academics, who think that that the law has changed, and es- 
pecially of those who, for instance, "believe that there is a right to use force for 
humanitarian purposes." 24 

However, even if many states are conservative or inertial, given an absence 
of political will to draft new rules on the use oi force and intervention, it does 
not necessarily follow that law too is as inertial as are these states. Recent 
practice in customary international law and its effect on jus ad bellum proves 
this point. 

To an extent, this has been a kind of partial effect: a part of international 
law on the use of force, that was understood by most states and by most com- 
mentators, has ceased to exist as a reliable normative guide (if it had ever ex- 
isted as a reliable guide). 25 Moreover, new norms that would have enjoyed 
general consensus have not (yet?) emerged, though there are new trends en- 
joying at least relative consensus. 



24. See Brownlie Lecture, supra note 17. 

25. A different, though related, question: to what extent did the Charter paradigm on the use of 
force correspond to the reality existing during the Cold War? During the Cold War, the Charter 
paradigm on the use of force competed (usually not very successfully) with rules of the game 
expressed, for example, in the Brezhnev, Johnson or Reagan doctrines, with concepts of wars of 
national liberation, as well as with various ad hoc practices that did not find legitimization in any 
laws or doctrines. 



85 



Jus ad Bellum and International Terrorism 



Therefore, I agree with Ian Brownlie, but only to an extent. Legal treaties 
and even some states' practice have not undergone any changes since the es- 
tablishment of the UN Charter. However, the position on, and the practice of, 
the jus ad bellum by other states as well as actions undertaken by the Security 
Council in recent years, is in many ways quite different from the Charter para- 
digm of the legal regulation of the use of force. 

What are these "obvious changes in the political configuration of the 
world," that, from Professor Brownlie's point of view, have had no effect on 
the law, but that in my opinion have had at least a partial effect and should 
have a complete effect on the jus ad bellum? 

Most obvious is the conclusion of the Cold War. Initially, the end of the 
Cold War raised the expectation that the UN Charter, and especially its 
Chapter VII, would start working as planned when originally drafted. The 
Gulf War of 1990-91 provided support for this expectation. However, though 
the Security Council became considerably more active in the 1990s, the 
Chapter VII paradigm did not become reality. Instead, a new interpretation 
o{ "threats to international peace and security" and delegation of Security 
Council powers to individual states and regional organizations became wide- 
spread. 26 The Council also started to ex post facto legitimize cases of the use 
of force by individual states or groups of states 27 and the latter started to use 
Security Council's findings to carry out acts that, though arguably necessary 
for the implementation of the relevant resolutions of the Security Council, 
were nevertheless neither expressly nor implicitly authorized by the Security 
Council. 28 



26. Danesh Sarooshi, United Nations and the Development of Collective 

SECURITY (1999); Christine Gray, From Unity to Polarization: International Law and the Use of 
Force against Iraq, 13 EUR. J. INT'L L. 1-19 (2002), available at http://wv'w.ejil.org/journal/Voll3/ 
Nol/artl-03.html (Nov. 26, 2002). 

27. See, e.g., Security Council Resolution 866 stating that the UN peace keeping mission in 
Liberia is the "first peace-keeping mission undertaken by the United Nations in cooperation with 
a peace-keeping mission already set up by another organization." S. C. Res. 866, U.N. SCOR, 
48th Sess., U.N. Doc. S/866/(1993). See also S. C. Res. 1181, U.N. SCOR, 53d Sess., U.N. Doc. 
S/l 18 1/(1998) (authorizing the same thing in Sierra Leone). 

28. For example, neither Operation PROVIDE COMFORT — the humanitarian aid mission in 
northern Iraq nor Operation ALLIED FORCE — the NATO led campaign for humanitarian 
intervention against the former Yugoslavia were undertaken pursuant to authorization although 
the Security Council had certainly expressed its concerns with situations in these areas. See, e.g., 
S. C. Res. 1203, U.N. SCOR, 53d Sess., U.N. Doc. S/1203/(1998) and S. C. Res. 688, U.N. 
SCOR, 46th Sess., U.N. Doc. S/688/(1991). 



86 



Rein Miillerson 



Secondly, the Cold War had frozen or at least limited the development of 
certain trends beginning before the two World Wars. Among these trends are 
the trends of globalization and its nemesis — fragmentation, both of which have a 
considerable impact on the issue of the use of force. Fragmentation often mani- 
fests itself in wars of secession, conflicts between different religious or ethnic 
groups. Globalization (which ironically leads also to the globalization of fragmen- 
tation itself), internationalizes such conflicts and other developments and pro- 
cesses, which in different circumstances may have had only a local or regional 
effect. Today, "internal" wars are neither politically nor even legally speaking 
internal affairs of the state in which they occur. Also, such internal wars often 
extend to neighboring states. This internationalizes the conflict. 

The legal regime regulating the use of force is only one, though perhaps the 
most controversial, of the areas covered by international law demonstrating 
that traditional distinctions between domestic and international affairs are, if 
not disappearing, then at least becoming more confused. Strictly interstate jus 
ad bellum does not relate well to a changed international system where non- 
state, sub-state and super-state actors play important roles. Mary Kaldor is 
right that "the new wars involve transnational networks, which include both 
state and non-state actors — mercenary groups, warlords, as well as parts of 
state apparatus." 29 Based on this, Richard Falk is also correct that: 

at this stage it is unreasonable to expect the US government to rely on the UN 
to fulfil its defensive needs. The UN lacks the capability, authority and will to 
respond to the kind of threat to global security posed by this new form of 
terrorist world war. The UN was established to deal with wars among states, 
while a transnational actor that cannot be definitively linked to a state is behind 
the attacks on the United States. Al Qaeda's relationship to the Taliban in 
Afghanistan is contingent, with al Qaeda being more the sponsor of the state 
than the other way around. 30 

This is one of the reasons why Eric Myjer and Nigel White are worried that "the 
response to the Twin Towers attack may contribute to a development of inter- 
national law, which would place self-defense outside the context and thereby 
outside the limit of the Charter of the United Nations." 31 This potential danger 
becomes real if the Charter norms are interpreted out of the current context. 

29. MARY KALDOR, The Power of Terror [hereinafter The Power of Terror] , RE-ORDERING THE 
WORLD— THE LONG TERM IMPLICATIONS OF SEPTEMBER 1 1TH (Mark Leonard ed. 2002) 
21-22 [hereinafter RE-ORDERING THE WORLD]. 

30. Richard Falk, Defining a Just War, THE NATION, October 29, 2001 at 11. 

31. Eric Myjer & Nigel White, The Twin Towers Attack: An Unlimited Right to Self-Defence, 7 J. 
CONFLICT AND SEC. 1 at 17 (2002) [hereinafter Myjer & White]. 

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Jus ad Bellum and International Terrorism 



The end of the Cold War ended the Soviet-NATO confrontation and ex- 
tended democracy and civil liberties to Eastern and Central Europe. It also 
lifted the lid on the multitude of suppressed hatreds and simmering conflicts. 
As Bernard Lewis observes: 

The ending of the Cold War, and the collapse of the bi-polar discipline which 
the two superpowers, sometimes acting in competition, sometimes in accord, 
had managed to impose, confronted the people of the Middle East, like those o( 
other regions liberated from superpower control or interference, with an awful 
choice. They could move, however slowly and reluctantly, to settle their 
disputes and live peacefully side by side, as happened in some parts of the world; 
or they could give free rein to their conflicts and hatreds, and fall into 
descending spiral of strife, bloodshed and torment, as happened in others. 32 

Today, both scenarios are being realized in different parts of the world. In some 
parts of the world proliferation of weapons of mass destruction, terrorist at- 
tacks, humanitarian crises, inter-ethnic and inter-religious conflicts have all in- 
creased manifold after the end of the Cold War and these developments, 
unavoidably, affect how and whether military force is used in various regions. 
Bassam Tibi is right that: 

with the restraining power of bipolarity no longer maintaining a global order o( 
checks and balances, the aspirations of ethnicities and religio-political 
ideologies that had lain low during the Cold War now boiled to the surface. It 
was only after the Cold War that the factors underlying these conflicts came to 
be perceived. Previously, ethnicity, religion, and culture were considered to be 
the terrain of anthropologists, and of little interest of international politics. 33 

These factors were of even less interest for international law than for interna- 
tional politics. However, without taking these factors into account, interna- 
tional lawyers may indeed conclude today that international law is essentially 
the same as it was in 1945 notwithstanding that it is a very different world. 

Morover, with the end of the Cold War, the polarity of the world changed. 
Instead of being distinctively bipolar, the world is now unipolar, especially in 



32. Bernard Lewis, The Middle East. 2000 Years of History from the Rise of 
Christianity to the Present Day at 371-72 (1995). 

33. Bassam Tibi, The Challenge of Fundamentalism. Political islam and the New 

WORLD DISORDER at 64 (1998) [hereinafter Tibi]. 

88 



Rein Miillerson 



the military field. 34 This means that state practices on the use of force (even if 
not opinio juris) will be determined for the foreseeable future mainly by the 
United States, acting either with its allies or unilaterally. Historically speaking, 
there is a tendency to counterbalance such dominance by one "hyperpower" 
and it would be natural that in the future the geo-political environment will 
change again. No balance, or imbalance for that matter, of power has yet been 
permanent. Nor is such a power arrangement likely to become permanent. 

However, in the foreseeable future it is likely that the world will remain 
militarily unipolar (which does not at all mean that the United States mili- 
tarily can do as it wishes) and US dominance will remain significant in most 
other instruments of power as well. For liberal democratic societies as well as 
for societies aspiring to become such, it would be counterproductive to try to 
counterbalance US dominance in either the political and military-strategic 
domain. 35 At the same time, it might well be necessary to join the United 
States in an effort to influence its policy choices to further enhance its role in 
the world as raw power does not always mix well with sophistication and mod- 
eration. Audrey Cronin of Georgetown University, writing insightfully on 



34. Stephen Brooks and William Wohlforth, on the basis of thorough analysis of various 
indicators, write: "If today's American primacy does not constitute unipolarity, then nothing 
ever will." See Stephen Brooks & William Wohlforth, American Primacy in Perspective, 81 FOR. 
AFFS21 (2002). 

35. Until September 11, 2001 Russia seemed to be trying to create a multi-polar world. The 
Concept of National Security of Russia signed by President Putin in January 2000 stated that 
Russia "will advance the ideology of the creation of a multipolar world." See Decree of the 
President of the Russian Federation, 24 G an - 10, 2000). However, things have changed 
considerably since then. In their Joint Declaration, the United States and Russia, speaking of the 
need to promote stability, sovereignty and territorial integrity in Central Asia and the South 
Caucasus, stated that they "reject the failed model of Great Power rivalry that can only increase 
the potential of conflict in those regions." See Joint Declaration on New US-Russia Relationship 
38 WEEKLY COMP. PRES. DOC. 21, 894-897 (May 24, 2002), available at http:// 
frwebgate.access.gpo.gov/cgi-bin/multidb.cgi (Nov. 27, 2002). Dmitri Trenin writes that "a 
confrontation with NATO is something Russia cannot afford and should never 
attempt. . . . Rather, it is in Russia's supreme national security interest to strive toward full 
demilitarisation of its relations with the West." See DlMITRI TRENIN, THE END OF EURASIA, at 
285 (2002). Trenin concludes that "Russia stands on the boundary between the post-modern 
and modern and even pre-modern world. It must make its choice. The only rational option is to 
fully stress Russia's European identity and engineer its gradual integration into a Greater 
Europe." Id., at 31 1. Though there are various political forces in Russia vying to steer its foreign 
policy in opposite directions, it seems that President Putin has reasonably chosen supporting the 
United States on many strategic issues. In his keynote public address to the Russian Foreign 
Ministry on 12 July 2002, President Putin emphasized that cooperation with the United States is 
the key to Russian political and economic revival. B.B.C. Worldwide Monitoring, Putin Notes 
Importance of Diplomacy in Helping Russian Business (B.B.C. Radio Broadcast, July 12, 2002). 

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Jus ad Bellum and International Terrorism 



terrorism, observes that "the United States is ill-equipped by culture, history 
and bureaucratic structure to respond effectively to this new kind of strategic 
threat" 36 and that "US political and cultural sophistication lag behind its mili- 
tary technological capabilities." 37 

However, Europe can fulfill its potential in the current and future fight 
against terrorism and other threats by becoming militarily stronger and men- 
tally tougher. Robert Kagan may have a point that Europeans "hope to con- 
strain American power without wielding power themselves. In what may be 
the ultimate feat of subtlety and indirection, they want to control the behe- 
moth by appealing to its conscience." 38 Subtlety and sophistication without 
power though are often impotent while single-mindedness without subtlety 
and sophistication often leads to unexpected and unwanted consequences. 
Regardless, today's liberal democracies can hardly afford the luxury of becom- 
ing disunited versus a less centralized but no less serious threat than the one 
that existed during the Cold War. , 

Subtlety and Sophistication or Single-Mindedness? 

The war against terrorism is in many ways different from traditional wars. 
"War" cannot be used, in this context, as a legal term and "war" or rather 
"armed conflicts" are only a part of this wider war on terror to be fought by eco- 
nomic, financial, educational and other means. 39 Audrey Cronin is right that 
"military responses, while disruptive in the short run, tend to drive terrorists 
underground, to encourage innovation, to engender sympathy and, sometimes, 
even build support for the "underdog." The point is not that swift and decisive 
uses of force are irrelevant; far from it. Instead, the argument is that effective 
counter-terrorism policy must be placed in a larger strategic context, in which 
the longer-term consequences are understood and calculated." 40 



36. Audrey Cronin, Rethinking Sovereignty: American Strategy in the Age of Terrorism, 44 
SURVIVAL 2, at 127 (2002) [hereinafter Cronin]. 

37. Id. at 132. 

38. Robert Kagan, Power and Weakness, 113 POL'Y REV. 7 (2002) [hereinafter Kagan]. 

39. Granville Byford makes an important point writing that "wars have typically been fought 
against proper nouns (Germany, say) for good reasons that proper nouns can surrender and 
promise not to do it again. Wars against common nouns (poverty, crime, drugs) have been less 
successful. Such opponents never give up. The war on terrorism, unfortunately, falls into the 
second category." See Graham Byford, The Wrong War, 81 FOR. AFF'S, 34 (2002) [hereinafter 
Byford]. 

40. Cronin, supra note 36, at 127. 



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Rein Miillerson 



The use of force against terrorists in the new geo-political environment 
identifies some questions that before the end of the Cold War and September 
11, 2001 seemed far from the law regulating the use of force. Today, because 
of the radical change of the political and military-strategic context in which 
jus ad bellum functions and the need to extend the application of jus ad 
bellum rules to areas such as humanitarian intervention, intervention in failed 
states or against "rogue" regimes that develop weapons of mass destruction 
(WMD), or self-defense against terrorist attacks by non-state actors, these 
questions are no longer distant from the law governing the use of force. 

Flatland Thinking and the Fight Against Terrorism 

The current debate about terrorism and responses to it reveal a dichotomy 
(sometimes almost an abyss) in thinking and acting between hawks and doves, 
left and right, liberals and conservatives, human rights activists and military (or 
political) leaders, and pacifists and militarists. This is not the natural dichot- 
omy between terrorists, their supporters and civilized society, rejecting terror- 
ism whatever its form. No, this dichotomy, to borrow the simple but effective 
words of President Bush, is "you're either with us or against us" in this war 
against terrorism. 

This division is clearly reflected in the different approaches to combating 
crime, including the crime of terror, and other forms of anti-social behavior. 
Liberals often speak of changing social, economic or political conditions caus- 
ing high crime rates or terrorism while conservatives (often) call for zero toler- 
ance, longer prison terms or wider use of the death penalty. As American 
philosopher Ken Wilber writes: 

liberals tend to believe in exterior causes, whereas conservatives tend to 
believe in interior causes. That is, if an individual is suffering, the typical 
liberal tends to blame external social institutions (if you are poor it is because 
you are oppressed by society) , whereas the typical conservative tends to blame 
internal factors (you are poor because you are lazy). 41 

Real life situations are fluid and dynamic and a pure liberal or conserva- 
tive approach as the only answer for all circumstances is bound to fail. 
Wilber calls both of these approaches "flatland" thinking and acting. "Truly 
integral politics would . . . encourage both interior development and exterior 



41. Ken Wilber, A Theory of Everything: An Integral Vision for Business, 
politics, Science and Spirituality 84 (2001). 

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Jus ad Bellum and International Terrorism 



development — the growth and development of consciousness and subjective 
well-being, as well as the growth and development of economic, social, and 
material well-being." 42 What seems difficult, if sometimes not impossible, is to 
be conservative (or at least admit that those who are conservative may have a 
valid point) when the situation requires tough and resolute actions against 
terrorists and those who support them and to be more liberal in thought and 
deed when studying and addressing contextual issues giving rise to terrorists 
and their supporters (such contextual issues are often invoked as a pretext or 
justification for terrorist acts). 

This dichotomy manifests itself in individual answers to the following ques- 
tions. Whether the national policy should be to pursue vigorously terrorists, 
using all necessary means, dead or alive, or whether to "drain the swamp," i.e., 
to deal with what some call root causes of terrorism (e.g., poverty, social in- 
equality, injustice in various forms or religious fundamentalism and extrem- 
ism)? What are the root-causes of terrorism? How does a government 
guarantee security in a liberal society without sacrificing fundamental human 
rights? Is the US strategy in its war on terrorism correct or inappropriate? 

These are not easy questions and often contain real dilemmas as choosing 
one option may foreclose another. However, this is not always the case as when 
choices must be made the response must not always be dictated by the same set 
of reasons (e.g., either exclusively by humanitarian concerns or exclusively 
by security rationale). When comparing Benjamin Netanyahu's views on 
terrorism 43 to that of some Amnesty International representatives, it is easy to 
feel frustrated by the simplicity and singlemindedness of either position. Those 
who are tough on crime, on terrorism, on "rogue" states may view talk about 
human rights, economic assistance, state building and other similar issues, as at 
best an annoyance, at worst as pouring water on the mill of terror. 44 On the 



42. Id. at 88. 

43. See generally, BENJAMIN NETANYAHU, FIGHTING AGAINST TERRORISM. HOW 
DEMOCRACIES CAN DEFEAT THE INTERNATIONAL TERRORIST NETWORK (2001) [hereinafter 
FIGHTING AGAINST TERRORISM]. 

44. For example, the American Civil Liberties Union has harshly criticized US Attorney 
General John Ashcroft for his testimony where he equated "legitimate political dissent with 
something unpatriotic and un-American." The statement by Laura W. Murphy, Director of 
ACLU Washington Office emphasized that "the Attorney General swore an oath to guard the 
Bill of Rights and the Constitution, including the First Amendment. For him to openly attack as 
"aiding the enemy" those who question government policy is all the more frightening in light of 
his constitutional duty to protect each and every American's right to speak and think their 
mind." (Laura Murphy, Statement on Attorney General John Ashcroft's Testimony (ACLU 
Washington National Office, Dec. 10, 2001)). 

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Rein Miillerson 



other hand, human rights activists, leftist liberals and sophisticated academics 
often seem to be blind to real life hard choices. 

The former Prime Minister of Israel Ehud Barak analyzing the 1 1 Septem- 
ber attacks writes: 

This kind of terror cannot be defeated without determined patience, strategic 
goals and tactical flexibility. You have to think and act, not by the book, but 
"out of the box," open eyed, your mind free from any dogma or conventional 
wisdom. The approach must be systematic: intensive worldwide intelligence- 
gathering; a wide operational and logistical deployment; economic sanctions 
and no softness in applying them; diplomatic ultimatums and no backing down 
from them. 45 

Beyond this, writes Barak, a systematic battle will require fully streamlined im- 
migration rules and procedures, internationally coordinated anti-money laun- 
dering legislation, and, importantly, the reassessment of the generation-old 
American practice not permitting pre-emptive strikes against terrorists and ter- 
ror operatives. 46 These measures are clearly important and necessary to fight 
terrorists but are they sufficient? The short answer is they are not. It is rather fu- 
tile to use only military or law-enforcement measures in the war against terror- 
ism. It would be counterproductive and look very much like a Sisyphean toil. As 
Professor Lawrence Freedman observes, "if raids failed to differentiate between 
the guilty, the half-committed and the innocent then the main result would be 
to generate many new recruits and supporters." 47 Juxtapose this insightful com- 
ment with the recent Israeli attack which killed the Hamas military commander 
Sheikh Salah Shehada and 14 others, including 9 children, while wounding 
more than 140 people. 48 Is it Barak then, or Freedman who is correct? 

If Barak were only a former general it might be possible to understand his 
exclusive attention to military and law-enforcement measures. But Barak was 
also Prime Minister of Israel, a country constantly facing terrorist attacks. For 
a politician, such one-sidedness and single-mindedness may be fatal. And this 



45. Ehud Barak, Security and Counter-Terrorism in RE-ORDERING THE WORLD, supra note 29, at 
93. 

46. Id. 

47. Lawrence Freedman, A New Type of War, WORLDS IN COLLISION. TERROR AND THE 
FUTURE OF GLOBAL ORDER 40 (Ken Booth et al. eds., 2002) [hereinafter WORLDS IN 
COLLISION]. 

48. Brian Knowlton, Heavy Handed Israeli Attack is Condemned, INT'L HERALD TRIBUNE, Jul. 
24, 2002, at 1. 

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Jus ad Bellum and International Terrorism 



is Ehud Barak and not Benjamin Netanyahu, whose views on terrorism are 
much more simplistic. 49 

However, human rights activists and those with a liberal agenda are not do- 
ing any better. For example, Daniel Warner, the acting Secretary General of 
the Institute of International Studies in Geneva, writes: 

But what is terrorism? It is the activity of the dispossessed, the voiceless, in a 
radically asymmetrical distribution of power. . . . Terrorism has causes. Growth 
in inequalities of wealth and lack of political access lead to frustration, which 
eventually leads to aggression, violence and terrorism. The greater the levels of 
frustration, the greater the levels of violence. The higher the levels of 
repression, the higher the levels of reaction. 50 

This is the corresponding liberal approach to terrorism and while there is some 
truth in this approach, such a view is also one-sided and simple. It is often use- 
less to argue what the root causes of terrorism are because there are different 
views on this issue that are firmly entrenched. It is also useless because it is of- 
ten quite impossible to distinguish clearly between causes of, circumstances 
conducive to and pretexts or justifications for various phenomena, including 
terrorism. "To a Western observer," writes Bernard Lewis, 

schooled in the theory and practice of Western freedom, it is precisely the lack 
of freedom — freedom of the mind from constraint and indoctrination, to 
question and inquire and speak; freedom of the economy from corrupt and 
pervasive mismanagement; freedom of women from male oppression; freedom 
of citizens from tyranny — that underlies so many of the troubles of the Muslim 
world. But the road to democracy, as the Western experience amply 
demonstrates, is long and hard, full of pitfalls and obstacles. 51 

Thomas Friedman believes that, "the anti-terror coalition has to under- 
stand what this war is about. It is not fighting to eradicate "terrorism." Terror- 
ism is just a tool. It is fighting to defeat an ideology: religious totalitarianism." 52 
Whether religious totalitarianism is a cause or a circumstance conducive to 



49. Although most, if not all, of the remedies Netanyahu proposes may be necessary indeed, they 
are limited to law-enforcement measures, economic or diplomatic sanctions and the use of 
military force. See FIGHTING AGAINST TERRORISM, supra note 43, at 129-148. 

50. Daniel Warner, For The West, A War On Terror Makes No Sense, INT'L HERALD TRIBUNE. 
Sep. 21, 2001, at 11. 

51. Bernard Lewis, What Went Wrong?, 289 THE ATLANTIC MONTHLY 1, at 6 (2002). 

52. Thomas Friedman, World War III is Against Religious Totalitarianism, INT'L HERALD 
TRIBUNE, Nov. 28, 2001, at 7. 

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Rein Miillerson 



terrorism is beyond the point. It is a factor closely linked to terrorism, espe- 
cially to its modern version. 

Poverty, discrimination, repression, inequality and religious intolerance all 
contribute to the creation and sustainment of terrorism. However, not all 
poor and oppressed are terrorists and most of the terrorists are not at all poor 
and oppressed. The false dilemma — whether to concentrate on changing the 
conditions that may be conducive to terrorism or to respond forcefully to acts 
of terror — is answered differently at different times. This is a false dilemma be- 
tween liberals who see the problems arising from external factors and the con- 
servatives blaming only internal factors — the mindset of perpetrators of 
criminal acts. Addressing both sets of factors is equally important and neces- 
sary. Responses to terrorism should involve various methods, addressing all 
the causes and conditions favorable to its creation and development. As Aud- 
rey Cronin writes, "the United States, working in tandem with key allies from 
the UK to Japan, must disable the enabling environment of terrorism." 53 It is 
also, however, necessary to use military and/or law-enforcement measures 
against terrorists and their accomplices as it is impossible to appease terrorists 
and hopeless to try to meet their demands believing this would end their ter- 
rorist acts. 54 Terrorists understand strength and power even if they do not nec- 
essarily respect (or may even hate) that power. Terrorists also despise 
weakness and see it in every concession and moderation. 

Successful domestic societies use both criminal justice and social programs 
in efforts to lower the crime rate. Similarly, in international society it would be 
inadequate to resort to only one category of measures. Conditions conducive 
to terrorism have to be addressed and terrorists and those who support them 
must be arrested and tried. Moreover, where necessary, military force, as a 
measure of self-defense or collective security, must be used against them. 

Richard Falk correctly distinguishes between two fallacies: "just as the paci- 
fist fallacy involves unrealistic exclusion of military force from an acceptable 
response, the militarist fallacy involves excessive reliance on military force in a 
manner that magnifies the threat it is trying to diminish, almost certain to 



53. Cronin, supra note 36, at 133. 

54. In a way, terrorists act counterproductively to the content of their demands since to meet 
their demands, even if these demands were justified if not made by terrorists, would encourage 
further terrorism. For example, Palestinian terrorists demand the end of the Israeli occupation 
and dismantlement of the settlements in the occupied territories. Ending this occupation would 
be seen by terrorists, however, as a victory of their means. Surrendering to their demands then 
would only tempt them to increase their demands underpinned by terrorist threats. 

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Jus ad Bellum and International Terrorism 



intensify and inflame anti-Americanism." 55 Only when these fallacies com- 
bine can they become mutually supportable and achieve success. 

Post-Modem Societies and Pre-Modern Threats 

The post September 1 1th world reveals another unfortunate and widening rift 
related to the gap between liberals and conservatives, the gap between the 
United States and Western Europe in their attitudes towards the war against 
terrorism and terrorists. One explanation for the different visions on terrorism 
may be the huge difference in their military capabilities. Robert Kagan puts it 
only as a rhetorical question: "If Europe's strategic culture today places less 
value on power and military strength and more value on such soft-power tools 
as economics and trade, isn't it partly because Europe is militarily weak and 
economically strong?" 56 However, these differing visions are not only due to the 
gap in military capabilities on both, sides of the Atlantic. Kagan insightfully 
notes that along with natural consequences of the transatlantic power gap, 
there has also opened a broad ideological gap: 

Europe, because of its unique historical experience of the past half- 
century — culminating in the past decade with the creation of the European 
Union — has developed a set of ideals and principles regarding the utility and 
morality of power different from the ideals and principles of Americans, who 
have not shared that experience. If the strategic chasm between the United 
States and Europe appears greater than ever today, and grows still wider at a 
worrying pace, it is because these material and ideological differences reinforce 
one another. 57 

Although by their internal characteristics European states and the United 
States belong to the same category of liberal democratic states with highly de- 
veloped market economies, their place and role in the international system are 
rather different indeed. As international actors they belong not only to differ- 
ent weight categories but also even to different worlds. 



55. Richard Falk, Defining a Just War, THE NATION, Oct. 29, 2001, at 3-4. 

56. Kagan, supra note 38, at 9. 

57. Id. at 3. 



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Rein Miillerson 



Robert Cooper, a senior British diplomat, writes of pre-modern, modern 
and post-modern states that co-exist side-by-side in today's world. 58 He speaks 
of the existence oi: 

two new types of state: first there are now states — often former colonies — where 
in some sense the state has almost ceased to exist: a "premodern" zone where 
the state has failed and a Hobbesian war of all against all is underway (countries 
like Somalia and, until recently, Afghanistan). Second, there are post imperial, 
postmodern states that no longer think of security primarily in terms of 
conquest. And thirdly, of course there remain the traditional "modern" states 
who behave like states always have, following Machiavellian principles and 
raison d'etat (one thinks of countries such as India, Pakistan and China). 59 

In the post-modern world — the world of the European Union — there are 
no security threats in the traditional sense (at least threats that would origi- 
nate from within this world) and instead of power (or balance of power), law 
prevails. In this world, the traditional distinctions between domestic and for- 
eign affairs have broken down; there is not only the legal promise not to use 
force but the use of such force between post-modern states has become almost 
unthinkable as their security is based on transparency, mutual openness, in- 
terdependence and mutual vulnerability. This is a new paradigm of interna- 
tional relations, which Western European nations have created only recently 
after centuries of wars, anarchy and the traditional struggle to balance power. 
The two World Wars served as the main catalyst for the creation of this new 
Kantian world, albeit in one region only. "Within the confines of Europe," 
writes Robert Kagan, "the age-old laws of international relations have been re- 
pealed. Europeans have stepped out of the Hobbesian world of anarchy into 
the Kantian world of perpetual peace." 60 

It is, of course, debatable to what extent this peace is perpetual but Kagan is 
right in emphasizing: "Consider again the qualities that make up the European 
strategic culture, the emphasis on negotiation, diplomacy, and commercial 
ties, on international law over the use of force, on seduction over coercion, on 
multilateralism over unilateralism." 61 These are admirable qualities indeed 



58. See generally ROBERT COOPER, THE POST-MODERN STATE AND THE WORLD ORDER (2nd 
ed., 2000) [hereinafter WORLD ORDER]; Robert Cooper, The New Liberal Imperialism, 
OBSERVER, (Apr. 7, 2002); Robert Cooper, The Post-Modem State in RE-ORDERING THE 
WORLD, supra note 29, at 12. 

59. Robert Cooper, The Post-Modem State in RE-ORDERING THE WORLD, supra note 58, at 1 2. 

60. Kagan, supra note 38, at 11. 

61. Id.atlO. 

97 



Jus ad Bellum and International Terrorism 



and hopefully they may serve as an example for other states and other regions 
of the world. Kagan may be right that "the transmission of the European mira- 
cle to the rest of the world has become Europe's new mission civilatrke." 61 
There is nothing wrong with such a mission as the expansion of human rights 
ideas, economic aid, assistance in state-building and other similar policies as 
well as the very lessons of European experience (negative and positive) may 
help other societies avoid disasters that the Europeans experienced, without 
necessarily repeating all the mistakes made in Europe. 

No society can or should repeat the development or evolution of other soci- 
eties, especially if their historic, cultural and religious traditions are rather dif- 
ferent. Nevertheless if countries like Rwanda or Burundi of today do not learn 
something from the past experience of countries like Sweden or Finland, the 
Rwandas and Burundis o( tomorrow will not be much different from those of 
1994. Some aspects of the European experience, for example, its painful and 
long process of secularization, may be especially important in the context of 
today's major terrorist threats. Chris Brown insightfully writes that: 

the subjection of all accounts of the ultimate ends of life to the same rationality, 
which has induced a self-consciously ironic dimension to even deeply held 
religious and social beliefs; the notion that representative forms of democracy 
are the only legitimate basis for political power; the spread of a human rights 
culture in which the privileges once extended only to rich and powerful white 
males are understood as legitimate only if universally available — this actually 
rather disparate set of ideas and propositions has come to be seen not as 
disparate, and thereby separable, but as a package that, taken as such, gives 
meaning to the notion of modernity within Western society and, with the onset 
of globalisation, within a nascent global society. 63 

However, fundamentalists of various kinds "want a world with modern tech- 
nology, but with scientific rational confined to the technical." 64 It may not be 
accidental that amongst terrorists, especially Islamist terrorists, there are many 
young men educated either in madrasas or technical institutions (not necessar- 
ily in flight schools) . 

Today there are huge differences between the realities of Europe and the 
situation in most other parts of the world. Still it happens that in their dealings 
with actors from different parts of the world, the Europeans often try to use 



62. Id. at 12. 

63. C. Brown, Narratives of Religion, Civilization and Modernity, [hereinafter Brown] in WORLDS 
IN COLLISION, supra note 47, at 299. 

64. Id. 

98 



Rein Mullerson 



post-modern rules of the game that (even amongst each other) are of recent 
origin. Europeans too often follow their newly acquired post-modern mindset 
when confronting modern or even pre-modem actors. These standards may 
not apply. 

The United States, because of its unique position in the world, Cooper be- 
lieves, combines characteristics of modern and post-modern society. Defining 
the United States as a "partially post-modern" state, he writes: 

Outside Europe, who might be described as postmodern? Canada certainly; the 
USA up to a point perhaps. The USA is the more doubtful case since it is not 
clear that the US government or Congress accepts either the necessity and 
desirability of interdependence, or its corollaries of openness, mutual 
surveillance and mutual interference to the same extent as most European 
governments now do. . . . The knowledge that the defence of the civilised world 
rests ultimately on its shoulders is perhaps justification enough for the US 
caution. 65 

A recent film 66 captures the essence of a post-modern society. In it violence 
was unthinkable, everybody was terribly polite and political correctness had 
reached quite absurd levels. A villain (played by Wesley Snipe) from the ear- 
lier "modern" age returns to help the leader of the city deal with some difficult 
problems left over from previous times. When the "villain," quite predictably 
acts like a villain, the authorities must bring a "modern" police officer (played 
by Sylvester Stallone) back to deal with the "modern" villain. Using physical 
force and all necessary means, he succeeds in eliminating the "modern" threat 
to the benevolent "post-modern" world. 

By analogy, what was Europe when facing President Milosevic, Radovan 
Karadjic or General Mladic? Ultimately, Europe was forced to rely on the 
United States to face real (and not fictional) villains in its own backyard. At 
the same time many Europeans continued to criticize the United States for 
not being nice enough towards such "modern" and "pre-modern" villains for 
not treating them in accordance with European post-modern rules. Is there 
not some truth then in the notion that post-modern values can flourish in 
places of the world today where societies are at different levels of development 
because the United States has performed for the Europeans the role of a mod- 
ern cop? As Kagan points out, "Europe's new Kantian order could flourish 
only under the umbrella of American power exercised according to the rules 



65. WORLD ORDER, supra note 58, at 27. 

66. DEMOLITION MAN (Warner Brothers 1996). 



99 



Jus ad Bellum and International Terrorism 



of the old Hobbesian order" and that "most Europeans do not see the great 
paradox: that their passage into post-history has depended on the United 
States not making the same passage." 67 Though the Vietnam and Mogadishu 
syndromes seriously affected the US ability to act adequately and decisively in 
some pre-modern situations (e.g., in Rwanda or Haiti) there is nevertheless 
the ring of truth in Kagan's words. 

It is also not by chance that al Qaeda and many other terrorist organiza- 
tions have been able to operate freely in Western European countries (and in 
the United States) exploiting in their fight against modern (or post-modern) 
liberties and freedoms, the very same liberties and freedoms, using technologi- 
cal achievements of the West to undermine its cultural achievements (de- 
mocracy, human rights, tolerance) that have made these technological 
achievements possible. 68 

In the world that is far from post-modern, post-modern states must have to 
retain and rely upon not only some oi their modern capabilities (police, pris- 
ons, military power) but also some of the norms of the modern world based on 
power politics. Adequate armed forces and intelligence services combined 
with the readiness to use them are necessary even for post-modern states. 
Robert Cooper is absolutely right that "in the coming period of peace in Europe, 
there will be a temptation to neglect our defenses, both physical and psycho- 
logical. This represents one of the great dangers for the post-modern state." 69 
Chris Brown, observing that fascism and national socialism did not collapse of 
their own contradictions, emphasizes that "the opponents of Islamo-fascism 
have to be prepared to fight for what they believe in, and the intelligent use of 
military force will, inevitably, be one component of the struggle." 70 



67. Kagan, supra note 38, at 16. 

68. Bassam Tibi has written that: 

Muslim fundamentalists very much favour the adoption of modern science and 
technology by contemporary Islam. But they restrict what may be adopted to select 
instruments, that is, to the products of science and technology, while fiercely rebuffing 
the rational worldview that made these achievements possible. The late great Berkeley 
scholar Reinhardt Bendix showed that 'modernisation in some sphere of life may occur 
without resulting in [a full measure of] modernity,' and added that 'more or less ad hoc 
adoption of items of modernity [actually] produces obstacles standing in the way of 
successful modernisation. 

Tibi, supra note 33, at 74. 

69. WORLD ORDER, supra note 58, at 39. 

70. Brown, supra note 63, in WORLDS IN COLLISION, supra note 47, at 300. 



100 



Rein Miillerson 



A dangerous side of European reliance on its post-modern values in the 
wider world is illustrated by the disastrous standoff between the post-modern 
Dutch peacekeepers and pre-modern Mladic thugs at Srebrenica in 1995, 
which ended with thousands of Muslim men dead. This is not to criticize the 
young Dutch soldiers but instead the softness of Western and especially Euro- 
pean leaders and societies as a whole when confronting pre-modern villains. 

Therefore, is not there some truth in Robert Cooper's words when he em- 
phasizes that "when dealing with more old-fashioned kinds of states outside 
the post-modern continent of Europe, we need to revert to the rougher meth- 
ods of an earlier era — force, pre-emptive attack, deception, whatever is neces- 
sary to deal with those who still live in the nineteenth century world of every 
state for itself?" 71 Among ourselves, he continues, "we keep the law but when 
we are operating in the jungle, we must also use the laws of the jungle," em- 
phasizing the need to get used to the idea of double standards. 72 

The language used by Cooper may be too provocative and should not be 
taken literally. International law and not the law of the jungle has to play a 
role even in dealings with modern and post-modern states and other actors 
from that world. However, double standards, or even treble standards for that 
matter, may be acceptable if we openly recognize, for example, that certain 
categories of weapons are much more dangerous in the hands of regimes like 
Saddam Hussein's than in the hands of more responsible and civilized actors, 
or that not all ideologies are of equal value (we have already made exceptions 
for fascism and recently for communism too) , that some of them are so intoler- 
ant that they constitute a threat to international peace and security. The prin- 
ciples and rules of international law applicable in the non-Kantian world must 
be different from those applicable in the post-modern environment. It follows 
then that contemporary jus ad bellum cannot be based on the values and prin- 
ciples applicable in the post-modern Kantian world where the usefulness and 
applicability of jus ad bellum is unthinkable. What then is the contemporary 
jus ad bellum and what should it be? As further discussed infra, the sover- 
eignty of those states that massively violate human rights or failed states that 
are unable to guarantee a minimum of order and justice and especially those 
states that are unwilling or unable to prevent their territory from being used 
for carrying out terrorist attacks against other states and their nationals can- 
not be respected in the same way as the sovereignty of other states. As Kofi 



71. Robert Cooper, The New Liberal Imperialism, OBSERVER, Apr. 7, 2002, at 3. 

72. Id. 



101 



Jus ad helium and International Terrorism 



Annan, the UN Secretary General, said during the NATO operation in 
Kosovo: "[TJhere is emerging international law that countries cannot hide be- 
hind sovereignty and abuse people without expecting the rest of the world to 
do something about it." 73 

The Charter Paradigm and the Use of Force at the Turn of the Century 

The question of the current state of the law on the use of force is approachable 
from different angles: 

(a) What does the text of the UN Charter say? 

(b) What did the drafters of the Charter mean in 1945? 

(c) What may be reasonable or plausible interpretations of the Charter 
principles and rules concerning the use of force? 

(d) What do the current circumstances require? 

(e) What is the prevalent (if any) consensus on use of force today? 

Different authors have used in their study of the use of force all of these ap- 
proaches. States have also relied, in various degrees and combinations 
depending on circumstances, on all these possible interpretations of jus ad 
bellum. 

Today, however, we have a rather schizophrenic situation in jus ad bellum. 
The more one thinks of it, the less one seems to understand it. The more one 
tries to understand it, the less certain one becomes about what it requires. 
Therefore, it is wise in many cases to avoid definitive conclusions like "inter- 
national law certainly allows it," or vice versa, that "it certainly prohibits it." 
Most conclusions of that nature are not only vulnerable to convincing criti- 
cism but also cannot be verified as correct. 

It would be equally wrong to say either that there have been no changes 
whatsoever in the legal regime regulating the use of force, or, on the contrary, to 
interpret too creatively certain tendencies in the rather confused international 
practice in order to conclude, for example, that there undoubtedly is a right to 
use force to save lives in foreign countries. Today, there are not many areas in 

73. Tim Burton & Robert Anderson, UN Warns Yugoslavia Over Human Rights. FINANCIAL 
TIMES, May 26, 1999, at 2. 

102 



Rein Miillerson 



jus ad bellum where the word "undoubtedly" is used. Instead, it is better to 
speak of trends, legitimization and more justifiable or less justifiable practices. 
It follows that it is better to avoid definitive terms such as lawful or illegal. 

For some, the UN Charter seems to have acquired certain characteristics of 
the Holy Books — either the Bible or the Koran. One cannot change it, one has 
to believe in it and even swear allegiance to it, but at the same time, one can 
hardly live by it. However, a Charter fundamentalism may be almost as danger- 
ous as Biblical or Koranic fundamentalisms. Literal and non-contextual inter- 
pretation of any text — be they religious or secular texts — is bound to lead to 
social impasse. If in the case of holy texts such interpretation sometimes guides 
towards and justifies violence, in the case of the UN Charter, it may be one of 
the causes of the inability to adequately respond to violence. 

However, it is often said that the prohibition on the use of force [Article 
2(4) of the Charter] is a jus cogens norm 74 and therefore treaties and practice 
not only cannot deviate from it but even when such practice is widespread, it 
does not undermine or change the fundamental norm. In such a case, how can 
one question what the Charter says on the use of force? 

Many things might be said about jus cogens in support of this concept as well 
as by way of criticism. 75 It is necessary here to emphasize what Oscar Schachter 
has written about principles of international law. He distinguishes between the 
core and penumbra of applicability of such principles. 76 While the core may be 
jus cogens, the penumbra need not necessarily be of such a character. 

If we take by way of comparison and illustration, for example, one of the ba- 
sic human rights norms — the right to life — we see that the core of it — the pro- 
hibition of arbitrary deprivation of life and especially the prohibition of 
genocide (e.g., Article 6 of the International Covenant on Civil and Political 
Rights) — is undoubtedly jus cogens in the sense that no deviation from it is 
permitted under any circumstances. When deviations do occur, they do not 
undermine the basic prohibition since there is strong and general opinio juris 
supporting this core of the norm. However, when considering, for instance, 
the issue of the death penalty it is much less clear. Contradictory practices as 
well as contradictory opinions (including opinio juris) exist on this matter. 
Sensitive areas such as abortion and euthanasia — both hotly debated right to 
life issues — make the problem of the jus cogens character of the right to life 



74. See, e.g., 1966 Y.B. OF THE INT'L L. COMM 247-48 (1966). 

75. See, e.g., REIN MULLERSON, ORDERING ANARCHY 156-61 (2000). 

76. OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 20 (1991) 
[hereinafter SCHACHTER]. 

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Jus ad Bellum and International Terrorism 



(its absolute and non-derogable character) as a whole uncertain and 
complicated. 

Similar situation exists in the legal regulation of the use of force. Of course, 
there are areas of jus ad bellum where legal rules are rather certain. The Char- 
ter and customary international law prohibition against the use of force, for 
example, for territorial aggrandizement or political subjugation of other states 
(as well as the affirmative right to use force in self-defense) remain valid and 
relatively non-controversial. The Iraqi aggression against Kuwait and the 
world community's responses to it have confirmed and reinforced these as- 
pects of the prohibition on the use of force. As Anne-Marie Slaughter and 
William Burke-White, referring to the numerous resolutions of the General 
Assembly and the Security Council, write, "when interstate aggression hap- 
pens, the vast majority of the world's nations routinely and automatically con- 
demn it as illegal." 77 However, when considering issues like the use of force for 
humanitarian intervention different practices and conflicting views exist. Mi- 
chael Glennon's point that "there is, today, no coherent international law 
concerning intervention by states. States disagree profoundly on fundamental 
issues — issues on which consensus is necessary for a treaty or customary rule 
to work." 78 Though consensus does not exist in some domains of jus ad 
bellum, it is somewhat difficult to accept this negative evaluation of the role of 
the UN Security Council in the changes that are taking place in jus ad bellum. 

Glennon writes: 

By intervening in the internal affairs of states, the Security Council itself 
contributed to the erosion of the Charter's constraints on use of force, beginning 
with Southern Rhodesia and continuing with legally questionable interventions 
in South Africa, Iraq, Somalia, Rwanda, and Haiti. Governments that have 
come to justify humanitarian intervention by states acting in the face of Security 
Council paralysis rely on the Council's own record. 79 

Glennon believes that "there can be little doubt that the Security Council has 
acted in a manner inconsistent with the limits placed on its authority by Article 
39 and Article 2(7) of the Charter." 80 In support of this thesis he quotes Sean 



77. Anne Slaughter & William Burke- White, An International Constitutional Moment, 43 HARV 
INT'LL.J. 1 (2002) [hereinafter Slaughter & Burke- White]. 

78. Michael Glennon, limits of Law,. prerogatives of power, interventions 

after kosovo 2 (2001). 

79. Id. at 114. 

80. Id. at 120. 



104 



Rein Miillerson 



Murphy who wrote: "by considering essentially internal human rights viola- 
tions and deprivations to be "threats to the peace," the Security Council is ex- 
panding the scope of its authority beyond that originally envisioned in Chapter 
VII of the Charter." 81 

However, these are two rather different statements. Murphy's understand- 
ing corresponds to Schachter's explanation that "no text adopted by govern- 
ments can or should foreclose choices imposed by changing conditions and by 
new perceptions of ends and means. The Charter is a living instrument. It is, 
like every constitutional instrument, continuously interpreted, moulded and 
adapted to meet the interests of the parties." 82 Had not the Security Council 
reacted to changing circumstances, had it continued to apply the interpreta- 
tion of the Charter held by its drafters in 1945, the Council would have re- 
mained completely inadequate. As the Permanent Court of International 
Justice observed in 1923, "the question whether a certain matter is or is not 
solely within the jurisdiction of a state is an essentially relative question; it de- 
pends upon the development of international relations." 83 The Council has 
not yet come close to intervening in any state's internal affairs. While the 
Council, using its wide discretionary powers, have found threats to interna- 
tional peace and security (e.g., Haiti) where no such threat seemed to exist, 
given the egregious behavior of these states towards their people, their behav- 
ior could not be viewed as within the "internal affairs of the state" any longer. 

Michael Schmitt is correct when emphasizing that: 

Professor Glennon's thoughtful analysis exaggerates the de jure- de facto divide. 
In fact, what has been happening over the past half-century is a regular 
evolution in the global community's understanding of the use of force regime. 
This evolution has been, as it always is and always must be, responsive to the 
changing circumstances in which international law operates. Practice does not 
contradict law so much as it informs law as to the global community's normative 
expectations. 84 



81. Sean Murphy, Humanitarian Intervention: The United Nations in the 
Evolving world 196 (1996). 

82. SCHACHTER, supra note 76, at 1 18-19. 

83. See Nationality Decrees in Tunis and Morocco Case, P.C.I.J., Series B, No. 4, at 24, 2 I.L.R. 
349 (1923). 

84. Michael Schmitt, Counter-Terrorism and the Use of Force in International Law, supra Chap. II 
this volume. 



105 



Jus ad Bellum and International Terrorism 



Although the end of the Cold War and the accelerating pace of events have re- 
quired more changes in the law of jus ad bellum 85 than in the previous fifty 
years, neither the existing Charter interpretation nor a completely new set of 
rules is either possible or even desirable. International lawyers, be they in the 
service of their governments or academics, must avoid extreme choices be- 
tween, using the words of Ronald Dworkin, "the dead but legitimate hand of 
the past and the distinctly illicit charm of progress." 86 Past decisions have to be 
interpreted and reinterpreted in the light of current needs and tendencies. 

Terrorism: Jus ad Bellum or Jus in Bello? 

Since terrorism is basically about means and methods and not about the pur- 
pose for the use of force 87 why is it a jus ad bellum issue at all? Should not it be, 



85. Slaughter and Burke- White even write that "[T]o respond adequately and effectively to the 
threats and challenges that are emerging in this new paradigm, we need new rules. Just as in 
1945, the nations of the world today face an international constitutional moment." Slaughter &. 
Burke-White, supra note 77, at 2. 

86. RONALD DWORKIN, LAW'S EMPIRE 348 (1998). While Dworkin writes that judges have to 
choose between these extremes, his whole book seems to indicate that the proper choice has to 
be somewhere in between and not always either the legitimate hand of the past or the illicit 
charm of progress. 

87. Granville Byford draws our attention to the fact that many historical figures who today are 
admired (at least, but not exclusively, by their own people) have committed acts that today 
would be defined as terrorism or crimes against humanity. He, for example, refers to Henry V 
who killed his prisoners before the Battle of Agincourt but was still lionized by Shakespeare. 
Byford, supra note 39, at 36. Tamerlane enjoyed building huge pyramids from human skulls but 
today on his monument in the centre of Uzbek capital Tashkent the following words are ascribed 
to him: "Power is in Justice." Even in the second half of the twentieth century (the UN Charter 
period) several future Israeli leaders used terror tactics in their fight for Israeli statehood and 
even the accusations of terrorism against Nelson Mandela's ANC were not all groundless. The 
Irish Republican Army has had sympathizers in various US governments and the list can be 
continued. Byford, therefore, proposes, in order to untangle the knot, "to think of a graph with 
the morality of means running along one axis and the morality of the ends running along the 
other." (Id. at 38). Byford correctly observes that even in today's world in certain conditions 
noble aims cannot be achieved without the recourse to violence. However, what was acceptable 
or even heroic in the past may well be criminal today, and secondly, if violence (even 
considerable) may be necessary and acceptable for the achievement of even noble aims, this does 
not mean that terrorism is acceptable too. No graph that would justify terror violence depending 
on the high morality of pursued aims should be acceptable. We have had it enough already and it 
is called: one man's terrorist is another man's freedom fighter. 

106 



Rein Miillerson 



as some argue, 88 an issue of criminal justice, or if it has anything to do with the 
legal regulation of use of force at all, then a jus in bello topic only? However, 
something cannot be a jus in bello issue without first coming under jus ad 
bellum and terrorism belongs to the domain of jus ad bellum as terrorist attacks 
may constitute a specific, non-traditional (i.e., what the drafters of the UN 
Charter did not have in mind in 1945) form of an armed attack that gives rise to 
the right of self-defense and/or collective security measures involving use of 
force under Chapter VII of the UN Charter. 

Of course, if a terrorist attack is covered by jus ad bellum, if it constitutes an 
armed attack or a threat to international peace and security against which 
Chapter VII collective security measures involving use of force are applied, it is 
automatically also contrary to jus in bello. Such a conclusion follows from the 
very definition of terrorism as a crime. 89 Note here that not every terrorist at- 
tack is contrary to jus ad bellum (either because it does not have any foreign el- 
ement or because of the relatively insignificant nature of the attack). However, 
every terrorist attack that comes under jus ad bellum, by definition violates jus 
in bello. For terrorists, attacks against civilians and civilian objects are not col- 
lateral to the recourse to military force but one of the necessary elements of it. 
Jason Vest notes that a defining characteristic of fourth-generation warfare is 
"the emphasis on bypassing an opposing military force and striking directly at 
cultural, political, or population targets." 90 This is what terrorists do and this 
kind of tactic is, ab initio, contrary to jus in bello and (as discussed infra) 



88. Abdullahi Ahmed An-Na'im, for example, writes that "the answer is simply that the attacks 
were international crimes of the utmost seriousness that must be vigorously investigated in order 
to hold those responsible accountable under the law. . . . If there is the political will to treat the 
attacks as a matter for law enforcement, not military retaliation, I believe there are enough 
normative and institutional resources to begin the process of criminal accountability under 
international law." See Abdullahi An-Na'im, Upholding International Legality against Jihad, 
WORLDS IN COLLISION, supra note 47, at 169. It is interesting that though An-Na'im writes that 
in the case of the 9/1 1 attacks pursuing extradition would have been unrealistic, he nevertheless 
accuses the United States of failing to do so. This is like asking the current Iraqi regime to 
extradite Saddam Hussein. Such a request does not correspond with the seriousness of the 
matter. Moreover, in the case of crimes of that magnitude, history since the Nuremberg trials 
have shown, that military and criminal justice measures are almost necessarily interlinked. 

89. One may ask whether those who commit acts of terror in armed conflicts are terrorists or war 
criminals. They are both, of course. In time of war, acts of terror (e.g., deliberately attacking 
civilians, killing POWs, using indiscriminate force etc.) are either grave breaches under the 
Geneva Conventions or other acts defined as war crimes. See, e.g., Article 130, Geneva 
Convention (III) Relative to the Treatment of Prisoners of War, 1949, reprinted in THE LAWS OF 
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER 
DOCUMENTS 435 (D. Schindler & J. Toman eds., 3rd ed., 1988). 

90. Jason Vest, Fourth-Generation Warfare, 288 THE ATLANTIC MONTHLY 5, at 2-3 (2001). 

107 



Jus ad Bellum and International Terrorism 



necessarily changes some modalities of defensive responses. Still, Caleb Can- 
has ably demonstrated in his book The Lessons of Terror that terror tactics were 
historically used as a supposedly effective method of waging wars (however, 
Carr convincingly argues that even in the past, though such tactics may have 
provided some short-term tactical advantages, they have always been counter- 
productive in the long run). 91 

Of course, a direct armed attack by armed forces of state A against state B 
may be also committed as a terrorist attack if the attack is carried out in fla- 
grant violation of jus in bello requirements and if at least one of the purposes 
of the use of such modalities of attack is spreading terror among the popula- 
tion of the victim state or forcing the government to change its policies or 
surrender. 

Terror Attacks and the Necessity of Self'Defense 

Terrorism has different causes and circumstances exist that may enhance or di- 
minish its likely emergence and flourishing. These circumstances must, of 
course, be addressed. However, leaving terrorist attacks without a tough and 
physical response, addressing only the so-called "underlying causes" demon- 
strates weakness thereby only encouraging new attacks. The use of force as a 
law-enforcement measure or as a military response, though not the only or even 
perhaps the most important means of dealing with terrorism, is nonetheless 
necessary as both a special and general deterrent. Authorization for military re- 
sponses to terrorist attacks may combine both the element of self-defense and 
that of necessity. Of course, these two are closely linked any way as the seminal 
Caroline case speaks of the "necessity of self-defense." 92 In fact, though the 
Caroline case is often used in the practice and teaching of international law as a 
self-defense precedent that clarifies issues such as necessity, immediacy and 
proportionality, the International Law Commission (ILC) has dealt only with 
the case as one dealing with the concept of necessity. 93 The 1980 Report of the 
ILC, for example, observes that: 



91. See Caleb Carr, Lessons of terror. A History of Warfare against 
Civilians— Why it Has always Failed, and Why It Will Fail again (2002). 

92. R. Y. Jennings, The Caroline and Mcleod Cases, 32 AM. J. INTL. L. 82 (1938) [hereinafter 
Jennings]. 

93. See International Law Commission Commentaries to the Draft Articles on Responsibility of 
States for Internationally Wrongful Acts, para. 5, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/ 
56/10 (2001) [hereinafter Commentaries]. 



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Rein Miillerson 



in the past, there has been no lack of actual cases in which necessity was 
invoked precisely to preclude the wrongfulness of an armed incursion into 
foreign territory for the purpose of carrying out one or another of the operations 
referred above. To cite only one example of the many involving situations of this 
kind, there was the celebrated "Caroline" case." 94 

Unlike in the first half of the 19th century when the Caroline incident oc- 
curred, the right to self-defense today includes measures undertaken against 
non-state entities. 95 Accordingly, a situation can exist today when self-defense 
against terrorist attacks may be carried out, by necessity and under certain cir- 
cumstances, in the territory of a third state even without the latter's consent. 
Hence, the concept oi self-defense characterizes the use of force vis-a-vis a 
terrorist organization, while the concept of necessity characterizes the use of 
such force in the territory o( another state. Necessity, unlike the inherent 
right to self-defense, is not a right (though both are considered as circum- 
stances precluding wrongfulness), but as a justification used in exceptional 
circumstances, or as the ILC comments, "under certain very limited condi- 
tions." 96 

When terrorists operate from the territory of a state and that state is unable 
or unwilling to end the terrorist acts, military action by other states directed at 
the terrorists within the state where the terror operations are originating from 
can be justified as a state of necessity. This is what Roberto Ago's comment to 
the draft article in the ILC Report called "the existence of conduct which, al- 
though infringing the territorial sovereignty of a State, need not necessarily be 
considered as an act of aggression, or not, in any case, as a breach of an inter- 
national obligation of jus cogens." 97 This is instead a self-defense operation 
against the terrorist organization that is by necessity carried out in the terri- 
tory of a third state; preferably, of course, with the latter's consent. However, 
if the territorial state, which has itself been unable to prevent terrorists 



94. 1980 Y.B. INT'L L. COMM. Vol II, Part 2 at 44 (1980), U.N. Doc. A/CN.4/SER.A/1980/Add. 
1. 

95. In the Caroline incident, the British in 1837 crossed the Niagara River and destroyed the 
steamship Caroline which was being used by private persons to help rebels fight the British. The 
British were not attacked by the United States or by irregulars acting on behalf of the United 
States. Therefore, the ensuing discussion between US Secretary of State Daniel Webster and UK 
Envoy Lord Alexander Ashburton might as well have been about the actions of non-state entities 
in the territory of another state. See generally Jennings, supra note 93. 

96. See Commentaries, supra note 93 at para. 14. 

97. See 1973 Y.B. INT'L L. COMM. Vol II, at 249 (1973), U.N. Doc. A/CN.4/SER.A/1973/Add. 1. 



109 



Jus ad Bellum and International Terrorism. 



attacking other states or their nationals and interests, resists the victim-state 
(or its allies) in their efforts to eliminate the terrorists, it itself becomes an ac- 
complice to the terrorist organization. The Entebbe raid in 1976 illustrates 
this point nicely. When Ugandan forces attacked the Israeli commandos at- 
tempting to liberate the hostages (something the Ugandan authorities had 
failed to do), Ugandan forces became legitimate targets of Israeli counter- 
measures. 

Once again, of course, the requirements of necessity and proportionality 
play an important role in determining the character of self-defense measures. 
Indeed, the character of terrorist attacks themselves, often of uncertain origin 
and magnitude, puts an even higher emphasis on the need to observe the prin- 
ciples of necessity and proportionality in the use of military force in response 
to such attacks. They are especially important in helping to avoid escalation of 
terrorist related conflicts. 

This portion of this article concentrates only on the self-defense paradigm 
response to terrorists attacks — leaving for another day the discussion of the 
collective security paradigm. These two paradigms are not exclusive and ide- 
ally, responses to terrorist attacks should involve the use of force across both 
paradigms. 

An armed attack, in the form of a terrorist attack or not, is an erga omnes vi- 
olation of international law and the victim state is not the only injured state. 98 
A terrorist act(s) that is tantamount to an armed attack concerns the entire 
international community and therefore any such attack should ideally trigger 
the UN collective security mechanism at the same time as the right of the vic- 
tim state to use force, either alone or together with its allies, in self-defense oc- 
curs. Indeed, although dealing primarily with terrorists and support for such 
terrorists, Security Council Resolution 1373 states that all states shall "take 
the necessary steps to prevent the commission of terrorist acts." While differ- 
ent from, and falling short of authorizing the "use of all necessary means," the 
interpretation of this language may well lead to similar conclusions. 

Interestingly, the Security Council, while taking measures necessary to 
maintain international peace and security, at the same time recognized in its 
Resolution 1368 and reaffirmed in Resolution 1373 the inherent right to 



98. International Law Commission, Draft Articles on Responsibility of States for Internationally 
Wrongful Acts, Report of the International haw Commission on the Work of its Fifty-third Session, Art. 
48(lb), U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001) [hereinafter Draft 
Articles}. 

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Rein Miillerson 



individual and collective self-defense." Accordingly, though the Council was 
acting within the collective security paradigm in these resolutions, it did not 
consider that these measures in any way interfered with or superceded the 
right to use force in individual or collective self-defense. 

In the current fight against terrorism the use of military force in self-defense 
in Afghanistan by the United States, United Kingdom, Canada and other al- 
lies is combined with collective security such as those that are the basis for the 
International Security Assistance Force (ISAF). 100 These are not the only col- 
lective security measures being used by the Security Council. As an example, 
it has also used financial measures against al Qaeda, other terrorist organiza- 
tions and individuals linked to them. Chapter VII non-military measures are 
beyond the scope of this article and will not therefore be addressed. However, 
their use does help make the point that only combinations of various means 
and methods of fighting terrorism can lead ultimately to success. 

Specific Characteristics of Self-Defense Against Terrorist Attacks, 

Terrorist attacks have some characteristics which traditional armed at- 
tacks, as a rule, do not have: (i) attacks are usually carried out not by a state's 
armed forces but by non-state groups which may or may not have links with 
some states (except that terrorist groups have to operate on the territory of at 
least some states and this is one of the essential differences between piracy and 
terrorism, though in some respect they may be comparable); (ii) the identity of 
the attackers and their affiliation with other entities (including states) is usu- 
ally not clear; and, (iii) the means and methods used by terrorists are, by defi- 
nition, contrary to international humanitarian law since they intentionally 



99. Myjer and White point to the fact that references to the right to self-defense were only in 
the Preambles of the Security Council Resolutions 1368 and 1373 and therefore, in their opinion, 
the Council did not unequivocally determine that there had been an armed attack against the 
United States on 1 1 September 2001. They believe that "at an early stage therefore the Security 
Council should have made it clear without a shadow of doubt whether it was of the opinion that 
there solely is an article 39 situation, or a Chapter VII self-defence situation." See Myjer & 
White, supra note 31, at 10. However, on 12 September when the Security Council passed 
Resolution 1368 it may not yet have been clear who was behind these attacks (e.g., had they been 
committed by a US terrorist group, then such an attack would not have given rise to the right to 
self-defense under international law notwithstanding the magnitude of the attack). Therefore, 
the Security Council could hot have used such specific language. Moreover, a reference to the 
right to self-defense in the preamble of a resolution wholly devoted to a terrorist attack is a 
sufficient indication that the Council believed that there was at least a prima facie self-defense 
situation. 

100. S. C. Res. 1386 U.N. SCOR, 56th Sess., U.N. Doc. S/1386/(2001). 

Ill 



Jus ad Bellum and International Terrorism 



target non-combatants and attack prohibited objects. These particular fea- 
tures of terrorist attacks condition the character of responses to them. 

First, what is the status of terrorist organizations in international law? Does 
Article 51 apply to attacks carried out by non-state entities? Michael Byers 
writes that "it will probably be argued that the atrocities of 1 1 September did 
not constitute an armed attack since they did not involve the use of force by a 
state, and that the relevant framework of analysis is instead international crim- 
inal law." 101 Eric Myjer and Nigel White write that "the categorization of the 
terrorist attacks on New York and Washington as an "armed attack" within 
the meaning of article 51 is problematic to say the least. . . . Self-defence, tradi- 
tionally speaking, applies to an armed response to an attack by a state." 102 
Pierre-Marie Dupuy writes that "the shock of 1 1 September should cause a re- 
examination of norms conceived solely on the basis of relations between 
states." 103 However, such a re-examination has already been ongoing for some 
time and international law is no longer as state-centric as it was, for example, 
in 1945 when the UN Charter was adopted. Not only are individuals held 
criminally responsible directly under international law for genocide, war 
crimes and crimes against humanity, but the Security Council has gone so far 
as to impose sanctions against non-state entities such as the Ian Smith regime 
in Southern Rhodesia, UNITA in Angola and Bosnian Serbs. 104 

There is little doubt that the drafters of Article 51 contemplated armed at- 
tacks committed only by states even though the article itself does not explic- 
itly say so. However, it is not only the absence of any direct reference to an 
armed attack by a state in Article 5 1 but more importantly, the need to inter- 
pret the Charter in the context of current realities that indicates that the right 
of self-defense may arise also in the case of attacks by non-state entities. 105 As 
Yoram Dinstein writes: 



101. Michael Byers, Terrorism, the Use of Force and International Law after 1 1 September, 5 1 ICLQ 
411 (2002). 

102. Myjer & White, supra note 31, at 7. 

103. Pierre-Marie Dupuy, The Law After the Destruction of the Towers, EUR J. INT'L L. 
DISCUSSION FORUM at 1 (2002) available at http://www.ejil.org/forum_WTC/ny-dupuy.html 
(Nov. 30, 2002). 

104. For example, Security Council Resolution 924 imposed sanctions against Bosnian Serbs. See 
S. C. Res. 924, U.N. SCOR, 49th Sess., U.N. Doc. S/924/(1994). Similarly, Resolution 864 
found that "as a result of UNITA's military actions, the situation in Angola constitutes a threat 
to international peace and security." An arms embargo was imposed against a non-state 
entity— UNITA. See S. C. Res. 864, U.N. SCOR, 48th Sess., U.N. Doc. S/864/(1993). 

105. See, e.g., Ruth Wedgwood, Responding to Terrorism: The Strikes against bin Laden, 24 YALE J. 
INT'L L 559(1999). 

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Rein Miillerson 



[I]t should be pointed out that, for an armed attack to justify countermeasures 
of self-defence under Article 51, it need not be committed by another state. 
Ordinarily, the perpetrator of the armed attack is indeed a foreign state as such. 
Yet, in exceptional circumstances, an armed attack — although mounted from 
the territory of a foreign state — is not launched by that state. 106 

Referring to the case when the Security Council had employed the term 
"armed attacks" characterizing raids by mercenaries from the territory of An- 
gola and condemning Portugal for not preventing these raids, Dinstein empha- 
sizes that "armed attacks by non-state actors are still armed attacks, even if 
commenced only from — and not by — another State." 107 

Giorgio Gaja, analyzing the 1 1 September attacks against the United States 
in light of the references to the right to self-defense in Security Council resolu- 
tions and the NATO decision activating Article 5 of the Washington Treaty, 
cautiously opines that "depending on the factual circumstances, the definition 
of the terrorist acts of September 11th as "armed attack" may not necessarily 
imply that the concept actually refers to acts that are not attributable to a 
state." 108 However, the US demands addressed to the Taliban (which itself 
was a non-recognized authority that various Security Council resolutions had 
called "the Afghan faction known as the Taliban, which also calls itself the Is- 
lamic Emirate of Afghanistan") 109 to surrender Osama bin Laden and other al 
Qaeda terrorists seem to indicate that the United States, at least initially, did 
not consider that Afghanistan (or even the Taliban for that matter) was di- 
rectly responsible for the attacks. 110 Only the refusal of the Taliban regime to 
comply with the US demands and their active defense of the Qaeda network 
led to the use of force in self-defense against both al Qaeda and the Taliban. 



106. See DINSTEIN, supra note 6, at 192. 

107. Id. at 214. 

108. Giorgo Gaja, In What Sense was There an "Armed Attack?", EUR J. INT'L L. DISCUSSION 
FORUM at 1 (2002) , available at http://www.ejil.org/forum_WTC/ny-gaja.html (Nov. 30, 2002) . 

109. See, e.g., S. C. Res. 1267, U.N. SCOR, 54th Sess., U.N. Doc. S/1267/(1999). 

1 10. The Unites States insisted that the Taliban: "Deliver to United States authorities all the 
leaders of Al Qaeda who hide in your land. Release all foreign diplomats, including American 
citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats, and aid workers in 
your country. Close immediately and permanently every terrorist training camp in Afghanistan, 
and hand over every terrorist and every person in their support structure to appropriate 
authorities. Give the United States full access to terrorist training camps, so we can make sure 
they are no longer operating." President George W. Bush, Address Before a Joint Session of the 
Congress on the United States Response to the Terrorist Attacks of September 1 1, 37 WEEKLY 
COMP. PRES. DOC. 1347 (Sep. 20, 2001). 



113 



Jus ad Bellum and International Terrorism 



The current war against terrorism, of course, differs from previous wars in 
the sense that though there was a clear victim of the attack — the United 
States (or rather several victims because, e.g., hundreds of British and other 
nationals were also attacked), there was no prima facie perpetrator. This is 
one of the peculiarities of 21st century wars, that is not without precedent. 
Acts of so-called indirect aggression 111 do not always have an obvious author 
since it may be difficult to attribute acts of paramilitary or irregular forces to a 
specific state. However, indirect aggression, as enshrined in the 1974 Defini- 
tion of Aggression, presumes the existence of an aggressor state, which instead 
of using its regular armed forces perpetrates acts of aggression through irregu- 
lar armed bands, guerrilla forces, etc. In such a case, irregulars are agents of an 
aggressor state. 

Contemporary terrorism is even more complicated. Acts of indirect aggres- 
sion are usually, though not necessarily always, carried out against neighbor- 
ing states and notwithstanding that- there may be difficulties in attributing acts 
of irregulars to the state from the territory of which these attacks are 
launched, the identity of the state is not, as a rule, in question (what may be 
questioned is whether that state is an aggressor or not). Attacks like those of 
September 11th may not even have a prima facie culprit, state or non-state. 

However, this does not mean that an aggressor does not exist. Such a con- 
clusion would not only be contrary to common sense, it is not one required by 
contemporary international law. 

In a sense, military responses to terrorist attacks do not raise legal, philo- 
sophical, moral or even political issues as complicated as, for example, human- 
itarian intervention does. First of all, notwithstanding its specific and even 
non-traditional features, terrorist attacks originating from abroad can still be 
qualified as armed attacks giving rise to the inherent right to self-defense. 
Together with military operations to rescue one's nationals abroad, such 
anti-terrorist operations may be qualified as special (non-traditional) self- 
defense operations. Secondly, military responses to terrorist attacks are today 
politically less controversial than, for example, the use of force to protect hu- 
man rights in foreign countries. Although some states still refuse to condemn 
specific terrorist attacks and even try to find justifications for some of them 



111. See Article 3(a) of the Definition of Aggression of 1974 which states that "the sending by or 
on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of 
armed force against another state of such gravity as to amount to the acts listed above, or its 
substantial involvement therein," is an act of aggression. See 1974 U.N. Definition of Agression, 
29 U.N. GAOR, Supp. 31, art. 3(a), U.N. Doc. A/RES/3314 (XXIX) (1975) (hereinafter 
Definition of Aggression] . 



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Rein Miillerson 



(e.g., most Arab states still refuse to condemn, without any qualification, Pal- 
estinian terrorism), the traditional support for the idea that a just cause (e.g., 
national-liberation struggle) justifies the use of terrorist methods is becoming 
weaker. 112 

If the right to the use of force in self-defense is dependent on the existence 
of an armed attack (or arguably in the case of so-called anticipatory or inter- 
ceptive self-defense in anticipation of such an attack), the modalities of the 
exercise of this right depend on the characteristics of the armed attack. 113 
Therefore, we have to consider the specific and distinctive features of terrorist 
attacks that would condition specific methods and means of defensive 
responses. 

In the case of responses to terrorist attacks, the question of immediacy may 
have to be addressed differently. As the source of attacks may not be immedi- 
ately obvious and preparations for responses that often have to be secret may 
take time (gathering intelligence data, building coalitions etc.), the period be- 
tween the attack and responsive measures may be rather substantial. In that 
respect, the situation may be compared to one that existed, for example, after 
the Iraqi invasion of Kuwait. Although for almost half a year there were no ac- 
tive military operations going on after the Iraqis had occupied Kuwait, the 
right by Kuwait and its allies to use force in self-defense was not extinguished 
(maybe only suspended for a while due to the active involvement of the Secu- 
rity Council). The Gulf War did not start on January 15th, 1991 when the Co- 
alition launched Operation DESERT STORM. It started on August 1st, 1990 
when the Iraqi troops attacked and occupied Kuwait. Similarly, the war 
against terrorist attacks started on September 11th at 8:45 when the first air- 
craft hit the World Trade Center, if not earlier had the United States been 
able to use its right to anticipatory or interceptive self-defense. 



112. In 1978 the statement by Ambassador Harriman of Nigeria, who was Chairman of the Ad 
Hoc Committee on the Drafting of an International Convention Against the Taking of 
Hostages, disputed the use of the word 'terrorist' describing the Palestinian struggle against 
Israel: "Here I wish to reiterate that my Government does not believe that any liberation 
movement should damage its prestige by taking hostages, and that the noble fights for liberation 
should be based on very high values. I believe that the PLO at no stage in its war for liberation has 
abused privilege; at no stage has it terrorised; it is at war." Ambassador Harriman is quoted in 
William O'Brien, Reprisals, Deterrence and Self-Defense in Countertenor Operations, 30 VA. J. 
INT'L L. 449 (1990). If at that time, the Soviet Union, a permanent member of the Security 
Council, wholeheartedly subscribed to this statement, today Russia, which is facing separatist 
terrorism in Chechnya, as well as Central Asian successor states to the Soviet Union, adamantly 
reject such assessments of 'liberation' movements. 

113. DINSTEIN, supra note 6, at 192-221. 



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Jus ad Bellum and International Terrorism 



The question of immediacy is close also to two other issues: use of force in 
anticipation of an attack and defensive reprisals. Often military responses to 
terrorist attacks have to draw a fine balance between two controversial modal- 
ities of the use of military force in self-defense — the Scylla of anticipatory self- 
defense and the Charybdis of reprisals. As Gregory Travalio writes, "if the an- 
ticipated action by terrorists is not sufficiently imminent, the right to use force 
is not available for purposes of deterrence. On the other hand, if past terrorist 
actions by a group are too remote in time, the response by force is likely to be 
characterized as an illegal reprisal." 114 Because terrorist warfare usually con- 
sists of a series of relatively small-scale attacks that often need to be prevented 
by measures that combine some elements of retaliation (since a response co- 
mes after the attack) and anticipation (since a response comes in anticipation 
of a new attack), the exercise of the right to self-defense against terrorist at- 
tacks requires at least some (sometimes quite considerable) practical use of 
concepts of a anticipatory self-defence and defensive reprisals. 

The need to use preventive force against terrorists becomes even more ob- 
vious when we take into consideration the fact that terrorists do not attack 
military targets that are usually well defended and that, at least in principle, 
should be ready to defend themselves when attacked. Anne-Marie Slaughter 
and William Burke- White observe that "in our previous understanding of war, 
it was possible to attack the vital life within a nation by first destroying the 
army that protected it." 115 Today, terrorists avoiding military objectives inten- 
tionally target defenseless civilians and civilian objects, i.e., non-combatants; 
they choose soft targets that would be almost inevitably destroyed if attacks 
were not prevented. Therefore, in many cases preventive, anticipatory or in- 
terceptive self-defense is the only effective method of preventing terrorists 
from achieving their goals. 

Interceptive self-defense seems to indicate that only when an attack is al- 
ready launched is it legitimate to intercept (e.g., intercepting missiles on their 
boost trajectories but not destroying them in their launching silos). In the case 
of traditional inter-state conflicts this is probably a prudent interpretation of 
the right to self-defense. However, today and in the context of self-defense 
against terrorist attacks (especially if the latter have access to WMD), preven- 
tive or anticipatory measures seem justified. As terrorism is usually a continu- 
ous process being carried out in the murky underworld, it would be too late or 



1 14. Gregory Travalio, Terrorism, International Law, and the Use of Military Force, 18 WIS. INT'L 
L.J. 165 (2000) [hereinafter Travalio]. 

115. Slaughter & Burke-White, supra note 77, at 3. 

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Rein Miillerson 



risky to rely only on the interception of individual attacks that have been al- 
ready irrevocably launched without attempting to destroy terrorist bases, sup- 
ply lines, training camps and other similar facilities. 

The necessity to use military force in self-defense against terrorist attacks 
shows that the dividing line drawn, for example, by the International Court of 
Justice in the Nicaragua Case between armed attacks and "less grave forms" of 
the use of force, 116 is no longer tenable, if it ever was. 117 Dinstein, referring to 
J.L. Hargrove and J.I. Kunz, has rightly emphasized that "in reality, there is no 
cause to remove small-scale armed attacks from the spectrum of armed at- 
tacks. Article 51 in no way limits itself to large, direct or important armed at- 
tacks." 118 The same criticism also applies to Article 3(g) of the Definition of 
Aggression, which emphasizes that actions by armed bands, groups, irregulars 
or mercenaries "sent by or on behalf of a state," which carry out acts of armed 
force against another state "of such gravity as to amount to an actual armed 
attack conducted by regular forces" could be considered as acts of aggres- 
sion. 119 Why only attacks of such gravity? Why this difference? It is the re- 
quirement of proportionality between a legitimate purpose for the use of force 
and the character and scale of force necessary to achieve that purpose that has 
to take care that relatively minor incidents involving the use of military force 
do not escalate (sometimes unintentionally) into whole-scale wars. 

Antonio Cassese recently observed that: 

As to the specific question of how to react to terrorist attacks, some states 
(notably Israel, the United States and South Africa) argued in the past that they 
could use force in self-defence to respond to such attacks by targeting terrorist 
bases in the host country. This recourse to self-defence was predicated on the 
principle that such countries, by harbouring terrorist organisations, someway 
promoted or at least tolerated terrorism and where therefore "accomplices": 
they were responsible for the so-called indirect armed aggression. However, the 
majority of states did not share let alone approve this view. Furthermore, armed 
reprisals in response to small-scale use of force short of an "armed attack" 
proper, have been regarded as unlawful both against states and against terrorist 



116. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Merits, 
I.C.J. Reports 1986, para. 191 [hereinafter Nicaragua] . 

117. Many authors have criticized this distinction drawn by the ICJ between armed attacks and 
"mere border incidents." See, e.g., ROSALYN HlGGINS, PROBLEM AND PROCESS: 
INTERNATIONAL LAW AND HOW WE USE IT, 250-51, (1994); DINSTEIN, supra note 6 at 192. 

118. DINSTEIN, supra note 6 at 192. 

119. Definition of Aggression, supra note 112, art. 3(g). 



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Jus ad Bellum and International Terrorism 



organisations. The events of 1 1 September have dramatically altered this legal 
framework." 120 

This traditional attitude that may have been prevailing before 9/1 1 was predi- 
cated on the paradigm of traditional state-to-state conflicts but today it does 
not correspond to the character and seriousness of terrorist threats. 

In the case of terrorist attacks the immediate gravity of a single attack may 
not be very significant indeed either because this is a link in a chain of attacks, 
or even more importantly, because in the case of a terrorist attack the immedi- 
ate target is not the only and even the most important objective. As Michael 
Reisman writes: 

terrorism, like any other act of unauthorised violence, has three expanding 
circles of effects including: an immediate effect of killing or injuring people, who 
are deemed, either for all purposes or in that context, to constitute an 
internationally prohibited target; an intermediate effect of intimidating a larger 
number of people and thereby influencing their political behaviour and that of 
their government; and an aggregate effect of undermining inclusive public 
order. 121 

This means that legal frames of responses to terrorist attacks cannot be tai- 
lored on the basis of the experience of the World Wars (or even the Gulf War 
for that matter) only. 

