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

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INTERNATIONAL LAW STUDIES

Volume 79

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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

20

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Table of Contents

International Law and the War on Terrorism

FOREWORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 

PREFACE ...............................

I Welcoming Address

Rear Admiral Rodney P. Rempt..............

PART I: JUS AD BELLUM

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

Michael Schmitt .....................

III Jus Ad Bellum and International Terrorism

Rein Müllerson . . . . . . . . . . . . . . . . . . . . . 

IV Commentary—Jus ad Bellum

Robert Turner . . . . . . . . . . . . . . . . . . . . . . 

V Commentary—Jus ad Bellum

William Dalton . . . . . . . . . . . . . . . . . . . . . 

VI Discussion—Jus ad Bellum

Application of Force to al Qaeda and Taliban Members 

Legitimacy of the Use of Force . . . . . . . . . . . . . 

Regime Change in Iraq . . . . . . . . . . . . . . . . . 

PART II: JUS IN BELLO

VII Unlawful Combatancy

Yoram Dinstein . . . . . . . . . . . . . . . . . . . . . 

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VIII The Laws of War in the War on Terror

Adam Roberts . . . . . . . . . . . . . . . . . . . . . . 

IX Commentary—Jus in Bello

Charles Garraway. . . . . . . . . . . . . . . . . . . . 

X Commentary—Jus in Bello

Leslie Green . . . . . . . . . . . . . . . . . . . . . . . 

XI Commentary—Jus in Bello

Tony Montgomery . . . . . . . . . . . . . . . . . . . . 

XII Discussion—Jus in Bello

The Overlap Between Jus ad Bellum and Jus in Bello . 

The Power of the Security Council . . . . . . . . . . . 

The Nature of the Current Conflict in Afghanistan . . 

Shielding Military Targets with Noncombatants. . . . 

The Currency of the Law of Armed Conflict. . . . . . 

Unprivileged Combatants . . . . . . . . . . . . . . . 

PART III: MARITIME AND COALITION OPERATIONS

XIII The Legality of Maritime Interception/Interdiction Operat

Within the Framework of Operation ENDURING FREEDO

Wolff von Heinegg . . . . . . . . . . . . . . . . . . . . 

XIV The Limits of Coalition Cooperation in the War on Terro

Ivan Shearer. . . . . . . . . . . . . . . . . . . . . . . 

XV Commentary—Maritime and Coalition Operations

Kenneth O’Rourke. . . . . . . . . . . . . . . . . . . . 

XVI Commentary—Maritime and Coalition Operations

Paul Cronan. . . . . . . . . . . . . . . . . . . . . . . 

XVII Commentary—Maritime and Coalition Operations

Neil Brown . . . . . . . . . . . . . . . . . . . . . . . 

XVIII Commentary—Maritime and Coalition Operations

Jean-Guy Perron . . . . . . . . . . . . . . . . . . . . 

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XIX Discussion

Maritime and Coalition Operations

Abduction or Extradition of Terrorists. . . . . . . . . 

Application of the Laws of Armed Conflict . . . . . . 

Terrorism as a Criminal or International Law Problem 

PART IV: BRINGING TERRORISTS TO JUSTICE: THE PROPER F

XX International Criminal Law Aspects of the War Against T

Michael Newton . . . . . . . . . . . . . . . . . . . . . 

XXI Terrorism: The Proper Law and the Proper Forum?

Christopher Greenwood . . . . . . . . . . . . . . . . . 

XXII Commentary—Bringing Terrorists to Justice

Manuel Supervielle . . . . . . . . . . . . . . . . . . . 

XXIII Commentary—Terrorism and the Problem of Different Le

Regimes

Daniel Helle . . . . . . . . . . . . . . . . . . . . . . . 

XXIV Discussion—Bringing Terrorists to Justice

The Distinction Between Armed Conflict and Armed

Attack . . . . . . . . . . . . . . . . . . . . . . . . 

September 11th—Armed Attack, Armed Conflict or

Criminal Act? . . . . . . . . . . . . . . . . . . . . 

Military Commissions . . . . . . . . . . . . . . . . . 

The Challenges Associated with Defining and

Addressing Terrorism . . . . . . . . . . . . . . . . 

PART V: THE ROAD AHEAD

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

John Murphy . . . . . . . . . . . . . . . . . . . . . . 

XXVI Al Qaeda And Taliban Detainees—An Examination of

Legal Rights and Appropriate Treatment

James Terry . . . . . . . . . . . . . . . . . . . . . . . 

XXVII Commentary—The Road Ahead in Afghanistan

James Terry . . . . . . . . . . . . . . . . . . . . . . . 

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XXVIII Commentary

The Road Ahead

Nicholas Rostow. . . . . . . . . . . . . . . . . . . . . 

XXIX Commentary—The Road Ahead

Michael Saalfeld . . . . . . . . . . . . . . . . . . . . . 

XXX Commentary—The Road Ahead

Ronald Winfrey . . . . . . . . . . . . . . . . . . . . . 

XXXI Commentary—The Road Ahead

Jane Dalton . . . . . . . . . . . . . . . . . . . . . . . 

XXXII Discussion—The Road Ahead

Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Terrorism . . . . . . . . . . . . . . . . . . . . . . . . 

Appendix A—Contributors . . . . . . . . . . . . . . . . . . . . . 

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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Foreword

he International Law Studies “Blue Book” series was initiat

Naval War College in 1901 to publish essays, treaties an

that contribute to the broader understanding of international law. 

seventy-ninth volume of the series, contains edited proceedings of a 

colloquium entitled International Law and the War on Terrorism host

the Naval War College on June 26–28, 2002.

The colloquium’s mission was to examine international law and it

ing relevance after the events of September 11th, 2001 and the su

military operations against al Qaeda and the Taliban. In doing so, 

quium participants focused on the basis for the use of force against 

tions such as al Qaeda and the Taliban, the rules applicable t

operations against such organizations, the challenges associated with 

and coalition operations in the war on terrorism, the proper forum fo

terrorists to justice, and finally, the path before us in this war on terr

Renowned international scholars and practitioners, both military 

ian, representing government and academic institutions from throu

world participated in the colloquium, which was co-sponsored by th

for National Security Law of the University of Virginia, Charlottes

ginia, the Israeli Yearbook on Human Rights, Tel Aviv, Israel, the R

liams University Ralph R. Papitto School of Law, Bristol, Rhode I

Pell Center for International Relations and Public Policy of Salve Re

versity, Newport, Rhode Island, and the International Law Departm

Center for Naval Warfare Studies, United States Naval War Colleg

On behalf of the Secretary of the Navy, the Chief of Naval Opera

the Commandant of the Marine Corps, I extend to all the co-spo

contributing authors, and the co-editors, our thanks and gratitude fo

valuable contributions to this project and to the future understand

laws of war.

RODNEY P. REMPT

Rear Admiral, U.S. Navy

President, Naval War College

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Introduction

he events of September 11th brought home to the United St

perhaps unlike any time in its past, the “tyranny of distance” 

be relied upon to protect its citizens from harm. The destruction of t

Trade Center and the attack on the Pentagon wrought countless m

damages to those affected and to the economy of the United States a

More importantly, the attacks caused the deaths of some 3,000 and 

countless others. Many of the victims were, of course, from count

than the United States. With the benefit of hindsight, it seem clear t

of the magnitude of September 11th would eventually strike the Unit

Still, terrorism on this scale is clearly new to the United States and 

and brings with it challenges to the law of armed conflict paradigm 

lasted since the closure of World War II. This changed environme

impact on the existing laws of armed conflict require careful study a

to develop insight into the future legal framework for responding to 

This was the purpose of the colloquium that this book, volume 79 of 

national Law Studies (“Blue Book”) series, memorializes.

In June, 2002, the Naval War College conducted a symposium on 

tional Law and the War on Terrorism. The colloquium, organized by 

ant Colonel Steven Berg, JAGC, US Army, was made possible 

support of the Center for National Security Law of the University o

Charlottesville, Virginia, the Israeli Yearbook on Human Rights, Te

rael, the Roger Williams University Ralph R. Papitto School of Law

Rhode Island, and the Pell Center for International Relations and P

icy of Salve Regina University, Newport, Rhode Island. Without th

and assistance of these organizations, the colloquium would not have 

success that it was, and this volume would not be before you as it is. T

port is greatly appreciated.

Colonel Frederick L. Borch, JAGC, US Army, and Major Paul S

JAGC, US Army, both of our International Law Department, collab

editors of this volume. Their dedication and perseverance are respo

the production and completion of this product.

A special thank you is necessary to Dr. Alberto Coll, the curren

the Center for Naval Warfare Studies and Rear Admiral Rodney P

the President of the Naval War College for their leadership and supp

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planning and conduct of the colloquium and the funding for the p

this book.

The “Blue Book” series is published by the Naval War College an

uted throughout the world to academic institutions, libraries, and 

and foreign military commands. This volume on International Law 

War on Terrorism is a fitting and necessary addition to the series as 

continues to grapple with the senseless acts of terrorism common in 

today.

DENNIS L. MANDSAGER

Professor of Law & Chairman

International Law Departmen

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Preface

The September 11, 2001 attacks on the World Trade Center and 

tagon catapulted the United States—indeed the world—into a ne

terrorism. On September 14th, the US Congress passed a joint reso

thorizing President George W. Bush “to use all necessary and ap

force against those nations, organizations, or persons he determines 

authorized, committed or aided the terrorist attacks . . . or harbored s

nizations or persons.” On September 28th, the UN Security Counc

Resolution 1373. It not only condemned terrorism as a threat to inte

peace and security, but implicitly recognized that al Qaeda’s use of 

cial aircraft as weapons constituted an “armed attack” within the m

Article 51 of the UN Charter. In any event, on October 7, 2001, l

month after the terrorist attacks on America, US forces began o

against al Qaeda and Taliban forces in Afghanistan.

For lawyers and academics practicing and studying internationa

the Law of Armed Conflict, “9/11” and subsequent legal actions tak

US Congress, the United Nations, and the North Atlantic Treaty 

tion, meant a greatly renewed interest in a subject that had not 

enough attention over the last 10 years. The same was true of milita

taken by the United States and its allies, as the nature of the fightin

the Taliban and al Qaeda in Afghanistan raised new jus in bello issue

nizing that a forum in which scholars and practitioners could meet a

ine legal issues in the war on terrorism would be exciting, instruc

rewarding, the International Law Department began planning a con

November 2001. The result was a June 26–28, 2002 symposium call

national Law and the War on Terrorism,” and this book records the e

curring during those three days, bringing together the perspec

ruminations of the roughly 100 conference participants.

Almost from the beginning of the symposium, a major theme eme

while al Qaeda’s attacks on the World Trade Center and Pentag

sented a type of armed conflict not anticipated by those participat

conference, the Law of Armed Conflict was capable of addressing t

legal issues raised by terrorism after 9/11. This is not to say that th

and practitioners agreed on all jus ad bellum or jus in bello issues 

they did agree, however, that the Law of Armed Conflict and othe

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laws as they now exist provide an adequate framework for regulati

conflict with terrorism.

The first session, titled “Jus ad Bellum,” had two presenters. Prof

N. Schmitt, George C. Marshall European Center, Garmisch, Germ

gan with a paper titled “Counter-Terrorism and the Use of Force in 

tional Law.” Schmitt explored the circumstances under which a vi

may react forcibly to an act of terrorism, and concluded that “in mos

the law on the use of force has proven adequate” in countering te

tacks. That is, while the current “normative system developed for 

state conflict,” it nonetheless has shown itself to be sufficiently flex

spond to terrorist attacks by non-state actors.

In the absence of a post-9/11 resolution from the UN Security Cou

Schmitt asserted that the sole basis for the United States and its coal

ners to take action was self-defense. No advance Council authoriza

quired for force used in self-defense; all the U.N. Charter requires is 

follows that while a state’s use of force in self-defense does not de

Council of its ‘right’ to respond to any terrorist attack, the Council’s 

take action does not deprive a state of its inherent right to exercise ind

collective self-defense. In Prof. Schmidt’s view, it is “tragically self-evi

the al Qaeda attacks on September 11, 2001 were of sufficient “scale an

to qualify as an “armed attack” within the meaning of Article 51 o

Charter. Consequently, US and coalition operations against al Qae

ghanistan were a legitimate exercise of individual and collective sel

Self-defense requires ‘necessity” (“a sound basis for believing that f

tacks will be mounted”) and ‘imminency’ (“self-defense may be c

against an ongoing terrorist campaign”); the use of force also must b

tional. Schmitt concluded his paper with an examination of the lega

ing force against the Taliban. While he determined that the legal au

acting in self-defense against al Qaeda was much clearer than the lega

using force against the Taliban, Schmitt nonetheless was satisfied 

principle of state responsibility established in the Corfu Channel cas

US and coalition military operations against Taliban forces in Afgha

Prof. Rein Müllerson, Kings College, Univ. of London, followed 

with an oral presentation of his paper, “Jus ad Bellum and Internati

rorism.” In examining terrorism and the law of war, Müllerson concl

not all terrorist attacks are contrary to jus ad bellum; if they lack a 

state or are “relatively insignificant” in size and scope, the attacks fa

the scope of jus ad bellum. However, any terrorist attack that does “

der” jus ad bellum (like 9/11, which Müllerson believes is an armed 

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definition also violates jus in bello. The fact, says Müllerson, that th

ing Article 51 in 1945 contemplated that only states would be co

armed attacks does not mean that a non-state entity cannot launch 

attack. To conclude otherwise is both illogical and ignores “current 

Müllerson further argued that the September 11th attacks are crim

humanity as defined by Nuremberg Tribunals and “the statutes o

tional criminal tribunals recently adopted.” Like Prof. Schm

Müllerson also arrives at the same “bottom line:” that our existin

tional legal framework provides more than adequate authority to 

against terrorists.

After comments from Prof. Robert Turner and Mr. Harvey Da

questions from the audience, the conference shifted from jus ad bel

examination of jus in bello issues. Leading off this session was Pro

Dinstein, Visiting Professor, DePaul Univ. College of Law, who tal

“Unlawful Combatancy.” Calling this topic “a matter a of great pra

nificance in present-day international law,” Dinstein began with t

that combatants are individuals who are either members of the arm

(except religious or medical personnel) or persons who take an acti

hostilities; that noncombatants are civilians (who are not allowed t

participate in the fighting); and that one cannot be both at the same 

the US, its friends, and allies are involved in a war with terrorists w

most by definition unlawful combatants, Prof. Dinstein devoted the r

of his remarks to explaining the distinction between lawful and unla

batants. In Dinstein’s view, combatants must satisfy “seven cumulat

tions” to qualify as lawful combatants and enjoy immunity from prose

punishment for killing and wounding the enemy or destroying and 

his property. They must:

(1) Be subordinate to a responsible command (thus excluding “one

armies);

(2) Wear a fixed distinctive emblem recognizable at a distance (

the principle of distinction may be observed);

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

(4) Fight in accordance with the jus in bello (so that in claiming th

protections if captured, a combatant must be willing him

respect this same law);

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(5) Act within a hierarchic framework, embedded in disciplin

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 Po

that a German soldier in the French Foreign Legion would be e

to POW status if captured while fighting in Indo-China but wo

be entitled to such status if fighting in a war against Germany

Based on these seven cumulative conditions, Prof. Dinstein concl

both the Taliban and al Qaeda failed to qualify for POW status, bu

different reasons. The Taliban fighters were members of regular arm

professing allegiance to a government unrecognized by the Detaini

This meant that they could qualify for POW status in the same man

Gaulle’s Free French forces were entitled to be POWs when captur

Germans in World War II. That was not the principal reason, how

captured Taliban fighters were not POWs. Rather, because they did 

ply with virtually all of the seven factors earlier identified by Dinst

quired for POW status (e.g. the Taliban wore no uniform of any ki

less any distinctive insignia), they were not entitled to claim POW 

Qaeda combatants, however, belong in an entirely different categor

trast to the Taliban, al Qaeda combatants were irregular forces who 

wear uniforms and who “displayed utter disdain toward the jus in be

contempt for the Law of War meant that no al Qaeda fighters were e

POW status. Prof. Dinstein concluded his remarks with the warnin

“constraints of the conditions of lawful combatancy must not . . . b

binding only on one Party to the conflict.” Some American combata

bly special forces troops and CIA agents in the field, were not we

forms while in combat. Dinstein cautioned that had any US comb

civilian clothing been captured by al Qaeda or Taliban forces, they w

have been entitled to POW status.

Sir Adam Roberts followed Prof. Dinstein. Sir Adam, a professo

national relations at Oxford, began by asking these questions: Are t

war “formally applicable” to the war on terrorism? If counter-terrori

tions involve “situations different” from those envisaged by the law

should we still try to apply that body of law? Are terrorists entitled 

status? If not, what “international standards apply to their tre

Finally, Sir Adam asked whether the laws of war should be “revised

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into account the 

special circumstancesof the war on terrorism. 

concluded that there were “particular difficulties” in applying the la

to counter-terrorism. That is, while Operation ENDURING FREEDO

look like an “ordinary” international armed conflict, “a war that has 

pose the pursuit of people deemed to be criminals involves many aw

sues for which the existing laws of war are not a perfect fit.” With 

the UN Security Council, states, and non-governmental organizat

all assumed that the laws of war do apply. Consequently, this rea

considerations of “reciprocity” and “prudence”—require that the U

coalition partners apply the law of war “to the maximum extent 

Professor Roberts also concluded that the US decision to deny POW 

al Qaeda combat captives was sound both as a matter of law and pol

ever, he faulted the Bush administration for failing to highlight th

tainees would be accorded humane treatment in accordance with 

Article 3. Sir Adam also stressed that the United States missed an 

nity to show the world that it is scrupulous in observing the laws of 

it did not announce that all Taliban and al Qaeda detainees would b

in accordance with Articles 45 and 75 of the 1977 Geneva Protoc

latter articles elaborate a range of minimum rules of protection for 

who are not entitled to POW status. Since the US treatment of the 

comported with these two Protocol provisions, and since most natio

natories to Protocol I, announcing that it would adhere to these Pro

visions would have been smart public relations. Finally, Prof. Rober

that “there is a case for consideration of further revision” of the la

While rejecting the idea that existing laws of war are inadequate in t

the “terrorist challenge,” Roberts did believe that “some modest evo

changes” should be examined. In Sir Adam’s view, legal issues invol

geting, cluster bombs, and the classification and treatment of detain

appropriate topics, as was “the whole difficult problem of . . . suicide 

who by definition cannot be deterred by normal means.”

After commentary from Col. Charles Garraway, Prof. Leslie C. G

Lt. Col. Tony E. Montgomery, and questions from the audience on j

issues, the conference participants shifted their focus to a third topic

operations. Prof. Wolff Von Heinegg, a member of the internationa

ulty at Europa-University in Frankfurt, Germany, presented an artic

legality of maritime interception and interdiction operations (MIO) 

tion ENDURING FREEDOM, the name given to the military operation 

in the aftermath of 9/11. In von Heinegg’s view, MIO seek to disrup

for terrorist groups (especially by preventing materiel support 

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financing of, international terrorism), eliminate terrorist command 

ing facilities, and capture international terrorists for the purpose of 

ing them.

Von Heinegg first observed that the Security Council has neithe

flag states to permit MIO against ships flying its flag, nor authorize

and its coalition partners to conduct MIO. It follows that the lega

MIO must be individual or collective self-defense as permitted by c

international law and reflected in Article 51 of the UN Charter

Heinegg also argued that Resolution 1373, because it obligates all U

ber states to prevent and suppress within their territories all acts o

tional terrorism, provides an additional legal basis for MIO. In 

Heinegg’s view, the clear language of Resolution 1373 acts to waive 

ber states’s objection to MIO conducted against terrorists. The rig

defense and Resolution 1373, taken together, provide the legal aut

the “the US and its coalition partners [to] control international shi

aviation in order to verify the innocent status of such shipping and 

With that said, because the principle of proportionality applies to 

right of self-defense, “indiscriminate implementation and enforc

MIO covering vast sea areas” would be impermissible as disprop

Consequently, all MIO must be based upon “sufficient intelligenc

tors . . . of conspiracies to commit, or acts of, international terrori

von Heinegg concluded his presentation by explaining that the US a

alition partners “are entitled to establish maritime interdiction area

restrict “neutral” or third party state access to certain sea areas) fo

pose of identifying ships carrying terrorists or materiel for them. He a

examined the limitations imposed on MIO “by the law of naval warfa

the law of maritime neutrality.”

Ivan Shearer, Challis Professor of International Law at the Un

Sydney, Australia, followed Von Heinegg with a paper titled “The 

Coalition Cooperation in the War on Terrorism.” In Shearer’s vi

were a number of obstacles to successful coalition warfare agains

tional terrorism. First, as there is no universal definition of terror

state is free to adopt its own definition. These varying domestic law d

of terrorism are certain to make coalition efforts against terrorists m

lematic, especially regarding extradition for prosecution. Second, w

are international norms of human rights, how each state interp

norms in the detention and prosecution of terrorists is very much c

by domestic law. For example, Article 5 of the Universal Declarati

man Rights provides that “no one shall be subjected to . . . cruel, inh

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degrading treatment of punishment.

But how this provision is view

United States is quite different from how Article 5 is interpreted in 

pean Union. A third potential obstacle is extradition. Since there 

tomary international law requirement for a state to honor an e

request from another, bi-lateral and multi-lateral extradition trea

been negotiated. Many of these existing treaties prohibit the extr

their own citizens. They also prohibit the extradition of “politically m

offenders.” In Shearer’s view, these two provisions are certain to cre

cles to the successful prosecution of terrorists. Fourth, the death pen

a very real obstacle, especially since it has been retained in the Unit

The countries of the European Union, Australia, Canada, and New 

for example, will only extradite a terrorist to the United States on t

tion that any death penalty, if imposed, will not be carried out. Fin

Shearer addressed the role of the International Criminal Court (ICC

tion operations against terrorism. He noted that terrorism is no

within the jurisdiction of the ICC; it was specifically excluded out o

its inclusion as a crime might politicize the ICC. That said, Shearer c

that as some acts of terrorism—such as a widespread or systema

against any civilian population—might constitute a crime against 

and, as the ICC has subject-matter jurisdiction over this offense, som

ists could be prosecuted in that forum.

After commentary by Commanders Neil Brown (UK) and Kevin 

(US), Wing Commander Paul Cronan (Australia), and Lt. Col. 

Perron (Canada), and questions and comments from the audience 

senters, the conference moved to its next topic: The “proper” 

“bringing terrorists to justice.” Lt. Col. Michael Newton, an Army ju

cate and faculty member at the U.S. Military Academy, and Ch

Greenwood, a professor at the London School of Economics and Pol

ence, presented papers on this subject.

The thrust of Newton’s presentation was that existing internat

provides a sufficient framework to prevent and punish terrorism. Ne

ognized, however, that the current state of the law, predicated as it 

voluntary efforts of sovereign states to implement and enforce inte

norms . . . is not a panacea” for combating terrorism. Nonetheless, af

ining the Nuremberg trials, the UN tribunals for Rwanda and the Fo

goslavia, and the International Criminal Court, Newton conclude

creation of “a new superstructure of supranational justice”—an inte

terrorist tribunal—would not “materially enhance” the law. In his vi

lishing an international court to prosecute terrorists is “abdica

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responsibility to an internationalized process [and this] would be the 

toward paralyzing politicization of the fight against terrorism.”