In order to provide for effective responses to terrorist attacks, international 
law cannot prohibit the use of military force in self-defense in cases that the 
ICJ may have defined as "less grave forms." 122 At the same time, responses to 
terrorist attacks may combine significant elements of deterrence, anticipation 
and reprisal. The changing character of jus ad bellum, it seems, will most prob- 
ably lead in the short run towards the emergence of a kind of flexible (soft) jus 
ad bellum — jus ad bellum in which the concept of legitimacy instead of legal- 
ity is central, where the impact of a few specially interested states (or their or- 
ganizations such as NATO, G8 or G9) is crucial, where the legitimizing role of 
the Security Council (especially its P5) remains noticeable, where the practice 
of some states and opinio juris of other states may considerably differ and where 



120. Antonio Cassese, Terrorism Is also Disputing some Crucial Categories of International Law, 12 
EUR. J. INT'LL. 996 (2001). 

121. W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT'L L. 1, 6-7 
(1999). 

122. Nicaragua, supra note 118, at para. 191. 



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the frontiers between interstate and intrastate conflicts is becoming more and 
more blurred. Such a flexible set of guidelines enjoying consensus of the ma- 
jority of states and being supported by the world public opinion creates rela- 
tive predictability and is therefore preferable to "hard," definitive and clear 
rules that are not observed in practice. 

Terrorist Organizations and States Supporting Them 

Another specific feature of military responses to terrorist attacks arises from the 
link between terrorist organizations and states in the territory, or from the terri- 
tory, of which they operate. Somewhat different is the situation when a state 
supports terrorists (e.g., financially, logistically, politically, ideologically or oth- 
erwise) but its territory is not used as a basis for launching terrorist attacks. Dif- 
ferences, however, do not mean that the latter can eschew responsibility for its 
support of terrorists. 

The fact that non-state entities are directly responsible under international 
law for armed attacks and that states have the right to use force in self-defense 
against such entities does not mean that the states from which these terrorists 
operate are not themselves responsible under international law. Depending 
on the degree of support given to, or control exercised by, a state over a terror- 
ist organization such a state may be directly responsible for armed attacks car- 
ried out by terrorists. 

It has been argued, however, that a mere tolerance of the presence of ter- 
rorist groups in the territory of a state or even encouragement of their activi- 
ties is an insufficient connection to constitute an armed attack by that state. 123 
It has been asserted that the state must exercise actual control over a terrorist 
organization to have the latter's acts attributed to the state. 124 

In the Nicaragua Case the ICJ held, for example, that assistance in the form 
of providing weapons, logistical or other support did not amount to an armed at- 
tack. 125 The Court found that by training, arming, equipping, financing and sup- 
plying the Contra forces or otherwise encouraging, supporting and aiding 
military and paramilitary activities in and against Nicaragua" the United States 
had been "in breach of its obligation under customary international law not to 
intervene in the affairs of another state." 126 The Court also said that only "by 

123. See, e.g., RICHARD ERICKSON, LEGITIMATE USE OF FORCE AGAINST STATE SPONSORED 
TERRORISM, 134 (U.S. Air War College 1989). 

124- Francis A. Boyle, Military Responses to Terrorism: Remarks of Francis A. Boyle, 81 PROC. AM. 
SOC'YlNT'LL. 288(1987). 

125. Nicaragua, supra note 119, at para. 195. 

126. Id., para. 292 (3). 

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Jus ad Bellum and International Terrorism 



those acts of intervention referred to in subparagraph (3) (i.e., aiding the 
contras and otherwise encouraging and supporting military and paramilitary ac- 
tivities in and against Nicaragua)," which involved "the use of force," had the 
United States acted "in breach of its obligation under customary international 
law not to use force." 127 Here the Court clearly made a distinction between the 
breach of the non-use of force principle and the concept of armed attack since it 
did not consider that any support by the United States to the Contras consti- 
tuted an armed attack. However, it is not clear at all as to the kind of force (used 
by whom?) the Court spoke of in paragraph 292 (4). If it is force used by the 
Contras against the Sandinista government then should not it be quite obvious 
that the US support as a whole should have been in breach of the non-use of 
force principle? 

Judge Stephen Schwebel in his dissenting opinion concluded that "the 
Judgement of the Court on the critical question of whether aid to irregulars 
may be tantamount to an armed attack departs from accepted — and desir- 
able — law." 128 Judge Sir Robert Jennings expressed a similar view stating that: 

it may be readily agreed that the mere provision of arms cannot be said to 
amount to an armed attack. But the provision of arms may, nevertheless, be a 
very important element in what might be thought to amount to armed attack, 
where it is coupled with other kinds of involvement. Accordingly, it seems to me 
that to say that the provision of arms, coupled with logistical or other support is 
not armed attack is going much too far. 129 

Although it seems that during the Cold War, state practice did not con- 
sider assistance in the form of arming and financing armed groups that oper- 
ated in other countries as armed attacks by supporting states (because both 
parties of the Cold War used to support financially and militarily their prox- 
ies), today there are rather strong arguments in favor of reconsidering such a 
condescending posture towards states that support terrorist groups. That in- 
ternational law has not always had such a complacent attitude towards 
attributability to states of acts of non-state entities was recently reinforced by 
the International Criminal Tribunal for the Former Yugoslavia (ICTY). 

The Appeals Chamber of the ICTY in its Judgement of 15 July 1999 in the 
Dusco Tadic case found that "a first ground on which the Nicaragua test as 
such may be held to be unconvincing is based on the very logic of the entire 



127. Id., para. 292 (4). 

128. Nicaragua, supra note 119, at Dissenting Opinion of Judge Schwebel, para. 155. 

129. Nicaragua, supra note 119, at Dissenting Opinion of Judge Jennings, para. 543. 



120 



Rein Mullerson 



system of international law on State responsibility." 130 The Chamber stated 
that under this logic 

States are not allowed on the one hand to act de facto through individuals and 
on the other to disassociate themselves from such conduct when these 
individuals breach international law. The requirement of international law for 
the attribution to States of acts performed by private individuals is that the 
State exercises control over the individual. The degree of control may, however, 
vary according to the factual circumstances of each case. The Appeals Chamber 
fails to see why in each and every circumstance international law should require 
high threshold for the test of control. 131 

The Chamber found that "the "effective control" test propounded by the Inter- 
national Court of Justice is at variance with international and State prac- 
tice." 132 References to state practice collected over many years, inter alia, in 
various ILC reports on the Draft Articles on State Responsibility seem to sup- 
port the position of the Appeals Chamber of the ICTY. 

Although one of the important features of the changing international land- 
scape is the increasing role (both positive and negative) of non-state actors, 
the world still is, and in the foreseeable future will remain, divided between 
sovereign states. Therefore, terrorists necessarily act (preparing for their at- 
tacks, training, receiving financial and other support) from the territory of 
some states even when they do not act on behalf of, or are not even supported, 
by any state. Such states are either unable or unwilling 133 to prevent non-state 
terrorist organizations using their territory for the purposes of carrying out at- 
tacks against other states. Thereby they are committing, using the language of 
the Draft Articles on State Responsibility recently adopted by the ILC, 134 inter- 
nationally wrongful acts either by action (condoning or supporting terrorists) 



130. See Prosecutor v. Tadic, Judgement of 15 July 1999 in the Appeals Chamber, at para 116, 
(ICTY Appeals Chambers, Jul. 15, 1999). 

131. Id., para. 117. 

132. Id., para. 124. 

133. The term 'unwilling' should here include not only tolerance of the presence of terrorist 
organizations and sympathy for their cause but also active support, assistance as well as various 
degrees of control. 

134. See generally Draft Articles, supra note 99. 

121 



Jus ad Bellum and International Terrorism 



or by omission (not preventing attacks from its territory against another 
state). 135 At the same time, as Gregory Travalio writes, 

although this may not necessarily preclude the use of military force in response 
to a terrorist attack emanating from such a state, the impotence of a state to 
control international terrorist organisations would not be an armed attack 
against another state, and, therefore the use of force in response is not expressly 
sanctioned by Article 51. 136 

However, this only means that the use of force is not sanctioned against 
such an impotent state. This does not mean that use of force would be unlaw- 
ful against the terrorist group which is present and operates in the territory of 
that state. If a state is impotent to prevent the presence of terrorist groups in 
its territory and their attacks against third states it must not prevent a victim 
state or its allies from exercising their right to individual or collective self-de- 
fense in response to armed attacks by terrorists. In such a case, the state from 
the territory o{ which a terrorist group operates is under the obligation not to 
hinder the victim state in the exercise of its right to individual or collective 
self-defense in the territory that it is unable to control. If such a state tries to 
prevent the exercise of the right to use force in self-defense against the terror- 
ist organization, it becomes an accomplice of the terrorist organization and in 
that case it is not important whether the state supports terrorists, or vice versa 
the latter, as it seems to have been the case with al Qaeda in Afghanistan, 
control the state. Otherwise, the impotence of territorial states would lead to 
impunity of terrorist organizations. 

Conclusion 

Simplifying a bit, the law of self-defense has, at least until recently, corre- 
sponded to the strictly inter-state nature of international society mostly in its 
bilateral manifestation. The law of collective security corresponds to rather 
feeble shoots of the supra-state elements in international society. But what 
about uses of force against terrorists or to protect fundamental human rights? 
These seem to be contrary to the very nature of a strictly inter-state system. 
However, the contemporary international system itself is less and less strictly 



135. Article 2 of the Draft Articles states "'there is an internationally wrongful act of a State 
when conduct consisting of action or omission' is attributable to the State and constitutes a 
breach of an international obligation of the State." Id. at art. 2. 

136. See Travalio, supra note 115, at 153. 

122 



Rein Miiller son 



an inter-state one. One of the consequences of such a change in the interna- 
tional system is the impossibility of seeing states as "black boxes." If states tra- 
ditionally collided as "billiard balls" (from the point of view of international 
law) in the "armed attack — self-defense" paradigm they could eventually dis- 
engage and continue, at least for a while, to co-exist more or less peacefully 
(often until the next conflict) without changing their internal, or even exter- 
nal, characteristics. Historically, this is what usually happened. The relatively 
recent Iraq-Iran war, for example, ended in such a way. However, even in the 
inter-state "armed attack — self-defense" paradigm it may be necessary, in or- 
der to break the cycle of violence, to change internal characteristics of some of 
the participants in the conflict. The de-nazification of Germany or demilitar- 
ization and democratization of Japan after WW II may serve as examples of 
such necessary changes. Even today there are potential, simmering or actual 
conflicts between states that could find peaceful and durable solution only if 
participating states (all or some) radically change their policies, including in- 
ternal ones. For example, Iraq was defeated in 1991 as a result of Operation 
DESERT STORM but notwithstanding measures requested from, and sanctions 
undertaken against it, the regime in power in Iraq is the same as it was in 1990 
and the threats it constitutes to the regional and world security are therefore 
the same too. To fight against terrorists without addressing circumstances 
conducive to the rise of terrorism or intervening for the sake of human rights 
without being ready to undertake considerable efforts focused on state-build- 
ing will be in most cases simply a Sisyphean toil. As Dmitri Trenin, writing on 
the future place and role of Russia in the world and referring, inter alia, to the 
Russian problems with Islamic militants, observes, 

there is no acceptable alternative to fighting Islamic terrorism. At the same 
time, cultural and humanitarian dialogue across that divide is a must, and the 
development of economic links, including new communications along both 
East-West and North-South axes, is one of the few instruments available to 
encourage modernization and help resolve or manage the various conflicts. 137 

I prefer to discuss the use o{ force against terrorists and not against terror- 
ism. Fighting terrorism or waging a war against terrorism (which in any case is 
a non-legal concept) goes far beyond jus ad bellum or jus in bello, for that mat- 
ter. Fighting terrorism implies, besides fighting terrorists through military, fi- 
nancial or law-enforcement means, also addressing the conditions conducive 



137. Dimtri Trenin, the End of Eurasia. Russia on the Border between 
Geopolitics and Globalization, 196 (2002). 

123 



Jus ad Bellum and International Terrorism 



to the emergence and flourishing of terrorism. One of the peculiar features of 
the fight against terrorism is that tough military or, depending on circum- 
stances, law enforcement measures, practically always have to be paralleled by 
the search for political solutions to problems exploited by terrorists or by 
changes in the social and economic conditions that are conducive to 
terrorism. 

Looking at the character and causes of some of the most violent contempo- 
rary conflicts, states, and the societies they represent, have to become in some 
important respects more similar to each other than they are today. Cultural di- 
versity is, of course, a source of the rich tapestry of the world. However, when 
huge developmental gaps are taken for cultural differences, denying at the 
same time, that certain cultural factors condition the existence of these gaps, 
that such factors may be also a serious source of the wealth of some societies 
and the poverty of others, serious sources of conflicts cannot be ignored. If 
people, for example, in Saudi Arabia or other Islamic states have only two 
choices — the corrupt and authoritarian regimes or Islamic fundamental- 
ism — these societies will remain a fertile soil for terrorism. Of course, all reli- 
gions have always had and many still have this totalitarian exclusivist trend. 
As Hamid Enayat has written, "if Islam comes into conflict with certain postu- 
lates of democracy it is because of its general character as a religion. . . . An in- 
trinsic concomitant of democracy . . . involves a challenge to many a sacred 
axiom." 138 And Rabbi David Hartman writes: "[a] 11 faiths that come out of the 
biblical tradition — Judaism, Christianity and Islam — have the tendency to be- 
lieve that they have the exclusive truth." 139 However, in contradistinction to 
Christianity, Islam has not gone through what Francis Fukuyama has called 
the Protestantisation of Catholicism 140 or the secularization of religious 
world views. Bassam Tibi writes: 

[ijn the Middle East as well as in other parts of the World of Islam, there has 
never been a process of structural change underlying a substantive shift in 
worldview from a religious one to a secular one, as did occur in the historical 
process that took place in Europe. Given the community and dominance of the 
Muslim's worldview there has never been a genuine process of secularisation in 
the Middle East underlain by secular ideologies. 141 



138. Hamid Enayat, modern islamic Thought, 126 (1982). 

139. id. 

140. Francis Fukuyama, Trust: The Social Virtues and the Creation of 
Prosperity, 41 (1995). 

141. Tibi, supra note 33, at 97. 

124 



Rein Mutter son 



Secularization of religious worldview has helped Western societies to change 
(modernize) in response to natural and social challenges. Returning to basics is 
never an adequate response to any new challenge and only adequately respond- 
ing to constant challenges are societies able to develop and flourish. Modern- 
ization, including democratization, the development of human rights, 
including freedom of expression, and equality between sexes, is a conditio sine 
qua non of the development of Islamic and other societies in the so-called de- 
veloping world. Karim Raslan, a Malaysian lawyer, writes that: 

[t]he moral bankruptcy of militant Islam as embodied by the Taliban, as well as 
its abject failure in socio-economic terms, should embolden the leaders of 
moderate, predominantly Muslim nations such as Turkey, Indonesia and 
Malaysia in their struggle against religious obscurantism and backwardness. 
Needless to say, Saudi Arabia, as an absolute monarchy with no concern for civil 
liberties, does not constitute a model Islamic polity. 142 

He also correctly points out that reforms must be driven from within the Is- 
lamic world. It is doubtful whether those Islamic scholars who, as Karim Raslan 
writes, try to "extract the prophetic truths from the Koran to show the inherent 
compatibility of modern-day concerns with sacred texts," 143 can do what Chris- 
tian scholars failed in doing. Bassam Tibi has written that: 

[t]he predicament of Islamic fundamentalists vis-a-vis modernity has in fact 
become an expression of their ambiguity: on the one hand they seek to 
accommodate instrumentally all or most of the material achievements of 
modernity (that is, science and technology) into Islamic civilisation; on the 
other hand, they reject vehemently the adoption of the man-centred rationality 
that has made these achievements possible. 144 

As a result of that we have post-modern weapons in pre-modern hands. Bassam 
Tibi further writes that "secular cultural modernity is worth defending against 
the predations of religious fundamentalisms," and he and Ernest Gellner share 
the conviction that "reason and enlightenment need also be protected from the 
intellectual adventures of postmodernism." 145 1 agree. 



142. Karim Ralsan, Now a Historic Chance to Welcome Muslims into the System, INT'L HERALD 
TRIBUNE, Nov. 27, 2001, at 8. 

143. Id. 

144. Tibi, supra note 33, at 1 18. 

145. Id. at 47. 



125 



Jus ad Bellum and International Terrorism 



Western political correctness that is not unrelated to the post-colonial 
sense of guilt and shame for injustices committed against non-Western peo- 
ples sometimes reminds of the ostrich who, facing a threat, hides its head in 
sand. Something like that happens when some Western liberals discuss, or 
face, threats from culturally and religiously different sources. It is correct, (and 
also politically correct), to say that poverty and injustice are conducive to ter- 
rorism (whether they are root-causes or not, is another matter). However, it is 
also correct (but politically incorrect), to say that often poverty and injustice 
are due not only and not so much to the colonial or neo-colonial inheritance, 
but are of endogenous, and not exogenous, origin. Chris Brown writes that: 

the West's handling of the religious dimension of the current conflict has been 
based on a rather irritating, if perhaps politically understandable, double 
standard. Christians such as Tony Blair and George W. Bush — undeniably 
sincere in their beliefs, but living in a world where religious conviction is tinged 
with irony — cannot express their own deeply held convictions in explicitly 
Christian terms for fear of alienating the decidedly un-ironic beliefs of their 
coalition partners in Pakistan and the Arab world. The sensibilities of the 
latter — however irrational — have to be respected; and, indeed, respect in this 
case seems to mean actually pandering to irrational. The implicit assumption 
seems to be that it would be both unfair and unsafe to subject Muslim beliefs, 
attitudes and behaviour to the kind of robust criticism common in Western 
societies. 146 

Brown calls it "reverse racism" that is expressed, for example, in the words of 
British correspondent of The Independent Robert Fisk who, as a Westerner, was 
beaten up in Afghanistan, but who seemed to understand and justify the be- 
havior of his tormentors "given the indignities and violence to which they had 
been subjected." 147 As New Yorkers seem not to be justified in beating up Mus- 
lims, the obvious explanation, writes Brown, is that Muslims as individuals can- 
not be held morally responsible for their acts in the way New Yorkers can." 148 
Politicians and diplomats may be justified (naturally not always lest it become a 
bad habit) in avoiding straight talk when building shaky but necessary coali- 
tions but journalists and especially academics have to try to uncover truths 
however unpleasant or inconvenient they may be. Pretending that religious 



146. Brown, supra note 63, in WORLDS IN COLLISION, supra note 47, at 295. 

147. Robert Fisk, M> Beating by Refugees is Symbol of the Hatred and Fury of the Filthy War, THE 
INDEPENDENT, Dec. 10, 2001, at 1. 

148. Brown, supra note 63, in WORLDS IN COLLISION, supra note 47, at 295. 



126 



Rein Miillerson 



fundamentalism has nothing to do with the religion of which it is one of the 
trends does not help. 

The war against terrorism requires moral clarity, intellectual sophistication 
and military toughness — qualities that are not always in harmonious relation- 
ship. This makes that war especially difficult. However, only addressing all the 
conditions that are conducive to the emergence and flourishing of terrorism, 
searching for solutions to political situations and crises that are exploited by 
terrorists but that often are real and serious, using available and creating new 
criminal justice mechanisms and, finally, when necessary intelligently resort- 
ing to military coercion, is it possible to control terrorism. 



127 



IV 



Panel I 
Commentary — Jus ad Bellum 

Robert Turner 1 




tarting with the issue of the Taliban, Mike Schmitt continues to be trou- 
bled about the legality of using force against the Taliban. I began at this 
position also. Indeed, at one point I authored an opinion for an editorial page 
stating that if the Taliban resisted when the United States used force against 
al Qaeda, it would be legally permissible to use force against the Taliban. Sub- 
sequently, I have re -thought this view and I now think the appropriate way to 
deal with this issue is to recognize that the Taliban was not in fact either de jure 
or de facto the lawful government o{ Afghanistan. 

To begin with, at the height of the "Taliban Regime," only three countries 
in the world, Saudi Arabia, United Arab Emirates, and Pakistan, conducted 
diplomatic relations with the Taliban. This means that 189 countries did not. 
When the UN Security Council ordered countries to either break relations 
with the Taliban or not to have dealings with the Taliban, the number of 
states with diplomatic relations with the Taliban became one, Pakistan. As an 
aside, I believe that Pakistan was probably encouraged by a number of states to 



1. Professor Robert Turner co-founded the Center for National Security Law at the University 
of Virginia School of Law in April 1981 and is its Associate Director. He is a former holder of the 
Charles H. Stockton Chair of International Law at the US Naval War College in Newport, 
Rhode Island. 



Panel I Commentary — Jus ad Bellum 



retain such a relationship with the Taliban in order to have a state capable of 
communicating demands to the Taliban. However, almost all states that com- 
prise the world community did not recognize the Taliban as the government 
of a sovereign state. Moreover, at the time the United States initiated the use 
of military force against the Taliban, the UN Security' Council, on behalf of 
the international community, had taken the position that the Taliban did not 
comprise the government of a state. In fact, the Security Council consistently 
has referred to them as the "faction in Afghanistan known as the Taliban" so 
as to ensure there is a clear international understanding that the Taliban do 
not comprise the recognized government of the country of Afghanistan. 2 

The easiest way then, to resolve the issue of whether the Taliban was the 
recognized government of Afghanistan or not is to conclude that the Taliban 
was a religious force that had seized control over substantial parts of Afghani- 
stan and was trying to enforce its moral rules upon the people. I do not believe 
that the Taliban viewed itself as the. government of Afghanistan. My strong 
guess is that military leaders of the Taliban militia did not hold commissions 
issued in the name of the government of Afghanistan nor did they think of 
themselves as the armed forces of Afghanistan but rather as the enforcement 
arm of a religious organization or entity. Before Operation ENDURING FREE- 
DOM began, I do not think the United States government, its citizens, or the 
citizens of Afghanistan perceived that the United States was going to war with 
Afghanistan. I think the perception and the reality were that the United 
States was using force inside Afghanistan to bring to an end a very abusive, il- 
legitimate, totalitarian regime, controlling the people of that country. The 
United States was liberating the people of Afghanistan not oppressing them. 

On a related note, an argument exists based on humanitarian intervention 
grounds for the US intervention in Afghanistan. After all, if one takes the po- 
sition that international law makes it unlawful for sovereign states to inter- 
vene to prevent the genocide in World War II or the slaughter of two-million 
Cambodians, then international law itself has become part of the problem, not 
the solution. Indeed my friend Rudy Rummel in his book Death by Government 
points out that during the 20th century, probably three to four times more 
people were slaughtered by their own governments than died in hostilities 
throughout the entire century. 3 

Now let me raise a trivial point and one I have previously discussed with 
Professor Schmitt. Mike refers to the September 11th attacks as "causing 



2. See, e.g., S. C. Res. 1193 U.N. SCOR, 53d Sess., U.N. Doc. S/l 193/(1998), para. 7. 

3. RUDY RUMMELL, DEATH BY GOVERNMENT (1994). 

130 



Robert Turner 



property and financial damage measuring in the hundreds of millions of dol- 
lars." The reality is that this cost must be in the many billions of dollars. 
Counting only the value of the human lives lost in the attack on the World 
Trade Center, the cost would surely be in the billions of dollars. This is to say 
nothing of the incredible clean-up efforts currently underway or the impact of 
the attacks on financial institutions throughout the world. Added to this, of 
course, are the countless costs such as the lost time of business executives to 
airport security, the cost of strengthening cockpit doors, the loss to the airline 
industry. 

These costs are only financial in nature though. How much more difficult 
to attempt to quantify the emotional costs in fear, anger and grief? I recently 
lectured on terrorism at the Naval Justice School, and my son came with me. 
During my presentation, my nine-year-old son drew a picture of the World 
Trade Center with some very poignant words about terrorism. This type of 
emotional cost cannot be measured in dollars but it is nonetheless tremen- 
dous. When all of these costs are quantified, we may well be talking in the tril- 
lions of dollars. 

More substantively, I have a nuanced difference with Mike Schmitt regard- 
ing the definition of what an "armed attack" truly is. I think Professor Schmitt 
is taking a literalist approach to the UN Charter regarding the definition of an 
armed attack. It is true that Article 5 1 refers to the inherent right of self de- 
fense if an armed attack occurs against a member of the United Nations. 4 
However, Professor Schmitt also makes the point that only members of the 
United Nations are cloaked with the inherent right of self-defense pursuant to 
Article 51. While perhaps true with respect to Article 51 in the literal sense, 
this is false in reality inasmuch as the inherent right to self-defense is a corner- 
stone of customary international law. As an example, when non-UN member 
North Korea invaded non-UN member South Korea, the United Nations Se- 
curity Council acted and authorized the use of force in collective self-defense. 
Clearly, South Korea had this right before the action of the Security Coun- 
cil. Undoubtedly, the prohibition on the use of aggressive force contained in 
Article 2(4) of the UN Charter is binding but the more important point is 



4. U.N. CHARTER, art. 51, provides that "[n]othing in the present Charter shall impair the 
inherent right of individual or collective self-defence if an armed attack occurs against a Member 
of the United Nations until the Security Council has taken measures necessary to maintain 
international peace and security." 

131 



Panel I Commentary — Jus ad Bellum 



that Article 51 of the Charter does not create the right of self-defense. 5 While 
Article 5 1 was one of the most important parts of the charter, it was also an 
afterthought. 

The prohibition against the aggressive use of force is embodied in Article 
2(4) of the UN Charter. With the conclusion of the Act of Chapultepec in 
1945 6 which embodied the principle of collective self-defense, the United 
States and its Latin American neighbors wanted the UN Charter to clearly 
state that if the Security Council was blocked from taking action by a veto or 
some other reason, the traditional right of collective self-defense as embodied 
in the Act of Chapultepec remained unimpaired and available. This was the 
ultimate purpose of Article 51 of the United Nations Charter. 

Although the drafters of the UN Charter had in mind World War I and 
World War II, the French version of Article 5 1 uses the term armed aggres- 
sion and not armed attack and I believe this to be the more appropriate focus 
of Article 51. The question is whether there is a wrongful act involving the use 
of lethal force that creates a right to use force in self-defense. Mind you, the 
proportionality doctrine applies in this analysis and a small incursion will not 
authorize a nuclear response or any disproportional response. 

This view is quite clearly supported by a review of the notes exchanged at 
the time of the Kellogg Briand Pact of 1928. Prior to entry into force of this 
Pact, a number of countries were prepared to include reservations to their rati- 
fication reserving the right to self-defense. The US response was to send out a 
diplomatic note saying the right to self-defense is imprescriptable. This right 
pre-exists treaties, is inherent in treaties, and cannot be taken away, even by 
treaty. Interestingly, the Russian text of Article 5 1 also does not refer to the 
inherent right of individual or collective self-defense but instead to the 



5. In 1928, Secretary of State Frank Kellogg stated "that right is inherent in every state and is 
implicit in each treaty. Every nation is free at all times and regardless of treaty provisions to 
defend its territory from invasion and it alone is competent to decide whether circumstance 
require recourse to war in self-defense." Frank B. Kellogg, Address Before the American Society 
of International Law (Apr. 28, 1928) in 22 PROC AM. SOCT INT'L L. 141, 143 (1928). This 
quote constituted official US recognition at the time that the right of self-defense cannot be 
restricted by treaty. 

6. Inter-American Reciprocal Treaty of Assistance and Solidarity (Act of Chapultepec, 
Mexico); March 6, 1945 This act provided: 

[t]hat every attack of a State against the integrity or the inviolability of the territory, or 
against the sovereignty or political independence of an American State, shall, 
conformably to Part III hereof, be considered as an act of aggression against the other 
States which sign this Act. In any case invasion by armed forces of one State into the 
territory of another trespassing boundaries established by treaty and demarcated in 
accordance therewith shall constitute an act of aggression. 

132 



Robert Turner 



imprescriptable right of individual or collective self-defense. Thus, given the 
US position and indeed that of the nations that became signatories to the 
Kellogg Briand Pact, the individual and collective right to self-defense is in- 
deed imprescriptable. 

So, to state that after entry into effect of the UN Charter, self-defense is 
only permissible in response to an armed attack, misses the point that lethal 
force continues to be available to states, members and non-members, in self- 
defense and in collective self-defense supporting the victims of aggression o{ 
the illegal use of lethal force by other states. Accordingly, I do not believe the 
standard to invoke either self-defense or collective self-defense to be quite as 
difficult to achieve as perhaps Professor Schmitt indicates. 

Additionally, I believe that the International Court of Justice in the Military 
and Paramilitary Activities Case In and Against Nicaragua 7 quite simply, reached 
the wrong conclusion. This case had more political involvement than most 
cases and in my view does not reflect the law. Although Article 59 of the Stat- 
ute of the ICJ provides that ICJ decisions have "no binding force except be- 
tween the parties and in respect to that particular case," 8 such decisions are 
often very useful for international lawyers trying to understand the developing 
law. However, with the exception of the brilliant dissent authored by Judge 
Schwabel, the ICJ decision in the Nicaragua Case is mostly cited in disagree- 
ment. In my opinion, this particular case has absolutely no precedential value. 

The Caroline Case I think is better viewed as a description of anticipatory 
self defense than of self defense. 9 Others may disagree but if you really look at 
the facts, the steamboat was being fitted out with the intention oi providing 
support to rebels in Canada. The British crossed the Canadian-US border, set 
the Caroline afire, cut it adrift, and apparently not realizing there were people 
onboard sent it over the falls. I think the Caroline Case may be too strong a 
test for self-defense. Regardless of which term is used, there ought to be an 
overwhelming presumption against the legality of initiating force prior to an 
attack by another country. But, particularly in an environment of weapons of 
mass destruction, the idea that the law ought to say a Saddam Hussein gets 
one more free kick before a state can defend itself strikes me as not very well 
thought out. 



7. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Merits, 
1986 I.C.J. 14 [hereinafter Nicaragua Case]. 

8. Article 59, states: The decision of the Court has no binding force except between the parties 
and in respect of that particular case. I.C.J. Statute, Article 59. 

9. See R.Y. Jennings, The Caroline and Mcleod Cases, 32 AM. J. INT'L L. 82 (1938). 

133 



Panel 1 Commentary — Jus ad Bellum 



On a related note, Professor Schmitt seemed to struggle a bit with justifica- 
tion for the attacks on the al Qaeda terrorist group. This is so because Article 
2(4) of the UN Charter only talks about states. This seems to be a somewhat 
easier problem to resolve though. The Charter is designed to primarily defend 
the rights of states although it also set the stage for a tremendous growth of in- 
ternational humanitarian law involving individuals. I think the best view is 
that terrorists such as al Qaeda members are just like pirates in the sense that 
they are the common enemy of mankind. I think this should be the official US 
position, that terrorists occupy the same legal status as pirate. Note that this 
does not mean that terrorists are not protected by international law. Just as 
you cannot murder pirates, you cannot murder, maim, or torture terrorists. 
Both of these groups are entitled to some fundamental due process protections 
once they have either surrendered or are under your control. However, as long 
as they continue to engage in piracy or ongoing acts of terrorism, they are law- 
ful targets. 

With respect to Rein Miillerson's paper, his notion that the UN Charter 
continues to be updated by evolving customary international law makes great 
sense. I also share his view that al Qaeda is more the marionette than the 
Taliban. Professor Miillerson's comments on post-modern societies in Europe 
and the tension created between post-modern European societies and the still 
modern society of the United States were also quite intriguing. The tension 
between these two models presents serious problems. 

Sun Tzu teaches us that the acme of skill is not to win one hundred victo- 
ries and one hundred battles but to subdue the enemy without fighting. 10 The 
best way to do that with thugs such as Osama bin Laden and Saddam Hussein 
is to demonstrate to them that the perceived benefits of their behavior are 
greatly outweighed by the perceived cost. To do this, the world must unite 
against them. 

We had to use force in 1991, but at that point we reestablished the credibil- 
ity of the world community through the Security Council. Sadly, since then, 
we have largely frittered away that credibility in a variety of rather tragic inci- 
dents. At least prior to 9/11, we missed several opportunities to respond firmly 
to threats to the peace and particularly the problem of terrorism. And sadly, 
time is not on the side of the United States nor the other peace loving coun- 
tries. In this era of weapons of mass destruction, this ostrich-like idea that the 
United States should not do anything until Saddam Hussein obtains weapons 
of mass destruction and delivery systems is fatally flawed. Should the United 



10. SUN TZU, THE ART OF WAR (Samuel Griffith trans., 1963). 

134 



Robert Turner 



States really wait to act until after Saddam Hussein blows up his neighbors or 
destroys Israel? This approach is not helpful to the cause of peace. 

I do not share Professor Mike Glennon's view that there is no coherent in- 
ternational law regarding the intervention of states. The basic prohibition 
against the aggressive use of force by states is well understood. As an example, 
even before the United Nations Charter, when Adolf Hitler invaded Poland, 
he claimed he was defending Germany from Poland. This was a lie but why did 
Hitler bother to lie? Hitler understood that, by itself, aggression was unlawful 
and that the world community viewed aggression as unlawful. Similarly, when 
Kim II Sung invaded South Korea in 1950, he claimed that North Korea was 
simply defending itself against attacks by South Korea. This too was a lie. 
These two events highlight the reality that even the worst tyrants understand 
that it is illegal to engage in major acts of aggression. They mask it. 

When the Sandinistas attempted to overthrow the government of El Salva- 
dor, they did a brilliant job of turning the world against the defensive response 
of the United States. But they did not come out and claim a right to overthrow 
the government of El Salvador. They did it in secret because they knew to do 
so was unlawful. If you read the American and Nicaraguan briefs before the 
world court, it would be hard to distinguish them. They basically gave the 
same summary of the law. 11 And each party charged the other with providing 
money, support and advice and said this is illegal. The question dealt with 
whether the US involvement was a defensive response, or was it an act of ag- 
gression directed against Nicaragua? I think the evidence now clearly shows it 
was a defensive response. 



11. See Nicaragua Case, supra note 7. 

135 



V 



Panel I 
Commentary — Jus ad Bellum 

William Dalton 1 



I note with interest and some curiosity that the two presenters for this panel 
employ a UN Charter paradigm when discussing the war on terrorism. The 
inherent right of collective and individual self-defense embodied in customary 
international law might well be a more appropriate analytical starting point 
when discussing Operation ENDURING FREEDOM, however. This seems to be a 
fundamental question worthy of debate and discussion. Many of the questions 
raised by Rear Admiral Rempt this morning are also of a fundamental nature. 
Such questions as what is the nature of terrorism, are terrorists lawful combat- 
ants, do terrorists comply with the law of armed conflict; do they wear a distinc- 
tive uniform, are they under military command, are all questions of great 
import as the United States prosecutes this Global War on Terrorism. 

In my view, terrorists do not qualify as lawful combatants. Instead, they are 
unlawful combatants and international thugs. Given this starting point, why 
are nations constrained in pursuing and eliminating international terrorists? 
Why are preemptive strikes not routinely taken? One basic reason states oper- 
ate within the framework of international law is the existence and strength ac- 
corded state sovereignty. The UN Charter prohibits states from engaging in 



1. William Dalton is a retired Navy captain and now serves as the Assistant General Counsel for 
Intelligence with the US Department of Defense. 



Panel 1 Commentary — Jus ad Bellum 



aggressive wars against one another. 2 Numerous mutual agreements exist pur- 
suant to this same charter that recognize, with the exception of variations 
of self-defense, that the Security Council is the only organization that may 
authorize the aggressive use of force. This inability to use aggressive force, 
properly or improperly, constrains how states respond to international terror- 
ism. This is quite an interesting dilemma; one almost certainly not considered 
when the Charter itself was written. 

When looking at the Caroline Case, Secretary Webster was really applying a 
domestic concept of self-defense — the defender having his back to the wall 
and having to respond immediately. 3 Groups engaging in terrorist acts against 
the United States need time to plan, to organize, to mount such attacks. 
When applying the imminency requirement necessary for anticipatory self- 
defense to international terrorism, there must be a lessening of the immediacy 
of the threat. In other words, the requirement to have an immediate threat be- 
fore anticipatory self-defense can be invoked must be moderated. 

On a different matter, in looking at the close relationship between the 
Taliban and al Qaeda, it is clear that a mutual dependency existed between 
the two organizations. Each of these organizations enjoyed a mutual benefit 
from the other. The Taliban enjoying the purchasing power of al Qaeda funds 
and al Qaeda enjoyed the safe haven of Afghanistan provided by the Taliban. 
In order to allay the threat presented by al Qaeda it was necessary to prose- 
cute the Taliban as well because as long as the Taliban provided safe haven to 
al Qaeda, al Qaeda continued to be an imminent threat to the coalition part- 
ners. So it was as a matter of military necessity in applying anticipatory self- 
defense that action was undertaken against the Taliban. In my mind, this 
made the Taliban a perfectly legitimate target. Note also, that this analysis ap- 
plies to the current situation with Iraq. The key here is that of necessity. At 
some point, it will become necessary to respond to the Iraqi regime. At some 
point the threat will be so imminent and so serious that the international 
community will have to respond. Clearly then, the key to the overall war on 
terrorism is this notion of imminency and the exercise of the extraordinary 
right of self-defense. 



2. Article 2(4) of the United Nations Charter prohibits the aggressive use of force by member 
states; Article 51 recognizes the customary international law right of self-defense. 

3. See R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L. 82 (1938). 

138 



VI 



Panel I 
Discussion — Jus ad Bellum 



On the Application of Force to al Qaeda and Taliban Members 

Leslie Green 

I do not believe that we have distinguished sufficiently between al Qaeda mem- 
bers and Taliban members. Bear in mind that many of the volunteers from the 
United Kingdom or from other countries who went to join the Taliban had no 
desire to take part in al Qaeda terrorist activities. These volunteers were con- 
cerned with spreading a fundamentalist type of Islam. They were proselytizing, 
in many cases assisting Islamic colleagues in places such as Chechnya. 

The Taliban may indeed not have been the government of the people of 
Afghanistan. They were, however, the de facto authority in control of most 
of the territory comprising Afghanistan. If this be the case though, once 
al Qaeda has been dealt with, the issue of what are we doing in Afghanistan 
must be raised. Otherwise, we might be supporting a government in frustrat- 
ing a revolution or a civil war. 

Finally, the word terrorism is used with too much abandon. This pejorative 
has been too widely used and attributed to non- terrorist groups. Governments 
have always argued that, those trying to overthrow them are terrorists. His- 
torically, governments have also taken the position that if the group was fight- 
ing a government that was not liked, the group consisted of freedom fighters, 
fighting for their liberation. Care should be taken to not become involved in 
what are simply civil wars even when carried out by political ideologies that do 



Panel I Discussion — Jus ad helium. 



not appeal to us. Such civil wars do not rise to the level of terrorist movements 
simply because we do not like them. 

Rein Mullerson 

There are many governments which use the mantra of the Global War on Ter- 
rorism to fight their opponents who may not be terrorists at all. This danger, of 
course, always exists and can be seen today in both Russia and Central Asia. 
Our task is to distinguish between those using terror tactics and those who are 
not. It is true that in Afghanistan, and also in Chechnya and other places, reli- 
gious fundamentalists have used terror tactics. So one has to make distinctions 
between freedom fighters genuinely struggling for independence and common 
terrorists. Though I believe in many cases, if not in most cases, terrorists are 
independence fighters and independence fighters are terrorists too since they 
use terror tactics in order to achieve their aims. There should not be any differ- 
ence whether their aims are noble, lawful or not. If they use terror tactics, they 
are terrorists. 

Now about the distinctions between al Qaeda and the Taliban. Oi course, 
there are these distinctions. Al Qaeda is a worldwide net, and the Taliban was 
an endogenous organization operating only in the territory of Afghanistan. 
And the United States made these distinctions I believe. The United States 
demanded that the Taliban surrender Osama bin Laden and other leaders of 
al Qaeda to it and that the Taliban dismantle the bases used by al Qaeda. The 
Taliban did not comply with these requests and so the United States used 
force in self-defense against both al Qaeda and the Taliban. 

Perhaps a fine distinction between al Qaeda and the Taliban may be that 
you could initially attack only al Qaeda and then based upon the reaction of 
the Taliban, attack them as well. That is to say, if the Taliban come to the as- 
sistance of al Qaeda then they too could be properly targeted. This seems to 
me to be too formalistic, however, and international law does not require 
making this distinction. 

Robert Turner 

When asked, "who was the government of Afghanistan on 11 September?," I 
would respond by querying whether Somalia had a government a decade ago. It 
is clearly possible to have states that are so dysfunctional and so split that no au- 
thority constitutes the legitimate government. The UN Security Council, act- 
ing on behalf of the world community, has taken the position that the Taliban 



140 



Panel I Discussion — Jus ad Bellum 



was not the government of Afghanistan, referring to it only as a faction. 1 More- 
over, the Security Council had ordered all states to immediately cease support- 
ing terrorism, declaring such support a threat to the peace. 2 Given that the 
Security Council had de-legitimized any Taliban claim to act on behalf of the 
government of Afghanistan, it is hard to argue the case that the Taliban was 
the government of Afghanistan. In my view then, the Taliban was never the le- 
gitimate government of Afghanistan. This of course does not necessarily mean 
that a true, legitimate government actually existed within Afghanistan. 

I am not of the same opinion as Michael Schmitt that the case for using 
force against the Taliban would be easier to understand if the Taliban was the 
legitimate government of Afghanistan. Subparagraph 4 of Article 2 of the UN 
Charter protects states against intervention by other states. 3 The Lotus case 
tells us that international law is permissive. 4 The UN Charter and the Kellogg 
Briand Pact say states cannot use armed force in their political diplomatic re- 
lations against each other to solve problems. 5 States may use force to defend 
themselves against attacks by other states. 6 However, a large body of interna- 
tional law on state responses to attacks by non-state entities such as terrorist 
groups does not currently exist. 

States are not guarantors of the security of their neighbors but they do have 
a legal obligation to take reasonable steps to insure that their territory is not 
used to launch armed attacks against other states. 7 Having been placed on no- 
tice that terrorist activity is originating from within their territory and thereaf- 
ter demonstrating an unwillingness or inability to control such activity, a state 
is deprived to some degree of its right against non-intervention by the ag- 
grieved state. In this case, in the absence of other effective remedies, the ag- 
grieved state may enter the host state for the express purpose of self-defense 
against the terrorist threat. The aggrieved state may not generally attack the 



1. See generally S. C. Res. 1214, U.N. SCOR, 53d Sess., U.N. Doc. S/1214/(1998), and S. C. Res. 
1373, U.N. SCOR, 54th Sess., U.N. Doc. S/1373/(2001). 

2. Id. 

3. Article 2(4) specifically provides that "[a] 11 Members shall refrain in their international 
relations from the threat or use offeree against the territorial integrity or political independence 
of any state, or in any other manner inconsistent with the Purposes of the United Nations." U.N. 

Charter, art. 2(4). 

4. Lotus Case (Fr. v. Turk.), P.C.I.J. (ser. A) No. 10 (1923), 2 Hudson, World Court Reports 20 
(1929). 

5. Kellogg Briand Pact, 27 Aug 1928, 46 Stat. 2343, 94 U.N.T.S. 57. 

6. U.N. Charter, art. 51. 

7. Oscar Schachter, International Law. The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 
1626 (1984); JOHN F. MURPHY, STATES SUPPORT OF INTERN ATIONAL TERRORISM at 89 (1989). 

141 



Panel I Discussion — Jus ad Bellum 



host state's government or attempt to overthrow it. However, when that gov- 
ernment is actively engaged in supporting the terrorist, then it too becomes a 
lawful target. Under this rationale, the Taliban were clearly a legitimate target 
of the United States, after September 11th. 

A note of caution is appropriate though. The general principle that states 
may not use armed force as a means of resolving differences with other states 
in a non-defensive setting is thoroughly agreed upon and is tremendously im- 
portant to uphold. Taking the position, as some do, that there is no interna- 
tional law governing use of force is not only silly but it is harmful to the notion 
of the rule of law that prohibits states from engaging in aggressive wars. 

Michael Schmitt 

Once the Taliban refused to comply with the demands of the United States, it 
relinquished the exclusive right to act against ai Qaeda. At that point, the 
Taliban right to territorial integrity was subordinated to the right to self-de- 
fense possessed by the United States. This type of distinction is of critical im- 
portance because many states provide support to different rebel groups. This 
difference needs to be maintained to prevent the argument that any state pro- 
viding support to a rebel group in another state is engaging in an armed attack 
thereby authorizing the state to invoke self-defense as a basis for action. The 
US support of the Iraqi resistance is a great example of this. Clearly, the United 
States does not want to be in a position where international law permits 
Saddam Hussein to claim a right of self-defense against the United States sim- 
ply because the Unites States is funding the acts of the Iraqi resistance. 

Recognizing that the right to self-defense may only have applied initially 
against al Qaeda, as soon as the Taliban interfered with the US exercise of 
that right the Taliban properly became targetable as well. Such interference 
would have been wrongful and would constitute an armed attack by the 
Taliban, justifying the application of force against the Taliban by United 
States and coalition forces. I remain somewhat surprised that US and UK 
forces engaged the Taliban on the first day of Operation ENDURING FREEDOM 
instead of waiting until Taliban forces proved they were hostile to the exercise 
of US self-defense. Certainly, had coalition forces waited until the demonstra- 
tion of such hostility by the Taliban, their claim that their actions against the 
Taliban were legitimate because they had been attacked and were exercising 
the right of self-defense would ring truer. 



142 



Panel I Discussion — Jus ad Bellum 



Wolff von Heinegg 

I would caution against a rush to abolish recognized principles and rules of in- 
ternational law just to serve certain purposes. So for example, if it is agreed the 
Taliban is the de facto regime, the Taliban should be treated as such and the 
protections of the Third Geneva Convention should be applied to Taliban 
members. 8 

Christopher Greenwood 

The Taliban cannot be considered anything other than the de facto govern- 
ment of Afghanistan immediately before the use of force in October. They con- 
trolled 80% of the territory of the country. They controlled virtually all the 
levers of power within the state and all of the ordinary organs oi government 
from the central bank to the air traffic controllers. The border authorities were 
taking their instructions from the Taliban. I know it was not the kind of govern- 
ment the civilized world is used to. However, in functioning terms it was the 
government of Afghanistan. And therefore its acts are imputable to Afghani- 
stan. I agree with Professor Schmitt that this makes the actions of the coalition 
easier rather than more difficult to justify. However, I do not believe that the 
question of whether it is convenient to us or not that these people were the gov- 
ernment of Afghanistan has any real bearing on the question of whether they 
were in fact the government. It seems to me that we have become all too ready 
to accept interpretations of the law on the basis of the convenient result which 
they produce. As lawyers we should have the integrity to say this is what we 
think the law is. If the consequences of that are inconvenient, let us look to see 
what we can do about that. We should not, however, allow the wish to be father 
to the thought. 

Legitimacy of the Use of Force 

Robert Turner 

As is well established, there are two instances where force may be appropriately 
used. pursuant to the UN Charter: when authorized by the Security Council 
and in different variations of self-defense. 9 Interceptive self-defense or antici- 
patory self-defense is the theory that force may be used in order to protect 
against the prospective loss of lives caused by an armed attack. It is true 



8. See generally Geneva Convention Relative to the Treatment of Prisoners of War of August 1 2, 
1949.6U.S.T. 3516. 

9. See U.N. CHARTER arts. 42 and 51. 

143 



Panel 1 Discussion — Jus ad Bellum 



historically, pre-UN Charter, that if a state was slaughtering its own citizens, 
another state would have no legitimate basis for intervening as these were 
purely matters internal to the affairs of the state. However, the growth of inter- 
national humanitarian law subsequent to the Charter clearly recognizes that 
individuals have internationally respected rights and that when a state does en- 
gage in an act like genocide, it is not an internal matter. It is a matter of legiti- 
mate global concern and international law should apply and prohibit such state 
acts. To promote such international law, states must act as if it is their custom- 
ary practice to recognize a limited right of the world community to intervene, to 
stop massive slaughter of innocent people. 

Wolff von Heinegg 

There is no need to refer to humanitarian intervention as a legal justification 
for the attacks on Afghanistan. There seems to be a general consensus that the 
fight against terrorism justifies the action taken in and against Afghanistan and 
probably in and against all other states similarly situated. Referring to humani- 
tarian intervention as a basis for action against Afghanistan is counterproduc- 
tive, lessening state credibility in the fight against international terrorism. 

In looking at the action taken against Afghanistan, the strongest and best 
legal justification is self-defense. If it is proved that the acts of September 1 1th 
are attributable to the Taliban and thus to Afghanistan, every measure of self- 
defense may be taken. This is a very important point as it addresses the tradi- 
tional concept of self-defense and what we are today ready to acknowledge to 
be within the competency of the Security Council. If the Security Council in 
Resolution 1373 requires states to take very concrete measure against interna- 
tional terrorism, every state is obliged to do just that. Such obligations are 
conferred upon states by the Security Council for the purpose of peace and in- 
ternational security. Benefiting from these measures is the entire international 
community and not just the United States or Germany. So these obligations 
laid down by the Security Council, for example in 1373, can be qualified obli- 
gations. When a state does not comply with such resolutions, it violates its ob- 
ligations towards the community of states as a whole. This violation, when it 
constitutes a threat like permitting al Qaeda to continue operations in Af- 
ghanistan, can then be acted upon by the affected community o( states as a 
whole. Clearly in a situation like this, there is no need to advocate humanitar- 
ian intervention as the basis for such actions when the self-defense position is 
so strong. 



144 



Panel I Discussion — Jus ad Bellum 



Michael Schmitt 

It is important that Security Council Resolution 1368 and 1373 not be inter- 
preted as use of force authorizations, which they clearly were not. To do so 
would seem to somehow imply that the Security Council needs to act before 
the right of self-defense matures and can be exercised. The law of self-defense 
provides all the answers necessary for determining whether the right to act ex- 
ists for the United States as well as the international community. Security 
Council Resolution 1373 is relevant on the issue of whether or not the Taliban 
is in compliance with their obligations under international law to remove the 
al Qaeda threat on the territory that it controls. The resolution though, was 
not needed before the right to act in self-defense could be invoked by ag- 
grieved states. 

Christopher Greenwood 

The self-defense case for the use of force by the Americans and their allies in 
Afghanistan is an extremely powerful one and should not be watered down in 
any way by trying to squeeze interpretations out of Security Council Resolu- 
tions or referring to humanitarian law as the basis for intervention in Afghani- 
stan. This is a classic example of how to undercut a strong case. Although I am 
a supporter of humanitarian intervention, I do not believe that Afghanistan is a 
particularly good example of this. Instead of straining to understand actions in 
Afghanistan as for humanitarian purposes, we should instead stay focused on 
the self-defense reasons for such actions. 

If a neutral state allowed a belligerent to conduct military operations from 
its territory or from its waters and refused to put a stop to that, then the receiv- 
ing belligerent is entitled to take military action in the neutral's territory to 
put a stop to them. If the neutral state intervened to protect the belligerent it 
had been sheltering, then it exposed its own armed forces to attack. In the 
present case, this argument is particularly strong as the Taliban regime was 
subject to sanctions imposed by the United Nations beforehand for their sup- 
port for al Qaeda. The Taliban made it crystal clear that they would resist vig- 
orously any attempt by any part of the international community to deal with 
the al Qaeda presence in their territory. This is an important point as we do 
not want to give credence to a theory that as soon as any state has a group of 
terrorists which have operated from its territory, it exposes itself to armed at- 
tack. That very broad brush approach opens up the most horrific possibilities 
because at some time or other virtually every state however hard it had tried 
otherwise, had ended up with terrorists operating from its territory. 



145 



Panel I Discussion — Jus ad Bellum 



On Regime Change In Iraq 

Robert Turner 

Saddam Hussein's non-nuclear options are the options that truly frighten me. 
As we all know, Saddam Hussein is trying to obtain nuclear weapons and deliv- 
ery systems. However, he is also playing with smallpox that is immune to known 
cures as well as with the bubonic plague. Saddam does not stop there either; he 
is playing with all sorts of biological systems that could be spread without leav- 
ing fingerprints and that could cause a major loss of life around the world. 

As long ago as October 1990 I advocated the intentional killing of Saddam 
Hussein and I continue to feel that way. 10 Attacking regime elites who threaten 
international peace is clearly not "assassination" but is instead a legitimate act 
of self-defense which the United States should avail itself of. The same argu- 
ment can be made for targeting and eliminating Osama bin Laden. 

The consequences of military action in the Middle East are frightening, as 
there is the very real possibility that conflict with Iraq may spread and ignite 
the entire region. However, the penalties for inaction are even greater. Time 
is not on our side. The best way for the United States to deter Saddam and his 
procurement of weapons of mass destruction is by presenting a united front 
with the world community that demands the unfettered access of UN weap- 
ons inspectors. 

One viable justification for attacking Iraq might well be a request from Israel 
for assistance under Article 5 1 given that Saddam Hussein has repeatedly ad- 
mitted to not only encouraging people to engage in terrorism, but to providing 
money to pay the families of people who commit suicide bombings. Clearly, so- 
liciting such acts against the sovereign territory of Israel violates international 
law and Israel and its allies are entitled to act in defense of Israeli citizens. 

Moreover, given that the UN Security Council Resolutions of 1990 and 
1991 remain valid, the conditions contained in them have not been met by 
Saddam Hussein, and since Saddam Hussein continued to aggressively pursue 
the development of weapons of mass destruction in violation of international 
law, it seems clear that sufficient authority exists to effect a regime change in 
Iraq. Saddam Hussein is acting aggressively, in violation of international law, 
and I believe it is legal for the world community to use force against Iraq to stop 
that threat. Furthermore, I also believe that it is legal to specifically use force 
against Saddam Hussein as an individual if that is the best method available to 
end the threat to world peace. 



10. Robert F. Turner, Kitting Saddam: Would it be a Crime?., WASH. POST, Oct. 7, 1990 at Dl 

146 



Panel I Discussion — Jus ad Bellum 



Michael Schmitt 

There is a colorable argument that an international armed conflict currently 
exists with Iraq and that the conflict is merely in a state of ceasefire. Given this, 
to the extent that Iraq has in some form materially breached the ceasefire 
agreement then recommencement of hostilities would be appropriate. This po- 
sition certainly has merit. 

Yoram Dinstein 

Under the jus in bello, there is nothing inherently wrong in the targeting of en- 
emy combatants. Enemy military personnel can be attacked either collectively 
or individually. Saddam Hussein, being the commander-in-chief of the Iraqi 
forces, is a legitimate military objective for attack by the United States. 11 Obvi- 
ously, such an attack — like all other attacks — has to be carried out by lawful 
combatants on the American side, i.e., members of the armed forces wearing 
uniform, carrying their arms openly, etc. 



1 1 . See Yoram Dinstein, Legitimate Military Objectives under the Current Jus in Bello, in LEGAL 

and Ethical Lessons ofNatcs Kosovo Campaign (Andm Wall ed., 2003) (Vol. 78, US 

Naval War College International Law Studies). 

147 



Panel II 

Wednesday — June 26, 2002 

1:30PM-4:30PM 

Jus in Bello 

Moderator: 

Colonel David Graham 

Judge Advocate, US Army 

Chief, International & Operational Law Division 

Department of the Army 

Presenters: 

Professor Yoram Dinstein 

International Human Rights Law Institute 

DePaul University College of Law 

Professor Sir Adam Roberts 
Oxford University 

Commentators: 

Colonel Charles Garraway 
Army Legal Services 
United Kingdom 

Professor Leslie Green 
Professor Emeritus 
University of Edmonton 

Lieutenant Colonel Tony Montgomery 
Judge Advocate, US Air Force 
Deputy Staff Judge Advocate 
US Special Operations Command 




I 



Unlawful Combatancy 

Yoram Dinstein 1 

Combatants and Civilians 

J nder the jus in bello, combatants are persons who are either members 

^^x of the armed forces (except medical and religious personnel) or — irre- 
spective of such membership — who take an active part in hostilities in an inter- 
national armed conflict. 2 The jus in bello posits a fundamental principle of 
distinction between combatants and non-combatants (i.e., civilians). 3 The 
goal is to ensure in every feasible manner that inter-state armed conflicts be 
waged solely among the combatants of the belligerent parties. Lawful combat- 
ants can attack enemy combatants or military objectives, causing death, injury 
and destruction. By contrast, civilians are not allowed to participate in the 



1. Professor Yoram Dinstein is the Charles H. Stockton Professor of International Law, US 
Naval War College, Newport, Rhode Island. 

2. See A.P.V. ROGERS & P. MALHERBE, MODEL MANUAL ON THE LAW OF ARMED CONFLICT 
29 (ICRC, 1999). 

3. See Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, [1996] I.C.J. 
REPORTS 226, 257. 



Unlawful Combatancy 



fighting. As a complementary norm, civilians "enjoy general protection against 
dangers arising from military operations." 4 

It is not always easy to define what an active participation in hostilities de- 
notes. Sometimes, the reference is to "direct" participation in hostilities. 5 But 
the adjective "direct" does not shed much light on the extent of participation 
required. For instance, a person who gathers military intelligence in enemy 
controlled territory and a driver delivering ammunition to firing positions are 
generally acknowledged as actively taking part in hostilities (although merely 
assisting in the general war effort does not suffice) . 6 

A civilian may convert himself into a combatant. In fact, every combatant 
is a former civilian: nobody is born a combatant. In the same vein, a combat- 
ant may retire and become a civilian. But at any given point a person is either 
a combatant or a civilian: he cannot (and is not allowed to) be both at the 
same time, nor can he constantly shift from one position to the other. 

Whether on land, by sea or in the 'air, one cannot fight the enemy and re- 
main a civilian. Interestingly, this general norm first began coalescing in the 
law of sea warfare. By the time of the Declaration of Paris of 1856, Article 1 
proclaimed: "Privateering is, and remains, abolished." 7 Privateers were private 
persons (at times known as corsairs, not to be confused with pirates) who ob- 
tained official letters of marque from a government, allowing them to attack 
enemy merchant ships. 8 As the language of the Declaration of Paris indicates, 
it merely confirms the abolition of privateering as "an already established situ- 
ation" under customary international law. 9 The law of land (and air) warfare 
ultimately adjusted to proscribe parallel modes of behavior. 

Combatants can withdraw from the hostilities not only by retiring and be- 
coming civilians, but also by becoming hors de combat. This can happen ei- 
ther by choice (through laying down of arms and surrendering) or by force of 



4- Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), 1977, reprinted in THE 

Laws of armed Conflicts: A Collection of Conventions, resolutions and Other 

DOCUMENTS 621, 651 (D. Schindler & J. Toman eds., 3rd ed., 1988) (Article 51(1)) 
[hereinafter LAWS OF ARMED CONFLICT]. 

5. See ROGERS & MALHERBE, supra note 2, at 29. Cf. Article 51(3) of Protocol I, LAWS OF 

Armed Conflict, supra note 4, at 651. 

6. See ROGERS & MALHERBE, supra note 2, at 29. 

7. Paris Declaration Respecting Maritime Law, 1856, LAWS OF ARMED CONFLICT, supra note 
4, at 787, 788. 

8. See Ulrich Scheuner, Privateering, 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 1 120, 
1120-1121 (R. Bernhardt ed., 1997). 

9. Id. at 1122. 

152 



Yoram Dinstein 



circumstances (by getting wounded, sick or shipwrecked). A combatant who 
is hors de combat and falls into the hands of the enemy is in principle entitled 
to the status of a prisoner of war. Being a prisoner of war means denial of lib- 
erty, i.e., detention for the duration of the hostilities (which may go on for 
many years). However, that detention has only one purpose: to preclude the 
further participation of the prisoner of war in the ongoing hostilities. The de- 
tention is not due to any criminal act committed by the prisoner of war, and he 
cannot be prosecuted and punished "simply for having taken part in hostili- 
ties." 10 While his liberty is temporarily denied, the decisive point is that the 
life, health and dignity of a prisoner of war are guaranteed. Detailed provisions 
to that end are incorporated in Geneva Convention (III) of 1949. 11 

Lawful and Unlawful Combatants 

Entitlement to the status of a prisoner of war — upon being captured by the en- 
emy — is vouchsafed to every combatant, subject to the conditio sine qua non 
that he is a lawful combatant. The distinction between lawful and unlawful 
combatants complements the fundamental distinction between combatants 
and civilians: the primary goal of the former is to preserve the latter. 12 The jus in 
bello can effectively protect civilians from being objects of attack in war only if 
and when they can be identified by the enemy as non-combatants. Combatants 
"may try to become invisible in the landscape, but not in the crowd." 13 Blurring 
the lines of division between combatants and civilians is bound to result in ci- 
vilians suffering the consequences of being suspected as covert combatants. 
Hence, under customary international law, a sanction (deprivation of the privi- 
leges of prisoners of war) is imposed on any combatant masquerading as a civil- 
ian in order to mislead the enemy and avoid detection. 

An enemy civilian who does not take up arms, and does not otherwise par- 
ticipate actively in the hostilities, is guaranteed by the jus in bello not only his 
life, health and dignity (as is done with respect to prisoners of war), but even 
his personal liberty which cannot be deprived (through detention) without 



10. ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN 
INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 82 (1976). 

11. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949 [hereinafter 
GC III] reprinted in LAWS OF ARMED CONFLICT, supra note 4, at 423. 

12. See Theodor Meron, Some Legal Aspects of Arab Terrorists' Claims to Privileged Combatancy, 
40 NORDISK TIDSSKRIFT FOR INT'L RET 47, 62 (1970). 

13. Denise Bindschedler- Robert, A Reconsideration of the Law of Armed Conflicts, THE LAW OF 
ARMED CONFLICTS: REPORT OF THE CONFERENCE ON CONTEMPORARY PROBLEMS OF THE 
LAW OF ARMED CONFLICT, 1, 43 (1971). 

153 



Unlawful Combatancy 



cause. But a person is not allowed to wear simultaneously two caps: the hat of 
a civilian and the helmet of a soldier. A person who engages in military raids 
by night, while purporting to be an innocent civilian by day, is neither a civil- 
ian nor a combatant. He is an unlawful combatant. 

Upon being captured by the enemy, an unlawful combatant — like a lawful 
combatant (and unlike a civilian) — is subject to automatic detention. But in 
contradistinction to a lawful combatant, an unlawful combatant fails to enjoy 
the benefits of the status of a prisoner of war. Hence, although he cannot be 
executed without trial, he is susceptible to being prosecuted and severely pun- 
ished for any acts of violence committed in the course of the hostilities in 
which he has participated. The legal position was summed up by the Supreme 
Court of the United States, in the Quirin case of 1942 (per Chief Justice 
Stone): 

[b]y universal agreement and practice, the law of war draws a distinction 
between the armed forces and the peaceful populations of belligerent nations 
and also between those who are lawful and unlawful combatants. Lawful 
combatants are subject to capture and detention as prisoners of war by opposing 
military forces. Unlawful combatants are likewise subject to capture and 
detention, but in addition they are subject to trial and punishment by military 
tribunals for acts which render their belligerency unlawful. 14 

With the exception of the last few words, this is an accurate reflection of the jus 
in bello. 

What can unlawful combatants be prosecuted and punished for? The 
Quirin judgment refers to "trial and punishment by military tribunals for acts 
which render their belligerency unlawful." Admittedly, sometimes the act 
which turns a person into an unlawful combatant constitutes by itself an of- 
fence (under either domestic or international law) and can be prosecuted and 
punished as such before a military tribunal. But on other occasions the judicial 
proceedings may be conducted before regular courts and, more significantly, 
they are likely to pertain to acts other than those that divested the person of 
the status of lawful combatant. Even when the act negating the status as a 
lawful combatant does not constitute a crime per se (under either domestic or 
international law), it can expose the perpetrator to ordinary penal sanctions 
(pursuant to the domestic legal system) for other acts committed by him that 
are branded as criminal. Unlawful combatants "may be punished under the in- 
ternal criminal legislation of the adversary for having committed hostile acts 



14. Ex parte Quirin, 317 U.S. 1,30-31 (1942). 

154 



Yoram Dinstein 



in violation of its provisions (e.g., for murder), even if these acts do not consti- 
tute war crimes under international law." 15 

At bottom, warfare by its very nature consists of a series of acts of violence 
(like homicide, assault, battery and arson) ordinarily penalized by the criminal 
codes of all countries. When a combatant, John Doe, holds a rifle, aims it at 
Richard Roe (a soldier belonging to the enemy's armed forces) with intent to 
kill, pulls the trigger, and causes Richard Roe's death, what we have is a pre- 
meditated homicide fitting the definition of murder in virtually all domestic 
penal codes. If, upon being captured by the enemy, John Doe is not prosecuted 
for murder, this is due to one reason only. The jus in bello provides John Doe 
with a legal shield, protecting him from trial and punishment, by conferring 
upon him the status of a prisoner of war. Yet, the shield is available only on 
condition that John Doe is a lawful combatant. If John Doe acts as he does be- 
yond the pale of legal combatancy, the jus in bello simply removes the protec- 
tive shield. Thereby, it subjects John Doe to the full rigor of the enemy's 
domestic legal system, and the ordinary penal sanctions provided by that law 
will become applicable to him. 

There are several differences between the prosecution of war criminals and 
that of unlawful combatants. 16 The principal distinction is derived from the 
active or passive role of the jus in bello. War criminals are brought to trial for 
serious violations of the jus in bello itself. With unlawful combatants, the jus 
in bello refrains from stigmatizing the acts as criminal. It merely takes off a 
mantle of immunity from the defendant, who is therefore accessible to penal 
charges for any offence committed against the domestic legal system. 

It is also noteworthy that, unlike war criminals (who must be brought to 
trial), unlawful combatants may simply be subjected to administrative deten- 
tion without trial. Detention of unlawful combatants without trial was specifi- 
cally mentioned as an option in the Quirin case (as quoted above), and the 
option has indeed been used widely by the United States in the war in Afghan- 
istan (see infra). 

Detention of unlawful combatants is also the subject of special legislation of 
Israel, passed by the Knesset in 2002. 17 This Detention of Unlawful Combat- 
ants Law defines an unlawful combatant as anyone taking part — directly or in- 
directly — in hostilities against the State of Israel, who is not entitled to 



15. Rosas, supra note 10, at 305. 

16. See Yoram Dinstein, The Distinction between Unlawful Combatants and War Criminals, 
INTERNATIONAL LAW AT A TIME OF PERPLEXITY 103-116 (Essays in Honour of Shabtai 
Rosenne, Y. Dinstein ed., 1989). 

17. See Detention of Unlawful Combatants Law, 2002, 1834 Sefer Hahukim [S.H.] 192. 

155 



Unlawful Combatancy 



prisoner of war status under Geneva Convention (III). 18 Detention is based on 
the decision of the chief of staff of the armed forces, on grounds of state secu- 
rity, but it is subject to judicial review by a (civilian) district court (both ini- 
tially and every six months thereafter). 19 The law emphasizes that detention is 
just one option, and that an unlawful combatant can equally be brought to 
trial under any criminal law. 20 An important point addressed by the law is the 
maximum duration of the detention. An unlawful combatant can be held in 
detention as long as the hostilities of the force to which he belongs have not 
been terminated. 21 

The Entitlement to Prisoner of War Status under Customary 

International Law 

Article 1 of the Regulations Respecting the Laws and Customs of War on Land, 
Annexed to Hague Convention (II) of 1899 and Hague Convention (IV) of 
1907, proclaims: 

[t]he laws, rights, and duties of war apply not only to armies, but also to militia 
and volunteer corps fulfilling the following conditions: 

1. To be commanded by a person responsible for his subordinates; 

2. To have a fixed distinctive emblem recognizable at a distance; 

3. To carry arms openly; and 

4. To conduct their operations in accordance with the laws and customs of war. 22 

Article 2 adds a provision entitled "Levee en masse," which reads in the revised 
1907 version: 

It] he inhabitants of a territory which has not been occupied, who, on the 
approach of the enemy, spontaneously take up arms to resist the invading troops 
without having had time to organize themselves in accordance with Article 1, 



18. Id. (Section 2). 

19. Id. (Sections 3, 5). 

20. Id. (Section 9). 

21. Id. (Sections 7-8). 

22. Regulations Respecting the Laws and Customs of War on Land, Annexed to Hague 
Convention (II) of 1899 and Hague Convention (IV) of 1907, in LAWS OF ARMED CONFLICT, 
supra note 4, at 63, 75. 

156 



Yoram Dinstein 



shall be regarded as belligerents if they carry arms openly and if they respect the 
laws and customs of war. 23 

Article 3 prescribes further: u [t]he armed forces of the belligerent parties may 
consist of combatants and non-combatants. In the case of capture by the en- 
emy, both have a right to be treated as prisoners of war." 24 As far as civilians 
who are not employed by the armed forces, yet accompany them, Article 13 
stipulates: 

[individuals who follow an army without directly belonging to it, such as 
newspaper correspondents and reporters, sutlers and contractors, who fall into 
the enemy's hands and whom the latter thinks expedient to detain, are entitled 
to be treated as prisoners of war, provided they are in possession of a certificate 
from the military authorities of the army which they were accompanying. 25 

The Hague formula thus establishes four general — and cumulative — condi- 
tions for lawful combatancy: (i) subordination to responsible command, (ii) a 
fixed distinctive emblem, (iii) carrying arms openly, and (iv) conduct in accor- 
dance with the jus in bello. In the special setting of a "levee en masse," condi- 
tions (i) and (ii) are dispensed with, and only conditions (iii) and (iv) remain 
valid. These provisions of the Hague Regulations (like others) "are considered 
to embody the customary law of war on land." 26 

The Geneva Conventions of 1949 retain the Hague formula, making it 
even more stringent. Article 4(A) of Geneva Convention (III) sets forth: 

A. Prisoners of war, in the sense of the present Convention, are persons belonging 
to one of the following categories, who have fallen into the power of the enemy: 

(1) Members of the armed forces of a Party to the conflict, as well as members 
of militias or volunteer corps forming part of such armed forces. 

(2) Members of other militias and members of other volunteer corps, 
including those of organized resistance movements, belonging to a Party to 
the conflict and operating in or outside their own territory, even if this 
territory is occupied, provided that such militias or volunteer corps, 
including such organized resistance movements, fulfil the following 
conditions: 



23. Id. at 75-76. 

24. Id. at 76. 

25. Id. at 79. 

26. See G.I.A.D. Draper, The Status of Combatants and the Question of Guerilla Warfare, 45 BRIT. 
Y.B.INT'LL. 173, 186(1971). 

157 



Unlawful Combatancy 



(a) that of being commanded by a person responsible for his 
subordinates; 

(b) that of having a fixed distinctive sign recognizable at a distance; 

(c) that of carrying arms openly; 

(d) that of conducting their operations in accordance with the laws and 
customs of war. 

(3) Members of regular armed forces who profess allegiance to a government 
or an authority not recognized by the Detaining Power. 

(4) Persons who accompany the armed forces without actually being 
members thereof, such as civilian members of military aircraft crews, war 
correspondents, supply contractors, members of labour units or of services 
responsible for the welfare of the armed forces, provided that they have 
received authorization from the armed forces which they accompany, who 
shall provide them for that purpose with an identity card similar to the 
annexed model. 

(5) Members of crews, including masters, pilots and apprentices, of the 
merchant marine and the crews of civil aircraft of the Parties to the conflict, 
who do not benefit by more favourable treatment under any other provisions 
of international law. 

(6) Inhabitants of a non-occupied territory, who on the approach of the 
enemy spontaneously take up arms to resist the invading forces, without 
having had time to form themselves into regular armed units, provided they 
carry arms openly and respect the laws and customs of war. 27 

This language is replicated in Article 13 of both Geneva Convention (I) 28 
and Geneva Convention (II). 29 Article 4(B) of Geneva Convention (III) goes 
on to create two further categories of persons that should be treated as prison- 
ers of war: one relating to occupied territories (members of armed forces who 
have been released from detention in an occupied territory and are then 



27. Geneva Convention III, art. 4, in LAWS OF ARMED CONFLICT, supra note 4, at 430, 431. 

28. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, 1949, in LAWS OF ARMED CONFLICT, supra note 4, at 373, 379-380. 

29. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea, 1949, in LAWS OF ARMED CONFLICT, supra note 
4, at 401, 408. 



158 



Yoram Dinstein 



reinterned), 30 and the other pertaining to neutral countries (members of 
armed forces of belligerents who reach neutral territory and have to be in- 
terned there as required by international law). 31 Article 4(C) states that noth- 
ing in the above provisions affects the status of medical personnel and 
chaplains 32 who, under Article 33 of Geneva Convention (III) cannot be 
taken prisoners of war, but may be retained by the Detaining Power with a 
view to assisting prisoners of war. 33 

The first and foremost category of persons entitled to the status of prisoners 
of war covers members of the armed forces of the belligerent Parties, including 
all their different components. These are the regular forces of the belligerents. 
It does not matter what the semantic appellation of regular forces is (they may 
function, e.g., under the technical designation of militias); how they are struc- 
tured; whether military service is compulsory or voluntary; and whether the 
units are part of standing armed forces or consist of reservists called to action. 
The distinction is between regular forces of all types, on the one hand, and ir- 
regular forces in the sense of partisans or guerrilla forces, on the other. 

On the face of it, the Geneva Conventions do not pose any conditions to 
the eligibility of regular forces to prisoners of war status. Nevertheless, regular 
forces are not absolved from meeting the cumulative conditions binding 
irregular forces. There is simply a presumption that regular forces would 
naturally meet those conditions. But the presumption can definitely be rebut- 
ted. The issue came to the fore in the Mohamed Ali case of 1968, where the 
Privy Council held (per Viscount Dilhorne) that it is not enough to establish 
that a person belongs to the regular armed forces, in order to guarantee to him 
the status o{ a prisoner of war. 34 The Privy Council pronounced that even 
members of the armed forces must observe the cumulative conditions imposed 
on irregular forces, although this is not stated expressis verbis in the Geneva 
Conventions or in the Hague Regulations. 35 The facts of the case related to In- 
donesian soldiers who — at a time of a "confrontation" between Indonesia and 



30. This special category makes it "impossible for an occupying Power to deprive prisoners of war 
of the benefit of the convention through the subterfuge of release and subsequent arrest." 
Raymond Yingling & Robert Ginnane, The Geneva Conventions of 1949, 46 AM. J. INT'L L. 393, 
405-406 (1952). 

31. Geneva Convention III, art. 4(B), in LAWS OF ARMED CONFLICT, supra note 4, at 43 1-432. 

32. Id. at 432. 

33. Id. at 442-443. 

34. Mohamed Ali v. Public Prosecutor, [1969] 1 A.C. 430, 449. 

35. Id. at 449-450. 



159 



Unlawful Combatancy 



Malaysia — planted explosives in a building in Singapore (then a part of Malay- 
sia) while wearing civilian clothes. The Privy Council confirmed the 
appellants' death sentence for murder, on the ground that a regular soldier 
committing an act of sabotage while not in uniform loses the entitlement to a 
prisoner of war status. 36 The earlier Quirin judgment — concerning German 
members of the armed forces who took off their uniforms when on a sabotage 
mission in the United States (where they had landed by submarine) — is to the 
same effect. 37 

The second category of prisoners of war under the Geneva Conventions 
pertains to irregular forces: guerrillas, partisans and the like, however they call 
themselves. This is the most problematic category, given the proliferation of 
such forces in modern warfare. The Geneva Conventions repeat the four 
Hague conditions verbatim. However, two additional conditions are implied 
from the chapeau of Article 4(A) (2): (v) organization, and (vi) belonging to a 
party to the conflict. One more condition is distilled in the case law from the 
text of the Geneva Conventions: (vii) lack of duty of allegiance to the De- 
taining Power. 

Each of the four Hague conditions, and the additional three conditions, de- 
serves a few words of explanation: 

The first condition — of subordination to a responsible commander — is de- 
signed to exclude the possibility of activities of individuals (known in French 
as "franc-tireurs") on their own. The operation of small units of irregular 
forces is permissible, provided that the other conditions are fulfilled, but there 
is no room for individual initiatives. John Doe or Richard Roe — especially in 
an occupied territory — cannot legitimately conduct a private war against the 
enemy. 

The second condition — of having a fixed distinct emblem recognizable at a 
distance — is predicated on two elements. The emblem in question must meet 
the dual requirement of distinction (i.e., it must identify and characterize the 
force using it) and fixity (to wit, the force is not allowed to confuse the enemy 
by ceaselessly changing its distinctive emblem). The most obvious fixed dis- 
tinct emblem of regular armed forces is that of a particular uniform. But irreg- 
ular armed forces need not have any uniform, and suffice it for them to possess 
a less complex distinctive emblem: part of the clothing (like a special shirt or 
particular headgear) or certain insignia. 38 



36. Id. at 451-454. 

37. Ex parte Quirin, supra note 14, at 35-36. 

38. JEAN DE PREUX, COMMENTARY III: GENEVA CONVENTION RELATIVE TO THE 
TREATMENT OF PRISONERS OF WAR 60 (1960). 

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Yoram Dinstein 



The fixed distinctive emblem must be worn throughout every military opera- 
tion against the enemy in which the combatant takes part (throughout means 
from start to finish, namely, from the beginning of deployment to the end of dis- 
engagement) , and the emblem must not be deliberately removed at any time in 
the course of the operation. 39 Still, combatants are not bound to wear the dis- 
tinctive emblem when discharging duties not linked to military operations (such 
as training or administration) . 40 

The condition of having a fixed distinctive emblem raises a number of ques- 
tions owing to its language. Thus, it is not easy to fully understand the obligation 
that the distinctive emblem will be recognizable at a distance. The phraseology 
must be reasonably interpreted. Combatants seeking to stay alive do not attempt 
to draw attention to themselves. On the contrary, even soldiers in uniform are 
prone to use camouflage. This is a legitimate ruse of war, 41 as long as the combat- 
ant merely exploits the topographical conditions: the physical as distinct from the 
demographic landscape of civilians. 42 Another question is germane to night war- 
fare. Needless to say, if the combatant does not carry an illuminated distinctive 
emblem, that emblem will not be recognizable at a distance in the dark. Again, it 
is important that the terse and imperfect wording would not overshadow the 
thrust of the condition, which is crystal clear. Just as regular forces wear uniforms, 
so must irregular forces use a fixed emblem which will distinguish them — in ordi- 
nary circumstances and in a reasonable fashion — from the civilian population. 
The issue is not whether combatants can be seen, but the lack of desire on their 
part to create the false impression that they are civilians. 

It should be added that when combatants go to (or from) battle in a vehicle or 
a tank — and, similarly, if they sail in a vessel or fly in an aircraft — it is not enough 
for each individual person to carry the distinctive emblem: the vehicle or other 
platform must itself be properly identified. 43 By the same token, the external 
marking of the vehicle or platform does not absolve the combatants on board 
from having their personal distinctive emblems. As for members of the crew of a 
military aircraft, there is a specific provision to that effect in Article 15 of the 
(non-binding) 1923 Hague Rules of Air Warfare, where it is explained that this is 



39. Howard Levie, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 47 (Howard S. 
Levie ed., 1978), (Vol. 59, US Naval War College International Law Studies). 

40. WALDEMAR SOLF, Article 44, NEW RULES FOR VICTIMS OF ARMED CONFLICTS: 
COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA 
CONVENTIONS OF 1949 241, 252 (M. Bothe et al. eds., 1982). 

41. Article 37(2) of Protocol I, in LAWS OF ARMED CONFLICT, supra note 4, at 645. 

42. Bindschedler-Robert, supra note 13, at 43. 

43. DE PREUX, supra note 38, at 60. 

161 



Unlawful Combatancy 



required in case the members of the crew "become separated from their air- 
craft." 44 

The third condition — of carrying arms openly — brings up similar issues as 
the second. Does this mean that a combatant is barred from carrying a hand- 
gun in a holster or hand grenades in a pouch? The question is patently rhetori- 
cal. Once more, what counts is not the ambiguous language but the gist of the 
condition. A lawful combatant must abstain from purporting to be an inno- 
cent civilian, with a view to facilitating access to the enemy by stealth. He 
must carry his arms openly in a reasonable way, depending on the nature of 
the weapon and the circumstances at hand. 

The fourth condition — conduct in accordance with the jus in bello — is the 
key to lawful combatancy. Unless a combatant is willing himself to respect the 
jus in bello, he is estopped from relying on that body of law when desirous of 
enjoying its benefits. 45 

These are the original Hague conditions, endorsed by the Geneva Conven- 
tions. As mentioned, the following additional conditions are derived from the 
Conventions: 

The fifth condition — organization — actually reinvigorates the first condi- 
tion in a somewhat different way. Lawful combatants must act within a hierar- 
chic framework, embedded in discipline, and subject to supervision by upper 
echelons of what is being done by subordinate units in the field. 

The sixth condition — belonging to a party to the conflict — got a practical 
expression in the 1969 judgment of an Israeli military court in the Kassem 
case. 46 Here a number of people who belonged to an organization calling itself 
the "Popular Front for the Liberation of Palestine" crossed the Jordan River 
from the East Bank (the Kingdom of Jordan) to the West Bank (Israeli occu- 
pied territory) for sabotage purposes. When captured and charged with secu- 
rity offences, they claimed entitlement to prisoners of war status. The Israeli 
Military Court held that irregular forces must belong to a party to the con 
flict. 47 Since no Arab government at war with Israel had assumed responsibil- 
ity for the activities of the Popular Front — which was indeed illegal in the 
Kingdom of Jordan — the condition was not fulfilled. 48 The judgment was criti- 
cized by Georg Schwarzenberger on the ground that the Geneva Conventions 



44. Hague Rules of Air Warfare, 1923, art. 15, in LAWS OF ARMED CONFLICT, supra note 4, at 
207, 209. 

45. See Levie, supra note 39, at 50-51. 

46. Military Prosecutor v. Kassem, 42 INT'L L. R 470 (Israel, Military Court, 1969). 

47. Id. at 476. 

48. Id. at 477-478. 

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Yoram Dinstein 



were not meant to limit the scope of lawful combatancy under preexisting 
rules of international law. 49 However, even prior to the Geneva Conventions, 
the premise was that the Hague conditions apply only to combatants acting on 
behalf of a state party to the conflict. 50 It is evident that the members of an in- 
dependent band of guerrillas cannot be regarded as lawful combatants, even if 
they observe the jus in bello, use a fixed distinctive emblem, and carry their 
arms openly. One way or another, "a certain relationship with a belligerent 
government is necessary." 51 One can, of course, argue whether Palestinian 
guerrillas factually belonged at the time to a party to the conflict. But the con- 
dition itself is irreproachable. 

The seventh and last condition — of non-allegiance to the Detaining 
Power — is not specifically mentioned in the Geneva Conventions, and is de- 
rived from the case law. The principal authority is the 1967 Judgment of the 
Privy Council in the Koi case, 52 in which captured Indonesian paratroop- 
ers — landing in Malaysia — included a number of Malays convicted and sen- 
tenced to death for having unlawfully possessed arms in a security zone. The 
question on appeal before the Privy Council was whether they were entitled 
to prisoners of war status. The Privy Council held (per Lord Hodson) that 
nationals of the Detaining Power, as well as other persons owing it a duty of 
allegiance, are not entitled to such status. 53 This was viewed by the Privy 
Council as a rule of customary international law. 54 Although the condition 
does not appear in the text of Article 4(A), the Privy Council found other 
provisions of Geneva Convention (III) — specifically Articles 87 and 
100 55 — in which it is clearly stated that prisoners of war are not nationals of 
the Detaining Power and do not owe it any duty of allegiance. 56 

The requirement of nationality (or allegiance) has to be approached care- 
fully. The fact that a combatant belonging to state A — captured by state B — is 
a national of state C, does not make any difference. A German soldier in the 
French Foreign Legion was entitled to a prisoner of war status in the Indo- 



49. Georg Schwarzenberger, Human Rights and Guerrilla Warfare, 1 ISR. Y.B. HUM. RTS. 246, 
252(1971). 

50. Lester Nurick & Roger Barrett, Legality of Guerrilla Forces under the Laws of War, 40 AM. J. 
INT'LL. 563, 567-569(1946). 

51. Bindschedler- Robert, supra note 13, at 40. 

52. Public Prosecutor v. Koi, A.C. 829 (1967). 

53. Id. at 856-858. 

54. Id. at 856-857. 

55. Geneva Convention III, arts. 87 & 100, in LAWS OF ARMED CONFLICT, supra note 4, at 460, 
464. 

56. Koi, supra note 52, at 857. 

163 



Unlawful Combatancy 



China War. But such a soldier would not have been entitled to the same status 
if fighting in a war against Germany. 

The Koi case occasions also a question of the law of evidence. Under Arti- 
cle 5 (para. 2) of Geneva Convention (III), should any doubt arise as to 
whether certain persons belong to any of the categories enumerated in Article 
4, they enjoy the Convention's protection until their status is determined by a 
competent tribunal. Opinions in the Privy Council were divided as to whether 
the mere allegation by a defendant that he is a foreign national generates 
doubt in accordance with Article 5: the majority held that that was the legal 
position, but a minority dissented. 57 The more central issue is that of the bur- 
den of proof. The minority opined that the burden of proof lies on the defen- 
dant, who must show that he is entitled to prisoner of war status (and 
consequently that he is not a national of the Detaining Power). 58 The majority 
did not address the point. But the correct position apparently is that, once a 
defendant persuades the court that he is a member of the enemy armed forces, 
the burden of proof that he owes allegiance to the Detaining Power (and is 
therefore not entitled to prisoner of war status) falls on the prosecution. 59 In- 
contestable, the defendant first has to establish that he is a member of the en- 
emy armed forces. 

It is not easy for irregular forces to observe cumulatively the seven condi- 
tions catalogued or — for that matter — even the core four Hague conditions. 
These conditions are actually patterned after the operations of regular forces 
(to which they do not explicitly allude). Regular forces are organized, are sub- 
ject to hierarchical discipline, and naturally belong to a party to the conflict; 
they have a proud tradition of wearing uniforms and carrying their arms 
openly; they are trained to observe the jus in bello; and the issue of allegiance 
scarcely arises. However, with irregular forces (to whom the conditions ex- 
pressly refer), the position is not so simple. Even if other problems are ignored, 
the difficulty to meet both the (ii) and (iii) conditions (of a fixed distinctive 
emblem and carrying arms openly) is blatant, "since secrecy and surprise are 
the essence" of guerrilla warfare. 60 Most of the partisan (resistance) move- 
ments of World War II did not fulfil all the cumulative conditions. 61 From a 



57. Id. at 855, 865. 

58. Id. at 864. 

59. Richard Baxter, The Privy Council on the Qualifications of Belligerents, 63 AM. J. INT'L L. 290, 
293 (1969). 

60. Richard Baxter, So-Called 'Unprivileged Belligerency': Spies, Guerrillas, and Saboteurs, 28 BRIT. 
Y.B. INT'L L. 323, 328 (1951). 

61 . Jean Pictet, The New Geneva Conventions for the Protection of War Victims, 45 AM. J. INT'L L. 
462,472(1951). 

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Yoram Dinstein 



practical standpoint, many believe that "obedience to these rules would be 
tantamount to committing suicide, as far as most guerrillas would be con- 
cerned." 62 Still, these are the norms of the Hague Regulations, the Geneva 
Conventions, and customary international law. 

Under the Hague Regulations, the Geneva Conventions, and customary 
international law, the only time that the cumulative conditions are eased is 
that of "levee en masse." It must be accentuated that this category applies only 
to the inhabitants of unoccupied areas, so that there is no "levee en masse" in 
occupied territories. The idea (originating in the French Revolution 63 ) is that 
at the point of invasion — and in order to forestall occupation — the civilian 
population takes arms spontaneously, without an opportunity to organize. 
This is an extraordinary situation in the course of which — for a short while 
and as an interim stage in the fighting — there is no need to meet all seven cu- 
mulative conditions to the status of lawful combatancy. The Hague Regula- 
tions and Geneva Conventions enumerate only two cumulative conditions: 
carrying arms openly and respect for the jus in bello (conditions (iii) and (iv)). 
It follows that there is no need to meet the two other Hague conditions of sub- 
ordination to a responsible commander and using a fixed distinctive emblem 
(conditions (i) and (ii)). Given the postulate that there was no time to orga- 
nize, condition (v) is inapplicable. Condition (vi) is also irrelevant: when the 
civilian population resists invasion, the problem of belonging to a party to the 
conflict is moot. On the other hand, it is arguable that condition (vii) of na- 
tionality (or allegiance) remains in place. In any event, the transitional phase 
of "levee en masse" lapses ex hypothesi after a relatively short duration. One of 
three things is bound to happen: either the territory will be occupied (despite 
the "levee en masse"); or the invading force will be repulsed (thanks to the 
"levee en masse" or to the timely arrival of reinforcements); or the battle of 
defense will stabilize, and then there is ample opportunity for organization. 

Both the Hague Regulations and the Geneva Conventions equate the posi- 
tion of certain civilians — employed by or accompanying the armed forces — to 
that of lawful combatants as far as prisoners of war status is concerned. Evi- 
dently, the fact that a civilian is employed by or accompanies the armed forces 
does not turn him into a combatant. Hence, the question of the fulfilment of 
most of the cumulative conditions does not arise. Yet, in all instances condi- 
tion (iv) must be regarded as paramount: anybody seeking the privileges of the 



62. Gerhard von Glahn, The Protection of Human Rights in Time of Armed Conflicts, 1 ISR. Y.B. 
HUM. RTS. 208, 223 (1971). 

63. On the origins of the institution, see Walter Rabus, A New Definition of the 'Levee en Masse,' 
24 NETH INT'L L. REV. 232 (1977). 

165 



Unlawful Combatancy 



jus in bello must himself respect the laws from which he proposes to benefit. 
Condition (vii) of nationality — or allegiance — is also relevant to civilians. 
Should the civilian bear light arms for self-defense, condition (iii) relating to 
carrying the arms openly will apply. 

Who should observe the seven conditions: the individual or the group of 
which he is a member? The issue does not arise with respect to regular troops. 
The assumption is that these forces collectively fulfil all the conditions, and to 
the extent that there is doubt in the concrete case, it affects John Doe but not 
an entire army. In the Mohamed Ali and Koi cases, there was no doubt that 
members of the armed forces of Indonesia generally wear uniforms and do not 
owe allegiance to Malaysia, although the defendants in the dock failed to meet 
these conditions (and were therefore denied prisoners of war status). How- 
ever, where irregular forces are concerned, the question whether the condi- 
tions of lawful combatancy are met may relate both to a guerrilla movement 
collectively and to each of its members individually. The answer to the ques- 
tion is contingent on the various conditions. 

The addressee of conditions (i), (v) and (vi) is clearly the group collectively, 
and not any of the members individually. It is necessary to ascertain that the 
group as a whole is organized, has a responsible commander and belongs to a 
party to the conflict. Should that be the case, the same yardsticks must be ap- 
plied to all members o( the group. 64 The reverse applies to condition (vii), di- 
rected at each member of the group rather than the group as a collective: the 
link of nationality is determined individually. In between are the other condi- 
tions: (ii), (iii) and (iv). Condition (ii) on a fixed distinctive emblem requires 
some preliminary action on the part of the group, which must adopt its identi- 
fying emblem; if it does not do that, no member of the group is capable of meet- 
ing the condition. Still, even if the group adopts a fixed distinctive emblem, 
that does not mean that John Doe will use it at the critical time (just as the de- 
fendants in the Mohamed Ah' case did not wear their uniforms at the critical 
time). If John Doe fails to do that, his misconduct does not contaminate the 
entire group, but the personal consequences are liable to be dire. 

As for conditions (iii) and (iv) — carrying arms openly and observance of 
the jus in bello — the present writer believes that the correct approach is that 
their fulfilment should be monitored primarily on an individual basis and only 
secondarily on a group basis. That is to say, if observance of these conditions 
in the individual case comes to a test in reality, John Doe has to answer for his 
actual behavior. However, if no opportunity for such individual verification 



64- See Draper, supra note 26, at 196. 

166 



Yoram Dinstein 



presents itself — for instance, when John Doe is captured in possession of arms 
but before setting out to accomplish any hostile mission — it is possible to es- 
tablish how the group behaves in general and extrapolate from the collectivity 
to the individual. If the group as a whole has a record of disrespect for the jus 
in bello, there is no need to accord John Doe prisoner of war status. Con- 
versely, if the group as a whole generally acts in compliance with the jus in 
bello, John Doe should be allowed to benefit from doubt. It has been contested 
that — even if John Doe actually observes the jus in bello — he should not be 
deemed a lawful combatant when the group as a whole generally acts in 
breach of that body of law. 65 This is unassailable in extreme cases, like al 
Qaeda. But if the conduct of the members of the group is uneven, John Doe 
should be judged on the merits of his own case and not on the demerits of his 
comrades at arms. 

The Legal Position under Protocol I of 1977 

The legal position is radically changed pursuant to Additional Protocol I of 
1977. Article 43 of the Protocol promulgates: 

1. The armed forces of a Party to a conflict consist of organized armed forces, 
groups and units which are under a command responsible to that Party for the 
conduct of its subordinates, even if that Party is represented by a government or 
an authority not recognized by an adverse Party. Such armed forces shall be 
subject to an internal disciplinary system which, inter alia, shall enforce 
compliance with the rules of international law applicable in armed conflict. 

2. Members of the armed forces of a Party to a conflict (other than medical 
personnel and chaplains covered by Article 33 of the Third Convention) are 
combatants, that is to say, they have the right to participate directly in hostilities. 

3. Whenever a Party to the conflict incorporates a paramilitary or armed law 
enforcement agency into its armed forces it shall so notify the other Parties to the 
conflict. 66 

By itself, Article 43 appears to follow in the footsteps of the Hague and 
Geneva rules, as reflected in customary international law. Indeed, it reaffirms 
four of the seven conditions for (lawful) combatancy: condition (i) concerning 
the existence of a command responsible for the conduct of its subordinates; 
condition (iv) about compliance with the rules of the jus in bello; condition 



65. See id. at 197; see also Meron, supra note 12, at 65. 

66. Protocol I, art. 43, in LAWS OF ARMED CONFLICT, supra note 4, at 647. 

167 



Unlawful Combatancy 



(v) stressing the need for organization and discipline; and condition (vi) per- 
taining to the need to belong to a Party to the conflict. 67 
Unfortunately, Article 44 goes much further: 

1. Any combatant, as defined in Article 43, who falls into the power of an 
adverse Party shall be a prisoner of war. 

2. While all combatants are obliged to comply with the rules of international 
law applicable in armed conflict, violations of these rules shall not deprive a 
combatant of his right to be a combatant or, if he falls into the power of an 
adverse Party, of his right to be a prisoner of war, except as provided in 
paragraphs 3 and 4- 

3. In order to promote the protection of the civilian population from the effects 
of hostilities, combatants are obliged to distinguish themselves from the civilian 
population while they are engaged in an attack or in a military operation 
preparatory to an attack. Recognizing, however, that there are situations in 
armed conflicts where, owing to the riature of the hostilities an armed combatant 
cannot so distinguish himself, he shall retain his status as a combatant, provided 
that, in such situations, he carries his arms openly: 

during each military engagement, and 

during such time as he is visible to the adversary while he is engaged in a 
military deployment preceding the launching of an attack in which he is to 
participate. 

Acts which comply with the requirements of this paragraph shall not be 
considered as perfidious within the meaning of Article 37, paragraph 1 (c). 

4- A combatant who falls into the power of an adverse Party while failing to meet 
the requirements set forth in the second sentence of paragraph 3 shall forfeit his 
right to be a prisoner of war, but he shall, nevertheless, be given protections 
equivalent in all respects to those accorded to prisoners of war by the Third 
Convention and by this Protocol. The protection includes protections equivalent 
to those accorded to prisoners of war by the Third Convention in the case where 
such a person is tried and punished for any offences he has committed. 

5. Any combatant who falls into the power of an adverse Party while not 
engaged in an attack or in a military operation preparatory to an attack shall not 



67. See Jean de Preux, Article 43, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 

1977 to the Geneva Conventions of 12 August 1949 505, 517 (Y. Sandoz et al. eds., 

ICRC, 1987). 

168 



Yoram Dinstein 



forfeit his rights to be a combatant and a prisoner of war by virtue of his prior 
activities. 

6. This article is without prejudice to the right of any person to be a prisoner of 
war pursuant to Article 4 of the Third Convention. 

7. This article is not intended to change the generally accepted practice of 
States with respect to the wearing of the uniform by combatants assigned to the 
regular, uniformed armed units of a Party to the conflict. 

8. In addition to the categories of persons mentioned in Article 13 of the First 
and Second Conventions, all members of the armed forces of a Party to the 
conflict, as defined in Article 43 of this Protocol, shall be entitled to protection 
under those Conventions if they are wounded or sick or, in the case of the 
Second Convention, shipwrecked at sea or in other waters. 68 

The language of this verbose text is quite convoluted, not to say obscure. 
But when a serious attempt is made to reconcile its disparate paragraphs with 
one another, a distressing picture emerges. Notwithstanding the provision of 
Article 43, Article 44(2) does away — for all intents and purposes — with con- 
dition (iv): whether or not in compliance with the jus in bello, all combatants 
(i.e., those taking a direct part in hostilities) are entitled to the status of lawful 
combatancy and to the attendant privileges of prisoners of war. Paragraph (3) 
of Article 44, while paying lip service to the principle of distinction, retains 
only a truncated version of condition (iii): the duty to carry arms openly is re- 
stricted to the duration of the battle itself and to the preliminary phase of de- 
ployment in preparation for the launching of an attack, while being visible to 
the enemy. The issue of visibility to the enemy is complex, implying that if the 
combatant neither knows nor should know that he is visible, the obligation 
does not apply. 69 It is not clear whether visibility is determined solely by the 
naked eye or it also includes observation by means of binoculars and even in- 
fra-red equipment. 70 More significantly, there is no agreement as to when de- 
ployment begins: at the original assembly point (from which the combatants 
proceed to their destination) or only moments before the attack is launched. 71 
But these and other points are quite moot, since — in a most enigmatic 



68. Protocol I, art. 44, in LAWS OF ARMED CONFLICT, supra note 4, at 647-648. 

69. See Jean de Preux, Article 44, COMMENTARY ON THE ADDITIONAL PROTOCOLS, supra 
note 67, at 519, 535. 

70. See Solf, supra note 40, at 254-255. 

71. See DE PREUX, supra note 69, at 534-535. 

169 



Unlawful Combatancy 



fashion 72 — Paragraph (4) mandates that, albeit technically deprived of prison- 
ers of war status, transgressors must be accorded every protection conferred 
on prisoners of war. Thus, in terms of practicality, condition (iii) — however 
circumscribed — is vitiated by Article 44. As far as condition (ii) is concerned, 
the sole reference to it is made in Paragraph (7), articulating an intention to 
not affect the practice of wearing uniforms by regular armies. Thereby, Article 
44 only underscores the elimination of condition (ii) where it really counts, 
namely, when irregular forces take part in hostilities. In fact, the consequence 
is "to tip the balance of protection in favor of irregular combatants to the det- 
riment of the regular soldier and the civilian." 73 In the final analysis, it is the 
civilians who will suffer. "Inevitably, regular forces would treat civilians more 
harshly and with less restraint if they believed that their opponents were free 
to pose as civilians while retaining their right to act as combatants and their 
POW status if captured." 74 

As pointed out above, the seven cumulative conditions of lawful 
combatancy are onerous for irregular forces. Hence, it would have made sense 
to alleviate the conditions to some extent. For instance, conditions (ii) and 
(iii) could become alternative rather than cumulative in their application, 
considering that when one is fulfilled the other may be looked at as redun- 
dant. 75 Still, the pendulum in Article 44 has swung from one extreme to the 
other, reducing ad absurdum the conditions of lawful combatancy. The out- 
come is that, for contracting parties to the Protocol, the general distinction 
between lawful and unlawful combatants becomes nominal in value. 

Objections to the new legal regime created in Article 44 are among the key 
reasons why the leading military power of the day — the United States — de- 
clines to ratify Protocol I (while recognizing that many of its other provisions 
reflect customary international law), 76 and this negative assessment is shared 
by an array of other states. 



72. See Ruth Lapidoth, Qui a Droit au Statut de Prisonnier de Guerre?, 82 REV. GNR'L DE DROIT 
INT'L PUBLIC 170, 204 (1978). 

73. Guy Roberts, The New Rules for Waging War: The Case against Ratification of Additional 
Protocol I, 26 VA. J. INT'L L. 109, 129 (1985-1986). 

74. Abraham Sofaer, The Rationale for the United States Decision, 82 AM. J. INT'L L. 784, 786 
(1988). 

75. See W.J. Ford, Members of Resistance Movements, 24 NETH INT'L L. REV. 92, 104 (1977). 

76. See INTERNATIONAL AND OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE 
GENERAL'S SCHOOL, U.S. ARMY, JA-422, OPERATIONAL LAW HANDBOOK, 1 1 (2003). 

170 



Yoram Dinstein 



The War in Afghanistan 

The war in Afghanistan, waged by the United States and several allied coun- 
tries against the Taliban regime and the al Qaeda terrorist network — following 
the armed attacks of 1 1 September 2001 — raises multiple issues germane to the 
status of lawful/unlawful combatancy: 

1. The first problem relates to the standing of Taliban fighters. On the one 
hand, the Taliban regime — on the eve of the war — was in de facto control of 
as much as 90% of the territory of Afghanistan. On the other hand, the regime 
was unrecognized by the overwhelming majority of the international commu- 
nity. This lack of recognition does not by itself alter the legal position of com- 
batants under customary international law. According to Article 4(A)(3) of 
Geneva Convention (III), members of regular armed forces professing alle- 
giance to a government unrecognized by the Detaining Power (the paradig- 
matic case being that of the "Free France" forces of General De Gaulle in 
World War II, unrecognized by Nazi Germany 77 ) are entitled to prisoners of 
war status. Yet, inasmuch as the underlying idea is the equivalence of armed 
forces of recognized and unrecognized governments, the latter — no less than 
the former — are bound by the seven cumulative conditions of lawful 
combatancy. The proper question, therefore, is not whether the Taliban re- 
gime was recognized, but whether the Taliban forces actually observed all 
these conditions. 

In light of close scrutiny of the war in Afghanistan by the world me- 
dia — and, in particular, the live coverage by television of literally thousands of 
Taliban troops before and after their surrender — it is undeniable that, 
whereas Taliban forces were carrying their arms openly (condition (iii)) and 
possibly meeting other conditions of lawful combatancy, they did not wear 
uniforms nor did they display any other fixed distinctive emblem (condition 
(ii)). Since the conditions are cumulative, members of the Taliban forces 
failed to qualify as prisoners of war under the customary international law cri- 
teria. These criteria admit of no exception, not even in the unusual circum- 
stances of Afghanistan as run by the Taliban regime. To say that "[t]he 
Taliban do not wear uniforms in the traditional western sense" 78 is quite mis- 
leading, for the Taliban forces did not wear any uniform in any sense at all, 
Western or Eastern (nor even any special headgear that would single them out 



77. See DE PREUX, supra note 38, at 62. 

78. Robert Cryer, The Fine Art of Friendship: Jus in Bello in Afghanistan, 7 J. CONF. &. SEC L. 37, 
70 (2002). 

171 



Unlawful Combatancy 



from civilians). All armed forces — including those belonging to the Taliban 
regime — are required to wear uniforms or use some other fixed distinctive em- 
blem. If they do not, they cannot claim prisoners of war status. 

The legal position seems singularly clear to the present writer. But since 
some observers appear to entertain doubt in the matter (perhaps because the 
case of governmental forces not wearing any uniform is so extraordinary), the 
issue could be put to judicial test. Article 5 (Second Paragraph) of Geneva 
Convention (III) enunciates: 

Should any doubt arise as to whether persons, having committed a belligerent 
act and having fallen into the hands of the enemy, belong to any of the 
categories enumerated in Article 4, such persons shall enjoy the protection o{ 
the present Convention until such time as their status has been determined by a 
competent tribunal. 79 

Ex abundante cautela, the United States might be well advised to have the status 
of Taliban forces determined by a competent tribunal. A competent tribunal 
for this purpose can be a military commission. 80 

2. The legal position of al Qaeda fighters must not be confused with that of 
Taliban forces. Al Qaeda fighters constitute irregular forces. They easily sat- 
isfy the requirement of belonging to a Party to the conflict (condition (vi)): in 
reality, in the relations between al Qaeda and the Taliban regime there were 
times when it appeared that "the tail was wagging the dog," in other words, 
that the party to the conflict (Afghanistan) belonged to al Qaeda rather than 
the reverse. Incontrovertibly, al Qaeda is a well-organized group (condition 
(v)), with subordination to command structure (condition (i)), and in the 
hostilities in Afghanistan its members carried their arms openly (condition 
(iii)). However, apart from the fact that al Qaeda (like the Taliban regime) 
has declined to use a uniform or possess a fixed distinctive emblem (condition 
(ii)), the group has displayed utter disdain towards the jus in bello in brazen 
disregard of condition (iv). 81 Al Qaeda's contempt for this paramount prereq- 
uisite qualification of lawful combatancy was flaunted in the execution of the 
original armed attack of 9/1 1. Not only did the al Qaeda terrorists, wearing ci- 
vilian clothes, hijack US civilian passenger planes. The most striking aspects 



79. Geneva Convention III, art. 5, in LAWS OF ARMED CONFLICT, supra note 4, at 432. 

80. See Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists? A Qualified 
Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval 
Base, 25 HARV. J.L. & PUB. POL'Y 591, 619-620 (2002). 

81. See Christopher Greenwood, International Law and the 'War against Terrorism,' 78 INT'L 
AFF'S 301, 316 (2002). 

172 



Yoram Dinstein 



of the shocking events of 9/11 are that (i) the hijacked planes (with their ex- 
plosive fuel load) were used as weapons, in total oblivion to the fate of the ci- 
vilian passengers on board; and (ii) the primary objective targeted (the World 
Trade Center in New York City) was manifestly a civilian object rather than a 
military objective. 82 The net result was a carnage in which some 3,000 inno- 
cent civilians lost their lives. No group conducting attacks in such an egre- 
gious fashion can claim prisoner of war status for its fighters . Whatever the 
lingering doubt which may exist with respect to the entitlement oi Taliban 
forces to prisoners of war status, there is — and there can be — none as regards 
al Qaeda terrorists. 

3. The al Qaeda involvement raises another issue. Whereas the Taliban 
forces were composed of Afghan (and some Pakistani) nationals, al Qaeda is 
an assemblage of Moslem fanatics from all parts of the world. Most of them are 
apparently Arabs, but some have come from Western countries, and there 
were at least two cases of renegade American nationals. Without delving into 
the question of how the United States should have handled the situation from 
the standpoint oi its domestic — constitutional and criminal — legal system, 
the salient point is that, under the jus in bello, irrespective of all other consid- 
erations, nobody owing allegiance to the Detaining Power can expect to be 
treated as a prisoner of war (condition (vii)). 

4. The constraints of the conditions of lawful combatancy must not, how- 
ever, be seen as binding on only one party to the conflict in Afghanistan. As 
the hostilities progressed, it became all too evident (again, thanks to the ubiq- 
uitous TV cameras) that some US combatants — CIA agents in the field, and 
conceivably others — were not wearing uniforms while in combat. It must be 
underscored that observance by even 99% of the armed forces of a party to a 
conflict of the seven conditions of lawful combatancy — including the condi- 
tion relating to having a fixed distinctive emblem, such as a uniform (condi- 
tion (ii)) — does not absolve the remaining 1% from the unshakable obligation 
to conduct themselves pursuant to the same conditions. Consequently, had 
any US combatants in civilian clothing been captured by the enemy, they 
would not be any more entitled to prisoner of war status than Taliban and al 
Qaeda fighters in a similar situation. 

5. Perhaps "the primary focus of debate and controversy" in this field has 
been the detention of al Qaeda terrorists transferred by the United States 



82. On the principle of military objectives, see Yoram Dinstein, Legitimate Military Objectives 
Under the Current jus in Bello, LEGAL AND ETHICAL LESSONS OF NATO'S KOSOVO CAMPAIGN, 
(Andru Wall ed., 2003) (Vol 79, US Naval War College International Law Studies). 

173 



Unlawful Combatancy 



from Afghanistan to Guantanamo Bay (on the island of Cuba). 83 Since unlaw- 
ful combatants are not entitled to prisoners of war status, most criticisms 
against conditions of detention in Guantanamo are beside the point. How- 
ever, it must be understood that^assuming that the detainees are not 
charged with any crime in judicial proceedings — detention (as a purely ad- 
ministrative measure) cannot go on beyond the termination of hostilities: hos- 
tilities in Afghanistan as regards Taliban personnel; hostilities in which al 
Qaeda is involved in the case of its incarcerated fighters. 

Conclusion 

Unlawful combatancy is a matter of great practical significance in present-day 
international law. Unlawful combatants may be tried for violations of ordinary 
domestic laws and they may also be detained without trial (as long as the hostil- 
ities by the force to whom they belong 'go on) . The seven cumulative conditions 
oi lawful combatancy are no doubt stringent. But as the Afghanistan case am- 
ply demonstrates, the need for maintaining the distinction between lawful and 
unlawful combatants is as imperative as ever. Otherwise, compliance with the 
basic rule of distinction between civilians and combatants would be in 
jeopardy. 



83. Anderson, supra note 80, at 621. 

174 



VIII 



The Laws of War in the War on Terror 1 

Adam Roberts 2 

Introduction 



T 



he laws of war — the parts of international law explicitly applicable in 
armed conflict — have a major bearing on the "war on terror" pro- 
claimed and initiated by the United States following the attacks of 1 1 Septem- 
ber 2001. They address a range of critical issues that perennially arise in 
campaigns against terrorist movements, including discrimination in targeting, 
protection of civilians, and status and treatment of prisoners. However, the ap- 
plication of the laws of war in counter-terrorist operations has always been par- 
ticularly problematical. Because of the character of such operations, different in 



1. Copyright © Adam Roberts, 2002, 2003. This is a revised version of Counter-terrorism, Armed 
Force and the Laws of War, 44 SURVIVAL 1 (Spring 2002), 7-32. It incorporates information 
available up to 15 December 2002. 1 am grateful for help received from a large number of people 
who read drafts, including particularly Dr. Dana Allin, Dr. Kenneth Anderson, Dr. Mary-Jane 
Fox, Colonel Charles Garraway, Richard Guelff, Commander Steven Haines, and Professor Mike 
Schmitt; participants at the Carr Centre conference on "Humanitarian Issues in Military 
Targeting," Washington DC, 7-8 March 2002; and participants at the US Naval War College 
conference on "International Law & the War on Terrorism," Newport, RI, 26-28 June 2002. 
Versions of this paper have also appeared on the website of the Social Science Research Council, 
New York, at http://www.ssrc.org. 

2. Sir Adam Roberts is Montague Burton Professor of International Relations at Oxford University 
and Fellow of Balliol College. He is co-editor, with Richard Guelff (District of Columbia Bar), of 
DOCUMENTS ON THE LAWS OF WAR (Oxford and New York: Oxford University Press, 2000). 



The Laws of War in the War on Terror 



important respects from what was originally envisaged in the treaties embody- 
ing the laws of war, a key issue in any analysis is not just whether or how the law 
is applied by the belligerents, but also its relevance to the particular circum- 
stances of the operations. It is not just the conduct of the parties that merits ex- 
amination, but also the adequacy of the law itself. Thus there is a need to look 
at the actual events of wars involving a terrorist adversary, and at the many 
ways in which, rightly or wrongly, the law is considered to have a bearing on 
them. 

The present survey critically examines not only certain statements and ac- 
tions of the US administration, but also those of the International Committee 
of the Red Cross (ICRC) and certain other bodies concerned with humanitar- 
ian and human rights issues. While touching on many ways in which the laws 
of war impinge on policy, the main focus is on the following four core 
questions. 

1 . Are the laws of war, according to their specific terms, applicable to 
counter- terrorist military operations? 

2. In the event that counter-terrorist military operations involve sit- 
uations different from those envisaged in international agreements on the 
laws of war, should the attempt still be made to apply that body of law to such 
situations? 

3. Are captured personnel who are suspected of involvement in ter- 
rorist organizations entitled to prisoner-of-war (POW) status? If they are not 
considered to be POWs, does the law recognize a different status, and what in- 
ternational standards apply to their treatment? 

4. Is there a case for a revision of the laws of war to take into ac- 
count the special circumstances of contemporary counter-terrorist 
operations? 

The answers to these questions may vary in different circumstances. The 
US-led "war on terror" involves action in many countries, with different legal 
and factual contexts. By no means does all action against terrorism, even if 
part of the "war on terror," involve military action in any form, let alone 
armed conflict of the kind in which the laws of war are formally applicable. 
The war's most prominent military manifestation to date, and the focus of this 
survey, is the coalition military action in Afghanistan that commenced on 7 
October 2001 and still continues. While certain phases and aspects of Opera- 
tion ENDURING FREEDOM involved an international armed conflict, unques- 
tionably bringing the laws of war into play, other phases and aspects are more 
debatable with respect to the application of this body o{ law. 



176 



Adam Roberts 



The laws of war are not the only body of law potentially relevant to the con- 
sideration of terrorist and counter-terrorist actions. For example, in many 
cases terrorists acts would indeed be violations of the laws of war if they were 
conducted in the course of an international or an internal armed conflict. 
However, because they frequently occur in what is widely viewed as peace- 
time, the illegality of such acts has to be established first and foremost by refer- 
ence to the national law of states; international treaties on terrorism and 
related matters; 3 and other relevant parts of international law (including parts 
of the laws of war) that apply in peacetime as well as wartime, for example the 
rules relating to genocide, crimes against humanity and certain rules relating 
to human rights. All of these legal categories are relevant to consideration of 
the attacks of 1 1 September. For example, the attacks constitute murder un- 
der the domestic law of states, and at the same time can be regarded as "crimes 
against humanity," a category which encompasses widespread or systematic 
murder committed against any civilian population. 4 

3. For texts of treaties and other international documents on terrorism, and useful discussion 
thereof, see TERRORISM AND INTERNATIONAL LAW (Rosalyn Higgins and Maurice Flory eds., 
1997). For more recent treaties and UN resolutions see the information on terrorism on the UN 
website, at http://www.un.org. 

4. Crimes against humanity, defined in the Charter and Judgment of the International Military 
Tribunal at Nuremburg in 1945-46, are more fully defined in Article 7 of the 1998 Rome Statute 
of the International Criminal Court, which entered into force on 1 July 2002. These crimes 
include any of the following acts when committed as part of a widespread or systematic attack 
directed against any civilian population, with knowledge of the attack: 

(a) Murder; 

(b) Extermination; 

(c) Enslavement; 

(d) Deportation or forcible transfer of population; 

(e) Imprisonment or other severe deprivation of physical liberty in violation of 
fundamental rules of international law; 

(f) Torture; 

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced 
sterilization, or any other form of sexual violence of comparable gravity; 

• (h) Persecution against any identifiable group or collectivity on political, racial, 
national, ethnic, cultural, religious, gender ... or other grounds that are universally 
recognized as impermissible under international law, in connection with any act 
referred to in this paragraph or any crime within the jurisdiction of the Court; 
(i) Enforced disappearance of persons; 
(j) The crime of apartheid. 

U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal 
Court, Rome Statute of the International Criminal Court, U.N. Doc. No. A/CONF.183/9 (1998) 
[hereinafter Rome Statute] . The Rome Statute does not apply retroactively and the United States 

177 



The Laws of War in the War on Terror 



In an effort to answer the questions posed in this introduction, this survey is 
divided into six parts. 

page 

1. The Laws of War 178 

2. Counter-Terrorist Military Operations 184 

3. War in Afghanistan 191 

4. Prisoners 208 

5. Further Development of International Law 225 

6. Conclusions 227 

The Laws of War 

The laws of war (also referred to as "jus in bello" and "international humanitar- 
ian law applicable in armed conflict") are embodied and interpreted in a variety 
of sources: treaties, customary law, judicial decisions, writings of legal special- 
ists, military manuals and resolutions, of international organizations. Although 
some of the law is immensely detailed, its basic principles are simple: the 
wounded and sick, POWs and civilians are to be protected; military targets 
must be attacked in such a manner as to keep civilian casualties and damage to 
a minimum; humanitarian and peacekeeping personnel must be respected; 
neutral or non-belligerent states have certain rights and duties; and the use of 
certain weapons (including chemical weapons) is prohibited, as also are certain 
other means and methods of warfare. The four 1949 Geneva Conven- 
tions — the treaties that form the keystone of the modern laws of war — are con- 
cerned largely with the protection of victims of war who have fallen into the 
hands of an adversary, as distinct from the conduct of military operations. 5 



has stated its intent to not become a party to this treaty. For a detailed treatment of US opposition to 
the ICC, see John Bolton, The Risks and Weaknesses of the International Criminal Court from America's 
Perspective, 41 VA. J. INT'L L. 186 (2000); Michael Newton, Comparative Complementarity: Domestic 
Jurisdiction Consistent with Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (2001 ) . 
5. See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed 
Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; 
Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked 
Members of Armed Forces at Sea, Aug. 12, 1949, 6. U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 
85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 
T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III] ; Convention Relative to the Protection 
of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 
U.N.T.S. 287 [hereinafter GC IV]. These four conventions are all reprinted in DOCUMENTS ON 
THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) [hereinafter 
DOCUMENTS ON THE LAWS OF WAR]; and in THE LAWS OF ARMED CONFLICTS: A 
COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS (Dietrich 
Schindler and Jiri Toman eds., 3rd ed. 1988). Treaty texts are also available at the International 
Committee of the Red Cross website, at http://www.icrc.org/eng (Jan. 3, 2003). 

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Treaties on the laws of war are the product of negotiations between states, 
and reflect their experiences and interests, including those of their armed 
forces. For centuries these rules, albeit frequently the subject of controversy, 
have had an important function in the policies and practices of states engaged 
in military operations. With respect to international coalitions involved in 
combat, given the needs of the members to harmonize their actions on a range 
of practical issues, these rules have long had particular significance. Even in 
situations in which their formal applicability may be questionable, they have 
sometimes been accepted as relevant guidelines. 

Scope of application 

The laws of war have a scope of application that is not limited to wars between 
recognized states. They apply in a wide, but not infinitely wide, variety of situa- 
tions. In the 1949 Geneva Conventions, Common Article 1 specifies that the 
parties "undertake to respect and to ensure respect for the present Convention 
in all circumstances." 6 Common Article 2, which deals directly with scope of 
application, specifies that the Conventions "apply to all cases of declared war or 
of any other armed conflict which may arise between two or more of the High 
Contracting Parties, even if the state of war is not recognized by one of them," 
indicating that the existence or non-existence of a declaration of war, or a for- 
mal state of war, is not necessary for the application of the Conventions. Com- 
mon Article 3 contains certain minimum provisions to be applied in the case of 
armed conflict not of an international character, concentrating particularly 
on treatment of persons taking no active part in hostilities. 7 Certain other 



6. For an authoritative account of the origins and meanings of Common Article 1, see Frits 
Kalshoven, The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to 
Ripening Fruit, 2 Y.B. INT'L HUM. L. 1999, at 3-61 (2000). 

7. Common Article 3 of the Geneva Conventions provides in part that: 

In the case of armed conflict not of an international character occurring in the territory 
of one of the High Contracting Parties, each Party to the conflict shall be bound to 
apply, as a minimum, the following provisions: 

(1) Persons taking no active part in the hostilities, including members of armed forces 
who have laid down their arms and those placed hors de combat by sickness, wounds, 
detention, or any other cause, shall in all circumstances be treated humanely, without 
any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or 
any other similar criteria. 

To this end, the following acts are and shall remain prohibited at any time and in any 
place whatsoever with respect to the above-mentioned persons: 

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agreements, especially those concluded since the early 1990s, apply in non-in- 
ternational as well as international armed conflicts. 

The distinction that has traditionally been drawn in the laws of war be- 
tween international and non-international armed conflict has come under 
challenge in the post- 1945 era. This is not only because many wars have in- 
volved elements of both civil and international war, but also because of the 
nature of counter-terrorist operations. These have aspects that are similar to a 
civil war, particularly as they typically involve governmental forces combating 
non-governmental groups; but they may not meet all the criteria (such as the 
holding of territory by insurgents) required for the application of parts of the 
law governing non-international armed conflict; and they can also have as- 
pects that are more closely akin to international war, especially if the terrorists 
operate in armed units outside their own countries. 

Application of the law is not necessarily dependent on formal designation 
of a conflict as international or non-international. In some instances, as indi- 
cated below, the UN Security Council or particular belligerents have deemed 
the rules governing international armed conflict to be applicable even to a 
largely internal situation. The US armed forces have indicated their intention 
to observe the rules governing international armed conflicts, even in situa- 
tions that may differ in certain respects from the classical model of an inter- 
state war. The Standing Rules of Engagement issued by the US Joint Chiefs of 
Staff spell this out: 

U.S. forces will comply with the Law of War during military operations 
involving armed conflict, no matter how the conflict may be characterized 
under international law, and will comply with its principles and spirit during all 
other operations. 8 



(a) violence to life and person, in particular murder of all kinds, mutilation, cruel 
treatment and torture; 

(b) taking of hostages; 

(c) outrages upon personal dignity, in particular humiliating and degrading treatment; 

(d) the passing of sentences and the carrying out of executions without previous 
judgment pronounced by a regularly constituted court, affording all the judicial 
guarantees which are recognized as indispensable by civilized peoples. . . . 

See GC III, supra note 5, art. 3; DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 245. 

8. Chairman Joint Chiefs of Staff Instr 3 121. 01 A Standing rules of Engagement 

FOR U.S. FORCES, ENCLOSURE (A) A-9 [hereinafter CJCS INSTR 3121.01A]. A similar but not 
identical statement had appeared in the Standing ROE of 1 October 1994, which this document 
replaces. See CJCS INSTR, 3121.01 STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (1 
OCT. 1994). A number of other US military-doctrinal statements are equally definite that US 
forces will always apply the law of armed conflict. 

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Adam Roberts 



In certain inter-state conflicts, Western armed forces, engaging with adver- 
saries showing at best limited respect for ethical and legal restraints, have 
managed to observe basic rules of the laws of war. This was the case in the 
1991 Gulf War, in which Iraq mistreated prisoners, despoiled the environ- 
ment and had to be warned in brutally clear terms not to engage in chemical 
or biological attacks and terrorist operations. The US-led Gulf coalition 
sought to observe the law not because of any guarantee of reciprocity, but be- 
cause such conduct was important to the ethos of the armed forces; and be- 
cause it contributed to the maintenance of internal discipline, and of domestic 
and international support. Similar conclusions could be drawn from the 1999 
Kosovo War. In short, practice has provided some evidence in support of the 
legal position that reciprocity with one adversary in one particular conflict is 
far from being a necessary condition for observing the laws of war. 

Whether all aspects of counter-terrorist operations fall within the scope of 
application of the laws of war will be explored further in Part 2 below. 

Jus ad bellum and jus in bello 

In any armed conflict, including one against terrorism, it is important to distin- 
guish between the legality of resorting to force and the legality of the way in 
which such force is used. In strict legal terms, the law relating to the right to re- 
sort to the use of force (jus ad bellum) and the law governing the actual use of 
force in war (jus in bello) are separate. The jus in bello applies to the conduct of 
belligerents in international armed conflict irrespective of their right to resort 
to the use of force under the jus ad bellum. As regards the jus ad bellum issues 
raised after 1 1 September, my own views are in favor of the legality, and indeed 
overall moral justifiability, of the military action in Afghanistan. However, this 
survey's focus is on the jus in bello aspects of the US-led military operations. 

Despite the lack of a formal connection between jus ad bellum and jus in 
bello, there are certain ways in which they interact in practice, especially in a 
war against terrorists. By observing jus in bello, a state or a coalition of states 
may contribute to perceptions of the justice of a cause in three related ways. 
First, in all military operations, whether or not against terrorists, the percep- 
tion that a state or a coalition of states is observing recognized international 
standards may contribute to public support domestically and internationally. 
Second, if the coalition were to violate jus in bello in a major way, for example 
by the commission of atrocities, that would be likely to advance the cause of 
the adversary forces, arguably providing them a justification for their resort to 
force. Third, in counter-terrorist campaigns in particular, a basis for engaging 
in military operations is often a perception that there is a definite moral 

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The Laws of War in the War on Terror 



distinction between the types of actions engaged in by terrorists and those en- 
gaged in by their adversaries. Observance of jus in bello can form a part of that 
moral distinction. 

However, the jus ad bellum rationale that armed hostilities have been initi- 
ated in response to major terrorist acts can raise issues relating to the applica- 
tion of certain jus in bello principles. Two such issues are explored here: first, 
whether there is scope for neutrality in relation to an armed conflict in which 
one side is fighting in the name of opposing terrorism; second, whether those 
responsible for terrorist campaigns can be viewed as exclusively responsible for 
all the death and destruction of an ensuing war. 

The right of states to be neutral in an armed conflict is a long-standing prin- 
ciple of the laws of war. Events of the past century, especially the obligations 
imposed by membership of international organizations, have exposed prob- 
lems in the traditional idea of strictly impartial neutrality and have led to its 
modification and even erosion. In many conflicts there were states which, 
even while not belligerents, pursued policies favoring one side, for example 
joining in sanctions against a state perceived to be an aggressor. The UN 
Charter, by providing for the Security Council to require all states to take cer- 
tain actions against offending states, added to the erosion of traditional con- 
cepts of neutrality, at least in those cases in which the Security Council has 
been able to agree on a common course of action (e.g., sanctions). The impor- 
tance of new forms of non-belligerence, distinct from traditional neutrality, 
may help to explain the emergence of terms such as "neutral or non-belligerent 
powers" in post- 1945 treaties on the laws of war. 9 In many recent episodes, in- 
cluding the 1991 Gulf War and the 1999 Kosovo War, when the use of armed 
force by a coalition has been combined with the application of general UN 
sanctions against the adversary state, the scope for traditional (i.e., impartial) 
neutrality has indeed been limited, but certain forms of non-belligerence have 
survived. As outlined below in Part 3 on War in Afghanistan, the "war on ter- 
ror" which began in 2001 with Operation ENDURING FREEDOM would con- 
firm that in certain armed conflicts, particularly when the UN Security 
Council has given approval to one party, the scope for neutrality may be lim- 
ited or non-existent. 



9. See GC III, supra note 5, at articles 4(B) (2) and 122. See also the references to "neutral and 
other States not Parties to the conflict" in 1977 Geneva Protocol I Additional to the Geneva 
Conventions of 12 August 1949 and Relating to the Protection of Victims of International 
Armed Conflicts, Articles 9, 19, 31 opened for signature Dec. 12, 1977, 1125 U.N.T.S. 1 
[hereinafter GP I], reprinted in DOCUMENTS ON THE LAWS OF WAR at 419, supra note 5. 

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Adam Roberts 



Can those who initiated terrorist campaigns be held responsible for all the 
death and destruction of an ensuing war? When fighting terrorism is the basis 
for resorting to war under the jus ad bellum, there is sometimes a tendency for 
the general indignation caused by terrorist attacks to affect adversely the im- 
plementation of jus in belio. It is sometimes argued that because the terrorists 
started the war, they are responsible for all the subsequent horrors. In early 
December 2001, discussing civilian casualties, US Secretary of Defense 
Donald Rumsfeld said: "We did not start this war. So understand, responsibil- 
ity for every single casualty in this war, whether they're innocent Afghans or 
innocent Americans, rests at the feet of the al Qaeda and the Taliban." 10 Such 
a view, if it implies that the peculiar circumstances involved in the jus ad 
bellum might override certain considerations of jus in bello in the war that fol- 
lows, has no basis in the law. 

Proportionality 

"Proportionality" is a long-established principle that sets out criteria for limit- 
ing the use of force. One of its meanings relates to the proportionality of a mili- 
tary action compared to a grievance, and thus constitutes a further link 
between jus in bello and jus ad bellum. It involves a complex balance of consid- 
erations, and it would be incorrect to interpret this principle to imply a right of 
tit-for-tat retaliation. For example, it would be legally unjustified for a military 
response to a terrorist act to have the objective of killing the same number of 
people, and there was no suggestion or indication that this was a coalition ob- 
jective in Afghanistan. Nor does this principle prevent a response from taking 
into account a range of issues not limited to the size of the initial attack. 11 

The other main meaning of proportionality relates to the actual conduct of 
ongoing hostilities. As a US Army manual succinctly interprets it, "the loss of 
life and damage to property incidental to attacks must not be excessive in rela- 
tion to the concrete and direct military advantage expected to be gained." 12 
This meaning of proportionality (which is not directly linked to jus ad bellum) 
is often difficult to apply in armed conflict, especially in counter-terrorist 



10. Secretary of Defense Donald Rumsfeld, News Conference at the Pentagon (Dec. 4, 2001), 
available at http://www.defenselink.mil/news/Dec2001/tl2042001_tl204sd.html (Nov. 6, 2002). 

11. In an assessment of the events of 2001, Christopher Greenwood has argued that 
"proportionality in self-defence looks forward. The test is whether the force used is proportionate 
to the threat it is designed to meet, not to the events of the past." See Christopher Greenwood, 
International Law and the "War Against Terrorism," 78 INT'L AFF'S 2, 313-314 (April 2002). 

12. U.S. DEFT OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, para. 41 Ouly 
1956) [hereinafter FM 27-10]. 

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The Laws of War in the War on Terror 



operations. It may, but does not necessarily, limit the use of force to the same 
level or amount of force as that employed by an adversary. It exists alongside 
the principle of military necessity, which is defined in the US Army manual as 
one that "justifies those measures not forbidden by international law which 
are indispensable for securing the complete submission of the enemy as soon 
as possible." 13 The principle of proportionality is therefore in tension, but not 
necessarily in conflict, with the current US military doctrine, which favors the 
overwhelming use of force in order to achieve decisive victory quickly and at 
minimum cost in terms of US casualties. 14 

Counter 'Terrorist Military Operations 

Counter- terrorism has been defined as "offensive military operations designed 
to prevent, deter and respond to terrorism." 15 Such operations, including those 
resulting from the events of 1 1 September, may involve inter-state armed con- 
flict as principally envisaged in the laws of war: in such cases that body of law 
applies straightforwardly. However, such operations can also involve conflict 
with other characteristics — a fact that helps to explain why the laws of war 
have often proved difficult to apply in them. Six factors, all relating to the na- 
ture of the opposition, point to potential problems in the application of the laws 
of war in counter-terrorist operations: 

• Neither all terrorist activities, nor all counter-terrorist military 
operations, even when they have some international dimension, necessarily 
constitute armed conflict between states. Terrorist movements themselves 
generally have a non-state character. Therefore, military operations between a 
state and such a movement, even if they involve the state's armed forces acting 



13. Id. at para. 3. A subsequent official US exposition of the principle states: "Only that degree 
and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or 
complete submission of the enemy with a minimum expenditure of time, life and physical 
resources may be applied." ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK 
ON THE LAW OF NAVAL OPERATIONS, para. 5-2 (A. Thomas and J. Duncan eds., 1999) (Vol. 
73, US Naval War College International Law Studies). 

14. For a brief discussion of United States and NATO strategic doctrine, see pages 191-208 infra. 

15. By contrast, "antiterrorism" has been defined as "defensive measures to reduce the 
vulnerability of individuals and property to terrorist attacks." See INTERNATIONAL AND 

Operational Law Dep't, the judge Advocate General's School, U.S. army, JA-422, 
Operational Law Handbook (2003), at 312-3 [hereinafter OpLaw Handbook]. This 

annual publication is available at https://www.jagcnet.army.mil/JAGCNETInternet/ 
Homepages/AC/CLAMO-Public.nsf (Nov. 14, 2002). 



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Adam Roberts 



outside its own territory, are not necessarily such as to bring them within the 
scope of application of the full range of provisions regarding international 
armed conflict in the 1949 Geneva Conventions and the 1977 Geneva 
Protocol I.i6 

• Counter-terrorist operations may assume the form of actions by a 
government against forces operating within its own territory; or, more rarely, 
may be actions by opposition forces against a government perceived to be 
committing or supporting terrorist acts. In both these cases, the conflict may 
have more the character of non-international armed conflict (that is, civil war) 
as distinct from international war. Fewer laws-of-war rules have been formally 
applicable to civil as distinct from international war, although the situation is 
now changing in some respects. 

• In many cases, the attributes and actions of a terrorist movement may not 
come within the field of application even of the modest body of rules relating to 
non-international armed conflict. Common Article 3 of the 1949 Geneva 
Conventions is the core of these rules, but says little about the scope of 
application. The principal subsequent agreement on non-international armed 
conflict, the 1977 Geneva Protocol II, is based on the assumption that there is 
a conflict between a state's armed forces and organized armed groups which, 
under responsible command, exercise control over a part o{ its territory, and 
carry out sustained and concerted military operations. The protocol expressly 
does not apply to situations of internal disturbance and tension, such as riots, 
and isolated and sporadic acts of violence. 1 7 

• Since terrorist forces often have little regard for internationally agreed 
rules of restraint, the resolve of the counter-terrorist forces to observe them 
may also be weakened, given the low expectation of reciprocity and the 
tendency of some part of the public under attack to overlook any breaches by 
their own forces. 

• A basic principle of the laws of war is that attacks should be directed 
against the adversary's military forces, rather than against civilians. This 
principle, violated in terrorist attacks specifically directed against civilians, can 



16. In ratifying the 1977 Geneva Protocol I in 1998, the United Kingdom made a statement that 
the term "armed conflict" denotes "a situation which is not constituted by the commission of 
ordinary crimes including acts of terrorism whether concerted or in isolation." See GP I, supra 
note 9, reprinted in DOCUMENTS ON THE LAWS OF WAR, at 510, supra note 5. 

17. 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and 
Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1, reprinted in 
DOCUMENTS ON THE LAWS OF WAR, at 481, supra note 5 [hereinafter GP II]. 

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The Laws of War in the War on Terror 



be difficult to apply in counter-terrorist operations, because the terrorist 
movement may not be composed of defined military forces that are clearly 
distinguished from civilians. 

• Some captured personnel who are members of a terrorist organization 
may not meet the criteria for POW status as set out in 1949 Geneva 
Convention III. (The question of prisoners is discussed in greater detail 
below.) 

These six factors reflect the same underlying difficulty governments have in 
applying the laws of war to civil wars, namely, that the opponent tends to be 
viewed as criminals, without the right to engage in combat operations. This 
factor above all explains why, despite the progress of recent decades, many 
governments are doubtful about, or opposed to, applying the full range of rules 
applicable in international armed conflict to operations against rebels and 
terrorists. 

For at least 25 years, the United States has expressed a concern, shared to 
some degree by certain other states, regarding the whole principle o( thinking 
about terrorists and other irregular forces in a laws-of-war framework. To refer 
to such a framework, which recognizes rights and duties, might seem to imply 
a degree of moral acceptance of the right of any particular group to resort to 
acts of violence, at least against military targets. 18 Successive US administra- 
tions have objected to certain revisions to the laws of war on the grounds that 
they might actually favor guerrilla fighters and terrorists, affording them a sta- 
tus that the United States believes they do not deserve. The strongest expres- 
sion of this view was a letter o{ 29 January 1987 explaining why the 
administration was not recommending Senate approval of 1977 Geneva Pro- 
tocol I. The letter mentioned that granting combatant status to certain irregu- 
lar forces "would endanger civilians among whom terrorists and other 
irregulars attempt to conceal themselves." It indicated a concern that the pro- 
visions would endanger US soldiers, and stated in very general terms that "the 
Joint Chiefs of Staff have also concluded that a number of the provisions of 
the protocol are militarily unacceptable." United States repudiation of the 
protocol would be an important move against "the intense efforts of terrorist 
organizations and their supporters to promote the legitimacy of their aims and 



18. For fuller discussion, and evidence that the concern about the hazards of coping with 
terrorism in a laws-of-war framework is not new, see ADAM ROBERTS, TERRORISM ANT 
INTERNATIONAL ORDER, 14-15 (Lawrence Freedman et al. eds., 1986). 

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Adam Roberts 



practices." 19 Whether all this was based on a fair interpretation of 1977 
Geneva Protocol I is the subject of impassioned debate that is beyond the 
scope of this survey. The key point is the US concern — which has not 
changed fundamentally in the years since 1987 — that the laws of war might be 
misused by some in order to give an unwarranted degree of recognition to 
guerrillas and terrorists. 

Application of the law in previous operations 

In many counter-terrorist campaigns since 1945 issues relating to the obser- 
vance or non-observance of basic rules of law, including the laws of war, have 
perennially been of considerable significance. This has been the case both 
when a counter-terrorist campaign has been part of an international armed 
conflict, and when such a campaign has been a largely internal matter, con- 
ducted by a government within its own territory, in a situation which may not 
cross the threshold to be considered an armed conflict. In such circumstances 
the laws of war may be of limited formal application, but their underlying prin- 
ciples, as well as other legal and prudential limits, are important. Within func- 
tioning states, terrorist campaigns have often been defeated through slow and 
patient police work (sometimes with military assistance) rather than major mil- 
itary campaigns; for example, the actions against the Red Army Faction in Ger- 
many and the Red Brigades in Italy in the 1970s. 

The British military and police operation against "Communist Terrorists" 
in Malaya after 1948 is an example (in a colonial context) of a long-drawn-out 
and patient counter-terrorist campaign that was eventually successful. One of 
the key military figures involved in that campaign, Sir Robert Thompson, dis- 
tilling five basic principles of counter-insurgency from this and other cases, 
wrote of the crucial importance of operating within a properly functioning do- 
mestic legal framework: 

Second principle. The government must function in accordance with law. There 
is a very strong temptation in dealing both with terrorism and with guerrilla 
actions for government forces to act outside the law, the excuses being that the 
processes of law are too cumbersome, that the normal safeguards in the law for 
the individual are not designed for an insurgency and that a terrorist deserves to 



19. Letter of Transmittal from President Ronald Reagan, 1977 Geneva Protocol I Additional to 
the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of 
International Armed Conflict, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987), 
reprinted in 81 AM J. INT'L L. 910-912 (1988). 

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The Laws of War in the War on Terror 



be treated as an outlaw anyway. Not only is this morally wrong, but, over a 
period, it will create more practical difficulties for a government than it solves. 20 

The United Kingdom's long engagement against terrorism in Northern Ire- 
land, although in an essentially internal situation, provides one precedent for 
affording treatment based on certain international rules to prisoners whose 
status is contested. This was one of many conflicts in which those deemed to 
be "terrorists" were aware of the value, including propaganda value, of making 
claims to POW status. While denying that there was an armed conflict 
whether international or otherwise, and strongly resisting any granting of 
POW status to detainees and convicted prisoners, the United Kingdom did 
come to accept that international standards had to apply to their treatment. 
The minority report of a UK Commission of Inquiry in 1972 which led to this 
conclusion is an interesting example of asserting the wider relevance, even in 
an internal conflict, of certain international legal standards, including some 
from the main body of the four 1949 Geneva Conventions. 21 The UK govern- 
ment's acceptance of this approach was only a decision, not a complete solu- 
tion to a matter that continued to be contentious. 

Questions about the status and treatment of prisoners, some of whom were 
considered as terrorists, also arose during the US involvement in Vietnam. In 
1967-8, the United States took a judiciously inclusive approach to the matter 
when it issued directives to classify Viet Cong main force and local force person- 
nel, and certain Viet Cong irregulars, as POWs. This was despite the existence of 
doubts and ambiguities as to whether these forces met all the criteria in Article 4 
of 1949 Geneva Convention III. Viet Cong irregulars were to be classified as 
POWs if captured while engaging in combat or a belligerent act under arms, 
"other than an act o{ terrorism, sabotage, or spying." There was provision for es- 
tablishing tribunals, in accordance with Article 5 of the Geneva Convention, to 



20. ROBERT THOMPSON, DEFEATING COMMUNIST INSURGENCY: EXPERIENCES FROM 
MALAYA AND VIETNAM, 52 (1966). From 1957 to 1961 the author was successively Deputy 
Secretary and Secretary for Defense in Malaya. As his and other accounts make clear, in the 
course of the Malayan Emergency there were-certain derogations from human rights standards, 
including detentions and compulsory relocations of villages. 

21. Report of the Committee of Privy Counsellors Appointed to Consider Authorized 
Procedures for the Interrogation of Persons Suspected of Terrorism, Cmnd. 4901, Her Majesty's 
Stationery Office, London, 1972, at 1-2 and 11-23. 

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Adam Roberts 



determine, in doubtful or contested cases, whether individual detainees were en- 
titled to POW status. 22 

One example of a counter-terrorist military campaign, the 1982-2000 Is- 
raeli presence in Lebanon, shows the importance of legal restraints in counter- 
terrorist operations, and the hazards that can attend a failure to observe them. 
This episode has certain similarities to the case of Afghanistan in 2001-2002, 
as well as some obvious differences. Israel's June 1982 invasion of Lebanon 
was explicitly in response to "constant terrorist provocations," including, 
since July 1981, "150 acts of terrorism instigated by the PLO, originating in 
Lebanon, against Israelis and Jews in Israel and elsewhere: in Athens, Vienna, 
Paris and London." Israel said that if Lebanon was unwilling or unable to pre- 
vent the harboring, training and financing of terrorists, it must face the risk of 
counter-measures. 23 The invasion led to the attacks on the inhabitants of 
Sabra and Shatila refugee camps outside Beirut in September 1982 by Israel's 
local co-belligerents, the Lebanese Phalangists. At the lowest estimates, sev- 
eral hundred Palestinians in the camps, including many women and children, 
were killed. This event aroused strong opposition internationally, and also in 
Israel. The Israeli authorities established a Commission of Inquiry, which con- 
cluded that, while the Phalangist forces were directly responsible for the 
slaughter, Israel bore indirect responsibility. 24 During the whole period of Is- 
raeli military involvement in Lebanon, the treatment of alleged terrorist de- 
tainees also caused controversy. Israel opposed granting them POW status on 
the grounds that as terrorists they were not entitled to it. The detainees were 
held in very poor conditions in notorious camps, including al-Khiam (run by 
the Israeli-created South Lebanese Army) and al-Ansar (run by the Israel 



22. Two key directives issued by US Military Assistance Command, Vietnam, on the question of 
eligibility for POW status are (1) Annex A, "Criteria for Classification and Disposition of 
Detainees," part of Directive no. 381-46 of 27 December 1967; and (2) Directive no. 20-5 of 15 
March 1968, "Inspections and Investigations: Prisoners of War - Determination of Eligibility," 
reprinted in 62 AM. J. INT'L L. 755, at 766-75 (1968). 

23. See Yehuda Blum, Permanent Representative of Israel to the United Nations, Speech before 
the Security Council, U.N. SCOR, 36th Sess., Supp. 21, U.N. Doc. S/PV.2292 (1981). The 
Security Council unanimously demanded an end to all military activities and a withdrawal of 
Israeli forces from Lebanon in Resolutions 508 and 509 of 5 and 6 June 1982 respectively. See 
S. C. Res. 508, U.N. SCOR, 37th Sess., U.N. Doc. S/508/(1982); and S. C. Res. 509, U.N. 
SCOR, 37th Sess., U.N. Doc. S/509/(1982). 

24. See Commission of Inquiry into the Events at the Refugee Camps in Beirut, Final Report at 
53-54 (1983) [hereinafter Kahan Report], reprinted in 22 I.L.M. 3, at 473 (1983). 

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The Laws of War in the War on Terror 



Defense Forces). 25 The Israeli military presence in Lebanon received exten- 
sive criticism internationally and in Israel, and cost many lives among the Is- 
rael Defense Forces, their adversaries and the civilian population. It ended 
with a unilateral Israeli withdrawal in May 2000. 

Past evidence suggests that while the application of the law may be particu- 
larly difficult in counter-terrorist operations, it cannot be neglected. Some 
failures to observe legal restraints in past campaigns have been instructive. In 
military operations with the purpose of stopping terrorist activities, there has 
been a tendency for counter-terrorist forces to violate basic legal restraints. 
There have been many instances in which prisoners were subjected to mis- 
treatment or torture. In some cases, excesses by the government or by inter- 
vening forces supporting the government may have had the unintended effect 
of assisting a terrorist campaign. Applying pressure on a government or army 
to change its approach to counter-terrorism, to bring it more into line with the 
laws of war and human-rights law, can be a difficult task. 

In a counter-terrorist war, as in other wars, there can be strong prudential 
considerations that militate in favor of observing legal standards, which are in- 
creasingly seen as consisting of not only domestic legal standards, but also in- 
ternational ones, including those embodied in the laws of war. These 
considerations include securing public and international support; ensuring 
that terrorists are not given the propaganda gift of atrocities or maltreatment 
by their adversaries; and maintaining discipline and high professional stan- 
dards in the counter-terrorist forces; and assisting reconciliation and future 
peace. Such considerations may carry great weight even in conflicts, or partic- 
ular episodes within them, which differ from what is envisaged in the formal 
provisions regarding scope of application of relevant treaties. These consider- 
ations in favor of observing the law may be important irrespective of whether 
there is reciprocity in such observance by all the parties to a particular war. 
However, it is not realistic to expect that the result of the application of such 
rules will be a sanitized form of war in which civilian suffering and death is 
eliminated. 



25. In a case concerning detainees in Ansar Prison on which the Israeli Supreme Court issued a 
judgment on 11 May 1983, the Israeli authorities asserted that the prisoners were "hostile 
foreigners detained because they belong to the forces of terrorist organizations, or because of 
their connections or closeness to terrorist organizations." Israel, while refusing them POW 
status, claimed to observe "humanitarian guidelines" of the 1949 Geneva Convention IV on 
civilians. For details of the case see 13 ISR. Y.B. HUM. RTS. 360-64 (1983). 

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War in Afghanistan 

In wars in Afghanistan over the centuries, conduct has differed markedly from 
that permitted by the written laws of war. These wars always had a civil war di- 
mension, traditionally subject to fewer rules in the laws of war; and guerrilla 
warfare, already endemic in Afghanistan in the nineteenth century, notori- 
ously blurs the traditional distinction between soldier and civilian that is at the 
heart of the laws of war. Some local customs, for example regarding the killing 
of prisoners and looting, are directly contrary to long-established principles of 
the law. Other customs are different from what is envisaged by the law, but are 
not necessarily a violation of it: for example, the practice of soldiers from the 
defeated side willingly joining their adversary rather than being taken prisoner. 
In some cases, conduct has been consistent with international norms: for ex- 
ample, the ICRC had access to some prisoners during the Soviet intervention. 
Overall, however, compliance with the laws of war has been limited. 

From the start, the implementation of the laws of war posed a problem for 
Operation ENDURING FREEDOM. 26 Difficult practical issues facing the coali- 
tion included: the problem of conducting operations discriminately against 
elusive enemies; the possibility that adversary forces might mistreat or execute 
coalition prisoners; the possibility that some enemy personnel facing capture 
might be reluctant to surrender their weapons, and that they might not meet 
the criteria for POW status; the urgent need for humanitarian relief opera- 
tions during ongoing war; and maintenance of order (and avoidance of looting 
and revenge killings) in liberated towns. These problems were exacerbated by 
the character of the coalition's local partner, the Northern Alliance. 27 The 
number of different forces involved, many of which were under the command 



26. The name Operation ENDURING FREEDOM was announced by Donald Rumsfeld at a press 
conference on 25 September 2001. See Secretary of Defense Donald Rumsfeld News Conference 
at the Pentagon (Sep. 25, 2001), available at http://www.defenselink.mil/news/Sep2001/ 
t09252001_t0925sd.html (Dec. 28, 2002). Operation ENDURING FREEDOM, he said, was not the 
"umbrella phrase" for the entire anti-terror campaign, but referred to a "broad, sustained 
multifaceted effort." It has been used to refer to the coalition military operations in and around 
Afghanistan that began on 7 October 2001. Operation ENDURING FREEDOM does not 
encompass the operations of the International Security Assistance Force in Afghanistan, 
mentioned below. 

27. "Northern Alliance" is a colloquial term for the "United Islamic Front for the Salvation of 
Afghanistan." This organization was formed in 1996-7. See Afghanistan and the United Nations 
Gan. 6, 2003), available at http://www.un.org/News/dh/latest/afghan/un-afghan-history.shtml 
Gan. 6, 2003). 

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The Laws of War in the War on Terror 



of local warlords, and the lack of clear structures of authority, decision- 
making and military discipline within them, militated against the implementa- 
tion of international norms. 

The active role of the media in this war ensured that many of these issues 
were heavily publicized. Reporters operated close to, and even in front of, the 
front lines, sending back reports and high-resolution pictures as events un- 
folded. Up to the end of January 2002, more reporters died while covering the 
war in Afghanistan than non-Afghan coalition military personnel. 28 As in 
other modern wars, the press played a critical role in repeatedly raising matters 
germane to the laws of war. 

This part deals mainly with the war in Afghanistan after the beginning of 
major US military action there on 7 October 2001. It cannot explore all the is- 
sues relating to the laws of war that have cropped up in regard to Afghanistan. 
It considers the applicability of the laws of war to the various aspects of this 
armed conflict generally, glances at the limited scope for neutrality, and then 
surveys three specific issues that were raised in the war: bombing; gas; and hu- 
manitarian assistance and refugee matters. Prisoners are considered in Part 4. 

Applicability of the laws of war to the armed conflict 

An armed conflict in Afghanistan — principally between the Taliban and 
Northern Alliance forces — had been going on for many years before the events 
of 1 1 September 2001. The UN Security Council had called on both parties to 
comply with their obligations under international humanitarian law. Like a 
similar resolution on Bosnia six years earlier, a 1998 UN Security Council Reso- 
lution on Afghanistan reaffirmed: 

that all parties to the conflict are bound to comply with their obligations under 
international humanitarian law and in particular the Geneva Conventions of 12 
August 1949 and that persons who commit or order the commission of grave 
breaches of the Conventions are individually responsible in respect of such 
breaches. 29 



28. Eight reporters died in the period October-December 200 1 , several of them due to banditry rather 
than military operations. Interview with Nik Gowing, BBC World Television Reporter Qan. 26, 2002). 

29. UN Security Council Resolution 1193 of 28 August 1998, passed unanimously. See S. C. Res. 
1193, U.N. SCOR, 53d Sess., U.N. Doc. S/l 193/(1998). Identical wording had been used in S. C 
Res. 764 of 13 July 1992 on the war in Bosnia and Herzegovina. See S. C. Res. 764, U.N. SCOR, 47th 
Sess., U.N. Doc. S/764/(1992). This wording did not necessarily mean that the Security Council 
viewed these wars as international armed conflicts, but it did mean that international standards had 
to be observed in them. Nor did it indicate that the Council considered any prisoners taken in these 
wars to have the full status of prisoners of war; but it implied that they should receive humane 
treatment in accord with international standards. 

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The reference to grave breaches would appear to suggest that the Security 
Council viewed all the rules of the 1949 Geneva Conventions as applicable, 
and not just Common Article 3, which deals with civil war. Thus, three years 
before it became directly involved, the United States as well as other powers 
viewed the laws of war as applicable to the Afghan conflict. 

Like the period of Soviet intervention of 1979-89, and indeed wars in many 
countries in the period since 1945, the armed conflict in Afghanistan from 
7 October 2001 can perhaps be best characterized as "internationalized civil 
war." This is not a formal legal category, but an indication that the rules per- 
taining to both international and civil wars may be applicable in different as- 
pects and phases of the conflict. 30 

Major aspects of the war in Afghanistan have been international in charac- 
ter. Following the attacks of 11 September 2001, the UN Security Council 
adopted Resolution 1368, recognizing the right of individual or collective self- 
defense and condemning international terrorism as a threat to international 
peace and security. This and the more detailed Resolution 1373 recognized 
the international dimensions of the struggle against terrorism. 31 During the 
period October-December 2001, there was an international armed conflict 
between the US-led coalition on the one side, and the Taliban and al Qaeda 
on the other. Following the fall of the Taliban regime, and the accession to 
power of the Afghan Interim Authority on 22 December 2001, the coalition's 
role was essentially that of aiding a government but in a struggle that was at 
least partly international. Even after the convening of the Loya Jirga in Kabul 
in June 2002 and the establishment of the Afghan Transitional Government 
on 19 June, coalition (including Afghan) forces were engaged not only against 
Taliban or other mainly Afghan forces, but also against certain non- Afghan 
forces, especially al Qaeda. Despite the fact that al Qaeda lacked the structure 
of a state, the continuing hostilities with it could still be understood as part of 
an international armed conflict. This coalition military action was separate 
from the assistance to the government in maintaining security in Kabul and 
surrounding areas through the International Security Assistance Force 
(ISAF); 32 



30. See Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case Studies of 
Afghanistan, Kampuchea and Lebanon, 33 AM. U. L. REV. 1 at 145-61 (Fall, 1983). 

31. S.C.Res. 1368, U.N. SCOR, 53d Sess., U.N. Doc. S/1368/(2001) and S.C. Res. 1373, U.N. 
SCOR, 53d Sess., U.N. Doc. S/1373/(2001). 

32. ISAF was established in Afghanistan in January 2002 on the basis of UN Security Council 
Resolution 1386 of December 20, 2001, passed unanimously. See S. C. Res. 1386, U.N. SCOR, 53d 
Sess., U.N. Doc. S/1386/(2001). Details of the Military Technical Agreement between ISAF and 
the Interim Administration, plus annexes, are available at http://www.operations.mod.uk/ 
isafmta.doc (Nov. 15, 2002). 

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The Laws of War in the War on Terror 



On the technical legal question as to which of the main laws of war trea- 
ties were formally binding on the belligerents in the international armed 
conflict between the US-led coalition and the Taliban regime in Afghanistan in 
October-December 2001, the 1907 Hague Convention IV On Land Warfare 
applied because of its status as customary law, thereby being binding on all states 
whether or not parties to the treaty. In addition, Afghanistan and the main 
members of the international coalition were parties to the following agreements: 

• the 1925 Geneva Protocol on Gas and Bacteriological Warfare; 

• the 1948 Genocide Convention; and, 

• the four 1949 Geneva Conventions. 

Some of the states involved were, or later became, parties to certain addi- 
tional agreements. 33 However, the above-named treaties provide the basic 
treaty framework for considering the application of the law in the armed con- 
flict that commenced in October 2001. In addition, rules of customary inter- 
national law applied. Apart from the provisions of customary law embodied in 
the agreements indicated above, certain provisions of some later agreements, 
including 1977 Geneva Protocol I, are accepted as having that status. 

As regards civil-war aspects of the Afghan war, some but not all of the pro- 
visions of the agreements listed above apply. The 1907 Hague Land War Con- 
vention's Article 2 indicates that the convention and its annexed regulations 
apply only to wars between states. The 1925 Geneva Protocol is not formally 
applicable to civil wars. 34 The 1948 Genocide Convention is considered to ap- 
ply to non-international as well as international armed conflict. In the 1949 
Geneva Conventions, Common Article 3 lists certain minimum provisions for 
humane treatment of those taking no active part in hostilities that are to be 
applied in non-international armed conflict. However, the UN Security 



33. On 1 1 September 2002, Afghanistan acceded to the Ottawa Convention on Anti-personnel 
Mines. See "UN Committed to Ridding World of Landmine Threat., Annan tells Treaty 
Meeting" (Sep. 16, 2002), available at http://www.un.org/apps/news/storyAr. asp.'NewsID 
=4724&Cr=mines&Crl= (Nov. 8, 2002). 

34. Afghanistan is nonetheless bound by the complete prohibition on possession and use of 
biological weapons in the 1972 Biological Weapons Convention, which it ratified on 26 March 
1975. See Convention on the Prohibition of the Development, Production and Stockpiling of 
Bacteriological (Biological) and Toxin Weapons and on their Destruction, Apr. 10, 1972, 26 
U.S.T. 583, 1015 U.N.T.S. 163, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 5, at 
137. Afghanistan is not yet a party to the 1993 Chemical Weapons Convention, which it signed on 
14 January 1993 but has not ratified. See The Convention on the Prohibition of the Development, 
Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, opened tor 
signature January 13, 1993, 32 I.L.M. 800 (1993) [hereinafter Chemical Weapons Convention!, 
available at http://www.opcw.org/html/db/members_frameset.html (Nov. 12, 2002). 



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Adam Roberts 



Council's 1998 resolution had called for application of the Geneva Conven- 
tions more generally. 

Following the events of 11 September 2001, when it was evident that an 
armed conflict between the coalition and the Taliban regime was likely, the 
ICRC, consistent with its general practice, sent messages to certain govern- 
ments reminding them of their obligations under international humanitarian 
law. Unfortunately these messages contained some debatable interpretations 
of the law. They put less reliance on binding treaty law than on provisions of 
1977 Geneva Protocol I, to which neither the United States nor Afghanistan 
was a party, and not all of the provisions of which that were cited can plausibly 
be claimed to be "recognized as binding on any Party to an armed conflict," as 
the messages optimistically asserted. Furthermore, in the first of what would 
be many clashes between humanitarian bodies and national governments in 
this crisis, the ICRC messages to the US and UK governments stated: "The 
use of nuclear weapons is incompatible with the provisions of International 
Humanitarian Law." Although beyond the scope of this survey, this was un- 
doubtedly wrong as a statement of law. Following strong US objections a re- 
vised text was sent to the US government, in which the offending wording was 
changed to the bland formula: "On the subject of nuclear weapons, the ICRC 
confirms its position as expressed in its Commentary on the 1977 Additional 
Protocols." 35 In its message to the Afghan authorities the ICRC indicated that 
the civil war in Afghanistan was governed primarily by the provisions applica- 
ble to non-international armed conflicts. 36 This reflected the ICRC view that 
there were two conflicts in Afghanistan (Coalition v. Taliban; and Taliban v. 
Northern Alliance) to which two different branches of law applied. However, 
this was a surprising stance in view of the strong view about the application of 
the 1949 Geneva Conventions to the situation in Afghanistan that had been 
expressed by the UN Security Council in August 1998. The ICRC subse- 
quently issued some public statements on the application of the laws of war in 
this crisis, reminding all the parties involved — the Taliban, the Northern Alli- 
ance and the US-led coalition — of their obligations to respect the law, and 
stating that the ICRC was continuing a wide range of activities inside Afghan- 
istan. One ICRC statement was explicit that "combatants captured by enemy 
forces in the international armed conflict between the Taliban and the US-led 



35. See Memorandum from ICRC to Governments of the US and the UK (Sep. 28, 2001). This 
memorandum was amended and corrected on October 5 by the ICRC. See Memorandum from 
ICRC to Governments of the US and the UK (Oct. 5, 2001). 