Prof. Chris Greenwood responded that he believed that the natio

were the best forum in which to prosecute terrorists. He objected t

that al Qaeda members were guilty of war crimes prior to the comm

of international armed conflict in Afghanistan in mid-October 2001

the idea that there could be a war between a non-state actor and th

States prior to that time.

After commentary by Col. Manuel E.F. Supervielle, by Mr. Dan

and questions and comments from the audience, the conference mo

final topic: “The Road Ahead.” Prof. John Murphy, Mr. James P. T

Dr. Nicholas Rostow made presentations. Murphy, a professor 

Villanova University, discussed “the application of legal lessons lear

review of the role of international conventions on terrorism.” Prior t

ing these issues, however, Murphy identified a number of “trends” 

ism. These include the “globalization” of terrorism,” as reflecte

worldwide expansion of the al Qaeda network of terrorists now opera

many as 60 different countries, and the reality that September 11, 20

“the increased willingness of terrorists to kill large numbers of peop

make no distinction between military and civilian targets.” Anothe

that terrorists appear to be increasingly “smarter and more creativ

better equipped to take advantage of the information on weapons, ta

resources available on the internet,” and that some terrorist organiz

cooperating with each other (e.g. the IRA traveled to Colombia to 

FARC in planning an urban bombing campaign). But Murphy als

“positive” trend in terrorism: the relative decline of state-sponsored 

when compared to the 1970s and 1980s.

With this as background, Prof. Murphy examined how internat

has addressed these developments. He first stressed that internation

ism had been treated primarily as a domestic criminal law matter pri

tember 11, 2001. Now, however, it seems clear that the scope and 

Qaeda’s attacks on the World Trade Center and Pentagon—and th

coalition response to it in Afghanistan—have given the law of arme

a much greater role in combating international terrorism. But M

minded the audience that international criminal law—in the form o

related antiterrorism conventions—will also have an important ro

future.

In his view, these anti-terrorism conventions have taken a piec

proach to terrorism because it has been impossible to d

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comprehensive convention against terrorism, primarily because agre

a definition of terrorism has not been possible. In any event, while 

hensive treaty might have been preferable, these individual convent

provided much coverage, especially those negotiated in the 1990s li

ternational Convention for the Suppression of the Financing of Terrorism

Murphy’s view, all that is missing is a convention directed toward 

weapons of mass destruction by terrorists. In short, while recognizin

sponding with military force in self-defense may be increasingly ne

the war against terrorism, Prof. Murphy’s paper highlighted that inte

criminal law conventions will remain important and valuable too

struggle as well.

Jim Terry, a retired Marine Corps lawyer now serving as a Deputy 

Secretary at the U.S. State Department, next offered a series of ob

on the Road Ahead in Afghanistan. Recognizing that the United St

use all available instruments of power, Terry provided a fascinating ro

those actions that should take place in Afghanistan over the course o

few years. Terry noted particularly that within the next two years, th

States must help Afghanistan: move toward increased stability and p

develop an emerging economy, facilitate the establishment of a nati

tary and police force, and be prepared for the process to be long and 

Jim Terry then presented a legal analysis of the “legal rights” of, an

priate treatment” of al Qaeda and Taliban detainees held by the Uni

in Guantanamo Bay, Cuba. In Terry’s view, two questions are cent

analysis: After the United States and its allies commenced military o

against Afghanistan in mid-October 2001, did the 1949 Geneva Co

apply to the conflict? If so, were members of al Qaeda as a group

Taliban individually or as a group, entitled to POW status if captur

Terry explained that the US government view was that the al Qa

nization was not part of “the armed forces of a Party,” or the “militia

unteer corps forming part of such armed forces.” It followed that al Q

a non-state actor and its members did not qualify for POW status. A

Taliban, Mr. Terry agreed that, as the Taliban were the de facto gove

Afghanistan, it followed that there was an international armed co

tween the U.S. and its allies and Afghanistan. However, the Taliba

to require its fighters to wear uniforms or other distinctive insignia, 

ject to a command structure that enforced the law of war, meant 

tured Taliban combatants also were not entitled to POW treatm

explained Mr. Terry, “Part II of Geneva Convention III [Relati

Treatment of POWs]” requires humane treatment, including food

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attention, the opportunity to worship, and other benefits. In short, 

legally entitled to POW status, the detainees were entitled to much 

treatment afforded POWs. Jim Terry closed with a brief discussion a

tary commissions, and how Taliban and al Qaeda personnel who c

violations of the law of war would be subject to trial and punishmen

commissions.

Nick Rostow, General Counsel to the US Mission to the United 

presented “a few words about the UN and terrorism before Septe

2001, the impact of September 11th and where the UN seems to b

from here.” Rostow repeated a remark made recently by the Secre

eral: “Terrorism against innocent civilians is clearly a bad thing and 

of you wouldn’t be here except for acts of what are now called ter

what the colonial powers regarded as terrorism.” In Rostow’s view, 

ment “aptly captures the tension at the UN” when it comes to terror

that said, Nick Rostow believed that the events of September 11th 

the focus of both the Security Council and the General Assembly,” 

was every reason to think that the UN would “finally . . . make progre

addressing terrorism on the world stage.”

Comments from Messrs. Michael Saalfeld and Ronald Winfrey, 

Jane Dalton followed, with discussion from conference participan

the symposium closed shortly thereafter, all who attended better un

the complexity and difficulty involved in the challenges facing lawye

erators in the war on terrorism.

************

In editing the papers presented and transcribing the hundreds o

oral commentary, we have striven to be accurate and yet retain th

the conference. We could not have brought this 79th volume of th

tional Law Studies to print without the unsung, but outstanding effo

Susan Meyer and Mr. Matthew Cotnoir in Desktop Publishing. N

this volume be complete without the incredible efforts of Ms. Pat G

Ms. Wilma Haines, Ms. Kathleen Koegler, Ms. Erin Poe, Ms. Marg

ard, and Mr. Jeremiah Lenihan in proofreading and correcting the m

rors we surely made. Finally, a special note of thanks to Cap

Grunawalt, JAGC, USN (Ret.) for his willingness to again support 

national Law Studies series in an effort to insure it remains the stand

is. It is only due to these individuals’ efforts that the Internati

xxii

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Department is able to bring you this volume. However, there are sur

rors, and these are our responsibility alone.

Last but not least, we dedicate this book to Janet and Pauline

whose support and love we would be lost.

Fred L. Borch

Colonel, U.S. Army

Judge Advocate General’s Corps

Paul S. Wilson

Major, U.S. Army

Judge Advocate General’s 

xxiii

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I

Welcoming Address

Rear Admiral Rodney Rempt

elcome to the US Naval War College in Newport, Rhode 

we undertake what should prove to be very fruitful discus

debate about the defense of our nation and the critical operational an

sues that confront the United States today. In particular, welcome to 

lege’s conference on International Legal Issues in the Global 

Terrorism. It is exceedingly helpful to have scholars of internation

and practitioners charged with dealing with these particularly tho

come together to identify and discuss the bases for the conduct by th

its coalition partners of military operations against terrorists and t

support them. As it is in many such cases, over the next few days parti

this conference will plow new ground and review history at the sa

Such goals are an important purpose of the US Naval War College an

portant that you strive to do this while you are here.

Our academic environment permits us to exchange thoughts, ana

and be forward leaning. From conferences such as these, policy is d

and written, and significant consequences can emerge. As we excha

amongst ourselves, I encourage you to press the envelope and chall

other with creative new thinking because frankly our world is cur

gaged in a rapid paradigm shift. Current norms must be flexible and 

or they must be discarded as new norms press to the front as we pee

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future in an effort to vigilantly protect our citizens, our property, in

very way of life from cowards who call themselves terrorists.

Your presence here for these several days is extremely important

together international scholars and practitioners to examine and stu

sis for how the United States and other nations partner together in 

mon cause of conducting military operations against terrorists and t

agencies and organizations that support them is of vital importan

United States and to the international community at large.

As an example, a current discussion of great interest deals wit

some sense, Iraq presents a simple situation. Iraq has a very unstable 

is closing in on his goal of greater access to weapons of mass de

While not currently a policy maker, I recognize that if the need aris

with Saddam Hussein militarily, we must be clear as to the internati

for the use of force against him. What would be the legal basis for 

change? How do we proceed on the best possible terms to address th

stances that we face? The question is not whether it is desirabl

Saddam Hussein from Iraq. Instead, since we are a nation founded 

rule of law, the question is how do we pursue what is determined to 

national interest while remaining squarely within the parameters of c

international law and the treaties and conventions of which we are 

signatories?

You must look at how the law of armed conflict applies to our com

ations in Afghanistan, the Philippines and elsewhere around the w

seems clear that we will be conducting combat operations for the fo

future in many of these areas. So the question is how to proceed in an 

in a situation that is starkly new in our nation’s history. In addre

question you must analyze and debate many other difficult question

Specifically, we need answers to the following tough questions: 

bers of terrorist organizations ever qualify as prisoners of war u

Geneva Conventions? Do members of the Taliban qualify for such pr

Should the Geneva Conventions be amended, updated, changed? I

gle series of questions, I have, in some sense, questioned the continu

ity of the Geneva Conventions. The root question is how do 

conventions we have in place apply to the circumstances confro

United States and the international community? The current intern

gal regime applicable to the law of armed conflict remains heavily i

by World War I and World War II. If our society is truly entering a 

should this continue to be the case? Or must international law cha

flect the new reality of non-state actors and other amorphous group

2

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Other difficult questions to be considered include: what is the le

of members of the US Central Intelligence Agency and Federal Bur

vestigation who engaged directly in combat activities in the armed c

Afghanistan? Are these personnel combatants, privileged combatan

ful combatants, civilians, or are they entitled to some other status? 

personnel uphold or violate the law of armed conflict? Similarly, wh

standards for the treatment of captured terrorists? How long may th

tained? What if these terrorists are US citizens? What due process ar

titled to receive?

From these questions must be asked: what are the lessons learned 

Global War on Terrorism? What action should the legal communit

garding future military operations against terrorists and those state

ing terrorist activity? These are not the only difficult questions as 

many others. These are, however, a small sampling of the types of is

pect you will consider during the next few days. These are question

significance, not only to lawyers but more importantly to comman

policy makers.

Two weeks ago, the Naval War College hosted our Current Str

rum. It brought together the best of military and civilian leadership, a

and the defense industry to address the strategic challenges confro

nation. The present conference is a like effort to bring together the b

in international law to further define and seek answers to the crit

tions that must be identified and resolved for our military and our n

ture. Your work here is important to how our nation proceeds i

against terror in the future.

Again, welcome to this conference. I wish you an enjoyable and p

stay here at the Naval War College. Your challenge awaits you.

3

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Panel I

Wednesday—June 26, 2002

9:00 AM–12:00 PM

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 Müllerson

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

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II

Counter-Terrorism and the Use of For

International Law

Michael Schmitt1

he terrorist attacks of September 11th undoubtedly ushered 

era in international security affairs. Although terrorism h

tragically prominent feature of the global condition for most of the 

century, these operations were quantitatively and qualitatively diffe

those of the past. They involved extensive and sophisticated long-t

ning by a group that cuts across lines of nationality and which oper

within many countries.2 The scale of the destruction in both human a

cal terms was shocking; the fact that the attacks and their afterm

broadcast live only served to further exacerbate their psychologic

1. Professor of International Law, George C. Marshall European Center for Secu

Garmisch-Partenkirchen, Germany. The views expressed herein are those of the a

personal capacity and do not necessarily represent those of any United States 

government agency.

2. For an excellent discussion of how the attacks were a turning point in the 

international terrorism, see Paul J. Smith, Transnational Terrorism and the al Q

Confronting New Realities, PARAMETERS, Summer 2002, at 33. See also, Michael How

in a Name? How to Fight Terrorism, FOR. AFF’S, January/February 2002, at 8, which 

declaring a “war” on terrorism was a “terrible and irrevocable error.” Id. at 8.

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That all 19 terrorists directly involved executed them with great pre

spite the certainty of their own deaths may well portend a terrifying fa

century terrorism—a genre of terrorism likely to prove extraordinari

to counter by traditional means.

Combating this aggravated form of terrorism will require new co

security strategies. Certainly, the Global War on Terrorism articula

United States represents one such strategy.3 As time passes and opp

and threats become clearer, the worldwide war on terrorism will e

sponsively. Other governments and intergovernmental organizatio

ready developing parallel and complimentary strategies.

Lest the lawlessness inherent in terrorism spread to its victims

terrorism strategy must be formulated with great sensitivity to the int

law governing the use of force. Some have suggested that this body 

cluding that facet regarding the right to self-defense, is not up to 

8

3. The extent to which the GWOT represents a fundamental shift in US strategie

with threats is apparent in President Bush’s discussion of preemptive strategies. See 

the President at 2002 Graduation Exercise of the United States Military Academy, J

available at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html (Jun

Released on September 17, 2002, the US National Security Strategy incorporates suc

See U.S. National Security Strategy, at 4, available at http://www.whitehouse.gov/

(Nov. 4, 2002).

4. See Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in 

the United Nations Charter, 25 HARV. J. L. & PUB. POL. 539 (2002). Professor Gle

that:

The international system has come to subsist in a parallel universe of two syste

de jure, and the other de facto. The de jure system consists of illusory rules tha

govern the use of force among states in a platonic world of forms, a world that d

exist. The de facto system consists of actual state practice in a real world, a w

which states weigh costs against benefits in regular disregard of the rules s

proclaimed in the all-but-ignored de jure system. The decaying de jure catec

overly schematized and scholastic, disconnected from state behavior, and unrea

its aspirations for state conduct.

Id. at 540.

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Others counter that effective responses to terrorism and state 

su

thereof are proving entirely consistent with existing prescriptive nor

article explores those norms, specifically the relevant jus ad bellum,6 in 

text of the response to the 9/11 attacks. Under what circumstances ca

state react forcibly to an act of terrorism? Against whom? When? 

what degree of severity? It concludes that a natural evolution in the co

understanding of limitations on the use of force has occurred over th

cades, such that claims of international law’s present insufficiency 

blown. However, assertions that the law as traditionally understood 

full range of forceful responses to terrorism equally overstate reality. 

ally the case, the truth lies between the extremes.

The Relevant Facts

In order to effectively appraise the international law governing the u

in counter-terrorism today, and to acquire a sense for its normative v

necessary to first paint the factual backdrop. Law tends to be reactiv

sponsive to the factual context in which it operates. Obviously, this i

for customary international law, which relies, inter alia, on state prac

emergence. The same is true, however, for convention-based law. De

larations that international agreements, such as the UN Charter, sho

terpreted in accordance with the ordinary meaning of their t

undeniable that community understanding of law shifts over time 

9

5. See, e.g., Jack M. Beard, America’s New War on Terror: The Case for Self-De

International Law, 25 HARV. J. L. & PUB. POL. 559 (2002).

[T]he case for America’s forcible response to the September 11 attacks as bei

consistent with the inherent right of self-defense under customary international 

Article 51 of the U.N. Charter is very strong. The unanimous condemnation 

attacks by the U.N. General Assembly, the affirmation of the right of self-defens

Security Council, the growing consensus in the international community to hol

accountable for terrorist actions, and the repeated condemnation by the S

Council of the Taliban Regime’s support of terrorists in particular, clearly help e

an appropriate framework under international law for the exercise of self-defens

United States.

Id. at 589–90.

6. That component of international law that governs when it is that a state may reso

pursuit of its national interests, such as defending itself from armed attack.

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coherent and relevant to both current circumstances and the globa

nity’s normative expectations.7

Sadly, the facts of 9/11 are all too familiar. On 11 September 200

ists seized control of four passenger aircraft in the United States. T

flown into the Twin Towers of the World Trade Center in New Yo

third was driven into the Pentagon in Washington D.C. and t

crashed in Pennsylvania following an unsuccessful attempt by pass

regain control from the highjackers. Roughly 3000 people of over 80 

ities perished.

Investigation quickly led authorities to focus their attention on O

Laden and his al Qaeda terrorist organization.8 Al Qaeda operates f

than 60 countries through a compartmentalized network using ope

numerous nationalities. By October, the British government felt s

confident in intelligence reports at its disposal to release certain facts 

clusions regarding the group. These were subsequently confirme

United States. Specifically, 10 Downing Street announced that al Q

planned and conducted the attacks, that it continued to have the re

mount further operations, that US and UK citizens were potential ta

that “Usama Bin Laden and Al-Qa’ida were able to commit these 

10

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 m

to be given to the terms of the treaty in their context and in light of its obj

purpose...;

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

b. any subsequent practice in the application of the treaty which establis

agreement of the parties regarding its interpretation....

Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, 1155 U.N.T.S. 3

679 (1969). This point was reiterated by the International Court of Justice in Comp

General Assembly for the Admission of a State to the United Nations. There, the Cour

first duty of a tribunal which is called upon to interpret and apply the provisions of 

endeavour to give effect to them in their natural and ordinary meaning in the cont

they occur.” 1950 I.C.J. 4, 8.

8. For background on bin Laden, see PETER L. BERGEN, HOLY WAR, INC.: INSIDE T

WORLD OF OSAMA BIN LADEN (2001); Michael Dobbs, Bin Laden: Architect of 

Terrorism, WASH. POST, Sep. 16, 2001, at A8.

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because of their close alliance with the Taleban regime, which allo

to operate with impunity in pursuing their terrorist activity.”9

Of particular relevance to the use of force issue is the fact that al Q

hardly venturing into terrorism for the first time on September 11th

ganization had allegedly been involved in the 1993 World Trad

bombing, the 1998 bombings of the US embassies in Kenya and Tan

tacks for which Osama bin Laden has been indicted10), and the atta

USS Cole in 2000; the group had also claimed responsibility for the 

tack on US special forces in Somalia, as well as three separate 1992 

intended to kill US military personnel in Yemen. Moreover, the U

ment of State alleges the existence of al Qaeda ties to plots (not exe

kill the Pope, attack tourists visiting Jordan during the millennium 

tion, bomb US and Israeli embassies in various Asian capitals, blow u

passenger aircraft while in flight and assassinate President Clinton.1

That al Qaeda represents a continuing threat is apparent not on

track record, but also from statements periodically issued by Osama b

himself. The British government’s October Press Release cited a num

most virulent:

The people of Islam have suffered from aggression, iniquity and i

imposed by the Zionist-Crusader alliance and their collaborators . . . . 

duty now on every tribe in the Arabian peninsula to fight jihad and clea

land from these Crusader occupiers. Their wealth is booty to those w

them. (1996)

[T]errorising the American occupiers [of Islamic Holy Places] is a religi

logical obligation. (1996)

We—with God’s help—call on every Muslim who believes in God and w

be rewarded to comply with God’s order to kill Americans and plund

money whenever and wherever they find it. We also call on Muslims 

11

9. United Kingdom Press Release, 10 Downing Street Newsroom, Responsibility for 

Atrocities in the United States, Oct. 4, 2001, at paras. 21–22, available at http://ww

10.gov.uk/news.asp?NewsId=2686 (Jun. 18, 2002). As to US confirmation of th

David E. Sanger, White House Approved Data Blair Released, N.Y. TIMES, Oct. 6, 20

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

4, 1998).

11. Department of State, Patterns of Global Terrorism, app. B: Background Info

Terrorist Groups, al-Qa’ida, April 30, 2001, available at http://www.state.gov/s/

2000/2450.htm (Jun. 18, 2002).

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pppy

them, and to displace those who are behind them. (1998)

[A]cquiring [chemical or nuclear]... weapons for the defence of Muslim

religious duty. (1998)

Thus, in al Qaeda we have a determined terrorist organization that 

mitted multiple acts of terrorism over the course of a decade—acts 

sulted in the deaths of thousands and caused property and financia

measured in the billions of dollars—and views its continuing campaig

of jihad.

The US reaction was swift. Within a week, President Bush form

claimed a national emergency12 and called up members of the reserv

nent of the armed forces.13 He also established the Office of Homel

rity and the Homeland Security Council in order to facilitate a co

response to the terrorist threat.14 For its part, Congress passed a joint 

that authorized the President to “use all necessary and appropr

against those nations, organizations, or persons he determines planne

rized, committed, or aided the terrorist attacks that occurred on Sept

2001, or harbored such organizations or persons, in order to prevent 

acts of international terrorism against the United States by such nati

nizations or persons.”15 Essentially, the United States was placed on a 

ing. Indeed, the President characterized the attacks as “an act of w

our country.”16 Thus, the US government quickly moved beyond a 

law enforcement paradigm in determining how to respond to the att

Almost immediately, the spotlight focused on Taliban conne

al Qaeda, which was “headquartered” in Afghanistan. Although th

12

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 othe

taken. For instance, President Bush gave the Treasury Department greater power to 

financial support for terrorism through freezing assets and imposing financial sanctio

who refused to cooperate in the effort. Exec. Order No. 13,224, 66 Fed. Reg. 49,07

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 (20

16. President George W. Bush, Address Before a Joint Session of the Congress on 

States Response to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES

(Sep. 20, 2001).

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States did not formally recognize the Taliban as the legitimate gove

the country, the Taliban controlled the greatest amount of territory, 

that where al Qaeda was based.17 Working through the Pakistani gov

which maintained diplomatic relations with the Taliban, the United 

sued a series of demands. These were set forth publicly in late Septe

ing a Presidential address to a joint session of Congress. Specifi

United States insisted that the Taliban:

Deliver to United States authorities all the leaders of Al-Qa’ida who 

your land. Release all foreign nationals, including American citizens, y

unjustly imprisoned. Protect foreign journalists, diplomats, and aid wo

your country. Close immediately and permanently every terrorist trainin

in Afghanistan, and hand over every terrorist and every person in their 

structure to appropriate authorities. Give the United States full ac

terrorist training camps, so we can make sure they are no longer operat

President Bush made it quite clear that there would be no negotiation 

he expected immediate compliance. Moreover, he unambiguously la

consequences of non-compliance: “They will hand over the terroris

will share in their fate.”19

Despite the “no-negotiations” stance, the Taliban expressed a de

solve the matter. These entreaties were rebuffed and on October 6 

dent issued a final public warning to cooperate.20 The following 

United States and United Kingdom launched the first phase of Oper

DURING FREEDOM, consisting of airstrikes against both al Qaeda an

targets. The scope and nature of the campaign quickly expanded t

pass ground and maritime operations.

13

17. For background on the Taliban, see AHMED RASHID, TALIBAN: MILITANT 

AND FUNDAMENTALISM IN CENTRAL ASIA (2001); PETER MARSDEN, THE TAL

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. 

(Oct. 6, 2001).