36. See Memorandum from ICRC to Government of Afghanistan (Sep. 2001) (unpublished 
memorandum). 

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The Laws of War in the War on Terror 



coalition must be treated in accordance with the Third Geneva Convention," 
implying that other aspects of the war in Afghanistan did not rise to the level 
of international armed conflict, and that captured personnel in that aspect of 
the war would have a different and perhaps lesser degree of protection. 37 

In November 2002, the ICRC communicated to concerned countries its 
conclusions that from 19 June 2002 onwards, the armed conflict in Afghani- 
stan was no longer an international armed conflict but an internal one, cov- 
ered by Common Article 3 of the 1949 Geneva Conventions rather than by 
the more comprehensive regime of the conventions as a whole. This conclu- 
sion was not persuasive. It appeared to ignore the continuing involvement of 
certain non-Afghan forces, especially al Qaeda, inside Afghanistan, and the 
possible continued involvement in terrorist attacks world-wide of that and 
other bodies operating in Afghanistan; it failed to note the implications in ear- 
lier UN Security Council Resolutions that the conflict was international, and/ 
or that the Geneva Conventions were applicable to it; and its issuance marked 
a departure from previous ICRC practice of adopting a low profile approach to 
the legal characterization of situations with characteristics of both interna- 
tional and internal armed conflict. 38 

Lack of scope for neutrality 

The circumstances of the war against al Qaeda and the Taliban were such that 
little or no room was left for states to adopt a policy of traditional (i.e., impartial) 
neutrality, the stresses on which in wars in the twentieth century were already 
noted above. The lack of scope for neutrality was especially marked because al 
Qaeda operates in numerous states, and all states have been required by the UN 
to take a range of measures against it. The resolution passed by the UN Security 
Council in 1999 on the subject of the Taliban regime in Afghanistan, 



37. Press Release 01/47, ICRC, Afghanistan: ICRC calls on all parties to conflict to respect 
international humanitarian law (Oct. 24, 2001), available at http://www.icrc.org/Web/eng/ 
siteeng0.nsf/iupList74/OE80282COA643B05C1256B6600607EOO (Nov. 12, 2002). 

38. See ICRC, Aide-Memoire to US (Nov. 19, 2002) (Similar messages were addressed to 
Afghanistan and other concerned countries). This communication made no reference to UN 
Security Council Resolutions that might suggest the possibility of a different conclusion about 
the status of the conflict and the applicability of the 1949 Geneva Conventions. With 
questionable legal logic, it asserted that the Third and Fourth Geneva Conventions no longer 
provided a legal basis to continue holding without criminal charge persons who had been 
captured in Afghanistan between 7 October 2001 and 19 June 2002, and that if these persons are 
to be kept in captivity, criminal charges must be brought against them. On previous ICRC 
caution regarding the categorization of conflicts, see Gasser, Internationalized Non-International 
Armed Conflicts, supra note 30, at 157-159. 

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Adam Roberts 



condemning its support of terrorism and its refusal to hand over Osama bin 
Laden, had already required all states to take action against the Taliban and 
against Osama bin Laden and associates. 39 The UN Security Council's resolu- 
tions of 12 and 28 September 2001 required all states to take a wide range of ac- 
tions against terrorism. 40 In his 20 September address to Congress, President 
George W. Bush framed the obligations on states in blunter and more US cen- 
tered terms: 

Every nation, in every region, now has a decision to make. Either you are with 
us, or you are with the terrorists. From this day forward, any nation that 
continues to harbor or support terrorism will be regarded by the United States as 
a hostile regime. 41 

It is evident that the scope for traditional neutrality was implicitly under- 
stood by the Security Council, and explicitly proclaimed by the United States, 
to be very limited in the overall counter-terrorist campaign. Naturally, some 
states, including Iran, proclaimed that they were "neither with Bush nor bin 
Laden"; and not all states were willing to assist the US-led military action di- 
rectly. It would be absurd to claim that all forms of non-belligerence are dead, 
but the particular understanding of neutrality in the written laws of war is fur- 
ther called in question by the character of the "war on terror." 

Bombing 

The development by US and allied forces of techniques of bombing that are more 
accurate than in previous eras has improved the prospects of certain air cam- 
paigns being conducted in a manner that is compatible with the long-established 



39. See S. C. Res. 1267, U.N. SCOR, 54th Sess., U.N. Doc. S/1267/(1999). See also S. C. Res. 
1076, U.N. SCOR, 51st Sess., U.N. Doc. S/1076/(1996); and S. C. Res. 1193, U.N. SCOR, 53d 
Sess., U.N. Doc. S/JL 193/(1998), which, in addressing the ongoing conflict in Afghanistan, refer 
to the problem of terrorism and call upon states to take specific actions, most notably to end the 
supply of arms and ammunition to all parties to the conflict. 

40. See S. C. Res. 1368, U.N. SCOR, 53d Sess., U.N. Doc. S/1368/(2001) and S. C. Res. 1373, 
U.N. SCOR, 53d Sess., U.N. Doc. S/1373/(2001). 

4 1 . President George W. Bush, Address to a Joint Session of Congress and the American People, 
37 WEEKLY COMP. PRES. DOC 1347-1351 (Sep. 20, 2001), available at http:// 
frwebgate. access, gpo.gov/cgi-bin/getdoc. cgi?dbname=2001_presidential_ 
documents&docid = pdl7se01_txt-15 (Nov. 12, 2002). The peroration added that God is not 
neutral between freedom and fear, justice and cruelty. 

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The Laws of War in the War on Terror 



laws-of-war principle of discrimination; 42 and with the more specific rules about 
targeting — rules which themselves have changed, not least in 1977 Geneva Pro- 
tocol I. This is a momentous development in the history of war, yet its effects, es- 
pecially as regards operations against terrorists, should not be exaggerated, as it 
cannot guarantee either success or no deaths of innocents. Precision-guided 
weapons are generally better at hitting fixed objects, such as buildings, than mov- 
ing objects that can be concealed, such as people and tanks. Civilian deaths will 
still occur, whether because certain dual-use targets are attacked, because of the 
close proximity o( military targets to civilians, or because of faulty intelligence 
and human or mechanical errors. In addition, malevolence and callousness can 
still lead to attacks on the wrong places or people. A further problem with the 
new type of US bombing campaign is that, in the eyes of third parties, it can easily 
look as if the United States puts a lower value on the lives of Iraqis or Serbs or Af- 
ghans than it does on its own almost-invulnerable aircrews: a perception which 
can feed those hostile views of the United States that help to provide a back- 
ground against which terrorism can flourish. 

Announcing the start of military strikes against Afghanistan on 7 October 
2001, President Bush stated: "[t]heir carefully targeted actions are designed to 
disrupt the use of Afghanistan as a terrorist base of operations and to attack the 
military capability of the Taliban regime." 43 The principle that the bombing of 
Afghanistan should be discriminate was frequently repeated. On 2 1 October, 
General Richard B. Myers, the Chairman of the Joint Chiefs of Staff, said: 

[t]he last thing we want are any civilian casualties. So we plan every military 
target with great care. We try to match the weapon to the target and the goal is, 
one, to destroy the target, and two, is to prevent any what we call "collateral 
damage" or damage to civilian structures or civilian population. 44 

From the start of the campaign in Afghanistan, the United States was par- 
ticularly sensitive about accusations that it acted indiscriminately. In late 



42. The principle of discrimination, which is about the selection of weaponry, methods and 
targets, includes the idea that non-combatants and those hors de combat should not be 
deliberately targeted. 

43. President George W. Bush, Address to the Nation, 37 WEEKLY COMP. PRES. DOC 1432-1433 
(Oct. 7, 2001) available at http://frwebgate. access. gpo.gov/cgi-in/getdoc.cgi?dbname=2001_ 
presidential_documents&docid = pd 15oc01_txt-9.pdf (Nov. 12, 2002). 

44. Interview by George Stephanopoulos of Chairman of the joint Chiefs of Staff Richard Myers (ABC 
This Week television broadcast, Oct. 21, 2001), available at http://www.defenselink.mil/news/ 
Oct2001Ztl0222001_tl021jcs.html (Nov. 12, 2002). 

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Adam Roberts 



October Rumsfeld accused the Taliban and al Qaeda leaders of both causing 
and faking civilian damage: "they are using mosques for command and con- 
trol, for ammunition storage, and they're not taking journalists in to show 
that. What they do is when there's a bomb. . . they grab some children and 
some women and pretend that the bomb hit the women and the children." 45 
What truth there was in all this remains difficult to determine. 

About 60% of the 22,000 US bombs and missiles dropped in Afghanistan 
were precision-guided: the highest percentage in any major bombing cam- 
paign. If, as reported, only one in four bombs and missiles dropped by the 
United States on Afghanistan missed its target or malfunctioned in some way, 
the 75% success rate was higher than that achieved in the 1991 Gulf War and 
the 1999 Kosovo War. 46 This was a remarkable achievement. 

The bombing aroused much international concern. There were reports of 
many attacks causing significant civilian casualties and damage. Accuracy in 
hitting the intended target area did not itself necessarily eliminate such prob- 
lems. An ICRC warehouse in Kabul was hit twice, on 16 and 26 October, 
leading to serious questions about failure to ensure that target lists were prop- 
erly prepared and, after the first well-publicized disaster, amended. 47 The epi- 
sode was subsequently investigated by the Pentagon. 48 Some later incidents 
were even more serious. For example, according to press reports over a hun- 
dred villagers may have died in bombings on 1 December 2001 of Kama Ado 
and neighboring villages in eastern Afghanistan, not far from the cave 



45. Secretary of Defense Donald Rumsfeld, Remarks outside ABC TV Studio (Oct. 28, 2001), 
available at http://www.defenselink.mil/news/Oct2001/tl0292001_tl028sd3.html Oct. 28, 2001 
(Nov. 12, 2002). 

46. See Eric Schmitt, A Nation Challenged: The Bombing; Improved US Accuracy Claimed in 
Afghan Air War, N.Y. TIMES, Apr. 9, 2002, at A- 16 (reporting on an uncited, detailed Pentagon 
assessment). 

47. See, e.g., Vernon Loeb & Rajiv Chandrasekaran, Red Cross Compound Mistakenly bombed; 
Pentagon Cites "Human Error in the Targeting Process" After Second Mishap, WASH. POST, Oct. 28, 
2001,atA16. 

48. See Vernon Loeb, "Friendly Fire" Probed in Death; Air strike May Have Hit Afghan Convoy, 
WASH. POST, Mar. 30, 2002, at A14. See also Breaking News (CNN television broadcast, Mar. 
19, 2002) in which CNN reported that a preliminary Pentagon investigation into the bombings 
of the ICRC warehouse indicated that numerous clerical errors had led to the mistaken 
bombings, that the US commander in charge of the air campaign, Lt. Gen. Charles Wald, had 
"exceeded his authority in ordering the strike" of 26 October, and that a key issue was that, while 
the target had been placed on a "No Strike List" at the Pentagon, it was inadvertently left off a 
separate "No Strike List" maintained by the US Central Command in Tampa, Florida. 

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The Laws of War in the War on Terror 



complex at Tora Bora. 49 On 1 July 2002, during an operation to hunt Taliban 
leaders, US aircraft attacked four villages around the hamlet of Kakrak. Ac- 
cording to reports, this episode followed the firing of guns at two wedding par- 
ties, and resulted in killing over 50 people and injuring over 100. This led to 
another Pentagon investigation. 50 In several cases, bombings led to casualties 
among coalition forces: while this is not a laws-of-war issue as such, and is not 
uncommon in armed conflicts, it further confirms the fact that precision 
bombing can produce terrible disasters if the intended target is incorrectly 
identified. 51 

It is difficult to arrive at a reliable estimate of the overall number of civilian 
deaths caused directly by the bombing in Afghanistan. As in the 1991 Gulf 
and 1999 Kosovo wars, the Pentagon has been reluctant to issue figures. 
Whereas Iraq in 1991 and Yugoslavia in 1999 had reasonably effective systems 
of official record-keeping in place, Afghanistan in 2001 did not. As a result of 
these factors, estimates of Afghan civilian deaths have been unofficial. 

Controversy was caused by an estimate of 3,767 as of mid-December 2001 
made by Professor Marc Herold of the University of New Hampshire. 52 There 
were substantial grounds for doubt about his methodology; and his figure, 
almost certainly a serious over-estimate, was later modified. 53 In response to 



49. See, e.g., Richard Lloyd Parry & Justin Huggler, Village Air Raid: Error or an act of terror?, THE 
INDEPENDENT, Dec. 2, 2001, available at http://www.independent.co.uk/story.jsp?story= 107928, 
(Nov. 13, 2002). 

50. Dexter Filkins, Flaws in U.S. Air War Left Hundreds of Civilians Dead, N.Y. TIMES, Jul. 21 
2002, at Sec. 1, p. 1, col. 5, available at http://query.nytimes.com/search/abstract?res = 
F40813F83D5C0C728EDDAE0894DA404482 (Nov. 13, 2002). 

51. On 13 September 2002 two US pilots who mistakenly bombed and killed Canadian troops in 
Afghanistan on 18 April 2002 were charged - the first criminal charges against US pilots in 
connection with the events in Afghanistan. Katy Kay & Richard Cleroux, US pilots charged over 
"friendly fire" deaths, THE TIMES, Sep. 14, 2002, at 16. 

52. Marc W. Herold, A Dossier on Civilian Victims of US Aerial Bombing of Afghanistan: A 
Comprehensive Accounting (Dec. 19, 2001), at http://pubpages.unh.edu/~mwherold/ 
AfghanDailyCount.xls (Nov. 13, 2002). 

53. Criticisms of Herold's methodology included the following: (I) The calculations leading to 
the total figures were not transparent. The author has informed me that the December figure 
was not intended to suggest total accuracy. (2) Unavoidably, in view of time constraints, the 
study relied heavily on media reports, some of them extremely dubious. (3) Some incidents were 
counted twice in the December total, e.g., due to different place names being used in reports. (4) 
In some instances al Qaeda deaths, and possibly Taliban deaths, may have been reported as 
civilian deaths. On the other hand it is probable that some civilian casualties of bombing 
went unreported and were thus omitted from the report. For a strong critique, see Jeffrey C. 
Isaac, Civilian Casualties in Afghanistan: The Limits of Herold's "Comprehensive Accounting" 
Qan. 10, 2002), available at http://www.indiana.edu/~iupolsci/docs/doc.htm, (Nov. 13, 2002). In 
August 2002 Herold stated that "the figure for the October to December period should have been 

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Adam Roberts 



Herold's December estimate, Rumsfeld stated in an interview on 8 January 

2002: 

there probably has never in the history of the world been a conflict that has been 
done as carefully, and with such measure, and care, and with such minimal 
collateral damage to buildings and infrastructure, and with such small numbers 
of unintended civilian casualties. 54 

In 2002 a number of reports based on on-site examinations gave a more au- 
thoritative, but incomplete, picture. In July the New York Times published the 
results of a review of eleven of the "principal places where Afghans and hu- 
man rights groups claim that civilians have been killed." It found that at these 
sites "airstrikes killed as many as 400 civilians." 55 A principal cause was poor 
intelligence. In September a San Francisco-based human rights group, Global 
Exchange, estimated on the basis of a survey conducted in Afghanistan that 
"at least 824 Afghan civilians were killed between October 7 and January 
2002 by the US-led bombing campaign." 56 A Human Rights Watch report on 
civilian casualties in Afghanistan is in preparation. 

While even an approximate figure for civilian casualties of the bombing in 
Afghanistan may never be known, it appears certain that the number of civil- 
ian deaths in the period October-December 2001 was far more than the 500 
in Yugoslavia during the war over Kosovo in 1999, and probable that it was 
over one thousand. The question then is how this was possible given that 
twice the percentage of precision-guided munitions was used and the overall 
number of weapons dropped was much less. Of the many possible factors mer- 
iting investigation, two were the imperfections of the intelligence/targeting 



between 2,650 and 2,970 civilian deaths," and that "between 3,125 and 3,620 Afghan civilians 
were killed between October 7 and July 31." Marc Herold, Counting the Dead, THE GUARDIAN, 
Aug. 8, 2002, at 17. 

54. Interview of Secretary of Defense Donald Rumsfeld (CSPAN television broadcast, Jan. 8, 2002), 
available at http://www.defenselink.mil/news/Ian2002/t01082002_t0108sd.html (Nov. 13, 2002). 

55. Filkins, supra note 50. This included reference to the Masuda Sultan survey mentioned 
immediately infra. 

56. See Masuda Sultan et al., AFGHAN PORTRAITS OF GRIEF: THE CIVILIAN/INNOCENT 

Victims of US bombing in Afghanistan (2002), at 3, available at http:// 

www.globalexchange.org/septemberll/apogreport.pdf (Nov. 13, 2002). This short (16-page) 
report was based on a survey conducted by a 5-person team between March and June 2002. It 
emphasizes that "it was impossible for our survey to be exhaustive and comprehensive," and that 
the figure of 824 "represents only a portion of civilian casualties." Finally, the report called on the 
US Government to establish an Afghan Victims Fund. Id. at 3, 6. 

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process, and the uncertain identity of the combatants — both of which are ge- 
neric problems in counter-terrorist operations. 

In legal terms, the incidence of civilian deaths per se does not always con- 
stitute a violation, absent other factors regarding the circumstances of such 
deaths. Wilful killings and intentional attacks against the civilian population 
as such or against individual civilians not taking part in hostilities are clearly 
illegal. In addition, the 1977 Geneva Protocol I, Article 57, spells out a posi- 
tive obligation on commanders to exercise care to spare civilians and civilian 
objects. 57 

There are strong reasons to believe US statements that civilian deaths in 
Afghanistan due to the US bombing were unintended. Some of the deaths ap- 
pear to have resulted from errors of various kinds, and some may have been un- 
avoidable "collateral damage." One cause of civilian casualties in 
October-December 2001 may have been the fact that, in a legacy from the pe- 
riod of Soviet involvement in Afghanistan, many Taliban military assets were 
located in towns, where they were less vulnerable to raids from rural-based 
guerrillas, but where they were of course closer to civilians who risked getting 
hit in bombing attacks. While much of the bombing has been discriminate, 
questions have been raised about whether all appropriate measures have been 
taken to reduce civilian casualties and damage. Even if much of the civilian 
death and destruction is not a violation of the law, the resulting adverse public 
perception risks harming the coalition cause. 

The air campaign in Afghanistan confirmed the lesson of earlier campaigns, 
especially the war over Kosovo in 1999, that there is tension between current 
US and NATO strategic doctrine and certain international legal provisions 
on targeting. The 1977 Geneva Protocol I, Article 52(2), opens with the 
words: u [a]ttacks shall be limited strictly to military objectives." It goes on to 
indicate the types of objects that might constitute military objectives. This 
provision presents some difficulties, and has been the subject of interpretative 
declarations by a number of states. 58 The United States, although not bound 
by the Protocol, has indicated that it accepts this article. 59 However, even be- 
fore the United States involvement in Afghanistan, a number oi US legal ex- 
perts had expressed serious concerns about the provision. For example, Major 



57. GP I, supra note 9, at art. 57. 

58. GP I, supra note 9, at art. 52(2) reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 
5 at 450. Declarations made by states that have a bearing on their understanding ot this article 
include those by Australia, Belgium, Canada, Germany, Ireland, Italy, Netherlands, Spain, and 
the United Kingdom. Id. at 500-51 1. 

59. OpLaw Handbook, supra note 15, at 11. 

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Jeanne Meyer, co-editor of the US Army's Operational Law Handbook, stated 
that this article "tries to constrict the use of air power to the specific tactical 
military effort at hand" and "ignores the reality that a nation's war effort is 
composed of more than just military components." While not suggesting total 
rejection of the provision, she urged the United States to "resist the pressure 
to accept restrictive interpretations of Article 52(2)." 60 In general, the United 
States is anxious to retain some legal justification for attacks on certain targets 
that may not themselves be purely military, but which may, for example, con- 
tribute to the military effort or constitute key parts of a regime's infrastructure. 

Did the concern over civilian casualties undermine the US bombing effort 
in Afghanistan in its most intense phase in October-December 2001? Its suc- 
cess against the Taliban would suggest not, but there were indications that the 
concern had serious effects. It was reported that the United States had delib- 
erately slowed the pace of the campaign, and increased the risk to the people 
executing it, because of legal restraints and moral values. It was also stated 
that war planners frequently chose not to hit particular targets, even if they 
were militarily important, and pilots allegedly complained of lost opportuni- 
ties. Yet the planners could not reveal their reasoning for ruling out certain 
targets, as it would give the adversary "a recipe book for not being bombed." 
The issue of civilian casualties also became ammunition for inter-service bat- 
tles, particularly for Army arguments in favor of "boots on the ground." 61 

In addition to the direct casualties, there were also, inevitably, indirect ca- 
sualties of the bombing. These appear to have come into two categories. First, 
the bombing caused thousands of Afghan civilians to flee their homes. 62 Some 
died in the harsh conditions of flight and displacement. Second, the use of 
cluster bombs led to immediate and longer-term civilian casualties. Cluster 
bombs are air-dropped canisters containing numerous separate bomblets that 
disperse over a given area. The bomblets, which are meant to explode on im- 
pact or to self-deactivate after a specific period, can cause particularly severe 
problems if they fail to do so. There have been objections to their use, princi- 
pally on the ground that they have a tendency, like anti-personnel land- 
mines,, to kill people long after the conflict is over. Reports from Kosovo and 



60. Jeanne M. Meyer, Tearing Down the Facade: A Critical Look at the Current Law on Targeting 
the Will of the Enemy and Air Force Doctrine, 51 A.F. L. REV. 166, 181 (2001). 

61. William M. Arkin, Fear of Civilian Deaths May Have Undermined Effort, L.A. TIMES, Jan. 16, 
2002, at A12, available at http://www.latimes.com/news/nationworld/world/la-01 1602milmemo.story 
(Nov. 13, 2002). 

62. On those who fled from the intense fighting and bombing in Afghanistan in 
October-November 2001, see notes 74-75 and accompanying text infra. 

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elsewhere have confirmed the general seriousness of the problem. 63 The UN's 
Mine Action Programme for Afghanistan (MAPA) estimates that 1,152 clus- 
ter bombs were dropped by the United States, leaving up to 14,000 unex- 
ploded bomblets as a result. 64 According to the US State Department in July 
2002, "the clearance of cluster munitions is being achieved at a rate faster 
than anticipated. All known cluster munition strike sites have been surveyed 
where access is possible and are in the process of being cleared." 65 As the law 
stands, there has been no agreement to outlaw cluster bombs, and while they 
are not illegal per se, their use does raise questions regarding their compatibil- 
ity with fundamental principles of the laws of war. They are certain to be the 
subject of further pressures to limit or stop their use, or to ensure more effec- 
tive safeguards against later accidental detonations. 

A further issue concerns the use of bombing in the hunt for Taliban and al 
Qaeda personnel following the fall of the Taliban regime in early December 
2001. In the preceding phase, bombing had been used primarily in support of 
Northern Alliance frontal operations aimed at capturing the main Taliban- 
held cities. Once this was achieved, a good deal of the bombing was directed 
against remnant al Qaeda mountain redoubts. It was also directed against 
Taliban and al Qaeda forces and their leaders, but many incidents were 
reported in the press in which those killed were apparently neither. The 
reports drew attention to the difficulty of distinguishing between civilians and 
these forces. They also raised the question of broader significance in counter- 
terrorist wars: to what extent can bombing remain an appropriate form of 
enforcement once a state is, to a greater or lesser degree, under the control of 
a new government that is opposed to the terrorists? At that point, can the 
focus be transferred to other forms of police and military action that may be 
less likely than bombing to cause civilian casualties? Here, the legal argument 
for greater reliance on the discriminate use of ground force merges into a 
practical argument that only such means can prevent the escape of the forces 
being targeted. United States civilian and military officials are reported to 
have concluded that Osama bin Laden had been present at the battle for Tora 



63. According to the ICRC, in the year after the NATO bombing campaign over Kosovo ended 
in June 1999, more than 400 people were killed or injured by unexploded bomblets. See Ragnhild 
Imerslund, In Action, When Toys Kill, Another Challenge in Kosovo, ICRC MAGAZINE, 2000 
available at http://www.redcross.int/EN/mag/magazine2000_2/Kosovo.html (Nov. 13, 2002). 

64. Richard Norton-Taylor, Afghanistan Littered with 14,000 Unexploded Bomblets Says UN, THE 
GUARDIAN, Mar. 23, 2002, at 18. 

65. US Department of State, Fact Sheet: U.S. Humanitarian Demining Assistance to Afghanistan 
Qui. 30, 2002), available at http://www.state.gOv/t/pm/rls/fs/2002/12274.htm (Nov. 13, 2002). 



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Adam Roberts 



Bora in December 2001, and that failure to commit ground troops against him 
in this mountain battle was the gravest error of the war. 66 Whether or not this 
conclusion is correct, it does appear that the reliance of the United States on 
bombing and its reluctance to put its own troops in harm's way may have 
enabled Taliban and al Qaeda leaders to escape. 

Gas 

One long-standing prohibition in warfare is the rule against use of gas and bac- 
teriological methods of warfare. The United States repeatedly expressed con- 
cern that al Qaeda might be preparing to use such methods in terrorist attacks. 
In addition, there were a few situations in Afghanistan in which there could 
have been pressures for the United States to use gas. When, in 1975, the United 
States had ratified the 1925 Geneva Protocol, it had indicated that it consid- 
ered that certain uses of riot-control agents in armed conflict did not violate the 
protocol. 67 In early December 2001, Rumsfeld was asked at a press conference if 
the United States might use gas in the hunt for Taliban and al Qaeda personnel 
in mountain caves in Afghanistan. Rumsfeld's response contained no denial: 

Well, I noticed that in Mazar, the way they finally got the dead-enders to come 
out was by flooding the tunnel. And finally they came up and surrendered, the 
last hard core al Qaeda elements. And I guess one will do whatever it is 
necessary to do. If people will not surrender, then they've made their choice. 68 

Humanitarian relief and refugee issues 

Humanitarian relief and refugee issues impacted upon all phases of operations 
in Afghanistan. The need for humanitarian relief is particularly likely to arise in 
counter-terrorist operations against a weak or failed state, because such states 
breed conditions in which, simultaneously, terrorist movements can operate 
and large-scale human misery and refugee flows can occur. The fact of a war be- 
ing against terrorists, while it may affect the mode of delivery (since land con- 
voys may be vulnerable to seizure) does not affect the law applicable to the 
provision of relief. The basic obligations of the various parties to an armed 



66. Barton Gellman and Thomas E. Ricks, U.S. Concludes Bin Laden Escaped at Tora Bora Fight, 
WASH. POST, Apr. 17, 2002, at Al. 

67. OPLAW HANDBOOK, supra note 15, at 15-16. 

68. Interview by Tim Russert of Secretary of Defense Donald Rumsfeld (NBC Meet the Press 
television broadcast, Dec. 2, 2001), available at http://www.defenselink.mil/news/Dec2001/ 
tl2022001_tl202mtp.html (Nov. 13, 2002). 



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conflict to assist in and protect humanitarian relief operations are embodied in 
1949 Geneva Convention IV, on civilians. 69 

The US government put heavy emphasis on air-dropping of supplies. An- 
nouncing the start of Operation ENDURING FREEDOM, President Bush stated: 
"[a]s we strike military targets, we will also drop food, medicine and supplies 
to the starving and suffering men and women and children of Afghanistan." 70 
United States forces air-dropped considerable quantities of aid at the same 
time as the major bombing operations took place. In the first twenty-five days 
of the campaign more than one million "humanitarian daily rations" were de- 
livered. 71 Some human rights and humanitarian agencies expressed specific 
worries about the air-dropping of food. They were doubtful of the value of air- 
dropping supplies compared to the previous deliveries overland, and were 
concerned that the yellow wrapping of the food packages could lead Afghans 
to mistake yellow cluster bomblets for them. More generally, they were resis- 
tant to the use of military assets for humanitarian purposes, be it the dropping 
of supplies from the air, or shipping goods in military convoys to distribution 
points. They tended to be critical of the bombing campaign generally, and 
concerned also about the aggravated risks and obstacles to their relief and de- 
velopment work that resulted from the military operations, especially in view 
of the onset of winter. The unrealistic call for a bombing pause issued by the 
UN High Commissioner for Refugees (UNHCR) in October was indicative of 
the tension between some agencies and the US government. 72 In any event, 
the collapse of the Taliban regime in early December 2001 and its replace- 
ment by the interim administration facilitated, but by no means guaranteed, 



69. See GC IV, at arts. 13-26 reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 
430-436. See also GP I arts. 69-71, supra note 9, reprinted in DOCUMENTS ON THE LAWS OF 
WAR, supra note 5 at 324-5; GP II art. 18, supra note 1 7, reprinted in DOCUMENTS ON THE LAWS 
OF WAR, supra note 5, at 491. The issue of humanitarian relief is only touched on briefly in this 
survey as, while of critical importance in Afghanistan, only to a limited extent does it raise 
problems specific to counter-terrorist military operations. 

70. President George W. Bush, Address to the Nation, supra note 43. 

71. Figures for humanitarian daily rations dropped in Afghanistan were given in many Pentagon 
news briefings. See, e.g., Gerry Gilmore, Air Campaign Continues Against Taliban, Terrorist Targets 
(American Forces News Service, Oct. 8, 2001), available at http://www.defenseliiik.mil/news/ 
Oct2001/nl0082001_200110085.html (Nov. 14, 2002); and Kathleen T. Rhem, Fighters, Bombers, 
Not Only Planes Flying in Afghanistan (American Forces News Service, Oct. 31, 2001), available at 
http://www.defenselink.mil/news/Oct2001/nl0312001_200110314.html (Nov. 14, 2002). 

72. Interview with UN High Commissioner for Refugees (Irish radio broadcast, Oct. 12, 2001); 
Interview with UN High Commissioner for Refugees (BBC-1 Breakfast with Frost television 
broadcast, Oct. 14, 2001). 



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Adam Roberts 



the secure delivery of aid by land routes. A wide range of countries and organi- 
zations took part in the provision of aid. 73 

The refugee problem was of massive proportions and could itself have con- 
stituted a possible ground for action over Afghanistan. As of the beginning of 
September 2001 there were about 3.5 million Afghan refugees in neighboring 
countries, mainly Pakistan and Iran. The intense hostilities and bombing in 
October-December led to an additional 200,000 or more fleeing from Af- 
ghanistan, as well as in an increase in the number of internally displaced per- 
sons (IDPs) by perhaps half a million. 74 Many of the internally displaced in, 
and refugees from, Afghanistan testified eloquently to the disastrous effects of 
the bombing on civilians and their property. 75 

The subsequent return of refugees to Afghanistan was on a colossal scale. It 
started in January 2002, when 3,000 per day began returning to Afghanistan. 76 
Not all who returned in 2002 chose to stay. By December some 300,000 were 
reported to have returned to Pakistan, disappointed by insecurity and eco- 
nomic hardship. 77 However, a total of 1.8 million Afghans had returned, 1.54 
million of whom had come from Pakistan and resettled in Afghanistan in 2002. 
Playing a major role, the UNHCR reported in September that this was the 



73. On the delivery of humanitarian aid after the collapse of the Taliban regime, see, e.g., 
Secretary of Defense Donald Rumsfeld and General Tommy Franks, DOD News Briefing (Aug. 
15, 2002), available at http://www.defenselink.mil/news/Aug2002/t08152002_t0815sd.html 
(Nov. 14, 2002); and, Jim Garamone, Humanitarian Success Story In Afghanistan (American 
Forces News Service, Jan. 18, 2002), available at http://www.defenselink.mil/news/Jan2002/ 
n01182002_200201185.htm (Nov. 14, 2002). 

74. Figures current to Dec. 3 1, 2001 in UN HIGH COMMISSIONER FOR REFUGEES 2001 ED. OF 
REFUGEES BY NUMBERS, available at http://www.unhcr.ch/cgi-bin/texis/vtx/home/ (Nov. 14, 
2002). 

75. See, e.g., THE DlSPOSSESED (documentary film by Taghi Amirani, Nov.-Dec. 2001). This 
television documentary is about the Makaki Camp in Nimruz Province near the Afghan-Iranian 
border. The camp was initially under Taliban and then Northern Alliance control. 

76. See UNHCR Spokesman, UNHCR Press Briefing at Palais des Nations, Geneva G an - 25, 
2002), available at http://wwww.reliefweb.int/w/rwb.nsf/ (Nov. 14, 2002); and UN Office for the 
Coordination of Humanitarian Affairs Report No. 37 G an - 29, 2002), available at http:// 
wwww.reliefweb.int/w/rwb.nsf/ (Nov. 14, 2002). At that time there were also movements of 
ethnic Pashtun from Afghanistan to Pakistan. 

77. Deutsche Presse Agentur Report of December 12, 2002, available at http:// 
wwww.reliefweb.int/w/rwb.nsf/ (Jan. 6, 2003). 



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largest refugee repatriation in 30 years — i.e., since the creation of Bangla- 
desh. 78 Some non-governmental charities and NGOs were critical of the pres- 
sure to encourage refugees to return. 79 The principal improvements that cre- 
ated the conditions for this vast movement of people back to their country 
resulted from the conclusion of major hostilities, the end of the Taliban regime 
in December 2001, and the ending of a years-long drought. Observance of hu- 
manitarian norms during the war in Afghanistan may have played some part, es- 
pecially insofar as it helped to limit the amount of destruction caused by the 
bombing. 

Prisoners 

From late November 2001, the status and treatment of prisoners taken in the 
"war on terror" (most but not all of whom had been captured in Afghanistan) 
became the subject of major international controversies. These centered on 
three inter-related issues: first, the extraordinary events relating to prisoners in 
Afghanistan in late 2001; second, the broader debate about the legal status and 
treatment of prisoners taken in the "war on terror" generally, including those 
held at Guantanamo; and third, the question of possible judicial proceedings 
against prisoners for pre-capture offenses. This part looks at these three issues 
in turn. (It does not look at the court cases in several countries in which related 
questions have been raised.) 

Prison disasters in Afghanistan 

Initially, international attention focused on one event: the killing o( a large 
number of Taliban and al Qaeda prisoners who had been taken at Kunduz at 
around the time of its fall on 23-24 November 2001, and who were then in- 
volved in the revolt at Qala-e Jhangi Fort near Mazar -e-Sharif in the period 25 
November-1 December. There had been very little sign of serious preparation 
for handling prisoners. The precise chain of events leading to the revolt has yet 
to be established, but the causes appear to include the following heady mix: 
Some of the prisoners were fanatical soldiers, for whom the whole concept of 
surrender would be anathema; the arrangements for receiving, holding and 



78. Ron Redmond, UNHCR Press Briefing at Palais des Nations, Geneva (Sep. 3, 2002), 
available at http://www.unhcr.ch/cgi-bin/texis/vtx/home/ (Nov. 14, 2002); Nigel Fisher, UN 
Assistance Mission in Afghanistan Press Briefing (Dec. 12, 2002) available at http:// 
www.reliefweb.int/w/rwb.nsf. 

79. See, e.g., Jonathan Steele, Going Home to Hunger and Death: Aid Agencies Fear for Families 
Persuaded to Leave Refugee Camps, THE GUARDIAN, Apr. 4, 2002, at 17. 

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Adam Roberts 



processing them were ad hoc and then casual; there was a failure to communi- 
cate to them that they would be treated in accord with international standards; 
a number of them had not surrendered all their weapons; they were held in a 
place where there was a large store of weapons, to which they gained access; 
some of them, according to reports, feared that they were about to be killed, so 
had nothing to lose by revolt; and some feared interrogation by those whom 
they understood to be CIA operatives, which changed the situation from an 
Afghan/ Afghan equation. 80 

The revolt at Qala-e Jhangi Fort was a desperate struggle in which not only 
many prisoners, but also a number of Northern Alliance troops in charge of 
the fort, died. United States bombing, and sharp-shooting by UK special 
forces, played a part in the defeat of the uprising. Public discussion in the 
United Kingdom and elsewhere focused on the events at the fort, including 
the question of whether the force used to quell the rebellion was excessive. If 
the situation was as desperate and threatening as reports indicated, the use of 
force was hardly surprising. Public discussion could more usefully focus on 
how prisoners should be received and dealt with. The real causes of the disas- 
ter were in the period before the prisoners arrived at the fort. There were fail- 
ures to think the issue through, to make proper preparations, and especially to 
disarm all prisoners. The mix of Afghan and outside involvement in the han- 
dling of the prisoners may have further contributed to the outbreak of the 
revolt. 

Other reports about treatment of Taliban and al Qaeda prisoners, especially 
at Sebarghan in northern Afghanistan, confirm that the overall approach of 
the Northern Alliance was defective. By late December there had been numer- 
ous reports of prisoners dying in shipping containers and Afghan captors beat- 
ing their detainees. The ICRC was reported as expressing concern that it had 
been able to register only 4,000 of the 7,000 prisoners that the United States 
said it and its Afghan allies had in custody. 81 Long after most of the prisoners 



80. Much valuable evidence about the outbreak and course of the prison revolt at Qala-e Jhangi 
Fort has emerged, including particularly video records. See, e.g., Carlotta Gall, Traces of Terror; 
Prisoners; Video Vividly Captures Prelude to Fortress Revolt, N.Y. TIMES (Jul. 16, 2002), at A15. 

81. See, e.g., Carlotta Gall, Long Journey to Prison Ends in Taliban Deaths: Many Suffocated in 
Sealed Ship Containers, INT'L HERALD TRIBUNE, Dec. 11, 2001, at 4; Babak Dehghanpisheh et 
al., The Death Camp of Afghanistan, NEWSWEEK, Aug. 26, 2002, at 16-25; and Rory Carroll, 
Afghan jailers beat confessions from men, THE GUARDIAN, Dec. 28, 2001, at 13. 

209 



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had been taken, conditions remained shocking, in violation of international 
standards. 82 International inquiries into these events are ongoing. 

Whether the United States and its coalition partners had any influence 
over Northern Alliance actions in such basic matters as protection of prison- 
ers — and, if so, whether they used it — is open to question. Some US state- 
ments indicated that there could have been such influence. In his Pentagon 
press briefing on 30 November, Rumsfeld indicated — in general terms, not in 
connection with the prisoner question — that the United States does have in- 
fluence with the forces with which it operated in Afghanistan: 

[w]e have a relationship with all of those elements on the ground. We have 
provided them food. We've provided them ammunition. We've provided air 
support. We've provided winter clothing. We've worked with them closely. We 
have troops embedded in their forces and have been assisting with overhead 
targeting and resupply of ammunition. It's a relationship. 83 

Legal status and treatment of prisoners generally 

Within the Pentagon it was recognized as early as September 2001 that in the 
forthcoming military action questions relating to the legal status and treatment 
of prisoners could be difficult. An unpublished document circulated by the US 
Air Force's International and Operations Law Division contained the main 
outlines of an approach that would continue to be influential: terrorists were to 
be treated as "unlawful combatants;" it was "very unlikely that a captured ter- 
rorist will be legally entitled to POW status under the Geneva Conventions;" 
however, there was a "practical US interest in application o( Law o{ Armed 
Conflict principles in the context o( reciprocity of treatment of captured per- 
sonnel." As regards treatment upon capture, 

if a terrorist is captured, Department of Defense members must at the very least 
comply with the principles and spirit of the Law of Armed Conflict ... A 



82. Dexter Filkins, 3,000 Forgotten Taliban, Dirty and Dying, INT'L HERALD TRIBUNE, Mar. 15, 
2002, at 1. 

83. Secretary of Defense Donald Rumsfeld and General Peter Pace, DOD News Briefing (Nov. 
30, 2001), available at http://www.defenselink.mil/news/Nov2001/tll302001_tll30sd.html 
(Nov. 14, 2002). Compare an earlier statement of British Prime Minister Tony Blair, who when 
asked on 13 November, also in general terms, "what sanctions do we have over the Northern 
Alliance?" replied "None." Prime Minister Tony Blair, Press Briefing on Afghanistan (Nov. 13, 
2001), available at http://www.pm.gov.uk/output/page3852.asp (Nov. 14, 2002). 

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Adam Roberts 



suspected terrorist captured by US military personnel will be given the 
protections of but not the status of a POW. 84 

Consideration of the legal status and treatment of prisoners taken by the 
US-led coalition must begin with the distinction that has been drawn between 
the two main groups: Taliban and al Qaeda. As indicated below, one key fac- 
tor in determining the lawfulness of a combatant and therefore the entitle- 
ment to participate directly in hostilities, is the affiliation of the combatant to 
a party to the conflict. The Taliban had a material connection to a state (Af- 
ghanistan), whereas al Qaeda did not. A possible complicating factor is that in 
some cases non- Afghan units appear to have fought alongside Taliban forces 
and may have been under their control, which would strengthen a claim to 
POW status. In certain cases it may be difficult to determine whether an indi- 
vidual should be considered Taliban or al Qaeda, or belongs in some other 
possible category. At Guantanamo there has evidently been a tendency to 
classify only Afghan prisoners as Taliban. All non- Afghans (some of whom 
were arrested outside Afghanistan) appear to have been classified as al Qaeda. 
However, it may be doubted whether all foreigners drawn to support an Is- 
lamic cause in Afghanistan, Pakistan or elsewhere, and who ended up in 
Guantanamo, were necessarily members of al Qaeda. 

The basic rules for determining who is a lawful combatant entitled to POW 
status are in Article 4 of 1949 Geneva Convention III (the POW Conven- 
tion). This states, in part: 

A. Prisoners of war, in the sense of the present Convention, are persons 
belonging to one o{ the following categories, who have fallen into the power of 
the enemy: 

(1) Members of the armed forces of a Party to the conflict as well as members 
of militias and volunteer corps forming part of such armed forces. 

(2) Members of other militias and members of other volunteer corps, 
including those of organized resistance movements, belonging to a Party to 
the conflict and operating in or outside their own territory, even if this 
territory is occupied, provided that such militias or volunteer corps, 
including such organized resistance movements, fulfil the following 
conditions: 



84. Memorandum from the International and Operations Law Division of Headquarters, US Air 
Force on the Summary of Legal Issues Relevant to Terrorism Incidents of 1 1 Sep 01, at 5-6 (Sep. 
21,2001). 

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The Laws of War in the War on Terror 



(a) that of being commanded by a person responsible for his 
subordinates; 

(b) that of having a fixed distinctive sign recognizable at a distance; 

(c) that of carrying arms openly; 

(d) that of conducting their operations in accordance with laws and 
customs of war. 

(3) Members of regular armed forces who profess allegiance to a government 
or an authority not recognized by the Detaining Power. 

(4) Persons who accompany the armed forces without actually being 
members thereof. . . provided that they have received authorization from the 
armed forces which they accompany, who shall provide them for that 
purpose with an identity card. 85 

The question as to whether, in order to qualify for POW status, members of 
a state's regular armed forces all have to meet the four conditions listed in Ar- 
ticle 4(A)(2) specifically in respect to members of militias and resistance 
movements is not pursued here. The general assumption has been that states' 
regular forces should as a matter of course observe these conditions. 86 Even if 
this general assumption could be challenged, it is widely agreed that members 
of a state's forces must meet certain criteria. For example, they should wear 
uniforms when involved in military action — a rule that the United States 
views as applying even to commando forces and airborne troops operating sin- 
gly. 87 There is also an obligation on parties to a conflict to supply identity doc- 
uments to all their personnel liable to become POWs. 88 

However the criteria for POW status are interpreted, states have often de- 
ployed certain personnel such as spies in a manner that does not meet the cri- 
teria, knowing that if they fall into enemy hands they are unlikely to be viewed 
or treated as POWs; and they have also deployed certain personnel whose 



85. See GC III, supra note 5, at art. 4. 

86. International Committee of the Red Cross, 3 GENEVA CONVENTION RELATIVE TO THE 
TREATMENT OF PRISONERS OF WAR, COMMENTARY 48 Qean S. Pictet ed., 1960) [hereinafter 
Commentary III]; Howard S. Levie, PRISONERS OF WAR IN INTERNATIONAL ARMED 
CONFLICT 36-38 (Howard S Levie ed., 1978) (Vol. 59, US Naval War College International 
Law Studies). 

87. FM 27-10, para 63, supra note 12. 

88. See GC III, art 17 and art. 4(A)(4), supra note 5. Article 4(A)(4), quoted above, indicates 
that civilian contracted personnel (who played a significant part in the US operations in 
Afghanistan in 2001-2) would appear to qualify for POW status provided that they have formal 
authorization. There is not a requirement that they wear uniform. 

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conformity with the criteria is debatable. With respect to the operations in Af- 
ghanistan in 2001, an argument could possibly be made that some US or coali- 
tion personnel did not meet one of the conditions: for example, members o{ 
US forces (including special forces or forward air controllers), if not wearing a 
uniform or fixed sign and not carrying arms openly. Such possibilities give the 
United States a potential interest in avoiding restrictive approaches to the 
granting of POW status and treatment. 

All lawful combatants, if captured, are entitled to POW status and all of 
the rights set forth in the Geneva Convention III. They cannot be punished 
for the mere fact of having participated directly in hostilities, but they can be 
tried for violations of the detaining power's law, or of international law (in- 
cluding the laws of war) that they may have committed. 89 

Questions regarding the status of a variety of detainees who may fail to 
meet one of the above criteria are not new. In previous wars, POW status was 
seldom given to those involved in resistance activities against occupation, or 
in cases of alleged terrorism. On the other hand, some captured personnel 
who arguably failed to meet one criterion or another applicable at the time 
were viewed as entitled to POW status. 90 

A procedure for determining who is a lawful combatant, entitled to POW 
status, is addressed directly in two treaties. The first of these, 1949 Geneva 
Convention III, provides in Article 5 that, in cases of doubt, prisoners shall be 
treated as POWs "until such time as their status has been determined by a 
competent tribunal." This Article does not specify who has to have the doubt, 
nor the nature of the "competent tribunal." However, the general principle is 
clear and is accepted in US official manuals. For example, the US Army man- 
ual states unequivocally: "When doubt exists as to whether captured enemy 
personnel warrant continued POW [prisoner of war] status, Art. 5 Tribunals 
must be convened." 91 

The second treaty to address the procedure for determining who is a lawful 
combatant is 1977 Geneva Protocol I. Article 45 contains elaborations of 
1949 Convention Ill's provisions on the status of detained persons. It suggests 



89. Id. at arts. 99-104. The separate subject of sanctions in respect of offenses against prison 
camp discipline is covered in Articles 89-98. As regards judicial proceedings against detainees 
who do not have POW status, see text at notes 113-122 infra. 

90. Professor Howard Levie, who has written extensively on the law relating to POWs, suggests 
that being of a different nationality from that of the army in which they serve would not prevent 
combatants from having POW status, but he is more doubtful about spies and saboteurs when 
not operating openly and in uniform. See Levie, supra note 86, at 74-84. 

91. OPLAW HANDBOOK, supra note 15, at 22; see also ANNOTATED SUPPLEMENT, supra note 
13, at paras. 11.7 and 12.7.1. 

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that a detainee has "the right to assert his entitlement to prisoner-of-war sta- 
tus before a judicial tribunal," but allows for considerable leeway in the proce- 
dure by which a tribunal could reach a decision about POW status. The 
possibilities that the proceedings could take place after a trial for an offense, 
and also in camera in the interest of state security, are not excluded. This arti- 
cle recognizes in plain language that not all those who take part in hostilities 
are entitled to POW status, but they are entitled to certain fundamental guar- 
antees discussed further below. 

The uncertainties regarding the status and treatment of people who are in- 
volved in hostile activities in various ways, but who fail to meet the criteria for 
POW status, are reflected in muddled terminology. "Unlawful combatant," 
the most common term, is generally used in this paper. The treaties that im- 
plicitly create the category do not offer any satisfactory term to describe such 
persons. The US Supreme Court, in its judgment in the July 1942 case, Ex 
Parte Quirin, used the terms "unlawful combatant" and "unlawful belligerent," 
apparently interchangeably, to refer to one who, "having the status of an en- 
emy belligerent enters or remains, with hostile purpose, upon the territory of 
the United States in time of war without uniform or other appropriate means 
of identification." 92 One term advanced in the early 1950s by a respected au- 
thority as the most appropriate to cover a wide range of combatants who do 
not meet the POW criteria is "unprivileged belligerents" — a term that carries 
the important implication that such persons while not meeting the criteria for 
POW status, have not necessarily committed a definite violation of the laws of 
war. 93 In current US military manuals four terms — "unprivileged belligerents," 
"detainees," "unlawful combatants" and "illegal combatants" — are used, again 
apparently interchangeably, to refer to those who are viewed as not being 
members of the armed forces of a party to the conflict and not having the right 
to engage in hostilities against an opposing party. 94 The variety of the termi- 
nology is not in itself a major problem. The key element of confusion in the de- 
bate was the tendency, especially marked in the press in late 2001 and early 



92. Ex parte Quirin, 317 U.S. 1, 4-16 (1942) [hereinafter Quirin]. 

93. The classic article on the subject is by Richard Baxter. See Richard R. Baxter, So-called 
"Unprivileged Belligerency": Spies, Guerrillas and Saboteurs, 28 BRIT. Y.B. INT'L L. 323-45 (1951). 
His key conclusion is that this large category of hostile conduct is not per se violative of any 
positive prohibition of international law, but it does expose those engaging in it to trial and 
punishment by the enemy, for example under the enemy's own laws and regulations. In the years 
since he wrote this, many terrorist acts have been prohibited in international law, so the category 
is not necessarily appropriate for those suspected of involvement in terrorism. 

94. OPLAW HANDBOOK, supra note 15, at 12, 22, see also ANNOTATED SUPPLEMENT, supra 
note 13, at para. 12.7.1. 

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2002, to refer to such terms as "unlawful combatants" and "battlefield detain- 
ees" as if they were entirely new, were freshly invented by the US government, 
and were completely outside the existing treaty framework. 

The ICRC and others have argued that detained persons who do not qual- 
ify for POW status (i.e., those often called "unlawful combatants") should be 
viewed as civilians and treated in accord with the 1949 Geneva Convention 
IV. This view would appear to be in conformity with the first paragraph of Ar- 
ticle 4 of the Convention: 

Ipjersons protected by the Convention are those who, at a given moment and in 
any manner whatsoever, find themselves, in case of a conflict or occupation, in 
the hands of a Party to the conflict or Occupying Power of which they are not 
nationals. 95 

Pictet's commentary on this Convention may appear to confirm that those 
who are not classified as POWs must be viewed as civilians when it refers to: 

a general principle which is embodied in all four Geneva Conventions of 1949. 
Every person in enemy hands must have some status under international law: he 
is either a prisoner of war and, as such, covered by the Third Convention, a 
civilian covered by the Fourth Convention, or again, a member of the medical 
personnel of the armed forces who is covered by the First Convention. There is 
no 'intermediate status'; nobody in enemy hands can be outside the law. 96 

Further ammunition for this view can be found in Article 50 of 1977 
Geneva Protocol I. However, the view is open to several objections that are 
rooted in the terms of relevant treaties. (I) It is in tension with the specific 
terms of Article 4 of the 1949 Geneva Convention IV, which excludes from 
the Convention's protection certain persons, namely nationals of neutral and 
co-belligerent states; and it is likewise in tension with Pictet's statement that 
the Convention is basically about "on the one hand, persons of enemy nation- 
ality living in the territory of a belligerent State, and on the other, the 



95. 1949 Geneva Convention IV, Article 4, first paragraph. For a strong assertion that enemy 
combatants, if denied POW status, must be considered as civilians, see Hans-Peter Gasser, 'Acts 
of Terror, "Terrorism" and International Humanitarian Law,' International Review of the Red 
Cross, vol. 84, no. 847, September 2002, at p. 568. He emphasizes that "civilian detainees 
suspected of having committed a serious crime can and must be put on trial." 

96. International Committee of the Red Cross, 4 GENEVA CONVENTION RELATIVE TO THE 
PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR TREATMENT OF PRISONERS OF WAR, 
COMMENTARY 51 (Jean S. Pictet ed. 1960) [hereinafter Commentary IV]. 



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The Laws of War in the War on Terror 



inhabitants of occupied territories." 97 (2) The four 1949 Geneva Conventions, 
Common Article 3, acknowledge that in civil wars detainees may have a dif- 
ferent status from that of POW or civilian. (3) The 1977 Geneva Protocol I, 
Articles 45 and 75, acknowledges that even in international armed conflicts 
certain detainees may have a status that is distinct from those of POWs and 
civilians under the 1949 Geneva Conventions III and IV. (4) It risks eroding 
the key distinction between combatants and civilians that is fundamental to 
the laws of war, and is reflected in the 1977 Geneva Protocol I, Article 48. 

The fact that certain detainees taken in the "war on terror" may be denied 
status as either a POW or a civilian does not mean that they have no legal 
rights. The provisions of Common Article 3 of the 1949 Geneva Conventions, 
although not specific to this category of person and formally applicable only in 
non-international armed conflict, may be viewed as minimum guarantees to 
be applied to all detainees. 98 In addition, Article 45 of 1977 Geneva Protocol I 
addresses the matter much more directly: "Any person who has taken part in 
hostilities, who is not entitled to prisoner-of-war status and who does not ben- 
efit from more favorable treatment . . . shall have the right at all times to the 
protection of Article 75 of this Protocol." The said Article 75 elaborates a 
range of fundamental guarantees that are intended to provide minimum rules 
of protection for all those who do not benefit from more favorable treatment 
under other rules. 

Although neither the United States nor Afghanistan is a party to 1977 
Geneva Protocol I, the rules in Articles 45 and 75 are relatively uncontroversial 
and it is long-standing US policy that they should be implemented. 99 However, 
US officials have repeatedly omitted to mention these articles in connection 
with the treatment of prisoners held in the "war on terror." The omission may 
reflect the US general sensitivity to the 1977 Geneva Protocol I or specific 
doubts about certain provisions of these articles. Nonetheless the failure to 
mention the articles appears odd: reference to Article 75 would have been an 



97. Id. at 45. 

98. On the broad scope of application of Common Article 3, see, e.g., Commentary IV, supra 
note 96, at 36, 40. 

99. Articles 45 and 75 are among the many articles of GP I (supra note 9) that the United States 
views as "either legally binding as customary international law or acceptable practice though not 
legally binding." See OPLAW HANDBOOK, supra note 15, at 11. 



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obvious way of indicating that the treatment of the detainees was still within an 
international legal framework. 100 

After the status and treatment of prisoners taken in Afghanistan became 
urgent in November 2001, public statements of the US government were con- 
sistent and clear on one point. By referring to these prisoners generally as "bat- 
tlefield detainees" and "unlawful combatants" the United States signalled its 
unwillingness to classify al Qaeda and Taliban prisoners as POWs. However, 
it was slow to give detailed reasoning, and to indicate the principles to be fol- 
lowed in the handling of the detainees. On 1 1 January 2002, when asked 
whether the ICRC would have any access to the prisoners who had just been 
taken to the US naval base at Guantanamo Bay in Cuba, Rumsfeld stated: 

I think that we're in the process of sorting through precisely the right way to 
handle them, and they will be handled in the right way. They will be handled 
not as prisoners of war, because they're not, but as unlawful combatants. The, as 
I understand it, technically unlawful combatants do not have any rights under 
the Geneva Convention. We have indicated that we do plan to, for the most 
part, treat them in a manner that is reasonably consistent with the Geneva 
Conventions, to the extent they are appropriate, and that is exactly what we 
have been doing. 101 

In the following weeks there were numerous expressions oi concern in the 
United States and internationally about the status and treatment of detainees, 
and about the risk that US conduct would lead to a global weakening of the 
POW regime. 102 There were also intense disagreements within the US admin- 
istration. 103 The situation was made worse by the Pentagon's seemingly inept 
issuance on 19 January 2002 of a photograph showing bound and shackled 
prisoners, heads and eyes covered, kneeling before US soldiers at 
Guantanamo. The photographs, which showed a transitional processing stage 
during the prisoners' arrival, became a misleading symbol of how the 
Guantanamo camp was being operated. 



100. One of the few US publications to note the potential applicability and value of Article 75 
was by Lee A. Casey, David Rivkin and Darin R. Bartram. See Casey et al., Detention and 
Treatment of Combatants in the War on Terrorism (Fed. Soc. L. & Pub. Pol. Studies, 2002) . This 
article was published in early 2002, before the White House announcement of 7 February. 

101. Secretary of Defense Donald Rumsfeld, DOD News Briefing Qan. 11, 2002), available at 
http://www.defenselink.mil/news/Ian2002/t01112002_t0111sd.html (Nov. 14, 2002). 

102. See, e.g., Steven Erlanger, Europeans Take Aim at U.S. on Detainees, INT'L HERALD 
TRIBUNE, Jan. 24, 2002, at 4. 

103. See Thorn Shanker and Katharine Q. Seelye, Behind-the-scenes Clash Led Bush to Reverse 
Himself on Applying Geneva Conventions, N.Y. TIMES, Feb. 22, 2002, at A12. 

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The Laws of War in the War on Terror 



Certain conciliatory gestures were made by the US administration. Interna- 
tional Committee of the Red Cross officials started interviewing detainees at 
Guantanamo on 18 January 2002, and were able to establish a permanent 
presence there. Rumsfeld's above-quoted suggestion that unlawful combat- 
ants have no rights under the Geneva Convention was modified when, on 22 
January, he recognized that "under the Geneva Convention, an unlawful 
combatant is entitled to humane treatment." 104 On 7 February, the White 
House, in the first major policy statement on the issue, announced: 

[t]he United States is treating and will continue to treat all of the individuals 
detained at Guantanamo humanely and, to the extent appropriate and 
consistent with military necessity, in a manner consistent with the principles of 
the Third Geneva Convention of 1949. 

The President has determined that the Geneva Convention applies to the 
Taliban detainees, but not to the al Qaeda detainees. 

Al Qaeda is not a state party to the Geneva Convention; it is a foreign terrorist 
group. As such, its members are not entitled to POW status. 

Although we never recognized the Taliban as the legitimate Afghan 
government, Afghanistan is a party to the Convention, and the President has 
determined that the Taliban are covered by the Convention. Under the terms of 
the Geneva Convention, however, the Taliban detainees do not qualify as 
POWs. 

Therefore, neither the Taliban nor al Qaeda detainees are entitled to POW 
status. 

Even though the detainees are not entitled to POW privileges, they will be 
provided with many POW privileges as a matter of policy. 1Cd 

The Fact Sheet, while containing numerous detailed assurances about the 
treatment of the detainees at Guantanamo, indicated that they would not re- 
ceive certain specific privileges afforded to POWs by the Geneva Convention 
III, including: 



104. Secretary of Defense Donald Rumsfeld, DOD News Briefing, (Jan. 22, 2002), available at 
http://www.defenselink.mil/news/Jan2002/t01222002_t0122sd.html (Nov. 14, 2002). 

105. Office of the White House Press Secretary, Fact Sheet: Status of Detainees at Guantanamo 
(Feb. 7, 2002), available at http://www.whitehouse.gov/news/releases/2002/02/2002C2'"- 
13.html (Nov. 14, 2002). 

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• access to a canteen to purchase food, soap and tobacco 

• a monthly advance of pay 

• the ability to have and consult personal financial accounts 

• the ability to receive scientific equipment, musical instruments, or sports 
outfits. 106 

This United States refusal to grant these particular privileges was justified 
in terms of the security risk posed by many detainees at Guantanamo to their 
guards and to each other. A specific indication of this kind can be compatible 
with an overall approach of respect for a legal regime, and can also contribute 
to change in that regime. The refusal of these privileges caused no outcry, and 
parts of the 7 February statement reassured international opinion. 

However, the earlier part of the statement was incoherent in certain re- 
spects. The recognition that the Geneva Convention III did apply to the 
Taliban, followed by the blanket statement that the Taliban did not qualify as 
POWs, had the confusing appearance of simultaneous admission and retrac- 
tion. In his accompanying statement, the White House Press Secretary indi- 
cated the reason why the Taliban detainees failed to qualify as POWs: 

[t]o qualify as POWs under Article 4, al Qaeda and Taliban detainees would 
have to have satisfied four conditions. They would have to be part of a military 
hierarchy; they would have to have worn uniforms or other distinctive signs 
visible at a distance; they would have to have carried arms openly; and they 
would have to have conducted their military operations in accordance with the 
laws and customs of war. 

The Taliban have not effectively distinguished themselves from the civilian 
population of Afghanistan. Moreover, they have not conducted their 
operations in accordance with the laws and customs of war. Instead, they have 
knowingly adopted and provided support to the unlawful terrorist objectives o( 
the al Qaeda. 

Al Qaeda is an international terrorist group and cannot be considered a state 
party to the Geneva Convention. Its members, therefore, are not covered by the 
Geneva Convention, and are not entitled to POW status under the treaty. 107 



106. Id. at 2. The privileges cited are outlined in GC III, supra note 5, arts. 28, 60, 64-5 and 72. 

107. White House Press Secretary Ari Fleischer, Press Briefing at the White House (Feb. 7, 
2002), at 1-2, available at Lexis, Federal News Service (Jan. 6, 2003). 



219 



The Laws of War in the War on Terror 



The argument about the Taliban appears to assume that the four condi- 
tions which are listed in Article 4(A)(2) specifically in respect of members of 
"other militias" and resistance movements must necessarily apply to the 
Taliban; and it then proceeds to interpret the four conditions in such a way 
that support for "unlawful terrorist objectives" becomes one basis for denial of 
POW status. As for the al Qaeda detainees, although certain of the stated rea- 
sons for not applying the Convention to them are well founded, the particular 
argument that because al Qaeda is not a party to the Convention it cannot 
benefit from it is far from correct. There was a curiously legalistic streak in an 
approach which put such emphasis on the purported distinction between the 
Taliban and al Qaeda detainees yet saw no practical consequences: "No dis- 
tinction will be made in the good treatment given to the al-Qaida or the 
Taliban." 108 A striking feature of the statement is its avoidance of any hint of 
doubt about status: none of the detainees, even the Taliban ones, could possi- 
bly qualify as POWs. In keeping with this, nothing was said about the tribu- 
nals provided for in Article 5 of 1949 Geneva Convention III and Article 45 of 
1977 Geneva Protocol I. A further notable omission was the absence of refer- 
ence to Article 75 of the 1977 Protocol. Despite certain merits, the US state- 
ment was less technically proficient, and less reassuring, than it could have 
been. Expressions of international concern regarding the status and treatment 
of detainees in Guantanamo and elsewhere continued. 

In response to the White House statement of 7 February, the ICRC Press 
Office in Geneva maintained its position that "people in a situation of interna- 
tional conflict are considered to be prisoners of war unless a competent tribu- 
nal decides otherwise." 109 The ICRC emphasis on POW status contrasted with 
its statements in respect of prisoners in the wars in the former Yugoslavia in 
1991-5: in these wars, which were partly internal but also had an international 
dimension, the ICRC generally avoided status questions, and variously used 
such terms as "captured combatants," "prisoners" and "detainees." 110 The 
ICRC statement in respect of prisoners taken in Afghanistan is arguably in ac- 
cord with Article 45 of 1977 Geneva Protocol I, but went well beyond Article 5 



108. Id. at 3. 

109. See ICRC, Press Release, Geneva Convention of Prisoners of War (Feb. 9, 2002), available at 
http://www.icrc.org/ (Nov. 14, 2002). 

110. See ICRC Compilation of Press Releases and Communications to the Press by the ICRC: 
Former Yugoslavia, Federal Republic of Yugoslavia, Republic of Croatia, Republic of Bosnia and 
Herzegovina, 2 July 1991-20 March 1998 (1998) (bound collection of photocopied texts on file 
with author). 

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of 1949 Geneva Convention III, which makes the more modest stipulation 
that in cases of doubt prisoners shall be treated as POWs. Presumably, there 
could be cases in which there is no doubt in the first place. In some statements 
ICRC press spokesmen went so far as to deny the existence oi a legal category 
of unprivileged or illegal combatant. Since the category of unprivileged bellig- 
erent has a long history, is implicit in the criteria for POW status in 1949 
Geneva Convention III, and is explicit in Article 45 of 1977 Geneva Proto- 
col I, these statements were not well founded and they were modified in the 
course of 2002. The same basic stance, with the same weaknesses, was taken by 
Amnesty International in London and Human Rights Watch in New York. 111 
These positions may have reinforced the reservations of the US administration 
about the advice they were receiving from outside bodies. 

The fundamental US position that many of the detainees taken in Afghani- 
stan should not be accorded the status of POWs appears to have been based 
on three main practical considerations: the first related to conditions of de- 
tention of prisoners, the second to their release, and the third to the conduct 
of judicial proceedings. 

On conditions of detention, a main concern was that 1949 Geneva Con- 
vention III famously states that POWs are only obliged to give names, rank, 
date of birth and serial number. 112 The United States was anxious to obtain 
considerably more information from the detainees. There is nothing in the 
Convention that precludes questioning on other issues and whether a differ- 
ent classification actually improves the prospects of securing accurate infor- 
mation is debatable. The United States also wished to keep the detainees 
more segregated from each other, and with less access to means of committing 
harm, than full observance of all the POW Convention's articles would 
provide. 



111. See, e.g., Kenneth Roth, Executive Director of Human Rights Watch, Bush Policy Endangers 
American and Allied Troops, INT'L HERALD TRIBUNE, Mar. 5, 2002, at 7. See also Amnesty 
International Memorandum to US Government on the Rights of People in US Custody in 
Afghanistan and Guantanamo Bay (Apr. 15, 2002), available at http://www.amnesty.org.uk/ 
(Nov. 14, 2002). 

112. GC III, supra note 5, art. 17. This rule does not mean that a POW cannot be asked other 
questions, nor does it prohibit the POW from providing other information. In March 2002, Jakob 
Kellenberger, President of ICRC, pointed out that there is nothing in humanitarian law to stop a 
prisoner being questioned, but that he could not be forced to answer. "If he does not want to 
answer, that is his right. Under any system, you cannot do anything to people to make them 
speak. It is a non-issue." Jakob Kellenberger, ICRC Rejects Talk of Geneva Conventions Review, 
Reuters-Geneva (Mar. 21, 2002). 

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As regards release of prisoners, Geneva Convention III codifies a practice 
that is normally pursued after a war — releasing and repatriating POWs. Any 
such release of all the detainees from the "war on terror" would pose three 
problems. First, there may not be a clear end of hostilities: while the war in Af- 
ghanistan may be concluded at a definite date, it may be decades before the 
United States or other states can declare that the "war on terror" is over. Sec- 
ond, unlike POWs in a "normal" inter-state war, some of the prisoners con- 
cerned might continue to be extremely dangerous after release, given their 
training, their motivation to commit acts of terrorism, and lack of governmen- 
tal control over them. Third, their countries of origin might refuse to accept 
them back, except perhaps as prisoners. 

Judicial proceedings 

As regards judicial proceedings in respect of pre-capture offenses, from early on 
in the war the United States reportedly intended to prosecute a number of al 
Qaeda and Taliban leaders, including Osama bin Laden if captured. However, 
it is unclear that the point of detaining the prisoners in Guantanamo is to try 
them. 113 Insofar as the possibility of trials is envisaged, the United States ap- 
pears reluctant to pursue the procedure laid down in Geneva Convention III, 
which specifies that any sentence of a POW must be "by the same courts ac- 
cording to the same procedure as in the case of members of the armed forces of 
the Detaining Power." 114 If, following this provision, cases were handled 
through the normal US military courts, there could be problems, especially re- 
garding the normal US military procedures for appeals. 115 Moreover, if a pre- 
capture offense was of a type that would result in members of the armed forces 
of the detaining power appearing before a civil court, then it is implicit in the 
above-quoted terms of the Convention that a POW could appear before a civil 



1 13. In a thorough and perceptive account of Camp Delta at Guantanamo datelined 10 October 
2002, Joseph Lelyveld suggests that it is a holding camp for detainees who are not likely to be 
released or tried soon, and many of whom may be relatively minor figures who were in the wrong 
place at the wrong time. Joseph Lelyveld, In Guantanamo, 17 N.Y. REV. OF BOOKS (Nov. 7, 
2002), at 62-68, available at http://www.nybooks.com/articles/15806 (Nov. 30, 2002). 

1 14. GC III, supra note 5, at art. 102. This appears to be the relevant article of the Convention so 
far as trials for crimes committed before capture are concerned. (The distinct subject of POW 
discipline issues is addressed in Article 82.) Commentary III, supra note 86, at 406 and 470-1. 
Unfortunately, Pictet fails to consider pre-capture crimes other than war crimes. 

115. The normal appeal procedure for US armed forces is through the appellate court of each 
service, then through the US Court of Appeals for the Armed Forces, and then on to the US 
Supreme Court. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, RULES FOR COURT 
MARTIAL 1203-1205 (2000). 

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Adam Roberts 



court. Such standard procedures, US officials feared, could provide opportuni- 
ties for al Qaeda suspects and their lawyers to prolong legal processes and at- 
tract publicity. There was also concern that in cases involving defendants with 
no documents and no willingness to collaborate with any of the procedures, 
and where evidence might be largely based on intelligence sources, it could be 
difficult to provide evidence that met high standards of admissibility, and 
equally high standards of proof of direct personal involvement in terrorist activ- 
ities. Further, al Qaeda might learn valuable information from evidence in 
open court, for example about its vulnerability to intelligence gathering. 

It was because of such fears about normal judicial procedures that the ad- 
ministration made provision for trial by military commissions. There are nu- 
merous precedents for such provision: for example, President Roosevelt's 
Proclamation of 2 July 1942, bluntly entitled "Denying Certain Enemies Ac- 
cess to the Courts of the United States." 116 In its decision of 31 July 1942 in 
the case of Ex Parte Quirin the US Supreme Court ruled in favor of the lawful- 
ness of the Proclamation. 117 The current status of such legal precedent is be- 
yond the scope of this survey. President Bush's Military Order of 13 November 
2001 provides for the option of trying certain accused terrorists by military 
commissions operating under special rules. It applies only to non-US citizens. 
It specifies that individual terrorists, including members of al Qaeda, can be 
detained and tried "for violations of the laws of war and other applicable 
laws," and that the military commissions would not be bound by "the princi- 
ples of law and the rules of evidence generally recognized in the trial of crimi- 
nal cases in the United States district courts." It also contains some extremely 
brief provisions for humane conditions of detention, and provides for the Sec- 
retary of Defense to issue detailed regulations on such matters as the conduct 
of proceedings of the military commissions. 118 

President Bush's Military Order was the subject of considerable legal and 
political debate in the United States and elsewhere as to its constitutionality, 
practicability and advisability. The controversy about the military 



116. Denying Certain Enemies Access to the Courts of the United States, Proclamation No. 
2561, 7 Fed. Reg. 5,103 Qui- 2, 1942). On this and other cases of US established military 
commissions, see CONGRESSIONAL RESEARCH SERVICE, TERRORISM AND THE LAW OF WAR: 

Trying Terrorists as War Criminals before Military Commissions 18-26, 46-48 

(updated Dec. 11, 2001), available at http://www.fpc.state.gov/documents/organization/7951.pdf 
(Nov. 14, 2002). 

117. Quirin, supra note 92, at 6. 

118. Military Order of 13 November 2001 - Detention, Treatment and Trial of Certain Non- 
Citizens in the War Against Terrorism, sees. 1(e), 1(0, 3, 4(b), 4(c), 66 Fed. Reg. 57,833 (Nov. 
16, 2001), available at http://frwebgate.access.gpo.gov/cgi-bin/multidb.cgi (Nov. 14, 2002). 

223 



The Laws of War in the War on Terror 



commissions was part of a larger debate about which particular approach to 
the prosecution and trial of alleged terrorists should be pursued. Possibilities 
that were raised in public discussion included US federal courts, foreign na- 
tional courts, a UN ad hoc international criminal tribunal, a coalition-based 
criminal tribunal, and a special Islamic court. 119 

The controversy about the proposed military commissions abated somewhat 
over time. On 30 November 2001, the President's Counsel offered several assur- 
ances, including that military commissions are one option, but not the only op- 
tion. 120 On 21 March 2002 the Pentagon issued the long-promised detailed 
regulations on the conduct of proceedings of the projected military commis- 
sions, the terms of which went some way to meet the expressions of concern re- 
garding President Bush's Military Order of the previous November. 121 As far as 
the laws of war are concerned, a key issue (not explicitly addressed in the Penta- 
gon document) is whether the provisions regarding the trial procedure conform 
with the ten recognized principles of regular judicial procedure outlined in 1977 
Geneva Protocol I, Article 75, which relates to persons not entitled to POW sta- 
tus. The Pentagon's detailed regulations appear to conform with almost all these 
principles apart, arguably, from the final one, which is that "a convicted person 
shall be advised on conviction of his judicial and other remedies and of the time- 
limits within which they may be exercised." 122 

A problem regarding the prisoners held by the United States is the uncer- 
tainty regarding whether and when they will be tried, and whether they will be 
held indefinitely or released. Nearly 600 suspects of many different nationali- 
ties are held at Guantanamo, but at the time of this writing, there is no sign of 



119. For a useful exploration of these and other possibilities, see DAVID SCHEFFER, OPTIONS 
FOR PROSECUTING INTERNATIONAL TERRORISTS (US Institute of Peace, Nov. 14, 2001). 

120. President's Counsel Alberto Gonzalez, Address to American Bar Association Meeting, 
(Nov. 30, 2001) cited in AM. SOC. INT'L L. NEWSLETTER, at 12 (Nov-Dec 2001). 

121. DOD Military Commission Order No.l - Procedures for Trials by Military Commissions of 
Certain Non-United States Citizens In the War Against Terrorism (Mar. 21, 2002), available at 
http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf (Nov. 14, 2002) [hereinafter 
DOD Military Commission]. For a response claiming that these procedures, if not per se violative 
of international law, are highly problematic, see Jordan J. Paust, Antiterrorism Military 
Commissions: The Ad Hoc DOD Rules of Procedure Courting Illegality, 23 MICH J. INT'L L. 677 
(Spring 2002). 

122. GP I, supra note 9, at art. 75 (4) (j). The Pentagon's detailed regulations provide for a post- 
trial Review Panel to which the defense can make written submissions, not for a full-blown 
appeal procedure. A further reservation about the regulations concerns the role of the defense 
counsel, who would be excluded with the accused from closed sessions, at which only an 
"assigned" defense counsel would be present who would be forbidden to speak with the co- 
counsel or the accused. See DOD Military Commission, supra note 119, at 8, 14. 



224 



Adam Roberts 



the military commissions becoming operational. The United States has indi- 
cated that the judicial process may have to wait until after "the war on terror is 
won," at which distant point the detainees may be tried or released. 123 Their 
indefinite detention, without any charge or trial, would violate fundamental 
standards of human rights and be hard to justify. Yet when the main problem 
with potential suicide bombers is not what they have done, but what they 
might do in the future, the resort to judicial procedures does not address the 
essence of the problem. 

Further Development of the Law 

The phenomena of global terrorism and the response thereto, while by no 
means wholly new, pose many challenges to existing legal provisions, from mat- 
ters as large as the meaning of "armed conflict" to those as detailed as the con- 
ditions of detention. Thus it is not surprising that there were several 
suggestions that the existing laws of war might need to be revised, updated, sup- 
plemented or reinterpreted to take into account new forms of conflict. The case 
for such reconsideration, which basically arose in connection with the war in 
Afghanistan and the many related issues, may have been reinforced by events 
elsewhere, especially the numerous cases of Palestinian suicide bombings in 
2001-2. In February 2002, following the furor over the detainees at 
Guantanamo, Pierre-Richard Prosper, the US Ambassador-at-Large for War 
Crimes Issues, stated: "[t]he war on terror is a new type of war not envisioned 
when the Geneva Conventions were negotiated and signed." 124 He also said at 
that time: "[w]e should look at all international documents to see whether they 
are compatible with this moment in history." 125 

Such suggestions that the law might need to be revised are vulnerable to 
four obvious lines of criticism. (I) In several statements on the matter, Am- 
bassador Prosper gave little indication of what particular revisions might be 
made to the 1949 Geneva Conventions. (2) There was naturally a suspicion in 
certain humanitarian organizations that suggestions that existing law was out 
of date or irrelevant to the terrorist problem might be a way of trying to evade 



123. War Crimes at Large Ambassador Richard Prosper Address in London (Sep. 20, 2002) cited in 
Owen Boycott, Guantanamo Britons Still a Threat, says US, THE GUARDIAN, Sep. 21, 2002, at 23. 

124. War Crimes at Large Ambassador Richard Prosper Address at the Royal Institute of 
International Affairs in London (Feb. 20, 2002). 

125. Kim Sengupta and Andrew Buncombe, Change Geneva Convention Rules, Says Bush Envoy 
Rules of Warfare Legal Foundation for the Red Cross has Helped Maintain Humanity and Dignity in 
Combat for 140 Years, THE INDEPENDENT, Feb. 22, 2002, at 1-2. 

225 



The Laws of War in the War on Terror 



obligations to implement existing law fully. (3) Proponents of change failed to 
mention that the negotiators at Geneva in 1949 had addressed a closely re- 
lated issue, namely the activities of resistance movements during the Second 
World War, and that Articles 4 and 5 of the Geneva Convention III are 
among the provisions that already reflect this. (4) There was also a failure to 
mention in this context the revisions that had already been made to the 1949 
Geneva Conventions. Proponents of change were notably reluctant to men- 
tion even the title of 1977 Geneva Protocol I although it constitutes the most 
important actual updating of the 1949 conventions. It contains the clearest 
prohibitions in the laws of war of certain actions in which many terrorist 
movements engage, such as attacks on civilians. It also introduces some con- 
structive provisions that are germane to the "war on terror." Such provisions 
that the United States has in principle accepted include those on targeting, 
and on the treatment of detainees who do not qualify as POWs. 

Although such criticisms have considerable force, the fact is that the law is 
bound to evolve in response to the new problems of a new age. Much of that 
evolution may take the form, not of new conventions, but rather of evolving 
state practice some of which may have, or acquire, the status of customary law. 
However, some oi the legal evolution may involve international conferences. 

Of the many issues related to the "war on terror" that could come up in any 
exploratory process with a view to further change in the law, five of the candi- 
dates for consideration could be: (a) the conditions of application oi the laws 
of war; (b) the classification and treatment of detainees; (c) legitimate means 
of responding to suicide bombers who by definition cannot be deterred by nor- 
mal means, and whether reprisals can ever be justified in this context; (d) the 
interpretation of the rules on targeting in the light o( the experience oi recent 
wars in Afghanistan and elsewhere; and (e) remnants of war, a problem that 
includes but is by no means restricted to cluster bombs, and is in any case the 
subject of separate negotiation in a UN framework in Geneva. 

Partly because of the salience oi such issues, there continued to be some 
demand for an exploration of how the law relates to certain aspects of contem- 
porary conflicts. In September 2002 the Swiss Foreign Ministry announced 
that it "wishes to support an informal process and provide a space for debate 
on the reaffirmation and development of international humanitarian law in 
light of the new and evolving realities of contemporary conflict situations." 
Representatives of certain governments and international bodies, as well as in- 
dependent experts, were to be invited to contribute to an informal meeting to 
be held in January 2003. Cautiously, the Swiss note announcing this stated 
that one of the purposes of the exercise was "if necessary, the consideration ot 

226 



Adam Roberts 



the development of new rules." The potential topics listed were at this stage 
general and imprecise. 126 

Conclusions 

There are ample grounds for questioning whether military operations involving 
action against terrorists constitute either a new, or a wholly distinct, category of 
war. The coalition operations in Afghanistan, and the larger war against terror- 
ism of which they are a part, are not completely unlike earlier wars. Many forms 
of military action and issues raised are similar to those in previous military oper- 
ations, and concern issues already addressed by the laws of war. 