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As required by Article 51 of the United Nations Charter, the Uni

promptly notified the Security Council that it was acting in individua

lective self-defense.21 In the report, the United States asserted th

“clear and compelling information that the Al-Qaeda organization

supported by the Taliban regime in Afghanistan, had a central role 

tacks” and that there was an “ongoing threat” made possible “by th

of the Taliban regime to allow the parts of Afghanistan that it cont

used by [al Qaeda] as a base of operations.” The purpose of the milit

tions was to “prevent and deter further attacks on the United Stat

nously, the United States warned, “We may find our self-defense 

further actions with respect to other organizations and other State

address to the nation, the President echoed the threat contained in 

cle 51 notification: “Every nation has a choice to make. In this conf

is no neutral ground. If any government sponsors the outlaws and ki

nocents, they have become outlaws and murderers, themselves. And 

take that lonely path at their own peril.”23

Because it had participated in the strikes, the United Kingdom a

mitted the requisite report to the Security Council. It announced th

tacks were conducted in self-defense against “Usama Bin Laden’s 

terrorist organization and the Taliban regime that is supporting 

avowed purpose was “to avert the continuing threat of attacks from 

source.”24 Thus, although limiting the scope of its operations to al Q

14

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

Nothing in the present Charter shall impair the inherent right of individual or co

self-defence if an armed attack occurs against a Member of the United Nation

the Security Council has taken measures necessary to maintain international pe

security. Measures taken by Members in the exercise of this right of self-defence 

immediately reported to the Security Council and shall not in any way aff

authority and responsibility of the Security Council under the present Charter to 

any time such action as it deems necessary in order to maintain or restore intern

peace and security.

22. Letter from the Permanent Representative of the United States of America to 

Nations Addressed to the President of the Security Council (Oct. 7, 2001), U.N. D

946, available at http://www.un.int./usa/s-2001-946.htm (Jun. 18, 2002) [hereinafter 

23. President George W. Bush, Address to the Nation Announcing Strikes Again

Training Camps and Taliban Military Installations, 37 WEEKLY COMP. PRES. DOC. 

7, 2001).

24. Letter from the Charge d’Affaires of the Permanent Mission of the United 

Great Britain and Northern Ireland to the United Nations addressed to the Pres

Security Council (Oct. 7, 2001) available at http://www.ukun.org/xq/asp/SarticleType

ID.328/qx/articles_show.htm (Jun. 18, 2002).

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Thursday, April 28, 2005 8:21:09 AM
the Taliban, like the United States it suggested that action was ne

prevent further attacks.

The international reaction to the affair was almost universally one 

over the terrorist acts and support for the United States. On Septem

the Security Council passed Resolution 1368 condemning the attacks 

fying,” labeling them a threat to international peace and security, and 

ing the “inherent right of self-defence as recognized by the Char

United Nations.”25 Resolution 1373, passed on September 28th, like

the right to self-defense and laid out steps to combat terrorism, such as 

ing the financing of terrorism, denying safe haven to terrorists and the

plices, and cooperating in law enforcement efforts.26 Interestingly, th

Assembly did not refer to self-defense in its own resolution on the at

Following commencement of the military campaign, the Securit

passed a number of relevant resolutions. For instance, on November 

sued Resolution 1378, which expressed support for “international 

root out terrorism, in keeping with the Charter of the United Natio

firmed Resolutions 1368 and 1373 (which had cited the right to self

condemned the Taliban for “allowing Afghanistan to be used as a ba

export of terrorism by the Al Qa’ida network and other terrorist g

for providing safe haven to Osama Bin Laden, Al-Qa’ida and othe

ated with them”; and expressed support for the “efforts of the Afgh

to replace the Taliban.”28 On December 20th it passed Resolut

which (as with Resolution 1373) expressed support for rooting out 

in accordance with the Charter, reaffirmed Resolutions 1368 and 

15

25. S. C. Res. 1368, pmbl., U.N. SCOR, 56th Sess, U.N. Doc. S/1378/(2001). It i

that the Security Council did not reference self-defense in response to the 1998 at

East African embassies even though the United States formally invoked Article 51. A

Article 39 of the UN Charter, the Security Council has cognizance over “any threat t

breach of the peace, or act of aggression” and decides upon measures necessary to “

restore international peace and security.” U.N. CHARTER, art. 39. Therefore, labelin

a threat to international peace and security is normatively significant in that it em

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).

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Thursday, April 28, 2005 8:21:09 AM
authorized the establishment of the International Security Assistan

[ISAF].29 Reaffirmation of the international counter-terrorist effort

ous resolutions, of its prior condemnation of the Taliban and al Qae

the fact that terrorism constitutes a threat to international peace an

occurred yet again on January 20th, 2002 with Resolution 1390.30 In 

curity Council employed its Chapter VII authority to impose sanctio

Taliban and al Qaeda, including a freezing of assets, a prohibition of 

an arms embargo.

In none of the resolutions did the Security Council explicitly aut

United States, any coalition of forces, or a regional organization to 

pursuant to Article 42 of the Charter, as the Council is entitled to 

face of a “threat to the peace, breach of peace or act of aggression

ever, it is important to note that the Security Council twice referred 

herent right to individual and collective self-defense prior to coalitio

operations against the Taliban and al Qaeda, that no effort was mad

demn the forceful response once launched, and that the Council r

reaffirmed the right to self-defense and expressed support for the inte

effort to “root out terrorism” as those operations were ongoing.

Beyond the United Nations, the most powerful military allian

world articulated its position in even more unequivocal terms. The 

the terrorist attacks, NATO’s North Atlantic Council, consisting 

nent Representatives of all 19 NATO member states, announced t

attacks originated from outside the United States, they would be “re

16

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

Agreement on Provisional Arrangements in Afghanistan pending the Re-estab

Permanent Government Institutions (Bonn Agreement of Dec. 5, 2001), ISAF is 

maintenance of security in the vicinity of Kabul. ISAF executed a military technica

(MTA) with the Interim Administration in Afghanistan on 4 January 2002. For th

Bonn Agreement, see http://www.uno.de/frieden/afghanistan/talks/agreement.htm 

2002). The MTA text is at http://www.operations.mod.uk/isafmta.pdf (Jun. 18, 200

30. S. C. Res. 1390, U.N. SCOR, 57th Sess., U.N. Doc. S/1390/(2002). The opera

described by the British Ministry of Defence at http://www.operations.mod.uk/fing

2002).

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

Should the Security Council consider that measures provided for in Article 41 w

inadequate or have proved to be inadequate, it may take such action by air, sea, 

forces as may be necessary to maintain or restore international peace and securi

action may include demonstrations, blockade, and other operations by air, sea, 

forces of Members of the United Nations.

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an action covered by Article 5 of the Washington Treaty.

Articl

on Article 51 of the UN Charter, provides for collective self-defens

the member states suffers an “armed attack.”33 Within three weeks

lowing briefings in which US officials provided “clear and compel

dence that the attacks were not the work of domestic terrorists, t

Atlantic Council made precisely that finding and invoked Article 5

was no mention of whom the defense, which began five days later, co

rected against. This was a normatively significant omission given th

the entities the United States and United Kingdom struck on Octob

a non-state actor, whereas the other was a government supportiv

group, but which did not control it.

Similarly, the Organization of American States invoked the colle

defense provisions of the Rio Treaty35 following its finding that “thes

attacks against the United States are attacks against all American 

Australia did likewise, citing Article IV of the ANZUS Treaty in o

17

32. North Atlantic Treaty Organization (NATO), Press Release No. 124, statem

North Atlantic Council (Sep. 12, 2001) available at http://www.nato.int/docu/p

124e.htm, (Jun. 18, 2002).

33. The Parties agree that an armed attack against one or more of them in Europe o

America shall be considered an attack against them all and consequently the

that, if such an armed attack occurs, each of them, in exercise of the right of ind

or collective self-defence recognised by Article 51 of the Charter of the United N

will assist the Party or Parties so attacked by taking forthwith, individually 

concert with the other Parties, such action as it deems necessary, including th

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 (Oc

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 aga

American State shall be considered as an attack against all the American Sta

consequently, each one of the said Contracting Parties undertakes to assist in m

the attack in the exercise of the inherent right of individual or collective self-

recognized by Article 51 of the Charter of the United Nations.

Inter-American Treaty of Reciprocal Assistance, Sep. 2, 1947, art. 3.1, 62 Sta

U.N.T.S. 77.

36. Terrorist Threat to the Americas, Resolution 1, Twenty-Fourth Meeting of Con

Ministers of Foreign Affairs Acting as Organ of Consultation In Application o

American Treaty of Reciprocal Assistance, OEA/Ser.F/II.24, RC.24/RES.1/01 (Sep

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deploy military forces.

Russia, China and India agreed to share in

with the United States, while Japan and South Korea offered logistic

The United Arab Emirates and Saudi Arabia broke off diplomatic 

with the Taliban, and Pakistan agreed to cooperate fully with th

States. Twenty-seven nations granted overflight and landing righ

multilateral declarations of support were obtained.38

Once the campaign against al Qaeda and the Taliban began, off

pressions of support flowed in from many sources. The United Kin

noted, participated directly in the initial strikes, whereas many oth

such as Georgia, Oman, Pakistan, the Philippines, Qatar, Saud

Tajikistan, Turkey and Uzbekistan, provided airspace and facilitie

Egypt, Russia and the European Union publicly backed the US/U

tions. The Organization for the Islamic Conference simply urged th

States to limit the campaign to Afghanistan,39 while the Asia-Pa

nomic Cooperation Forum condemned terrorism of all kinds. Neith

zation criticized the operations. Australia, Canada, the Czech 

Germany, Italy, Japan, the Netherlands, New Zealand, Turkey, 

United Kingdom offered ground troops.40 By May 2002, the forces 

nations, in particular sizable British, Australian, Canadian and Amer

tingents, were engaged in dangerous “mop-up” actions.41

18

37. Prime Minister John Howard, Government Invokes ANZUS Treaty—Press Conf

14, 2001), available at http://australianpolitics.com.au/foreign/anzus/01-09-14anzus-inv

(Jun. 18, 2002). See also White House, Fact Sheet: Operation ENDURING 

Overview (Oct. 1, 2001) available at http://www.state.gov/s/ct/rls/fs/2001/5194.ht

2002). Article VI of the ANZUS Treaty provides: “Each Party recognizes that an arm

the Pacific Area on any of the Parties would be dangerous to its own peace and 

declares that it would act to meet the common danger in accordance with its co

processes.” Security Treaty (Australia, New Zealand, United States), Sep. 1, 195

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 

Charter, 43 HARV. INT’L L. J. 41, 49 (2002); Sean D. Murphy, Contemporary Practice 

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 Europe

“confirm[ed] its staunchest support for the military operations . . . which are legitima

terms of the United Nations Charter and of Resolution 1368.” Declaration by the H

of Government of the European Union and the President of the Commission: Follo

September 11 Attacks and the Fight Against Terrorism, Oct. 19, 2002, SN 4296/2

41. Perhaps best illustrative of the coalition nature of the campaign were operations 

from Manas airport, near Bishket, Kyrgyz Republic. Although typically a sleepy ai

hosting US and French fighter-bombers; Australian and French tankers; transport 

Spain, the Netherlands, Denmark and Norway; and a South Korean medical team. A

a Strange Land, THE ECONOMIST, May 4, 2002, at 41.

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Since the counter

terrorism operations began, controversy has su

garding a number of legal issues. Most notable among these has bee

tention, treatment and proposed prosecution of the detainees he

Naval Base Guantanamo Bay. Also a point of contention, albeit mo

is the extent of collateral damage and incidental injury from the st

ducted against al Qaeda and Taliban targets. And looming on the h

very divisive issue, i.e., carrying the fight beyond the borders of Afg

Yet, except in legal circles, and particularly the sub-circle of academ

has been minimum controversy about the lawfulness of the operat

ducted within Afghanistan under the jus ad bellum. On the contra

illustrated in the events described above, support for the US and 

military response has been strong. The extent to which this s

grounded in either the lex lata or lex ferenda is the subject of the rem

this article.

The Normative Framework for the Use of Force

The UN Charter expresses the basic prohibition on the use of force i

tional law. It provides, in Article 2(4), that “[a]ll Members shall refra

international relations from the threat or use of force against the terr

tegrity or political independence of any state, or in any other manner 

tent with the Purposes of the United Nations.”42 Within the four corn

Charter, there are but two exceptions to this prohibition. The first, s

Article 39, empowers the Security Council to determine the exist

threat to the peace, breach of peace or act of aggression and decide w

sures are necessary to maintain or restore international peace and se

Article 42, the Council may turn to military force to resolve these sit

what are generally labeled “enforcement operations.”43 States woul

troops under a UN flag, as a coalition of the willing or individually

19

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

CHARTER OF THE UNITED NATIONS:ACOMMENTARY 72 (Bruno Simma ed., 19

43. U.N. CHARTER, art. 42.

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organizations are also authorized to engage in 

enforcementactiv

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 indiv

collective self-defense if an armed attack occurs against a Member of the 

Nations, until the Security Council has taken measures necessary to m

international peace and security. Measures taken by Members in the exe

this right of self-defense shall be immediately reported to the Security 

and shall not in any way affect the authority and responsibility of the S

Council under the present Charter to take at any time such action as i

necessary in order to maintain or restore international peace and secur

Thus, states victimized by an armed attack may not only defend th

but also receive assistance from others in mounting that defense. T

not await a Council authorization to act, but are required to repo

taken to the Security Council, which may itself determine that it ne

spond in some fashion.

Some commentators assert that additional exceptions to the proh

the use of force lie outside the Charter. Most frequently cited is a ri

manitarian intervention, a topic rendered timely by NATO’s 1999 

tion in the Federal Republic of Yugoslavia on behalf of the 

Albanians.45 However, no such purported exception, or at least non

20

44. The Security Council shall, where appropriate, utilize such regional arrangem

agencies for enforcement action under its authority. But no enforcement action 

taken under regional arrangements or by regional agencies without the authoriz

the Security Council, with the exception of measures against any enemy s

defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in r

arrangements directed against renewal of aggressive policy on the part of any suc

until such time as the Organization may, on request of the Governments concer

charged with the responsibility for preventing further aggression by such a stat

U.N. CHARTER, art. 53.1.

45. On this issue, see Adam Roberts, The So-Called ‘Right’ of Humanitarian Interve

INT’L HUM. L. 3 (2000).

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garnered any significant support, would apply in the case of counte

operations.46

Despite the seeming expansiveness of the Charter prohibition, 

been, as will be discussed, growing support for, or at least a diminishi

of criticism of, forceful counter-terrorist operations. Tellingly, they a

always justified in terms of the right to self-defense, rather than as 

tion to the general prohibition on the use of force. Perhaps more no

significant is the fact that acceptance by other states of their legitim

expressed, is also usually framed in self-defense terms. Thus, while i

ent that such activities are increasingly acceptable politically, it is mo

priate to consider that acceptance as bearing on the evolution of t

regarding self-defense, than as exemplars of an emergent exception t

bition generally characterized as comprehensive in nature.

Returning to the Charter, a more apropos inquiry is whether 

terrorist operations can fall within the Chapter VII enforcement fr

That international terrorism may constitute a threat to internatio

and security, as understood in the Charter use of force context, is un

able. For instance, in 1992 the Security Council, reacting to attac

Pan Am Flight 103 (the Lockerbie case) in 1988 and UTA Flight 72

lowing year, affirmed “the right of all states . . . to protect their natio

acts of international terrorism that constitute threats to internatio

and security” and expressed concern over Libya’s failure to fully coo

establishing responsibility for the acts.47 The same year, and in re

Libya’s failure to render the requisite cooperation, the Council re-em

that “suppression of acts of international terrorism, including those 

States are directly or indirectly involved, is essential for the maint

21

46. It has been suggested that the Article 2(4) prohibition does not apply in any eve

strikes against terrorists based in another country. Such operations, so the reasoning 

“violate the territorial integrity or political independence” of the state in which they 

they are not directed against that state’s personnel or property, are not intended 

political independence in any way, and are limited temporally to the period n

eradicate the terrorist threat. Gregory M. Travalio, Terrorism, International Law, And 

Military Force, 18 WIS. INT’L L. J. 145, 166–67 (2000), citing, inter alia, Jord

Responding Lawfully to International Terrorism,8WHITTIER L. REV. 711, 716–7 (1

NORTON MOORE ET AL., NATIONAL SECURITY LAW 131 (1990); LOUIS HEN

NATIONS BEHAVE 141–45 (1979); Jean Kirkpatrick and Allan Gerson, The Reag

Human Rights and International Law, in RIGHT V. MIGHT 25–33 (Council on Foreig

1989). This article rejects the approach, favoring, as discussed infra, one that ackn

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).

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international peace and security.

It further reaffirmed that in ac

with the principle in Article 2, paragraph 4, of the Charter . . . every 

the duty to refrain from organizing, instigating, assisting or partic

terrorist acts in another State or acquiescing in organized activities 

territory directed towards the commission of such acts, when suc

volve a threat or use of force.” Finally, the Council styled the failur

to cooperate a threat to international peace and security.48

Similarly, following the 1998 US Embassy bombings in Nairobi an

Salaam, the Security Council condemned “such acts which have a 

effect on international relations and jeopardize the security of Stat

did in 1992, the Council also reiterated the duty to refrain from “o

instigating, assisting or participating in terrorist acts in another State 

escing in organized activities within its territory directed towards the 

sion of such acts.”49 The following year, the Council approved R

1269 (1999), which, without being tied to any particular 

“[u]nequivocally condemn[ed] all acts, methods and practices of te

criminal and unjustifiable, regardless of their motivation, in all their 

manifestations, wherever and by whomever committed, in partic

which could threaten international peace and security.”

Indeed, the Security Council characterized the pre-September 1

tion in Afghanistan as one implicating international peace and se

October 1999, it “strongly condemn[ed] the continuing use of Afg

tory, especially areas controlled by the Taliban, for the sheltering an

of terrorists and planning of terrorist acts, and reaffirm[ed] its convi

the suppression of international terrorism is essential for the maint

international peace and security.”50 It did precisely the same in D

2000. In July 2001, the Council made its position completely unamb

determining that “the situation in Afghanistan constitutes a threat t

tional peace and security in the region.”51 By September 2001, th

was abundantly clear that international terrorism, as well as allow

territory to be used as a base of terrorist activities, could rise to the 

“threat to the peace.” This being so, the Council is entitled, pu

22

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

49. S. C. Res. 1189, U.N. SCOR, 53d Sess., U.N. Doc. S/1189/(1998). See also S. C

U.N. SCOR, 51st Sess., U.N. Doc. S/1044/(1996) regarding assassination attempts 

President of Egypt, which styled “the suppression of acts of international terror

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).

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Article 39, to decide on the appropriate measures to take to 

maint

store international peace and security,” and such measures include 

force.

In the aftermath of the attacks, the Security Council labeled the

to the peace. On September 12, 2001, it “[s]trongly condemn[e

strongest terms the horrifying terrorist attacks which took place on S

11, 2001 in New York, Washington D.C. and Pennsylvania and, r

such acts, like any act of international terrorism, as a threat to inte

peace and security.”52 On September 28, it did so again in nearly iden

guage.53 Meeting at the ministerial level on November 12, 2001, th

issued Resolution 1377, in which it declared “that acts of internation

ism constitute one of the most serious threats to international peace 

rity in the twenty-first century.”54 In subsequent resolutions on the 

in Afghanistan, it adopted the practice of reaffirming all previous re

thereby continuing to characterize the September 11 attacks, as w

other act of international terrorism, as a threat to international pea

curity. Such a finding is the sine qua non of an authorization for a fo

sponse pursuant to Chapter VII (with the exception of self-defense)

Thus, it is unquestionable that the Security Council could have 

mount enforcement operations—either under the UN banner or by g

mandate to member states or an intergovernmental organization—in 

to restore and maintain international peace and security.55 Since the 

the Cold War, the Council has not hesitated to exercise its enforce

thority, sometimes in quite creative fashion. Chapter VII enforceme

tions have been conducted in response to such diverse situations as 

invasion of Kuwait, the failed-state disorder in Somalia, fighting 

from the breakup of Yugoslavia and internal violence in Indones

even, in the case of Operation DENY FLIGHT, authorized a regiona

organization, NATO, to maintain a no-fly zone. And when that sam

zation mounted Operation ALLIED FORCE to stop human rights abus

the Kosovar Albanians by forces of the Federal Republic of Yugo

23

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 r

adopted the Declaration on the Global Effort to Counter Terrorism.

55. For an article arguing that there is “a continuing process of attempting to wide

rights while eroding the effective powers of international organizations,” of which 

ENDURING FREEDOM is an excellent example, see Eric P.J. Myjer and Nigel D. Whi

Towers Attack: An Unlimited Right to Self-Defence?, 7 J. CONF.&SEC. L 5 (2002).

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Thursday, April 28, 2005 8:21:10 AM
bellum

based criticism of the bombing centered on the fact that th

members had not turned to the Council for authorization to conduct 

manitarian intervention, rather than on the operation itself. Perha

lustrative of the flexibility with which the Council has interpreted it

VII authority is creation of international tribunals to try those cha

human rights and humanitarian law violations during both internat

non-international armed conflicts.56

In fact, the Security Council has used its Chapter VII authority t

to terrorism in the past by imposing sanctions on both Libya and Sud

lowing terrorist organizations to operate from their territory.57 Yet 

rity Council was never asked to issue a mandate in response to 

attacks and in no resolution did it do so. Although some commenta

searched for an implied use of force authorization in the post-attack 

Council resolutions,58 such efforts are unnecessary. There was no r

the Council to issue one. The sole basis for conducting Coalition o

was self-defense, which does not require advance Council authoriz

the Charter requires is notice whenever such activities are undertak

terms of Article 51, an operation in self-defense does not deprive th

of its “right” to respond to the situation, but, by the same token, that 

not deprive states of their inherent right to exercise individual or 

self-defense, a form of armed self-help.59

24

56. See, e.g., Statute of the International Tribunal for the Former Yugoslavia, availa

www.un.org/icty/index.html (Jun. 18, 2002) [established by S. C. Res. 827, U.N. S

Sess., U.N. Doc. S/827/(1993)]; Statute of the International Tribunal for Rwanda

http://www.ictr.org/ (Jun. 18, 2002) [established by S. C. Res. 955, U.N. SCOR, 50th 

Doc. S/955/(1994)]; Statute of the Special Court for Sierra Leone, available at http://

leone.org/specialcourtstatute.html (Jun. 18, 2002) [established by S. C. Res. 1315, U

55th Sess., U.N. Doc. S/1315/(2000)]. Note that the authority of the Council to es

tribunals was unsuccessfully challenged in an interlocutory appeal before the Appe

of the International Criminal Court for Yugoslavia. Prosecutor v. Tadic, Case 

Decision on Jurisdiction (Aug. 10, 1995). See George H. Aldrich, Comment: Jurisdi

International Criminal Tribunal For The Former Yugoslavia, 90 AM. J. INT’L L. 64 (19

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

U.N. SCOR, 51st Sess., U.N. Doc. S/1054/(1996) (Sudan).

58. See, e.g., Carsten Stahn, Addendum: Security Council Resolutions 1377 (2001

(2001), ASIL Insights, Dec., 2001, http://www.asil.org/insights/insigh77.htm (Jun. 

59. Report of the International Law Commission, 32d Sess., II(2) Y. B. INT’L L. C

(1980).

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Self

Defense

As noted, Security Council Resolutions 1368 and 1373 cited the inhe

to self-defense in the specific context of international terrorism. Fur

the United States and the United Kingdom notified the Security Co

they were conducting operations against the Taliban and al Qaeda pu

their right of individual and collective self-defense. They received v

actual support from an array of states and intergovernmental orga

and there was no significant criticism of either the general premise t

may respond to international terrorism in self-defense or of its invo

this particular case. However, the operations that have been mount

the Taliban and al Qaeda raise a number of issues regarding the preci

so precise) parameters of the right to self-defense and the nature of 

tion. Before turning to them though, it is useful to survey several of 

rounding self-defense generally.60

One involves ascertaining whether an action constitutes an “

tack,” for under Article 51 the right to defend oneself surfaces only i

of such an attack. Not all uses of force rise to this level. For instance, 

able that certain operations that do not involve physical force, such 

puter network attack, might be a “use of force” [and thereby co

Article 2(4)], but not an “armed attack.”61 Similarly, the Internatio

25

60. One important issue is whether or not Article 51 represents the entire body of th

defense. In the Nicaragua case, the International Court of Justice held that th

international law right of self-defense “continues to exist alongside treaty law,” 

Article 51 of the Charter. To begin with, the article itself refers to the “inhere

individual and collective self-defense. More to the point in this inquiry is the fact th

leaves unanswered certain aspects of its exercise. As the Court pointed out, f

although Article 51 sets a threshold of “armed attack” for vesting of the right, 

definition of that term. The Charter also fails to articulate the well-accepted requir

acts of self-defense be proportional and necessary. Military and Paramilitary Activ

against Nicaragua (Nicaragua v. US), Merits, I.C.J. Reports 1986, para. 176 

Nicaragua]. See also Legality of the Threat or Use of Nuclear Weapons (Advisor

I.C.J. Reports 1996, para. 41 [hereinafter Nuclear Weapons]. Customary internatio

prove useful in filling voids in the understanding of self-defense. This fact renders 

campaign normatively significant in that pervasive state practice over time, when th

a sense of legal obligation, matures into received customary international law. The 

operations therefore represent important data points in the development of the r

defense.

61. See Michael N. Schmitt, Computer Network Attack and the Use of Force in Intern

Thoughts on a Normative Framework, 37 COLUM. J. TRANSNAT’L L. 885, 896 (1999

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of Justice, applying customary international law, held in the Nicar

that:

the prohibition of armed attacks may apply to the sending by a State o

bands to the territory of another State, if such an operation, because of 

and effects, would have been classified as an armed attack rather than as 

frontier incident had it been carried out by regular armed forces. But th

does not believe that the concept of “armed attack” includes only acts b

bands where such acts occur on a significant scale but also assistance to r

the form of the provision of weapons or logistical or other suppor

assistance may be regarded as a threat or use of force, or amount to inter

in the internal or external affairs of other States.62

It is therefore the “scale and effects” of the act that are determina

sessing whether an armed attack is taking place such that a right to r

self-defense vests. By the Court’s standard, acts of a “significant scal

That said, the Court’s reference to a mere frontier incident, as well 

ceptance of actions by other than a state’s armed forces, imply that 

site significance of the scale and effects is rather low. Border inci

characterized by a minimal level of violence, tend to be transitory 

radic in nature, and generally do not represent a policy decision by 

engage an opponent meaningfully. They are usually either “uninte

merely communicative in nature. By negative implication, it would 

much force to exceed this threshold.

It is possible, then, that a state employing violence will have “use

and in doing so committed an international wrong, or even engaged 

constituting a threat to the peace, breach of the peace or act of a

(thereby allowing the Security Council to take cognizance of the ma

Chapter VII), but not have conducted an armed attack as tha

26

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.

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understood normatively in the context of self

defense.Analogousl

by non-state actors (the applicability of self-defense in such situati

cussed infra) might be criminal in nature and/or represent threa

peace, breaches of the peace or acts of aggression, but not be of a s

cient to implicate the international law right of self-defense. Despite 

however, it would appear that the level of violence necessary to r

level of an armed attack is markedly low.

Once an armed attack has been launched, the victim state ma

with force in self-defense. However, customary international law im

tain requirements on self-defense. In the 19th century Caroline case, 

of State Daniel Webster set out the standard that has since achiev

universal acceptance. According to Secretary Webster, there must 

cessity of self-defence, instant, overwhelming, leaving no choice 

and no moment for deliberation” and the defensive acts must not b

sonable or excessive.”65 This standard has matured into the requirem

self-defense be necessary and proportionate. The International Cou

tice confirmed their existence in both the Nicaragua case66 and th

Weapons advisory opinion.67 In the latter case, the Court noted “

27

64. In ascertaining whether an armed attack has occurred, resort is sometimes made 

“aggression,” which was defined in General Assembly’s Definition of Aggression 

However, aggression is not wholly synonymous with armed attack. As Randelzhoffer 

The travaux preparatoires of the Definition illustrate that a definition of ‘armed 

was not intended. In the special committee that worked out the Definition, the 

States, supported by other Western states, strongly opposed tendencies to incl

‘armed attack’. [Cf the statements made by the US representative (U.N. D

AC.134/S. C. 113, S. C. 105, p. 17 and S. C. 108, p. 43), the representative o

(U.N. Doc. A/AC.134/S. C. 112), and the UK (U.N. Doc. A/AC. 134/S. C. 113

the Soviet Union [see stmt by the Soviet Representative (U.N. Doc. A/AC.13

105, p. 16)], they also expressed the view that the notions of ‘act of aggressi

‘armed attack’ are not identical [see the statement by the US representative (U.

A/AC.134/S. C. 105, p. 17)].

Albrecht Randelzhofer, Article 51, in THE CHARTER OF THE UNITED N

COMMENTARY 661, 668 (Bruno Simma ed., 1995).

65. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), 29 BRITISH AN

STATE PAPERS 1129, 1138 (1840–1).

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

67. Nuclear Weapons, supra note 60, para. 41. See also RESTATEMENT (THIR

FOREIGN RELATIONS LAW OF THE UNITED STATES 905 (1987). Ian Brow

proportionality “the essence of self-defence.” IAN BROWNLIE, INTERNATIONAL LA

USE OF FORCE BY STATES 279 n. 2 (1963).

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condition applies equally to Article 51 of the Charter,

thereby ver

applicability of the requirements in both customary and convention

The principle of necessity requires that the resort to force occur o

no other reasonable options remain to frustrate continuation of the 

tack. Obviously, directly reacting with force to an armed attack that 

way would seldom be deemed unnecessary. More normatively comp

situation where an armed attack has taken place, but for some r

paused. Perhaps it has achieved its intended objectives. Or cooler h

have prevailed in the attacking state’s government. Maybe the go

that ordered the attack has been ousted and a successor governmen

to the conflict is now in power. Whatever the case, necessity mand

than forceful responses whenever feasible.

Transposing the standard to terrorism, the question is generally 

law enforcement operations are likely to be sufficient to forestall con

of the armed attack. Such operations may be undertaken by the vic

the state where the terrorists are based, or, for that matter, any ot

Similarly, if a state in which the terrorists are located conducts milit

tions with a high probability of success, there would be no necessit

self-defense by the victim state.

The proportionality principle simply requires that the respons

defense be no more than necessary to defeat the armed attack and re

threat of reasonably foreseeable future attacks. Yet, it is sometime

suggested that the size, nature and consequences of the response mu

portional to the size, nature and consequences of the armed attack. 

size of the attack, it would be absurd to suggest that there must be a

lency of force between the armed attack and self-defense. On the 

the attacker typically seizes the initiative, thereby acquiring an adva

successfully defend against an opponent enjoying such an advantage 

much greater force than that used to mount the attack.

Requiring equivalency of nature is equally inappropriate. The Inte

Court of Justice suggested as much by implication in its Nuclear Weap

ion. When assessing the proportionality of the use of nuclear wea

Court opined that “(t)he proportionality principle may . . . not in itse

28

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

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the use of nuclear weapons in self

defense in all circumstances.W

resenting a non-decision on the issue at hand, the Court had adm

possibility that use of a nuclear weapon might be legitimate in the 

non-nuclear attack. Scaled down from the nuclear level, such a cri

mains equally malapropos. By way of illustration, in responding to a 

attack the most productive tactic may be to disrupt land-based marit

mand and control assets. Likewise, in an effort to cause an attacker to 

altering his cost-benefit calculations, it may be more effective to co

on targets of particular value to him rather than those directly invol

attack.70 In fact, doing so may well result in a lesser level of viole

would be necessary to definitively defeat the attacking units th

Surely international law does not mandate tit-for-tat exchanges.

At first glance, a standard of proportionality vis-à-vis the harm c

possible) to the victim might seem more reasonable. In other words

engaging in self-defense should not be entitled to cause more harm t

suffered. But such a standard ignores the fact that international l

states the right to self-defense in order that they not be rendered h

the face of an attack. To suggest that a state cannot use the destruc

necessary to cause an attacker to discontinue (or to prevent futur

because the resulting destruction outweighs that the victim state 

suffered is to effectively deprive the victim of the right to self-defen

Finally, there have been suggestions that self-defense operations a

portionate if they cause more collateral damage and incidental injury 

civilian casualties and damage to civilian objects originally suffered b

tim state. Such assertions have been made in the context of th

29

69. Id., para. 42. There are, as noted in the discussion of self-defense, competi

proportionality. India argued that the principle meant a nuclear weapon could 

except in response to a nuclear attack. But even in such a case, so India argued, the u

weapons would be malum in se. Thus, any nuclear reprisal would be unlawful. Writte

of the Government of India, June 20, 1995 (Legality of the Threat or Use of Nuclea

at 2–3. Other approaches include proportional to the harm caused, vice technique 

cause the harm, and proportional to the force needed to cause the other side to desi

the approach of the Netherlands and United States, both of which argued that the le

be situational, with that of India. Observations of the Government of the King

Netherlands, June 16, 1995 (Legality of the Threat or Use of Nuclear Weapons), at 

statement of the Government of the United States of America, June 20, 1995 (Le

Threat or Use of Nuclear Weapons), at 30.

70. In a slightly different context, this approach lies at the heart of compellance st

the issue of affecting an enemy’s decision-making, see Jeanne M. Meyer, Tearin

Façade: A Critical Look at the Current Law on Targeting the Will of the Enemy an

Doctrine, 51 A. F. L. REV. 143 (2001).

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counter

terrorist operations, in which the number of civilian casual

edly exceeds the number of fatalities resulting from the 9/11 attacks

of this nature confuse the self-defense proportionality requirement 

ad bellum with the jus in bello proportionality principle that forbid

“expected to cause incidental loss of civilian life, injury to civilian

to civilian objects, or a combination thereof, which would be exces

lation to the concrete and direct military advantage anticipated.”72 

by the in bello standard, the correct phenomena to compare are inci

juries/collateral damage and military advantage. The issue is whether 

military advantage accruing from an attack justifies the civilian casu

damage to civilian objects; there is no balancing of the civilian suffer

opposing sides of the conflict.

Restated in the context of terrorism, the proportionality standa

only that degree of force necessary to fend off a terrorist attack an

oneself from a future continuation thereof. But the force necessary t

this purpose may far exceed that employed in the attack. Terrorists 

erate in loose networks from dispersed locations, receiving logistic s

ways intended to mask their nature. Further, they may be fanatical 

willing to die for their cause; this makes it extremely difficult to me

affect their cost-benefit calculations. Taking them on is a daunting 

typically requires extremely aggressive measures.

Beyond necessity and proportionality, the Caroline standard has 

been deemed to impose an imminency requirement, i.e., that the 

ongoing, or at least so imminent that the victim state has to react 

flexively to counter it. This requirement has generated enormo

about precisely when it is that an attack becomes imminent enough 

30

71. Estimates of civilian casualties vary widely. Compare, e.g., Marc W. Herold, A 

Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Acco

10, 2001, available at http://www.cursor.org/stories/civilian_deaths.htm (Jun. 

(approximately 4000 by Jan. 1, 2002) with Carl Connetta, Operation Enduring Free

Higher Rate of Civilian Bombing Casualties, Jan. 18, 2002, available at http://www.co

0201oef.html#ref7 (Jun. 18, 2002) (1000–13000 over the same period). A Hu

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 Re

Protection of Victims of International Armed Conflicts, arts. 51.5(a) & 57.2(a)(iii) 

12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977), reprinted in ADAM ROBERTS 

GUELFF, DOCUMENTS ON THE LAWS OF WAR 419 (3d ed. 2000). On proport

William J. Fenrick, The Rule of Proportionality and Protocol Additional I in Conventiona

MIL. L. REV. 91 (1982); Judith G. Gardam, Proportionality and Force in International L

J. INT’L L. 391 (1993).

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preemptiveaction in selfdefense. This is the issue of the appropri

“anticipatory self-defense.”73

Certain commentators who read Caroline narrowly suggest a high 

of imminence.74 Such a reading logically flows from Webster’s “inst

whelming, leaving no choice of means, and no moment for delibera

biage. However, the nature of combat has evolved dramatically sinc

of the Caroline correspondence. In the 21st century, the means of w

such that defeat can occur almost instantaneously. Indeed, the lin

krieg strategies of the Second World War appear slow and unwieldy 

standards, in which the battlespace is four-dimensional and effects 

ated in fractions of a second.

In such an environment, the most apropos approach is to conce

the underlying intent of the right to self-defense. Its primary purpos

ford states a self-help mechanism by which they may repel attackers

nizes that the international community may not respond quickly en

all, to an armed attack against a state. Yet, the limitations of necessit

tionality and imminency play to the community’s countervailing av

the use of violence by states. Thus, there is a balancing between t

right to exist unharmed and the international community’s need to 

the use of force, which is presumptively destabilizing.

The most responsive balance between these two interests lies in p

a use of defensive force in advance of an attack if “the potenti

must immediately act to defend itself in a meaningful way and if t

tial aggressor has irrevocably committed itself to attack.”75 This 

combines an exhaustion of remedies component with a requirement 

sonable expectation of future attacks—an expectation that is m

merely speculative.

31

73. Yoram Dinstein has rejected the terminology “anticipatory” in favor of “intercep

basis that the former term suggests that preventive actions in the face of a “foresee

attack are legitimate. For Professor Dinstein, the question is whether or not the “ot

committed itself to an armed attack in an ostensibly irrevocable way.” As he exp

crucial question is who embarks upon an irreversible course of action, thereby 

Rubicon. This, rather than the actual opening of fire, is what casts the die and forms 

categorized as an incipient armed attack. It would be absurd to require that the def

should sustain and absorb a devastating (perhaps a fatal) blow, only to prove an 

conception of self-defence.” YORAM DINSTEIN, WAR, AGGRESSION AND SELF-D

(3rd ed. 2001).

74. See, e.g., Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L

1634–35 (1984).

75. Schmitt, supra note 61, at 932.

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However, what if an attack is 

completeat the time of the pro

sponse in self-defense? To some extent, this question bears on the 

requirement; the termination of the initial action may allow for o

forceful resolution of the situation, thereby rendering a use of for

defense unnecessary. But the query also touches upon the imminenc

ment. Must defense against a future attack be measured by the same 

of imminency as defense against an initial one?

The answer is “yes,” but the mere fact that an entity has attac

makes it easier to conclude that it will do so again. After all, the “pot

tacker’s mens rea has now been tangibly demonstrated. Much mo

point, it may also be reasonable to conclude that the first attack was 

overall campaign that in itself constitutes a single extended armed 

this understanding, an after-the-fact reaction to an initial attack con

response to an on-going armed attack in which there is but a tacti

The approach reflects the reality of combat, in which pauses are the 

the exception. They may be necessary for logistical purposes, as a 

weather, due to enemy responses, pending acquisition of further int

to leverage surprise, etc. The question is whether the attack that has 

is part and parcel of a related series of acts that will continue to unf

Treating a series of actions as a unitary whole makes particular se

context of terrorism. Terrorist campaigns generally consist of a ser

tions that occur periodically over extended periods of time. Moreo

their nature, they are very difficult to defend against while under

potential target is usually only revealed by the attack itself, all of soci

sents a potential target thus rendering effective on-the-spot defense 

atic, the actual violence may occur after the terrorists have left the 

in a bombing), the terrorists may be willing to die in the attack, and 

tity and location of the terrorists may not be uncovered until after 

pletion of a particular action. In fact, in the majority of cases it is 

the attack that the victim state can mount its response. Therefore, u

is willing to deny victim states a consequential right of self-defen

terrorists, it is reasonable to interpret self-defense as permitting t

force against terrorists who intend, and have the capability to, con

ther attacks against the victim. By this interpretation, it is not the im

of an isolated action that is relevant, but rather the relationship betw

ries of attacks. Once the first of the related attacks has been laun

question becomes whether the victim state has sufficient reliable ev

conclude that further attacks are likely, not whether those further a

themselves imminent.

32

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Self

Defense Against al Qaeda

“Armed attacks” by terrorists. That the attacks of 9/11 were of suffici

and effects” to amount to an armed attack is tragically self-evident. 

the self-defense operations launched against the al Qaeda terrorist n

Afghanistan raise a number of other interesting issues. The first is w

“armed attack” can be carried out by a terrorist group or, stated c

whether self-defense can be conducted against one.

Some commentators have suggested that until 9/11, the underst

self-defense against an armed attack was essentially limited to agg

states.76 But Article 51 makes no mention of the nature of the entity 

mount the attack that in turn permits a forceful response in self-defe

omission is particularly meaningful in light of the fact that Article 2

hibition on the use of force specifically applies only to actions by M

the United Nations, all of which are states. That one key provision o

of force [2(4)] includes a reference to states, whereas another (51) 

implies that the latter was not meant to be so limited. This distincti

sense in the Charter context. The Charter was meant to govern sta

ior, but in doing so it both limits what states may do and empow

Thus, in 2(4) it restricts a state’s resort to force, but in 51 authorize

force in the face of armed attack. It would make no sense to limit th

zation to attacks by states because at the time the Charter was dra

was the greater threat.

Article 39 is similarly devoid of reference to state action when ch

Security Council with responsibility for deciding on the measures 

the face of a threat to the peace, breach of the peace or act of aggr

the various resolutions regarding the events of 9/11 (and those resu

it), the Council characterized the situation as a threat to internatio

and security. Moreover, it specifically noted that as a general matter 

constituted such a threat. While Article 39 does not directly add

defense and armed attacks, both it and Article 51 fall within Ch

which is entitled “Action with Respect to Threats to the Peace, Br

the Peace, and Acts of Aggression.” Considering these related point

33

76. See, e.g., Antonio Cassese, Terrorism is also Disrupting Some Crucial Legal C

International Law, European Journal of International Law Discussion Forum, availa

www.ejil.org/forum_WTC/ny-cassese.html (Jun. 18, 2002). See also Giorgio Gaja, In 

Was There an “Armed Attack”?, European Journal of International Law Discus

available at http://www.ejil.org/forum_WTC/ny-gaja.html (Jun. 18, 2002).

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Articles 39 and 51, it is reasonable to conclude that the entire cha

with actions that threaten international peace and security, wh

source.

Moreover, recall that Security Council Resolutions 1368 and 13

both cited the inherent right of self-defense, were issued before the 

terrorist campaign began and at a time when suspicion was focused 

ternational terrorist group as the culprit. In particular, recall that R

1368 passed the very day after the attack, when no one was discussin

sibility that a state may have been behind the actions. This indicate

Council’s understanding of self-defense includes defending against 

tacks by non-state actors.

State practice in the aftermath of 9/11 further supports the appli

self-defense to acts by non-state actors. No voices were raised claimin

ther the customary right of self-defense or Article 51 was limited to 

text of state actions. On the contrary, there were very visible illu

such as NATO’s invocation of Article V for the first time in its exi

the fact that most states viewed 9/11 as an armed attack meriting 

self-defense; in no case was there any suggestion that the right was d

on identifying a state as the attacker. Lest there be any question on t

once the self-defense actions commenced against both a state and a 

actor on October 7th, the dearth of controversy over using se

against non-state actors persisted.77 In fact, post-October 7th Secur

cil resolutions went so far as to urge member states to “root out ter

keeping with the Charter of the United Nations.”78

Necessity and the impact of law enforcement alternatives. It is inte

note that support for using force was widely evident despite the fact t

ical alternative to self-defense existed—criminal law enforcement.79 

the September 11th terrorist acts constituted a variety of criminal off

der the laws of a number of jurisdictions. Because it allows for 

34

77. Ireland’s Ambassador to the United Nations, who was acting as President of 

Council, noted the unanimous support of the Council following the briefing on 

States’ and United Kingdom’s operations in self-defense. Christopher S. Wren, U.S. A

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

SCOR, 56th Sess., U.N. Doc. S/1386/(2001); S. C. Res. 1390, U.N. SCOR, 57th 

Doc. S/1390/(2002). Specific reference was made to Osama bin Laden and the al Qa

in the January resolution.

79. For a pre 9/11 discussion of the alternatives, and the appropriateness of each

Gary Sharp, The Use of Armed Force Against Terrorism: American Hegemony or Impote

J. INT’L L. 37 (2000).

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jurisdiction, of particular significance is the offense of crimes agains

ity.80 Further, relevant international law instruments that bear on th

(or analogous terrorist incidents) include, inter alia, the Hague Co

for the Suppression of Unlawful Seizure of Aircraft, the Tokyo Conv

Offences and Certain Other Acts Committed on Board Aircraft, 

treal Convention for the Suppression of Unlawful Acts against the 

Civil Aviation, and the International Convention for the Suppressio

rorist Bombings.81 Although these treaties do not directly criminali

tions, they often require criminalization at the domestic level and/o

mutual law enforcement cooperation and extradition procedures.82 U

federal law, the acts violated certain sections of the Antiterroris

199083 and the US statutes implementing the Montreal Conven

course, specific elements of the attacks violated the criminal law 

states (and the District of Columbia) where they occurred, such as 

bitions on murder and the various forms of accomplice participation

35

80. A crime against humanity involves the commission of certain acts, including 

“other inhumane acts ... causing great suffering, or serious injury to body or to menta

health” when committed as part of a widespread or systematic attack directed against 

population.” Rome Statute for the International Criminal Court, art. 7.1, reprinted 

999 (1998), M. CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL 

DOCUMENTARY HISTORY 39 (1999), available at http://www.un.org/law

romefra.htm (Jun. 18, 2002). Widespread consensus exists that the attacks of 9/11 

crimes against humanity. For an analysis of its applicability to the 9/11 attacks, see C

note 76.

81. Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 1

1, 22 U.S.T. 1641, 10 I.L.M. 133 (1971); Tokyo Convention on Offences and Ce

Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N

Montreal Convention on the Suppression of Unlawful Acts Against The Saf

Aviation, Sept. 23, 1971, 24 U.S.T. § 565, T.I.A.S. No. 7570; Convention for the 

of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 1, 22 U.S.T. 1641, 860 U.N.T.

On the applicability, or difficulties thereof, of the treaties to the 9/11 attacks, se

Pronto, Comment, ASIL INSIGHTS, Sep. 2001, available at http://www.asil.

insigh77.htm (Jun. 18, 2002).