Events in Afghanistan have confirmed that there are particular difficulties 
in applying the laws of war to counter-terrorist operations. A war that has as a 
purpose the pursuit of people deemed to be criminals involves many awkward 
issues for which the existing laws of war are not a perfect fit. In addition, the 
use of local forces as proxies (a common feature in counter-terrorist wars) 
risks creating a situation in which major powers fail to exercise responsible 
control over their local agents, whose commitment to the laws of war may be 
slight. More fundamentally, any war against a grand abstraction, as the "war 
on terror" undoubtedly is, risks creating a mentality in which adversaries are 
seen as dehumanized, and the cosmic importance of the struggle may be 
thought to outweigh mundane legal or humanitarian considerations. 

However, treating, or appearing to treat, the law in a cavalier manner risks 
creating new problems. If a major power is perceived as ignoring certain basic 
norms, this may have a negative effect within a coalition, or on enemies. It may 
involve severe risks to any of its own nationals who may be taken prisoner. It 
may also affect the conduct of other states in other conflicts. In that wider 
sense, the principle of reciprocity in the observance of law retains its value. 

In particular, the United States' handling of questions relating to the treat- 
ment and status of prisoners has caused widespread concern and criticism. As 
regards those under Northern Alliance control, practical arrangements, 
around the time of the rebellion at Mazar -e-Sharif and also subsequently, 
were inadequate. More generally, although many key US positions were de- 
fensible, especially that certain prisoners did not qualify for POW status, as- 
pects of US policy and procedures were poorly presented, and in some cases 
did not appear to be fully thought-out. The prisoner issue — always sensitive 



126. See Diplomatic Note, Switzerland-US, Sep. 13, 2002. See also Unknown Author, Swiss Call 
a Meeting to Re-examine the Geneva Conventions, N.Y. TIMES, Oct. 6, 2002, at sec. 1, 15. 

227 



The Laws of War in the War on Terror 



anyway — was especially significant in this war: if the coalition were perceived 
to have treated prisoners inhumanely, or to have regarded their status and 
treatment as being in an international legal limbo, there would be risks of a 
general weakening of the prisoner regime, including for any coalition person- 
nel taken prisoner in the ongoing war on terrorism. The handling of this issue 
was a potential threat to coalition unity. The controversies over the prisoner 
question had a special resonance because of the concern of other countries 
that the United States had been moving towards unilateralism generally, on a 
wide range of matters. In this perspective, fairly or unfairly, the United States 
reluctance to accept the full application of 1949 Geneva Convention III to 
those particular prisoners was seen as one more example of a selective ap- 
proach to international law. 

In the course of the first year of its "war on terror," and especially in the early 
handling of prisoner issues in Afghanistan and at Guantanamo, the Bush Ad- 
ministration's expression of policies 'on certain laws-of-war issues was at times 
hesitant and unskillful. It would be easy to attribute this to the administration's 
alleged general ideological hostility towards international agreements. How- 
ever, some other explanations may carry more weight. The United States had a 
record of concern stretching back decades about the ways in which interna- 
tional humanitarian law has been developing, especially as regards terrorism, 
and also in regard to the rules on what is a legitimate target. The administration 
was right that certain aspects of the law, including aspects of the POW regime, 
were not appropriate for the treatment of alleged terrorists. Part of the explana- 
tion of the administration's failure to handle the particular question of the sta- 
tus of detainees effectively may lie quite simply in the fact that it was 
proceeding in a reactive manner. In addition, there appears to have been insuf- 
ficient consultation with the military's own legal specialists. 

Whatever the defects of the Bush Administration's response, the profes- 
sionalism of the US armed forces, coupled with the effect of criticism within 
and beyond the United States, led to policy and practice on the prisoner issues 
evolving in a generally sensible direction. This evolution has been ad hoc and 
incomplete. In general, there have been no major public doctrinal statements 
from the US government on how the laws of war apply to the "war on ter- 
ror" — perhaps because the application of those laws can indeed be compli- 
cated and policy-makers do not wish to foreclose options. 

This war occasioned a greater degree of tension between the United States 
on the one hand, and international humanitarian and human rights bodies on 
the other, than any of the wars of the post-Cold War period. The handling of 
certain laws-of-war issues by the ICRC and various other humanitarian 

228 



Adam Roberts 



organizations left much to be desired. It was natural that they should be nervous 
about the US administration's view of international humanitarian law and that 
they should press for full implementation of that law, especially in relation to 
prisoners. However, they were on legally dubious ground when they pressed on 
the United States to view detainees as being entitled to be POWs, and in their 
insistence that if they were not given POW status then they must be classified as 
civilians. They missed a major opportunity to point out publicly the relevance of 
certain provisions of 1977 Protocol I to persons not entitled to POW status. It 
was odd and out of character for the ICRC to deny the applicability of the law 
governing international armed conflict to certain aspects of the Afghan conflict 
including the phase from June 2002 onwards. Overall, the stance of such bodies, 
while leading to certain useful clarifications of US policy, may also have had the 
regrettable effect of reinforcing US concerns (well publicized in debates about 
the International Criminal Court) about zealous international lawyers standing 
in unsympathetic judgement on the actions of US forces. 

Returning to the four questions set out at the beginning of this survey, the 
foregoing account suggests these responses: 

First, according to a strict interpretation of their terms, the main treaties re- 
lating to the conduct of international armed conflict are formally and fully ap- 
plicable to counter-terrorist military operations only when those operations 
have an inter-state character. Where counter-terrorist operations are simply 
part of a civil war, the parties must apply, as a minimum, the rules applicable 
to civil wars. Where operations are simply part of a state's policing, and not 
part of an armed conflict such as to bring the laws of war into play, the laws of 
war are not formally in force. 

Second, in counter-terrorist military operations, certain phases and situa- 
tions may well be different from what was envisaged in the scope of applica- 
tion and other provisions of the main treaties on the laws of war. They may 
differ from the provisions for both international and non-international armed 
conflict. Recognizing that there are difficulties in applying international rules 
in the special circumstances of counter-terrorist war, the attempt can and 
should nevertheless be made to apply the law to the maximum extent possible. 
At the very least, it has considerable value as a blueprint or template that the 
principles embodied in the laws of war should be applied in a wide variety of 
situations. This conclusion is reinforced by decisions of commissions of in- 
quiry, certain resolutions of the UN Security Council, some doctrine and 
practice of states (including the United States), and considerations of pru- 
dence. In the "war on terror," while there have been shortcomings in the in- 
terpretation and application of existing law by governments and by 



229 



The Laws of War in the War on Terror 



humanitarian organizations, much of what has been done has been within the 
framework of the law and has confirmed its relevance. 

Third, although the great majority of prisoners taken in war are viewed as 
qualifying for POW status, in a counter-terrorist war, as in other armed con- 
flicts, there are likely to be individuals and even whole classes of prisoners who 
do not meet the treaty-defined criteria for such status. A procedure outlined 
in the 1949 POW Convention and in US military manuals is that in case of 
doubt about their status such people should be accorded the treatment, but 
not the status, of a POW until a tribunal convened by the captor determines 
the status to which the individual is entitled. However, in a struggle involving 
an organization that plainly does not meet the criteria (and especially where, 
as with al Qaeda, it is not in any sense a state) it may be reasonable to proclaim 
that captured members cannot be considered for POW status. In cases where 
it is determined that certain detainees are not POWs, they may be considered 
to be "unlawful combatants." It is doubtful whether such persons should be 
classified as "civilians." However, there are certain fundamental rules applica- 
ble to their treatment, including those outlined in Article 75 of 1977 Geneva 
Protocol I; and there is a tradition of applying basic norms of the POW regime. 
Any prisoner, whether classified as a POW or not, can be tried for offenses, in- 
cluding those against international law. 

Fourth, there is a case for consideration of further revision of the existing 
law. Suggestions that the existing laws of war are generally out of date in the 
face of the terrorist challenge are wide of the mark. However imperfect, the 
law has played, and will continue to play, an important part in influencing the 
conduct of the "war on terror." There has neither been a serious suggestion 
that the existing legal framework should be abandoned, nor substantial pro- 
posals for an alternative set of rules. However, some modest evolutionary 
changes in the law can be envisaged, for example regarding conditions of ap- 
plication, the classification and treatment of detainees, the difficult problem 
of how to respond to suicide bombers, the problems of targeting, and possible 
new rules regarding remnants of war. The application of the law to non-inter- 
national armed conflicts is another area in which there has been much devel- 
opment since 1990 and more may be anticipated. Some changes in some of 
these areas may require a formal negotiating process. Some, however, may be 
achieved — indeed, may have been achieved — by the practice of states and in- 
ternational bodies, including through explicit and internationally accepted 
derogations from particular rules that are manifestly inappropriate to the cir- 
cumstances at hand; and also through the application of rules in situations sig- 
nificantly different from inter-state war. 

230 



E 




Panel II 
Commentary — Jus in Bello 



Charles Garraway 1 



All new warfare operates to stress existing law. This is true for every war 
and every conflict occurring over the last several hundred years. The 
new type of warfare involved in "the war on terrorism" is no exception. Caution 
should be taken, however, not to throw out the existing regime but instead we 
should study and analyze these stresses for such stresses are not necessarily 
fatal. 

There is always a danger, amply demonstrated over the last few months, of 
decisions being taken and then followed by legal justifications. This in itself 
creates further dangers as it may lead to conflicting reinterpretations of exist- 
ing law. For example, we have discussed the differences between Europe and 
the United States. However, despite these differences, the end result is often 
exactly the same. The departing point is in how European countries arrive at 
their conclusions since they have different drivers, different legal regimes 
(both national and international), different cultures, and different popula- 
tions. It follows occasionally then, that the European legal justifications for an 
action may be quite different from that of the United States. This of course 



1. Colonel Charles Garraway is currently serving in the Ministry of Defence of the United 
Kingdom, advising on issues of international law. 



Panel II Commentary — Jus in Bello 



itself creates some danger as there are then two, or more competing legal jus- 
tifications. Undoubtedly, states on both sides of the Atlantic would benefit 
from more consultation and coordination before particular positions are 
adopted. 

I agree with Professor Dinstein that existing law is adequate for the issues 
presented today. I also agree that the principle of distinction is fundamental 
and absolutely vital when determining combatant status. However, I do not 
agree with Professor Dinstein on everything. The law of armed conflict is de- 
signed to have a greater degree of flexibility than national law because law, in 
many respects, always focuses on the last conflict. Accordingly, there is a re- 
quirement for built in flexibility so that we can apply the law designed for the 
last conflict to the new situation. 

The definition of armed forces has for generations been based on tradi- 
tional forms of armies. I am talking here about regular armed forces. In some 
parts of the world today though, we are returning almost to the Middle Ages 
and seeing feudal types of armed forces with warlords raising their own forces 
in much the same way as the barons did against King John. Accordingly, the 
notion of a structured, disciplined armed force is not reflected in the militaries 
of some states today. The question regarding these forces then becomes one of 
status and treatment under the law of armed conflict. 

Should these forces be treated as militias and therefore be defined as com- 
batants under the Hauge Regulations, Geneva Conventions, and their Proto- 
cols or as something else? Must we re-interpret what is meant by the term 
"armed forces?" Professor Dinstein chooses a tried and true method in deter- 
mining that the Taliban are not members of the armed forces of a high con- 
tracting party to the Geneva Conventions and are therefore not entitled to 
the protections and privileges of combatancy. I, however, believe that there is 
grave danger in the position that has been taken that no Taliban members are 
entitled to prisoner of war status once captured as this position may rebound 
on the developed countries of the world in future conflicts. It seems somewhat 
strange to have an armed conflict in which one side, by definition, is made up 
entirely of "unprivileged belligerents." 

Regarding the presentation of Professor Adam Roberts, I agree that simply 
because a war is started by a state, that state does not become responsible for 
everything occurring during the course of the war. I further agree that force 
applied in the current "war on terror" must be proportionate in nature. Pro- 
portionate here is used in a different context to the way it is used when dis- 
cussing pure jus in bello concepts of course. 



232 



Charles Garraway 



Terrorism occupies the zone between criminal law and the law of armed 
conflict. Sometimes terrorism is solely within one or the other of these realms. 
However, the current situation is one where substantial overlap exists be- 
tween the two competing and somewhat conflicting legal regimes. When such 
an overlap exists, there is also the very real danger of gaps in coverage between 
the two systems. 

An ad hoc approach to interpreting treaty obligations is one method dem- 
onstrated lately. The danger with such an approach is that your standing to 
protest the treatment of your own service members is weakened when you do 
not apply the Geneva Conventions to those who seem to fall within them. A 
perfect example of this is the US position on the "detainees" held in Guan- 
tanamo Bay, Cuba. As we all know, prisoners of war are subject to the rules 
and regulations of the armed forces of the detaining party. This would 
ordinarily mean trial by courts-martial. However, in the same way that service 
personnel cannot ordinarily be tried by military courts for pre-enlistment of- 
fences, so prisoners of war will not be subject to court-martial jurisdiction for 
offences prior to their capture. 2 This principle seems to force states back to 
their civil courts for jurisdiction over detainees. However, the United States 
has clearly stated that it will use military commissions and not prosecutions in 
its federal courts. Using military commissions is entirely consistent with the 
law of armed conflict provided they apply to all who commit war crimes, of 
whatever nationality. It seems that this issue may have been misapprehended 
when the issue of the designation of Taliban members as prisoners of war or 
detainees initially surfaced. 

Finally I would just like to quote from the US Joint Chiefs of Staff Standing 
Rules of Engagement, dated January 15th, 2000: "U.S. Forces will comply with 
the law of war during military operations involving armed conflict no matter 
how the conflict may be characterized under international law and will com- 
ply with its principles and spirit during all operations." 3 That is a simple and 
clear instruction to commanders and to soldiers. I think those instructions are 
sensible and that we move away from them at our own peril. 



2. See generally Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 12, 
1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, Chap. Ill - Penal and Disciplinary 
Sanctions, reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard GuelfT 
eds.,3rded., 2000) at 243. 

3. CHAIRMAN JOINT CHIEFS OF STAFF INSTR 3121.01 A STANDING RULES OF ENGAGEMENT 
FOR U.S. FORCES, ENCLOSURE (A) A-9, (15 Jan 2000). 

233 




Panel II 
Commentary — Jus in Bello 

Leslie Green 1 



T 



he first issue to be considered when examining the impact of the law oi 
armed conflict on the war against terrorism is the nature of that war. 
Immediately after the September 1 1th attacks, President George W. Bush de- 
clared that we were now involved in a "war against terrorism — the first war oi 
the twenty-first century." 2 Moreover, President Bush subsequently declared 
that those "who are not with us are against us," thus negating any possibility 
that those failing to see eye to eye with him could claim to be neutrals as would 
be the case if this were a traditional war. 3 Prima facie, the President's statement 



1. Leslie Green is Professor Emeritus of International Law at the University of Alberta, Canada. 

2. President George W. Bush, Remarks by The President Upon Returning to the White House 
(Sep. 16, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010916-2.html, 
(Sep. 23, 2002). 

3. President George W. Bush, Remarks by the President to the Employees of the Department of 
Labor (Oct. 4, 2001), available at http://www.whitehouse.gov/news/releases/2001/10/2001 1004- 
8.html (Sep. 23, 2002). Note that the concept of neutrality is markedly changed when dealing 
with a UN Security Council Resolution calling upon all member nations to use force to achieve 
a certain objective. In this instance, the traditional concept of neutrality does not apply. 



Panel II Commentary — Jus in Bello 



implied that any state not supporting the United States would be considered an 
"enemy" of the United States. 

A major difficulty with the President's approach is that the attacks of Sep- 
tember 1 1th, organized by non-state actors, were not the acts of a state trigger- 
ing the traditional notion of self-defense against an act of aggression or a 
breach of the peace as outlined in Article 51 of the UN Charter. 4 Tradi- 
tionally, and in accordance with the normally understood rules of interna- 
tional law, war is an armed conflict conducted by the organized armed forces 
of two or more contesting states. After the events of September 11th, there 
was no opposing "state" upon which to declare "war." In other words, the 
President's statement that "we are at war" seemed more to be political rheto- 
ric, possessing certain similarities to the language used in the past in relation 
to the "war against poverty" or the "war against drugs." 

The fundamental difference in this case from these other "wars" though 
is the determination of the United States to resort to armed force and to pur- 
sue and destroy or bring to justice the offenders identified as members of the 
al Qaeda terrorist group led by Osama bin Laden. This group had its head- 
quarters in Afghanistan, a state governed by a de facto administration 
known as the Taliban. The Taliban was not the actual government of Af- 
ghanistan but instead was a group in possession of much of the territory of Af- 
ghanistan. The only government of Afghanistan legitimately recognized by 
the UN was the Northern Alliance. In fact, the Taliban administration had 
achieved only minimal recognition as the government of the country, only 
gaining official recognition of such status by Pakistan and two other Muslim 
states. 5 Shortly after the United States began its operations, even those states 
recognizing the Taliban as the legitimate government of Afghanistan with- 
drew their recognition. 6 

When the Taliban authorities rejected a demand that they capture Osama 
bin Laden and his leading henchmen and hand them over to the United 
States for trial and punishment, the American authorities decided to engage 



4. U.N. Charter an. 51. 

5. The two other states recognizing the Taliban as the legitimate government of Afghanistan 
on September 11th were Saudi Arabia and the United Arab Emirates. Both Saudi Arabia and 
the United Arab Emirates severed ties with the Taliban very quickly after September 11th. 
Pakistan did not do so until November 22, 2001. See Pakistan Shuts Down Taliban Embassy, 
USA TODAY, Nov. 22, 2001, available at http://www.usatoday.com/news/attack/2001/ll/22/ 
taliban-embassy.htm#more (Sep. 23, 2002). 

6. Id. 

7. President George W. Bush, Presidential Address to the Nation (Oct. 7, 2001) (transcript 
available at http://www.whitehouse.gov/news/releases/2001/10/2001 1007-8.html) (Sep. 23, 2002). 

236 



Leslie Green 

in self-help, invading Afghanistan. 7 This action was undertaken without re- 
sort to the Security Council but did receive general international support from 
a variety of states, particularly after al Qaeda made it clear that their terror 
campaign was not necessarily restricted to American targets. Given that the 
United States decided to use force against not only al Qaeda but also the 
Taliban administration, it might have been presumed that the law of armed 
conflict regarding prisoners of war and the application of the principles of dis- 
tinction and proportionality would come into play. 

The attacks against the Pentagon and the World Trade Center were clear 
threats to the sovereignty and security of the United States. While it may be 
argued that the attack on the World Trade Center was primarily directed 
against private, non-governmental interests and thus not prima facie aimed at 
the state, this cannot be the case as regards the Pentagon. The attack on the 
Pentagon was clearly aimed at the very heart of American governmental pro- 
cesses, thus constituting a threat to the very existence of the state. Such an at- 
tack clearly entitled the United States to expect authorities of states in which 
the perpetrators or their supporters reside to cooperate in seeking them out. 
The failure of the Taliban administration to do so opened the way for the 
United States to engage in self-help. Such self-help, though, would be limited 
solely against al Qaeda bases and any Afghan organization clearly associated 
with al Qaeda or supporting al Qaeda. The authority to target the Taliban ad- 
ministration itself would require proof of a close relationship between the 
Taliban itself and al Qaeda. 

At the same time that the United States was beginning its attacks, it was 
building a coalition of nations. Propaganda by al Qaeda and previous terrorist 
acts directed against US embassies as well as a US warship made it clear that 
the events of September 11th were part of a continuum. Intelligence reports 
suggested that similar attacks were likely to follow, making it easier for other 
states to support the US efforts. Such states based their efforts upon the prin- 
ciple of collective self-defense, including the right of preventive and even an- 
ticipatory self-defense. Within this coalition, however, some issues developed 
as to. the application of the law of armed conflict to certain personnel. 

While the United States never declared "war" as such, the bombing and 
subsequent land offensive by it and allies such as Canada and the United King- 
dom amounted to an armed conflict within the terms of the Geneva 



8. See Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 
2, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III] reprinted in 
DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) at 
243 [hereinafter DOCUMENTS ON THE LAWS OF WAR]. 

237 



Panel II Commentary — Jus in Bello 



Conventions of 1949. 8 This seems particularly to be the case regarding Taliban 
members and installations under the control of the Taliban. Once operations 
evolved to the point that they were directed at al Qaeda and at the replace- 
ment of the Taliban with the Northern Alliance, the Geneva Conventions be- 
came relevant. Despite the absence of a declaration of war, the actual fact oi 
conflict was enough to invoke the fundamental principles of the law of armed 
conflict, particularly those of proportionality and distinction. 
By Article 2, common to all four Conventions: 

the present Convention shall apply to all cases of declared war or of any other 
armed conflict which may arise between two or more of the High Contracting Parties 
even if the state of war is not recognized by one of them. The Conventions shall also 
apply to all cases of total or partial occupation of the territory of a High Contracting 
Party, even if the said occupation meets with no resistance. Although one of the 
Powers in conflict may not be a party to the present Convention, the Powers 
who are parties thereto shall remain bound by it in their mutual relations. 9 

In accordance with the normal law concerning treaties, the Taliban admin- 
istration would be bound in the same way as the Northern Alliance, against 
which it would be considered a rebel authority, with its forces entitled to the 
same rights and subject to the same duties as the forces of the legitimate 
Afghan government, the Northern Alliance. It might have been expected 
that allies of the legally recognized authority capturing Taliban personnel 
would hand such captives over to the Northern Alliance for trial or detention, 
as was the customary practice of the United States in its participation in hos- 
tilities on behalf of the Republic of Vietnam. In this case, however, the United 
States treated all captives, whether supporters of the Taliban or al Qaeda, as 
potential terrorists. 

This ignored the fact that while the Taliban authorities might, due to their 
failure to cooperate in seeking out al Qaeda personnel, constitute a legitimate 
target, it does not follow that every member of the Taliban forces falls within 
the same category. Ample evidence exists to indicate that many of the rank 
and file Taliban were orthodox, if not fundamentalist, followers of Islam who 
had taken up arms only against the Northern Alliance. 

As a consequence of this policy, the United States announced that it was 
not going to treat any captive or detainee as a prisoner of war, nor apply to 



9. Id. (italics added). 

10. Ari Fleisher, Press Briefing, Office of the Press Secretary (Jan. 31, 2002), available at http:// 
www.whitehouse.gov/news/releases/2002/01/20020128-l l.html#prisoners%20down%20in 
%20Guantanamo%20Bay (Sep. 24, 2002). 

238 



Leslie Green 

them the protection of Geneva Convention III relating to the treatment of 
prisoners of war. 10 Not all coalition members of the US campaign favored this 
policy, as the United Kingdom, Australia, and Germany registered concerns 
about the lack of adherence to the Geneva Convention on Prisoners of War 
(GC III). 11 Despite these protests, the United States refused to consider any 
detainees as potential prisoners of war. 

Article 4 of the Convention provides in part that: 

[pjrisoners of war . . . are persons belonging to one of the following categories, 
who have fallen into the power of the enemy: 

(1) Members of the armed forces of a Party to the conflict as well as members of 
militias or volunteer corps forming part of such armed forces. 

(2) Members of other militias and members of other volunteer corps, including 
those of organized resistance movements, belonging to a Party to the conflict and 
operating in or outside their own territory, even if this territory is occupied, 
provided that such militias or volunteer corps, including such organized 
resistance movements, fulfill the following conditions: 

(a) that of being commanded by a person responsible for his subordinates; 

(b) that of having a fixed distinctive sign recognizable at a distance; 

(c) that of carrying arms openly; 

(d) that of conducting their operations in accordance with the laws and 
customs of war. 

(3) Members of regular armed forces who profess allegiance to a government or 
an authority not recognized by the Detaining Power. 12 



11. See, e.g., Coalition at Odds over Cuban Camp, THE SCOTSMAN, 1, Jan. 21, 2002, available 
at http://news.scotsman.com/archive.cfm7id = 75 1 62002 &rware=HYRBHPXMUZMV&CQ_ 
CUR_DOCUMENT=4 (Sep. 24, 2002); Rocks, stones found in cells - War on Terror Letters to a 
Missing Son, THE DAILY TELEGRAPH, Jan. 28, 2002, available at LexisNexis, Major World 
Newspapers (Sep. 24, 2002). The United States changed this initial approach on February 7, 
2002 when the Office of the Press Secretary released a fact sheet stating that "ft] he President has 
determined that the Geneva Convention applies to the Taliban detainees, but not to the al 
Qaeda detainees" but that "[u]nder the terms of the Geneva Convention, however, the Taliban 
detainees do not qualify as POWs" and "therefore neither the Taliban nor al Qaeda detainees are 
entitled to POW status." Office of the Press Secretary, Fact Sheet - Status of Detainees at 
Guantanamo, February 7, 2002, available at http://www.whitehouse.gov/news/releases/2002/02/ 
20020207-13.html (Sep. 24, 2002). 

12. See GC III, supra note 8 at art. 4. 



239 



Panel II Commentary — Jus in Bello 



Note that this article makes no reference to parties to the Convention, but re- 
fers solely to parties to the conflict. Paragraph 3 is significant for those opposing 
the Taliban or seeking al Qaeda members since it expressly refers to the forces 
of an authority unrecognized by a captor. As to paragraph 2, it seems that vari- 
ous Taliban units were under a proper command and may have been wearing a 
distinctive insignia as they wore a black head-covering of a similar type. These 
Taliban supporters carried their arms openly and it is not known whether they 
complied with the laws and customs of war as there were no real land opera- 
tions allowing for this to be studied. 

Further coalition problems arose regarding the actions of the United States 
when studying other articles of this convention. Article 5 provides: 

[t]he present Convention shall apply to the persons referred to in Article 4 from 
the time they fall into the power of the enemy and until their final release and 
repatriation. 

Should any doubt arise as to whether persons, having committed a belligerent 
act and having fallen into the hands of the enemy, belong to any of the 
categories enumerated in Article 4, such persons shall enjoy the protection of 
the present Convention until such time as their status has been determined by a 
competent tribunal. 13 

To date, not a single Article 5 hearing has been undertaken by the United 
States, nor are such hearing likely to take place in the future. The United 
States has taken the position that such hearings are not required for Taliban 
or al Qaeda members as they fall so clearly outside the scope of Article 4 that 
there can be no question but that they are not entitled to the protection of the 
Convention. 

Additionally, although the United States has announced it is establishing 
special military commissions for the trial of these "detainees," trials have yet to 
take place. In fact, no charges have even been made public. Finally, it is un- 
clear what crimes, if any, the majority of Taliban members detained at 
Guantanamo Bay have actually committed. 



13. See GC III, supra note 8 at art. 5. 

14. This is particularly true for those allies who have ratified Additional Protocol I which 
increases the types of people considered to be lawful combatants and imposes additional 
obligation on holding powers. See, e.g., 1977 Geneva Protocol I Additional to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 8 at 419. 

240 



Leslie Green 

This policy of refusing to treat detainees as required by the Third Geneva 
Convention has caused problems for US allies such as Canada and the United 
Kingdom. 14 By way of example, though Canada has not declared war, its policy 
is that its forces will at all times observe the law of armed conflict as recog- 
nized by Canada. 15 As debate developed in Canada as to the application of the 
Third Geneva Convention to detainees, Taliban members captured by Cana- 
dian Forces were turned over to the United States. 16 Such transfer was clearly 
in breach of Canadian obligations in Article 12 of the Third Geneva Conven- 
tion which provides that: 

[pjrisoners of war may only be transferred by the Detaining Power to a Power 
which is a Party to the Convention and after the Detaining Power has satisfied 
itself of the willingness and ability of such transferee Power to apply the 
Convention. . . . [I]f that Power fails to carry out the provisions of the 
Convention in any important respect, -the Power by whom the prisoners of war 
were transferred shall, upon being notified by the Protecting Power, take 
effective measures to correct the situation or shall request the return of the 
prisoners of war. Such requests must be complied with. 17 

Though no Protecting Power existed in this case, the United States had made it 
clear that it would not apply the protections of GC III to these detainees. Nev- 
ertheless, no Canadian request for the return of these prisoners was ever 
made, 18 causing an apparent breach of GC III by Canada. 

A singular lesson exists from these problems. As situations like these de- 
velop where a need exists to take combined action outside the umbrella of the 
UN, great care should be taken as early as possible to agree upon policies that 
will effectively deal with these types of issues to the satisfaction of all coalition 
members. 



15. See Code of Conduct for CF Personnel, Office of the Judge Advocate General, October 20, 
1999, p. 2, available at http://www.dnd.ca/jag/jag_pdf_docs/codeconduct_chlto3_e.pdf (Sep. 
24,2002). 

16. See Tim Naumetz, Prisoner Furor Dogs Grits, CALGARY HERALD, p. Al Qan. 30, 2002), 
available at LexisNexis, Major World Newspapers (Sep. 24, 2002). 

17. GC III, art. 12, supra note 8. 

18. Interestingly, the United Kingdom transferred personnel falling into the hands of its forces 
operating in Afghanistan to the Northern Alliance, as the legitimate government of that 
country, which was entitled to treat such persons in accordance with its own laws, such as there 
might be. 

241 




Panel II 
Commentary — Jus in Bello 



T 



Tony Montgomery 1 



he principle of distinction is a fundamental component of the law of 
armed conflict. Attackers must adhere to this principle in selecting tar- 
gets for destruction. What is not appropriately stressed in the literature and 
commentary is that this same principle applies to the defender as well as to the 
attacker. Routinely, the enemies of the United States — the Saddam Husseins, 
the Slobodan Milosevics, and the Taliban — place military equipment in the 
middle of protected areas containing civilians. As is well known, this is a viola- 
tion of the law of armed conflict yet the United States constantly finds itself 
struggling with such difficult targeting issues because of these illegal acts by the 
enemy. 2 

Cloaking such targets behind civilians and in protected places does not, 
however, deprive the target of its military utility. Greater discussion of the re- 
sponsibility of the defender to segregate such military targets from civilians 



1 . Lieutenant Colonel Tony Montgomery is the Deputy Staffjudge Advocate for the US Special 
Operations Command. 

2. See 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and 
Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 
12, 1977, 1125U.N.T.S. 1, art. 51(7), reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam 
Roberts and Richard Guelff eds., 3rd ed., 2000) thereinafter DOCUMENTS ON THE LAWS OF 
WAR] at 419. 



Panel II Commentary — Jus in Bello 



and protected places would be helpful to those who engage in the business of 
targeting. 

On September 1 1th, I was a member of the Office of the Staff Judge Advo- 
cate for the US Special Operations Command. Recognizing that the terrorist 
acts perpetrated on September 1 1th would quickly elicit a response from our 
nation, my office began searching for use of force parallels that might apply. 
One we found that proved to be of great utility was an article dealing with the 
use of force in guerilla warfare. 3 Many might denounce any sort of similarity 
between guerilla war and the Global War on Terrorism. I suggest, however, 
that the concepts are far more similar than dissimilar. 

From an application of force perspective, my office came to several conclu- 
sions. Our first conclusion was that our forces should apply the law of armed 
conflict in the face of the events of September 1 1th. United States forces have 
familiarity with these laws; they train using these laws and are comfortable ad- 
hering to them. Secondly, US public support of military operations is stronger 
when our forces adhere to the law of armed conflict. Lastly, US adherence to 
the law of armed conflict also helps ensure the support of US allies. These 
were provided to our commander explaining why the US response to the at- 
tacks should comply with the law of armed conflict. 

Another controversial area we have been facing is the requirement to wear 
uniforms while conducting military operations in Afghanistan. A critical com- 
ponent of receiving the privileges accorded a lawful combatant by the Geneva 
Conventions is that, amongst other things, the individual wears a "fixed dis- 
tinctive sign recognizable at a distance." 4 

The mission o( US special operations forces is to plan, prepare for, and 
when directed, deploy to conduct unconventional warfare, foreign internal 
defense, special reconnaissance and direct actions in support of US national 
policy objectives within designated areas of responsibility. 5 There are many 
types of forces within the US Special Operations Command and each force 
has a different focus and mission. Some of our forces are designed for large 
scale operations and will always be in uniform while conducting operations. 
Others, however, have mission profiles that require smaller groups to conduct 



3. Ken Brown, Counter -Guerilla Operations: Does the Law of War Proscribe Success?, 44 NAV. L. 
REV. 123 (1997). 

4. See Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 
U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, art. 4(2) (b), reprinted in DOCUMENTS ON THE 
LAWS OF WAR, supra note 2, at 234. 

5. 10 U.S.C. §167(2000). 

244 



Tony Montgomery 



more unconventional types of warfare. These sorts of operations often will re- 
quire our forces to live with the indigenous force conducting the campaign. 

In Afghanistan, this was the Northern Alliance. As was made clear in the 
photographs broadcast by the media, many US forces, to blend in and to gain 
credibility, adopted at least some parts of the uniform worn by members of the 
Northern Alliance. Our office provided advice within our command on the 
requirement for our forces to wear a fixed, distinctive insignia in compliance 
with the Geneva Conventions. Our advice was that although for good opera- 
tional reasons our forces might need to adopt some of the uniform of the 
Northern Alliance, they must still have some type of insignia distinctive to the 
United States. Judging from the photographs displayed by the media, this is 
still an issue needing resolution. Our office continues to believe that wearing 
this fixed distinctive insignia is required by the Third Geneva Convention and 
operates to protect our forces more than it does to identify them as targets. 

One final thought based on comments I have read and heard today has to 
do with the relevancy of the existing laws of armed conflict and the US com- 
mitment to comply with those laws. The United States has recently with- 
drawn from the Anti-Ballistic Missile Treaty; will not ratify the Rome Statute 
enacting the International Criminal Court; has interpreted the Third Geneva 
Convention to not require Article 5 tribunals for determining the status of de- 
tainees currently confined in Guantanamo Bay, Cuba; is reviewing our policy 
on the use of nuclear weapons; and has announced a policy of preemptive re- 
sponse to threats to our security. The events of September 11th truly did 
change things. And, I for one do not believe we yet understand the magnitude 
of that change. The basis for the modern laws of war was after a time of great 
horror and reflect the thinking of that time. Have times changed to the point 
that those rules, restrictions, inhibitions are no longer sufficient? Or, is it sim- 
ply that the United States needs a set of rules for its activities, with everyone 
else following the old rules? Whatever the case, the United States will con- 
tinue to protect its citizens and sovereignty. 



245 



XII 



Panel II 
Discussion — Jus in Bello 



On the Overlap Between Jus ad Bellum and Jus in Bello 

Yoram Dinstein 

The jus as bellum and the jus in bello are two distinct bodies of law, and there is 
no overlap between them. First of all, the aggressor (pursuant to the jus ad 
bellum) may conduct hostilities in an impeccable way from the standpoint of 
the jus in bello, and the state resorting to self-defense (under the jus ad bellum) 
may conduct hostilities in a manner incompatible with the jus in bello. True, 
sometimes the same party is held accountable for flagrant aggression (under the 
jus ad bellum) and for the most horrendous war crimes (in violation of the jus in 
bello). The paradigmatic case is the Nazi record in World War II. But even 
here, let us not forget that the Nazis were not the only ones who disregarded the 
jus in bello. The Soviet march to Berlin in 1945 was regrettably accompanied 
by hundreds of thousands of cases of rape of German women. 1 These grave 
breaches of the jus in bello do not diminish one iota from the fact that it was 
Germany that invaded the USSR in Operation BARBAROSSA in June 1941. 
Consequently, responsibility for the war of aggression (in conformity with the 
jus ad bellum) was incurred exclusively by the Nazis. 

Secondly, the issue of proportionality — which is of consequence both in the 
jus ad bellum and in the jus in bello — has a totally different meaning in each 
body of law. In the context of the jus in bello, proportionality denotes that col- 
lateral damage to civilians must not be excessive compared to the military 



l. Anthony beevor, The Fall of Berlin, 1945 (2002) 



Panel II Discussion — Jus in Bello 



advantage anticipated in the attack. This requires a balancing act between the 
expected casualties among combatants and civilians. Insofar as the jus ad 
bellum is concerned, there is also a balancing act between casualties sustained 
in an armed attack and in a defensive armed reprisal carried out in response. 
However, if we are talking about war of self-defense in response to an armed at- 
tack of a critical nature, no such balance is required. The best example is that 
of Pearl Harbor and the Pacific War. The Japanese attack of 7 December 
1941 was of critical significance, since it altered the entire strategic situation 
in the Pacific. Hence, it justified the American declaration of war in self- 
defense. As we all know, by the time the Pacific War was over, there was no 
proportion between the number of American casualties sustained in Pearl Har- 
bor (or for that matter thereafter) and the countless Japanese losses through- 
out the war and especially towards the end (when Japanese cities were 
pulverized by both conventional and unconventional weapons). The issue of 
proportionality in losses and counter'-losses was irrelevant under the jus ad 
bellum. Once the Japanese attack in Pearl Harbor justified a war of self-defense 
on the part of the United States, that war could be fought — as it was — to the 
finish, irrespective of total numbers of casualties. 

Adam Roberts 

I believe there is some overlap between jus ad bellum and jus in bello when it 
comes to the impact that they have in public debate. They are not in entirely 
separate watertight compartments. Charles Garraway put it particularly clearly 
when he quoted from the US Standing Rules of Engagement that it remains 
crucially important that irrespective of the circumstances in which a war be- 
gins, irrespective of the jus ad bellum, the jus in bello be observed. It is not my 
position that these two areas be completely confused with each other, merely 
that there is some degree of overlap occurring inevitably in public debate. 

On the Power of the Security Council 

Yoram Dinstein 

In accordance with the UN Charter, members of the organization are bound to 
carry out decisions of the Security Council, especially in matters affecting peace 
and security. 2 In practice, when the Security Council states in a resolution that 
it is acting under Chapter VII of the Charter, 3 this is understood to mean the 



2. U.N. Charter, arts. 25, 48. 

3. U.N. Charter, arts. 39-51. 



248 



Panel II Discussion — Jus in Bello 



text is binding. Moreover, Article 103 of the Charter proclaims that, in the 
event of a conflict between the obligations of member states under the Charter 
and their obligations under any other treaty, the Charter obligations prevail. 
The upshot is that, when the Security Council creates obligations for a member 
state thorough a legally binding decision, the state has to observe the Security 
Council decree irrespective of any other conflicting obligation. The conflicting 
obligation may be derived from the Geneva or Hague Conventions governing 
the law of armed conflict. Notwithstanding their venerated status, these instru- 
ments must give ground to any obligation based on the Charter. This actually 
happened in 1990, in the Gulf War with Iraq, when the Security Council im- 
posed a blockade going beyond the general rules regulating blockade in armed 
conflict. The Security Council had the authority to do this by virtue of Article 
103 of the Charter. 

On the Nature of the Current Conflict in Afghanistan 

Yoram Dinstein 

Unlike pirates who operate on the high seas, terrorists always operate from 
within a state. They may mount their attack against targets in the same state or 
they can use their bases in that state for attacks against other states. Interna- 
tional law obligates a state not to allow its territory to be used as a springboard 
for attacks by terrorists against another state. If the local state in unable to elim- 
inate the terrorists, that does not mean that the aggrieved state must sit idly by. 
In the absence of effective action by the local state, the aggrieved foreign state 
may send an expeditionary force into the territory of the state where the terror- 
ists have their bases, with a view to taking them out. But then all action must be 
directed against the terrorists, and not against the local government. 

The question in Afghanistan was not simply whether the United States 
could enter its territory in order to eradicate al Qaeda. The question was 
whether the United States could target only al Qaeda fighters on Afghan soil 
or also members of the Taliban forces. In my opinion, the Taliban opened 
themselves up to an American use of force because the regime ratified the ac- 
tions of al Qaeda of 11 September 2001. Between September 11th and Octo- 
ber 7th, the United States tried to persuade the Taliban to extradite bin 
Laden and otherwise disassociate themselves from al Qaeda. The Taliban ig- 
nored this pressure and refused to cooperate with the United States despite 



249 



Panel II Discussion — Jus in Bello 



the warnings by the United States and the strong language used in Security 
Council Resolution 1373. 4 Thereby the Taliban regime aligned itself with al 
Qaeda and turned its own forces into legitimate targets for American action in 
self-defense against the armed attacks of September 11th. 

An analogy for this type of retroactive ratification by a government of the 
misdeeds of non-state actors can be found in Iran in 1979. The Ayatollah's re- 
gime in Iran in 1979 — just like the Taliban regime in Afghanistan in 
2001 — endorsed unlawful action against the United States by non-state ac- 
tors. In 1979, that unlawful action consisted of the takeover of the US em- 
bassy by militant students. In 2001, it was the al Qaeda outrages of September 
11. In both instances, the original armed attack was carried out by fanatics 
without the apparent advance approval of the local government (the 
Ayatollah's and the Taliban, respectively). But in both instances, the local 
government assumed full responsibility for the armed attack, and exposed it- 
self to counteraction by way of self-defense. In the case of Iran, the US coun- 
teraction was ineffective. In the case of Afghanistan, the US counteraction 
brought an end to the Taliban regime. 

On Shielding Military Targets with Noncombatants 

Yoram Dinstein 

Using civilians to shield military targets is clearly a very serious violation of the 
jus in bello. the question is whether, in light of the presence of the human 
shields, the other belligerent party must abort an attack against the military tar- 
get, bearing in mind the expected high number of civilian casualties which is 
likely to ensue. In my opinion, in such instances, the proportionality principle 
(which forbids excessive collateral damage to civilians) need not be applied in 
the usual manner. Much more latitude has to be given to the attack, because 
the high number of civilian casualties is deliberately induced by the enemy. 
That is to say, an attack that would otherwise be unlawful due to excessive col- 
lateral damage to civilians would be permissible when caused by the enemy's 
abuse of the law. When shielding a military target with civilians, the blood of 
the civilians will normally stain the hands of the defending rather than the 
attacking side. 



4- Resolution 1373 required, amongst other things, that states shall "refrain from providing any 
type of support ... to entities or persons involved in terrorist attacks." See S. C. Res. 1373, U.N. 
SCOR, 56th Sess., U.N. Doc. S/1373/(2001) 

250 



Panel II Discussion — Jus in Bello 



On the Currency of the Law of Armed Conflict 

Adam Roberts 

There currently exists a problem with certain areas of the law of armed conflict. 
This may partly be a problem of some international agreements concluded with 
considerable pressure from non-governmental organizations and international 
governmental organizations that have considerable support from legal reform- 
ers but about which major powers that may have to engage in war have strong 
reservations. There is a possible disjunction there that needs to be taken seri- 
ously. I am not suggesting that the existing body of law is perfect. For example, 
the UK's reservations to Geneva Protocol I are extremely long and comprehen- 
sive. And in my view, despite the recent movement by negotiators to attempt to 
limit reservations to treaties such as the International Criminal Court, it is pre- 
posterous to prohibit reservations. Any major military power should and will be 
able to make reservations in some form. However, suggesting that there is a 
need for completely new law dealing with terrorist operations may be too much; 
a more evolutionary kind of approach based on the practice of states in custom- 
ary international law may be more appropriate. 

Unprivileged Combatants 

Yoram Dinstein 

Civilians who choose to act as combatants without wearing uniforms (or other 
fixed distinctive emblems) do not commit war crimes. But they expose them- 
selves to attack as combatants, and, most significantly, they are deemed unlaw- 
ful (or unprivileged) combatants and therefore are not entitled to the status of 
prisoners of war. Absent that status, they can be detained or put on trial by do- 
mestic courts for ordinary crimes such as murder, assault, or arson. The same 
rule applies to combatants who fight out of uniform, do not carry their arms 
openly, etc. The latter rule determines the fate of Taliban and al Qaeda fighters 
(currently in Guantanamo Bay and other places of detension). But it is equally 
true of Central Intelligence Agency (CIA) operatives and other Americans 
who participated in hostilities in Afghanistan out of uniform. Had they been 
captured by the enemy, they would have not qualified for protection under the 
Geneva Convention (III) Relative to the Treatment of Prisoners of War. 

The decision to forego protection pursuant to the jus in bello may be delib- 
erate. There is a cost/benefit calculus, and the CIA probably reached the con- 
clusion that it was willing to run the risk (especially since, in any event, the 
Afghan reputation in terms of compliance with the Geneva Convention in 

251 



Panel II Discussion — Jus in Bello 



regards to prisoners of war leaves a lot to be desired). There are other in- 
stances in which risks are deliberately assumed in view of the constraints of 
the situation. For example, in some armed conflicts, the enemy is known to 
concentrate fire on members of the medical personnel in the field, who are 
wearing the distinctive armband of the Red Cross (or its equivalent). A num- 
ber of armed forces therefore instruct their medical personnel to remove their 
armband. There is nothing wrong with such instructions, but it must be borne 
in mind that the consequence is liable to be loss of protection under the 
Geneva Conventions. 0( course, once they remove their armbands and lose 
the protection afforded by the Conventions, members of the medical person- 
nel may as well behave as full-fledged combatants (actively participating in 
hostilities), neither seeking nor dispensing any protection from attack. 

Charles Garraway 

I am not convinced that a medic 'can actually give up his protection. He 
may choose not to wear the armband that indicates that he is protected under 
the Geneva Conventions but the fact remains that if he is a medic engaged in 
full-time medical duties, he is entitled to the protections of the Geneva Con- 
ventions. The difficulty arising from not wearing an armband is one of distinc- 
tion for the enemy. However, if the enemy knows he is a medic and he is 
acting as a medic, despite the fact that he is not wearing a Red Cross armband, 
he may not be targeted. 

An issue related to this which causes much concern is that of the definition 
of combatants. As you know, combatants are by definition permitted to take a 
direct part in the hostilities and it seems that many states are taking a nar- 
rower and narrower view of what it means to take a direct part in hostilities in 
an effort to save costs by using civilians in positions historically filled by mem- 
bers of the armed forces. This issue is a fundamental one and should be further 
studied to determine what exactly is meant by taking a direct part in the 
hostilities. 



252 



Panel III 

Thursday — June 27, 2002 

8:30AM-12:30PM 

Maritime & Coalition Operations 

Moderator: 

Vice Admiral James Doyle 
US Navy (Ret.) 

Presenters: 

Professor Wolff Von Heinegg 
University of Frankfurt-Oder 

Professor Ivan Shearer 

Challis Professor of International Law 

University of Sydney 

Commentators: 

Commander Kenneth O'Rourke 
Judge Advocate, US Navy 
Chief, Operations Law Division 
United States Central Command 

Commander Neil Brown 
Royal Navy, United Kingdom 
Fleet Legal Advisor 
CINCFLEET, United Kingdom 

Wing Commander Paul Cronan 

Legal Advisor, Headquarters Australian Theatre 

Australian Defense Force 

Lieutenant Colonel Jean-Guy Perron 
Assistant Judge Advocate/Ottawa 
Canadian Forces 



XIII 



The Legality of Maritime Interception/ 
Interdiction Operations Within 

the Framework of 
Operation ENDURING FREEDOM 

Wolff von Heinegg 1 
Object and Purpose of Operation ENDURING FREEDOM 



W: 



hile Operation ENDURING FREEDOM covers a wide set of measures 
against international terrorism, the naval forces deployed to the 

Horn of Africa and in the sea areas around the Arab peninsula have a clear task 

to fulfil. Their assignment covers inter alia 

• control of sea traffic in the area; 

• guaranteeing the freedom and safety of navigation; 

• protection of endangered vessels; 

• disruption of supplies for terrorist groups, especially by preventing others 
from supporting and financing international terrorism; 

• elimination of terrorist command and training facilities; and 

• capture of international terrorists for the purpose of prosecuting them. 



1 . Wolff von Heinegg is a Professor of International Law at Europa-University in Frankfurt 
(Oder), Germany. 



The Legality of MIO in OEF 



The tasks presuppose a sound knowledge of the geography and of those 
present in the sea area concerned. The naval units, therefore, have to pre- 
cisely and comprehensively monitor sea and air traffic. Intelligence collection 
and surveillance by means of the electronic and other equipment on board 
such warships does not create any significant legal problems, since it does not 
interfere with the rights of other states. If such equipment is used during pas- 
sage in the territorial sea of another state, in principle, the prohibitions found 
in Article 19 of the UN Convention on the Law of the Sea (hereinafter LOS 
Convention) must be observed. 2 Activities "prejudicial to the peace, order or 
security of the coastal state" are, however, to some extent modified by the in- 
herent right of self-defense found in both Article 5 1 of the UN Charter and 
customary international law. As soon as there is reasonable grounds to believe 
a concrete threat against the vessel or its personnel exists, the warships are en- 
titled to take all measures necessary to neutralize or eliminate the threat. 



2. Article 19 of the UN Convention on the Law of the Sea provides that "[p]assage is innocent 
so long as it is not prejudicial to the peace, good order or security of the coastal State." Passage 
prejudicial to peace, good order or security of the coastal state includes a foreign ship engaging in 
any of the following activities: 

(a) any threat or use of force against the sovereignty, territorial integrity or political 
independence of the coastal State, or in any other manner in violation of the principles 
of international law embodied in the Charter of the United Nations; 

(b) any exercise or practice with weapons of any kind; 

(c) any act aimed at collecting information to the prejudice of the defence or security of 
the coastal State; 

(d) any act of propaganda aimed at affecting the defence or security of the coastal State; 

(e) the launching, landing or taking on board of any aircraft; 

(0 the launching, landing or taking on board of any military device; 

(g) the loading or unloading of any commodity, currency or person contrary to the 

customs, fiscal, immigration or sanitary laws and regulations of the coastal State; 

(h) any act of wilful and serious pollution contrary to this Convention; 
(i) any fishing activities; 

(j) the carrying out of research or survey activities; 

(k) any act aimed at interfering with any systems of communication or any other 
facilities or installations of the coastal State; 
(1) any other activity not having a direct bearing on passage. 
See U.N. Convention on Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), art. 19, reprinted in 

Barry Carter and Phillip Trimble, international Law Selected Documents 

(2001), at 553 [hereinafter INTERNATIONAL LAW SELECTED DOCUMENTS]. 



256 



Wolff von Heinegg 



Within a foreign territorial sea, replenishment at sea would be contrary to 
Article 19(g) of the LOS Convention, unless the coastal state expressly au- 
thorized it. All other activities, not listed in Article 19 UNCLOS are permit- 
ted. Importantly, coastal states may not require warships to notify them of 
their passage in advance or to make that passage subject to prior consent. 3 
This, a fortiori, holds true for transit passage through international straits, such 
as in the Strait of Bab el Mandeb. 

The purpose of this article is not to analyze each o{ these issues, however. 
Instead, the emphasis of this article is on the basis for, and legality of, maritime 
interception/interdiction operations. 

Legality of Maritime Interception/Interdiction Operations 

Given that flag states exercise exclusive jurisdiction over "their" vessels in 
sea areas beyond the territorial sea of third states, the question arises as to 
whether coalition members in the Global War on Terror may interfere with 
such vessels if the flag state has not consented or has expressly objected. 
Moreover, even if the flag state is obliged to tolerate maritime interception/in- 
terdiction operations (MIO) against its shipping, the applicable legal regime 
must be understood for such operations. This is particularly true today as al- 
though MIO is currently being conducted by the United States and coalition 
members in Operation ENDURING FREEDOM, the UN Security Council has 
neither imposed such an obligation on flag states nor expressly authorized the 
United States and its coalition members to conduct such operations. 

Legal Basis For MIO 

What then is the legal basis for the United States and coalition members con- 
duct of MIO in support of Operation ENDURING FREEDOM? It must first be em- 
phasized that international law permits interference with foreign ships, their 
cargo and their crew/passengers only when: 



3. In their joint statement agreed upon in Jackson Hole on 23 September 1989 the former Soviet 
Union and the United States emphasized that "the provisions of the 1982 United Nations 
Convention on the Law of the Sea, with respect to traditional uses of the oceans, generally 
constitute international law and practice and balance fairly the interests of all States." See 89 
DEPT. STATE BULL. 25f. (December 1989), reprinted in 14 LAW OF THE SEA BULLETIN, at 12 
(December 1989). 

257 



The Legality of MIO in OEF 



• a treaty rule exists that expressly provides for interference such as in the 
case of piracy 4 or severe pollution of the marine environment, 5 or 

• the interfering state finds itself in a special situation, i.e., in an international 
armed conflict. 6 

In the latter situation the parties of the conflict are not limited to visit, 
search, and capture of only enemy vessels. Rather, according to the law of 
maritime neutrality, 7 each state party may also take measures against vessels 
flying the flags of third/neutral states to include visit and search, capture, and 
in exceptional circumstances, even to the destruction of those vessels. 8 As 
long as these measures conform with the law of naval warfare and with the law 
of maritime neutrality, flag states must tolerate them. The reason for this re- 
quirement stems from the merging in certain aspects of the law of peace and 
the law of war. Given the existence of the UN Charter, the following consider- 
ations are now decisive: 

In the absence of a Security Council resolution affirmatively identifying the 
aggressor state, it remains essential, in view of the continuing object and pur- 
pose of international law to secure international peace and security, to pre- 
vent the escalation of an ongoing international armed conflict. This purpose 



4. See LOS Convention, supra note 2, at art. 105, reprinted in INTERNATIONAL LAW SELECTED 
DOCUMENTS at 582. Note, however, that the customary definition of piracy is broader than that 
agreed upon in the LOS Convention. See A. P. Rubin, The Law of Piracy, 63 INT'L L. STUD 305, 
337 (1988). For measures that may be taken against pirates, see S.P. Menefee, Foreign Naval 
Intervention in Cases of Piracy: Problems and Strategies, 14 INT'L J. MARINE AND COASTAL L. 353 
(1999). 

5. See, e.g., LOS Convention, supra note 2, at art. 220, para. 6, reprinted in INTERNATIONAL 

Law Selected documents at 621. See also, Myron H. Nordquist, United Nations 

CONVENTION ON THE LAW OF THE SEA 1982, A COMMENTARY, Vol. IV, at 301 (Dordrecht et 
al. eds., 1991); T. Treves, Intervention en haute-mer et navires etrangers, XLI ANNUAIRE 

francais de Droit international 651 (1995). 

6. For the measures that may be taken against (neutral) merchant vessels see SAN REMO 

Manual on International Law applicable to armed Conflicts at Sea. paras. 59, 

67, 118, 146 (Cambridge Univ. Press, 1995) [hereinafter SAN REMO MANUAL]. See also, W. 
HEINTSCHEL v. HEINEGG, SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG, at 363, 483, 
567, 582 (Berlin 1995) [hereinafter SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG]. 

7. The exact status of the traditional law of neutrality is far from clear. On the one hand, there 
are overlaps with political concepts of neutrality. On the other hand, the scope of applicability 
(only in a "war" strictu sensul) is highly disputed. Still, with regard to the maritime aspects of the 
law of neutrality some rules and principles have developed that are met by wide agreement. See, 
e.g., Helsinki Principles on the Law of Maritime Neutrality, in 68 INT'L L. ASSOC. REP. 497 
(1998) [hereinafter Helsinki Principles). 

8. Cf. SAN REMO MANUAL, supra note 6, at paras. 67, 1 18, 146. See also, SEEKRIEGSRECHT UND 
NEUTRALITAT IM SEEKRIEG, supra note 6, at 567, 582. 

258 



Wolff von Heinegg 



includes limiting and preventing the involvement of third states and their na- 
tionals, This indeed is the main objective of the law of maritime neutrality. On 
the one hand, according to that law, the parties to the conflict are, in princi- 
ple, obliged not to interfere with neutral vessels and aircraft. On the other 
hand, neutral vessels and aircraft are prohibited from contributing to the war- 
fighting efforts of one party to the disadvantage of the other party to the con- 
flict. 9 If neutral vessels and aircraft violate these rules designed to serve their 
protection, they lose their protected status. 10 

According to the law of maritime neutrality, the parties to the conflict are 
entitled to monitor neutral shipping and neutral aircraft in order to verify if 
they are abiding by the prohibitions on non-neutral service. Flag states must 
tolerate these measures 11 and possess very limited means to prevent the par- 
ties to the conflict from interference. 

Importantly, the foregoing principles only apply in international armed 
conflicts. In cases of inner disturbances and of internal armed conflicts the 
parties may not, beyond their own territorial sea, interfere with foreign ship- 
ping and aviation, unless the measures taken are in conformity with the law of 
the sea or with other rules of international law. 12 



9. See generally Chap. 7, ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON 
THE LAW OF NAVAL OPERATIONS (A. R. Thomas and James Duncan eds., 1999) (Vol. 73, US 
Naval War College International Law Studies) [hereinafter ANNOTATED SUPPLEMENT]. 

10. In this context, two situations must be distinguished: Neutral vessels actively participating 
in the hostilities or being integrated into the enemy's command, control and information system 
are legitimate military objectives in the sense of Article 52, para. 2 of Additional Protocol I and 
the corresponding customary law. See 1977 Geneva Protocol I Additional to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts, Articles 52(2), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 1 [hereinafter 
GP I] , reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelffeds., 
3rd ed., 2000), at 419 [hereinafter DOCUMENTS ON THE LAWS OF WAR]. Thus, such vessels 
may be attacked and sunk without prior warning. If, however, neutral merchant vessels merely 
assist the enemy, by, e.g., transporting contraband, they may only be captured and, if further 
preconditions are fulfilled, seized according to the law of prize. If the latter vessels resist capture 
they may also be considered legitimate military objectives. See ANNOTATED SUPPLEMENT, supra 
note 9, at para. 7.10. 

1 1 . Such measures include the stopping, visit, search and diversion (for the purpose of search) of 
merchant vessels. See SAN REMO MANUAL, supra note 6, at para 118; Helsinki Principles, supra 
note 7 at 5.2.1. 

12. Hence, the legality of measures taken by France during the Algerian crisis is at least 
doubtful. For an evaluation see L. Lucchini, Actes de contrainte exerces par la France en Haute Mer 
au cours des operations en Algerie, XII ANNUAIRE FRANQAIS DE DROIT INTERNATIONAL at 
803-822 (1966). 

259 



The Legality of MIO in OEF 



The present situation of the war on terrorism can be characterized as nei- 
ther an internal nor an international armed conflict strictu sensu. An interna- 
tional armed conflict presupposes that at least two states are involved and 
though the United States has been (and most probably is and will be) the vic- 
tim of acts of international (transborder) terrorism that can be equated to an 
armed attack in the sense of Article 51 of the UN Charter, there (still) is no 
other state to whom these acts can be attributed. While it might have been 
possible to attribute certain terrorist activities to Afghanistan or the Taliban 
regime in the past, in view of the changed circumstances, this is no longer pos- 
sible. Therefore, MIO directed against the shipping of third states seem to be 
prohibited if it is not based upon the consent of the flag state or if imple- 
mented against the express will of the flag state. Clearly, this is true as there is 
no treaty rule expressly providing for MIO. 

Analogizing MIO to anti-piracy measures does not help either. If interna- 
tional terrorists could be considered pirates in the sense of the LOS 
Convention, every state would be entitled to take measures against them in 
sea areas beyond the sovereignty of their state. However, this would presup- 
pose that terrorists have taken control over a respective ship, a rather rare sce- 
nario. More importantly, however, is the absence of such an established 
analogy in international law — insofar as there exist special rules explicitly 
dealing with international terrorism and it is impossible to detect an opinio 
juris of states that the rules on piracy are applicable to acts of international ter- 
rorism. 13 

However, such tortured constructions are not necessary in concluding that 
current MIO performed by the United States and its coalition partners in and 
around the Persian Gulf states is legal. Recall that by Resolution 1368 the Se- 
curity Council: 

calls on all States to work together urgently to bring to justice the perpetrators, 
organizers and sponsors of these terrorist attacks and stresses that those 
responsible for aiding, supporting or harbouring the perpetrators, organizers and 
sponsors of these acts will be held accountable. 14 



13. An example of how that could be achieved is the 1937 Nyon Agreement — by which certain 
attacks by unidentified submarines were considered acts of piracy. See Nyon Agreement, 181 
L.N.T.S. 137-40, 151, reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF 
CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS (Dietrich Schindler and Jiri Toman 
eds., 3rd ed. 1988) at 887, 889. For an analysis of the Nyon Agreements, see L.F.E. Goldie, 
Commentary on the 1937 Nyon Agreements, in THE LAW OF NAVAL WARFARE. A COLLECTION 
OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES, 489 (N. Ronzitti ed., 1988). 

14. S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001). 

260 



Wolff von Heinegg 



In Resolution 1373 the Security Council is more precise by deciding that all 
states shall, inter alia, 

[p]rohibit their nationals or any persons and entities within their tenitories from 
making any funds, financial assets or economic resources or financial or other 
related services available, directly or indirectly, for the benefit of persons who 
commit or attempt to commit or facilitate or participate in the commission of 
tenorist acts, of entities owned or controlled, directly or indirectly, by such persons 
and of persons and entities acting on behalf of or at the direction of such 
persons; . . . 

(a) Refrain from providing any form of support, active or passive, to entities 
or persons involved in terrorist acts, including by suppressing recruitment of 
members of terrorist groups and eliminating the supply of weapons to 
terrorists; 

(b) Take the necessary steps to prevent the commission of terrorist acts, 
including by provision of early warning to other States by exchange of 
information; 

(c) Deny safe haven to those who finance, plan, support, or commit terrorist 
acts, or provide safe havens; 

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from 
using their respective territories for those purposes against other States or 
their citizens; 

(e) Ensure that any person who participates in the financing, planning, 
preparation or perpetration of terrorist acts or in supporting terrorist acts is 
brought to justice and ensure that, in addition to any other measures against 
them, such terrorist acts are established as serious criminal offences in 
domestic laws and regulations and that the punishment duly reflects the 
seriousness of such terrorist acts; . . . 

(g) Prevent the movement of terrorists or terrorist groups by effective border 
controls and controls on issuance of identity papers and travel documents, 
and through measures for preventing counterfeiting, forgery or fraudulent 
use of identity papers and travel documents; . . . 15 

This implies, for example, that states may not (knowingly) allow their nationals or 
ships and aircraft to transport international terrorists and goods that are designed 
to further acts of international terrorism. If they obtain knowledge of such 



15. S. C. Res. 1373, para. Id, 2a, 2e, U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001). 

261 



The Legality of MIO in OEF 



activities they must take the necessary preventive or suppressive measures. If they 
willingly abstain from such measures they are not only in breach of their obliga- 
tions under the UN Charter but may also become legitimate targets of self-defense 
measures if abstention is equated to permitting the activities concerned. 

But even if such private acts may not be attributed to another state or if the 
flag state is unable to take the necessary measures according to Resolution 
1373, abstaining from action would still have to be considered a breach of in- 
ternational law. In such cases third states are entitled, in lieu of the state with 
primary responsibility for acting, to take the necessary measures to fulfill the 
requirements of Resolution 1373. It would be incompatible with Resolution 
1373 to permit a flag state to object to MIO by claiming the right of the sover- 
eignty or the lack of explicit consent. As the Security Council has made abun- 
dantly clear, international terrorism is a threat to international peace and 
security that must be eliminated. 16 Accordingly, if a vessel is on the high sea 
and is suspected of carrying international terrorists or weapons destined to in- 
ternational terrorists it is not necessary to inform the flag state in advance be- 
cause requiring such notice would jeopardize the effectiveness of the 
international efforts against international terrorism in an intolerable way. 

To this point, this article has dealt with situations in which all participants 
have knowledge of the presence of either terrorists or certain cargo on board a 
vessel or aircraft. The question remains whether measures seeking simply to ver- 
ify whether there is some involvement in international terrorism can also be 
considered as in accordance with international law in cases where there is no 
state counterpart. Recall in this context that vessels and aircraft regularly oper- 
ate at great distance from the territories of their respective flag states. National 
authorities are generally ignorant of the route, of the cargo and of the identity of 
passengers on these vessels and aircraft. Even if they are in possession of this in- 
formation, the information may be inaccurate or false. Only in exceptional cases 
will the national authorities be in a position to control or otherwise verify the ve- 
racity of a described route or of a passenger or cargo manifest. If, however, a ves- 
sel with international terrorists on board reaches its point of destination, further 
attacks like those seen on September 1 1th could be expected. States other than 
the flag state are therefore entitled to prevent this as early as possible. This again 
is only feasible if the vehicles in question can be controlled. Hence, the flag state 
must tolerate such control measures because they merely serve the purpose of 



16. Id. at preamble. See also S. C. Res. U.N. SCOR, 55th Sess., U.N. Doc. S/1269/(1999) in 
which the Security Council, inter alia, condemns "all acts of terrorism, irrespective of motive, 
wherever and by whomever committed." 

262 



Wolff von Heinegg 



countering international terrorism as effectively as necessary. If such control re- 
veals that the vehicle in question is incorporated into the network of interna- 
tional terrorism or is otherwise assisting it, all further adequate measures, such as 
capture, may be taken. 

As far as the transport of weapons to Somalia is concerned a special feature 
ensues from Resolution 1356. 17 In paragraph 1 of that resolution, the Security 
Council "reiterates to all States their obligation to comply with the measures 
imposed by Resolution 733 (1992), and urges each State to take the necessary 
steps to ensure full implementation and enforcement of the arms embargo." 
Although the second part of this paragraph speaks to measures states are 
obliged to take in the sphere of their national jurisdiction, it nonetheless fol- 
lows from the first part that Resolution 733 18 continues to be fully in force and 
applicable. Paragraph 5 of this resolution states: 

that all States shall, for the purpose of establishing peace and stability in 
Somalia, immediately implement a general and complete embargo on all 
deliveries of weapons and military equipment to Somalia until the Council 
decides otherwise. 19 

One means of implementing this weapons embargo is through the national 
measures provided for in paragraph 5 of Resolution 733. After all, without such 
national measures an arms embargo would not make much sense. Still, in order 
to fully comply with Resolution 733, states need not merely confine themselves 
to national measures. According to Resolution 733 they are to implement a 
"complete" and "general" embargo. Hence, embargo measures must not only 
cover all arms, weapons and the like (complete), but must also be directed 
against all actual and potential suppliers (general) . If a state complies with this 
obligation by controlling the sea and air traffic to Somalia, it is allowed to stop 
and search any vessel or aircraft that is reasonably suspected of being engaged 
in the transport of arms because only by such control can a "general" embargo 
be effectively implemented. A feasible understanding of Resolution 733, given 
the wide meaning of "implement" then, authorizes states to conduct MIO for 
weapons destined for Somalia. Accordingly, the United States and its coalition 
partners are not restricted only to measures against vehicles flying their own 
flags or bearing their own markings. 



17. S. C. Res. 1356, U.N. SCOR, 56th Sess., U.N. Doc. S/1356/(2001). 

18. See S. C. Res. 733, U.N. SCOR, 47th Sess., U.N. Doc. S/733/(1992). 

19. Id. at para. 5. 



263 



The Legality of MIO in OEF 



Some commentators may not be inclined to subscribe to such an interpre- 
tation of Resolutions 1356 (in connection with Resolution 733) and 1373 as 
the Security Council has neither authorized MIO explicitly nor obligated 
member states to tolerate such interference with their merchant shipping and 
civil aviation. However, even if this position is not shared by the rest of the 
world, MIO by the United States and its coalition partners would continue to 
be legal provided it was done as part of the exercise of these states' rights to in- 
dividual and collective self-defense. 

Clearly, the UN Security Council, by expressly reaffirming the right of self- 
defense in the context of the terrorist attacks on the United States in its Resolu- 
tions 1368 and 1373, has acknowledged the so-called Anglo-American concept 
of self-defense, 20 i.e., a broad interpretation of Article 51 of the UN Charter and 
of the customary inherent right of self-defense. In his press statement of 8 Octo- 
ber 2001 the President of the Security Council, Richard Ryan, declared: 

[t]he members of the Security Council took note of the letters that the 
representatives of the United States and of the United Kingdom sent yesterday 
to the President of the Security Council, in accordance with Article 5 1 of the 
United Nations Charter, in which they state that the action was taken in 
accordance with the inherent right of individual and collective self-defense 
following the terrorist attacks in the United States of 1 1 September 2001. 

The permanent representatives made it clear that the military action that 
commenced on 7 October was taken in self-defense and directed at terrorists 
and those who harboured them. They stressed that every effort was being made 
to avoid civilian casualties, and that the action was in no way a strike against the 
people of Afghanistan, Islam or the Muslim world. 

The members of the Council were appreciative of the presentation made by the 
United States and the United Kingdom. 21 

Hence, self-defense is permitted not only in situations where a state, either with 
its armed forces or in some other way attributable to it, attacks another state 
but also where armed force is used against a state from outside its borders even 
when that use of force cannot be attributed to another state. 22 This situation 



20. C/. Alberto Coll, The Legal and Moral Adequacy of Military Responses to Terrorism, 81 PROC 
AM. SOC. INT'L L. 297, at 305 (1987). 

21. Ambassador to the UN Richard Ryan, President of the Security Council, Press Statement 
(Oct. 8, 2001). 

22. The same position is taken by T. Bruha & M. Bortfeld, Terrorismus und Selbstverteidigung, 5 
VEREINTE NATIONEN, 161, at 165 (2001). 

264 



Wolff von Heinegg 



can be labelled a self-defense situation in a material sense only. Although this 
interpretation might exceed the wording of Article 51 UN Charter, it does not 
exceed the inherent, i.e., customary, right of self-defense. 

This is confirmed by the reactions of the international community in the af- 
termath of the September 1 1th attacks. On 12 September the North Atlantic 
Council stated: 

[t]he Council agreed that if it is determined that this attack was directed from 
abroad against the United States, it shall be regarded as an action covered by 
Article 5 of the Washington Treaty, which states that an armed attack against 
one or more of the Allies in Europe or North America shall be considered an 
attack against them all. 23 

Moreover, the Organization for Security and Cooperation in Europe 
(OSCE) 24 as well as the majority of states obviously consider the United 
States as the state most entitled, according to the right of self-defense, to com- 
bat international terrorism by all necessary means. 

Resolutions 1368 and 1373 must be understood in this broad sense. In the 
wake of September 11th, the Security Council has not by chance twice reaf- 
firmed the right of self-defense. Nor has it pursued some kind of stockpiling 
policy in case that in some distant or near future the direct involvement of a 
foreign state can be proved. The express reaffirmation of the right of self-de- 
fense is contingent on the character of the terrorist attacks themselves. This is 
not based on the amount of damage done or lives lost, but instead because the 
attacks did not originate from US territory and could be carried out only due 
to the transnational character of the terrorist network. This network not only 
operates world-wide but it is also able to evade control by the authorities of 
the state in which it resides. 

It can not be excluded that in some cases, state authorities acquiesce in the 
planning, organizing and execution of terrorist acts. In view of the special char- 
acter of the al Qaeda network, it was not necessary for the Security Council to 
identify a state against which self-defense measures could be taken, for this 
form of international terrorism is far different from the context of "state- 
sponsored" terrorism or of a "classical" armed attack. This does not mean that 



23. NATO Press Release 124 (Sep. 12, 2001), available at http://www.nato.int/docu/pr/2001/ 
p01-124e.htm (Nov. 21, 2002). 

24- OSCE Ministerial Council Decision No. 1, Combatting Terrorism (MC(9). DEC/1, 
Dec. 4, 2001), available at http://www.osce.org/events/mc/romania2001/documents/files/mc_ 
1007474752_o.pdf (Nov. 21, 2002). 

265 



The Legality of MIO in OEF 



criteria used in identifying and evaluating these are no longer of relevance. 
Armed attacks and sheltering terrorists may be very different and therefore 
may not necessarily trigger the right to self-defense. 25 However, there are 
clearly instances where acts of international terrorism can be attributed to an- 
other state. 

Although no state currently exists against which the terrorist acts can be 
attributed and that therefore could be the legitimate object of measures taken 
in self-defense, the potential target states of international terrorism are not 
obliged to adopt a wait-and-see policy until there is sufficient evidence of the 
(direct) involvement of a foreign state or even until further terrorist attacks 
occur. To the contrary, the United States and its coalition partners are enti- 
tled to take all measures reasonably necessary to prevent such attacks as early 
and as effectively as possible. Such measures do not merely include the cap- 
ture of international terrorists and of weapons or other goods destined for 
them. The United States and coalition partners may also control international 
shipping and aviation in order to verify the innocent status of such shipping 
and aviation. Of course, MIO are governed by the principle of proportional- 
ity. 26 Accordingly, they can be based upon the right of self-defense only if 
there are sufficient intelligence indicators of the integration of the affected ve- 
hicles into conspiracies to commit, or acts of, international terrorism. Indis- 
criminate implementation and enforcement of MIO covering vast sea areas 
would be disproportionate and not justified by the right of self-defense. If limi- 
tations such as these are observed, affected states are obligated to tolerate 
these measures. Moreover, there is no need for prior approval or consent of 
third states as it is neither feasible nor compatible with the right of self-de- 
fense. Were this the case, the inherent right to self-defense would be subju- 
gated to the will of third states. Article 5 1 of the UN Charter provides no basis 
for such an understanding. Interestingly, no state has yet objected to the legal- 
ity of MIO in the framework of Operation ENDURING FREEDOM. 

The validity of the above findings is confirmed by the parallels between the 
given situation and an international armed conflict at sea. In such a conflict it is 
irrelevant whether one of the parties violated the jus ad bellum. 27 Instead, each 



25. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 
I.C.J. 14, at 104 (1986), available at http://www.icj-cij.org/icjwww/icases/inus/inusframe.htm 
(Nov. 21, 2002) [hereinafter Nicaragua Case] . 

26. For the validity of the principle of proportionality in the context of self-defense and for 
further references, see A. Randelzhofer, Article 51, CHARTA DER VEREINTEN NATION EN - 
KOMMENTAR, at note 37 (B. Simma ed., 1991). 

27. See SEEKRIEGSRECHT UND NEUTRALITAT IM SEEKRIEG, supra note 6, at 86. 

266 



Wolff von Heinegg 



party is entitled to verify by appropriate control measures, like visit and search, 
whether neutral merchant vessels and civil aircraft are contributing to the re- 
spective enemy's war-fighting efforts. 28 According to the law of maritime neu- 
trality, neutral states are obligated to tolerate these measures in order to prevent 
an escalation of the conflict and in order to meet the interests of the parties to 
the conflict. 29 This also holds true if further measures are taken, such as when a 
neutral merchant vessel is incorporated into the enemy's intelligence system. 30 
The flag state of the merchant vessel has no right to interfere or to otherwise 
prevent a belligerent from capturing or even sinking the vessel. 

While the current situation differs from an international armed conflict insofar 
as there is no "enemy state," this is not sufficient grounds to remove the duty of 
third states to tolerate interference with their merchant shipping and civil avia- 
tion. In an international armed conflict that obligation exists for the mere reason 
that the parties to the conflict have decided to take such measures. As long as the 
Security Council has not authoritatively identified one of the belligerents as the 
aggressor, the duty of toleration persists. A fortbri this must hold true if the Secu- 
rity Council has expressly affirmed the existence of a self-defense situation even 
though there is no state to which the attacks can be attributed. 

For these reasons the United States and its coalition partners are entitled to 
establish maritime interdiction areas, i.e., to restrict access to certain sea areas for 
the shipping and aviation of third states. 31 These areas should not be confused 
with safety zones 32 because they are not primarily designed to serve the safety of 



28. See SAN REMO MANUAL, supra note 5, para. 118; Helsinki Principles, supra note 6, at 5.2.1.; 
G.P. POLITAKIS, MODERN ASPECTS OF THE LAWS OF NAVAL WARFARE AND MARITIME 
NEUTRALITY, at 529 (1998) [hereinafter MODERN ASPECTS]. 

29. SAN REMO MANUAL, supra note 5, para. 118; Helsinki Principles, supra note 6, at 5.2.1.; 
MODERN ASPECTS, supra note 28, at 529. 

30. See SAN REMO MANUAL, supra note 6, para. 67; SEEKRIEGSRECHT UND NEUTRALITAT IM 
SEEKRIEG, supra note 6, at 5.2.1. 

31. For the equivalent of such zones in the law of naval warfare see SAN REMO MANUAL, supra 
note 5, para. 105. 

32. Such safety zones are sometimes labelled "naval vessel protection zones." See, e.g., Regulated 
Navigation Areas and Limited Access Areas, 33 C.F.R. § 165 (2002). See also ANNOTATED 
SUPPLEMENT, supra note 9, at 7.8, which provides that: 

[w]ithin the immediate area or vicinity of naval operations, a belligerent may establish 
special restrictions upon the activities of neutral vessels and aircraft and may prohibit 
altogether such vessels and aircraft from entering the area. The immediate area or 
vicinity of naval operations is that area within which hostilities are taking place or 
belligerent forces are actually operating. 

The legality of such safety zones is undisputed. See, inter alia, D.P. O'CONNELL, THE INFLUENCE OF 

Law on Sea Power at 168 (1975); G.P. Politakis, Modern Aspects, supra note 26, at 104. 

267 



The Legality of MIQ in OEF 



a warship or unit but to instead facilitate the identification of vessels and air- 
craft or to prevent international terrorists or weapons destined for them from 
getting access to the area concerned. Hence, the legal basis of maritime inter- 
diction areas is to be found in Resolution 1373 and in the right of individual 
and collective self-defense. Note also that according to customary interna- 
tional law they are entitled to temporarily make exclusive use of restricted sea 
areas for military and security purposes. 33 However, it follows from the princi- 
ple of proportionality that the exact coordinates of the sea areas affected as 
well as the measures to be taken there have to be published in advance — e.g., 
by a Notice to Mariners/Airmen. Moreover, foreign ships and aircraft may only 
be prohibited from entering the area as long as doubts persist about their iden- 
tity, their cargo, their crews, and their passengers. If they refuse to give the rel- 
evant information or if they continue their journey regardless of a prior 
warning all necessary measures may be taken against them. 

Legal Restrictions 

The United States and its coalition partners are limited by more than simply 
the principle of proportionality however. If the jus in bello and the law of mari- 
time neutrality are understood as an order of necessity, international law pro- 
vides for situations in which two or more states consider themselves unable to 
adhere to the prohibition on the use of force, 34 then the legal restrictions laid 
down in that order of necessity, a fortiori, must be observed in situations that do 



33. Cf. J. Astley & Michael Schmitt, The Law of the Sea and Naval Operations, 42 AF. L. REV. 1 19 
( 1997) ; Ch. E. Pirtle, Military Uses of Ocean Space and the Law of the Sea in the New Millennium, 3 1 
OCEAN DEVELOPMENT &. INT'L L. 7 (2000); R. Wolfrum, Military Activities on the High Seas: 
What are the Impacts of the U.N. Convention on the Law of the Sea?, in THE LAW OF ARMED 
CONFLICT: INTO THE NEXT MILLENIUM at 501 (Michael Schmitt & Leslie Green eds., 1998) 
(Vol. 71, US Naval War College International Law Studies). It may be added that the list of high 
seas freedoms in Article 87, paragraph 1 of the LOS Convention is not exhaustive. Accordingly, 
these freedoms also include the use of the high seas and of EEZ areas for military purposes. 
Moreover it is clear from the second sentence of that paragraph that freedom of the high seas is 
not only "exercised under the conditions laid down by this Convention" but also "by other rules 
of international law." See LOS Convention, supra note 4, at art. 87. The military uses of high seas 
areas (including EEZ areas) is governed by customary international law, by the law of naval 
warfare and by the law of maritime neutrality. Accordingly, and since military exercises 
traditionally have been conducted in those sea areas, such uses are generally acknowledged to be 
part of customary international law. 

34. For this characterization see W. Heintschel v. Heinegg, The Current State of International 
Prize Law, INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, 5-34 (H.H.G. Post ed., 
1994). 

268 



Wolff von Heinegg 



not yet amount to an international armed conflict strictu sensu. i5 Hence, when 
conducting MIO, states are obliged to comply with the international minimum 
legal requirements of the law of naval warfare and of the law of maritime 
neutrality. 

To begin with, they have to distinguish between state vessels and aircraft 
on the one hand and other vehicles on the other hand. State vessels and air- 
craft enjoy sovereign immunity and may not be interfered with unless they 
pose an imminent threat. That immunity is extended to merchant vessels 
travelling under the convoy of a warship. Therefore these merchant vessels 
are, in principle, exempt from the exercise of the right of visit and search. 36 
However, the commander of the accompanying warship is obliged to provide 
all information as to the character of the merchant vessel and its cargo. 37 

If not travelling under convoy, foreign merchant vessels may be required to 
provide all information necessary to verify their identity, their destination, 
their route, their crews, their passengers and their cargo. If they refuse to pro- 
vide this information, or if they otherwise try to evade identification, all mea- 
sures necessary to enforce the duty of identification and information may be 
taken against them. Here again, the principle of proportionality applies. Ac- 
cordingly, the use of armed force is admissible only as an ultima ratio measure; 
weapons may only be employed if there are no other means to stop the vessel 
or to prevent it from escape. Regularly, a warning shot fired away from the ves- 
sel will suffice. If not, it may be forced to stop by a shot into the rudder. 



35. The International Court of Justice, in the Corfu Channel and in the Nicaragua Case, 
referred to Hague Convention VIII of 1907 although in both cases there existed no international 
armed conflict. See Corfu Channel (Merits) (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9, 1949) 
[hereinafter Corfu Channel] ; Nicaragua Case, supra note 25 at 1 12. See also Convention Relative 
to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332 [hereinafter 
Hague VIII]. The principles laid down in Hague VIII were characterized by the ICJ as "certain 
general and well recognized principles, namely: elementary considerations of humanity, even 
more exacting in peace than in war." See Corfu Channel at 22; Nicaragua Case at 112. Hence, 
the ICJ also seems to take the position that the rules and principles of the jus in bello mark the 
final limits of what is tolerable under international law. 

36. Annotated Handbook, supra note 9, para. 7.6.; Federal Ministry of Defence of 
the Federal Republic of Germany, humanitarian Law in Armed Conflicts - 

MANUAL (ZDv 15/2), para. 1141 (Bonn, 1993); R. W. TUCKER, THE LAW OF WAR AND 
NEUTRALITY AT SEA, at 334 (1957); M. DONNER, DIE NEUTRALE HANDELSSCHIFFAHRT IM 
BEGRENZTEN MILITARISCHEN KONFLIKT, at 174 (Kehl A.R. et al., 1993); CH. ROUSSEAU, LE 
DROIT DES CONFLITS ARMES, at 431 (1983); SAN REMO MANUAL, supra note 6 at paras. 120, 
127. "The right of neutrals to convoy is recognized. Consequently, neutral States have the right 
to accompany commercial ships flying their own or another neutral State's flag by their 
warships." Helsinki Principles, supra note 7, at 6.1. 

37. SAN REMO MANUAL, supra note 6, at para. 120(d). 

269 



The Legality of MIQ in OEF 



Stricter legal restrictions apply when it comes to the use of force against 
civil aircraft that are also obliged to identify themselves and to provide the 
said information. In view of the vulnerability of aircraft, the use of armed 
force must be limited to warning shots as long as there is no clear evidence of 
a terrorist activity. The only means available of using force is to require the 
aircraft to land. 38 

If, according to intelligence information, there are reasonable grounds to 
believe that a merchant vessel is transporting terrorists or goods destined to 
them, or if doubts persist as to the truth of the information provided by its 
master, a boarding team may be sent on board the merchant vessel that may 
take all measures necessary to clarify the circumstances (e.g., examination of 
documents and search of the vessel). The members of the boarding team may 
be armed in order to be able to defend themselves against attacks. If the initial 
suspicion proves true or if circumstances cannot be clarified to the satisfaction 
of the responsible commander, the vessel may be diverted to a port or sea area 
where a thorough search will be conducted. If the master refuses to obey the 
diversion order, the boarding team may capture the vessel by taking over com- 
mand and control. Note that in the majority of cases, search on the high seas 
will be practically possible only with the master's consent, when the circum- 
stances are easily clarified, and if no other difficulties are encountered. Absent 
these conditions, the vessel must either be diverted or allowed to continue its 
journey. In view of the considerable economic losses involved, a diversion 
must be in strict accordance with the principle of proportionality. Mere suspi- 
cion of involvement with terrorist activities will generally not suffice. Rather, 
the grounds for suspicion must be clear and reasonable which presupposes suf- 
ficient intelligence information. The same limitations apply with regard to 
capture. The legality of capture cannot be doubted if the merchant vessel re- 
sists visit and search because it is a means to enforce the obligation to tolerate 
these measures. If the master has complied with his obligations, however, cap- 
ture, as a severe encroachment on the flag state's sovereignty, is justified only 
where there is strong suspicion of the commission of an offense. 

With respect to individuals on board who are suspected of being interna- 
tional terrorists or who are suspected of having assisted international terror- 
ism in some other way and with regard to cargo that is bound for groups of 
international terrorists, specific rules and principles must be observed. Terror- 
ists may be taken prisoner to prosecute them for their illegal actions. They 



38. For the special protection of civil aircraft against the use of armed force see Convention on 
International Civil Aviation, opened for signature Dec. 7, 1944, art. 3, ICAO Doc. 7300/6, 15 
U.N.T.S. 6605 and SAN REMO MANUAL, supra note 6, at para. 153. 

270 



Wolff von Heinegg 



may be taken to a court of the capturing warship's flag state or to a court of 
one of its allies. 39 If Taliban members are captured, there is a presumption of 
their participation in the hostilities on behalf of, or with the consent of, the 
de-facto government of Afghanistan. They remain liable, of course, for all 
crimes they have committed. They may, however, not be prosecuted and tried 
for having taken part in the hostilities. Moreover, they are entitled to prisoner 
of war (POW) status. 40 The mere change in government does not nullify ex 
tunc the authorization or consent of the predecessor. If those taken prisoner 
are members of al Qaeda they are entitled to POW status only if they had been 
part of the Afghan armed forces or if they had otherwise "belonged" to Af- 
ghanistan as a party to the armed conflict. If neither of these conditions can be 
ruled out the presumption or rule of doubt laid down in Article 5(2) of 
Geneva Convention III comes into operation and an Article 5 tribunal must 
take place. 41 Nevertheless POW status does not preclude punishment for par- 
ticipation in, or commitment of, acts of international terrorism. 42 



39. Transfer of prisoners to an ally will, however, pose considerable problems if the states 
concerned are bound by different rules of international law, especially with regard to the legality 
of the death penalty. 

40. According to Article 4 A of Geneva Convention III of 12 August 1949 relative to the 
Treatment of Prisoners of War not only members of the regular armed forces are entitled to POW 
status but also members of militias and volunteer corps either "forming part of such armed forces" 
or "belonging to a Party to the conflict." Also protected are "members of regular armed forces 
who profess allegiance to a government or an authority not recognized by the Detaining Power." 
See Convention Relative to the Treatment of Prisoners of War, Aug. 12, art. 4, 1949, 6 U.S.T. 
3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]. Editor's Note— The US 
Government has taken the position that the Taliban are not entitled to POW status since the 
Taliban was never the legitimate government of Afghanistan and Taliban members do not meet 
the four part test found in Article 4 of GC III. See GC III at art. 4; see Statement by White House 
Press Secretary Ari Fleischer (Feb. 7, 2002). 

4 1 • "Should any doubt arise as to whether persons, having committed a belligerent act and having 
fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such 
persons shall enjoy the protection of the present Convention until such time as their status has 
been determined by a competent tribunal." Id. at art. 5. This provision is generally accepted as 
customary international law based, in part, on the reaction of the international community and the 
media to the treatment of the detainees in Guantanamo Bay. For states parties to Additional 
Protocol I of 1977 a further obligation applies. According to Article 45 of this protocol, "a person 
who ... is not held as a prisoner of war and is to be tried ... for an offence arising out of the 
hostilities . . . shall have the right to assert the entitlement to prisoner-of-war status before a judicial 
tribunal and to have the question adjudicated." GPI, supra note 10, at art. 45. 
42. However, according to Article 85, GC III "prisoners of war prosecuted under the laws of the 
Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits 
of the present Convention." GC III, supra note 40, at art. 85. 



271 



The Legality of MIO in OEF 



Weapons, ammunition and other military equipment destined for interna- 
tional terrorists or supply goods as well as everything serving for the financing 
of international terrorism, including drugs or other prohibited goods, may be 
captured and seized. Other objects and cargo have to be returned to the 
owner. 

Captured vessels (and aircraft) may also be seized as soon as there exists 
sufficient proof that they are owned by al Qaeda or some other group of inter- 
national terrorists. As for the rest it will depend on the respective national 
criminal law whether their confiscation is possible or not. International law 
provides no clear rule on that question unless the vessel or aircraft concerned 
had been used in a terrorist attack or had actively resisted visit and search or 
diversion. Therefore, in case of doubt, these vehicles should be returned to 
their respective owners if a participation in terrorist acts cannot be 
established. 

If MIO are conducted beyond the territorial sea of third states — or within the 
territorial sea with the approval of the coastal state — their legal basis derives 
from the right of individual and collective self-defense as long as the legal re- 
strictions referred to above are observed. Would a US warship or an allied war- 
ship also be entitled to enter the territorial sea if the coastal state did not 
consent and if a merchant vessel suspected of transporting international terror- 
ists tried to evade capture by taking refuge, for example, in the territorial sea of 
Somalia? From the perspective of the law of the sea that operation, in view of 
the territorial sovereignty of Somalia, would be illegal unless exceptionally justi- 
fied. Here again a plea of self-defense could serve as a justification. However, 
self-defense as traditionally understood might pose a problem insofar as the in- 
activity of Somali authorities would perhaps not be sufficient to establish the 
attributability necessary to legitimize actions taken against that state. Still, the 
legality of pursuing such a vessel into the territorial sea becomes evident if the 
law of maritime neutrality is again considered. According to that law neutral 
states are under an obligation to take the measures necessary to terminate any 
violation of the law by one of the belligerents, especially if that belligerent 
makes use of the neutral's territorial sea as a base of his military operations. If 
the neutral state fails to terminate the violation — be it because it is unable or 
unwilling to do so — the opposing belligerent, if certain preconditions are met, 
may use such force as is strictly necessary to respond to the threat posed by the 
violation. 43 Note that the behavior of the neutral coastal state need not amount 



43. San Remo Manual, supra note 6, at para. 22; Seekriegsrecht und NeutralitAt im 

SEEKRIEG, supra note 6, at 505. 

272 



Wolff von Heinegg 



to a direct and attributable contribution to the enemy's war fighting efforts. If 
that were the case that state would become a party to the conflict. The law of 
maritime neutrality would be replaced by the jus in bello. 

In any event, the measures taken within neutral territorial seas must be re- 
stricted to the termination of the violation. Resolution 1373 obligates all 
states to prevent and suppress within their territories all acts of international 
terrorism as well as all activities in support of international terrorism. A state 
that is either unwilling or unable to comply with these obligations violates in- 
ternational law. This also holds true where, as in Somalia, the state has failed. 
Hence, there are good reasons that exceptional situations like the present 
limited actions taken within foreign territorial seas in order to capture inter- 
national terrorists and weapons destined for them are justified by interna- 
tional law if the coastal state is unwilling or unable to take the measures 
necessary according to Resolution 1373. 

Conclusion 

As seen, MIO conducted within the framework of Operation ENDURING FREE- 
DOM can be based upon the right of individual and collective self-defense and, 
additionally, on Resolution 1373 of the UN Security Council. Third states are 
obligated to tolerate the control measures taken against their shipping and avia- 
tion by the United States and its coalition partners. The UN Security Council 
has made sufficiently clear that self-defense is not restricted to armed attacks at- 
tributable to a given state. Rather, it has acknowledged that a self-defense para- 
digm can exist without a state being the potential object of armed 
countermeasures. This, however, does not mean that the United States and its 
coalition partners are free to interfere with foreign shipping and aviation at their 
will. They must observe the limitations imposed upon them by the law of naval 
warfare and by the law of maritime neutrality. This corpus of international law 
must be observed in spite of the fact that there exists no international armed con- 
flict strictu sensu. Respect for these requirements is of utmost importance because 
only thus can the support of the international community in the fight against in- 
ternational terrorism be maintained. 

Oi course, in view of the varying treaty obligations and in view of different 
concepts of self-defense, a multinational operation like ENDURING FREEDOM 
is a difficult task. The most promising way to cope with these difficulties is to 
draw multinational rules of engagement in order to ensure that at least the 
common minimum legal denominator that is so important for international 
political support operates effectively. 

273 



XIV 



The Limits of Coalition Cooperation in the 

War on Terrorism 



Ivan Shearer 1 

The Wide Range of Issues 



1 



he events of September 11, 2001 revealed deep and widespread feel- 
ings of revulsion, even in unlikely quarters, against the indiscriminate 
use of violence to achieve political ends. National leaders throughout the 
world condemned the terrorist attacks in the United States and expressed their 
solidarity with the American government and people. The world's press and 
other media were equally condemnatory. The reaction of the United Nations 
was swift: resolutions of broad reach and specific content were passed directing 
measures to be taken by all states to suppress terrorism and to cooperate in 
bringing terrorists to justice. 2 

The military operations carried out by the United States and a number of 
its allies, in Afghanistan were not specifically authorized by the United Na- 
tions Security Council. Although justifiable as an exercise of the right of self- 
defense, recognized by Article 51 of the Charter oi the United Nations, the 
failure of the United States to seek such authorization retrospectively, as 



1. Ivan Shearer is the Challis Professor of International Law, University of Sydney, Australia 

2. See, e.g., S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001); S. C. Res. 1373, 
U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001); S. C. Res. 1377, U.N. SCOR, 56th Sess., 
U.N. Doc.S/1377/(2001). 



The Limits of Coalition Cooperation in the War on Terrorism 

envisaged by Article 51, raises both political and legal questions. This paper 
will not, however, be concerned with these issues — the jus ad bellum — since 
they are dealt with elsewhere in this publication. 3 Moreover, it is perhaps less 
probable that the future war against terrorism will be conducted in circum- 
stances where a state has admitted its responsibility for harboring terrorists 
and has refused to take effective measures against them. As a consequence, 
traditional jus in bello issues will not frequently arise in the familiar context of 
battlefield conditions, such as in Afghanistan, where operations were con- 
ducted against regular forces as well as terrorists, but may call for application, 
if at all, rather by way of analogy. 

The issues most likely to arise are those relating to the cooperation between 
states in the early warning, hunting down, and bringing to justice of terrorists. 
There is unlikely to be a clearly delineated battlefield where terrorists conduct 
open armed operations or hide in caves. Their shadowy operations will be di- 
rected under the cover of apparently innocuous business or other entities lo- 
cated in unsuspecting host countries. They will move easily between countries 
on valid or false documents. Financial transactions will take place under 
seemingly innocent cover, or through informal means. Intelligence and com- 
munications networks will operate using freely available public facilities. 

Since there is nearly universal recognition of the threat to international 
peace and security posed by terrorists and of the need for cooperation in their 
suppression, it follows that an effective response must lie in the hands of the 
many nations comprising the international community. That response must 
be multilateral and multilayered. It must not be left entirely to the states di- 
rectly affected by terrorism, still less to the most powerful among them, above 
all the United States. There must be a coalition of states. This coalition will no 
doubt consist of an inner circle of closely allied states, and a perimeter of oth- 
ers, more loosely — or not at all — allied, which acknowledge the dangers to 
themselves of failing to cooperate to meet the global challenge of terrorism. 
Differences in their policies, laws, human and material resources, and in the 
efficiency of the exercise of their governmental powers, will call for consider- 
ation. Whether these differences constitute impediments to the effectiveness 
of the war against terrorism, and thus call for elimination, or whether they 
constitute legitimate constraints or sensitivities, and thus call for respect, is 
the topic of this paper. 

It is taken as a given that international law is an integral part of the plan- 
ning process in any actions against terrorists and that it constitutes the only 



3. See Chapters VIII-XIII supra. 

276 



Ivan Shearer 



yardstick the world has against which to measure the legitimacy of the actions 
taken. There is a tendency in some quarters to see international law as an un- 
due restraining factor to be set aside in times of crisis. 4 Not only does this atti- 
tude strike at the heart of civilized values; it ignores the very real opportunities 
afforded by the concessive rules of international law to allow effective action 
to be taken against terrorists in a principled fashion which upholds world pub- 
lic order. 

Particular reference will be made in this paper to the laws and policies of 
Australia, as an example of a close ally of the United States and a coalition 
partner in the war against terrorism. 

National Laws With Respect To Terrorism 

In the absence of a universally accepted definition of terrorism, states are pres- 
ently free to adopt their own definitions for the purposes of their domestic law. 
Many have no defined crime of terrorism, as such, in their laws, but all have 
laws respecting most of the constituent elements of terrorism, such as murder, 
manslaughter, violence against the person, criminal damage to property, and 
threats and conspiracies to commit crimes of violence. 

In enacting anti-terrorism laws, states will generally note the definitions of 
terrorism contained in international conventions to which they are parties or 
to agreed definitions adopted by authoritative international bodies. Unfortu- 
nately, a universal definition of terrorism has proved to be difficult to achieve 
as witnessed by the lack of consensus found in the attempted definition in the 
Draft International Convention on Terrorism, presently before the United 
Nations. 5 The core definition of the crime in that draft is, however, not in 
doubt as Article 2 of the Draft Convention provides: 

1. Any person commits an offence within the meaning of this Convention if 
that person, by any means, unlawfully and intentionally, causes: 

(a) death or serious bodily injury to any person; or 



4. Former Australian Permanent Representative to the UN and head of the UN Special 
Commission on Disarmament in Iraq Ambassador Richard Butler, quoted US Undersecretary of 
State John Bolton, as having said in 2000 when discussing the International Criminal Court that 
"[t]here is no such thing as international law, only national sovereignty." Richard Butler, The 
supine leading the blind," THE AUSTRALIAN, June 14, 2002 at 13. 

5. See Report of the Ad Hoc Committee Established by General Assembly Resolution 5 1/2 10 of 
17 December 1996, U.N. GAOR, 57th Sess., Supp. No. 37, U.N. Doc A/5 7/33. (2002), available 
at http://ods-dds-ny.un.Org/doc/UNDOC/GEN/N02/248/l 7/PDF/N02248 1 7.pdf?OpenElement 
(Jan. 11, 2003) [hereinafter Draft International Convention on Terrorism]. 

277 



The Limits of Coalition Cooperation in the War on Terrorism 

(b) serious damage to public or private property, including a place of public 
use, a state or government facility, a public transportation system, an 
infrastructure facility, or the environment; or 

(c) damage to property, places, facilities or systems referred to in paragraph 1 
(b) of this article, resulting or likely to result in major economic loss, 

when the purpose of the conduct, by its nature or context, is to intimidate a 
population, or to compel a government or an international organization to do or 
abstain from doing any act. 6 

The difficulty that has arisen, and that so far remains to be resolved 
through continuing negotiations, concerns the qualifying provisions of draft 
article 18 of this convention. In one version, that article would exempt from 
categorization as terrorism the activities of armed forces during armed conflict 
governed by international humanitarian law, and in the other version, pro- 
posed by the Member States of the Organization of the Islamic Conference, 
would exempt the activities of the parties to an armed conflict, "including in 
situations of foreign occupation." 7 The basis of the disagreement in the con- 
tinuing conflict between Israel and the Palestinians is obvious. 

Both the United Kingdom 8 and Australia 9 have already adopted a domestic 
law definition of terrorism with the Australian definition largely following the 
UK model. It requires as an element of the offense that the act be committed 
"for the purpose of advancing a political, religious or ideological cause." It also 
excludes from the definition acts that consist of advocacy, protest, dissent or 
labor disputes. 

For the purposes of domestic law, an internationally accepted definition of 
terrorism, if and when it eventuates, will be of crucial importance. In the con- 
stitutional systems of some states, the definition in the Convention will oper- 
ate directly as domestic law upon its ratification and promulgation by the state 
parties. In other constitutional systems, especially those of the English com- 
mon law inheritance such as Australia, Canada, and the United Kingdom, the 



6. Id. at art. 2. Note that the precise definitions of the property and institutions mentioned in 
Article 2, paragraphs 1 (b) and 1 (c) are contained in Article 1 of the Draft Convention. 

7. Id. at art. 18. 

8. See And- terrorism, Crime and Security Act, 2001, c. 11 § 1 (UK). The version of this Act 
printed in CURRENT LAW STATUTES, 2000 (Sweet & Maxwell eds., 2000) contains annotations 
which trace the history of the definition from the troubles in Northern Ireland, from the Diplock 
and Lloyd Commissions, to the present. 

9. See Criminal Code Act, c. 1, pt. 5.3 d. 100 (Austl.). 

278 



Ivan Shearer 



Convention definition will require adoption and incorporation by statute, and 
possibly also adaptation to meet local circumstances. 

In the meantime, in many countries, new laws are being introduced or 
drafted in order to give the police, or intelligence agencies, increased powers 
to detain and question not only those suspected of terrorism but also those 
who may be thought to have relevant information. Bills currently before the 
Australian Parliament, for example, would give to the Australian Security and 
Intelligence Organization (ASIO), an organization not previously invested 
with coercive powers, the power to obtain a warrant to secretly detain persons 
suspected of terrorism or those thought to possess information about terror- 
ists. 10 It is also proposed that the Attorney-General be given power to pro- 
scribe certain organizations. 11 Members and supporters of those organizations 
could be jailed for up to 25 years. 

The definition of terrorism in domestic law, or the applicability under do- 
mestic law of other denominations of offense to terrorist acts, will have partic- 
ular implications for jurisdiction and extradition. 

Jurisdiction 

International law recognizes the jurisdiction of states to prescribe and enforce 
their criminal laws subject to certain conditions. 12 The very wide power to pre- 
scribe laws, seemingly allowed by the Permanent Court of International Justice 
in the Case of the SS. Lotus (1927), 13 must now be regarded as somewhat nar- 
rower in extent, especially since the decision of the present International Court 
of Justice in the Case of the Arrest Warrant of 11 April 2000 (Democratic Repub- 
lic of Congo v. Belgium) (2002). H It must now be regarded as essential to pre- 
scriptive jurisdiction that there be some nexus or linking point between the 
legislating state and the reprehended activity that is supported by the positive 



10. The Australian Security and Intelligence Organization Legislation Amendment (Terrorism) 
Bill after passing both the Australian House and Senate was not approved by Prime Minister John 
Howard-. The Bill will be reconsidered in the 2003 Parliament. See Paul Sheehan, PM's Doubled- 
dissolution Trigger Finger must be Itching over ASIO Bill, SYDNEY MORNING HERALD, Dec. 16, 
2002, at 13. 

11. See Security Legislation Amendment (Terrorism) Bill, No 65, 2002 (Austl.). 

12. See generally A.L.I. RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED 
STATES, § 432, at pgs. 232, 235-238 (1987). 

13. S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sep. 7, 1927). 

14. See Case of the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. 
Belgium), 41 I.L.M. 536 (2002), available at http://www.lawschool.cornell.edu/library/cijwww/ 
icjwww/ipresscom/ipress2002/ipresscom2002-04_cobe_200202 14-htm (Jan. 10, 2002). 

279 



The Limits of Coalition Cooperation in the War on Terrorism 

practice of other states. 15 In any event, the power to enforce validly prescribed 
laws is dependent upon physical custody of the offender or upon the availability 
of extradition from another state having custody. 

States have jurisdiction to prescribe the applicability of their criminal laws 
upon the following generally recognized bases: 

(a) The territorial basis of jurisdiction. States have jurisdiction to prescribe 
laws governing activities occurring in their territory, or in places assimilated to 
their territory, such as ships and aircraft of their nationality. It is an accepted 
extension of this basis of jurisdiction that states also have jurisdiction over of- 
fenses, elements of which occur outside their territory but which are com- 
pleted, or have effect, or are intended to have effect, within it. 16 

(b) The nationality basis of jurisdiction. States have jurisdiction to pre- 
scribe laws governing the activities of their citizens wherever they occur. 
Whether states are also justified in international law in asserting jurisdiction 
over those who commit offenses against their citizens (the "passive national- 
ity" basis of jurisdiction) is disputable. State practice in the matter is not uni- 
form. 17 

(c) The protective principle of jurisdiction. States have jurisdiction to pre- 
scribe laws governing the activities of those who would assault its existence or 
damage its essential interests. 18 Accepted examples include planning an inva- 
sion of the territory or the overthrow of its government, counterfeiting its cur- 
rency, and breaching the fiscal, immigration, sanitary and customs laws 
applicable against inbound vessels in the contiguous zone under the interna- 
tional law of the sea. Extensions, however, to interests that are not shared by 
the international community, such as the protection of the national religion 
through blasphemy laws, or the reputation of national rulers ("slander against 
the state") will not be widely recognized. 

(d) The universality principle of jurisdiction. States have jurisdiction to 
prescribe laws that correspond to offenses regarded by international law as 



15. See, e.g., Israel v. Adolf Eichmann, 36 1.L.R. Rep. 5 (D.C. Jm., 1961) [hereinafter Eichmann]. 

16. See Liangsiriprasert v. US, [1991] 1 A.C. 225 (P.C.). 

17. United States law recognizes this basis of jurisdiction for certain purposes, e.g., hostage- 
taking. See, e.g., Hostage Taking Act § 2001, 18 U.S.C § 1203 (2002). On a more 
comprehensive basis a Bill has been introduced into the Australian Parliament: The Criminal 
Code Amendment. This bill has now been enacted as Division 104 of the Criminal Code Act, 
1995, available at http://search.aph.gov.au/search/ParlInfo.ASP?action=browse&Path=Legislation/ 
Current + Bills + by + Title/Criminal + Code + Amendment + (Offences + Against + Australians) 
+ Bill+2002&Start=3&iGD#top Can. 10, 2003). 

18. See Eichmann, supra note 15, at 5. 



280 



Ivan Shearer 



crimes by the law of nations. The historic instance is piracy. Beyond that 
there is doubt, because of the difficulty in establishing whether definitions 
have crystallized as customary international law. Strong candidates for inclu- 
sion in the category, however, are slavery, crimes against humanity, genocide, 
planning and conducting a war of aggression, and war crimes. 

Instead of leaving the development of crimes against international law, and 
the concomitant universality of jurisdiction over them, to the evolutionary 
processes of customary law, the trend since 1948 has been to define offenses 
against international law in international conventions. There are a large num- 
ber of these. 19 The jurisdiction prescribed by these conventions is not truly 
universal in the sense that any state may prosecute, as in the case of piracy. 
Instead they prescribe a variety of jurisdictional bases for prosecution and a 
duty on the state actually having custody of the offender to either prosecute 
the offender itself or extradite to another state having jurisdiction on one of 
the bases set out. This duty is described as out dedere out judicare (punire) (the 
duty to extradite or to prosecute). It might therefore be described as a "quasi- 
universality" basis of jurisdiction, because there must be a linking point be- 
tween the offense and the prosecuting state, even though that might merely 
be the fortuitous presence of the offender in the territory of the state that first 
finds and detains the offender. 

Note that many of the above conventions incorporating the aut dedere aut 
judicare formula are related to particular forms of terrorism. The latest of 
these, the International Convention for the Suppression of Terrorist Bomb- 
ings, 1998, incorporates the same formula. 20 

The Draft Comprehensive International Convention on Terrorism, under 
negotiation in the United Nations, also incorporates the aut dedere aut judicare 



19. See, e.g,. Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 
3 1 ; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked 
Members of Armed Forces at Sea, Aug. 12, 1949, 6. U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 
85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 
T.I.A.S. No. 3364, 75 U.N.T.S. 135 thereinafter GC III]; Convention Relative to the Protection 
of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 
U.N.T.S. 287 [hereinafter GC IV]; Hague Convention for the Suppression of Unlawful Seizure 
of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641 (1971); Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, U.N. 
GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984), reprinted in 23 I.L.M. 1027, and in 
24 I.L.M. 535 (entry into force for United States on Nov. 20, 1994) 

20. See International Convention for the Suppression of Terrorist Bombings, GA Res. 52/164 
(Dec. 15, 1997), 37 I.L.M. 249 (1998) (ratified by the United States on Jun. 26, 2002) 
[hereinafter Terrorist Bombings Convention] . 

281 



The Limits of Coalition Cooperation in the War on Terrorism 

principle. 21 In addition to the states whose jurisdiction must be assured pursu- 
ant to the Convention — the territorial state, the state of nationality of a vessel 
or aircraft affected, and the state of nationality of the offender — the following 
optional bases of national jurisdiction are also prescribed: 



(a) The offence is committed by a stateless person who has his or her habitual 
residence in the territory of that state; or 

(b) The offence is committed wholly or partially outside its territory, if the effects 
of the conduct or its intended effects constitute or result in, within its territory, 
the commission of an offence set forth in article 2; 

(c) The offence is committed against a national of that state; or 

(d) The offence is committed against a state or government facility of that state 
abroad, including an embassy or other diplomatic or consular premises of that 
state; or ' 

(e) The offence is committed in an attempt to compel that state to do or to 
abstain from doing any act; or 

(f) The offence is committed on board an aircraft which is operated by the 
government of that state. 22 

The Relevance of International Norms of Human Rights 

In the treatment of suspected terrorists after their detention, states are bound 
by the international norms of human rights. The provisions of the Universal 
Declaration of Human Rights, 1948 are regarded as declaratory of generally 
binding international law, as are — for the greater part — the provisions of the 
International Covenant on Civil and Political Rights of 1966. The United 
States and 147 other states are parties to the latter instrument and are thus 
bound by it also as a treaty instrument. 23 

The following provisions of the Universal Declaration are especially rele- 
vant to the treatment of suspected terrorists: 



21. See Draft International Convention on Terrorism, supra note 5, at art. 11. 

22. Id., art. 6(2). 

23. See Universal Declaration ofHuman Rights, Dec. 10, 1948, G.A. Res. 217A(III), U.N. Doc. 
A/810 (1948) [hereinafter Universal Declaration ofHuman Rights]; International Covenant on 
Civil and Political Rights, opened for signature Dec. 19, 1966, 1991 U.N.T.S. 171 (entered into 
force Mar. 23, 1976, ratified by the United States on June 8, 1992) [hereinafter ICCPR]. 

282 



Ivan Shearer 



Article 5. "No one shall be subjected to torture or to cruel, inhuman or de- 
grading treatment or punishment." 24 

Article 9. "No one shall be subjected to arbitrary arrest, detention or ex- 
ile." 25 

Article 10. "Everyone is entitled in full equality to a fair and public hearing 
by an independent and impartial tribunal in the determination of his rights 
and obligations and of any criminal charge against him." 26 

Article 11. "(1) Everyone charged with a penal offence has the right to be 
presumed innocent until proved guilty according to law in a public trial at 
which he has had all the guarantees necessary for his defence." 27 
These provisions are confirmed and expanded in articles 7, 9, and 14 of the In- 
ternational Covenant on Civil and Political Rights. 28 

Do these provisions impose extraterritorial obligations on states? Article 2 
(1) of the Covenant obliges each state party to respect and to ensure the rights 
recognized in the Covenant "to all individuals within its territory and subject 
to its jurisdiction." Is the word "and" to be read conjunctively or disjunctively? 
The latter appears to be the preferred reading. The Human Rights Committee 
established under the Covenant, has determined that this article "does not 
imply that the state party concerned cannot be held accountable for violations 
of rights under the Covenant which its agents commit upon the territory of 
another state, whether with the acquiescence of the government of that state 
or in opposition to it." 29 The Committee has also had occasion to address the 
same point in its observations on Belgium's periodic report: 

The Committee is concerned about the behaviour of Belgian soldiers in Somalia 
under the aegis of the United Nations Operation in Somalia (UNSOM II), and 
acknowledges that the State Party has recognized the applicability of the 



24. See Universal Declaration of Human Rights, supra note 23, art. 5. 

25. Id. at art. 9. 

26. Id. at art. 10. 

27. Id. at art. 11. 

28. See ICCPR, supra note 23, arts. 7, 9, 14. 

29. See Sergio Ruben Lopez Burgos v. Uruguay, Comm. no. 12/52, Report of the Human Rights 
Committee, U.N. GAOR, 36th Sess., Supp. No. 40, at 176, U.N. Doc. A/36/40 (1981); digestedin 
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS 
AND COMMENTARY (S. Joseph et al. eds., 2000), at 59-60 [hereinafter INTERNATIONAL 
COVENANT]. As noted by these authors, the separate reasoning in this case of Committee 
Member Christian Tomuschat is most persuasive. A similar conclusion was reached by the 
Human Rights Committee in the case of Celiberti de Casariego v. Uruguay. See Comm' No. R. 
13/56, Report of the Human Rights Committee, U.N. GAOR, 36th Sess., Supp. No. 40, at 185, 
U.N. Doc. A/36/40 (1981). 

283 



The Limits of Coalition Cooperation in the War on Terrorism 

Covenant in this respect and opened 270 files for the purposes of 
investigation. 30 

It would thus appear to be the case that states, in their operations against 
terrorists, cannot avoid their obligations under international human rights law 
by detaining suspects in offshore facilities. "Jurisdiction" means effectively 
"within the power of." In battlefield conditions, where it is not immediately 
obvious who are lawful combatants and who are criminals, the law of the 
Geneva Conventions, 1949, must obviously apply as a lex specialis. But in cases 
not covered by the Geneva Conventions, international human rights law 
applies. 

It may be argued that the international norms of human rights apply only in 
normal circumstances and not in relation to terrorists, whose very aim is the 
violation of the human rights of others and the destruction of institutions — in 
many cases, transparent and democratically accountable institutions. The 
Covenant recognizes this by the inclusion, in Article 4, of a right of deroga- 
tion, but in strictly limited circumstances. Article 4 states: 

1. In time of public emergency which threatens the life of the nation and the 
existence of which is officially proclaimed, the States Parties to the present 
Covenant may take measures derogating from their obligations under the 
present Covenant to the extent strictly required by the exigencies of the 
situation, provided that such measures are not inconsistent with their other 
obligations under international law and do not involve discrimination solely on 
the ground of race, colour, sex, language, religion or social origin. 

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 
may be made under this provision. 

3. Any State Party to the present Covenant availing itself of the right of 
derogation shall immediately inform the other States Parties to the present 
Covenant, through the intermediary of the Secretary-General of the United 
Nations, of the provisions from which it has derogated and of the reasons by 
which it was actuated. A further communication shall be made, through the 
same intermediary, on the date on which it terminates such derogation. 31 



30. See Human Rights Committee, 64th Sess., Consideration of Reports Submitted by State 
Parties Under Article 40 of the Covenant, U.N. Doc. CCPR/C/79/Add.99 available at http.// 
www.hri.ca/fortherecordl998/documentation/tbodies/ccpr-c-79-add99.htm (Jan. 11, 2003); 
reprinted in INTERNATIONAL COVENANT, supra note 29, at 62. 

31. See ICCPR, supra note 23, art. 4. 

284 



Ivan Shearer 



The provisions of Article 4 have been the subject of considerable elabora- 
tion and interpretation. The Human Rights Committee itself issued a General 
Comment on the article in 200 1; 32 in 1984 the International Law Association 
adopted the Paris Minimum Standards of Human Rights Norms in a State of 
Emergency; 33 and, in 1985 a group of experts in international law adopted the 
Siracusa Principles on the Limitation and Derogation Provisions in the 
ICCPR. 34 Common to these formulations is the invocation of the principle of 
proportionality of the measures in derogation, and the requirement that they 
be withdrawn as soon as the emergency has passed. 

It will be seen that the threshold of justification is set high by the terms of 
paragraph 1. For countries such as the United States or Australia, there would 
be an understandable reluctance to declare a state of emergency, even after 
such catastrophic events as those of 11 September 2001, for fear of spreading 
panic in the community, or of appearing to confess the inability of the govern- 
ment to take effective measures against terrorists within the existing law. The 
danger should have manifested itself more widely and frequently to justify 
such a step. 35 Nevertheless, certain measures have been taken in relation to 
suspected terrorists arrested in the United States, and those detained in Af- 
ghanistan and other places, without a declaration so far of derogation under 
the Covenant. Special powers of arrest and detention in relation to suspected 



32. See U.N. International Human Rights Instruments, Compilation of General Comments and 
General Recommendations Adopted by Human Rights Treaty Bodies, Addendum, General 
Comment No. 29, U.N. Doc. HRI/GEN/1/Rev.5/Add. 1 (Apr. 18, 2002) available at http:// 
www.unhchr.ch/pdf/Genlrev5addl_E.pdf (Jan. 12, 2003). 

33. See THE PARIS MINIMUM STANDARDS OF HUMAN RIGHTS NORMS IN A STATE OF 
EMERGENCY (1984), reprinted in 79 AM. J. INT'L L. 1072 (1985). 

34. See The Siracusa Principles on the Limitation and Derogation Provisions in the 
International Covenant on Civil and Political Rights, arts. 29-32, reprinted in 7 HUMAN RIGHTS 

Quarterly l (1985). 

35. The United Kingdom had availed itself in the past of the power of derogation under the 
Covenant, but only in respect of the territory of Northern Ireland, notwithstanding that sporadic 
terrorist acts were being committed elsewhere in the United Kingdom. On 18 December 2001, 
however, the United Kingdom gave notice of derogation for the whole of the United Kingdom by 
reason of a general public emergency following the events of September 11, 2001. The 
declaration referred to the enactment of the An ti- terrorism, Crime and Security Act, 2001, but 
was limited to a derogation from article 9 of the Covenant in relation to extended powers of arrest 
and detention of foreign nationals where there is an intention to deport. See And- terrorism, 
Crime and Security Act 2001, c. 24, 21-23 (Eng.) (detailing the new law of the United Kingdom 
for dealing with suspected international terrorists, through certification, deportation, and 
detention), available at http://www.legislation.hmso .gov.uk/acts/acts2001/20010024-htm Qan. 
12, 2003). 

285 



The Limits of Coalition Cooperation in the War on Terrorism 

terrorists are currently being considered by the Australian Parliament. 36 There 
is a question therefore whether these measures are compatible with the Cove- 
nant, in the absence of a formal declaration of derogation. 

Extradition of Terrorists 

It has long been accepted that there is no duty in customary international law 
to grant extradition of accused or convicted criminals at the request of another 
state. A duty to extradite is imposed only by treaty. These treaties may be bilat- 
eral, or they may be contained in multilateral treaties, especially of the type de- 
scribed above in which the parties are bound to either extradite or prosecute 
(out dedere aut judicare) . 

Existing extradition treaties, whether bilateral or multilateral, between 
many countries already cover in substance the offenses commonly regarded as 
pertaining to terrorism. There are gar3s in that coverage, however, both geo- 
graphically and substantively. For those countries whose power to grant extra- 
dition depends on the existence of an applicable treaty the treaty network may 
have become neglected or have fallen behind in its recognition of new types of 
offenses, such as terrorism. For those countries whose laws permit them to 
grant extradition without a treaty, on an ad hoc basis, and subject to a demon- 
stration of criminality under the laws of both the requesting and the requested 
states (the rule of dual criminality), those laws may similarly have fallen be- 
hind current needs. 

Two frequently encountered exceptions to extradition found in treaties 
and national laws are a prohibition of the extradition by a state of its own citi- 
zens, and the exception of politically motivated offenders. 

The prohibition of extradition of citizens is a rule deeply entrenched in the 
legal systems of civil law countries. It derives from Roman Law and exchanges 
for the duty of obedience that the citizen owes to the state a duty of the state 
not to deliver up a citizen to a foreign jurisdiction. Countries of the common 
law tradition recognize no such restriction. In many extradition treaties be- 
tween civil law and common law countries, therefore, the refusal to extradite 
citizens is made discretionary, so that the civil law position can be maintained 
while giving an opportunity to the common law country to refuse by way of 
reciprocity. The result is a mismatch. Civil law countries allow for prosecution 
of their own citizens for crimes committed anywhere in the world, as is recog- 
nized in international law by the nationality principle of jurisdiction. With few 



36. See note 10 supra and accompanying text. 

286 



Ivan Shearer 



exceptions, the common law countries remain attached to the territorial prin- 
ciple of jurisdiction. This attachment goes back to the earliest days of the Eng- 
lish common law and the institution of trial by jury; crime was local because it 
could be presented by a grand jury and judged by a petty jury, composed only 
of local citizens. The result can be that where a common law country refuses 
extradition of one of its citizens by way of reciprocity, there is no power to try 
the offender in the common law country, and a failure of justice may result. 37 
There would appear to be no way around this difficulty. The non-extradition 
of citizens is a principle even embedded in the constitutions of some countries. 
It is unlikely that any international convention on terrorism would succeed in 
setting aside that principle. Perhaps only the United Nations Security Council 
could do so, as it did in relation to those charged with the Lockerbie inci- 
dent. 38 

The exception from extradition of political offenses and of persons who, if 
extradited, might suffer prejudice at their trial on account of their race, reli- 
gion, nationality or political opinion is almost universally recognized in extra- 
dition treaties and national extradition laws. 39 Terrorism is an example par 
excellence of a politically motivated offense. As far back as the 19th century, 
doubts began to be voiced about protecting individuals from extradition who 
had committed indiscriminate or cruel crimes for a political motive. Anar- 
chists were held to be outside the rule and therefore extraditable. Attempts to 
exclude the rule against the extradition of such individuals failed in the Hague 
(1970) and Montreal (1971) Conventions on hijacking and sabotage of air- 
craft, respectively. However, the European Convention on the Suppression of 
Terrorism, 1977, expressly set aside the rule 40 and the current Draft 



37. Ivan Shearer, Extradition in international Law 94-131 (1971) [hereinafter 
Shearer]. 

38. See Case Concerning Questions of Interpretation and Application of the 1971 Montreal 
Convention Arising from the Aerial Incident at Lockerbie (Libya v. US; Libya v. UK) (Request 
for the Indication of Provisional Measures), 1992 I.C.J. 3. [hereinafter Lockerbie Case]. 

39. SHEARER, supra note 37, at 166-193. 

40. See European Convention on the Suppression of Terrorism, Eur. T.S. No. 90 Qan. 27, 1977), 
available at http://conventions.coe.int (Jan. 13, 2003). The Convention requires that none of the 
following offenses shall be regarded as political for the purposes of extradition: crimes under the 
international conventions regarding hijacking and sabotage of aircraft, hostage taking, attacks 
against internationally protected persons, or "an offense involving the use of a bomb, grenade, 
rocket, automatic firearm or letter or parcel bomb if this use endangers persons." Attempts or 
complicity in the above offenses are also excluded. Optionally, under article 2, states parties may 
regard any act of violence against the person, or any act against property if the act created a 
collective danger to persons, as not qualifying as a political offense. Id. 

287 



The Limits of Coalition Cooperation in the War on Terrorism 

Comprehensive Terrorism Convention, being considered by the United Na- 
tions, does so also. 

Within some states, the domestic law may be in advance of what the con- 
ventions require, as is the case of Australia. The extradition laws of Australia 
exclude from the application of the political offense exception offenses estab- 
lished under the international conventions concerning the hijacking of air- 
craft, sabotage of aircraft, genocide, internationally protected persons, 
hostage taking, and torture. 41 Regarding countries to which this provision is 
applied specifically by regulation, the exception may not be invoked in respect 
of the murder, kidnapping or attack on the person of a Head of State or Head 
of Government of a country, or the taking or endangering of life being an of- 
fense "committed in circumstances in which such conduct creates a collective 
danger, whether direct or indirect, to the lives of other persons." 42 However, a 
general exception of terrorism from the category of political offenses in Aus- 
tralia's extradition laws has not yet been effected. 

It thus emerges that the non-extradition of citizens rule constitutes the 
greater continuing handicap to the surrender of a terrorist offender to a re- 
questing state. The national state of the offender, not being the state where 
the act occurred or had its effects, is entitled to prosecute but might do so un- 
der evidentiary handicaps, or without diligence. That state might indeed be 
most reluctant to undertake the task of prosecution, where local sympathies 
lay with the offender, or where the state felt intimidated by the prospect of 
possible retaliation against itself by associates of the offender. In such cases, if 
the International Criminal Court were invested with jurisdiction over the of- 
fense, it would be a relief to be able to cede the case to that Court. 

Resolution 1373 (2001), adopted unanimously by the United Nations Se- 
curity Council on 28 September 2001, did not attempt to impose a duty of ex- 
tradition as such, but laid down several important obligations ancillary to the 
extradition process. Paragraph 2 of the resolution, adopted under Chapter VII 
of the Charter and under the heading "Decides" (which triggers its binding ef- 
fect for all Members of the UN, as prescribed in article 25 of the Charter of the 
UN), includes the following subparagraphs: 



41. See Extradition Act, 1988, § 5 (Austl). 

42. Id. 



288 



Ivan Shearer 



Decides also that all States shall . . . 

(e) Ensure that any person who participates in the financing, planning, 
preparation or perpetration of terrorist acts or in supporting terrorist acts is 
brought to justice and ensure that, in addition to any other measures against 
them, such terrorist acts are established as serious criminal offences in domestic 
laws and regulations and that the punishment duly reflects the seriousness of 
such terrorist acts; 

(f) Afford one another the greatest measure of assistance in connection with 
criminal investigations or criminal proceedings relating to the financing or 
support of terrorist acts, including assistance in obtaining evidence in their 
possession necessary for the proceedings. 43 

The phrase in subparagraph (e) "is brought to justice" seems to comprehend 
the out dedere autjudicare principle without explicitly saying so. The injunction 
that domestic laws be enacted to make terrorist acts, as such, distinct offenses 
under national law serves as a necessary precondition to the full application of 
the dual criminality requirement of extradition law. 

Paragraph three of the resolution, in which the Security Council "Calls 
upon all States to . . .", is not binding under article 25 of the Charter, not being 
a decision, but is nonetheless a directive that has weight. Subparagraph (g) of 
this paragraph calls upon states to ensure that "claims of political motivation 
are not recognized as grounds for refusing requests for the extradition of al- 
leged terrorists." 44 This relatively weak provision reflects the failure of previ- 
ous efforts in multilateral conventions, such as the hijacking and sabotage of 
aircraft conventions, to exclude the political offense exception to extradition 
altogether. On the other hand, the political offense exception has been explic- 
itly excluded in the International Convention for the Suppression of Terrorist 
Bombings (1998) 45 and in the current Draft Comprehensive International 
Convention on Terrorism. 46 

Another aspect of extradition of terrorists is revealed by the case of three 
men accused of conspiracy with Osama bin Laden and the al Qaeda group to 



43. See S. C. Res. 1373, supra note 2. 

44. Id. 

45. See Terrorist Bombing Convention, supra note 20, art. 11. 

46. See Draft International Convention on Terrorism, supra note 5, art. 5, which provides that 
(l [e]ach State Party shall adopt such measures as may be necessary, including, where appropriate, 
domestic legislation, to ensure that criminal acts within the scope of this Convention are under 
no circumstances justifiable by considerations of a political, philosophical, ideological, racial, 
ethnic, religious or other similar nature." 

289 



The Limits of Coalition Cooperation in the War on Terrorism 

commit the bombings of the American Embassies in Nairobi, Kenya and Dar 
es Salaam, Tanzania. They were arrested in the United Kingdom and held for 
extradition to the United States. No point could have been taken that the of- 
fenses, being politically motivated, should have been excluded from extradi- 
tion, because terrorism is expressly excepted from the category of political 
offenses for which extradition may not be given. 47 The point taken on behalf 
of the accused on appeal to the House of Lords was that the alleged crimes, 
having been committed in Kenya and Tanzania, were not committed "within 
the jurisdiction" of the United States, as required by the applicable bilateral 
treaty of extradition between the United Kingdom and the United States, and 
the UK Extradition Act, 1989. The House of Lords held unanimously that 
"jurisdiction" was a wide enough expression to comprehend extraterritorial 
jurisdiction of the kind asserted by both the United States and the United 
Kingdom in like cases. 48 Lord Hutton stated that: 

[m]y principal reason for forming this opinion is that in the modern world of 
international terrorism and crime proper effect would not be given to the 
extradition procedures agreed upon between states if a person accused in a 
requesting state of an offence over which that state had extra-territorial 
jurisdiction (it also being an offence over which the requested state would have 
jurisdiction) could avoid extradition on the ground that the offence was not 
committed within the territory of the requesting state. 49 

The Death Penalty 

Still another impediment to extradition of terrorists is the difference in policies 
among even otherwise like-minded states as to the death penalty. The coun- 
tries of the European Union, Australia, Canada and New Zealand have abol- 
ished the death penalty in their own laws, and will extradite to states, such as 
the United States, which retain the death penalty, only on condition that the 
death penalty, if imposed, will not be carried out. 

In the case of In re Fawwaz, Lord Scott of Foscote in his separate opinion 
noted that the Act of 1989 contained certain safeguards for the fugitive crimi- 
nal whose extradition is sought. Among these was: 



47. Extradition Act, 1989, c. 33, § 24 (UK). 

48. In re AlTawwaz [2002] 1 A.C. 556; 41 I.L.M. 1224 (2002). 

49. Id. at para. 64. 



290 



Ivan Shearer 



[h]e will not be extradited unless the [UK] Secretary of State decides, as a 
matter of discretion, to order that the extradition may proceed. It has become 
the settled practice, as I understand it, for the Secretary of State, in a case where 
the law of the extraditing state might subject the extradited prisoner on 
conviction to the death penalty, to require a guarantee that a death sentence 
will not be imposed (see Soeringv. UK (1989) 11 EHRR439). 50 

If, as is to be expected, an increasing number of terrorists associated with 
the events of September 11, 2001 are arrested in countries outside the United 
States, these differences in policies raise serious legal and political questions. 
The legal questions will arise under the laws of the requested state and under 
the terms of the applicable extradition treaties with the United States. Where 
the death penalty is available under the laws of both requesting and requested 
states there will be no problem. But an increasing number of states have abol- 
ished the death penalty. This gives rise to the specter of discrimination: the 
imposition of the death penalty on a terrorist extradited from another country 
will depend upon whether conditions have been attached to the extradition, 
as in Fawwaz. Presumably the United States would be in a position to enforce 
those conditions, where terrorists are prosecuted under federal and not state 
laws. 51 

The political questions are obvious, but their answers are not. How can one 
explain to the people of New York City, or indeed the entire United States, 
that an extradited terrorist associated with the attack on the World Trade 
Center can get a maximum of life imprisonment, whereas an ordinary mur- 
derer faces the death penalty? 

Fair Trial Safeguards in Extradition 

Extradition treaties do not usually contain provisions requiring the parties to 
observe accepted standards of a fair trial after extradition. In the past, the very 
existence of a bilateral treaty, or a willingness to act on an ad hoc basis, have 
been regarded as tacit acknowledgment of the respect the parties have for one 
another's processes. Doubts have emerged, however, in recent years where 
multilateral treaties containing extradition clauses are open to all states to ad- 
here. It may sometimes be the case that the internal situation in a bilateral 



50. Id. at para 121. 

51. See Case Concerning the Vienna Convention on Consular Relations (Paraguay v. US), 1998 
I.C.J. 99, 37 I.L.M. 812 (1998); Breard v. Greene, 532 U.S. 371 (1998) reprinted in 37 I.L.M. 824; 
LaGrand Case (F.R.G. v. US), 1999 I.C.J. 9. 

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The Limits of Coalition Cooperation in the War on Terrorism 

partner state, once of an acceptable order, has deteriorated. There is concern 
that under the laws of some states it is difficult or impossible to refuse extradi- 
tion on the grounds that the human rights of the person extradited might be vi- 
olated after return: the so-called "rule of non-inquiry." 52 

To some extent, the issue of fair trial safeguards overlaps with the protec- 
tion accorded political offenders. The formula most often used is to the effect 
that the extradition of a requested person may be refused if the requested state 
has reason to believe that, if returned, the alleged offender may be punished, 
or suffer prejudice at his or her trial, on account of race, religion, nationality or 
political opinion. On the other hand, if the issue of a fair trial arises in the con- 
text of corruption or incompetence in the legal system of the requesting state, 
or of cruel or unusual punishments, it is likely to be dealt with through the ex- 
ercise of the general discretion of requested states to refuse extradition in all 
the circumstances of the case. Where the exercise of that discretion is 
unreviewable by a court in the requested state, the outcome for the alleged of- 
fender can be unpredictable. 

A more principled manner in which the executive discretion to refuse ex- 
tradition in such circumstances could be exercised would be by reference, to 
Article 14 of the International Covenant on Civil and Political Rights, which 
sets out fair trial rights in detail. Article 14 provides, inter alia, that "everyone 
shall be entitled to a fair and public hearing by a competent, independent and 
impartial tribunal established by law." 53 There is an exception, however, of 
particular relevance in respect to the procedures proposed for the trial of ter- 
rorist suspects in the United States: 

[t]he press and the public may be excluded from all or part of a trial for reasons 
of morals, public order (ordre public) or national security in a democratic society, 
or where the interest of the private lives of the parties so requires, or to the 
extent strictly necessary in the opinion of the court in special circumstances 
where publicity would prejudice the interests of justice; but any judgment 
rendered in a criminal case or in a suit at law shall be made public except where 
the interest of juvenile persons otherwise requires or the proceedings concern 
matrimonial disputes or the guardianship of children. 54 

Parts of this provision (made somewhat turgid in its attempt at comprehen- 
siveness) have obvious implications for the trial of terrorists. 



52. On this question see John Dugard and Christine Van den Wyngaert, Reconciling Extradition 
with Human Rights, 92 AM. J. INT'L. L. (1998). 

53. See ICCPR, supra note 23, art. 14. 

54. Id. 

292 



Ivan Shearer 



In the case of Fawwaz, Lord Scott, after raising the question of the death 
penalty, proceeded to another matter of concern: trial before special courts, 

[t]he media have, over the past few weeks, carried reports of the intention of the 
President of the US, acting under emergency executive powers, to establish 
military tribunals to try non-US citizens who are accused of terrorist offences. 
The offences with which these appellants are charged might well fall within the 
category of offences proposed to be dealt with by military tribunals. It is reported 
that the proposed military tribunals will be presided over by military personnel, 
not judges, will be able to admit evidence that would not ordinarily be 
admissible before a criminal court of law, and will be able to conduct the trial 
behind closed doors. The charges against the appellants that have led to the 
extradition requests were laid before the US District Court for the Southern 
District o{ New York. If the appellants are to be extradited I imagine that they 
will be tried before that court or some other Federal Court and not before a 
military tribunal that will not need to sit in public and that need not observe the 
rules of evidence. 55 

Although another member of the House of Lords, Lord Hutton, expressly 
dissociated himself from the remarks of Lord Scott, observing that the issue 
had not been raised in argument, 56 this consideration could clearly arise on a 
future occasion. 

The International Criminal Court 

The opposition of the United States to the establishment and future operation 
of the International Criminal Court is well known. It stands in contrast to the 
attitude of many of its closest allies, including Australia, Canada, and the 
United Kingdom, which have all ratified the Rome Statute. It is not proposed 
to examine the differences in policies in this paper. There are, however, two 
points of relevance to the topic of terrorism. 

In the first place, terrorism, as such, is not a crime within the jurisdiction of 
the International Criminal Court. At the Rome Conference, states urging that 
terrorism be designated a crime within the jurisdiction of the Court included 
Algeria, India, Israel, Libya, Russia, and Turkey. However, most delegations 
were opposed. As one commentator has remarked, "An essential reason be- 
hind the resistance to the inclusion o( terrorism within the ICC's jurisdiction 



55. See In re Al-Fawwaz, supra note 48, at para. 121. 

56. Id. at para. 93. 



293 



The Limits of Coalition Cooperation in the War on Terrorism 

is the fear of politicization of the ICC. The League of Arab States opposed the 
inclusion of international terrorism in the ICC Statute on the ground that the 
international community has not been able to define 'terrorism' in such a way 
as to be generally acceptable." 57 

However, it seems that certain acts of terrorism might constitute a crime 
against humanity, as defined in the Statute. On the face of it, the definition of 
murder in Article 7 of the Rome Statute would cover such acts as the destruc- 
tion of the PanAm flight over Lockerbie, Scotland, in 1988, and the attack on 
the World Trade Center on September 11, 2001: 

1. For the purposes of this Statute, 'crime against humanity' means any of the 
following acts when committed as part of a widespread or systematic attack 
directed against any civilian population, with knowledge of the attack: 

a) murder; . . . 

2. For the purpose of paragraph 1: / 

a) 'attack directed against any civilian population' means a course of 
conduct involving the multiple commission of acts referred to in paragraph 1 
against any civilian population, pursuant to or in furtherance of a State or 
organizational policy to commit such attack. 58 

In both cases there was a systematic 59 attack causing multiple deaths of civilians 
in furtherance of an organizational policy by terrorist groups. 

Whether such cases would be brought before the International Criminal 
Court, and whether that Court would accept jurisdiction over them, remains 
to be seen. It may be that, if current negotiations in the United Nations suc- 
ceed in producing a widely accepted and comprehensive convention on ter- 
rorism, a new category of crimes following the convention definition of 
terrorism might be added to the Rome Statute by way of the amendment 
mechanism included in that Statute. The existence of such a neutral forum for 
the prosecution of terrorist offenses would have several advantages over 



57. Kriangsak Kittichaisaree, International Criminal Law (2001), 227. 

58. See Rome Statute of the International Criminal Court, art. 7, U.N. Doc. A/CONF. 183/9 
(1998), available at http://www.un.org/law/icc/statute/romefra.htm (Jan. 13, 2003) [hereinafter 
Rome Statute]. 

59. While not defined in the Rome Statute, the term "systematic" is familiar to recent ad hoc 
tribunals and was discussed in Prosecutor v. Akayesu, Judgement, No. ICTR-96-4-T (Sep. 2, 
1998), which stated that: "systematic" may be defined as thoroughly organized and following a 
regular pattern on the basis of a common policy involving substantial public or private resources." 
See Prosecutor v. Tadic, Opinion and Judgment, No. IT-94-1-T, para. 652 (May 7, 1997), 
excerpted in 36 I.L.M. 908, § 6.4. 

294 



Ivan Shearer 



prosecution before the courts of the states most closely affected. The most im- 
portant of these are the transparency and international character of the 
Court's proceedings, and the credibility of its findings and sentences. 

There is some force in the objections raised by the United States towards the 
ICC, or at least in so far as it might in future assert jurisdiction over US citizens. 
As the almost always indispensable leader of UN and other peace enforcement 
operations, US personnel are more likely than others to be exposed to the possi- 
bility of maliciously inspired prosecutions for alleged war crimes. The principle 
of complementarity, which gives primacy to the national courts of the alleged 
offender, goes a long way towards meeting that objection. This, of course, as- 
sumes that in such a case the United States would be willing at least to conduct 
an investigation into the allegations. A negative finding would be accepted by 
the Court as a bar to prosecution before it, unless the decision not to prosecute 
in the national jurisdiction "resulted from the unwillingness or the inability of 
the State concerned genuinely to prosecute." 60 

Another protection built into the Rome Statute is that where a request is made 
of a state for the surrender oi an accused person to the Court, the requested state 
may not be required to "act inconsistently with its obligations under international 
agreements pursuant to which the consent of a sending state is required to surren- 
der a person of that state to the Court, unless the Court can first obtain the coop- 
eration of the sending state for the giving of consent to the surrender." 61 The term 
"sending state" is not defined, but it is a term of art used not only to refer to the 
state establishing a diplomatic or consular mission in another state ("the receiving 
state") but also the state which stations military personnel in another state under 
arrangements of the nature of a status of visiting forces agreement. Thus US mili- 
tary personnel stationed in Australia would not be surrendered by Australia to the 
Tribunal without the consent of the United States. 

The United States introduced into the Security Council in June 2002 a draft 
resolution that would have the effect of excluding from the jurisdiction of the 
ICC the personnel of all missions, military and civilian, engaged in operations 
sanctioned by the United Nations. 62 This is understandable. A Security 



60. See Rome Statute, supra note 58, art. 17. 

61. Id. at art. 98(2). 

62. Editors note: This draft resolution resulted in S. C. Res. 1422, U.N. SCOR, 57th Sess., U.N. 
Doc. S/1422/(2002), which provides that consistent with Article 16 of the Rome Statute, "the 
ICC, if a case arises involving current or former officials or personnel from a contributing State 
not a Party to the Rome Statute over acts or omissions relating to a United Nations established or 
authorized operations, shall for a twelve-month period starting 1 July 2002 not commence or 
proceed with investigation or prosecution of any such case, unless the Security Council decides 
otherwise." 



295 



The Limits of Coalition Cooperation in the War on Terrorism 

Council resolution would, of course, "trump" the provisions of the Rome Stat- 
ute. 63 Less understandable is a draft bill introduced into Congress, the Ameri- 
can Servicemembers' Protection Act, which would authorize retaliatory 
measures in the event that a US citizen were ever placed before the Court. 64 
This is the kind of reaction that dismays America's allies. A spirit of 
triumphalism, or American exceptionalism, serves to undermine the interna- 
tional goodwill and spirit of cooperation that alone can defeat the forces of 
terrorism. 

Conclusion 

The events of September 11th, 2001 have driven home the point that signifi- 
cant issues impacting coalition operations continue to exist. These issues, rang- 
ing from the lack of an internationally accepted definition of terrorism, to the 
problems associated with jurisdiction and extradition of terrorists, highlight 
that a truly effective response to terrorist acts must be through an effective, co- 
herent multilateral and multistate effort. Clearly there is much still to be done 
in these areas to win the war on terrorism. 



63. See Lockerbie Case, supra note 38. 

64. Editor's note: The American Servicemembers' Protection Act of 2002, was signed into law 
by President George W. Bush on August 2, 2002. Section 7427 of the act authorizes the 
president to use all necessary means to free certain individuals from the jurisdiction of the ICC. 
See The American Servicemember's Protection Act of 2002, 22 U.S.C.S. § 7427 (2002). 

296 



XV 



Panel III 
Commentary — Maritime & Coalition 

Operations 

Kenneth O'Rourke 1 



I well remember the day, during Operation ENDURING FREEDOM, that 
General Tommy Franks 2 called me into his office and stated that intelli- 
gence indicated there were four vessels containing al Qaeda members depart- 
ing Pakistani waters on their way to Northern Africa. His question was, what 
are we authorized to do? My response was that we are within our rights to inter- 
cept them — with some quick coordination, maritime interception operations 
(MIO) were born. I based my response primarily on Article 5 1 of the UN Char- 
ter and articulated that we had the right to intercept vessels containing terror- 
ist leaders who represented an immediate threat to our country. Since this 
initial intercept, I have heard many argue that maritime intercepts are nothing 
more than piracy and interference with freedom of the high seas. Piracy it is 
not. The coalition is not interdicting every vessel on the high seas, nor stop- 
ping every vessel at gunpoint. Interdiction measures are limited in nature and 



1. Commander Kenneth O'Rourke is a US Navy judge advocate serving as the Deputy Staff 
Judge Advocate for US Central Command. 

2. General Franks is the current commander of the US Central Command. The Central 
Command geographic area of responsibility includes Afghanistan. 



Panel III Commentary — Maritime & Coalition Operations 

designed to address a specific threat, including what is ultimately a threat even 
to maritime safety. 

There are a number of legal authorities used by various nations to conduct 
these operations. Two of the legal justifications for conducting MIO used by 
many of the coalition partners are the consent of the master and/or the con- 
sent of the flag state to conduct a visit/search. In that regard, the United 
States has bilateral agreements with various countries permitting such 
boardings. The belligerent right of visit and search is yet another authority 
some nations rely on. Of course, however, Article 5 1 of the UN Charter has 
come to be accepted as the primary basis for undertaking such operations. 

In this war on terror there is a nontraditional enemy. This war does not 
have many of the characteristic associated with a traditional war. There is an 
enemy that blends with civilians, a criminal enemy in the case of al Qaeda, 
operating with an unrecognized sovereign, the Taliban. Neither of these ene- 
mies operate within a recognized chain of command that conforms to the laws 
of armed conflict, nor do they have traditional target sets such as military in- 
frastructure and armored vehicle formations to engage. This is a new kind of 
war. This "war" is unique in that it is a blend of fighting criminals and tradi- 
tional combatants. A war fought applying international criminal law and the 
law of armed conflict. Nontraditional measures may be required to respond to 
this threat. 

For the time being, Article 5 1 provides the coalition with the necessary au- 
thority to engage in maritime interception operations against both the crimi- 
nal and combatant elements of our enemy. This right to conduct operations in 
"self-defense" may become attenuated over time, however, as Afghanistan be- 
comes a legitimate state and al Qaeda goes into, no doubt temporary, hiding. 
As time passes, the question will loom larger and larger as to whether the im- 
mediacy of the threat exists and additional authority is needed. Perhaps the 
authority to continue maritime interception operations against terrorist ele- 
ments already exists as a matter of custom under international law. Will the 
Article 51 justification fade and not provide adequate authority to continue 
maritime intercept operations against terrorists? Only time will tell. 

As we all know, Article 110 of the UN Law of Sea Convention (LOS Con- 
vention) provides authority to exercise limited jurisdiction over foreign flag 
vessels. That is, to undertake the right of approach and visit in circumstances 
where it is suspected that a vessel is, among other things, engaged in piracy or 



298 



Kenneth O'Rourke 



slave trade, or when the vessel is flagless. 3 Does the international community 
need more authority than is provided by Article 51 of the Charter, similar to 
that contained in Article 110 of the LOS Convention, to counter the threat 
from terrorism? I suggest that the additional authority already exists in custom 
and needs to be explicitly recognized. Application of Article 5 1 has its natural 
limits - temporal limits and geographic limits that are viewed by many to pre- 
clude continuing maritime interception operations to thwart present and fu- 
ture terrorist threats. It may be time for the international community to 
recognize that "terrorism" is an internationally recognized crime that is 
equally as abhorrent as piracy and slavery and that additional authority is re- 
quired to combat the threat. 

Only the future holds the answer to a number of very important questions 
related to the war on terrorism in a maritime environment. It remains to be 
seen if the United States and coalition partners can continue to use Article 5 1 
as the basis for maritime interception operations six months or a year from 
now. Will it work over the entire globe or only close to Afghanistan? Will we 
be able to approach vessels providing financial support to terrorist networks 
planning a strike six months from now? Will these actions be acceptable under 
an Article 5 1 self-defense concept or will new legal authority be required by 
the international community? Have new legal authorities already been estab- 
lished in custom and practice treating vessels playing a part in terrorism like 
vessels participating in slavery and piracy? Clearly, there are unknowns in the 
future of the war on terrorism. The international community must address 
these issues and provide the legal authorities necessary to continue to prose- 
cute the war on terrorism in a maritime environment. 



3. See U.N. Convention on Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), reprinted in 

Barry Carter and Phillip Trimble, International Law Selected Documents 

(2001), at 553. 

299 



XVI 



Panel III 
Commentary — Maritime & Coalition 

Operations 

Paul Cronan 1 



W: 



hile Australia has not yet participated in maritime interception oper- 
ations in support of the global war on terrorism, Australia has been 
involved in maritime interception operations in the Gulf of Arabia enforcing 
UN Security Council resolutions against Iraq for over ten years. Australia 
strongly supports the Security Council sanctions enforcement regime and its 
involvement in these operations is ongoing. Given our participation in such 
maritime interception operations, Australia has been perfectly positioned to 
closely observe the conduct of maritime interception operations in support of 
the global war on terrorism. In my view, Australia would have few legal difficul- 
ties supporting these operations which have their legal basis in Article 5 1 of the 
UN Charter. Ample legal authority exists for conducting such operations pro- 
vided the essential elements of an Article 5 1 operation are met. While it is cer- 
tainly preferable to have a United Nations Security Council Resolution 
authorizing these interception operations, such authority is not necessary given 



1. Wing Commander Paul Cronan is the Chief Legal Officer at Headquarters, Australian 
Theatre. 



Panel III Commentary — Maritime & Coalition Operations 

the existence of Article 5 1 and the customary international law right preceding 
this codification of the inherent right of self-defense. 

On the subject of significant coalition legal issues that confronted Australia 
in the lead-up to deploying troops in support of the US-led military response 
to international terrorism, host nation basing arrangements was near the top 
of the list. Notwithstanding Australia's early agreement to support the US-led 
coalition, it took some time for Australia to put in place the necessary interna- 
tional agreements to support the basing of Australian troops in the Middle 
East. Most Middle East countries supported the United States in its endeavors 
to root out international terrorism from the region but negotiating basing 
agreements takes time. What quickly became apparent was that these poten- 
tial host countries were fielding requests from a variety of nations to base peo- 
ple, aircraft, ships, etc. in their territory. Unlike Australia, the United States 
and United Kingdom had pre-existing relationships with many of these coun- 
tries and, accordingly had little difficulty activating existing or negotiating 
new basing agreements. Australia had few pre-existing agreements with re- 
gional Middle East nations and it took time to negotiate relevant basing rights. 
This directly impacted on the timing of the deployment of relevant Australian 
Defence Force elements. The lesson for Australia then, and one it seems the 
United States understands well, is that existing strategic relationships with 
countries throughout Australia's sphere of interest is preferable to trying to 
put such relationships in place only when the need arises. 

From a legal planning perspective, Australia had difficulties deploying its 
military legal officers G u ^ge Advocates) to those locations where they could 
best value-add to the operation. When the number of personnel deploying on 
an operation are limited, it is often difficult identifying where and when legal 
officers should be involved in the planning and operations process. In Austra- 
lia's case, legal officers deploying on operations is a relatively recent phenom- 
ena. As the audience recognizes however, early identification and resolution 
of key legal issues can save considerable time and frustration later on. Because 
of this inability to position legal officers as desired and get them involved early 
in the coalition legal planning process, Australia tended to coordinate its rules 
of engagement only with the United States (as opposed to the United King- 
dom and Canada, for example) and only then very late in the ROE develop- 
ment process. Although these ROE seem to be working fine for Australia 
today, from a coalition legal planning perspective this approach is not recom- 
mended. Proper positioning of legal officers early and in the right locations is a 
lesson re-learned for Australia's military legal staff. 



302 



XVII 



Panel III 
Commentary — Maritime & Coalition 

Operations 

Neil Brown 1 



I 



he United Kingdom's participation in operations against al Qaeda and 
the Taliban (in support of Operation ENDURING FREEDOM) is, with 
the exception of the contribution to the International Security and Assistance 
Force (ISAF) in Afghanistan, pursuant to the right to self-defense codified in 
Article 5 1 of the UN Charter. In those operations, the United Kingdom is par- 
ticipating in an extensive, US-led, multi-national coalition. No single set of co- 
alition rules of engagement (ROE) exists for all states participating in 
Operation ENDURING FREEDOM. Each nation operates under its own national 
ROE, for what are perfectly understandable reasons. After all, the ROE are 
produced specifically for each mission, taking into account the threat, and it is 
each nation's policy and its view of the relevant international law which will 
define its national mission. Whereas for other coalition and combined opera- 
tions, ROE are routinely shared, it seems more than likely, for reasons I will ex- 
plain, that nations will, for the foreseeable future, keep a fairly close hold on the 



1. Commander Neil Brown is an judge advocate serving in the UK Royal Navy. During the 
initial phase of Operation ENDURING FREEDOM he was assigned as a liaison officer to US 
Central Command. 



Panel III Commentary — Maritime & Coalition Operations 

ROE applying to their forces undertaking missions in what is often referred to 
as the "global war on terrorism." 

The history of the United Kingdom is one that speaks to our marked in- 
volvement in the Gulf of Arabia over a long period. After all, oil production in 
the Gulf region began in earnest to meet the need for oil to fuel the Royal 
Navy's ships. In recent years, the United Kingdom has routinely deployed war- 
ships to the Gulf, first to keep oil flowing through the Straits of Hormuz during 
the Iran-Iraq War, and (apart from initial operations against Iraq following 
the invasion of Kuwait) ever since then in support of UN Security Council 
Resolution 665. 2 

The Royal Navy's familiarity with the region has been a tremendous opera- 
tional strength, as has working with many of the same coalition members 
while adjoined to the US Central Command. In the days following September 
11th, this familiarity was also, I sense, something of a complication. It is per- 
haps inevitable that differences between missions not sharing the same legal 
bases would not be immediately obvious, particularly when set against the po- 
litical and media background presenting a united front in the war on terror- 
ism. The fact that operations against al Qaeda and the Taliban are conducted 
under Article 51 as "collective self-defence" did not appear to many (other 
than the lawyers) to be significant at the outset. This only became an issue 
when it manifested in practice when UK ROE reflecting the precise scope of 
the UK mission were compared to, for example, the US ROE reflecting the US 
mission. The call to service lawyers that "there is an ROE issue," did not nec- 
essarily mean then that there is an ROE issue of the sort usually capable of res- 
olution between military commands, but represented instead a friction point 
between different national policies and law. In the area of our coalition mari- 
time operations this has been the background to much important and inter- 
esting debate, especially in the area of terrorism. 

The UK approach to operations against al Qaeda and the Taliban, both in 
terms of law and policy, has permitted participation both in operations in Af- 
ghanistan and in simultaneous coalition maritime operations aiming to cap- 
ture, or deprive sea mobility, to terrorists on the high seas, the latter as part of 
a coalition of states all of whose armed forces and other government agencies 
have collaborated to ensure that the important issues have been coordinated 



2. S. C. Res. 665, U.N. SCOR, 45th Sess., U.N. Doc S/665/(1990) calls on all member states to 
"halt inward and outward maritime shipping to inspect their cargos and to ensure strict 
implementation with the provisions" contained in UN Security Council Resolution 661. S. C. 
Res. 661, U.N. SCOR, 45th Sess., U.N. Doc S/66 1/(1 990) calls upon member states essentially 
to cease all trade with Iraq. 

304 



Neil Brown 



and addressed. That is not the same as saying that maritime operations are 
conducted as part of a global war against terrorism. 

Terrorism is not a new phenomena to the United Kingdom, indeed it has 
been a part of our everyday lives for several decades. Terrorism has tradition- 
ally been dealt with as a law enforcement issue (albeit with military support to 
civilian authorities) and is thought by many in Europe to be essentially a crim- 
inal problem. It is accepted of course that the scale and character of the events 
of September 11th set them apart and are properly assessed as amounting to 
an armed attack for the purposes of Article 5 1 of the UN Charter, permitting 
states on this occasion to respond in self-defense with military force. In the 
context of this operation, the law of armed conflict clearly overlaps with inter- 
national and domestic criminal law and it is the effect of this which we have 
worked hard to understand and deconflict. 

Defining terrorism as a universal crime is a laudable goal but problematic. 
As Professor Shearer properly points out, "terrorism" when defined is immedi- 
ately susceptible to politicization. This has probably stifled attempts to agree 
to a definition before now. By way of example, I recently heard a Russian flag 
officer, on extending his condolences and sympathy to the people of the 
United States for September 11th, make clear that in his view the situation in 
Afghanistan was identical to that faced by Russia in Chechnya. Without fall- 
ing back on the trite and all too easy phrase about "one man's terrorist being 
another man's freedom fighter," this is a relevant example of the difficulty 
which will be faced in developing an internationally acceptable definition that 
will not be susceptible to political abuse. 

Notwithstanding that offensive UK operations in Afghanistan may be con- 
ducted under Article 5 1 of the Charter, acting in collective self-defense with 
the United States, and that in Afghanistan (given the way in which al Qaeda 
and the Taliban are inextricably linked) operations are conducted under the 
law of armed conflict, it has not appeared clear to me that the same could nec- 
essarily be said for the simultaneous maritime operations. There is no al Qaeda 
Navy, nor is there an Afghan Navy. The terrorists, if they are at sea, may be on 
the high seas or in the territorial seas of a third state, and if their vessels are 
flagged at all will be in vessels which are also of a third state. The prospect of 
exercising belligerent rights in the current circumstances seems to me there- 
fore to be implausible. And so it is my view that we have a situation where op- 
erations under Article 5 1 may not avail themselves of the full range of rights 
usually available to belligerents in an international armed conflict. The effect 
of this would be to say, for example, that although maritime units may use 
force such as is necessary and proportional, they may be required to do so 

305 



Panel III Commentary — Maritime & Coalition Operations 

within the peacetime rules and conventions which apply at sea, a case in point 
being the United Kingdom's fairly conservative view of the doctrine of flag 
state consent. As an example, the Royal Navy recently boarded a merchant 
vessel in the English Channel on the basis of intelligence that the vessel was 
carrying terrorists who were armed with some sort of weapon which presented 
an imminent chemical or biological threat. 3 Recognizing that the boarding 
could have occurred under an Article 5 1 basis of self-defense, the United 
Kingdom nonetheless, and perhaps somewhat conservatively, requested and 
received the consent of the flag state to board and search the vessel. While 
Professor von Heinegg's concern that this approach might undermine the 
continuing right to stop and search a vessel pursuant to Article 5 1 is noted, I 
believe that the United Kingdom is simply not prepared to invoke the right of 
self-defense for such boardings without seeking flag state approval unless that 
is necessary and proportional in the operational circumstances, for example in 
circumstances where a flag state would be unwilling or unable to give it and 
the request would compromise the mission. 

As noted earlier, the question arises as to how long coalition members can 
in good faith continue to rely upon Article 5 1 as the legal basis for their use of 
force. From a maritime perspective, existing peacetime law permitting war- 
ships to board third party vessels on the high seas is quite limited indeed. Arti- 
cle 110 of the UN Convention on the Law of the Sea (LOS Convention) 
provides only limited permission to board when such acts as suspected piracy, 
slave trading, and unauthorized broadcasting are taking place or the vessel is 
state-less. 4 This is somewhat unsatisfactory, and one wonders whether, had 
the LOS Convention been negotiated in 1992, Article 110 might have in- 
cluded powers to interdict drug traffickers, and whether in 2002 it might have 
been extended to include terrorism. Professor von Heinegg touched on this 
very important area of third party consent when he talked about it in terms of 



3. Unknown Author, Anti-Terror Teams Intercept Ship, IRISH TIMES, Dec. 20, 2001, available at 
LexisNexis Major World Newspaper (Oct. 1, 2002). 

4. See U.N. Convention on Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), art. 110, 
reprinted in BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW SELECTED 
DOCUMENTS (2001), at 553. Article 110 provides in relevant part that "[ejxcept where acts of 
interference derive from powers conferred by treaty, a warship which encounters on the high seas 
a foreign ship, other than a ship entitled to complete immunity in accordance with articles and, 
is not justified in boarding it unless there is reasonable ground for suspecting that: 

(a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is 
engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction 
under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag 
or refusing to show its flag, the ship is, in reality, of the same nationality as the warship." 

306 






Neil Brown 



tolerating the control which belligerents might exercise. To extend this right, 
available to belligerents where there are reasonable grounds to suspect that a 
neutral vessel is subject to capture, to member states of the UN acting in ac- 
cordance with Charter rights (as verified by the UN Security Council in all of 
its subsequent resolutions), is one thing. Indeed, it is not unreasonable to ex- 
pect and even require that third parties permit us to board their vessels when 
there is intelligence that Taliban or al Qaeda members are on board. To take 
that further, and suggest for example that there is a general right of visit and 
search of third party vessels without such intelligence, is quite another. 