82. Professor M. Cherif Bassiouni has convincingly argued that the international la

this topic is not comprehensive. “[G]overnments have avoided developing an intern

regime to prevent, control, and suppress terrorism, preferring instead the hodgepodg

treaties that currently address its particular manifestations.” M. Cherif Bassiouni, Leg

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 La

Violations of International Law and Civil Lawsuits by Various Victims, ASIL INSIGH

2001, available at http://www.asil.org/insights/insigh77.htm (Jun. 18, 2002). Professo

discusses the possibility of civil suits against the perpetrators.

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It is apparent, therefore, that the international community does 

the applicability of a criminal law enforcement regime as preclud

sponse in self-defense to an armed attack by terrorists. That said, the 

of law enforcement bears on the issue of whether particular acts of se

are necessary. Recall that necessity requires an absence of reasonabl

tives to the defensive use of force. In this context, then, the state ma

against the terrorists if classic law enforcement reasonably appears u

net those expected to conduct further attacks before they do so. On

careful here. There is no requirement for an expectation that law enf

will fail; rather, the requirement is that success not be expected 

timely enough to head off a continuation of the terrorist campaign. O

if no further attacks are anticipated, the necessity principle would pr

sort to armed force at all, since self-defense contains no retributive 

In this case, the necessity of resort to force was obvious despite t

global law enforcement effort to identify and apprehend membe

al Qaeda network and prevent further attacks. Recall that al Qaeda 

implicated in numerous prior acts of terrorism, most notably the 199

rican embassy bombings, and was at the time of the 9/11 attacks al

target of a massive international law enforcement effort. Nevertheles

forcement failed to prevent the tragic events of September 11th

hardly surprising. Al Qaeda is a shadowy, loose-knit terrorist organ

which cells operate with substantial autonomy from scores of coun

complexity of coordinating law enforcement efforts in the face of wid

gent capabilities, domestic laws and national attitudes was daunting

al Qaeda was headquartered in Afghanistan, then ruled by a go

seemingly oblivious to international pressure to deny al Qaeda its ma

operations. Simply put, there was no guarantee that even a law enf

effort that was proving successful against much of the organization 

fectively eradicate the threat of another major attack. At the same 

gressively attacking the senior leadership and denying it a base of o

promised great returns in alleviating the threat, far greater than wo

be realized by law enforcement in a comparable period. And it m

membered that the clock was ticking. As the United States and its 

partners planned their response, warnings of imminent attacks flowe

intelligence channels with great frequency.

Proportionality. The second core requirement of self-defense, that 

tionality, also limits when a state may resort to self-defense in respon

terrorist act. Whereas necessity asks whether the use of force is ap

proportionality asks how much may be applied.

36

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Like necessity, proportionality is affected by the prospect of law 

ment activities. Even if armed force is necessary, the extent of that 

be diminished by on-going or future law enforcement activities. In 

terrorist operations, law enforcement and military force can act s

cally, thereby reducing the level of force that needs to be applied (a

ing its nature). For instance, law enforcement disruption of a n

terrorist cells within an organization may lessen the extent (number

etc.) of military strikes that need to be conducted. That is exactly w

pened in the aftermath of 9/11. Thousands of potential terrorists wer

or detained worldwide, thereby dramatically reducing the need to 

force in countering future terrorism.

Were the strikes against al Qaeda proportionate, particularly in li

extensive parallel law enforcement campaign? Clearly, they were. 

forces in Afghanistan numbered in the thousands and were widely 

Moreover, to be disproportionate, the use of force would have had to 

sive in relation to the degree of force actually needed to prevent co

of al Qaeda’s terrorist campaign. As of June 2002, al Qaeda forces 

the field, periodically engaging coalition forces, albeit in small uni

Further, intelligence sources have reported that mid-level al Qaeda o

have pulled the organization back together again and are forging 

with other terrorist groups. The organization reportedly “is as capab

ning and carrying out potent attacks on U.S. targets as the more c

network once led by Osama bin Laden.”85 So, despite the success o

tional law enforcement and military efforts, al Qaeda remains a v

threat, continuing to operate from bases in any number of coun

group may have been gravely wounded, but it would be highly pre

contend the wounds are fatal.

That said, the increasing effectiveness of international counte

law enforcement efforts and the fact that the fight may now need to 

outside the borders of Afghanistan do raise questions regarding th

tionality of future military efforts. Using an extreme example for the 

lustration, one might question the proportionality of a large scal

operation mounted into an uncooperative state which refuses to ha

small number of low-level operatives. The action might be necess

sense that diplomacy and law enforcement offered slim prospects 

37

85. David Johnson et al., Qaeda Lieutenants Form Terror Alliance, INT’L HERALD TR

17, 2002, at 1.

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them out of the terrorist network, but the extent of the use of force 

pear to be more than reasonably required to accomplish the objectiv

Imminency. As noted above, it would make little sense to evaluate 

rorist attack individually in every case. Doing so would deny the re

most conflict, even conventional conflict between states, is a series o

ments, with contact repeatedly made and broken. This being so, in m

ations it may be reasonable to conclude that an attack was merely th

shot in an overall campaign that in itself constitutes a single on-goi

attack.

That is exactly the case with regard to the 9/11 attacks. Al Qaeda 

involved in terrorism against US assets for a decade, terrorism that r

extensive property damage, loss of life and injury. Although there w

hiatus between attacks, they did occur with some regularity. In lig

record, it is absurd to suggest al Qaeda would terminate the camp

achieving its most significant victory; logic would impel just the opp

clusion. Additionally, not only did al Qaeda’s own statements style c

attacks as a religious duty, one of the organization’s central objecti

drawal of US and coalition forces from Islamic territory, remained u

Since 9/11, multiple al Qaeda related plots have been uncovered 

most recently that involving use of a “dirty (radiological) bomb” aga

population center.86 Thus, it is not necessary to speculate on wheth

attacks were likely and imminent on October 7th; they clearly wer

main so).

Cross-border counter-terrorist operations. While it is appropriate 

self-defense to acts committed by non-state actors, and though the a

of criminal law enforcement responses does not preclude doing so, s

state actors possess no territory as a matter of international law (th

fact), can the victim state enter another state’s territory in order to 

self-defense operations? The answer requires balancing the rights a

of the respective states involved. The state in which the terrorists a

has a right of territorial integrity. This well-established customary 

tional law right creates corresponding duties in other states. For inst

ticle 2(4) of the UN Charter prohibits the threat or use of force a

“territorial integrity . . . of any State.”87 Commentators generally a

38

86. On the continuing operations of the organization, see David Johnston et al., Q

Links Increase Threats From Far-Flung Sites, N.Y. TIMES, June 16, 2002, at 1.

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

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the prohibition extends to any non

consensual penetration of a sta

tory, not simply those intended to seize parts of that territory.88 No

ance may amount to an act of aggression.89

However, the state victimized by terrorism has a right to self-de

one would dispute that a state forfeits a degree of its right to territo

rity when it commits acts that vest the right to self-defense in anothe

least to the extent necessary for self-defense to be meaningful. Thus, 

attack by state A may justify the crossing of state B’s military forces 

A to put an end to the attack.

Lest the right to self-defense be rendered empty in the face of ter

certain circumstances the principle of territorial integrity must yield 

self-defense against terrorists. Putting aside the issue of when the a

rorists may be ascribed to a state, thereby justifying self-defens

against that state, the balancing of self-defense and territorial int

pends on the extent to which the state in which the terrorists are lo

complied with its own responsibilities vis-à-vis the terrorists.

As John Basset Moore noted in the Lotus case, “it is well settled th

is bound to use due diligence to prevent the commission within its d

of criminal acts against another nation or its people. . . .”90 This prin

been reflected in numerous pronouncements on terrorism. For inst

1970 Declaration on Friendly Relations urges each state to 

from . . . acquiescing in organized activities within its territory direct

39

88. Randelzhoffer, Article 2(4), supra note 42, at 117. See also Declaration on P

International Law Concerning Friendly Relations and Cooperation Among 

Accordance with the Charter of the United Nations:

Every State has a duty to refrain in its international relations from the threat o

force against the territorial integrity or political independence of any state, o

other manner inconsistent with the purposes of the United Nations. Such a th

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

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)

65 AM. J. INT’L L. 243 (1971) and in KEY RESOLUTIONS OF THE UNITED NATION

ASSEMBLY, 1946–1996 (Dietrich Rauschning, Katja Wiesbrock & Martin Lailach ed

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

89. Aggression is the use of “armed force by a State against the... territorial int

another State.” Definition of Aggression, anx, art. 1, G.A. Res. 3314 (XXIX), U.N. G

Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1975), 13 INT’L LEG. MAT’L 

Additionally, pursuant to Article 3, aggression includes “[t]he invasion or attack b

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., disse

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the commission of [terrorist acts in another state],

a proscription 

the 1994 Declaration on Measures to Eliminate Terrorism.92 In the c

the instant case, recall the 1999, 2000 and 2001 Security Council re

condemning the Taliban’s willingness to allow territory they contro

used by al Qaeda.

Should a state be unable or unwilling to comply with this oblig

victim state is then permitted to enter the territory of the state wher

rorists are located for the limited purpose of conducting self-defen

tions against them. This is only logical, since the unwillingness or in

state A to comply with the requirements of international law canno

be deemed to deprive state B of its authority to defend itself against 

attack, the seminal right of the state-centric international normat

tecture. Of course, all requirements of self-defense must be met. T

be an on-going armed attack (or armed campaign), no reasonable a

to the penetration of state A’s territory for the purpose of using for

the terrorists can exist, and the force used has to be limited to that 

to accomplish the defensive objectives. Once those objectives are 

state B must immediately withdraw because at that point there is n

self-defense to justify its “violation” of state A’s territorial integrity. F

during the self-defense operations, state A takes actions that com

its obligation to deny use of its territory to terrorists, state B’s rig

defense will diminish accordingly. Finally, state A may not interfere 

self-defense operations, as state B is simply exercising a right unde

tional law. Since state B’s use of force is lawful, any other state’s us

against it would constitute an “armed attack.”93

In fact, there have been numerous instances of states exercising 

help right of self-defense. In the aftermath of the coalition operatio

40

91. Declaration on Friendly Relations, supra note 88.

92. Declaration on Measures to Eliminate International Terrorism, G.A. Res. 

GAOR 6th Comm., 49th Sess., 84th plen. mtg., U.N. Doc. A/49/743 (1994); De

Supplement the 1994 Declaration on Measures to Eliminate International Terrorism

51/210, U.N. GAOR 6th Comm., 51st Sess., 88th plen. mtg., U.N. Doc. A/51/631 

93. Professor Robert Turner perceptively offered an analysis along these lines in the 

the September 11th attacks. Robert F. Turner, International Law And The Use 

Response To The World Trade Center And Pentagon Attacks, JURIST, availabl

jurist.law.pitt.edu/forum/forumnew34.htm (Jun. 18, 2002). On the subject of self-h

Guy B. Roberts, Self-Help in Combating state-Sponsored Terrorism: Self Defense an

Reprisals, 19 CASE W. RES. J. INT’L L. 243 (1987); Franz W. Paasche, The Use 

Combating Terrorism, 25 COLUM. J. TRANSNAT’L L. 377 (1987); Oscar Schachter

Territorial Use of Force against Terrorist Bases, 11 HOUS. J. INT’L L. 309 (1989).

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al Qaeda, the most often cited has been US General John Pershin

cessful 1916 foray into Mexico after Pancho Villa and his bandits 

Americans in New Mexico. At the time, Mexico was in the midst of 

tion and, thus, incapable of effectively controlling Villa. Note that 

can government asked the US forces to withdraw three months 

entered Mexican territory, a demand refused on the basis of Mexico

to police Villa. Similarly, during the Vietnam conflict, the United S

ducted aerial and ground attacks against enemy forces that had sou

in Cambodia. Although criticized widely, such criticism was arguably 

product of general anti-war fervor, than concern over the legality of t

tions.94 In another example, Israel conducted airstrikes against PLO f

Tunisia during 1985 on the grounds that the PLO was using Tunisia a

operations for terrorist attacks on Israel—with the acquiescence of the 

government.95 The Security Council, with the United States abstain

demned the bombings as an “act of armed aggression perpetrated 

against Tunisian territory in flagrant violation of the Charter of the U

tions, international law and norms of conduct” in a 14–0 vote.96 Whe

cern centered on the alleged violation of international law or on the 

the operation posed a “threat to the peace and security in the Medi

region”97 (and on general hostility to Israel) remains an open questio

Political unacceptability instead of normative concern also drove 

ternational criticism of South Africa’s operations against African 

Congress groups based in Angola during the 1970s.98 Similarly, th

tional community was unsupportive as Turkey mounted regular i

into Northern Iraq against Kurdish terrorists throughout the 1990s. 

South African case, opposition arguably was driven by factors other 

legal acceptability of crossing into Iraq. At the time there was de 

concern over violation of Iraq’s territorial integrity, as Iraqi fo

41

94. On the Cambodian incursions, see Timothy Guiden, Defending America’s 

Incursion, 11 ARIZ. J. INT’L & COMP. L. 215 (1994); John Fried, United States Military 

in Cambodia in the Light of International Law, reprinted in 3 THE VIETNAM 

INTERNATIONAL LAW 100 (Richard Falk, ed. 1972); International Law and Militar

Against Insurgents in Neutral Territories, 68 COLUM. L. REV. 1127 (1968).

95. See statement of [then] Israeli Ambassador to the UN, Benjamin Netanyahu, U

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

53 (1999); G.A. Res. 45/150, U.N. GAOR, 3d Comm., 45th Sess., 69th plen. mtg., U

Res/45/150 (1990).

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government officials were already excluded from the area due to thei

sion of the Kurds. Rather, criticism most likely derived from irritatio

terference with the relief and no-fly operations in northern Iraq99 an

over a track record of human rights abuses against the Kurds durin

military operations conducted in Southeastern Turkey.100

Most recently, the United States launched raids on terrorist facili

ghanistan and Sudan following the 1998 bombings of the US em

Nairobi and Dar-es-Salaam.101 Although the cruise missile strike aga

Shifa pharmaceutical plant in Sudan (it was allegedly involved in 

weapons production) was criticized, most censure surrounded the a

validity of the claim of a connection between the plant and interna

rorism, not the violation of Sudanese territory;102 the attacks against 

training bases in Afghanistan evoked little condemnation. Nor did 

pursuit of Hutu guerrillas in the Democratic Republic of Congo by 

forces following a massacre of foreign tourists,103 although the inte

ization of the conflict did draw international concern and resulted i

patch of a peacekeeping force by the Security Council.104

Of greatest normative relevance on the issue of cross-border 

terrorist operations is the famous Caroline incident cited above in 

the core requirements of self-defense.105 Recall the facts. In 1837 a 

was underway in Canada against the British. Some of the rebels wer

the United States. The British attempted to negotiate with the 

side, in particular the Governor of New York, to no avail. At that p

42

99. First Operation PROVIDE COMFORT, later NORTHERN WATCH. The author w

advocate of the operations during this period.

100. See, e.g., Department of State, 1999 Country Reports on Human Rights Practi

available at http://www.state.gov/www/global/human_rights/1999_hrp_report/turke

18, 2002).

101. Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 YAL

559 (1999); Leah M. Campbell, Defending Against Terrorism: A Legal Analysis of th

Strike Sudan and Afghanistan, 74 TUL. L. REV. 1067 (2000).

102. On the confusion surrounding whether the facility was involved in terrorist a

Vernon Loeb, U.S. Wasn’t Sure Plant Had Nerve Gas Role; Before Sudan Strike, CIA 

Tests, WASH. POST, Aug. 21, 1999, at A1.

103. Reisman, supra note 98, at 54.

104. In S. C. Res. 1291, U.N. SCOR, 55th Sess., U.N. Doc. S/1291/(2000), 

authorized the United Nations Organization Mission in the Democratic Republic o

For details and background, see http://www.un.org/Depts/dpko/monuc/monuc_bod

18, 2002).

105. On the Caroline incident in the context of the issue at hand, see Reisman, supra 

42–47. On the facts, see R.Y. Jennings,The Caroline and McLeod Cases, 32 AM. J. INT’L L

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mounted a small raid (80 men) into the United States where they 

Caroline, a vessel used by the rebels and their supporters. The shi

ablaze and sent over Niagara Falls.

The incident generated a fascinating correspondence over the ne

years between the British Foreign Office and the United States Depa

State. The issue in dispute, though, was not whether the British co

mately cross into the United States for the limited purpose of attacki

bels. Instead, controversy focused on the circumstances permitting th

so and how. As Lord Ashburton, the Foreign Minister, wrote to his 

terpart, Daniel Webster:

I might safely put it to any candid man, acquainted with the existing 

things, to say whether the military commander in Canada had the r

reason, on the 29th day of December, to expect to be relieved from this 

suffering by the protective intervention of any American authority. H

could a Government, having the paramount duty of protecting its own 

be reasonably expected to wait for what they had then no reason to exp

Ashburton’s premise that crossing the border was proper in the abse

fective action by the authorities where the rebels were based wen

lenged, with Webster simply asserting that the action had been exces

particular circumstances of the case.107

43

106. Letter from Lord Ashburton to Daniel Webster (July 28, 1842), 30 BRITISH AN

STATE PAPERS 195.

107. A necessity of self-defence, instant, overwhelming, leaving no choice of means

moment for deliberation. It will be for it to show, also, that the local autho

Canada, even supposing the necessity of the moment authorized them to e

territories of The United States at all, did nothing unreasonable or excessive; s

act, justified by the necessity of self-defence, must be limited by that necessity, a

clearly within it. It must be shown that admonition or remonstrance to the per

board the Caroline was impracticable, or would have been unavailing; it must b

that day-light could not be waited for; that there could be no attempt at discrim

between the innocent and the guilty; that it would not have been enough to s

detain the vessel; but that there was a necessity, present and inevitable, for a

her in the darkness of the night, while moored to the shore, and while unarm

were asleep on board, killing some and wounding others, and then drawing her 

current, above the cataract, setting her on fire, and, careless to know wheth

might not be in her the innocent with the guilty, or the living with th

committing her to a fate which fills the imagination with horror. A necessity for 

the Government of The United States cannot believe to have existed.

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

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Therefore, quite aside from the trinity of self

defense criteria, Ca

ports the principle that a state suffering attack from non-state actors i

may, after seeking assistance from that state (assuming the request

capable of doing so), enter its territory for the limited purpose of preve

ther attacks, although its actions must be necessary and proportio

practice seems guardedly consistent. Objections to such limited case

occurred are usually attributable to political, vice normative, motiv

course, in fairness, the same could be said regarding the relative absen

cism when penetrating the territory of ostracized states, such as Afgha

operations against organizations which enjoy no consequential sup

members of the international community, such as al Qaeda. The bette

tation, however, is that, as a general matter, state practice, beginnin

Caroline case, supports the approach posited.

Do US and coalition operations in Afghanistan comport with 

dard? Recall the Security Council’s pre and post 9/11 demands 

Taliban cease allowing territory they controlled to be used as a terr

and that they cooperate in bringing Osama bin Laden and al Qaeda 

Recall also the US demands that the Taliban unconditionally surr

Laden and other al Qaeda leaders and grant the United States suff

cess to terrorist bases to ensure their inoperability. In reply, the T

gime first stated it wished to see the evidence linking bin Laden to 

attacks.108 As the likelihood of US strikes drew closer, the Taliban 

that they had Osama bin Laden and might be willing to negotiate

about turning him over to a third country. The United States again s

only an unconditional surrender of bin Laden and other al Qaed

would suffice.109 After the coalition attacks commenced, the Taliban 

the offer. However, the US administration maintained its no-ne

stance.110

Were the US demands, particularly in that they were unconditio

cient? It might be argued that no demand at all was necessary, for on 

occasions the Security Council had insisted that the Taliban comply 

44

108. Murphy, Contemporary Practice 2002, supra note 39, at 244. The situation cau

within the Taliban and Afghan religious leadership. Clearly, unanimity did not exist 

respond to the US demands. John F. Burns, Afghans Coaxing bin Laden, But U.S. Re

Bid, N.Y. TIMES, Sep. 21, 2001, at A1.

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

110. Elisabeth Bumiller, President Rejects Offer By Taliban For Negotiations, N.Y. TIM

2001, at A1.

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measures sought by the United States. Consider, for instance, the 

unambiguous language in Security Council Resolution 1333 (2000)

[The Security Council] Demands . . . that the Taliban comply without 

delay with the demand of the Security Council in paragraph 2 of resolutio

(1999) that requires the Taliban to turn over Usama bin Laden to app

authorities in a country where he has been indicted, or to app

authorities in a country where he will be returned to such a countr

appropriate authorities in a country where he will be arrested and eff

brought to justice;

Demands further that the Taliban should act swiftly to close up all camp

terrorists are trained within the territory under its control, and calls 

confirmation of such closures by the United Nations, inter alia, 

information made available to the United Nations by Member St

accordance with paragraph 19 below and through such other mean

necessary to assure compliance with this resolution....111

Extended non-compliance with the Security Council demands 

provided a good faith basis for determining that further exhortatio

prove fruitless. However, the Council’s insistence was made in the c

cooperative law enforcement (albeit in the face of a threat to inte

peace and security) rather than self-defense. Therefore, the most 

position is that while non-compliance strengthened the political ca

tion by the Security Council under Chapter VII, a separate deman

quired for action by a state pursuant to the right to self-defense.

As noted, the United States made one. Unconditionality was cert

sonable in the circumstances. The United States had just suffered 

dous terrorist attack, with every reason to believe more were immin

Taliban request for evidence of al Qaeda’s complicity might have m

but for the previous Security Council resolutions, which clearly ren

request superfluous. Moreover, the United States government, w

been conducting talks with the Taliban since 1996 over the pr

al Qaeda in Afghanistan, had previously provided evidence of al Qaed

sibility for the 1998 bombings of the two US embassies in East Africa—

quest of Taliban officials.112 The provision of that evidence, and the c

talks, had no discernible affect on the Taliban’s continued harboring 

rorist organization.

45

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.

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Additionally, unless the Taliban regime controlled al Qaeda a

which it did not, post 9/11 negotiations would merely have extended 

dow of vulnerability for the United States. If the right to self-defense 

meaningful in these circumstances, the United States needed to act 

as possible. This meant that either the Taliban should have complied 

demands promptly or acknowledged they lacked the capability to 

stood aside as the United States entered Afghanistan to engage al Q

In other words, the adequacy of a request to the state in which ter

located, as well as the sufficiency of the response thereto, must b

contextually. Have there been prior requests? For what? What is the 

relations between the requesting and requested state? Between th

group and the state in which it is located? What capability does the 

state have to counter or control the terrorists? What is its track rec

ing so? What are the nature and the imminency of the threat by the 

against the requesting state? Under the circumstances, the US decis

tack al Qaeda on October 7th, despite Taliban quibbling over the U

to turn over members of the organization, was reasonable an

defensible.

There are two other circumstances in which it is unquestionable 

state can enter the territory of another to conduct defensive counte

operations. The first is upon invitation, though any such operati

have to comply with the relevant provisions of human rights and h

ian law, as well as any conditions imposed by the host state.113 Obvio

did not occur in the case of Afghanistan. More problematic is the si

which the terrorist group acts on behalf of the state such that its at

be deemed those of the state itself. As in traditional armed attacks 

actor, the sole question regarding the penetration of the attacker’s t

whether cross-border operations are necessary, proportional and in 

to an armed attack. To the extent the state could be attacked in sel

so too can the terrorist group that actually executed the armed attac

sue of Taliban support for al Qaeda is considered in the following se

Summarized, the campaign against al Qaeda in Afghanistan is a 

exercise of the right to individual and collective self-defense. The 

tends to armed attacks from whatever source, the 9/11 attacks met th

old requirement of being “armed,” crossing into Afghanistan was ap

46

113. On the conduct of forces in another country, see THE HANDBOOK OF TH

VISITING FORCES (Dieter Fleck ed., 2001).

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once the Taliban failed to police the territory they controlled, th

were necessary and proportionate, and they occurred in the face of 

nent, credible continuation of an al Qaeda campaign that had been 

for a period measured in years.

Operations Against the Taliban

In his address to a Joint Session of Congress on 20 September, Presid

uttered his ominous warning that “[e]ither you are with us, or you ar

terrorists. From this day forward, any nation that continues to harb

port terrorism will be regarded by the United States as a hostile r

When the attacks began, the United States cited the Taliban’s decis

low the parts of Afghanistan that it controls to be used by [al Qaeda

of operation,” a policy which the Taliban refused to alter despite rep

treaties to do so, as justification for their actions.115 It should be not

June 2001 the United States had already warned the Taliban regim

would be held responsible for any terrorist acts committed by terror

was sheltering.116

The United Kingdom has released the most extensive informatio

regarding the relationship between al Qaeda and the Taliban.117 A

provided troops, weapons and financing to the Taliban for its conflic

Northern Alliance. The organization was also reportedly involved in 

ning and execution of Taliban operations, assisted in training Talib

and had representatives assigned to the Taliban command and con

ture. Additionally, al Qaeda was a source of “infrastructure assistanc

manitarian aid.”118 In return, the Taliban granted al Qaeda safe ha

base for its terrorist training camps; essentially, al Qaeda enjoyed fr

do as it pleased in Taliban controlled territory. Further, the two gro

erated closely in the drug trade, with the Taliban providing se

al Qaeda’s drug stockpiles.119 Was this relationship such that co

47

114. President George W. Bush, Address Before a Joint Session of the Congress, supr

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 P

10 Downing Street Newsroom, Responsibility for the Terrorist Atrocities in the United 

14, 2001, available at http://www.pm.gov.uk/news.asp?NewsId=3025 (Jun. 18, 200

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

119. Id., para. 13.

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military operations against the Taliban on October 7th was a legitim

cise of the use of force by the United States and United Kingdom?

State Responsibility. Unfortunately, there has been much confu

rounding the relationship between Taliban obligations and th

mounted against them on October 7th. In the discussion of se

against al Qaeda, it was noted that the Taliban had a duty to keep t

tory from being used as a base of terrorist operations. Failure to co

that duty in part justified penetrating Afghan territory when att

Qaeda, albeit only to conduct operations against al Qaeda. If the Tal

incapable of stopping al Qaeda, then they would incur no respons

their failure to address the situation.

On the other hand, if capable, but unwilling, the Taliban would be 

ble for their failure under the international law of state responsibili

duty to desist from assisting terrorists in any way is manifest. In 1996 

eral Assembly articulated this duty in the Declaration on the Strengt

International Security. Specifically, it stated that:

States, guided by the purposes and principles of the Charter of the 

Nations and other relevant rules of international law, must refra

organizing, instigating, assisting or participating in terrorist acts in terri

other States, or from acquiescing in or encouraging activities with

territories directed towards the commission of such acts.121

In doing so, it echoed earlier exhortations in the 1970 Friendly 

Declaration122 and its 1965 progenitor, Resolution 2131 (1965). 1

48

120. On the issue of state responsibility, see Gregory Townsend, State Responsibility f

Facto Agents, 14 ARIZ. J. INT’L & COMP. L. 635 (1997); Ian Brownlie, International 

Activities of Bands,7INT’L & COMP. L. QTRLY 712 (1958).

121. Declaration on Measures to Eliminate International Terrorism, G.A. Res. 

GAOR, 6th Comm., 49th Sess., 84th plen. mtg., U.N. Doc. A/49/743 (1994); De

Supplement the 1994 Declaration on Measures to Eliminate International Terrorism

51/210, U.N. GAOR, 6th Comm., 51st Sess., 88th plen. mtg., U.N. Doc. A/51/631 

122. “Every state has the duty to refrain from organizing, instigating, assisting or par

acts of civil strife or terrorist acts in another state or acquiescing in organized activit

territory directed towards the commission of such acts, when the acts referred to in 

paragraph involve a threat or use of force.” Declaration on Friendly Relations, su

prin. 1.

123. “No state shall organize, assist, foment, finance, incite, or tolerate subversive

armed activities directed toward the violent overthrow of another regime. . . .” G.A

2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 107, U.N. Doc. A/6221 (1965).

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prohibitions can be found in Article 2(4) of the International Law 

sion’s 1954 Draft Code of Offenses against the Peace and Securit

kind.124

Case law supports these declarations. Most notably, in the Corfu 

case the International Court of Justice held that “every State has 

tion to not knowingly allow its territory to be used in a manner contr

rights of other States.”125 Corfu Channel involved an incident in w

British destroyers struck mines in Albanian waters while transiting 

Strait in 1946. Though the evidence was insufficient to demonstrat

Albanians laid the mines, the Court nevertheless held that they had 

gation to notify shipping of the danger posed by the mines. Albania’s 

do so represented an internationally wrongful act entailing the inte

responsibility of Albania. Other case law and arbitral decisions 

cord.126

Applying the Corfu Channel principle to the case of terrorism, s

permit their territory to be used as a base of operations for terrorist ac

other countries have committed an international wrong. There is no 

that Taliban acquiescence in allowing Afghan territory to be used by 

49

124. The organization, or the encouragement of the organization, by the authorit

State, of armed bands within its territory or any other territory for incursions 

territory of another state, or the toleration of the organization of such bands in 

territory, or the toleration of the use by such armed bands of its territory as a 

operations or as a point of departure for incursions into the territory of another S

well as direct participation in or support of such incursions.

Draft Code of Offenses Against the Peace and Security of Mankind, art. 2(4), availa

www.un.org/law/ilc/texts/offfra.htm (Jun. 18, 2002).

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

126. See discussion in JAMES CRAWFORD, THE INTERNATIONAL LAW CO

ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTA

(2002). Article 2 of the International Law Commission’s Articles on State R

(adopted by the Commission in 2001) provides that “There is an internationally wron

State when conduct consisting of an act or omission: (a) is attributable to the 

international law; and (b) constitutes a breach of an international obligation of 

International Law Commission, Articles on State Responsibility, reprinted in id. a

elements have been articulated in a number of tribunals. Among those referenced sp

Professor Crawford are: Phosphates in Morocco, Preliminary Objections, 1938, P.C.I

B, No. 74, p. 10; United States Diplomatic and Consular Staff in Tehran, I.C.J. Rep

3; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), M

Reports 1986, p. 14, 117–118, para. 226; Gabcikovo-Nagymaros Project (Hungar

I.C.J. Reports 1997, p. 7, 54, para. 78.

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assuming arguendo that their conduct is attributable to the 

Stateof 

stan,127 created responsibility under international law for that wro

Does this responsibility justify the October 7th attacks by the Uni

and the United Kingdom?

Despite occasionally loose discussion of the subject in the afterm

11, the existence of state responsibility for an international wrong 

justify the use of force in self-help to remedy the wrong. Tradition

tions for an international wrong come in the form of restitution, com

or satisfaction.128 It is also permissible to take countermeasures in re

an internationally wrongful act.129 Countermeasures are “measur

would otherwise be contrary to the international obligations of th

State vis-à-vis the responsible State if they were not taken by the for

sponse to an internationally wrongful act by the latter in order to pro

sation and reparation.”130 Various requirements, such as the existe

on-going wrong,131 proportionality of the countermeasure to the i

fered,132 and a call on the state committing the wrong to compl

obligations133 apply to the taking of countermeasures.

But it is generally agreed that countermeasures employing armed 

prohibited.134 Article 50 of the Articles on State Responsibility s

provides that “Countermeasures shall not affect . . . the obligation 

from the threat or use of force as embodied in the Charter of the U

tions.”135 This provision tracks the holding in Corfu Channel. T

50

127. The Commentary to the ILC Articles on State Responsibility describes a “stat

organized entity, a legal person to act under international law.” Crawford, supra not

(para. 5 of commentary to art. 2).

128. Articles on State Responsibility, supra note 126, arts. 34–37. Restitution is re

“the situation which existed before the wrongful act was committed” (art. 35); com

covering any financially assessable damage not made good by restitution (art. 36); sa

“an acknowledgement of the breach, an expression of regret, a formal apology 

appropriate modality” that responds to shortfalls in restitution and compensation w

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 

agents into a state to apprehend a terrorist who that state wrongfully refused to extr

Ellen O’Connell, Lawful Responses to Terrorism, JURIST, available at http://jurist.l

forum/forumnew30.htm (Jun. 18, 2002).

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

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International Court of Justice held that Albania

s failure to comply w

sponsibility did not justify the British minesweeping of the Strait, a

therefore constituted a violation of Albanian sovereignty. Thus, bre

obligation not to allow Afghanistan to be used as a base for terrorist 

did not, alone, justify use of force against the Taliban.

An identical analysis would apply in assessing whether the a

al Qaeda in conducting the 9/11 (and other) attacks can be attribu

Taliban under the law of state responsibility. The International Law 

sion’s Articles on State Responsibility set forth the standards for im

armed group’s acts to a state for the purpose of assessing state resp

Two are relevant here.

Article 8 provides that the “conduct of a person or group shall b

ered an act of a State under international law if the person or group 

is in fact acting on the instructions of, or under the direction or c

that State in carrying out the conduct.”136 This was the issue in the 

case, where Nicaragua argued that the United States was responsi

international law for violations of humanitarian law committe

Contras, the anti-Sandinista rebel group it supported. After findin

United States had provided “subsidies and other support”, the C

that:

United States participation, even if preponderant or decisive in the fin

organizing, training, supplying and equipping of the contras, the selecti

military or paramilitary targets, and the planning of the whole of its oper

still insufficient in itself, . . . for the purpose of attributing to the Unite

the acts committed by the contras in the course of their military or para

operations in Nicaragua. All the forms of United States partic

mentioned above, and even the general control by the respondent stat

force with a high degree of dependency on it, would not in themselve

without further evidence, that the United States directed or enfor

perpetration of the acts contrary to human rights and humanitarian law 

by the applicant State. . . . For this conduct to give rise to legal responsi

the United States, it would in principle have to be proved that that St

effective control of the military or paramilitary operations in the course o

the alleged violations were committed.137

Aside from the Contras, certain individuals, not of US nationa

paid by the United States and directly instructed and supervise

51

136. Id., art. 8.

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

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military and intelligence personnel. For instance, they carried out su

tions as mining Nicaraguan ports. The Court easily found their actio

able to the United States, either because they were paid and instruc

US, and were therefore agents thereof, or because US personnel had 

pated in the planning, direction, support and execution” of particu

tions.138

The evidence released to date regarding Taliban ties to al Qaeda 

suggest that al Qaeda was under the direction or control of the Talib

ducting the 9/11 attacks or any other acts of international terrorism

some have suggested precisely the opposite—that it was the Taliban 

dependent on al Qaeda, both financially and militarily. While that 

more accurate characterization, such dependency bears little direc

tion to al Qaeda’s international terrorist campaign.

Article 11 sets forth a second possibly relevant standard. It pro

“[c]onduct which is not attributable to a State under the preceding ar

nevertheless be considered an act of that State under international law 

the extent that the State acknowledges and adopts the conduct as it

This principle lay at the core of the International Court of Justice’s D

and Consular Staff case.140 There the Court held that the Iranian gover

olated its responsibility to prevent the 1979 seizure by militant stude

US Embassy in Tehran and subsequently failed to meet its obligat

promptly in ending the seizure.141 Following the takeover, the Irania

ment, including its leader, the Ayatollah Khomeni, expressed appro

student actions. Indeed, in a decree issued within two weeks of th

Khomeni declared that “the hostages would remain as they were unt

had handed over the former Shah for trial” and that “the noble Irani

will not give permission for the release...until the American Govern

according to the wish of the nation.”142 For the International Court 

“[t]he approval given . . . by the Ayatollah Khomeni and other organs 

nian state, and the decision to perpetuate them, translated continuin

tion of the Embassy and detention of the hostages into acts of that 

52

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

141. According to the court, Iranian authorities were “fully aware of their obligation

the premises of the U.S. Embassy and its diplomatic and consular staff from any attac

the means at their disposal to perform their obligations [but,] . . . completely failed 

Id., para. 68.

142. Id., para. 73.

143. Id., para. 74.

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Therefore, while the Iranian government breached its own obligations 

Embassy was taken, it became responsible for the seizure itself (or a

continuing occupation thereof) when it supported the student actions 

steps to continue the occupation.

Are the Taliban responsible for the 9/11 attacks under the princ

tribution of state responsibility? The level of Taliban support falls 

that of the Iranian government in the Embassy case. It did not exp

and public support for the attacks, nor did it ever assume control of t

ist campaign in the way that the Iranian government took control ov

of the US hostages. Further, although its military did conduct comb

tions against US and coalition forces in concert with al Qaeda, tha

after October 7th, following air attacks on its own facilities and per

By either of these two standards of state responsibility, it is difficult 

ute al Qaeda’s terrorist attacks to the Taliban. That said, any such ass

fact-dependant; unfortunately, many of the relevant facts tying the T

al Qaeda and vice versa remain either unreleased or as yet undiscove

ever, what must be remembered in discussions over the state respon

the Taliban is that the existence of responsibility in the general sense 

tion quite distinct from that of whether an armed attack has been com

that state, so as to justify self-defense by the state attacked. This is a 

point. The principles of state responsibility determine when a state m

responsible for an act and thus subject to reparations or countermea

as noted, forcible countermeasures are not an acceptable remedy for 

of state responsibility. That is so whether the issue is harboring a terro

or being responsible for an act committed by one.

Nevertheless, certain acts that generate state responsibility m

same time justify a violent response. Although forcible counterme

impermissible to make whole the victim or cause the wrongdoer to 

breaching an international obligation, the application of force ag

53

144. This reality explains why the prohibition on forcible countermeasures is reasonab

compensated for in those cases where one might most want to engage in them—when v

an armed attack—by the existence of the right to self-defense. Conversely, the various l

defense are compensated for by the fact that once the need for self-defense vanishes, t

committed the wrongful attack remains liable for the consequences under the 

responsibility. The classic example is the Iraqi invasion of Kuwait in 1990. In S. C. Re

SCOR, 46th Sess., U.N. Doc. S/681/(1991), the Security Council found that “Iraq . . . is 

international law for any direct loss, damage, including environmental damage and the 

natural resources, or injury to foreign Governments, nationals and corporations, as a re

unlawful invasion and occupation of Kuwait.” It subsequently established the Un

Compensation Commission to handle claims in S. C. Res. 692, 46th Sess., U.N. Doc. S/6

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wrongdoer may be justified as an act of self

defense in the face of an 

or on-going armed attack.144 Restated in the context of the present 

proper query in assessing the lawfulness of attacking the Taliban on 

7th is not whether the Taliban are in any way responsible under pri

state responsibility for the acts of 9/11. Rather, it is whether or not th

can be determined to have committed the armed attack under the l

defense.

Self-Defense. No evidence has been released to suggest that Talib

played a direct role in the attacks of 9/11 or any other al Qaeda o

Was the Taliban relationship with al Qaeda nevertheless such that t

ist acts constructively amounted to a Taliban armed attack?

The precise degree of association between a non-state organiz

state sponsor necessary for attribution of an armed attack to the stat

ter of some controversy.145 However, on September 11th, the most w

cepted legal standard on the issue was that set forth in the Nicara

That case was discussed earlier vis-à-vis the nature of an armed attac

as state responsibility. However, the International Court of Justic

dressed the issue of imputing an armed attack to a state.

In the case, the United States argued that Nicaragua had cond

armed attack against El Salvador through support to guerillas atte

overthrow the El Salvadoran government. This being so, US act

rected against Nicaragua were, so the argument went, legitimate ex

the right of collective self-defense with El Salvador. The Court rej

assertion, setting a high standard for attributing the actions of a non

tor to a state in the context of an armed attack.

There appears now to be general agreement on the nature of the acts wh

be treated as constituting armed attacks. In particular, it may be consid

be agreed that an armed attack must be understood as including not 

action by regular armed forces across an international border, but a

sending by or on behalf of a State of armed bands, groups, irregu

mercenaries, which carry out acts of armed force against another State 

gravity as to amount to” (inter alia) an actual armed attack condu

regular forces, “or its substantial involvement therein”. This desc

54

145. For instance, Oscar Schachter has argued “When a government provides weapo

advice, transportation, aid and encouragement to terrorists on a substantial sca

unreasonable to conclude that an armed attack is imputable to the government.” Osca

The Lawful Use of Force by a State Against Terrorists in Another Country, reprinted in HEN

TERRORISM AND POLITICAL VIOLENCE 250 (1993). See also Alberto Coll, The Leg

Adequacy of Military Responses to Terrorism, 81 PROC. AM. SOC. INT’L L. 297 (1987)

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, pgp(g), gg

to General Assembly resolution 3314(XXIX), may be taken to reflect cu

international law.146

By this standard, the state to which the acts are to be attribute

“substantially involved” in an operation that is so grave it would amo

armed attack if carried out by regular members of its armed forces. R

the earlier discussion of the holding that armed attacks are measure

of their scale and effects, and that the Court specifically held that 

sion of “weapons or logistical or other support” was insufficient. F

constitute an armed attack by the state, that state must have “sent” 

into action or it must be acting on the state’s behalf. These criteria 

the requirement under state responsibility that the group in questi

the instructions of, or under the direction or control of, the state to 

sponsibility is to be imputed. In this sense, the principles of state resp

can assist in determining whether specific conduct is an armed atta

It should be noted that the Court was not unanimous in its findi

notably, Judge Stephen Schwebel of the United States dissented, arg

there had been an armed attack:

The delictual acts of the Nicaraguan government have not been con

provision of very large quantities of arms, munitions and supplies (an ac

of itself might be viewed as not tantamount to an armed attack); Ni

(and Cuba) have joined with the Salvadoran rebels in the organ

planning and training for their acts of insurgency; and Nicaragua has p

the Salvadoran insurgents with command-and-control facilities, 

communications and sanctuary, which have enabled the leadership 

Salvadoran insurgency to operate from Nicaraguan territory. Und

customary and conventional international law, that scale of Nic

subversive activity not only constitutes unlawful intervention in the affa

Salvador; it is cumulatively tantamount to an armed attack upon El Salv

What seems to run through both the Court’s and Judge Schwebel

is that the state must at least exercise significant, perhaps determin

fluence over the group’s decision-making, as well as play a meaning

the specific operations at hand, before an armed attack will be imp

The facts asserted by Judge Schwebel suggest that Nicaragua not 

vided the means to conduct operations against El Salvador, but it d

55

146. Nicaragua, supra note 60, at 195.

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

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manner that would allow operations it helped plan to be mounted. F

organizing and planning the actions, Nicaragua occupied a central p

the decision-making hierarchy. By contrast, the Court focused alm

sively, as it did regarding the issue of state responsibility, on the exte

trol the state has over the specific actions of the group.

There seems to be little evidence that the Taliban “sent” 

against any particular targets or even that they provided the materi

gistic support that the Nicaragua Court found insufficient to amo

armed attack. In essence, the key contribution made by the Ta

granting al Qaeda a relatively secure base of operations. By the class

gua test, or even the lower standard advocated by Judge Schwebel, it 

difficult to argue that the Taliban, through complicity with a

launched an armed attack against the United States or any other 

Harboring terrorists is simply insufficient for attribution of an armed 

the harboring state. Rather, the situation appears to have been a m

convenience—convenient for al Qaeda’s conduct of external terr

and convenient for the Taliban’s control over territory within Af

and their battles with internal enemies.

One further judgment of relevance is that rendered by the Appea

ber of the International Criminal Tribunal for the Former Yugoslavia 

cutor v. Tadic. There the issue was whether acts of Bosnian Serb for

be attributed to Yugoslavia. The Chamber held that the degree of co

essary for attribution would vary according to the factual circumstan

case. Refusing to apply the Nicaragua approach in its entirety, the 

adopted a standard of “overall control going beyond the mere finan

equipping of such forces and involving also participation in the plan

supervision of military operations” for acts by an “organized and hier

structured group.”148 It felt the dual requirements of effective cont

group and the exercise of control over a specific operation were exce

cept in the cases of individuals acting alone or disorganized groups.

By way of caveat, it must be noted that Tadic involved neither sta

sibility nor the criteria for attribution of an armed attack. Rather, the 

whether the Bosnian Serb actions could be attributed to Yugoslavia 

there was an international armed conflict. The existence of such 

was a prerequisite for applicability of various aspects of humanitari

56

148. International Criminal Tribunal for Yugoslavia, Case IT-94-1, Prosecutor v

I.L.M. 1518 (1999), at paras. 120 & 145.

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the defendants before the tribunal. Because there was no jurispruden

issue, the Chamber turned to the law of state responsibility by way of 

Again, and though the opinion is only relevant by analogy to th

hand, it would appear that Taliban relations with al Qaeda did not r

level. Thus, al Qaeda actions do not appear imputable to the Taliban 

ter of state responsibility, as an armed attack or in the context 

caused an international armed conflict (although no doubt exists th

boring of the terrorists was an internationally wrongful act). It must b

sized, however, that this assessment is entirely fact-dependant, and 

is a relative paucity of reliable open-source information on the subje

To summarize, al Qaeda conducted an armed attack against th

States on September 11th. That attack activated the right of self-de

that continues as long as the terrorist campaign against the United S

reasonably be characterized as ongoing. Once attacked, the Unit

properly demanded that the Taliban turn over al Qaeda leaders and 

United States to verify that no further operations were ongoing 

country. When the Taliban failed to comply, the United States an

ners acquired the right to enter Afghanistan for the limited purpose 

an end to al Qaeda operations. Had it done so, and had the Taliban i

the interference would have amounted to a separate attack of its o

ever, from the evidence available, it does not appear that the Tal

sufficiently entwined with al Qaeda terrorist operations for the 9/11 

be imputed to it, thereby justifying the immediate use of force ag

Taliban. Were the attacks against the Taliban therefore illegal? Tha

uncertain matter.

The Evolving Standard of Self-Defense

There is little doubt that the response to the tragic events of 

ber 11th has tested accepted understandings of the international law 

the use of force. Many would dispute certain of the legal conclusion

above—that a terrorist group can mount an “armed attack”; that 

terrorist attacks can be treated as a single on-going attack; or that th

States and the United Kingdom were justified in forcibly crossing int

territory on October 7th. Indeed, this article has concluded that use o

rectly against the Taliban is difficult to fit within traditional understa

attribution of an armed attack.