307 



XVIII 



Panel III 
Commentary — Maritime & Coalition 

Operations 



Jean^Guy Perron 1 



Canada has contributed a significant number of personnel and assets to 
the global war on terrorism. Over the last several years, Canadian war- 
ships have conducted maritime interdiction missions to interdict shipping in 
breach of the UN Security Council resolutions on Iraq. However, such resolu- 
tions do not apply in Operation ENDURING FREEDOM (OEF) and Canada de- 
ployed it ships to conduct maritime interdiction operations for this operation 
pursuant to the right of collective and individual self-defense contained in Ar- 
ticle 5 1 of the UN Charter. 

Canada is considered to be in armed conflict with the Taliban and al 
Qaeda.and such conflict is not limited geographically to the territory of Af- 
ghanistan but extends to the international waters of the high seas. Canadian 
maritime operations searching for those who support the Taliban or al Qaeda, 
or who are themselves such, were termed "visit and search" operations. These 



1 . Lieutenant Colonel Jean-Guy Perron is currently the Assistant Judge Advocate General for the 
National Capital Region (Ottawa) in Canada. He was deployed to Tampa, Florida in November 
2001 as the legal advisor to the Commander, Canadian Joint Task Force South West Asia. 



Panel 111 Commentary — Maritime & Coalition Operations 

visit and search operations were conducted pursuant to the principles 
found in the San Remo Manual on International Law Applicable to Armed Con- 
flicts at Sea. 2 

Canadian warships could also intercept other vessels pursuant to Article 
1 10 of the United Nations Convention on the Law of the Sea. } The point here 
is that while there are differing legal bases for conducting boarding operations, 
the facts surrounding each such boarding must be carefully studied so as to en- 
sure a legitimate basis for boarding exists in international law. 

Recognizing that each state in a coalition is truly the master of its own 
ROE, much effort must be spent to harmonize ROE throughout the coalition 
by sharing and deconflicting competing ROE and understanding the limita- 
tions and constraints each coalition member has on its missions. Still, harmo- 
nizing ROE in a coalition, although sometimes problematic, must remain a 
priority. Each state will have a different interpretation of the application of in- 
ternational law. Operational factors relating to coalition member forces must 
be considered and domestic and international policy considerations must be 
adhered to. Two weapons systems provide good examples of the challenges in- 
herent in structuring ROE for coalition operations: anti-personnel landmines 
and riot control agents. Many states have different rules and restrictions based 
on policy reasons, domestic law, or international law that make the use of 
these systems sometimes quite difficult to synthesize. However, working 
through this process is important for commanders as it helps them understand 
the constraints and limitations on assigning certain tasks to certain coalitions 
units. 

On a different matter, Canada too had difficulties getting its forces into the 
theater of operations for Operation ENDURING FREEDOM. This demonstrated 
the need for improving strategic partnerships with other states throughout the 
world to improve this situation. 

Finally, it is interesting to note the efforts that Canada has undertaken 
since the events of September 11th unfolded. In the area of anti-terror and 
domestic legislation, the Canadian government passed federal legislation 



2. See generally, SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED 
CONFLICTS AT SEA (Louise Doswald-Beck ed., 1995), Section II Visit and Search of Neutral 
Vessels [hereinafter SAN REMO MANUAL]. 

3. UN Convention on Law of the Sea, UN Doc. A/CONF.62/122 (1982), art. 110, reprinted in 

Barry Carter and Phillip Trimble, International Law Selected documents, 

(2001) at 553. 

4. See Anti-Terrorism Act, R.S.C., C-36 (Dec. 18, 2001); see also, Unknown Author, Highlights 
of Anti-Terrorism Act, available at http://canada.justice.gc.ca/en/news/nr/2001/doc_27787.html 
(Oct. 1, 2002) [hereinafter Anti-Terrorism Act] . 

310 



Jean-Guy Perron 



permitting it to better identify, prosecute, and convict terrorist groups. 4 This 
Anti-Terrorism Act permits Canada to ratify the two remaining counter ter- 
rorism conventions it has signed but has yet to ratify. 5 Finally, the Canadian 
Legislature has amended the Official Secrets Act 6 to address national security 
concerns pertaining to terrorist related activities as well as the Canada Evi- 
dence Act 7 to provide a new process for dealing with the disclosure of sensi- 
tive information in judicial proceedings. Clearly, Canada's response to the 
events of September 1 1th have been quite measured and serious. 



5. These two conventions are: The International Convention for the Suppression of the 
Financing of Terrorism, G.A. Res. 109, U.N. GAOR 6th Comm., 54 Sess., 76th mtg., Agenda 
Item 160, U.N. Doc. A/54/109 (1999) and International Convention for the Suppression of 
Terrorism Bombings, G.A. Res. 165, U.N. GAOR, 52 Sess, U.N. Doc. A/52/164 (1998). 

6. See Anti-Terrorism Act, supra note 4. 

7. Id. 

311 





Panel III 

Discussion — Maritime and 

Coalition Operations 

On the Abduction or Extradition of Terrorists 

Ivan Shearer 

Countries throughout the common law world draw a distinction between ob- 
taining jurisdiction over individuals through some type of government collu- 
sion which violates international law and obtaining jurisdiction through 
happenstance over an individual. In the former case, such jurisdiction over a 
person constitutes an abuse of process for the court to continue trial and the 
case should be dismissed and the individual discharged. When jurisdiction is 
obtained through happenstance, however, trial may proceed. This approach 
stands in marked contrast to that taken by the US Supreme Court in United 
States v. AlvareZ'Machain where the Court held that it effectively does not mat- 
ter how jurisdiction over the body of the defendant is obtained. 1 



1. Editor's Note: After being indicted in the United States for the kidnapping and murder of a 
DEA agent, Humberto Alvarez-Machain was kidnapped by the Mexican police and flown to the 
United States to be turned over to DEA agents. Defendant contested the jurisdiction of the 
federal district court and the Ninth Circuit Court of Appeals reversed the holding of the district 
court. Upon government appeal to the Supreme Court, that Court reversed and remanded the 
holding of the Circuit Court of Appeals holding that a criminal defendant, abducted to the 
United States from a nation with which it has an extradition treaty does not acquire a defense to 
the jurisdiction of US courts simply by virtue of the abduction itself when the treaty does not 
exclude that a party might resort to self-help for achieving the presence of an individual. 504 
U.S. 655 (1992) at 662 thereinafter Machain]. 



Panel III Discussion — Maritime and Coalition Operations 

Wolff von Heinegg 

I do not agree that the practice of irregular rendition has a proper place in inter- 
national law. The violation of a nation's sovereignty by resort to self-help is un- 
conscionable. Using armed force to conduct such an irregular rendition is 
clearly a violation of international law. 

Kenneth O'Rourke 

United States courts have, on occasion, suggested that a defendant may 
not be prosecuted if his presence is obtained in violation of specific terms of an 
extradition treaty prohibiting abduction. 2 Where, however, an extradition 
treaty is not violated and a defendant's presence is obtained through forcible 
abduction, (commonly known as irregular rendition) the US Supreme Court 
has consistently recognized that jurisdiction may nonetheless be properly ex- 
ercised. 3 The propriety of irregular rendition is less clear, however, within the 
international community, prompting the United States, as a matter of policy 
not to resort to its use. Having said that, I believe irregular rendition contin- 
ues to have its place, particularly in the war on terrorism. 

As for international law, I do not agree that irregular rendition is absolutely 
prohibited and not a proper mechanism for addressing terrorism. For example, 
the proposition that Article 51 of the UN Charter would not permit the 
United States to enter a country to conduct a rendition, or renditions, as a 
matter of national self-defense is illogical. Certainly, if the United States could 
have snatched Osama bin Laden to remove the threat to its peace and secu- 
rity, instead of engaging in a full blown attack on al Qaeda and the Taliban, it 
would have done so and it would have been, if not more favorable as a means 
of self-defense, at least a less aggressive means authorized under Article 51. It 
seems incongruous to suggest that a state can resort to a full blown armed con- 
flict, invade another state as a matter of self-defense, but could not use a lesser 
means of force, such as an irregular rendition, to remove the threat. Clearly, 
renditions to remedy criminal activity not amounting to a threat to the peace 
and security of a state raise issues of sovereignty that many believe are not sup- 
ported by international law. However, renditions to remedy threats to the 
peace and security of an aggrieved state under Article 5 1 of the UN Charter 
would be much preferable to full blown military action. Unfortunately, in the 
case of addressing the terrorist network operating out of Afghanistan, the 
United States was unable to take this less severe course of action (snatch 



2. See, e.g., United States v. Rauscher, 119 U.S. 407 (1986). 

3. See, e.g., Ker v. Illinois, 119 U.S. 436 (1886); see also Machain, supra note 1, at 669. 

314 



Panel 111 Discussion — Maritime and Coalition Operations 

Osama Bin Laden) and, as a result, needed to resort to armed hostilities 
against bin Laden and the Taliban who provided material support to al Qaeda. 

Christopher Greenwood 

Were the US government to be asked whether it were lawful for the British 
government to abduct Irish Republican Army suspects from America, the an- 
swer would be no. If this is true, then it must be equally true that it is not lawful 
for the United States to abduct offenders who are otherwise not extraditable to 
bring them to the United States. It is a clear violation of international law for a 
state to exercise its jurisdiction on the territory o( another. The fact that do- 
mestic law supports the subsequent trial of such a person is entirely separate 
from the question of whether jurisdiction exists to seize that person from the 
territory of another state. There may perhaps be a self-defense exception to this 
in the case of someone such as bin Laden, but this is very much the exception. 

The normal remedy it seems for such an irregular rendition would be the re- 
turn of the person concerned as restoration of the status quo is the normal 
remedy required by law. History provides an example of this type of remedy 
where a group of British jailers from Gibraltar who were pursuing a suspect 
managed to arrest him on the wrong side of the border with Spain. The sus- 
pect was ultimately returned to Spain to rectify the violation of Spanish sover- 
eignty. 4 

John Murphy 

In United States v. Alvarez-Mocham, the issue before the Supreme Court was the 
bilateral extradition treaty between the United States and Mexico. 5 The major- 
ity conclusion in this case was that given that the defendant's abduction was 
not in violation of the extradition treaty between the United States and Mex- 
ico, the rule of Ker v. Illinois did not prohibit the trial of Machain in a US court 
for violations of the criminal laws of the United States. 6 It is worth noting 
though, that if the majority had come to the conclusion that the extradition 
treaty barred this abduction, then the defendant would have been released and 
returned to Mexico. The Machain Court also parenthetically addressed the is- 
sue of customary international law, noting that such an abduction may well 
have been a violation of customary international law as a violation of the 



4. See In re Patrick Lawler in 1 Lord McNair International Law Opinions (1956) at 77-78. 

5. Machain, supra note 1 at 669-70. 

6. Id. at 669-70; citing Ker v. Illinois, 1 19 U.S. 436 (1886). 

315 



Panel III Discussion — Maritime and Coalition Operations 

sovereignty of Mexico but that such a violation must properly be considered by 
the executive branch and not the judicial branch. 7 

Two final points of interest merit mention about this case. First, the subse- 
quent history of this case tells us that the government's case was ultimately 
dismissed pursuant to Machain's motion for summary judgment. 8 Secondly, 
Dr. Machain currently has civil litigation pending against the United States 
for damages. 9 

Yoram Dinstein 

There is a risk of confusing two completely unrelated issues. One is whether or 
not an act of abduction from abroad constitutes a violation of the sovereignty of 
a foreign state. Undoubtedly, that is the case, if the abduction is carried out 
without the consent of the local government. A separate issue is whether the 
state which acquired custody over an individual through such abduction (in 
breach of the sovereignty of another state and therefore in breach of interna- 
tional law) may nevertheless exercise jurisdiction over the abductee. The an- 
swer is clear: jurisdiction exists. 

On the one hand, since the act of abduction is in violation of international 
law, the abducting state incurs responsibility vis-a-vis the other state whose 
sovereignty has been encroached upon. On the other hand, the jurisdiction 
of the abducting state vis-a-vis the person in the dock is not affected by the 
inter-state clash. The paradigmatic case is that of Adolph Eichmann. 10 As is 
well known, Eichmann was abducted from Argentina, brought to Israel, 
tried there, convicted, and executed. The matter was brought by Argentina 
before the Security Council. 11 Interestingly enough, the Security Council, 



7. Id. at 669-70. 

8. See Machain, supra note 1, at 669-70, rev'd and remanded to United States v. Alvarez- 
Machain, 971 F.2d 310 (9th Cir. Ct. App. 1992), amended and remanded by sub nom. United 
States v. Zuno-Acre, 44 F. 3d (9th Cir. Cal. 1995), post conviction relief denied in part, dismissed in 
part 25 F. Supp 2d 1087 (CD. Cal. 1988), affd by 209 F. 3d 1095 (9th Cir. Cal. 2000). 

9. See Alvarez-Machain v. United States, 96 F.3d 1 246 (9th Cir. Cal. 1996) amended by 107 F.3d 
696 (9th Cir. Cal. 1997), cert denied sub nom. Berellez v. Alvarez-Machain, 522 U.S. 814 (1997) 
remanded by Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. Cal. 2001). 

10. Adolph Eichmann, one of the key architects of the Holocaust, fled to Argentina after World 
War II. Abducted by Israeli Mossad agents in 1960 (after a prolonged worldwide search), he was 
put on trial for genocide and related crimes. See generally]. Fawcett, The Eichmann Case, 38 BRIT. 
Y.B. INT'L L. 181 (1962); L.C. Green, The Eichmann Case, 23 MODERN L. REV. 507 (1960); F. 
Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in 
INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABATI ROSENNE 
407-422, 414 (Yoram Dinstein & Mala Tabory eds., 1989). 

11. See S. C. Res. 138, U.N. SCOR, 15th Sess., U.N. Doc. S/138/(1960). 

316 



Discussion — Maritime and Coalition Operations 



while acknowledging the breach of Argentinian sovereignty, did not demand 
that Israel return Eichmann to Argentina. Eichmann's case is in many re- 
spects unique. But the view of the US Supreme Court on the underlying issue 
was consolidated already in the 19th century in Ker v. Illinois. 12 The Court 
held that personal jurisdiction is not affected by the improper manner in 
which a defendant is brought before a court. 

Christopher Greenwood 

Eichmann is far from a paradigmatic case on the abduction of individuals from 
the territory of another state. First, Eichmann is an egregious case and there is 
no real counterpart to it today. Secondly, the case was decided under an almost 
entirely different world order. Today, the idea that the only violation in the 
posited case is that of the territorial sovereignty of the state where the abduc- 
tion occurs, simply does not ring true. There is also a violation by the abducting 
state of the international human rights of the abducted individual. 13 Indeed, 
the Human Rights Committee illustrated clearly this to be the case in 198 1. 14 
This international human right against abduction, is contained in another form 
in the prohibition against arbitrary arrest and detention contained in Article 
Nine of the International Covenant on Civil and Political Rights to which the 
United States is a party. 15 

International law today would not permit a state to exercise jurisdiction 
over someone illegally seized for two reasons. In a case like Machain, where 
unlike Eichmann, the state from whose territory the man was abducted pro- 
tested throughout, the normal principles of state responsibility require the ab- 
ducting state to make good its violation of the other state's sovereignty by 



12. See Ker v. Illinois, 119 U.S. 436, 444 (1886). Accord Frisbie v. Collins, 342 U.S. 519, 523 
(1952) (no Constitutional prohibition on finding of guilt when criminal defendant is forcibly 
abducted) 

13. See Beverly Izes, Drawing Lines in the Sand: When State Sponsored Abduction of War Criminals 
Should be Permitted, 31 COLUM. J. L. & SOC. PROBS. 1 (1997) 12-14. See also Felice 
Morgenstern, Jurisdiction in Seizures Effected in Violation of International Law, 29 BRIT. Y.B. INT'L 
L. 265, 270(1952). 

14- See Views of the Human Rights Committee on the Complaint of Lopez, 36 U.N. GAOR, 
Supp. No. 40, at 176-84, U.N. Doc. A/36/40 (1981); See also M. Cherif Bassiouni, Unlawful 
Seizures and Irregular Rendition Devices as Alternatives to Extradition, 7 VAND. J. TRANSNAT'L L. 
25, 59 (1979) (forcible abduction said to violate human right to liberty and freedom from 
arbitrary detention). 

15. See International Covenant on Civil and Political Rights, ratified by the United States in 
1992, 991 U.N.T.S. 171, 31 I.L.M. 645 (May 1992). Note that the United States does not 
consider Articles 1-27 of the covenant as self-executing. See 138 CONG. REC. S4784 (Apr. 2, 
1992). 

317 



Panel III Discussion — Maritime and Coalition Operations 

restoring the status quo. Secondly, under the international law in existence 
today, the abducted individual possesses rights under human rights treaties 
which, if taken seriously, operate to ensure that he is not abducted. 

The events in Eichmann, are so peculiar to their own facts that to general- 
ize from them is a great mistake. The Machain Court simply created bad law 
and happens to turn on a point of US law only. This case was argued and de- 
veloped by the defense on the interpretation of a bilateral extradition treaty 
and not on the proper grounds of violations of customary international law. 
Accordingly, if someone is abducted from the United States by any other 
country, and put on trial in that other country the United States would de- 
mand his return. No remedy less than this under international law would be 
proper. 

Yoram Dinstein 

I disagree. I believe that it is very dangerous to apply to extradition law — which 
essentially governs the relations between states — concepts of human rights 
law. As far as the individual is concerned, assuming that the state has jurisdic- 
tion over him, he should appear before the court when summoned to do so. He 
has no human right to be a fugitive from justice. If bounty hunters were to cap- 
ture and return him, the legality of the act would scarcely be challenged. Why 
should the position be different if the abduction was carried out by state agents? 
Evidently, all this is not relevant to the grievance to the state whose sovereignty 
has been disregarded by the abducting agents. The state carrying out the ab- 
duction may have to compensate or otherwise satisfy the aggrieved state. But 
let us not confuse the state with the individual. 

Robert Turner 

The Ninth Circuit Court of Appeals in the Machain case, quite simply was in er- 
ror and it was proper for the Supreme Court to correct this error in the law and 
bring the decision into line with Ker v. Illinois. 16 The issue here is not whether 
the state has remedies or not but instead, whether the defendant should be able 
to deprive the US courts of jurisdiction simply because of his abduction from 
another state. One reason this line of reasoning remains important today is that 
in the global war on terrorism, there are sometimes states that may be willing to 
assist the United States with intelligence on individuals operating within their 
borders and may be willing to surreptitiously permit a "cover abduction." To 
avoid angering other terrorists, such states must retain their ability to protest 



16. See Machain, supra note 1, at 946 F. 2d 1466 (1991). 

318 



Panel 111 Discussion — Maritime and Coalition Operations 

publicly such alleged violations of their sovereignty. This is not to say, however, 
that such individuals should go free. Accordingly, international law continues 
to recognize that states may engage in the practice of irregular rendition. 

Ivan Shearer 

Our case study on irregular rendition would not be complete without a refer- 
ence to the Second Circuit Court of Appeals case of United States v. 
Toscanino. 11 In this 1974 case, the Second Circuit stated that if the abduction 
was accompanied by more than just an abduction, in other words some viola- 
tion of due process such as torture or other human rights violation, then the 
Second Circuit would refuse to grant jurisdiction over the abducted person. 18 
Accordingly, whether the jurisdiction would stand in the event of some addi- 
tional harm to the abducted individual, other than the abduction itself, in US 
courts is somewhat subject to debate. 

On the Application of the Law of Armed Conflict 

Neil Brown 

Typically, the armed forces are taught that rules oi engagement (ROE) are a 
combination of mission and threat. Clearly, the mission is defined by policy and 
law. Threat is based on intelligence indicators and often the state of the world 
order. Currently, the only mission in support of the global war on terror being 
conducted by the United Kingdom that does not explicitly rely upon Article 5 1 
of the UN Charter as its basis for action is that of the UK troops participating in 
support of the International Security Assistance Force mission in Afghanistan 
pursuant to Security Council Resolution 1386. 19 Oi course, notwithstanding 
any policy constraints imposed on our forces by ROE, they always possess the 
right to self-defense. 

Paul Cronan 

From an Australian perspective, we are also relying on Article 5 1 as the legal 
basis for our involvement in Operation ENDURING FREEDOM. The question 



17. See United States v. Toscanino, 500 F.2d 267, 275 (1972). 

18. Id. 

19. See S. C. Res. 1386, U.N. SCOR, 56th Sess., U.N. Doc. S/1386/(2001). This resolution 
provides for the establishment of the "International Security Assistance Force to assist the 
Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so 
that the Afghan Interim Authority as well as the personnel of the United Nations can operate in 
a secure environment." 

319 



Panel III Discussion — Maritime and Coalition Operations 

that must be asked though, is at what point does the authorization to use force 
in self-defense under Article 5 1 begin to wane? In other words, what happens if 
our respective countries are not attacked or threatened with attack by terrorists 
for the next several years? When does the inherent right to continue to use 
force in self-defense end? How long, for example, can maritime enforcement 
operations based on self-defense continue to be legitimately argued? This is a 
difficult question and while there exists today a continuing threat, it is conceiv- 
able that this threat will ultimately wane. What then will be the basis for these 
operations? 

Jean^Guy Perron 

Canadian participation in Operation ENDURING FREEDOM is also based on the 
collective self-defense provisions contained in Article 5 1 of the UN Charter 
and in customary international law. Clearly, our forces' operations are bounded 
and constrained by the law of armed conflict and so our commanders and forces 
must understand how these laws affect their ability to accomplish the given 
mission. 

Terrorism as a Criminal or International Law Problem 

Charles Garraway 

Up until the last few years, the international community recognized terrorism 
as a matter of criminal law to be dealt with by each state independently. This is 
not to say that there were not efforts to prohibit broad categories of terrorist 
acts but rather that these acts once prohibited were typically enforced through 
the courts of the states affected by them. During the last few years, and defi- 
nitely since the events of September 1 1th, the international view on terrorism 
has changed from that of a criminal law matter to that of a law of armed conflict 
matter. In many respects, we are now operating in a new paradigm which calls 
for the legal application of deadly force against such terrorists and not their 
capture and subsequent trial. Perhaps as Commander Brown indicated in his 
comments, it would be wise to develop an interagency approach to this matter 
and revise the existing criminal law tools to increase the powers available to ad- 
dress the difficult problem of global terrorism. 



320 



Panel IV 

Thursday — June 27, 2002 

2:00 PM-5 :00 PM 

Bringing Terrorists to Justice: The Proper Forum 

Moderator: 

Professor Harvey Rishikof 

Roger Williams University School of Law 

Presenters: 

Lieutenant Colonel Michael Newton 
Judge Advocate, US Army 
Office of War Crimes Issues 
US Department of State 

Professor Christopher Greenwood 
London School of Economics and 
Political Science 

Commentators: 

Colonel Manuel Supervielle 
Judge Advocate, US Army 
Staff Judge Advocate 
US Southern Command 

Mr. Daniel Helle 

Deputy Head 

ICRC Delegation to the United Nations 





International Criminal Law Aspects of the 
War Against Terrorism 

Michael Newton 1 



On March 4, 1801, Thomas Jefferson, the newly inaugurated President 
of the United States, took charge of a nation torn between the possi- 
bilities of the new century and the uncertainty caused by the changing face of 
warfare. America was a new republic very much aware of its vulnerability, yet 
facing the future with faith built on dedication to the dual pillars of peace 
through justice and peace through strength. 2 As President Jefferson rose to de- 
liver his inaugural address, America faced a new century filled with new dan- 
gers and unfolding challenges that threatened to erode the very foundations of 
our liberty and collective peace. His inaugural message was rooted in our demo- 
cratic values, yet articulated an American vision to propel us forward as a na- 
tion of purpose and principle in the international arena. 



1. Lieutenant Colonel Newton is an Assistant Professor of Law at the US Military Academy at 
West Point. He may be reached at michael.newton@usma.edu. The opinions and conclusions of 
this paper, as well as its flaws, are solely attributable to the author. They do not necessarily reflect 
the views of the Judge Advocate General, the United States Military Academy, the United States 
Army, the United States Department of State, or any other federal entity. 

2. Robert F. Turner, State Sovereignty, International Law, and the Use of Force in Countering Low- 
Intensity Aggression in the Modern World, in LEGAL AND MORAL CONSTRAINTS ON LOW- 
INTENSITY CONFLICT, 44 (Alberto R. Coll, et al. eds., 1995), (Vol. 67, US Naval War College 
International Law Studies). 



International Criminal Law Aspects of the War Against Terrorism 

Summarizing the themes that would guide America through the uncertain- 
ties of a new era, President Jefferson began his speech by asserting the founda- 
tional principle of seeking "[e]qual and exact justice to all men, of whatever 
state or persuasion, religious or political." 3 President Jefferson portrayed a 
"bright constellation" composed of nonnegotiable values that would combine 
to form the "creed of our political faith" and serve as the touchstone for the fu- 
ture. 4 He pointedly told the nation that "should we wander from them in mo- 
ments of error or alarm, let us hasten to retrace our steps, and to regain the 
road which alone leads us to peace, liberty, and safety." 5 After over two hun- 
dred years, these remain in many ways the core objectives for which we strive, 
albeit in a much more complicated and changed world. 

The shock of the events of September 1 1 was a visceral kick to the con- 
sciousness of the world. Similar to the September 1972 kidnapping and mur- 
der of nine Israeli athletes participating in the Munich Olympics, 6 these 
terrorist attacks were one of those rare galvanizing events that resonated 
across our globe. The attacks directed against America affected every culture, 
age group, religion, and corner of civilization. Though terrorism is not a new 
phenomenon, the September 1 1 attacks killed citizens of over 80 nations and 
stunned the world by their scope and savagery. In rallying the support of the 
American people for the campaign against the terrorist aggressors and ex- 
plaining his vision for the strategic campaign against terrorism, President Bush 



3. Thomas Jefferson, First Inaugural Address, March 4, 1801, reprinted in WILLIAM J. BENNETT, 
THE SPIRIT OF AMERICA 347 (1997). 

4. Id. Among the other principles that Mr. Jefferson promulgated were, 

peace, commerce, and honest friendship, with all nations, entangling alliances with 
none; the support of state governments in all their rights, as the most competent 
administration for our domestic concerns, and the surest bulwarks against anti- 
republican tendencies: — the preservation of the general government in its whole 
constitutional vigour (sic), as the sheet anchor of our peace at home, and safety 
abroad . . . the diffusion of information, and arraignment of all abuses at the bar of public 
reason: — freedom of religion; freedom of the press; and freedom of person, under the 
protection of the habeas corpus: — and trial by juries impartially selected. 

5. Id. 

6. This 1972 attack was in fact the catalyst for the creation of modern US counter-terrorism 
policy structures. Vincent Cannistraro and David C. Bresett, The Terrorist Threat In America, in 
ALEXANDER MUNSCH, 16 TERRORISM/DOCUMENTS OF INTERNATIONAL AND LOCAL 
CONTROL 3, 26(1998). 

324 



Michael Newton 



returned perhaps unconsciously to the themes articulated by President Jeffer- 
son over two centuries before. 7 

On September 20, 2001, President Bush addressed a Joint Session of Con- 
gress, aware that the world — and perhaps the terrorist network — was listening. 
The President declared, "we are a country awakened to danger and called to 
defend freedom. Our grief has turned to anger, and anger to resolution. 
Whether we bring our enemies to justice, or bring justice to our enemies, jus- 
tice will be done." 8 President Bush's declaration of this clear national goal was 
met by the thunderous applause of the assembled Congress and audience 
(which also included British Prime Minister Tony Blair) . His words stirred citi- 
zens across America to strengthen a communal resolve and rededicate a mu- 
tual commitment to the goal of justice. President Bush further declared that 
the campaign against international terrorism 9 is more than just a fight to secure 



7. In another interesting and perhaps ironic parallel, President Jefferson was selected as the third 
chief executive in the wake of one of the most bitterly contested and divisive presidential 
elections in US history. Article II, section 1, clause 3 of the US Constitution specifies that the 
House of Representatives shall select the President by ballot if more than one candidate amasses 
the same number of electoral votes. The House of Representatives did not select President 
Jefferson until after a lengthy debate and thirty-five ballots. C.B. TAYLOR, A UNIVERSAL 

history of the united states of america embracing the whole period from the 
Earliest Discoveries to the present Time 250 (1836). 

8. President George W. Bush, Address to a Joint Session of Congress, September 30, 2001; 
available at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html (Jan. 30, 
2003). Secretary of State Powell echoed a similar sentiment in his first public comments made 
from Lima, Peru: 

A terrible, terrible tragedy has befallen my nation, but . . . you can be sure that America 
will deal with this tragedy in a way that brings those responsible to justice. You can be 
sure that as terrible a day as this is for us, we will get through it because we are a strong 
nation, a nation that believes in itself. 

BOB WOODWARD, BUSH AT WAR 10 (2002). 

9. See 18 U.S.C § 2331, providing that for the purposes of the federal criminal law, the term 
"international terrorism" means activities that 

(A) involve violent acts or acts dangerous to human life that are a violation of the 
criminal laws of the United States or of any State, or that would be a criminal violation if 
committed within the jurisdiction of the United States or of any State; 

(B) appear to be intended - 

(i.) to intimidate or coerce a civilian population; 

(ii.) to influence the policy of a government by intimidation or coercion; or 

(iii.)to affect the conduct of a government by assassination or kidnapping; and 

(C) occur primarily outside the territory jurisdiction of the United States, or transcend 
national boundaries in terms of the means by which they are accomplished, the persons 
they appear intended to intimidate or coerce, or the locale in which the perpetrators 
operate or seek asylum. 

325 



International Criminal Law Aspects of the War Against Terrorism 

American freedoms because it is "civilization's fight" in the sense that it will be 
waged on behalf of all the people who "believe in progress and pluralism, toler- 
ance and freedom." 10 

Seeking to achieve the goal of justice, the Bush Administration has re- 
shaped the machinery of government around the changed security environ- 
ment. For example, the National Security Strategy of the United States 
focuses on attaining the goal of justice: 

[i]n pursuit of our goals, our first imperative is to clarify what we stand for: the 
United States must defend liberty and justice because these principles are right 
and true for all people everywhere. No nation owns these aspirations, and no 
nation is exempt from them. Fathers and mothers in all societies want their 
children to be educated and to live free from poverty and violence. No people 
on earth yearn to be oppressed, aspire to servitude, or eagerly await the midnight 
knock of the secret police. America must stand firmly for the nonnegotiable 
demands of human dignity: the rule of law; limits on the absolute power of the 
state; free speech; freedom of worship; equal justice; respect for women; 
religious and ethnic tolerance; and respect for private property. n 

Though the concept of seeking "justice" to achieve core national security 
goals has been a thread of American political dialogue from the early days of 
our Republic, the concrete form of that pursuit in practice retains an elusive, 
often ephemeral, character. "Justice" as a component of US foreign policy is a 
valued but vague objective. In the post-September 1 1 security environment, 
there is no doubt that the inherent and sovereign right of self-defense permits 
the United States to mete out "justice" using its military power. 12 However, 
the holistic pursuit of justice embodies a parallel dimension of personal penal 
responsibility. Pursuing personal criminal accountability against international 
terrorists necessarily entails a complicated political dynamic because of the 
persistence of state sponsorship ranging from philosophical sympathy to active 
operational support in the form of funding and official sanction for planning 
and training within the territorial bounds of the state. 

The threats to national security presently posed by international terrorism 
require a balance between personal punishment of criminal perpetrators and 



10. Joint Session, supra note 8. 

1 1 . The National Security Strategy of the United States of America 3 (September 

2002), available at http://www.whitehouse.gov/nsc/nss.pdf (Dec. 1, 2002). 

12. See Jack M. Beard, America's New War on Terror: The Case for Self-Defense Under 
International Law, 25 HARV. J. L. &. PUB. POL'Y 559 (2002). 

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Michael Newton 



the use of military power to eliminate the threats posed by terrorists. Interna- 
tional terrorism remains a national security problem because it is a unique 
form of transnational crime in which private actors seek to unravel the fabric 
of civilized society and thereby undermine state, regional, and global security. 
The simple term "international terrorism" belies the reality that the deep- 
seated ideological motives of participants in terrorist acts combine with politi- 
cal reality and the interplay of seemingly insoluble root causes to make it per- 
haps the most difficult of all the problems facing international society. 
President Bush's vision reshaped the paradigm for punishing terrorists from an 
exclusive reliance on judicial mechanisms to address criminal conduct into a 
war-fighting model. In that sense the war on terrorism is much more than a 
politically convenient phrase. It is a new paradigm which requires an inter- 
face between effective judicial mechanisms capable of prosecuting those 
perpetrators who are not eliminated or emasculated by the application of 
military power. 

This essay will argue that international crimes of terrorism should be han- 
dled domestically by individual states using existing criminal law mechanisms. 
Rather than blindly heeding the siren's song of international institutional- 
ization, the states of the world should rededicate themselves to decisively ad- 
dressing terrorist crimes using their sovereign forums. Bound by a sense of 
unity arising from the ashes of the World Trade Center and the Pentagon, the 
nations of the world now have a propitious opportunity to reconsider the ap- 
propriate forums for addressing international crimes of terrorism. Calls for an 
international criminal process to address terrorism assume the existence of 
the discrete discipline termed international criminal law which in turn implies 
a normative superiority of internationalized mechanisms over domestic fo- 
rums. However, the existence of transnational terrorism and the cooperation 
of nationals from a variety of nations in the planning and execution of terror- 
ist attacks does not mean that those crimes are properly punished in a supra- 
national penal forum. 

This essay superimposes the established framework for addressing terrorist 
crimes against the arguments in favor of a newly created supranational judi- 
cial forum; because the problem of transnational terrorism does not raise any 
of the problems that have been previously addressed by the establishment of 
an internationalized process, such a supranational forum is unnecessary and 
could actually undermine the pursuit of justice. The current legal framework 
is a collage akin to a patchwork quilt of existing norms and conventions that 
seeks to prevent and punish specifically identified terrorist activities. The 
international community has come together to address the core problem of 

327 



International Criminal Law Aspects of the War Against Terrorism 

transnational terrorism by negotiating a web of occasionally overlapping mul- 
tilateral conventions. Although this web of conventional law 13 is built on the 
cornerstone of sovereign enforcement of applicable norms, the persistence of 
transnational terrorism as a feature of the international community shows 
that the existing conventional framework is not a panacea. 14 This essay, nev- 
ertheless, concludes that the voluntary efforts of sovereign states to imple- 
ment and enforce international norms would not be materially enhanced by 
the creation of a new superstructure of supranational justice. 

The Prospects for an International Terrorist Tribunal 

Modern international law embodies a significant body of law and practice that 
empowers domestic states to adjudicate terrorist crimes. Recent arguments, 
however, have postulated that an internationalized enforcement mechanism is 
warranted simply by virtue of the international nature of the problems posed by 
transnational terrorism. International law often evolves in response to per- 
ceived weaknesses in the normative structure that are highlighted by current 
events. 15 This is the pattern for the post-September 1 1 wave of thinking about 
the linkage between international terrorism and an internationalized trial pro- 
cess. Given the inability of domestic forums to eradicate transnational terror- 
ism, it is understandable that the aftermath of September 1 1 saw a groundswell 
of support for the creation of an international judicial forum to prosecute such 
terrorists. Even as they acknowledge that national courts are the backbone for 
the systematic prosecution of international terrorists, some scholars have 
pointed out that an international forum would "symbolize global justice for 
global crimes." 16 



13. See infra notes 72 to 83. 

14. M. Cherif Bassiouni, International Terrorism.- multilateral conventions 

(1937-2001) (2001); M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy 
Oriented Assessment, 43 HARV. INT. L. J. 83, 90 (2001). 

15. See generally GEOFFREY BEST, WAR & LAW SINCE 1945 (1994) (focusing on the historical 
development of the law of armed conflict in response to the stimuli of world events, changing 
technology, and the weaknesses of codified law as demonstrated by new types of conflicts) ; M. 
CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 1-87 
(2d ed. 1999) (explaining the development of the law regarding crimes against humanity as a 
logical progression in response to world affairs and the development of human rights law). 

16. Luncheon Address: Rogue Regimes and the Individualization of International Law, Anne- 
Marie Slaughter, 36 NEW ENG. L. REV. 815, 820 (2002) (comments based on a more detailed 
explication found in Anne-Marie Slaughter & William Burke-White, An International 
Constitutional Moment, 43 HARV. INT. L. J. 1 (2002)). 

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Michael Newton 



However, this strain of thought is merely the current incarnation of an 
older set of discarded ideas. Despite nearly a century of discussion and debate, 
the nations of the world have not agreed on a comprehensive definition of ter- 
rorism, 17 which is the obvious cornerstone of any international forum with ju- 
risdiction over transnational terrorist acts. States instead shifted from a 
universal and general approach towards cooperative efforts to define and 
criminalize specific manifestations of terrorism through specific multilateral 
treaties which bind signatory states to proscribe and punish such acts using 
domestic systems. 

As a logical corollary, states have repeatedly rejected proposals for an over- 
arching international tribunal charged with prosecuting crimes of transna- 
tional terrorism. The repeated formal rejections of terrorism as an 
international problem that should be addressed in supranational judicial fo- 
rums date back to the League of Nations era. 18 In 1926, the International 
Congress of Penal Law recommended that the Permanent Court of Interna- 
tional Justice "be competent to judge individual liabilities" incurred as a result 
of crimes considered as international offenses "which constitute a threat to 
world peace." 19 This proposal died on the vine of international diplomacy. 

The assassination of King Alexander of Yugoslavia in Marseilles on Octo- 
ber 9, 1934 prompted the French government to propose an international 
convention for the suppression of terrorism in a letter to the Secretary-Gen- 
eral of the League of Nations. 20 The core of the French proposal was a sugges- 
tion that an international criminal court would be the most feasible forum for 
addressing political crimes of an international character, and the Council of 
the League responded by establishing a Committee of Experts to prepare a 
preliminary draft of "an international convention to assure the repression of 



17. See W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. INT'L. L. 3, 
22 (1999) ; Consensus Eludes Legal Committee in Final Act of Session as it Recommends Blanket 
Condemnation of Terrorism, Press Release GA/L/3140, Nov. 23, 1999. 

18. Voeau of the International Congress of Penal Law Concerning an International Criminal Court 
(Brussels, 1926), reprinted in Historical Survey of the Question of International Criminal Jurisdiction, 
Memorandum Submitted by the Secretary-General 74, U.N. Doc. A/CN.4/7Rev.l (1949) 
(Translating the original French text found in Premier congres international de droit penal, Actes du 
congres 634). 

19. Id. This strain of thought eventually led to the development of a draft statute for a criminal 
chamber of the Permanent International Court of Justice, 34th Report of the International Law 
Association 113-125 (1927). 

20. Historical Survey of the Question of International Criminal Jurisdiction, Memorandum Submitted 
by the Secretary General 16, U.N. Doc. A/CN.4/7Rev.l (1949). 

329 



International Criminal Law Aspects of the War Against Terrorism 

conspiracies or crimes committed with a political and terrorist purpose." 21 
From November 1-16, 1937, the International Conference for the Repression 
of Terrorism met in Geneva and adopted a Convention for the Creation of an 
International Criminal Court. 22 This effort at an international forum to re- 
spond to terrorism was implicitly rejected by the international community af- 
ter only one state (Italy) ratified the multilateral treaty. 

Although the proposed 1937 Convention never entered into force 23 it re- 
mains highly relevant to the current debate for two reasons. In the first place, 
the jurisdiction of the international court proposed in the 1937 treaty derived 
solely from the consent of the affected states, 24 and the court was limited to 
applying the "least severe" domestic law of either the state in which the crimes 
were committed or the state of the offender's nationality. 25 In effect, the 1937 
Convention created an internationalized process for applying the substantive 
law of different domestic systems, which is the antithesis for modern argu- 
ments that an international forum is 7 essential for applying the international 
norms against terrorism. 

This model of the 1937 Convention is really the precursor for the Lockerbie 
Court 26 and stands in sharp contrast to current efforts to portray transnational 
terrorism as an international problem that requires a generalized international 
definition and jurisdiction. Secondly, it is important to note that every one of 



21. Id. See also 15 LEAGUE OF NATIONS O.J. 1760 (1934) (containing the text of the fall 
resolution passed by the Council). 

22. Convention for the Prevention and Punishment of Terrorism, opened for signature Nov. 16, 
1937, 19 LEAGUE OF NATIONS O.J. 23 (1938), League o'Nations Doc. C.546(I).M.383(I) 1937.V 
(1938), reprinted in M. CHERIF BASSIOUNI, INTERNATIONAL TERRORISM: MULTILATERAL 
CONVENTIONS (1937-2001) 71 (2001) [hereinafter 1937 Convention]. 

23. After the Convention was transmitted to all the members of the League of Nations, 24 states 
signed the Convention but only India actually ratified its text. 

24- 1937 Convention, supra note 22, art. 21 (referring to the obligation of the domestic states to 
enact criminal legislation to punish the acts defined in the underlying multilateral treaty and 
empowering those same states to "commit the accused to trial" before the International Criminal 
Court). This provision is in stark contrast to the highly controversial jurisdictional provisions of 
the Rome Statute of the International Criminal Court which allow the ICC to bypass non- 
consenting states in establishing personal jurisdiction over their citizens. Rome Statute of the 
International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the 
Establishment of an International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, 
arts. 12-19 reprinted in 37 I.L.M. 998 (1998) [hereinafter Rome Statute]. 

25. 1937 Convention, supra note 22, art. 21. 

26. The Scottish Court in the Netherlands was an internationalized process applying Scottish 
law to prosecute the Libyan nationals responsible for the 1988 bombing of Pan Am Flight 103. 
See http://www.scotcourts.gov.uk/indexl.asp?path=%2Fhtml%2Flockerbie%2Easp (Jan. 30, 
2003). 

330 



Michael Newton 



the multilateral conventions in the sixty-five years of international dialogue 
since the 1937 Convention have adhered to its pattern by defining different 
terrorist acts as substantive violations of international law and specifically re- 
quiring sovereign states to enact domestic criminal legislation for the purpose 
of punishing those acts. This uniform historical pattern undercuts faddish ar- 
guments that the very nature of transnational terrorism requires an interna- 
tional forum and forces proponents of an internationalized process to bear the 
burden of overturning the customary practice of the international community. 
Another persistent strain of thought after September 1 1 postulated that in- 
ternational prosecutions would appear more legitimate, particularly to Mus- 
lim states, than domestic prosecutions, which could be seen with some 
suspicion overseas. In the view of some commentators, the perceived illegiti- 
macy of US domestic mechanisms, especially the Military Commissions au- 
thorized by President Bush, 27 mitigates towards the creation of an 
international supranational tribunal. For example, Justice Richard Goldstone, 
the first chief prosecutor for the International Tribunal for the Prosecution of 
Persons Responsible for Serious Violations of International Humanitarian 
Law Committed in the Territory of Former Yugoslavia since 1991 (ICTY), 
speculated that the perceived difficulty of obtaining a fair trial for terrorists in 
the United States would cause some countries to resist extraditions to domes- 
tic courts, whereas those same countries would be legally barred from resisting 
extradition to a forum created under the Chapter VII authority of the Secu- 
rity Council. 28 



27. See Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non- 
Citizens in the War Against Terrorism, 66 FED. REG. 57,833 (Nov. 16, 2001) (while it is beyond the 
scope of this essay to completely assess the merits of the forthcoming military commissions, the 
order defines the class of persons subject to the jurisdiction of military commissions as "any 
individual who is not a United States citizen" with respect to whom the President determines in 
writing that there is reason to believe that such individual, at the relevant times (i) is or was a 
member of al Qaeda, or (ii) has engaged in, aided, or abetted or conspired to commit acts of 
international terrorism, or acts in preparation therefore, that have caused, threatened to cause, 
or have as their aim to cause, injury to or adverse effects on the United States, its citizens, 
national security, foreign policy or economy; or (iii) has knowingly harbored one or more 
individuals described in subparagraphs (i) or (ii) .) 

28. Henry Weinstein, A Trial Too Big for the U.S.?, LOS ANGELES TIMES, Oct. 26, 2001, Al; Ed 
Vulliamy, US Dilemma Over Trials of bin Laden, GUARDIAN UNLIMITED OBSERVER, Nov. 4, 
2001 (quoting Justice Goldstone as favoring international tribunals for the prosecution of 
terrorists and speculating that he would be selected as the first chief prosecutor of the 
International Criminal Court), available at http://www.observer.uk.co/afghanistan/story/ 
0,1501,587365,OO.html Qan. 30, 2003). 

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International Criminal Law Aspects of the War Against Terrorism 

Additionally, in the words of one prominent international lawyer if "we're 
thinking in terms of a global war on terrorism in the long-term, it would be 
better to try [bin Laden] in an international forum where we could get the in- 
put, but also the condemnation of judges from all the world's legal systems un- 
der both national and international law." 29 In a similar vein, the current ICTY 
prosecutor, Carla Del Ponte, reported that "quite a few people" at United Na- 
tions headquarters revealed in private conversations that prosecuting terror- 
ists in The Hague would be the "most valid solution." 30 This would of course 
require the Security Council to expand the mandate of the ICTY. Ms. Del 
Ponte perhaps revealed her agenda for suggesting such an expansion with the 
caveat that "[i]f the Security Council were to decide to pursue that path, it 
would have to increase the funding earmarked for the Hague Tribunal." 31 

The Military Order authorizing military commissions has been one of the 
most controversial aspects of the United States' efforts to bring justice to ter- 
rorists, 32 yet even its most vocal critics accept that such forums promulgated 
under the President's constitutional authority as commander-in-chief are 



29. America's Legal War on Terrorism: Are These Rules for Hunting Terrorists; Could bin Laden 
be Brought to Trial (CNN Burden of Proof broadcast, Oct. 6, 2001), cited in David J. Scheffer, The 
Future of Atrocity law, SUFFOLK TRANS. L. REV. 389, 390 n.3 (Summer, 2002). This view perhaps 
represents a modern incarnation of the views articulated by the then Secretary of State Thomas 
Jefferson in a letter dated April 18, 1793, 8 WRITINGS OF THOMAS JEFFERSON 1 1 (1904): 

Compacts . . . between nation and nation, are obligatory on them by the same moral law 
which obliges individuals to observe their compacts. ... It is true that nations are to be 
judges for themselves; since no one nation has a right to sit in judgment over another, 
but the tribunal of our conscience remains, and that also of the opinion of the world. 
These will review the sentence we pass in our own case, and as we respect these, we 
must see that in judging ourselves we have honestly done the part of impartial and 
rigorous judges. 

30. Prosecutor Del Ponte Hopes to Try Bin Laden in The Hague, Interview with the Hague 
International War Crimes Tribunal Chief Prosecutor Carla Del Ponte, Rome L'Awenire, Dec. 2, 
2001 (copy on file with author). 

31. Id. 

32. James Podgers, ABA Tackles Tribunals Issue, 1 A.B.A. J. e-Report, Feb. 8, 2002, available at 
http://www.abamet.org/journal/ereport/f8midtribus.html (Jan. 30, 2003); DAVID J. SCHEFFER, 

Options for prosecuting international Terrorists, United States institute for 

PEACE SPECIAL REPORT (2001), available at http://www.usip.org/pubs/specialreports/sr78.html 
Gan.30, 2003). 

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Michael Newton 



"clearly authorized under international law." 33 From this perspective, rather 
than sanctioning a "multiplicity of trials in various countries" the creation of 
an overarching international tribunal that could perhaps include participation 
of Islamic judges is being packaged as a part of the international coalition 
against terrorism. 34 Nevertheless, allowing sovereign states to bypass their do- 
mestic enforcement mechanisms and abdicate their responsibilities to a newly 
spawned international mechanism is not likely to be an effective response in 
the long term. 

The cries for an international tribunal imply that an international response 
is always appropriate for crimes grounded in international law that shock the 
conscience of mankind, which in turn implies an unseemly assertion that do- 
mestic prosecutions are always inappropriate and unfair. While terrorism is 
widespread, and may be impossible to eradicate, the compelling motivations 
that have required the formation of international forums in other contexts are 
notably absent. 

In other words, despite the inherent difficulty of investigating and prose- 
cuting international terrorists, there is no culture o{ impunity because one or 
several sovereign states will always have jurisdiction, political will, and a very 
strong motivation to prosecute that particular set of terrorists when there is 
available evidence sufficient to sustain conviction of persons who are within 
the substantive and personal jurisdiction of the sovereign state. Creation of an 
international forum specifically designed to respond to crimes of terrorism 
would be a wholly new development in the field of international criminal law 
because it would be the first time that an international forum was created 
solely due to the nature of the crimes committed. If the nations of the world 
are committed to combating the core problem of transnational terrorism, the 
best place is in the domestic forums of affected states. This approach will ac- 
complish the most in the long term to ensure that the rule of law is strength- 
ened and justice is done. 



33. William Glaberson, U.S. Faces Tough Choices If Bin Laden Is Captured, N.Y. TIMES, B5, Oct. 
22, 2001; Michael R. Belknap, A Putrid Pedigree: the Bush Administration's Military Tribunals in 
Historical Perspective 38 CAL. W. L. REV. 433, 441 (Spring, 2002). The Bush Administration has 
pointedly reminded the world that the procedures published that will govern the conduct of any 
Military Commissions authorized by the President are in full compliance with the international 
standards, Article 75, Protocol I. See Protocol Additional to the Geneva Conventions of 12 
August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 1125 
U.N.T.S. 3, reprinted in 16 I.L.M. 1391 (1977). 

34. Comments by Justice Richard Goldstone, Bringing International Criminals to Justice, John 
F. Kennedy Library and Foundation Responding to Terrorism Series, Nov. 12, 2001, available at 
http://www.jfklibrary.net.forum_goldstone.html (Jan. 30, 2003). 

333 



International Criminal Law Aspects of the War Against Terrorism 

"International Criminal Law" 

Similarly, an international terrorist tribunal is not warranted by the very exis- 
tence of an emerging collection of concepts and processes termed "interna- 
tional criminal law." The concept of international criminal law springs from the 
intersection of two distinct legal planes; due to the nature of the international 
system, the criminal aspects of international law are necessarily implemented 
through the criminal justice systems of sovereign states. For the purposes of this 
essay, it is important to realize that the simple recognition of legal norms under 
international law in no way leads ineluctably to the conclusion that the most 
appropriate, or even most desirable forum, is an internationalized court. 

Though some states cooperate to prescribe some norms in binding interna- 
tional obligations, 35 the domestic criminal systems of sovereign states present 
a competing set of pragmatic and practical challenges in implementing and 
enforcing those same norms. The criminal aspects of international law origi- 
nate in the choices made by sovereign states who united to criminalize certain 
conduct under established international norms. 36 In other words, the mecha- 
nisms of diplomacy and state consent work together to define and proscribe 
certain conduct to the point that it ripens into a violation of substantive inter- 
national norms. From the standpoint of developing binding norms of conduct 
through the evolution of international law, the twentieth century was a period 
of almost breathtaking development. 

At the same time, the development of international forums lagged behind 
the substantive development of crimes defined and articulated as a matter of 
international law. Indeed, the principle that states are obligated to use domes- 
tic forums to punish violations of international law has roots that run back to 
the ideas of Hugo Grotius. 37 The very nature of sovereign power allows the do- 
mestic forums of a state to punish criminals whether their crimes derive from 
international norms or domestic prohibitions. As early as 1842, US Secretary 



35. Professor Bassiouni has listed 24 categories of international crime generated from 274 
international conventions that help guide the merger of international law with criminal law. M. 

Cherif Bassiouni, International Criminal Law Conventions and Their Penal 
Provisions 20-21 (1997). 

36. M. Cherif Bassiouni, The Penal Characteristics of Conventional International Criminal Law, in 

International Criminal Law and procedure 27 Gohn Dugard & Christine van den 

Wyngaert, eds. 1996) (summarizing some twenty different acts and types of conduct criminalized 
under binding international conventions and discussing the differing approaches to enforcing 
international criminal norms). 

37. RICHARD TUCK, THE RIGHTS OF WAR AND PEACE: POLITICAL THOUGHT AND THE 
INTERNATIONAL ORDER FROM GROTIUS TO KANT (1999). 

334 



Michael Newton 



of State Daniel Webster articulated the idea that a nation's sovereignty also 
entails "the strict and faithful observance of all those principles, laws, and us- 
ages which have obtained currency among civilized states, and which have for 
their object the mitigation of the miseries of war." 38 

One way to envision the current state of international criminal law is to 
imagine that pure domestic enforcement of international norms and the re- 
finement of new and more effective international forums are like two sliding 
tectonic plates. Even though the body of terrorist conventions followed the 
pattern of requiring domestic enforcement, there is an inherent tension at the 
fault line between domestic and international criminal forums because the ju- 
risdictional allocation is a zero sum game with regard to a particular individual 
or criminal act. 

The phrase "international criminal law" describes a deceptively simple con- 
cept that is not confined to the title of law review articles or the spines of li- 
brary books. The expression obscures the reality that its genesis lies in the 
lawmaking processes of the international community, and cannot therefore be 
seen as a linear exercise of legislative mandate accompanied by international 
judicial enforcement. The field of "international criminal law" is an ambigu- 
ous concept with indistinct boundaries. 39 

Because no single class of crimes or isolated body of law forms an accurate 
and complete foundation for the currently existing tribunals created at the in- 
ternational level to punish individuals for violations of international law, one 
distinguished scholar and diplomat has proposed the unifying concept of 
"atrocity crimes." 40 In short, the concept of international criminal law is more 
than a mere aspiration to be attained yet falls short of being a constrained 
body of law with an empirical existence and definable contours. For the close 
observer of this dynamic field, it is not surprising that there is an undercurrent 
of debate challenging the very existence of a distinct discipline termed "inter- 
national criminal law." 41 



38. John Bassett Moore, l A Digest of international law 5-6 (1906). 

39. Though international criminal law certainly includes the body of law proscribing 
international terrorism, this concept also includes crimes against humanity (and its component 
parts of persecution of minority populations) torture, some human rights violations, war crimes 
(both in the classic sense of conflicts between nation states and in the growing body of law 
regulating conduct in the context of non-international armed conflicts), genocide, and other 
transnational crimes such as piracy, slavery, and drug trafficking. 

40. David J. Scheffer, The Future of Atrocity Law, SUFFOLK TRANS. L. REV. 389, 398 (Summer, 
2002). 

41. See, e.g., Leslie C. Green, Is There an International Criminal Law?, 21 ALBERTA L. REV. 251 
(1983). 

335 



International Criminal Law Aspects of the War Against Terrorism 

As a result of this ambiguity, during the negotiations of the Elements of 
Crimes required by Article 9 of the Rome Statute of the International Criminal 
Court (ICC), 42 some delegations vehemently voiced their view that the con- 
cept of "international criminal law" is too ill defined and vague to have any 
practical meaning. The Elements of Crimes are designed to "assist the Court in 
the interpretation and application" of the norms defined in the Rome Stat- 
ute. 43 The Rome Statute also stipulates that the Court "shall apply" the Ele- 
ments of Crimes during its decision-making. 44 After agreeing that the Elements 
of Crimes would be much more than a summarized, non-binding set of brief 
comments, the delegates negotiated a detailed list of the component parts for 
every one of the numerous offenses proscribed in the Rome Statute with the 
understanding that the prosecutor must prove each element beyond a reason- 
able doubt to sustain a conviction for that offense. A number of delegations felt 
that referencing a discrete body of "international criminal law" in the Elements 
of Crimes document would introduce exactly the kind of circular vagueness 
that would defeat the very purpose of negotiating elements for each offense. 

After extensive debate, the nations of the world joined consensus on the 
Final Draft Elements of Crimes. The Elements of Crimes are enshrined in a 
single, accessible document that takes otherwise amorphous crimes and delin- 
eates the conduct, consequences, and circumstances for every offense, along 
with the mens rea that attaches to each component of each crime. This is an 
important development because it portends the possibility that nations 
around the world now have a unified, consensus document to consult when 
considering the normative content of the crimes of genocide, found in Article 6 
of the Rome Statute, crimes against humanity, contained in Article 7, and the 
expansive list of war crimes contained in Article 8. 

The Elements of Crimes are a crosscut oi legal norms that are an off-the- 
shelf source of accessible detail to assist domestic jurisdictions throughout the 
world, in addition to serving as a resource for judicial activities in the interna- 
tional arena. Many states are using the agreed elements as a framework for im- 
plementing those crimes within their domestic enforcement mechanisms. 

For the purposes of this essay, the Elements do embody consensus agree- 
ment on the concept of art autonomous legal field termed "international crim- 
inal law." The chapeau language to the Article 7 crimes states clearly that the 



42. Elements of Crimes, Adopted September 10, 2002, reprinted in Report of the Assembly of 
States Parties to the Rome Statute of the International Criminal Court, 1st Sess., 108-155, U.N. 
Doc. ICC- ASP/1/3 (2002). 

43. Id., art. 9(1). 

44. H., art. 21. 

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Michael Newton 



crimes against humanity provisions relate to "international criminal law" and 
accordingly "should be strictly construed." 45 This diplomatic result recognized 
the emergence of an interrelated system in which domestic forums are respon- 
sible for implementing international norms, but in no way elevated interna- 
tional forums to a de facto hierarchical supremacy. 

The Internationalization of International Criminal Law 

The development of a general body of legal norms along with the emergence of 
a system termed in shorthand "international criminal law" does not mean that 
international forums are the preferred judicial enforcement mechanism. The 
pursuit of accountability for international crimes is a notable aspect of Presi- 
dent Bush's recent observation that the nations of the world are "joined in seri- 
ous purpose — very serious purposes — on which the safety of our people and the 
fate of our freedom now rest. We build a world of justice, or we will live in a 
world of coercion." 46 Nevertheless, international forums have been the courts 
of last resort rather than the courts primarily charged as the optimal first 
response. 

Although states cooperate together to define and proscribe crimes under 
international law, the domestic courts of the world have the primary role in 
punishing violations and securing the rule oi law. 47 The debate over the 
phrase "international criminal law" described above reflected a continuing 
tension between the international respect for sovereign justice systems, and 
the transcendent importance of truth and accountability. Phrased another 
way, none of the international forums in recent history have been created to 
enforce international norms simply because the offenses were defined and pro- 
scribed by the power of international law. Rather, internationalized mecha- 
nisms have been created only as a necessary fallback when domestic forums 
have failed to enforce the transcendent norms of international law. 



45. U.N. Doc. PCNICC/2000/INF/3/Add.2 (2000). 

46. Remarks by the President to a Special Session of the Bundestag, May 23, 2002, available at 
http://www.whitehouse.gov/news/releases/2002/05/20020523-2.html (Nov. 20, 2002). 

47. See, e.g., Attorney Gen. of Israel v. Eichmann-Supreme Court Opinion, reprinted in 36 1.L.R. 
18, 26, (Isr. Dist. Ct.-Jerusalem, 1961), affd 36 1.L.R. 277 (Isr. Sup. Ct., 1962) (international law 
is "in the absence of an International Court, in need of the judicial and legislative organs of every 
country to give effect to its criminal interdictions and to bring the criminals to trial"). 

337 



International Criminal Law Aspects of the War Against Terrorism 

For example, in responding to what President Roosevelt later described as 
the "blackest crimes in all history," 48 the Allied Powers issued the Moscow 
Declaration on October 30, 1943. 49 German forces were able to commit al- 
most unthinkable brutalities under the shield of Nazi sovereignty. Adolf Hit- 
ler imposed the Fuehrerprinzip (leadership principle) in order to exercise his 
will as supreme through the police, the courts, the military, and all the other 
institutions of organized German society. 50 The oath of the Nazi party stated: 
"I owe inviolable fidelity to Adolf Hitler; I vow absolute obedience to him and 
to the leaders he designates for me." 51 Accordingly, power resided in Hitler, 
from whom subordinates derived absolute authority in hierarchical order. 
This absolute and unconditional obedience to the superior in all areas of pub- 
lic and private life led in Justice Jackson's famous words to "a National Social- 
ist despotism equaled only by the dynasties of the ancient East." 52 

Sheltered from international scrutiny by German sovereign prerogative, the 
domestic system was harnessed to prevent a judicial response to the horren- 
dous crimes committed because the outcomes of prosecutions were predeter- 
mined to accord with the political guidance of the Fuehrer. The rule of law in 
Germany was therefore twisted to conform to the Nazi party rather than the 
principles of restraint and justice. In response, the Allied powers used the Mos- 
cow Declaration to make punishing those perpetrators 53 a key allied war goal. 

In the context of the current debate over internationalizing justice, it is im- 
portant to note that the Moscow Declaration specifically favored punishment 
through the national courts in the countries where the crimes were committed. 
The Declaration specifically stated that German criminals were to be "sent 



48. Statement by the President, March 24, 1944, reprinted in REPORT OF ROBERT H. JACKSON 

United States Representative to the International Conference on military 
tribunals 12, department of state publication 3080, washington d.c. (1945) 

[hereinafter Jackson Report]. 

49. IX Department of State Bulletin, No. 228, 3 10, reprinted in Jackson Report, supra note 48, at 
11. The Moscow Declaration was actually issued to the Press on November 1, 1943. For an 
account of the political and legal maneuvering behind the effort to bring this stated war aim into 
actuality, see PETER MAGUIRE, LAW AND WAR: AN AMERICAN STORY 85-1 10 (2000). 

50. Drexel a. Sprecher, Inside the Nuremberg Trial: a Prosecutor's 
Comprehensive Account 1037-38. 

51. Id. at 157. 

52. Opening Statement to the International Military Tribunal at Nuremberg, II TRIAL OF THE 

Major War Criminals Before the international Military Tribunal 100 (1947) 

[hereinafter TRIAL OF THE MAJOR WAR CRIMINALS]. 

53. After extensive debate over the relative merits of the terms "perpetrator" or "accused" the 
delegates to the Preparatory Commission (PrepCom) ultimately agreed to use the former in the 
finalized draft text of the Elements of Crimes for the International Criminal Court, U.N. Doc. 
PCNICC/2000/INF/3/Add.2 (2000). 

338 



Michael Newton 



back to the countries in which their abominable deeds were done in order that 
they may be judged and punished according to the laws of these liberated 
countries and of the free governments which will be erected therein." 54 The 
precedence was clearly stated for building the rule of law at the domestic level, 
even though the subject matter jurisdiction for horrific violations came from 
international law. Presaging the actual International Military Tribunal, the 
Declaration went on to proclaim that major criminals whose crimes had "no 
particular geographical localization" would be punished by joint decision of the 
Allied governments. 55 

Seen through the prism of international criminal law, the Moscow Declara- 
tion and the subsequent London Charter did not elevate the international fo- 
rum to an automatic precedence and superiority. The international forum was 
limited only to those offenses where a single country had no greater grounds 
for claiming jurisdiction than another country. Justice Jackson recognized this 
reality in his famous opening statement. He accepted the fact that the Inter- 
national Military Tribunal was merely an alternative to domestic courts for 
prosecuting the "symbols of fierce nationalism and of militarism." 56 He further 
clarified that any defendants who succeeded in "escaping the condemnation 
of this Tribunal . . . will be delivered up to our continental Allies." 57 

Following the legacy of Nuremberg by nearly fifty years, the current ad hoc 
tribunals were both created in contexts where justice would not be achieved 
or even pursued in domestic forums. Instead of being driven by an abstract 
evaluation of the nature of the offenses as violations of international law, the 
international community focused on the need to prosecute offenders by filling 
the domestic enforcement void with an international tribunal. In the Former 
Republic of Yugoslavia, the Milosevic regime exercised dictatorial power over 
the Yugoslav judicial system that prevented any accountability for the wide- 
spread violations of international law. Thus, the "particular circumstances" of 
the impunity in the Former Yugoslavia warranted the creation of the interna- 
tional tribunal. 58 

Similarly, in the context of the genocide in Rwanda, the Security Council 
created the International Criminal Tribunal for Rwanda (ICTR) where there 



54. Eichmann, supra note 47. 

55. Id. 

56. TRIAL OF THE MAJOR WAR CRIMINALS, supra note 52, at 99. 

57. Id. at 100. 

58. Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 
(1993), U.N. SCOR, 48th Sess., U.N. Doc. S/2-5704, para. 26 (1993). 

339 



International Criminal Law Aspects of the War Against Terrorism 

would have otherwise been a prosecutorial void. The genocide ripped apart 
Rwandan society. All the judges fled and the judicial system was in total disar- 
ray. In the case of Rwanda, the problem was not a lack of political will, but a 
complete breakdown of the rule of law hampered by a judicial system deemed 
to be incapable of addressing the mass of violations. 59 

Both the ICTY and ICTR drew their lifeblood from the political process of 
the Security Council because the only viable system of justice would have 
been a newly created international forum. From the perspective of Charter le- 
gal authority, the ICTY and ICTR are best understood as enforcement mea- 
sures of a judicial nature. In other words, the Security Council was forced by 
the circumstances at hand to assume a quasi-sovereign role to create subordi- 
nate judicial structures within the territorial bounds that would otherwise 
have been policed by responsible governmental structures. 60 Nations are le- 
gally obligated to accept the decisions of the Security Council. 61 Hence, the 
use of Chapter VII authority in this manner was both unprecedented and in- 
genious because the international tribunals were grounded on a Security 
Council determination that judicial accountability for crimes would facilitate 
the maintenance and restoration of international peace and security. 62 The 
edifice of internationalized justice that has become such a familiar landmark 
on the international scene in the past decade merely filled the void left by dys- 
functional domestic systems. 

In relation to the current debate over creating a supranational forum to re- 
spond to terrorism, the essential feature of the ad hoc tribunals is the reality 
that they were not created as an international response simply due to the 
nature of the crimes as substantive violations of international law. Although 
the ad hoc tribunals enjoyed legitimacy and authority over sovereign states im- 
mediately upon their inception by virtue of the plenary authority of the Secu- 
rity Council with respect to maintaining international peace and security, 63 
they represent a limited response to specific enforcement gaps. The specific 



59. See generally VIRGINIA MORRIS & MICHAEL P. SCHARF, THE INTERNATIONAL CRIMINAL 
COURT FOR RWANDA (1998). 

60. U.N. CHARTER art. 29. See also Theodor Meron, War Crimes in Yugoslavia and the 
Development of International Law, 88 AM. J. INT'L L. 78 (1994). 

61. U.N. CHARTER art. 25. 

62. See Report of the Secretary General, supra note 58, paras. 18-30. 

63. See, e.g., Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), 
I.C.J. REPORTS 151 (1962), reprinted in 56 AM. J. INT'L L. 1053 (1962) (holding in part that the 
Security Council has plenary authority under the Charter to take decisions and order 
enforcement measures under the Charter regime). 

340 



Michael Newton 



conditions that warranted the creation of the ad hoc tribunals also led the Se- 
curity Council to mandate a jurisdictional hierarchy in which each interna- 
tional tribunal has explicit jurisdictional "primacy" over national courts. 64 
Therefore, the jurisdictional framework of the ad hoc tribunals in no way im- 
plies an "inherent supremacy" for international tribunals over domestic forums 
that derives simply from the nature of the underlying criminal offenses. 

In the context of the war on terrorism, the formation of the ICTY and 
ICTR do not warrant the assumption that international mechanisms are al- 
ways the appropriate response to international crimes. The specific contextual 
interests of eliminating the problem of impunity and restoring respect for the 
rule of law mitigated against relying on domestic enforcement, but in no way 
does that lead to the conclusion that an international forum is the appropriate 
response to international crimes. Unlike the situation in the Former Yugosla- 
via, international terrorists are private actors who act outside the constraints 
of civilized society, and are therefore in no position to block state enforcement 
mechanisms. In Rwanda, the international mechanism was an essential gap 
filler to provide support to a collapsed judicial system. 

As noted above, the jurisdictional hierarchy was a logical corollary to the 
use of Chapter VII authority to establish the tribunals. As a legal matter, inter- 
national efforts are hardly sufficient to be the sole source for dispensing jus- 
tice. 65 As a practical matter, the gap between the victims and the courts 
remains yawning. An effort to create an international tribunal for prosecuting 
terrorism would be similarly ineffective as the focal point of effective and com- 
plete enforcement. 

The newly established ICC is the culmination of recent efforts to create a 
superstructure of international accountability mechanisms to address impunity 
for international offenses. With respect to the proposal for an international 



64. Virginia Morris & Michael P. Scharf, An insider's Guide to the international 
Criminal Tribunal for the former Yugoslavia 126 n.378 (1995). 

65. At the time of this writing, the ICTY has issued 79 current indictments; with 55 suspects in 
legal proceedings (of which 44 are in custody and 1 1 are provisionally released under strict terms 
issued by the Trial Chamber) ; 33 individuals are currently in various stages of trial while 30 cases 
have been completed (20 indictments were withdrawn and 10 indictees were deceased). The 
ICTR has issued 80 indictments of whom 60 persons are in custody while 20 remain at large; 8 
persons have been sentenced, 1 acquitted; 22 are in trial and 29 are in custody. 

341 



International Criminal Law Aspects of the War Against Terrorism 

mechanism to try terrorists, it is significant that the Rome Statute did not in- 
clude terrorism within its jurisdictional crimes because delegates could not 
agree on the form of such an offense. 66 Despite the clear rejection of ICC juris- 
diction over terrorist crimes during the drafting of the Rome Statute, some ICC 
proponents vocally maintained after September 1 1 that its provisions for punish- 
ing crimes against humanity should be twisted to cover terrorist acts as well. 

Attempts to stretch the jurisdictional bounds of the ICC to cover crimes of 
terrorism would be the most blatant effort to superimpose international mech- 
anisms over functioning domestic courts. As of its entry into force on July 1, 
2002, the Rome Statute purports to establish a permanent supranational insti- 
tution that enshrines the principle that state sovereignty can be subordinated 
to the goal of achieving accountability for violations of international humani- 
tarian law. 67 Indeed, one commentator at the diplomatic conference in Rome 
argued that "outmoded notions of state sovereignty must not derail the for- 
ward movement" towards international peace and order. 68 Even the most ar- 
dent supporters of the ICC are careful not to portray its potential authority as 
a naked exercise of political power, and view its erosion of state sovereignty 
only as a necessary but limited incursion. 

In other words, the creation of a supranational court empowered to over- 
ride the unfettered discretion of some states is seen by the supporters of the 
ICC as an overdue step towards a uniform system of responsibility designed to 
"promote values fundamental to all democratic and peace-loving states." 69 
Depending on their perspectives, commentators on the ICC see either princi- 
pled leadership backed by the courage of deeply held convictions or stark hy- 
pocrisy and self-serving opportunism. 



66. See Rome Statute, supra note 24, art 5. 

67. See Rome Statute, supra note 24, arts 12-19. The extension of unchecked international 
prosecutorial and judicial power over sovereign concerns is one of the primary reasons causing 
the United States position to remain unwilling to go forward with the Rome Statute "in its 
present form." David J. Scheffer, The United States and the International Criminal Court, 93 AM. J. 
INT'L L. 14, 21 (1999) [hereinafter Scheffer]. The United States joined international consensus 
on the Final Draft Rules of Evidence and Procedure and the Final Draft Elements of Crimes on 
June 30, 2000. 

68. Benjamin Ferencz, Address to the United Nations Diplomatic Conference of 
Plenipotentiaries on the Establishment of the International Criminal Court (June 16, 1998), 
available at http://www.un.org/icc/speeches/616ppc.htm (Jan. 30, 2003). 

69. Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the 
Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (2001); Bartram S. Brown, 
Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International 
Tribunals, 23 YALE J. INT'L L. 383, 436 (1998). 

342 



Michael Newton 



Though its supporters approach the ICC as the penultimate development 
of international criminal justice at the dawn of a new century, the roots of its 
core jurisdictional limitation are intellectually identical to the Nuremberg Tri- 
bunal and the ad hoc tribunals. Article 1 of the Rome Statute promulgates in 
simple language that the court will "be a permanent institution and shall have 
the power to exercise its jurisdiction over persons for the most serious crimes 
of international concern . . . and shall be complementary to national criminal 
jurisdictions." 70 The plain text of Article 1 compels the conclusion that the 
ICC is intended to supplement sovereign punishment of international viola- 
tions rather than supplant domestic enforcement of international norms. 

Accordingly, a case is admissible before the ICC only where a domestic sov- 
ereign that would otherwise exercise jurisdiction is "unwilling or unable to 
genuinely" carry out the investigation or prosecution. 71 The principle of 
complementarity is a mandatory limitation even in a case in which the other 
jurisdictional criteria are met because the Trial Chamber "shall determine 
that a case is inadmissible" where the admissibility criteria are not met. After 
hitting a diplomatic dead-end for nearly 70 years, persistent attempts to ex- 
pand (some would say warp) the ICC jurisdictional scope over crimes of ter- 
rorism due to their highly emotionalized nature and the rise of global concern 
would subvert the complementarity mechanism. Paradoxically, such an ex- 
pansion would vindicate the stringent arguments of those who view the supra- 
national ICC mechanism simply as an international effort to undermine 
sovereignty. 

The Nuremberg Tribunal, the ICTR, the ICTY and now the ICC have 
erected a formidable edifice of internationalized justice. At the same time, 
it is absolutely clear that where domestic jurisdictions are functioning, the 
internationalized response is not warranted (and in the case of the ICC not 
permissible) . Though the development of international institutions to enforce 
international norms has broken new ground in the past fifty years and helped 
to end impunity in some contexts, international mechanisms are not appro- 
priate where domestic courts are complying with the rule of law and remain 
capable of dispensing justice. Consequently, arguments for an international 
terrorist court fall of their own weight unless they can demonstrate a gap that 
such a mechanism would fill. 



70. Rome Statute, supra note 24, art 1. Article 1 echoes the preambular language of the Rome 
Statute in which the signatories affirm that effective prosecution of international crimes "must be 
ensured by taking measures at the national level and by enhancing international cooperation." 

71. Rome Statute, supra note 24, art 17(1). For the negotiating history of the complementarity 
regime, see Newton, supra note 69, at 44-55. 

343 



International Criminal Law Aspects of the War Against Terrorism 

An International Terrorist Court Has No Purpose 

The heading just above would probably seem curious to a casual observer. 
However, in light of the extensive jurisdictional framework conveying an ex- 
tensive punitive capacity to sovereign forums, proponents of an international 
terrorist tribunal bear the burden of establishing its usefulness on the interna- 
tional landscape. The creation of an international mechanism to prosecute ter- 
rorist crimes would be an inherently political exercise. It would cost a great deal 
of money, and require the expenditure of an enormous amount of political good 
will. One of the truths of international diplomacy is that international mecha- 
nisms are created by the international community to achieve international in- 
terests. A terrorist tribunal could actually encourage acts of terrorism if it 
replaced relatively efficient domestic mechanisms with a cumbersome, expen- 
sive, and slow process far removed from the realities of everyday prosecutorial 
and diplomatic practice. 

There is no preexisting gap in enforcement mechanisms that would be filled 
by an internationalized process to address crimes of terrorism. As of now, the 
sovereign states of the world have cooperated together in using the United Na- 
tions structure to adopt twelve multilateral antiterrorist conventions (though 
there are a number of other international instruments that address criminal 
conduct that could be termed "terrorist" depending on the circumstances). 
The core body of international instruments includes the following: Conven- 
tion on Offenses and Certain Other Acts Committed on Board Aircraft 72 
(known as The Tokyo Convention, 1963); Convention for the Suppression of 
Unlawful Seizure of Aircraft 73 (known as the Hague Hijacking Convention, 
1970); Convention for the Suppression of Unlawful Acts against the Safety of 
Civil Aviation 74 (known as the Montreal Convention, 1971); Convention on 
the Prevention and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents 75 (1973); International Convention 



72. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sep. 14, 
1963, 20 U.S.T. 2941, 704 U.N.T.S. 219, reprinted in 2 I.L.M. 1042 (1963). 

73. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 
1641, 860 U.N.T.S. 105, reprinted in 10 I.L.M. 1333 (1971), available at http://wwwl.umn.edu/ 
humanrts/instree/hague 1970.html Qan. 30, 2003). 

74- Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sep. 
23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, reprinted in 10 1.L.M. 1151 (1971). 
75. Convention on the Prevention and Punishment of Crimes against Internationally 
Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 
167, reprinted m 13 I.L.M. 41 (1974), available at http://wwwl.umn.edu/humanrts/instree/ 
inprotectedpersons.html (Jan. 30, 2003). 

344 



Michael Newton 



against the Taking of Hostages 76 (1979); Convention on the Physical Protec- 
tion of Nuclear Material 77 (1979); Protocol for the Suppression of Unlawful 
Acts of Violence at Airports Serving International Civil Aviation, supplemen- 
tary to the Convention for the Suppression of Unlawful Acts against the Safety 
of Civil Aviation 78 (known as the Montreal Protocol, 1988); Convention for 
the Suppression of Unlawful Acts against the Safety of Maritime Navigation 79 
(1988); Protocol for the Suppression of Unlawful Acts against the Safety of 
Fixed Platforms Located on the Continental Shelf 80 (1988); Convention on 
the Marking of Plastic Explosives for the Purpose of Detection 81 (1991); Inter- 
national Convention for the Suppression of Terrorist Bombing 82 (1997); and 
International Convention for the Suppression of the Financing of Terrorism 83 
(1999). 

As noted above, the piecemeal approach to addressing terrorism resulted 
from the failure of the international community, in conjunction with the 
United Nations, to develop an overarching, comprehensive convention 
against terrorism, largely because of lingering dissension over how to define 
the scope of the international proscription against acts o{ terrorism. Taken to- 
gether, the pile of terrorism treaties accomplishes several crucial purposes. 



76. International Convention against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. 11081, 
1316 U.N.T.S. 205, reprinted in 18 I.L.M. 1456 (1980), available at http://wwwl.umn.edu/ 
humanrts/instree/takinghostages.html (Jan. 30, 2003). 

77. Convention on the Physical Protection of Nuclear Material, Mar. 3, 1980, T.I.A.S. 11080, 
1456 U.N.T.S. 101, reprinted in 18 I.L.M. 1419 (1980). 

78. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International 
Civil Aviation Supplementary to the Convention for the Suppression of Unlawful Acts against 
the Safety of Civil Aviation, Feb. 24, 1988, 974 U.N.T.S. 178, reprinted in 27 I.L.M. 627 (1988). 

79. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime 
Navigation, Mar. 10, 1988, 1678 U.N.T.S. 221, reprinted in 27 I.L.M. 668 (1988). 

80. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located 
on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304, reprinted in 27 I.L.M. 685 (1988). 

8 1 . Convention on the Marking of Plastic Explosives for the Purpose of Detection, Mar. 1 , 1 99 1 , 
U.N. Doc. S/22393/Corr. 1, reprinted in 30 I.L.M. 721 (1991). 

82. International Convention for the Suppression of Terrorist Bombings, G.A. Res. 52/164, 
U.N. GOAR, 52d Sess., U.N. Doc A/RES/52/164, Annex (1997), reprinted in M. CHERIF 
BASSIOUNI, INTERNATIONAL TERRORISM: MULTILATERAL CONVENTIONS (1937-2001) 183 
(2001), available at http://www.un.org/documents/ga/res/52/a52rl64.htm (Jan. 30, 2003). 

83. International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/ 
109, 54th Sess., U.N. Doc. A/RES/54/109, Annex (2000), entered into force Apr. 10, 2002, 
available at http://www.un.org/documents/ga/res/54/a54rl09.pdf Oan. 30, 2003). 