57

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Such unease has led some to pronounce the traditional normati

dead in fact, if not in law. For instance, Michael Glennon has opine

the rules concerning the use of force are no longer regarded as obliga

states. Between 1945 and 1999, two-thirds of the members of the 

Nations—126 states out of 189—fought 291 interstate conflicts in whi

22 million people were killed. This series of conflicts was capped by the 

campaign in which nineteen NATO democracies representing 780 

people flagrantly violated the Charter. The international system has c

subsist in a parallel universe of two systems, one de jure, the other de fac

de jure system consists of illusory rules that would govern the use of force 

states in a platonic world of forms, a world that does not exist. The d

system consists of actual state practice in a real world, a world in whic

weigh costs against benefits in regular disregard of the rules solemnly pro

in the all-but-ignored de jure system. The decaying de jure catechism i

schematized and scholastic, disconnected from state behavior, and un

in its aspirations for state conduct.

The upshot is that the Charter’s use-of-force regime has 

collapsed....I suggest that Article 51, as authoritatively interpreted 

International Court of Justice, cannot guide responsible U.S. policy-m

the U.S. war against terrorism in Afghanistan or elsewhere.149

Professor Glennon’s thoughtful analysis exaggerates the de jure-d

vide. In fact, what has been happening over the past half-century is 

evolution in the global community’s understanding of the use of forc

This evolution has been, as it always is and always must be, respons

changing circumstances in which international law operates. Prac

not contradict law so much as it informs law as to the global commun

mative expectations. It is a phenomenon that is particularly import

ternational law because of the absence of highly developed co

entities and processes.

Consider the changing context in which use of force norms have 

In the immediate aftermath of the Second World War an under

preference for collective remedies to threats to international peace 

rity, remedies that would be executed through inclusive internation

tions, emerged—hence the United Nations and its restrictive us

regime. With the outbreak of the Cold War, and its resulting bipol

system fell into desuetude as the veto power of the permanent five 

58

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

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[P

5] rendered the Security Council impotent. States were there

pelled to engage in various forms of coercive self-help to perform 

would otherwise have been the preferred prerogative of the Counci

The demise of the Cold War removed two contextually determ

straining influences on the use of force. First, the Security Council 

vigorated because the zero-sum paradigm of the Cold War no longe

the first time in nearly 50 years, the P-5 could share common cause (

not find themselves inevitably in opposition). This meant that th

could assume its intended role in the maintenance of international p

security. The Council promptly did so, authorizing one major intern

fort to counter aggression, the 1990–91 Gulf War, and multiple 

forcement operations.

Second, the Cold War had imposed an implicit limitation on unila

of force—that they not threaten the fragile peace between East a

Thus, for example, whereas intervention was deemed inappropriate 

eral matter during the Cold War (it risked sparking a broader confli

vention within a zone of influence appeared more palatable (or as “

fellow’s business”). With this second constraint removed, states 

more willing to accept unilateral uses of force, as there is less c

spillover effects (as reflected by Operation ALLIED FORCE).

What happened is that the operational code regarding the us

shifted with the emergence of new geo-political circumstances. 

stances determine the viability of normative strategies for advanci

59

150. For instance, Michael Reisman has identified nine basic categories of unilateral 

that enjoyed a significant degree of community support: “self-defense, which has bee

quite broadly; self-determination and decolonization; humanitarian intervention; 

by the military instrument within spheres of influence and critical defense zo

sanctioned interventions within the territory of another state; use of the military in

the gathering of evidence in international proceedings; use of the military instrumen

international judgments; and counter measures, such as reprisals and retorsions.” 

Reisman, Criteria for the Lawful Use of Force in International Law, 10 YALE J. INT’L 

(1985). See also W. Michael Reisman, Article 2(4): The Use of Force in Contemporary 

Law, PROC. AM. SOC. INT’L L. LAW 74, 79–84 (1984–85); W. Michael Reisman, 

The Operational Code of Competence, 83 AM. J. INT’L L. 777 (1989).

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community values.

It is not that new law emerges or that old law fa

as much as it is that the understanding of the precise parameters o

evolves as it responds to fresh challenges or leverages new opportuni

international law is understood in light of the circumstances in whi

itself is a strength, not a weakness.

This is certainly true regarding responses to terrorism. During mu

Cold War, the pressing problem of violence outside the classic state

paradigm was guerilla warfare by insurgents against a government. B

had their clients, whether states or rebel groups, and in many cases 

flicts were proxy in nature. The geopolitical and normative appea

wars was that they tended to facilitate avoidance of a direct superpo

Thus, as demonstrated in Nicaragua, a very high threshold was set fo

ing rebel acts to their state sponsors or for characterizing assistance 

group as an “armed attack” legitimizing a victim state’s forceful respo

was a very practical approach. The bipolar superpowers were surely 

engage in such activity regardless of the normative limits thereon, 

scheme that avoided justifying a forceful response by the other sid

uted to the shared community value of minimizing higher order viol

result was creation of a legal fiction that states that were clearly party 

flict, were not.

To some extent, this paradigm was illustrated by community re

counter-terrorist operations. Consider Operation EL DORADO CAN

1986 air strikes against terrorist and Libyan government facilities by 

in response to the bombing of the La Belle discothèque in Berlin. T

leader, Muammar el Qadhafi, had previously praised terrorist 

60

151. Such as physical survival and security for individuals and the tangible or intan

on which they rely, human dignity, social progress and quality of life, and “the right 

shape their own political community.” These aims derive from those expressed in t

to the UN Charter:

To save succeeding generations from the scourge of war, which twice in our life-t

brought untold sorrow to mankind, and to reaffirm faith in fundamental human 

in the dignity and worth of the human person, in the equal rights of men and 

and of nations large and small, and to establish conditions under which just

respect for the obligations arising from treaties and other sources of internatio

can be maintained, and to promote social progress and better standards of life i

freedom.

U.N. CHARTER, pmbl. The final aim was articulated in W. Michael Reisman

Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and 

LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 26, 45 (Lori Damrosch 

Scheffer eds., 1991).

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Moreover, in advance of the attacks the United States intercepted c

cations to the Libyan People’s Bureau in West Berlin containing an 

attack Americans. Additional intercepts immediately preceding and 

the La Belle bombing provided further evidence of Libyan complicit

Despite Libya’s support of terrorism, international reaction to the 

ation, which was justified on the basis of self-defense, was overw

negative.153 Many of the United States’ closest allies were critical, wi

ceptions of the United Kingdom and Israel. The General Assembly 

resolution condemning the action, while Secretary-General Javier 

Cuellar issued a statement “deploring” the “military action by one 

state against another.”154 Viewed in the then-existing internationa

context, this was an unsurprising reaction. If state sponsorship of te

particularly ill-defined term given the bipolarity of the period) rose to 

of an armed attack justifying a forceful response in self-defense, th

both sides’ propensity to support opponents of their foe, the risk o

power affray grew.

However, the geopolitical context has changed dramatically in th

cade. Today there is but one superpower. Additionally, any antago

exists between it and other significant world players, such as R

China, is unlikely to erupt into open conflict. On the contrary, in m

the former antagonists are cooperating against common threats, a tr

trated by the recent creation of the NATO-Russia Council.155

Yet, as the likelihood of inter-state conflict receded, the relati

tance of the terrorist threat grew correspondingly. For the major p

the world scene, it was no longer attack by another state that domin

tegic risk assessment, but rather the spread of instability, particularl

the mechanism of non-international armed conflict, and the relate

61

152. Marian Nash Leich, U.S. Practice 80 AM. J. INT’L. L. 612, 633 (1986); Greg

American Bombing of Libya: An International Legal Analysis, 19 CASE WES. RES. J. 

(1987); Jeffrey A. McCredie, The April 14,1986 Bombing of Libya: Act of Self-Defense 

19 CASE WES. RES. J. INT’L L. 215 (1987); David Turndorf, The U.S. Raid on Liby

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 d

the international reaction. See also Stuart G. Baker, Comparing the 1993 U.S. Airstr

the 1986 Bombing of Libya: The New Interpretation of Article 51, 24 GA. J. INT’L & 

(1994).

154. Israelis Praise It While Arabs Vow to Avenge It, CHICAGO TRIBUNE, Apr. 16, 1

155. The NATO-Russia Council, approved in May 2002, is specifically tasked with 

terrorism. See Declaration by Heads of State and Government of NATO Membe

the Russian Federation, May 28, 2002, available at http://www.nato.int/do

b020528e.htm (Jun. 18, 2002).

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of terrorism, either domestic or international. Not surprising, norm

derstandings shifted accordingly.

That shift was dramatically illustrated by the deafening silence, 

at the outset of this article, over the issue of the lawfulness of the U

attacks of October 7th. Of course, some academic voices pointed to 

mative faultlines in the operations, but academe was by no means 

the subject. Media criticism was rare, as was that by important no

mental organizations. Most significantly, there was almost no state c

the actions; on the contrary, states scrambled to join the cause.

This reaction was a logical continuation of a trend evident in t

post-Cold War responses to terrorism. In 1993, a plot to assassina

President George Bush during a visit to Kuwait was foiled. Investig

gested Iraqi government involvement. In response, the Unite

launched cruise missiles against Iraqi intelligence facilities. Presiden

justified the action in the following terms:

This Thursday, Attorney General Reno and Director of Central Inte

Woolsey gave me their findings. Based on their investigation there is com

evidence that there was, in fact, a plot to assassinate former President B

that this plot, which included the use of a powerful bomb made in Ir

directed and pursued by the Iraqi intelligence service.

These actions were directed against the Iraqi Government, whi

responsible for the assassination plot. Saddam Hussein has demon

repeatedly that he will resort to terrorism or aggression if left uncheck

intent was to target Iraq’s capacity to support violence against the Unite

and other nations and to deter Saddam Hussein from supporting such 

behavior in the future. Therefore, we directed our action against the 

associated with Iraq’s support of terrorism, while making every e

minimize the loss of innocent life.156

Of course, Iraq is a unique case given that an international arme

with the United States had occurred in 1991 (and arguably continu

Nevertheless, the international community generally supported the 

62

156. President William Clinton, Address to the Nation on the Strike on Iraqi 

Headquarters, 29 WEEKLY COMP. PRES. DOC. 1180–81 (Jun. 26, 1993). For a

analysis on the state of international law regarding counter-terrorism in the wak

strikes, see Robert J. Beck and Anthony Clark Arend,“Don’t Tread On Us”: Internatio

Forcible State Responses To Terrorism, 12 WIS. INT’L L. J. 153 (1994). See also Robe

Taking Assassination Seriously: Did the United States Violate International Law in Resp

Iraqi Plot to Kill George Bush, 28 CORNELL INT’L L. J. 569 (1995).

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at least muted its criticism thereof. Of the P

5, only China expressed 

By contrast, support was voiced by, inter alia, the United Kingdo

Russia, Germany, Italy, Japan and South Korea, as well as the thre

states then sitting on the Security Council, Pakistan, Djibouti and 

Egypt, Jordan and Iran criticized the attack, but on the basis of the c

sualties caused.157

What is normatively remarkable is that the attack was somewhat 

able as a traditional exercise of self-defense, the legal basis assert

United States. It was in response to a plot that had already been foile

some of those directly responsible for executing it were behind ba

tionally, there was no assertion that this was but one phase in a c

campaign by the Iraqis against the United States. Interestingly, the 

Council appeared more interested in the facts of the case, which it r

found sufficient to establish Iraqi involvement, than in the legal suff

the US actions.158

A more viable argument legally would have been that an inte

armed conflict was still in existence between the United States 

punctuated only by a cease-fire agreement, the terms of which 

breached by Iraqi complicity in the plot. Curiously, that argument n

faced. Instead, Article 51 was the sole legal justification asserted, an 

that was relatively uncontested. It is also important to note that, a

the strict legal stylization, the strikes were characterized as deterre

pose, a warning to Iraq to desist from any further involvement in acts 

ism. This purpose has pervaded virtually every justification for strikin

terrorists over the past two decades.

The relative lack of criticism is all the more striking when contra

that generated by the 1986 attacks against Libya. Some 50 American

jured and two died in the La Belle Disco attacks. Further, prior to th

Qadhafi had threatened that the Libyans were “capable of exporting 

to the heart of America,” a threat repeated on multiple occasions

was no reason at the time to believe the Libyans would desist in the

of terrorism against the United States; indeed, such support contin

63

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

158. On the extent to which the Council was satisfied with the US evidence, see 

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, 19

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the strikes, most notably with the bombing of Pan Am 103 over Loc

Thus, the severity of the terrorist attack and the likelihood more w

coming make the Libya case more egregious than the plot again

Bush. Nevertheless, international reaction differed dramatically.

Further evidence of the trend came in 1998 in response to the bo

the US embassies in Nairobi and Dar es Salaam. Almost 300 people, 

12 Americans, perished in the attacks, which were tied to Osama b

and al Qaeda. In response, the United States launched cruise missi

against terrorist training camps in Afghanistan and a pharmaceut

suspected of involvement in chemical weapons production in Suda

day they were conducted, President Clinton announced his ration

dering the attacks:

First, because we have convincing evidence these groups played the key 

the Embassy bombings in Kenya and Tanzania; second, because these 

have executed terrorist attacks against Americans in the past; third, bec

have compelling information that they were planning additional t

attacks against our citizens and others with the inevitable collateral ca

we saw so tragically in Africa; and fourth, because they are seeking to 

chemical weapons and other dangerous weapons.161

Formal legal justification for the actions came in the required no

of the Security Council that actions in self-defense had been taken.

These attacks were carried out only after repeated efforts to convi

Government of the Sudan and the Taliban regime in Afghanistan to sh

terrorist activities down and to cease their cooperation with the bin 

organization. That organization has issued a series of blatant warnin

“strikes will continue from everywhere” against American targets, and w

convincing evidence that further such attacks were in preparation fro

same terrorist facilities. The United States, therefore, had no choice bu

64

160. The accused bombers were tried in Her Majesty’s Advocate v. Abdelbaset ali M

Megrahi and Al Amin Khalifa Fhimah, Scot. High Court of Justiciary at Camp Zei

1475/99. Megrahi was found guilty and sentenced to life imprisonment in Januar

Court accepted the allegation that he was a member of Libya’s Jamahariya Security O

In March 2002, Megrahi’s appeal was denied. Abdelbaset Ali Mohmed Al Meg

Majesty’s Advocate, Appeal Court, High Court of Justiciary, Appeal No: C104/01. N

over Libyan compensation for the victims’ families have been ongoing for some tim

Rob Crilly, Libya Denies Offer of (Pounds) 1.8bn Deal for Lockerbie Families, TH

(Glasgow), May 30, 2002, at 2.

161. President William Clinton, Remarks on Departure for Washington, D.C., fro

Vineyard, Massachusetts, 34 WEEKLY COMP. PRES. DOC. 1642 (Aug. 20, 1998).

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pgg , 

States has acted pursuant to the right of self defence confirmed by Artic

the Charter of the United Nations. The targets struck, and the tim

method of attack used, were carefully designed to minimize risks of co

damage to civilians and to comply with international law, including the 

necessity and proportionality.162

International reaction to the two strikes was telling. Although I

Libya, Pakistan,163 Russia and Yemen condemned them, Australia

Germany, Japan, Spain and the United Kingdom were supportive.16

words, support or condemnation tended to track political alignmen

United States. More normatively significant is the difference in the r

the two strikes. The League of Arab States’ Secretariat condemned t

against the Sudanese pharmaceutical factory, but not those against t

ist bases in Afghanistan.165 Similarly, Sudan, the Group of African S

Group of Islamic States and the League of Arab States individually 

Security Council to consider the attacks against the pharmaceutical 

send a fact-finding mission to Sudan, but did not do likewise vis

strikes into Afghanistan.166

The best explanation for the difference is revealed in the brouhah

lowed the strikes on the Sudanese factory. Almost immediately que

gan to surface in the press regarding the accuracy of US claims that 

65

162. Letter from the Permanent Representative of the United States of America to t

of the Security Council (Aug. 20, 1998), U.N. Doc. S/1998/780 (1998), availab

www.undp.org/missions/usa/s1998780.pdf (Jun. 18, 2002).

163. Pakistan protested the violation of its airspace. Letter from the Permanent Re

of Pakistan to the President of the Security Council, Aug. 24, 1998, U.N. Doc. 

(1998).

164. The international reaction is well-described in Sean D. Murphy, Contemporar

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 

Nations Addressed to the President of the Security Council, Aug. 21, 1998, U.N. D

789 (1998).

166. Letter from the Permanent Representative of the Sudan to the United Nations A

the President of the Security Council, Aug. 21, 1998, U.N. Doc. S/1998/786, annex (1

from the Permanent Representative of Namibia to the United Nations Addressed to t

of the Security Council, Aug. 25, 1998, U.N. Doc. S/1998/802 (1998) (Group of A

request); Letter from the Charge d’Affaires A.I. of the Permanent Mission of Qatar t

Nations Addressed to the President of the Security Council, Aug. 21, 1998, U.N. Doc

(1998) (Group of Islamic states request); Letter from the Charge d’Affaires of the 

Mission of Kuwait to the United Nations Addressed to the President of the Security Co

21, 1998, U.N./ Doc. S/1998/791 (1998) (League of Arab States request).

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was tied to chemical weapon production. In the end, the United Sta

made a convincing case that the plant was engaged in the activities 

Moreover, even if the assertions had been accurate, the causal relatio

tween the plant and the attacks against the embassies was indirect a

contrast, little doubt existed that terrorists were operating from ba

ghanistan with the seeming acquiescence of the Taliban or that the 

tion targeted was tied to the bombings.

The reaction of the politically relevant actors such as sta

governmental organizations, and the media in this case reflects a gen

that it was not the fact that the United States struck back which ca

cern as much as it was that the United States “got it wrong” in the 

case. In other words, if a state is going to take the dramatic step of co

military operations against terrorists, it needs to have sufficient ev

the connection between the target and the act that was committed, 

a reasonable belief that future acts are on the horizon.

What is the relationship between these incidents and the la

defense as it applies to international terrorism? As Professor Reisma

ceptively noted, “law is not to be found exclusively in formal rules 

shared expectations of politically relevant actors about what is sub

and procedurally right.”168 Though such New Haven School pronou

often evoke controversy, there can be little doubt that the received 

tomary, conventional and case law—is informed by state practice 

practice of other politically relevant actors on the international sce

normative expectations as to how law should foster shared commun

are determinative of international law’s vector. In the context of 

terrorist operations conducted in self-defense, a number of conclus

possible criteria bearing on the international community’s assessme

fulness can be suggested from both the legal analysis offered earlie

short discussion of the evolving international reaction to counte

operations.

Armed attack. A community consensus now appears to exist that 

tacks may be conducted by terrorist organizations. At the same time

tacks constitute violations of international and domestic criminal l

66

167. Tim Weiner & Steven Lee Myers, After the Attacks: The Overview, Flaws in the U

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 Law

Implications,5EUR. J. INT’L L. 120, 121 (1994). He further notes “a prerequisite for 

the lawfulness of an incident . . . is an identification of the yardstick of lawfulness ac

used by the relevant actors.” Id.

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the target state may respond to them with armed force in self

defen

engage in law enforcement activities. To amount to an armed a

“scale and effects” must be “significant,” although in a series of relate

significance is a cumulative calculation. This is a somewhat ambigu

dard, but factors such as the nature and capabilities of the organiza

ducting the attack, the extent of human injury and physical dama

(or likely to have been caused if the attack is foiled or otherwise unsu

the relation of the attack to previous attacks and the method and m

to conduct it bear on the appraisal.

Necessity. For compliance with the necessity requirement of sel

there must be a sound basis for believing that further attacks will be 

and that the use of armed force is needed to counter them. This re

absence of a reliable means other than force to counter the prosp

tacks. The relative success of any law enforcement efforts (or 

thereof) will affect the extent to which resort to armed force is neces

ilarly, if self-defense operations involve crossing into another state’s 

that state must be unable or unwilling to prevent the terrorists from 

ing to threaten the victim state.

As an aside, the option of seeking Security Council action unde

VII has no relation to the necessity assessment. Although it is som

serted that states should turn to the Council for assistance if the op

presents itself, Article 51 contains no such legal obligation.

Proportionality. Self-defense operations against terrorists and 

volved in terrorism are limited to the nature, targets, level of violen

cation required to defeat an on-going attack or, if that attack h

prevent any further reasonably foreseeable attacks. That said, thos

in self-defense should be sensitive to the other face of proportionality

bello face.

Imminency. Self-defense may only be conducted against an atta

imminent or ongoing. An attack is imminent when the potential vi

immediately act to defend itself and the potential aggressor has ir

committed itself to attack. In the context of terrorism, this point m

well before the planned attack due to the difficulty of locating and 

terrorists. Imminency is not measured by the objective time differ

tween the act of self-defense and the attack it is meant to prevent, b

by the extent to which the self-defense occurred during the last w

opportunity.

More significant are responses to on-going attacks. The accep

viewing separate acts of terrorism conducted by the same organiz

67

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closely related organizations acting in concert) as a single on

going 

pears clear in the aftermath of the response to 9/11. Thus, whereas O

EL DORADO CANYON was widely characterized as punitive in natur

counter-terrorist strikes in 1993, 1998 and 2001 were generally seen 

priately preventive. In other words, the understanding of armed a

evolved from one looking at particular operations in isolation, a

whether each is imminent or ongoing in and of itself, to one where 

are viewed as conducting campaigns. Once it is established that an 

campaign is underway, acts of self-defense are acceptable throu

course, so long as the purpose is actually to defeat the campaign. In t

deterrent self-defense has become, or is at least in the process of beco

cepted. As noted, almost all justifications, official and otherwise, o

terrorist strikes cite the purpose of preventing and deterring future 

Purpose. The sole acceptable purpose for self-defense operations is 

an on-going attack or prevent one that is imminent. The motivatio

be retribution, general deterrence (deterring terrorism generally vice 

specific acts and actors), punishment or any other motive. Of c

though each of these may be the logical consequence of a defensive 

perhaps, a secondary goal, they are impermissible as the primary p

the actions.

Conducting self-defense in another state. It is permissible to cross int

ritory of another state to conduct defensive counter-terrorist operati

that state has granted consent to do so or when it is unable or unwil

fectively prevent terrorist activities on its soil. In the latter two cases

from the victim state to take the steps that are necessary mus

nonconsensual entry into the country. Operations may only be c

against the terrorists and their assets; however, if the host state forc

feres with them, then that state may have committed an armed atta

the force carrying out the counter-terrorist actions.

Conducting self-defense against a state sponsor. The formal rules rega

extent of support to a terrorist organization necessary to attribute 

attack to a state appear to differ from the normative expectations of 

community. Those rules require a high degree of control over a spec

tion, such that the terrorist organization is sent by or on behalf of 

conduct the attack. Mere harboring does not suffice.