345 



International Criminal Law Aspects of the War Against Terrorism 

Each treaty lists the specific acts that states should proscribe under applica- 
ble domestic law. 84 It is fair to say that the international instruments address- 
ing aspects of terrorism have been at the forefront of expanding the scope of 
permissible domestic jurisdiction. The terrorist conventions built on estab- 
lished principles of territorial and nationality jurisdiction through the devel- 
opment of passive personality jurisdiction. Thus, this body of international 
instruments allows a state party to establish personal jurisdiction over offend- 
ers who direct attacks against its nationals regardless of the situs of the at- 
tack. 85 This principle has been extended to the point that if a perpetrator even 
intends to intimidate the population or to compel a government to do or to 
abstain from taking a particular act, that government may establish its crimi- 
nal jurisdiction. 86 The body of existing conventional law therefore gives sover- 
eign states a robust ability to prosecute acts of international terrorism, and 
generally supports jurisdiction of several states over any particular act or at- 
tempted act of international terrorisrn. 

In addition to establishing the norms and the clearly recognizable right for 
sovereign states to enforce those substantive norms through domestic legisla- 
tion, the existing framework deliberately facilitates the cooperative efforts 
necessary to ensure the proper exercise of jurisdiction by one or more states. 
The underlying goal of the conventions is to facilitate the administration of 
justice in the state most able to prosecute the perpetrator. Thus, a recurring 
feature of the texts requires a state party that apprehends an alleged offender 
in its territory to submit that case "without exception whatsoever" to its com- 
petent authorities without "undue delay" for purposes of prosecution or to ex- 
tradite to another willing state. 87 Furthermore, the treaties facilitate 
extradition between sovereign states by specifically providing a legal basis ei- 
ther through the text of the convention itself or by inclusion of the offenses 
mentioned in the convention into existing or future extradition treaties be- 
tween the parties. Lastly, the existing framework of domestic enforcement in- 
corporates measures to ensure "the greatest measure o{ assistance" between 



84. See, e.g., 18 U.S.C. 32, 2331-2332e, 2339A, 3286, 3592 (2002). See also 28 U.S.C.A. 1605 
(framing issues of jurisdiction). 

85. See, e.g., Terrorist Bombing Convention, supra note 82, art. 6(2); Hostage Convention, supra 
note 76, art. 5. See also Draft Convention on the Suppression of Acts of Nuclear Terrorism, U.N. 
Doc. A/AC.252/L.3, reprinted in M. CHERIF BASSIOUNI, INTERNATIONAL TERRORISM: 
MULTILATERAL CONVENTIONS (1937-2001) 219 (2001). 

86. See, e.g., Terrorist Bombing Convention, supra note 82, art. 2; Financing of Terrorism 
Convention, supra note 83, art. 7(2)(c); Hostage Convention, supra note 76, art. 5(l)(c); Fixed 
Platforms Convention, supra note 80, art. 3(2)(c). 

87. See, e.g., Terrorist Bombing Convention, supra note 82, art. 8. 

346 



Michael Newton 



states in connection with investigations and prosecutions related to acts of in- 
ternational terrorism. 88 

The Convention on the Prevention and Punishment of Crimes against In- 
ternationally Protected Persons provides a representative sample of the opera- 
tion of domestic mechanisms in responding to acts of international concern. 
Its provisions require states parties to cooperate in order to prevent, within 
their territories, preparations for attacks on diplomats within or outside their 
territories, to exchange information, and to coordinate administrative mea- 
sure against such attacks. 89 If a perpetrator succeeds in attacking an interna- 
tionally protected person, state parties are obligated to exchange available 
information concerning the circumstances of the crime and the alleged of- 
fender's identity and whereabouts. 90 Ultimately, the state in whose territory 
the perpetrator is located must either extradite back to another state with ju- 
risdiction or "submit, without exception and without undue delay, the case to 
its competent authorities for the purpose of prosecution, through proceedings 
in accordance with the laws of that State." 91 

In short, for every terrorist crime committed or attempted, there will always 
be one or more sovereign states that have both an available basis for extending 
jurisdiction over the crimes and the motivation to do so. In relation to the 
prosecution of terrorist crimes, there is simply no remaining function that an 
internationalized process would serve. Nevertheless, if an internationalized 
terrorism tribunal generated a marked deterrent effect on those who would 
commit similar crimes in the future, the vast amount of dollars, yen, riyals, and 
euros spent could be a bargain. 

Evaluating the potentiality of an internationalized process as an instrument 
oi deterrence, it is worth noting that such an international forum would al- 
most certainly be unable to administer capital punishment, and its deterrent 
value would therefore be limited to an undetermined degree. Furthermore, 
there is no empirical evidence whatsoever of any deterrent effect of interna- 
tional justice mechanisms on the actions of real perpetrators in the real world 
who inflict their crimes on real victims. As Justice Jackson famously pointed 
out in his opening statement at Nuremberg, u [w]ars are started only on the 



88. See, e.g., Terrorist Bombing Convention, supra note 82, art. 10(1). 

89. Convention on the Prevention and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents, supra note 75, art. 4. 

90. Id., art. 5. 

91. Id., art. 7. 

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International Criminal Law Aspects of the War Against Terrorism 

theory and in the confidence that they can be won. Personal punish- 
ment . . . will probably not be a sufficient deterrent to prevent a war where the 
war makers feels the chances of defeat to be negligible." 92 

Justice Jackson was just articulating the enduring truth that international 
relations theorists are familiar with — regime elites are risk averse actors. If 
they see a high probability of punishment and adverse consequences, human 
psychology will often prevent the undesirable conduct. In the field of enforc- 
ing international norms, this is what we have termed "ending the cycle of im- 
punity." In the context of deterring violations of humanitarian law, criminal 
prosecutions by international tribunals have a theoretical effect, but good 
hopes and genuine aspirations cannot substitute for the power of genuine de- 
terrence. Terrorist actors would presumably be even less susceptible to exter- 
nal coercion because their modus operandi is to operate beyond the 
constraints of the rule of law and organized international society. 

The Kosovo experience is the best available case study on the deterrent ef- 
fect of an internationalized process, and it served to demonstrate the need for 
genuine deterrence rather than idealistic assertions of legal proscription. The 
Security Council repeatedly affirmed ICTY jurisdiction in an ongoing effort to 
prevent abuses by the Milosevic regime inside Kosovo, and expressly ordered 
the Belgrade regime to cooperate with the investigative efforts of tribunal per- 
sonnel. 93 The same resolution directed the ICTY prosecutor to "begin gather- 
ing information related to the violence in Kosovo that may fall within its 
jurisdiction." 94 

In the face of an existing international forum with clear jurisdiction and 
stated international support, Serbian forces massacred forty-five innocent ci- 
vilians at Racak, Kosovo, crimes that ultimately contributed to the NATO in- 
tervention in Operation ALLIED FORCE. 95 While governments grumbled over 



92. TRIAL OF THE MAJOR WAR CRIMINALS 153, supra note 52, at 153. 

93. See, e.g., S. C. Res. 1160, U.N. SCOR, 54th Sess., U.N. Doc. S/l 160/(1998). 

94. Id., para. 17. 

95. Even as the NATO nations gathered in Washington to observe the 50th anniversary of the 
alliance, operations in Kosovo threatened to unravel the international posture that NATO is a 
community of common values based on principles of sovereignty, individual liberty, and respect 
for the rule of law. Operation ALLIED FORCE represented the resolve of the world's strongest 
military/political alliance to take concrete action against despots who commit intolerable 
atrocities. By failing to take strong, if belated, action in the face of the crimes against humanity 
committed by the Belgrade regime, NATO would have looked cynical and irrelevant to the 
security and peace in Europe. THE ECONOMIST 15, Apr. 24, 1999. 

348 



Michael Newton 



the perceived slow pace of the ICTY investigations, 96 the Rambouillet docu- 
ment reiterated ICTY jurisdiction over events in Kosovo through an explicit 
provision that required the cooperation of Federal Republic of Yugoslavia 
(FRY) officials with the investigative efforts by ICTY. 97 

Despite the clear warnings of the international community, and express ju- 
risdiction of a functioning international tribunal, Belgrade's forces expelled 
over 1.5 million Albanians from their homes, committed uncounted rapes, pil- 
laged whole communities, destroyed tens of thousands of civilian homes in at 
least 1,200 communities, and murdered an estimated 10,000 Kosovar civil- 
ians. 98 The ICTY subsequently indicted Slobodan Milosevic and four of his se- 
nior officials for crimes against humanity and violations of the laws or customs 
of war committed in Kosovo, 99 one count of which specifically charged the 
Racak massacre. This indictment and the trials it will spawn continue to spark 
debate and keen interest in the law of armed conflict throughout the world. 
Nevertheless, the Milosevic indictment represented an unequivocal deter- 
rence failure for the established legal codes and judicial framework and the best 
measure of the likely deterrent effect of an international terrorist tribunal. 



96. Charles Truehart, A New Kind of Justice, THE ATLANTIC MONTHLY 80 (April 2000). In 
February, 1999, the Chairman-in-Office of the Organization for Security and Cooperation in 
Europe reported that there were at least 210,000 internally displaced Kosovars, and reported the 
lack of cooperation by FRY officials with the surviving relatives of the victims from the Racak 
massacre. U.N. Doc. S/ 1 999/2 14/(1 999) . This unwavering Security Council support was 
ultimately expressed in the Chapter VII resolution authorizing the international military and 
civil presence in Kosovo, which "demanded" full cooperation by all parties with the pending 
investigative efforts in the wake of the humanitarian disaster in Kosovo in the first six months of 
1999. S. C. Res. 1244, U.N. SCOR, 54th Sess., U.N. Doc. S/1244/para. 14/(1999). 

97. See Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, 
U.N. Doc. S/1999/648, annex, Art. II, para. 13 (1999). 

All parties shall comply with their obligation to cooperate in the investigation and 
prosecution of serious violations of international humanitarian law. 

a) As required by United Nations Security Council Resolution 827 (1993) and 
subsequent resolutions, the Parties shall fully cooperate with the International Criminal 
Tribunal for the Former Yugoslavia in its investigations and prosecutions, including 
complying with its requests for assistance and its orders. 

b) The Parties shall also allow complete, unimpeded, and unfettered access to 
international experts — including forensics experts and investigators — to investigate 
allegations of serious violations of international humanitarian law. 

98. Ethnic Cleansing in Kosovo: an accounting, U.S. dept of State 3 (Dec. 1999). 

An earlier version of the report was compiled by the State Department, which also issued a series of 
weekly ethnic cleansing reports, available at http://www.state.gov/www/regions/eur Qan. 30, 2003). 

99. Prosecutor v Milosevic, et al } Indictment, No. IT-99-37 (May 24, 1999), available at http:// 
www.un.org/icty/indictment/english/mil-ii990524e.htm (Jan. 30, 2003). 

349 



International Criminal Law Aspects of the War Against Terrorism 

Security Council Resolution 1373 

On September 28, 200 1 , the Security Council, acting under Chapter VII of the 
Charter, adopted Resolution 1373, which on its face is an extraordinary state- 
ment of international unity and purpose. 100 In the post-September 11 tidal 
wave of international concern and cooperation, states had the opportunity to 
revisit the approach that has been developed in dealing with international ter- 
rorism. The patchwork quilt of conventional law, implemented and adminis- 
tered through sovereign systems, is clearly not a complete solution, but the 
Security Council unanimously elected to reinforce the existing framework. 
Rather than opting for an internationalized process, the Security Council pre- 
cisely framed the language of Resolution 1373 to buttress the current approach. 
Resolution 1373 uses sweeping language to impose a duty on states to enact 
legislation and to punish the crimes of terrorism. The operative paragraph di- 
rects every nation in the world to 

[e]nsure that any person who participates in the financing, planning, 
preparation or perpetration of terrorist acts or in supporting terrorist acts is 
brought to justice and ensure that, in addition to any other measures against 
them, such terrorist acts are established as serious criminal offences in domestic 
laws and regulations and that the punishment duly reflects the seriousness of 
such terrorist acts. 101 

Because transnational terrorism is an illegal and immoral epidemic that under- 
mines the stability of world order, the Security Council employed its binding 
authority under Chapter VII to craft the most effective response possible. It is 
important that the Security Council focused on improving and implementing 
the sovereign enforcement of international norms rather than instituting an in- 
ternationalized judicial response. 

In its landmark statement outlining the international response to terrorism, 
the Security Council also established a number of additional steps that member 
states are required to take to combat terrorism. For example, the Council 
"[d]ecides that all States shall . . . [p]revent and suppress the financing of ter- 
rorist acts" 102 and then mandated other explicit steps that states are to take 



100. S. C. Res. 1373, U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001). 

101. Id., para. 2(c). 

102. Id., para. 1(a). 



350 



Michael Newton 



such as facilitating early warning to other states through the exchange of infor- 
mation, 103 denying safe haven to terrorists, 104 and preventing the movement o( 
terrorists by effective border controls and controls on the issuance of identity 
papers and travel documents. 105 In the context of criminal investigations and 
prosecutions, states must "[a]fford one another the greatest measure of assis- 
tance in connection with criminal investigations or criminal proceedings relat- 
ing to the financing or support of terrorist acts, including assistance in 
obtaining evidence in their possession necessary for the proceedings." 106 

Finally, the Security Council exhorted all sovereign states to take a number 
of cooperative actions to combat terrorism, including, among others, "intensi- 
fying and accelerating the exchange of operational information," 107 becoming 
parties to the relevant antiterrorist conventions, including the International 
Convention for the Suppression of Financing of Terrorism, 108 and ensuring, 
"in conformity with international law," that refugee status is not abused by 
terrorists, and that "claims of political motivation are not recognized as 
grounds for refusing requests for the extradition of alleged terrorists." 109 

Conclusion 

My view is that an international tribunal in the present circumstances is an 
inadvisable and unnecessary aspect of the response to transnational terrorism. 
The world will successfully combat terrorism by aggressively cooperating to 
engage, investigate, hunt down, and prosecute those terrorists who survive 
military action against them. We've already seen investigations in countries 
all around the world that have uncovered links to terrorism — and if the press 
is credible, have prevented some terrorist attacks. Abdicating state responsi- 
bility to an internationalized process would be the first step towards paralyzing 
politicization of the fight against terrorism and could pave the way towards ul- 
timate failure in this critical global campaign. 

In lieu of creating a superstructure of international enforcement, the Secu- 
rity Council used Resolution 1373 to take the revolutionary step of establishing 



103. Id., para. 2(b). 

104. Id., para. 2(c). 

105. Id., para. 2(g). 

106. Id., para. 2(0- 

107. Id., para. 3(a). 

108. Id., para. 3(d). 

109. Id., para. 3(g). 

351 



International Criminal Law Aspects of the War Against Terrorism 

a committee (the Counter-Terrorism Committee) to monitor state implemen- 
tation of its terms. The Security Council asked all states to report to the com- 
mittee, no later than 90 days after the date of adoption of the resolution, on the 
steps they have taken to implement the various aspects of the resolution. 110 
This is an important effort at identifying the gaps that can be addressed 
through international assistance in creating a more certain expectancy of jus- 
tice for those terrorists and would be terrorists who ignore and undermine the 
international order. In addition to the subsequent Security Council statements 
on terrorism, the reports that sovereign states have delivered to the Counter- 
Terrorism Committee regarding the concrete steps and present status of inter- 
national progress in prosecuting terrorist crimes are available on-line. 111 The 
pathway towards a more secure future for us all treads the terrain of a vibrant 
international cooperation and sovereign investigations and prosecution. An 
international terrorist tribunal would disrupt that vital process. 



110. Id., para. 6. 

111. See http://www.un.org/Docs/sc/committees/1373/ Oan. 30, 2003). 



352 



XXI 



Terrorism: 
The Proper Law and the Proper Forum 



Christopher Greenwood 1 

Introduction 



I 



he horrific events of 11 September 2001 changed the whole concept 
of terrorism in the minds not only of Americans but of many other 
people throughout the world. The atrocities perpetrated by al Qaeda that day 
were on a scale that was hitherto (and, we must all hope, for ever after) un- 
paralleled. It is obvious, however, that terrorism did not begin that day. It is 
also a mistake to conceive of terrorism as something exclusively, or even pri- 
marily, directed against the United States. It is almost certainly the case that 
more lives were lost to terrorism in Algeria during 2001 than were cut short 
by the murders committed at the World Trade Center and the Pentagon but 
the names of Algeria's terrorist victims are unlikely ever to be recorded. To 
see the events of 11 September 2001 as the worst case of a phenomenon 
which has afflicted most of the world for many years, rather than as some- 
thing unique, is in no way to diminish their horror, still less to excuse the con- 
duct or minimize the evil of those responsible. It is, however, an important 
step which needs to be taken in understanding terrorism and seeking to com- 
bat it. A successful strategy against terrorism has to be based on a recognition 



1. Christopher Greenwood is Professor of International Law at the London School of Economics 
and Political Science. 



Terrorism: The Proper Law and the Proper Forum 

that it is an international phenomenon, the fight against which requires in- 
ternational cooperation on a scale which is all too rare. 

That is particularly the case with attempts to bring terrorists to justice. In 
some respects the record of international cooperation since September 2001 is 
encouraging — the unprecedented action taken by the United Nations Secu- 
rity Council, and the number of ratifications which the main anti-terrorism 
treaties are now attracting, the broad coalition which cooperated in destroy- 
ing al Qaeda's presence in Afghanistan all demonstrate what can be achieved 
by the international community when it works cohesively. But that is only 
part of the picture. Serious differences remain about the law to be applied to 
acts of terrorism, attempts to characterize terrorists as combatants in a war, 
the forum before which terrorist acts can be tried and a host of other issues. 

The purpose of this paper will be to examine two of these issues. First, what 
is the law applicable to international terrorism and the reaction to it? In par- 
ticular, what is the relationship between the laws of war and international 
criminal law in this context? Secondly, what is the appropriate forum for the 
prosecution of the surviving perpetrators of the 1 1 September outrage? In this 
context, it is also necessary to ask how the machinery for bringing terrorists 
before the appropriate forum can be made more effective. 

The Proper Law 

The Laws of War 

A threshold question which has been raised by the events of 1 1 September and 
the reaction they have provoked is whether terrorism falls to be appraised by 
reference to the criminal law or the laws of war. The day after the attacks on the 
World Trade Center and the Pentagon, the President told the National Secu- 
rity Team that "the deliberate and deadly attacks which were carried out 
against our country were more than acts of terror; they were acts of war." 2 Others 
have argued that what happened was a crime but it had nothing to do with war. 
In approaching this issue, it is important to keep in mind that the categories 
of crime and act of war are not necessarily exclusive. International law is not 
composed of a series of watertight compartments, each insulated from the oth- 
ers. The fact that a particular act is a crime under international law (and un- 
der national law) does not mean that it cannot also be an act of sufficient 
gravity that it constitutes a casus belli. Thus the fact that the attacks on the 



2. Remarks by the President in Photo Opportunity with the National Security Team, at the 
White House Cabinet Room (Sep. 12, 2001), available at http://www.whitehouse.gov/news/ 
releases/20Ol/09/20O10912-4.html# (Apr. 29, 2003). 

354 



Christopher Greenwood 



World Trade Center and the Pentagon were crimes does not preclude them 
from also constituting an armed attack for the purposes of the right of self- 
defense in international law. That has not prevented a measure of academic 
controversy on this point. A number of scholars have argued that the concept 
of "armed attack" in Article 51 of the United Nations Charter is confined to 
acts imputable to a state. Others have suggested that there is a borderline be- 
tween crime and armed attack which cannot be crossed. 

Neither view has much to commend it and both are at odds with the prac- 
tice of states and international institutions. Nothing in the text or the drafting 
history of the Charter suggests that "armed attack" is confined to the acts of 
states. Moreover, the fons et origo of the right of self-defense in international 
law, the famous Caroline incident in 1837, concerned an attack on the United 
Kingdom's territory in Canada by a group of what we would now call terrorists, 
operating from US territory but in no way supported by the United States. 
Neither the United States nor the United Kingdom seems to have considered 
that this fact made any difference to the application of the law on self-defense 
and the formulation of the right of self-defense in the correspondence be- 
tween them concerning the Caroline has been quoted ever since. 3 

Nor has state practice or the jurisprudence of international tribunals since 
the adoption of the Charter espoused a formalistic distinction between acts of 
states and acts of terrorist and other groups in determining what constitutes 
an armed attack. The fact that the International Court of Justice, when it rec- 
ognized in the Nicaragua case 4 that the covert use of force could amount to an 
armed attack, referred only to covert actions by a state should not be taken as 
a finding (or even an obiter dictum) that covert uses of force by anything other 
than a state could not constitute an armed attack. The simple fact is that it 
was only state conduct which was in issue in the Nicaragua proceedings and 
the Court neither needed nor attempted to address the status of violence per- 
petrated without the involvement of a state. Moreover, the Security Council 
has repeatedly recognized that international terrorism, whether or not state 
supported, can amount to a threat to international peace and security and in 
resolutions 1368 and 1373 (2001), adopted in the aftermath of the events of 
1 1 September, it expressly recognized that the United States had the right of 
self-defense in terms that could only mean it considered that terrorist acts on 
a sufficient scale constituted armed attacks for the purposes of Article 5 1 irre- 
spective of who perpetrated them, for it was already likely by then that the 



3. R.Y. Jennings, The Caroline and MacLeod Cases, 32 AM. J. INT'L L. 82 (1938). 

4. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 
1986 I.C.J. 3 [hereinafter Nicaragua Case]. 

355 



Terrorism: The Proper Law and the Proper Forum 

attacks on the World Trade Center and the Pentagon were the work of al 
Qaeda. 5 The same approach was taken by the North Atlantic Council on be- 
half of the North Atlantic Treaty Alliance (NATO) 6 and the Foreign Minis- 
ters of the Organization of American States (OAS). 7 

The suggestion by some commentators that international terrorism must be 
dealt with exclusively through the mode of criminal prosecution of the indi- 
vidual and not through an application of the use o( force in self-defense is, if 
anything, even more remote from reality and logic. Arrest, prosecution and 
the ordinary process of the criminal law can occur only once a degree of law 
and order have been reimposed within a society after a shocking resort to vio- 
lence. That reimposition of law and order may well entail the use of the mili- 
tary even within a state and is still more likely to do so in the context of 
international society. The prosecution of the Nazi leadership for the crimes 
they committed in waging World War II was not an alternative to the use of 
force in self-defense but something which was made possible precisely because 
the victims of Nazi aggression were able successfully to employ force and over- 
come those aggressors. This is also the approach that must be used in dealing 
with the problem of international terrorism. Terrorism on the scale of what 
happened on 1 1 September cannot be addressed through the medium of inter- 
national criminal law or the law on the use of force alone. It requires a con- 
scious and judicious application of both. 

To that extent, therefore, it is meaningful to talk of terrorism in the con- 
text of the law relating to war, for terrorism may supply a justification for re- 
sort to force under the jus ad bellum. The extent to which the military 
response to the events of 11 September 2001 was justified under the United 
Nations Charter is discussed elsewhere in this volume. 8 The present writer is 
firmly of the view that the military action in Afghanistan was lawful under the 
jus ad bellum. 9 



5. See generally, S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001) and S. C. 
Res. 1373, U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001). 

6. See Press Release, NATO Reaffirms Treaty Commitments in Dealing with Terrorist Attacks 
Against the U.S. (Sep. 12, 2001), available at http://www.nato.int/docu/update/2001/0910/ 
e0912a.htm (Apr. 29, 2003). 

7. Terrorist Threat to the Americas, OAS Res. RC.24/RES.1/01 (Sep. 21, 2001), reprinted in 40 
I.L.M. 1273 (2001). 

8. See generally, Chapters II & III supra. 

9. Christopher Greenwood, International Law and the "War against Terrorism", 78 INT'L AFF. 301 
(2002); Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, 
AlQaida and Iraq, 4 SAN DIEGO INT'L L. J. 7 (2003). 

356 



Christopher Greenwood 



To apply the jus ad bellum in this way, however, is a very different matter 
from applying the jus in bello to terrorism and the response to terrorism. Of 
course, where the response to an act of terrorism involves the use o{ force by 
one state against another — as happened in Afghanistan — there will be an in- 
ternational armed conflict governed by the jus in bello. Moreover, to the ex- 
tent that the members of a terrorist movement such as al Qaeda fight as part 
of, or alongside, the armed forces of a state in such a conflict, their activities 
will be subject to the jus in bello (although they will not qualify for the status 
of lawful combatants in such a case unless they are integrated into the armed 
forces of a state or form a militia or irregular group responsible to that state 
and meeting the other criteria of the law of armed conflict 10 ). 

That is a very different matter, however, from treating al Qaeda as a bellig- 
erent in its own right and characterizing its relationship with the United 
States as an armed conflict governed by the jus in bello as some commentators 
have suggested. Indeed, some have gone so far as to suggest that there has 
been an armed conflict, presumably of an international character, between 
the United States and al Qaeda that goes back at least to the attacks on the 
United States embassies in Kenya and Tanzania in 1998 11 and possibly to the 
early 1990s and the first World Trade Center attack. On this analysis, this 
armed conflict was already in being at the time oi the 2001 attack on the 
World Trade Center with the result that this attack, against what was plainly 
a civilian object containing thousands of civilians, was a war crime. The attack 
on the Pentagon would also have constituted a war crime on this analysis, 
even though the Pentagon was itself a military objective, because the means of 
attack was a hijacked civil airliner. 

This theory has the obvious attraction that, as happened in World War II, 
the crimes which were committed could be tried by military commission. 12 
Moreover, since this theory means that the United States has been engaged in 
an armed conflict for many years, the use of the military on a war footing and 
under wartime rules of engagement would raise no legal difficulties. These are 
important considerations but there are several reasons why the temptation 
which they present is one which should be resisted. 



10. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 
4A, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]. 

11. On August 7, 1998, the US embassies in Nairobi, Kenya and Dar es Salaam, Tanzania were 
bombed by powerful car bombs. Over 250 people died in these attacks with over 5,000 injured. 
Osama bin Laden claimed responsibility for the attacks on behalf of al Qaeda. 

12. For practice in World War II, see United States v. Quirin, 317 US 1 (1942). 

357 



Terrorism: The Proper Law and the Proper Forum 

First, something does not become so merely because it is useful that it 
should be so. The question whether there is an armed conflict is one which 
has to be decided by reference to the objective criteria laid down in inter- 
national law, not the convenience (or inconvenience) of the results which 
may follow. 

Secondly, if one applies the criteria of international law, it is clear that al 
Qaeda has neither the right nor the capacity to be a belligerent and to wage 
war on the United States. The concept of an international armed conflict is 
one which presupposes the existence in all the parties to the conflict of the le- 
gal capacity to wage war, that is to say the capacity to be party to international 
agreements on war, to comply with those agreements in the conduct of hostili- 
ties and, most importantly, to engage in hostilities on a footing of legal equal- 
ity with one's adversary. This last consideration is fundamental, for it is one of 
the cardinal principles of the law of armed conflict that its rules apply equally 
to all parties to the conflict irrespective of whether their resort to force was 
lawful or unlawful. 13 As Sir Hersch Lauterpacht put it, "it is impossible to visu- 
alize the conduct of hostilities in which one side would be bound by rules of 
warfare without benefiting from them and the other side would benefit from 
them without being bound by them." 14 That principle could not be applied to 
hostilities between the United States and al Qaeda. 

State practice before 11 September 2001 — including, in particular, the 
practice of the United States — was consistent in treating the concept of inter- 
national armed conflict as something which could normally arise only be- 
tween states. To the extent that there was a departure from this principle for 
conflicts involving national liberation movements, 15 that departure was 
strictly confined to entities which had a degree of international personality 
and recognition and which were required to undertake to abide by the rele- 
vant international agreements which comprise most of the jus in bello. Even 
then it was a controversial move and one opposed by the United States. There 
is no support in state practice or in the literature of international law prior to 
1 1 September 2001 for treating the concept of international armed conflict as 
broad enough to encompass a relationship between a state on the one side and 



13. See, e.g., United States v. List, in TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG 
MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, vol. 11, at 1228 (1950), 
reprinted in 8 LAW REPS. TRIALS OF WAR CRIMINALS 59. 

14. Hersch Lauterpacht, The Limits of Operation of the Laws of War, 30 BRIT. Y. BK. INT'L. L. 
206,212(1953). 

15. Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, arts. 1(4) and 96(3), Dec. 12, 1977, 
1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977). 

358 



Christopher Greenwood 



a group which has no legal personality, no territory, no capacity to comply 
with the laws of the armed conflict (even if it wished to do so), and no compe- 
tence to wage war in the terms of traditional international law. 

Nor is there any sign that the United States regarded itself as engaged in an 
armed conflict with al Qaeda prior to 11 September 2001. The response to 
earlier acts of terrorism by al Qaeda was not couched in terms of the law of 
armed conflict. 16 Consequently, the suggestion that there has been an armed 
conflict between the two dating back, perhaps, to 1993 and the first attack on 
the World Trade Center, requires us to accept that such a conflict existed 
even though the United States was apparently unaware of the fact for the 
better part of a decade. 

Finally, while the disadvantages of characterizing the relationship with al 
Qaeda as an armed conflict can no more preclude that relationship from being 
an armed conflict than the advantages of so characterizing it can make it one, 
it is important to realize that the policy considerations are by no means one- 
sided. To treat al Qaeda as a belligerent is to confer upon it a status to which it 
is not entitled and does not deserve but which will inevitably suggest to many 
observers a degree of equality in its relations with the United States. It is 
worth recalling that in the 1980s one of the demands made by the Provisional 
Irish Republican Army (IRA) was that the United Kingdom should treat their 
members as combatants, not as common criminals. The United Kingdom 
rightly resisted this demand even when ten IRA and Irish National Liberation 
Army (INLA) members starved themselves to death in protest. Why, then, 
give al Qaeda precisely what was demanded by, and denied to, the IRA? To do 
so will inevitably be taken as conferring an element of legitimacy on acts of vi- 
olence which can have no legitimate basis whatever. 

In addition, if the United States is engaged in an international armed con- 
flict with al Qaeda, then its operations must be conducted by members of the 
armed forces subject to military discipline and not by the members of agencies 
such as the Central Intelligence Agency or the Federal Bureau of Investiga- 
tion. There may also be serious consequences in the application o{ the law of 
neutrality by states which choose to stand aside from the conflict (as the law of 
armed conflict gives them every right to do). 



16. See, e.g., Remarks by President William Clinton on Departure for Washington DC From 
Martha's Vineyard (Aug. 20, 1998), 34 WEEKLY COMP. PRES. DOC. 1642 (Aug. 20, 1998). In 
his remarks explaining the US response to the embassy attacks, President Clinton did not refer to 
the laws of armed conflict as the basis for the US response. 

359 



Terrorism: The Proper Law and the Proper Forum 

An earlier speaker 17 suggested that when the law interferes with a whole 
series of policy imperatives, the law should be "retooled." The present writer 
accepts that international terrorism poses new threats which call for new 
thinking but that does not mean that law built up with painstaking care over 
many years can or should be brushed aside in favor of the "policy imperatives" 
of the moment. This is so not least because conflict between law and policy 
often masks a hidden conflict between immediate short-term policy objec- 
tives and longer-term policy imperatives. In the long run, it is patently in the 
interests of the United States that the rule of international law should be up- 
held and, in particular, that the laws of war should be respected and that 
principles such as equal application and the proper treatment of prisoners of 
war of which the United States has long been the champion should not be 
undermined. 

At the very least, therefore, a departure from these principles could be in 
the policy interests of the United States only if it was really necessary. Yet that 
is not the case. The claim that the United States is engaged in an armed con- 
flict has nothing to do with the legality of using force under the jus ad beilum. 
That has to be judged by reference to the criteria of self-defense discussed 
above (and in other chapters of this volume) irrespective of whether the 
United States is engaged in an armed conflict with al Qaeda. Moreover, noth- 
ing in international law precludes the United States from using its armed 
forces in counter-terrorist operations unless the jus in bello is applicable. Nor 
does international law fetter the use of lethal force or the adoption of robust 
rules of engagement when military forces are engaged in counter- terrorist op- 
erations in a way that can be avoided by the expedient o{ declaring that an 
armed conflict exists. It is difficult, therefore, to see what can be gained in 
terms of international law by a distortion of the concept of armed conflict to 
make it fit the operations against al Qaeda. If US law creates difficulties for 
the US Government — because, for example, of the application of the Posse 
Comitatus Act 18 — then the remedy lies with the US Congress. 

Terrorism and Criminal Law 

Let us turn, therefore, to the other body of law which may be applicable, namely 
the criminal law (both national and international) on terrorist activity. It 
should be made clear that the brief analysis which follows is confined to terror- 
ism of a clearly international character. The most obvious point about such 



17. See Chapter XI supra. 

18. 18 U.S.C. § 1385 (2003). 



360 



Christopher Greenwood 



international terrorism is that the acts by which it is accomplished are, of 
course, crimes under domestic law. A striking (and profoundly depressing) fea- 
ture of the debate discussing the crimes committed on September 11th is that 
the most obvious crime, murder, is often omitted. Murder does not cease to be 
murder simply because the victims are counted in thousands rather than ones 
and twos. It does not cease to be murder because it is carried out by flying hi- 
jacked aircraft into buildings rather than by more conventional means. The 
Lockerbie verdict is a vindication of the principle that terrorist killing — the de- 
liberate taking of life by terrorists — can and should be prosecuted as murder. 19 

Other crimes may exist in cases where no deaths occurred or a sufficient 
link between the individual being prosecuted and the casualties sustained 
cannot be established. Such crimes include crimes committed on or against 
aircraft such as those identified in the Hague and Montreal Conventions. 20 
These crimes are of course found in almost all domestic law systems as well. In 
common law countries such as the United States and the United Kingdom, 
the offense of conspiracy offers a valuable weapon against those who plan ter- 
rorist outrages, even if the offenses they scheme to perpetrate are not in the 
end committed (e.g., because of police intervention). Conspiracy is not neces- 
sarily as readily available, however, in civil law countries. Other offenses such 
as the possession of explosives, firearms and biological or chemical poisons 
would certainly also be available for charging terrorists. The striking thing 
about the vast majority of these offenses is that they are generally ordinary 
crimes covered by the ordinary principles of criminal law. 

The fact that in this particular context such crimes are committed by 
people we would call terrorists may be important for other reasons. However, 
it does not alter the underlying truth which is that the terrorist is, at bottom, a 
criminal and nothing more. The dichotomy that society tends to create be- 
tween the common criminal and the terrorist is not always desirable. Some- 
times this dichotomy seems to be created to make the terrorist criminal look 
worse than he otherwise might. However, what often happens is that distin- 
guishing between the ordinary criminal and the terrorist operates to make the 
terrorist criminal look somehow less than a criminal given the purpose of his 



19. See Her Majesty's Advocate v. Megrahi and Fhimah, No. 1475/99, High Court of Justiciary 
at Camp Zeist, the Netherlands, reprinted in 40 I.L.M. 582 (2001). An appeal by Megrahi was 
recently denied on March 14, 2002. 

20. See Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), Dec. 
16, 1970, 22U.S.T. 1641, 860 U.N.T.S. 105 (1970) [hereinafter Hague Convention]; Montreal 
Convention For the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 24 
U.S.T. 567, T.I.A.S. No. 7570, 10 I.L.M. 1150 (1971) [hereinafter Montreal Convention]. 

361 



Terrorism: The Proper Law and the Proper Forum 

crimes, for the terrorist often attempts to cloak his actions in the guise of free- 
dom fighting and thereby claims that his noble aims permit his ignoble acts. 
Nothing should be allowed to distract from the criminal character of all ter- 
rorist activity. 

Given that terrorist acts almost always constitute domestic crimes, there 
are still substantive rules of public international law worth keeping in mind 
when discussing these crimes. Many would argue that the Hague and Mon- 
treal Conventions are relevant when discussing the events of September 1 1th. 
In one sense, this is not the case. Since all four of the aircraft which were hi- 
jacked and then destroyed were US registered, took off from US airports, and 
were flying to other US airports, what happened appears to fall outside the 
scope of both conventions. 21 Nevertheless, although the events of 1 1 Septem- 
ber 2001 appear to fall outside the scope of both conventions, if a perpetrator 
of one of the offenses recognized in the Conventions was found in a state other 
than the United States, the obligation to extradite or prosecute laid down in 
the Conventions would apply. 22 

Another Convention, which would have been relevant had the United 
States been party to it on 11 September 2001, is the Convention for the Sup- 
pression of Terrorist Bombings (1997). 23 Article 2(1) of that Convention pro- 
vides that: 

Any person commits an offense within the meaning of this Convention if that 
person unlawfully and intentionally delivers, places, discharges or detonates an 



21. See, e.g., Montreal Convention supra note 20, art. 4(2) which provides that the Convention 
shall apply only if: 

(a) the place of take-off or landing, actual or intended, of the aircraft is situated outside 
the territory of the State of Registration of that aircraft; or 

(b) the offense is committed in the territory of a State other than the State of 
registration of the aircraft. 

See also the comparable provision in Article 3(3) of the Hague Convention, supra note 20. 

22. See, e.g., Montreal Convention, supra note 20, art. 4(3) which provides that the requirement 
that offenses occur outside the state of the registration of the aircraft does not apply when an 
"offender or the alleged offender is found in the territory of a State other than the State of 
registration of the aircraft." Finding such an offender then triggers a requirement for a state "if it 
does not extradite him ... to submit the case to its competent authorities for the purpose of 
prosecution." Montreal Convention, supra note 20, art. 7. See also Articles 3(5), 6 and 7 of the 
Hague Convention, supra note 20. 

23. See International Convention for the Suppression of Terrorist Bombings, U.N. Doc. A/ 
Res.52/164 (Dec. 15, 1997), 37 1.L.M. 249 (1998) (not ratified by the United States until Jun. 26, 
2002) [hereinafter Terrorist Bombing Convention]. 

362 



Christopher Greenwood 



explosive or other lethal device in, into or against a place of public use, a state or 
government facility, a public transportation system or an infrastructure facility: 

(a) with the intent to cause death or serious bodily injury; or 

(b) with the intent to cause extensive destruction of such a place, facility or 
system, where such destruction results in or is likely to result in major economic 
loss. 

While the draftsmen of this Convention did not have in mind an attack carried 
out by flying hijacked civil airliners into buildings, relying on the explosive force 
of the impact and the fuel carried by the aircraft to achieve the destructive ef- 
fect, the language of the Convention is entirely apposite to cover what oc- 
curred on 11 September 2001. Indeed, it is an important reminder that, 
however unprecedented the events of 1 1 September may have been, the exist- 
ing fabric of international law is capable of dealing with them and there is no 
need to create an entirely new body of law for that purpose. 

Crimes against Humanity 

In passing, it should also be recognized that the conduct of those who planned 
and perpetrated the atrocities of September 11th could also be charged with 
crimes against humanity. Crimes against humanity are generally considered to 
consist of murder (or certain other offenses) committed as part of a widespread 
or systematic attack directed against a civilian population. 24 There is no re- 
quirement that the attack occur in an armed conflict. 25 Nor are crimes against 
humanity offenses which may be committed only by the state and its agents; 
they are also perfectly capable of being committed by non-state actors. 26 While 
the present writer would prefer to deal with the surviving perpetrators of the at- 
tacks of 11 September 2001 under the ordinary criminal law, supplemented, 
where necessary, by the counter-terrorism treaties, if, for some reason, it proved 
useful to try them for a crime against humanity, it seems clear that the elements 
of such a crime were present. Murder was undoubtedly committed and even if 



24. See, e.g., Rome Statute of the International Criminal Court, art. 5, U.N. Doc. A/CONF.183/ 
9 (1998). 

25. The requirement of a nexus with armed conflict in Article 5 of the Statute of the 
International Criminal Tribunal for the Former Yugoslavia is a limitation on the jurisdiction of 
that Tribunal and not a requirement of the substantive law. 

26. See W.A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 
(Cambridge, 2001), 37. To the surprise of the present writer, Professor Schabas argued, in a 
discussion with the present writer for the BBC Radio programme "Law in Action" on 5 October 
2001, that the events of 11 September could not constitute a crime against humanity. 

363 



Terrorism: The Proper Law and the Proper Forum 

there was not a widespread attack (a matter for debate) there was certainly a 
systematic attack on the civilian population. 

The Proper Forum 

National and International Tribunals 

The second question to consider is what is the appropriate forum for trying 
these offenses? Like Lieutenant Colonel Newton, the present writer starts 
from the premise that in most cases the appropriate forum is a national court 
and that the most appropriate national court will generally be found in the 
state where the offense was committed. So far as this writer is concerned, the 
proper forum in which to try those persons still alive who were responsible for 
the attacks of September 11th is the courts of competent jurisdiction in the 
United States. Although it has sometimes been suggested that a jury in the 
United States could not give a defendant a fair trial in a case as highly 
charged as, for example, one involving the attack on the World Trade Cen- 
ter, there is no basis for such a suggestion. While it needs to be recognized 
that outside the common law countries the jury is often viewed as a threat to 
the rights of the accused rather than the guarantee of those rights, 27 it is non- 
sense to say that a jury which had heard all of the evidence put before it in a 
trial with the constitutional and other safeguards of the United States system 
and which was properly directed by an experienced judge could not do justice 
in such a case. To accept the argument that a fair trial in the United States 
would be impossible comes perilously close to creating an atmosphere in 
which the more serious the crime, the less likely it is that the perpetrator will 
be brought to justice, because it is far from obvious that there is a court in any 
other state which would be able to offer a better guarantee of a fair and effec- 
tive trial. 

The only alternative to trial in a national court would be trial before an in- 
ternational tribunal. Currently there is, of course, no international tribunal in 
existence which could exercise jurisdiction over the crimes committed on 
1 1 September 2001. Neither the International Criminal Tribunal for the For- 
mer Republic of Yugoslavia (ICTY) nor the International Criminal Tribunal 
for Rwanda (ICTR) has subject matter jurisdiction over the crimes o{ 
September 11th. The International Criminal Court (ICC) does not have ret- 
roactive jurisdiction, quite apart from the fact that neither the United States 



27. It is noticeable that in the Lockerbie trial, supra note 19, it was the defendants and the 
Government of Libya who insisted on trial without a jury; see Anthony Aust, Lockerbie: The 
Other Case, 49 INT'L &COMP. L. Q. 278 (2000). 

364 



Christopher Greenwood 



(as the state in whose territory the offenses were committed) nor the states of 
nationality of at least some of the perpetrators are parties to the statute of the 
ICC. An international trial would, therefore, require the creation by the Secu- 
rity Council o{ a new court or tribunal. Such a step seems both unlikely and 
unnecessary. 

That is not to say, however, that international tribunals have no part to 
play in the fight against terrorism. The fact that an act of terrorism on the 
scale of 11 September 2001 could constitute a crime against humanity means 
that future acts of terrorism on that scale could fall within the jurisdiction of 
the ICC. Indeed, it is worth recalling that the possibility of an international 
court exercising jurisdiction over terrorist offenses in cases where there was no 
national court which was in a position to do so without imposing unreasonable 
burdens on the state concerned was one of the reasons for the original propos- 
als for the creation of an international criminal court. 

On the subject of the ICC, it is necessary to say a little about the current 
controversy between the United States and most of the European States. 
There is no doubt that the differences between the two on this subject run 
deep. That the United States has serious concerns about the ICC is something 
which the European governments have to recognize. Some of the criticism of 
the United States position is exaggerated, to say the least. The United States 
was under no obligation to become a party to the ICC Statute and its choice 
not to do so is one which has to be respected. At the same time, however, US 
critics of the court should bear in mind that their constant attacks on the 
court are at least as exaggerated and may well be counter-productive. To 
many states — probably a majority — the ICC is an important step forward in 
international cooperation against the most serious of crimes. For the United 
States to denigrate that step while demanding a range of other forms of inter- 
national cooperation against terrorist crime is scarcely the most effective way 
to win hearts and minds. 

Enhancing Effectiveness of National Mechanisms for Bringing Terrorists 
to Justice 

Since domestic courts are generally the most appropriate forum in which 
those accused of acts of international terrorism can be brought to justice, it is 
a matter of the utmost importance that the machinery for cooperation be- 
tween states in relation to extradition and mutual assistance in criminal mat- 
ters should be made as effective as possible. Sadly, the present system is far 
from effective. Extradition is understandably subject to safeguards for the ac- 
cused and those safeguards have been supplemented by the effect of various 

365 



Terrorism: The Proper Law and the Proper Forum 

decisions regarding the scope of international human rights treaties. The 
need for fundamental safeguards for the accused is, however, an entirely dif- 
ferent matter from some of the restrictions and limitations with which the ex- 
tradition process has become hedged around. This is not the place for a 
detailed examination of these issues but five matters require brief comment. 

First, extradition must ultimately be based upon trust. The requested state 
has to be willing to trust the requesting state. That trust is not, of course, blind 
trust. It is axiomatic that extradition should not occur without guarantees of a 
fair trial. However, all too often it seems that our approach to this notion of 
the right to a fair trial is laced with a somewhat parochial attitude in which we 
perceive as deficiencies in the legal systems of other states any difference be- 
tween their legal systems and our own. For example, many US lawyers look 
askance at the absence in English law of a strict exclusionary rule for illegally 
obtained evidence. On the other hand, many in the United Kingdom are hor- 
rified by the sight of a US prosecutor standing on the steps of a courthouse 
claiming that the defendant has been indicted for the most serious crimes in 
terms which — to the British ear — perhaps fail to make entirely clear the dif- 
ference between indicted and convicted and which, in the United Kingdom 
would amount to a criminal contempt of court because of the risk of influenc- 
ing the jury. Lawyers in both countries (and indeed throughout the common 
law world) are amazed at the practice in some civil law states where the ac- 
cused's previous convictions are disclosed to the court at the commencement 
of the hearing. 

It is entirely appropriate and necessary that the fairness of the process to 
which the accused will be subject in the requesting state is scrutinized in the 
requested country. The process of scrutiny, however, has to be accompanied 
by a recognition that the fact that the courts of the requesting state may have 
different procedures from those of the requested does not mean that they do 
not offer a fair trial. The fact that a state has no provision for jury trial, does 
not automatically exclude evidence illegally obtained, permits press comment 
on evidence which will be seen by the jury, or that imposes limitations unfa- 
miliar to (or unknown in) the requested state on the right of appeal do not in 
and of themselves make the trial process in the requesting state unfair. 

Secondly, the fact that in international law there is no duty on a state to 
extradite a suspect in the absence of an extradition treaty between that state 
and the state which wants to try the suspect makes it a matter of great impor- 
tance that gaps in the network of extradition treaties be closed wherever pos- 
sible. The multilateral agreements on terrorism, such as the Hague and 
Montreal Conventions and the Terrorist Bombings Convention, are of great 

366 



Christopher Greenwood 



significance here, since these treaties serve as extradition treaties between 
those parties who do not already have bilateral extradition agreements. 

This is particularly important, because the negotiation of new bilateral 
agreements can be a very slow process, as can the amendment of existing 
agreements. A case in point is the negotiation in the mid-1980s of the Supple- 
mentary Extradition Treaty between the United Kingdom and the United 
States, which was designed to facilitate the extradition of terrorists (at that 
time, primarily IRA suspects wanted by the United Kingdom). 28 This process 
was, to say the least, complex and met with stringent opposition from some 
senators, notwithstanding that the treaty was between allies in the fight 
against terrorism with legal systems that are closely similar. 

One feature of the requirement of a treaty as the basis for extradition is that 
many requests for extradition in terrorist cases are governed by treaties of 
some antiquity. Those treaties frequently assume that the only bases for juris- 
diction are that the offense was committed on the territory of a requesting 
state or that the accused was a national of that state. Such an approach is, 
however, far too restrictive in dealing with the phenomenon of international 
terrorism. This point was highlighted in the AUFawaz case decided by the 
House of Lords in England in 2002. The case concerned a request by the 
United States for the extradition of three suspects accused of involvement in 
the bombings of the US embassies in East Africa in 1998. It was common 
ground that under international law the United States had extraterritorial ju- 
risdiction in respect of these offenses, because they had been directed against 
embassies and diplomatic personnel but a question was raised as to whether 
jurisdiction of this kind was sufficient to meet the requirements of a treaty 
concluded at a time when the concept of jurisdiction was essentially territo- 
rial. The Divisional Court concluded that it was not (although it held that the 
defendants could be extradited on the strength of acts performed in the 
United States). 

The House of Lords rejected the Divisional Court's narrow approach to ju- 
risdiction. As Lord Hutton (who, as a former Chief Justice of Northern Ire- 
land, has extensive experience of terrorist trials) said in the AUFaivaz case: 

in the modern world of international terrorism and crime, proper effect would 
not be given to the extradition procedures agreed upon between states if a 
person accused in a requesting state of an offense over which that state had 
extra-territorial jurisdiction (it also being an offense over which the requested 



28. See Supplementary Treaty Concerning the Extradition Treaty, June 25, 1985, U.S. -U.K., 
Exec. Rep. 99-17, 99th Cong., 2d Sess., 16 (1986), reprinted in 24 I.L.M. 1104. 



367 



Terrorism: The Proper Law and the Proper Forum 

state would have extra-territorial jurisdiction) could avoid extradition on the 
ground that the offense was not committed within the territory of the requesting 
state. 29 

This broader approach to jurisdiction is obviously far more likely to provide an 
effective mechanism for international cooperation against forms of terrorism 
for which the traditional concept of territorial jurisdiction is wholly inade- 
quate. Yet it must be open to question whether all courts faced with one of the 
older extradition treaties would be willing to give that treaty the broader inter- 
pretation which the House of Lords gave to the United Kingdom-United 
States Treaty. 

Thirdly, there is the question of the political offender exception which ap- 
pears in most extradition treaties. The notion that an accused will not be ex- 
tradited for a political offense is well established in most national extradition 
laws and has traditionally been seen as an important safeguard o( civil liber- 
ties. Yet the nature of a terrorist offense is that it is almost always committed 
for political motives. If extradition could be prevented because of those politi- 
cal motives, it would effectively be precluded as a means of bringing terrorists 
to justice. Fortunately, while the political offender exception was a serious ob- 
stacle to the extradition of terrorists at one time, it is of far less importance to- 
day. The more modern multilateral counter-terrorist treaties each provide 
that the offenses to which they apply are not to be regarded as political of- 
fenses. 30 Similarly, the European Convention for the Suppression of Terrorism 
(1977) provides that the crimes to which it applies may not be treated as polit- 
ical offenses and relies instead upon the safeguard that a defendant should not 
be extradited if there are substantial grounds for believing that he or she 
would be prejudiced at their trial by virtue of their political beliefs, race, reli- 
gion or nationality. 31 This approach makes far better sense, offering a safe- 
guard based on the nature of the process which a defendant would face if 
extradited, rather than a "get out of jail free" card based on the nature of the 
offense of which they are accused. 

Finally, it needs to be borne in mind that some differences between legal 
systems create obstacles to extradition which cannot be brushed aside. The 
most important instance is probably the different attitudes toward the death 



29. Id., para. 64. 

30. See, e.g., Terrorist Bombings Convention, supra note 21, art. 11. 

31. See European Convention on the Suppression of Terrorism (1977), art. 5, reprinted in 
INTERNATIONAL INSTRUMENTS RELATED TO THE PREVENTION AND SUPPRESSION OF 
INTERNATIONAL TERRORISM (UN, 2001). 

368 



Christopher Greenwood 



penalty in democratic states. While some, noticeably the United States, retain 
the death penalty for murder, the majority do not. For the parties to the Euro- 
pean Convention on Human Rights, this fact creates a serious obstacle to ex- 
tradition in cases where the accused faces a death sentence in the requesting 
state if convicted. In Soering v. United Kingdom 32 the European Court of Human 
Rights held that it would be a violation of the prohibition of Article 3 of the 
Convention (prohibiting torture, inhuman or degrading treatment or punish- 
ment) to extradite a person to a non-Convention state if that person faced a 
serious risk of being sentenced to death in a state where there was a long pe- 
riod of delay between sentence and execution. More significantly, for states 
party to Protocol 6 to the Convention, there is a broader prohibition on the 
death penalty which will generally preclude extradition where a death sen- 
tence is a real possibility. 33 In those circumstances, effective international 
cooperation in bringing terrorists to justice is not compatible with the mainte- 
nance of capital punishment. 

Conclusion 

The title of this panel is bringing terrorists to justice. Bringing terrorists to 
justice means that they must be brought before a court where they receive a 
trial that is fair and is seen to be fair. This is an important part of the whole 
process as it is not enough to lock someone in prison, execute them, or simply 
make them disappear. Instead, to fight terrorism properly, public opinion must 
be convinced of the guilt of the accused and of the egregious nature of the 
crime that he has committed. If that is to be done in an effective manner, it re- 
quires a clear understanding of the law applicable to terrorist crimes and a 
high degree of international cooperation. 



32. Soering v. United Kingdom, 1 1 Eur. Ct. H.R. 439 (1989). 

33. See Protocol 6 to the European Convention for the Protection of Human Rights and 
Fundamental Freedoms, April 28, 1983 (entered into force Mar. 1, 1985), E.T.S. 1 14, reprinted in 
22I.L.M.539(1983). 

369 



XXII 



Panel IV 

Commentary — Bringing 

Terrorists to Justice 



Manuel Supervielle 1 



As the Staff Judge Advocate for the US Southern Command, I am ex- 
posed to a number of international legal issues occurring in the inter- 
national community. Interestingly, given my position, I am exposed to the 
Central and Latin America position on these issues which often causes me to 
delve deeply into the positions the US government takes. 

Mike Newton's thesis is that the decision as to how and where crimes 
against international law are dealt with is a question of national political will. 
To date, this thesis echoes the US position that it has the requisite ability to 
prosecute the types of crimes that many other nations want the International 
Criminal Court (ICC) to have jurisdiction over. The United States has the 
Uniform Code of Military Justice, a fairly extensive federal criminal code, and 
supporting state subordinate criminal codes. The United States also has an ef- 
fective, independent judiciary, which is certainly not true in many areas of the 
world. However, something I think that is occasionally missed by those 



1. Colonel Manuel Supervielle, an Army Judge Advocate, is the Staff Judge Advocate for the US 
Southern Command. In this position, he provides legal advice on international and operational law 
issues to US military commands or operations throughout Central and South America. 



Panel TV Commentary — Bringing Terrorists to Justice 

advocating the US position is that there are many nations that recognize that 
they do not have the rich history of an independent and impartial judiciary, 
nor do they have the type of separation of powers to remove bias and corrup- 
tion from the court systems like the United States does. For these countries, 
many seem to prefer the ICC in lieu of their own domestic courts as they sim- 
ply do not trust their own judicial and political systems. Hope has turned to 
frustration which has turned to despair in such countries and it is accordingly, 
not surprising that such countries see the ICC as holding out hope for achiev- 
ing on an international scale, what has proven unattainable on the domestic 
scale. Recognizing then that the United States does have the rich, independ- 
ent infrastructure and a proven history of being able to deal with war criminals 
and the like as well as the political will to handle those accused of crimes 
against international law, it might nonetheless behoove the anti-ICC advo- 
cates to consider that other nations and their citizens do not have the luxury 
of the same rich history. There maybe very logical reasons as to why other 
countries would sign and ratify the Rome Statute that have nothing to do with 
the US view on the statute. 

Chris Greenwood's point that terrorism certainly did not begin on Septem- 
ber 11th is exactly correct. While terrorism became of greater importance to 
many US citizens on that date, it certainly was not created on that date. Many 
countries in the region in which I work have long histories of terrorism within 
their borders. As an example, Colombia has lost some 200,000 people to vari- 
ous acts of terror by the Revolutionary Armed Forces of Colombia over the 
last 40 years. 2 Peru has had its share of problems with the Sendero Luminoso 
terrorist group. 3 These examples bring to mind the idea that other places in 
the world have been dealing with the problem of terrorism for many years. The 
United States must be prepared to do so as well. 

Finally, against the backdrop of this panel about challenges in bringing ter- 
rorists to justice and the previous panel on coalition operations, the likely pas- 
sage of the American Servicemembers' Protection Act (ASPA) gives me some 



2. The Revolutionary Armed Forces of Colombia are also known as the FARC. 

3. Sendero Luminoso is also known as the Shining Path. 

372 



Manuel Supervielle 



concern. 4 While there is much to like about the contents of this bill, if signed 
by the President, it is likely to make working in coalition operations and with 
friend and allies much more difficult in some situations than ever before. Ba- 
sically this bill, with the exception of NATO countries, prohibits the US gov- 
ernment from providing any kind of security assistance to countries that are 
party to the ICC. Currently, every country in South America, except for Suri- 
nam, and every country in Central America, except El Salvador and Hondu- 
ras, have signed or ratified the Rome Statute. 5 

The caveat to the ASPA is that such security assistance may be provided by 
the United States to such countries as have entered into an Article 98 agree- 
ment agreeing not to permit extradition of US service -members to the ICC 



4. Editor's note: The American Servicemember's Protection Act became law when President 
Bush signed the Emergency Anti-Terror Bill on August 2, 2002. Notably, the ASPA finds that 
"the United States will not recognize the jurisdiction of the International Criminal Court over 
United States nationals," and provides that no United States court, and no agency or entity of 
any state or local government, including any court, may cooperate with the ICC in response to a 
request for cooperation submitted by the ICC pursuant to the Rome Statute. ASPA, § 2004(b). 
The ASPA also prohibits the extradition of permanent resident aliens or US citizens to the ICC; 
the use of appropriated funds to assist the ICC; the participation of US service-members in any 
chapter VI or VII operations, the creation of which is authorized by the UN on or after the date 
the Rome Statute enters into effect (unless the President certifies that the service-members will 
not risk criminal prosecution by the ICC); and the provision of "military assistance" to a country 
that is a party to the ICC (this prohibition does not apply to NATO countries or major non- 
NATO allies (Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea and New 
Zealand) and Taiwan); the President is authorized to waive this prohibition on military 
assistance if in the national interest of the United States. ASPA, §§ 2004-2007. Finally, the 
statute grants the President the prospective authority to "use all means necessary and 
appropriate to bring about the release of any (covered) person who is being detained or 
imprisoned by, or on behalf of, or at the request of the International Criminal Court." See ASPA, 
§ 2008(a). Covered persons include "members of the Armed Forces of the United States, elected 
or appointed officials of the United States Government, and other persons employed by or 
working on behalf of the United States Government, for so long as the United States is not a 
party to the International Criminal Court." See ASPA, § 2013(4). 

5. For a current update on signatories to the Rome Statute, see Country by Country 
Ratification Report, accessible at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/ 
partl/chapterXVIII/treatylO.asp (Oct. 23, 2002). 

373 



Panel IV Commentary — Bringing Terrorists to Justice 

from their countries. 6 The US State Department is currently pursuing such 
agreements with nations throughout the world but is not having great success. 
Absent such agreements in our area of operations, it will become increasingly 
difficult to plan, fund, and conduct coalition operations with many of our 
long-term allies in the Southern Hemisphere. 



Article 98 of the Rome Statute provides 

1. The Court may not proceed with a request tor surrender or assistance which would 
require the requested State to act inconsistently with its obligations under international 
law with respect to the State or diplomatic immunity of a person or property of a third 
State, unless the Court can first obtain the cooperation of that third State for the waiver 
of the immunity. 

2. The Court may not proceed with a request for surrender which would require the 
requested State to act inconsistently with its obligations under international 
agreements pursuant to which the consent of a sending State is required to surrender a 
person of that State to the Court, unless the Court can first obtain the cooperation of 
the sending State for the giving of consent for the surrender. 

374 



XXIII 



Panel IV 

Commentary — Terrorism and the Problem 

of Different Legal Regimes 

Daniel Helle 1 



I 



he multi-faceted nature of "terrorism" along with the lack of a com- 
monly agreed understanding of the term gives rise to numerous ques- 
tions on how the problems should be tackled. Such questions include 
determining whether additional or different norms may be necessary (including 
deciding which acts should be considered as international crimes) and how to 
combat terrorism while respecting the requirements imposed by existing law. 
The following observations essentially relate to the relationship between 
different legal regimes, in particular international human rights law, interna- 
tional humanitarian law (IHL) and international criminal law. 2 All three, but 

1. Daniel Helle is the Deputy Head of the ICRC Delegation to the United Nations. 

2. When discussing the relationship between IHL and international criminal law, I think of 
"international criminal law instruments" as encompassing those conventions which have been 
specifically aimed at preventing and repressing terrorism. I do not wish to label the Geneva 
Conventions or their Additional Protocols as "international criminal law instruments," in spite 
of the fact that these conventions contain obligations on all state parties to prosecute or 
extradite persons suspected of having committed "grave breaches," several of which can cover 
terrorist acts. This is because the primary aim of IHL instruments is to highlight the rights and 
obligations of the parties to a conflict; whereas the regulation of how cases of non- 
implementation should be dealt with is treated on a separate, "second" level. 



Panel TV Commentary — Terrorism & Different Legal Regimes 

also other branches of international law, are relevant when addressing various 
aspects of "terrorism." While they share the common aim of seeking to protect 
human dignity and security, each have their strengths and weaknesses, and 
thus should be reserved to address the areas for which they are most suited. 

The concurrent application of different legal regimes in any given situation 
is normally an advantage, notably because it helps ensure that various mani- 
festations of terrorism can be addressed, taking into account who has commit- 
ted the act (was it a private individual, a member of a party to an armed 
conflict, a representative of a state); who the act was committed against (a civil- 
ian, a member of the armed forces); and the related question of the context in 
which the act was committed (was it committed during an armed conflict or in 
"peace-time"). 

In some cases, such a concurrence may help prevent the occurrence of 
"gaps" in the system. For instance, if during an armed conflict, individuals 
who do not belong to any of the parties to the conflict commit a terrorist act 
(whatever the motive), humanitarian law may not adequately address the is- 
sue at the penal level and there is a need for international criminal law to 
"kick in." 1 

It is not necessarily a significant drawback that different legal regimes apply 
to the same event, if they all point toward a similar result, or the protection 
provided by one legal regime is "subsumed" by the other. Such may be the 
case, for instance, with respect to fair trial guarantees provided in human 
rights and humanitarian law. 

There are, however, instances where different legal regimes point to differ- 
ent results, so that their simultaneous application to the same subject matter is 
difficult to reconcile, or they are simply incompatible with each other. In such 
cases, to achieve an acceptable result, it may be necessary to draft or interpret 
the scope of application of the relevant instruments as mutually exclusive. 

One potential problem arises when the logic of criminal repression en- 
croaches excessively onto that of humanitarian action and/or humanitarian 
law. The preservation of the latter two is an important reason why the Inter- 
national Committee of the Red Cross (ICRC) has been attentively following 
the drafting of international criminal law instruments at the United Nations. 



1. The parties do have a general responsibility to protect civilians under their control, but this 
duty of diligence cannot be taken so far as to impose a criminal liability for failing to prevent 
every single act of violence which may occur. In any event, there also remains the separate need 
to punish the direct perpetrators of such acts. 

376 



Daniel Helle 



An illustration of this possible tension was seen during the drafting of the 
International Convention for the Suppression of the Financing of Terrorism. 2 
The Convention covers more than just the transfer of "funds" as this term is 
normally understood, so as to include notably "assets of every kind, whether 
tangible or intangible, movable or immovable." 3 It criminalizes the provision of 
funds in the knowledge that they are to be used for a terrorist act. 4 In the con- 
text of an armed conflict, what then would be the possibility of an organization 
such as the ICRC to carry out a large-scale humanitarian assistance program, if 
it were to assume that even a small portion of the assistance might be diverted 
by rebel groups who are labelled as terrorists by the government? Could it, in so 
doing, be accused of committing an international crime? The ICRC raised its 
concerns with government representatives, who amended the text of the draft 
convention (by better qualifying the crime), so as to preserve the possibility of 
delivering humanitarian assistance in conflict situations. 

As a second example, it may be that an act (such as killing a person) is 
labelled as a crime in an international criminal law instrument, whereas the 
same act (such as killing a soldier) is not considered unlawful per se under in- 
ternational humanitarian law. Unless these two situations are distinguished, 
there is a risk that members of one of the parties will be labelled as interna- 
tional criminals, for the mere fact of having participated in hostilities, which 
may in turn be a disincentive for them to comply with the demands of human- 
itarian law (such as respecting and protecting detainees under their control) . 
If one side ceases to comply with its obligations, there is a further risk that the 
opposite side will soon cease to comply also. The potential consequences for 
all those finding themselves in the power of a party to the conflict and/or ex- 
posed to the dangers of military operations should be evident. 

A part of the problem is that "one man's terrorist is another man's free- 
dom fighter," as was observed several times during the conference proceed- 
ings. This challenge has been a recurring one; for more than a century, there 
have been divergent views between government representatives on who has 
the right to take up arms against one another. It must be recalled, in this 
connection, that disagreement in 1899 on the resistance movement's right 
to fight enemy occupation led to the adoption of the Martens Clause, a pro- 
vision which in its contemporary version ensures that no person is ever left 



2. See International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 
109, U.N. GAOR, 6th Comm., 54th Sess., 76th Mtg., Agenda Item 160, U.N. Doc. A/54/109 
(1999), reprinted in 39 I.L.M. 270 (2000) [hereinafter Suppression of Financing Convention]. 

3. Id., art. 1. 

4. Id., art. 2. 

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Panel TV Commentary — Terrorism & Different Legal Regimes 

to the arbitrary treatment of authorities, but remains under the protection of 
the law. 5 

Excluding an issue from the scope of international criminal law and leaving 
it to the domain of IHL does not necessarily mean that it will be left un- 
addressed, but rather that a different set of rules takes over. It should be noted 
in this regard that numerous acts of "terrorism" are already squarely prohib- 
ited by IHL, whether as such or as acts subsumed under numerous other quali- 
fications, such as hostage-taking, deliberate attacks against civilians, or 
indiscriminate attacks. However, as suggested above, it must be acknowl- 
edged when considering what falls within the notion of "terrorism," that some 
acts which are lawful under IHL are clearly unlawful in peacetime. 

When the core characteristics of human rights law, humanitarian law and 
criminal law are put in contrast, there is often no real problem to distinguish 
their different nature and thus to assess which legal regime should be relied 
upon to guide how terrorism should be countered. There are some areas, how- 
ever, where the delimitation between these branches of international law is 
imprecise or uncertain, in which case one must carefully seek to establish the 
boundaries of each legal regime. In this process, it can be useful sometimes to 
approach "the border" from both sides, considering for each those arguments 
that speak for inclusion and those that speak for exclusion of the regime being 
considered. In this regard, it should be noted that there are risks associated 
not only with an excessive scope of application of international criminal law, 
but also of international humanitarian law. Thus, if there is doubt as to 
whether various persons can be considered as taking an active/direct part in 
hostilities, it may be relevant to approach the matter not only from the angle 
of IHL, but also to analyze the question from the perspective of human rights 
(including the right to life) and international criminal law. 

The question of bringing "terrorists" before the right tribunal may be a 
function of how one looks at the subject-matter rather than one of terminol- 
ogy. One example can be found in Article 5 of the Third Geneva Conven- 
tion, where the drafters, according to the records of the proceedings, seemed 
to have treated broadly, as one issue, the question of how doubts as to the sta- 
tus of POWs were to be resolved. This issue masks the fact that there may be 
vastly different questions being considered. In one case it may be, for instance, 
that the detaining authorities consider whether the person concerned 
should be sent to a POW camp or to a camp for civilian internees. This ques- 
tion is not entirely without importance, since treatment provided by the Third 

5. For a discussion of the Martens Clause, see Theodor Meron, The Martens Clause, Principles of 
Humanity, and Dictates of Public Conscience, 94 AM. J. INT'L L 78 (2000). 

378 



Daniel Helle 



Convention is not identical to that provided by the Fourth Convention. It is 
however an entirely different matter to decide whether the person concerned 
should be punished for having taken part in hostilities. In the event that the 
death penalty can be imposed, any absence of available fair trial guaran- 
tees — including with respect to the composition of the tribunal and the proce- 
dure adopted, and whether these originate from humanitarian law or from 
human rights law — opens up the possibility for arbitrary execution. Since the 
above two questions are of a quite different nature, they should also be dealt 
with as separate matters; notably so that any initial decision with respect to 
where the person should be detained should have no impact on the question 
of criminal liability and punishment. 

Lastly, it is clear that terrorism must be countered through a multitude o{ 
means, including diplomatic efforts, international cooperation to exchange 
information and freeze assets, public debate and awareness-raising, to name 
but a few. In this regard, IHL neither should be asked to perform more than 
what it was made for, nor should it be discredited on erroneous grounds, such 
as allegedly opposing criminal repression simply because it mandates humane 
treatment and judicial guarantees. Conversely, IHL should be respected in all 
cases where armed conflict occurs, whether or not the purpose of the conflict 
is related to terrorism and in regard to all persons involved in or affected by 
the conflict. 

According IHL its appropriate place will help secure, on the one hand, that 
various branches of international law have sufficient vitality to bring terrorists 
to justice, while at the same time preserving other approaches aimed at pro- 
tecting human dignity and public safety. 



379 



XXIV 



Panel IV 
Discussion — Bringing Terrorists to Justice 

On the Distinction Between Armed Conflict and Armed Attack 

Yoram Dinstein 

Care must be taken to distinguish between the two, markedly different phrases 
of "armed conflict" and "armed attack." The expression "armed attack" is de- 
rived from Article 5 1 of the UN Charter and it constitutes the trigger for the 
exercise of the individual or collective right of self-defense. "Armed conflict," 
on the other hand, is the term of art characteristic especially of the 1977 Proto- 
col I Additional to the Geneva Convention, where it is used in the sense of war 
as well as hostilities short of war between states. 1 

September 1 1 th — Armed Attack, Armed Conflict, Ordinary Criminal Acts 

Michael Newton 

The United States was in an armed conflict with al Qaeda at the very least by 
September 11th. There were, in fact, a long series of armed attacks against US 
personnel and facilities beginning arguably with the downing of the Blackhawk 
helicopters in Mogadishu, including the bombings of the Khobar towers, the at- 
tacks on the US embassies in Nairobi and Kenya, and the bombing of the USS 
Cole in the Yemeni port. These armed attacks were reinforced and called for by 



1. See generally Protocol Additional (I) to the Geneva Convention of 12 August 1949, and 
Relating to the Protection of Victims of International Armed Conflicts, arts. 51.5(a) 6*. 57.2(a) (iii) 
& (b), Dec. 12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977). 



Panel IV Discussion — Bringing Terrorists to Justice 

various al Qaeda members as well as by bin Laden himself. Each time one of these 
armed attacks occurred, the United States had the authority under Article 5 1 of 
the UN Charter to engage in self-defense against al Qaeda. The 1998 missile at- 
tacks in Afghanistan are one manifestation of the United States pursuing its law- 
ful right to self-defense. 

Christopher Greenwood 

I disagree that an armed conflict existed before, or even after, the events of Sep- 
tember 1 1th between the United States and al Qaeda. Al Qaeda does not have 
the capacity to make a declaration of war any more than an individual in a non- 
official governmental capacity has the ability to do so. Politicians and academ- 
ics alike, within the United States and outside, did not take the position before 
September 1 1th that the United States was party to an armed conflict with al 
Qaeda. It is only subsequent to these horrible events that some have argued 
this to be the case. One reason some have taken this position is that it then 
makes the unlawful targeting of civilians a war crime which may be properly 
brought before a military commission. I believe this to be a perversion of the law 
and quite incorrect. In this respect, I agree with Yoram Dinstein. The events 
preceding and including those on September 11th were armed attacks within 
the meaning of Article 5 1 of the UN Charter. These acts were threats to inter- 
national peace and security and the Security Council, nations, and alliances 
clearly identified them as such. 2 

Is there an armed conflict against Afghanistan? To be sure there is. The 
fighting between the United States and al Qaeda personnel alongside the 
Taliban is regulated and governed by the law of armed conflict but not be- 
cause they are al Qaeda members but instead because they are fighting with a 
party to an armed conflict — Afghanistan. The fact that an al Qaeda member 
turns up in another country does not mean that they are automatic targets for 
they are not. By claiming to be in an armed conflict with al Qaeda, the United 
States is giving a degree of legitimacy to people who are really nothing more 
than horrible criminals. This is a terrible error. I believe this error will make it 
exceedingly difficult to proceed against al Qaeda members before military tri- 
bunals. The United States will have to try and fit what is essentially a terrorist 
crime into a framework of criminal offenses designed for crimes of war. 

Michael Newton 

It is doubtful that anyone at this conference would contest the statement that 
the attacks on the World Trade Center and the Pentagon on September 11th 

2. See S. C. Res. 1368, U.N. SCOR, 56th Sess. U.N. Doc. S/1378/(2001). 

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Panel IV Discussion — Bringing Terrorists to Justice 

were indeed armed attacks within the meaning of Article 5 1 of the UN Char- 
ter. This clearly means that the United States may properly invoke its right to 
self-defense under Article 51 as against al Qaeda members — since they were 
the threat that caused the events of September 1 1 th. The right of self-defense 
allows the United States then to do what? Not to engage in intentional attacks 
on civilians but instead to attack those who have attacked you. This is done in 
the context of an armed conflict. Recall that the United States is not a signa- 
tory to Protocol I of the Geneva Conventions so as far as the United States is 
concerned, these al Qaeda members are not proper combatants within the 
meaning of Article 44 of this Protocol. 3 They are not civilians since they are 
taking an active part in hostilities. Nor are they proper combatants. Instead, 
they are unprivileged or unlawful combatants with none of the protections of 



See Protool I, supra, art. 44, which provides in relevant part: 
Article 44 — Combatants and prisoners of war 

1. Any combatant, as defined in Article 43, who falls into the power of an adverse 
Party shall be a prisoner of war. 

2. While all combatants are obliged to comply with the rules of international law 
applicable in armed conflict, violations of these rules shall not deprive a combatant of 
his right to be a combatant or, if he falls into the power of an adverse Party, of his right to 
be a prisoner of war, except as provided in paragraphs 3 and 4. 

3. In order to promote the protection of the civilian population from the effects of 
hostilities, combatants are obliged to distinguish themselves from the civilian 
population while they are engaged in an attack or in a military operation preparatory to 
an attack. Recognizing, however, that there are situations in armed conflicts where, 
owing to the nature of the hostilities an armed combatant cannot so distinguish himself, 
he shall retain his status as a combatant, provided that, in such situations, he carries his 
arms openly: 

a. during each military engagement, and 

b. during such time as he is visible to the adversary while he is engaged in a 
military deployment preceding the launching of an attack in which he is to 
participate. 

c. Acts which comply with the requirements of this paragraph shall not be 
considered as perfidious within the meaning of Article 37, paragraph 1 (c). 

4. A combatant who falls into the power of an adverse Party while failing to meet the 
requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a 
prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects 
to those accorded to prisoners of war by the Third Convention and by this Protocol. 
This protection includes protections equivalent to those accorded to prisoners of war by 
the Third Convention in the case where such a person is tried and punished for any 
offences he has committed. 

383 



Panel TV Discussion — Bringing Terrorists to Justice 



the Geneva Conventions. As unlawful combatants, however, they are commit- 
ting war crimes which is exactly what al Qaeda members did on September 
11th. 

Christopher Greenwood 

Al Qaeda members are not unlawful, lawful, or any other type of combatants 
at all. Clearly, no one would suggest that they are lawful combatants, even 
under Article 44 of GP I. You continue to give al Qaeda members a status 
they do not deserve. I agree that al Qaeda members who are fighting along- 
side Taliban members in Afghanistan are entitled to be called combatants be- 
cause that is truly an armed conflict. However, the attack on the World 
Trade Center was not perpetrated by unlawful, unprivileged, or any other sort 
of combatant or belligerent. It was perpetrated by common criminals. Do not 
pretend that what these people did was a war crime. It was simple murder. 
Murder under the ordinary criminal' code of the United States and New York, 
nothing more, nothing less. 

By bringing this notion of an existing armed conflict dating back into the 
middle of the 1990s, I believe you are undermining the very laws of armed 
conflict. Taking this position, that an armed conflict exists, will make it much 
more difficult for the United States to bring them to justice. 

Michael Newton 

Inasmuch as your position suggests that these types of crimes are best prose- 
cuted by domestic tribunals, I agree. That is not to say, however, that I believe 
these people to be the same as the ordinary criminal on the streets of New York 
City. Terrorism clearly overlaps the boundaries between criminal law and the 
law of armed conflict. As practitioners, however, we must be careful not to rush 
to apply domestic criminal law restrictions to what are international law of 
armed conflict issues. 

Manuel Supervielle 

This is an excellent point given the authorizations typically contained in rules 
of engagement when an opposing force is designated hostile. As we all know, 
when this occurs, US soldiers may target the enemy on sight, regardless of 
enemy actions — except oi course if they meet the requirements of effectively 
attempting to surrender. With that being said, when we apply a domestic law 
paradigm to these situations, does it mean that the US sniper on the rooftop 
who suddenly sees an al Qaeda member must attempt to first arrest him for 
prosecution through domestic courts, or alternatively, when al Qaeda forces 

384 



Panel TV Discussion — Bringing Terrorists to Justice 

are declared hostile, should he not simply be able to target an al Qaeda mem- 
ber on sight? These are the very real types of issues that must be resolved so 
soldiers have clear guidance and instruction in such difficult situations. 

Harvey Rishikof 

The tension that exists between these two positions is the problem associated 
with the current classification schemes. Professor Greenwood would have con- 
ference participants believe that al Qaeda members who committed the attacks 
on September 11th are garden variety, ordinary criminals. If this is the case, 
then the correct domestic response would be to mobilize the Federal Bureau of 
Investigation and bring them all to trial in federal court. This would mean that 
the appropriate response would not be one using the military but instead one 
using available police. On the other hand, these same al Qaeda members do not 
fit neatly within the established classification system of combatants or non- 
combatants. Importantly for the future here, these conflicts between the classi- 
fication systems must be resolved. In the future, groups that are likely to cause 
such problems are likely to be one part criminal, one part terrorist, and one part 
political. How then do we resolve the classification scheme to deal with each 
category independently as well as different categories when combined? 

Michael Newton 

Fortunately, the law o{ armed conflict has demonstrated its ability to evolve 
over time and that is exactly what is happening now. It is no longer enough to 
treat terrorism in general within the paradigm of ordinary criminal conduct. 
The United States has proven since September 1 1th that it is unwilling to con- 
tinue to treat terrorists this way. So the paradigm must expand or shift and that 
shift is to treat such behavior as war crimes precisely because the United States 
is unwilling to recognize the right of a group to attack a sovereign state. So the 
United States will treat them as unlawful combatants, participants if you do not 
like the word combatant, in what is an organized armed conflict, war if you will, 
controlled, directed, and funded against the United States. 

Christopher Greenwood 

An armed conflict has always been defined as a war or conflict between two 
states or possibly, in more modern times, between a state and an entity such as a 
national liberation movement which may have many of the attributes of the 
state. Suggesting that the current conflict between al Qaeda and the United 
States is an armed conflict within the meaning of that term elevates al Qaeda to 
a status it does not deserve nor is it entitled to. On what basis does a terrorist 



385 



Panel IV Discussion — Bringing Terrorists to Justice 

movement such as al Qaeda acquire the right to declare war on a sovereign 
state such as the United States? By suggesting that it has that ability, you confer 
upon it a status that it does not otherwise possess. In doing so, you are legitimiz- 
ing its activities. Finally, I am concerned that this is simply a matter of conve- 
nience of the moment to refer to al Qaeda in this fashion. It is certainly 
inconsistent with US actions towards al Qaeda in the past. 

Adam Roberts 

It is important to remember that the Military Order's jurisdictional mandate is 
for violations of the laws of war and for other applicable laws. 4 As I understand 
it then, there has been no exclusion within that framework for trying people for 
murder exactly as Professor Greenwood suggested th