However, normative expectations are clearly in the process of rap

tion. Seemingly authoritative articulations of the standard, such as t

International Court of Justice in Nicaragua, are increasingly out of 

the times. Although no definitive conclusions can be drawn yet rega

68

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extent and nature of the relationship between the state and terro

deemed sufficient to impute an armed attack, several factors seem t

formed the community’s general support (or at least lack of criticism

strikes against the Taliban. Of particular importance is the fact that 

rity Council had made repeated demands that the Taliban put an e

use of its territory by terrorists, all to no avail. The existence of these 

by an authoritative international body rendered the Taliban the m

their own fate. Refusal to cooperate even after the unthinkable hap

September 11th, despite demands and an opportunity to do so, only 

exacerbate their culpability.

Moreover, the terrorists being harbored were of a particularly n

They had conducted multiple operations in the past that resulted in 

of casualties, and had now mounted an attack in which the death 

measured in the thousands. Their attack also had global impact; fin

verberations were felt throughout the world economy, citizens o

countries were killed, and a pervasive sense of fear infected million

the scale and effects of al Qaeda’s attacks bore directly on the comm

sessment of Taliban actions (or the lack thereof).

Additionally, the relationship between al Qaeda and the Taliba

tremely close, actually symbiotic in many ways. Although no evid

been released of direct complicity in the 9/11 attacks, it is difficult to 

more cooperative host for al Qaeda than the Taliban, cooperation 

the inevitable result of the Taliban’s own dependence on al Qaeda.

Finally, the Taliban were viewed as illegitimate in many ways. O

countries—Saudi Arabia, the United Arab Emirates and Pakistan

nized them as the proper government of Afghanistan, by no stret

term could they be described as democratic and their human rights r

horrendous.169 To describe the Taliban as internationally ostracized 

an understatement. Thus, conducting assaults against them seemed 

violence to countervailing international law principles such as terr

tegrity than would similar actions against other governments and st

Drawing these strands together, relevant factors in assessing the l

of a response against a state sponsor include the severability (or lac

between it and the terrorist group; the frequency, source and timing 

ings to desist from cooperation with the group; the scale and natu

69

169. See, e.g., Department of State, Human Rights Country Report: Afghanistan, M

available at http://www.state.gov/g/drl/rls/hrrpt/2001/sa/8222.htm (Jun. 18, 2002). 

various reports by Human Rights Watch, available at http://hrw.org/reports/world/

pubs.php (Jun. 18, 2002).

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cooperation; the extent to which the state is perceived as generally 

ing and legitimate or not; the inclusivity of the threat in terms of stat

ened; and the severity of the acts committed by the terrorist group w

the state has chosen to associate itself. Further, it appears that se

vis-à-vis state involvement (like that against the terrorists them

heading in deterrent directions. Although each determination wi

specific, it is clear that the bar is being measurably lowered.

Evidence. As illustrated in the case of the 1998 strikes against the 

pharmaceutical plant, the international community expects state

out counter-terrorist strikes to act only on the basis of reliable inf

The United States learned its lesson well; in the recent attacks, th

States provided briefings on al Qaeda and Taliban activities to the 

Council, North Atlantic Council and other intergovernmental orga

as well as numerous states bilaterally.

The incidents considered above highlight the core facts that n

demonstrated: that the target of the self-defense operations conduct

tack, either directly or constructively, and that the self-defense com

the requirements of necessity, proportionality and imminency. A m

difficult question is that of how heavy the burden of proof should be

Because the issue at hand involves the most significant act of inte

intercourse, the use of armed force, a high standard of proof is obv

quired. A preponderance of the evidence standard (i.e., evidence th

in issue is more likely than not) is clearly insufficient to justify acts o

port. On the other hand, a beyond a reasonable doubt standard wo

impractical in all but the rarest of cases. The shadowy world of inte

terrorism simply does not lend itself to immediate access to credible 

tion. By this standard, states would almost never have sufficient ev

mount a timely and decisive response to a terrorist act.

Mary Ellen O’Connell has suggested a “clear and convincing” st

Although acknowledging that no accepted standard exists, she dra

mestic law evidentiary standards and an assortment of decisions b

tional courts, including the Nicaragua case,171 as well as the work 

70

170. Mary Ellen O’Connell, Evidence of Terror, 7 J. CONF.&SEC. L. 19, 22–28 (20

171. Professor O’Connell notes that the Court referred to the need for “sufficient pro

para. 101], which she argues equates by implication to convincing proof. Id. at 24.

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scholars.

Her suggested standard is consistent with the US notif

self-defense to the Security Council, in which the United States 

“clear and compelling” evidentiary standard;173 this was also the verb

to describe the evidence presented to the North Atlantic Council.17

tion of such a standard, or an analogous one, meets the dual requir

practicality and rigor—practicality in the sense that an evidentia

should not render a state paralyzed as it seeks the requisite quality of 

but rigor in that the burden should be heavy enough to preclude st

reacting precipitously to terrorist attacks. Ultimately, an adequacy a

will rest on the international community’s determination of whether 

able international actor would have acted in self-defense on the ba

evidence in question. All such assessments are inherently subje

contextual.

Once a state possesses the requisite evidence must it disclose it? 

Jonathan Charney argues that it must.

To limit the use of force in international relations, which is the primary 

the United Nations Charter, there must be checks on its use in self-d

Disclosure to the international community of the basis for such action 

help to serve this purpose. The alleged credibility of conclusory stateme

state’s leadership should not be a sufficient basis for actions in self-defen

it would encourage abuse. When attacks on a state are so grave as to 

actions in self-defense, the supporting evidence would normally be 

available. Disclosure of that evidence should be required even if the stat

wish to claim that classified information would be disclosed. The use of 

self-defense is limited to situations where the state is truly required to 

itself from serious attack. In such situations, the state must carry the bu

presenting evidence to support its actions, normally before these irre

and irreparable measures are taken.175

71

172. Id. at 25, citing Christopher Greenwood, International Law and the United 

Operation Against Libya, 89 W. VA. L. REV. 933, 935 (1987) [“sufficiently convin

Lobel, The Use of Force to respond to Terrorist Attacks: The Bombing of Sudan and Afg

YALE J. INT’L L. 537, 538 (1999) [clear and stringent evidentiary standard]; LOU

HOW NATIONS BEHAVE (2d ed. 1979) [the attack must be “clear, unambiguou

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 Te

International Law 95 AM. J. INT’L. L. 835, 836 (2001).

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This is a noble proposal, but unfortunately an impractical one. In 

majority of cases, the information necessary to establish the materia

be extraordinarily sensitive. Releasing it may endanger the lives 

sources, jeopardize on-going intelligence operations of use in targetin

rorists or foiling future attacks, surrender the element of surprise, a

critical information regarding the extent to which the battlefield, an

emy’s command and control, is transparent to the state engage

defense operations. An absolute disclosure standard is not one th

tional community will ever adopt in the case of self-defense against te

A more reasonable standard would require disclosure to the exte

cable in the circumstances. Professor Charney’s concern about abu

right to self-defense is well founded; however, that concern must be 

against the need to be able to conduct self-defense, and otherwise 

oneself from terrorists, effectively. Moreover, the situation is not 

strict disclosure/no disclosure conundrum. For instance, it may s

purposes to disclose the necessary information in closed session, as 

when the United States briefed its NATO allies. The subsequent s

states that have received such briefings serves as a safeguard against 

beit a less than perfect one. Additionally, it may be possible to discl

mation after the fact, as was done by the United States in 1997 

Operation EL DORADO CANYON.

176 Doing so will allow states to bu

record of credibility in their claims, a particularly valuable safe-guar

cases where immediate disclosure is impossible.

Conclusion

It has been asked whether the attacks of September 11th ushered 

matically new era in international law. This article has suggested th

respects the law on the use of force has proven adequate vis-à-vi

tional terrorism. Where it has not, the emerging normative expecta

resent less a new era than the logical and constant evolution of th

legal system in the face of changing global realities. That evolutio

sulted in some degree of softening in the community understandin

self-defense is appropriate.

Such a softening is appropriate in the face of the new threat env

Terrorism today represents a particularly pernicious prospect. Unfo

72

176. See Bill Gertz, U.S. Intercepts from Libya Play Role in Berlin Bomb Trial, WASH. T

19, 1997, at A13. The United States provided intercepted communications gath

National Security Agency.

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the attacks that occurred in September 2001 may represent only the 

iceberg. Thousands of individuals trained under bin Laden are at lar

wide.177 More ominously, the threat of terrorism using weapons of 

struction looms ever larger. The normative system developed for 

state conflict, in which the risk of super power confrontation was alw

ent, is predictably shifting to remain responsive to community valu

face of the changing threat.

Consider the apparent relaxation in the requirements for attribu

armed attack. Although it may make striking at a state in self-defe

acceptable, thereby heightening the likelihood of state-on-state c

may have just the opposite effect by serving as an effective deterren

sponsorship without risking the higher order conflict that was the da

ing the Cold War. Similarly, characterizing terrorist attacks as part 

paign rather than a series of individual actions actually gives the st

in self-defense an opportunity to seek resolution of the situation with

compelled to immediately resort to force lest the imminency pass. 

mits greater community involvement in the decision-process and g

portunity to gather and assess evidence.

The final normative verdict on the US and coalition attack

al Qaeda and the Taliban is uncertain. The attacks against al Qae

novel, but consistent with the community expectations existing on 

ber 10th. By contrast, the attacks against the Taliban represent a 

crystalline glimpse of the direction in which the international law 

responses to terrorism may be heading. But given the existing secu

scape, the vector appears positive.

73

177. According to the Egyptian Minister of Interior, “as many as 80,000 people ma

trained in Afghanistan under bin Laden.” 1 THE TERRORIST THREAT (no. 2), Apr

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III

Jus ad Bellum and

International Terrorism

Rein Müllerson1

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

he central tenet in international law is the legal regulation of 

force. The nature, content and effectiveness of this area o

tional law mirrors, much more clearly than any other branch, the ve

ter of international law. In order to grasp the essence of the current 

this area of international law it is helpful to have a brief review of the 

of the proscription on the use of force.

Thucydides’ History of the Peloponnesian War demonstrates a com

sence of any legal (or even legal-moral-religious) restriction on the re

war. As Thucydides writes, “the Athenians and the Peloponnesians 

war after the thirty-year truce” since “Sparta was forced into it beca

apprehensions over the growing power of Athens.”2 This sounds som

miliar and contemporary as there was a violation of the balance of p

caused Sparta to ally with smaller Greek city-states—form

Peloponnesian League to counter militarily the Delian League h

1. Professor of International Law, King’s College, London; Institut de droit Internation

2. THUCYDIDES, THE PELOPONNESIAN WAR 11–12 (W. W. Norton & Company, 

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Athens. But differently from today

s or even from yesterdays wor

city-states did not need to justify their recourse to arms. Athenians b

to be “an eternal law that the strong can rule the weak” as “justice n

anyone who was handed the chance to get something by force fro

more.”3 Their ambassadors explained to the Melians that “those 

power use it, while the weak make compromises.... Given what w

about the gods and know about men, we think that both are always 

dominate everyone they can. We didn’t lay down this law, it was th

we weren’t first to make use of it.”4 “[E]ach of us must exercise what 

really thinks he can.”5

Starting from Saint Augustine, through Saint Thomas Aquinas 

Christian theologians, various concepts of just wars developed. War 

declared and waged by proper authorities, had to have just cause and j

tion. What causes were just was, of course, open to debate. During th

natural law doctrines in international relations dominated and were 

guishable from religious and moral reasoning. This period continued b

times of Hugo Grotius. Legal limits on the use of force came from the i

tion of religious texts or Roman private law and not from what state

political entities actually did. If international law at all governed (i.e., 

justified) the use of armed force it was because its arguments were dr

and supported by religious texts and their interpretation.

Christianity was not the only religion that had something to say 

use of force, as interpreters of the Old Testament and the Koran, 

tried to distinguish between just and unjust causes of resorting to arm

are some striking similarities, though no doubt there are significant d

too, between the main monotheistic religions in that respect. For exa

Spanish Dominican professor, Franciscus Victoria, explained that, a

ans in America, though not Christians, were nevertheless humans a

fore endowed with reason, it was not possible to use force aga

without just cause and “difference in religion is not a cause of just 

the same time, “the Indians had violated the fundamental right of 

iards to travel freely among them, to carry on trade and to propag

tianity.”7 Hence, though force could not be used to proselytise, it 

76

3. Id. at 30.

4. Id. at 229.

5. Id. at 227.

6. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 61–62 (3rd 

[hereinafter DINSTEIN].

7. Id. at 61.

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used when proselytes refused to be proselytised. In 1948, Sheikh Sha

Azhar University in Cairo justified the Muslim conquests of Byza

Persia on the grounds of the response by the Byzantines and Persian

munications calling them to convert to Islam. He wrote that “Mos

attacked people when they showed a spirit of hostility, opposition 

tance against the mission and a contempt for it.”8 As Ann Elisabe

comments, “here religious reasons, resistance to converting to Islam 

tempt for Islamic missionaries, apparently justify recourse to military 

least where the states attacked are perceived to be a danger to Musl

spread of Islam.”9 Here too, only those who refused to adhere to the 

were killed and their lands conquered.

After Emerich de Vattel, positivism gradually started to prevail in 

tional law and the differentiation between just and unjust wars base

gious laws or the laws of nature (the human nature or the nature of 

lost its meaning. Although this was not a return to the naked power 

Ancient Greece it was only thinly veiled power politics where any off

or perceived, may have been good enough to justify the use of milit

In such a situation the Caroline incident and the subsequent exchan

ters between US Secretary of State Daniel Webster and the British M

Washington was more an aberration than a pattern of behavior.10 A

discussed below, the Caroline formula holds interest for explaining so

day’s conflicts but in the middle of the 19th century, it was at best o

of two states that was not confirmed by any practice. Recall that in 

ing the Vera Cruz incident, triggered by the arrest by Mexican auth

several crewmembers from the USS Dolphin, the United States use

force against Mexico when Mexican authorities refused to honor th

with a 21 gun salute as an official apology.11 Similarly, Great Britain 

many used gunboats to force Venezuela to pay its debts to national

states.12

Positivism, that is the resort to the use of force without limits res

system where any offense against a state or its honor could be resp

77

8. Sheik Shaltut, Al-Azhar University Cairo, Egypt, quoted in ANN ELISABETH M

AND PEACE IN THE ISLAMIC TRADITION AND INTERNATIONAL LAW, IN JUST 

JIHAD. HISTORICAL AND THEORETICAL PERSPECTIVES ON WAR AND PEACE IN 

AND ISLAMIC TRADITION 204 (J. 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 (193

11. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 3

[hereinafter BROWNLIE].

12. Id. at 35.

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with force. At the beginning of the 20th century, this positivism, b

luted by normativism. International law regulating the use of forc

not to what states did to each other but what they had agreed they 

should not do (normative positivism). Using customary law termi

was not so much state practice as their opinio juris that mattered. 

term opinio juris is used in a wider sense and it includes authoritat

ments by states as to what international law is, including those laws 

in international treaties.13

This has been a controversial development. It may be said that th

ways been an immense gap between words and deeds, but words as w

notions and ideas expressed in those words, when repeated long en

desired by many, often change reality. Though this gap may be still 

the world’s views on the use of force is not what it was hundreds of 

A learned few may change laws, while laws may also change the view

and even force those whose views remain unchanged to act within 

Here the relationship between law and behavior is a kind of chicken

question as it is impossible to say whether European neighbors 

United Kingdom, Germany and France) who warred against each 

ages do not do it now because they finally concluded that they nee

tive norms and institutions to protect their citizens from the scourg

Alternatively, it may well be that Europe remains at peace becaus

very norms and institutions. Obviously, the change in viewpoint an

ation of norms and institutions occurred simultaneously.

Europe is not the only, though the most prominent place (having 

one of the bloodiest and having become the most peaceful), wh

changes have taken place. The American continent also has mov

same direction.

Beginning in the 20th century, the development of the League o

Covenant, the Kellogg-Briand Pact of 1928, the UN Charter and oth

tant international treaties, worked to severely restrict use of militar

relations between states. Unfortunately, this normative system has 

lated so many times, often with impunity, that it is hardly possible to 

effective (even relatively effective) legal regime. This system does, 

reflect the world’s desire to avoid the repetition of the two world 

brought untold sorrow to Europe and mankind. This system now s

mentality of many people and therefore conditions their attitude to

use of force amongst states.

78

13. Whether a treaty that is formally in force but that is not implemented in practice 

is another issue. The same question may be asked about opinio juris not confirmed b

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The current UN Charter paradigm concerning the use of forc

called normative positivism since it is based on the consent of state

upon what states (or at least most of them) do in practice. It is norma

it is not premised on the actual practice of states. It is positivist sin

not make distinctions between just, unjust, more justified, and les

causes for the use of force.

The Charter paradigm sees the use of force between states as an a

solute evil (after the two world wars it is understandable) without di

ing between causes for the resort to force. This paradigm, as understo

founding fathers of the UN, did not provide for the use of force at all 

response to the illegal use of force (even the collective security para

meant to provide for the possible pre-emptive use of force in colle

defense). As the UN Charter was drafted, humanitarian crises or 

wars were not considered to constitute threats to international peac

curity, the magical talisman for Security Council approval. The Cold 

riod supported formal normative positivism as what was just for the W

containment of the Soviet expansion) was most unjust from the poi

of the Soviet Union and its satellites. Similarly, what was just in the e

Soviet leaders (e.g., advancement of socialism throughout the world

thing most feared by the West. Accordingly, in this bipolar world or

national law on the use of force had to be based on the formal norm

two antagonistic groups were able to agree upon. That it was diffic

impossible, for these competing titans to agree on the proper invocat

use of force, except in self-defense, is not surprising.

Clearly, the world has now changed, though no change is ever 

There are still, and there will remain in the foreseeable future, st

competing interests. Additionally, religion may perhaps have repla

ogy as one of the main sources of confrontation, but is not religion o

forms of ideology?

With respect to the use of force amongst states, a significant tran

occurred towards morality or ethics and away from strict positivist

ism. Recent uses of force not sanctioned by the UN Security Cou

been justified by references to morality. For example, references to 

tarian intervention” have been used to legitimate if not legalize certa

force. None other than Kofi Annan, Secretary-General of the Unite

and the chief custodian of its Charter, speaking in Stockholm on th

Intervention, stated that “there is emerging international law that 

cannot hide behind sovereignty and abuse people without expectin

79

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of the world to do something about it.

Although the current leg

may still be a far cry from the doctrine of just war, neither can it be c

be one of “formal positivism” on which the UN Charter was premised

curity Council itself has expanded the concept of threats to inte

peace and security, legitimizing use of force that would not have bee

in the eyes of the drafters of the UN Charter. Just war consideration

to this flexing of the Charter paradigm and are now even reflected i

National Security Strategy of the United States. In that document, 

George W. Bush stated that “the reasons for our [preemptive] actio

clear, the force measured and the cause just” (emphasis added).15

Changes in the World’s Political Configuration and Jus ad Be

Jus ad Bellum in Treaties and Practice

In 1963, British scholar Ian Brownlie published an excellent mono

considered today as perhaps the best study of the history of the legal r

of the use of force—International Law and the Use of Force by States

forty years later, a highly decorated and respected Professor Brown

QC, Member of the International Law Commission), emphasizing the 

ing relevance of the ideas and conclusions developed in this book, 

“whilst there have been obvious changes in the political configurat

world, especially in the 1990s, these changes have not had any partic

on the law.”17 What does this mean? Is it true? If it is true, what are th

tions of the gap between the “obvious changes in the political config

the world” and the absence of any particular effect of these changes o

tional law? Does this not mean that the world and the law exist as if 

universes without impacting one another at all?

80

14. Tim Burton & Robert Anderson, UN Warns Yugoslavia Over Human Rights, 

TIMES, May 26, 1999, at 2.

15. The National Security Strategy of the United States of America 16 (Sep. 17, 20

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 

HEI, Geneva (Feb. 1, 2001) [hereinafter Brownlie Lecture].

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Law, as one of the main stabilizing factors in society, is indeed a 

conservative phenomenon18 and changes in all legal systems typica

hind transformations in “real” life. This phenomenon, a reflection o

positive and negative sides of conservatism generally, is not of cour

negative. Law not only cannot, but must not, vacillate in synchron

every change in society, reacting immediately to all political turmoil 

upheavals. In such an environment, law could not fulfill its stabili

tions. At the same time, when economic, social or political transform

flect longer-term trends that are substantial and lead to changes in 

configuration of society, the conservative nature of the law’s change 

ate serious problems for both law and society.

International law has relatively recently (during the last quarter o

vious century) overcome some radical and rapid changes. However

that such changes have mainly occurred not at the core of interna

but instead in some, albeit important, but quite specific areas of inte

law. For example, the development of international space law oc

quickly that it led to the emergence of the concept of “instant custo

law of the sea that had slowly developed over the centuries was c

1958 but so many of its basic norms were outdated even before 

Geneva Conventions entered into force that the 1982 Law of the 

vention was adopted to codify new developments. Equally, internati

ronmental law has emerged and rapidly developed within only a few 

Despite this seemingly rapid evolution of international law in th

areas though, the treaties concerning the use of force have undergon

any, change since the adoption of the UN Charter in 1945. Even 

81

18. Of course, law may be used not only for the stabilization of existing relations an

or for the enhancement of tendencies that are already discernible. Law can perfo

functions as well. Through treaty making or decisions of international bodies, inter

may help to create new relations and situations. However, even in such cases 

especially in such cases), international law also tends to freeze (crystallize, to use 

accepted, but incorrect in my opinion, term to describe the process of custom 

relations that are created with the assistance of such legal mechanisms.

19. BIN CHENG, “United Nations Resolutions on Outer Space: ‘Instant’ In

Customary Law,” INTERNATIONAL LAW: TEACHING AND PRACTICE 273 (Bin 

1982).

20. See, e.g., Convention on International Trade in Endangered Species of Wild 

Flora, (Mar. 3, 1973), 27 U.S.T. 1087; Convention for the Protection of 

Environment of the North-East Atlantic, Sept. 22, 1992, art. 23, reprinted in 3 Y.B. IN

L. 759, (1992); Protocol to the 1979 Convention on Long-Range Transboundary A

concerning the Control of Emissions of Volatile Organic Compounds or their Tra

Fluxes, art. 3, para. 3, 31 I.L.M. 573, (1992).

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Assembly resolutions on international law have not contained anyt

could be remotely defined as “progressive development of internation

Why? Why have treaties on the use of force been so conservative 

other areas they have demonstrated, responding to societal change (

international society), considerable ability for change? Perhaps the l

use of force has changed but some experts and even states hav

noticed?

The aforementioned branches of international law (space law, t

the sea, environmental law) have undergone significant changes fol

in parallel with, equally manifest transformations in these respectiv

human activity. In the legal regime regulating the use of force, so cen

ternational law that novelties in it may affect the very foundations of 

all legal system, significant changes have occurred only after the mo

conflicts that shocked the conscience of humankind. In such cases, c

the geo-political environment, in international law generally and 

bellum in particular have not only coincided in time and space, bu

been caused by the same set of factors, simply reflecting different fac

same process.

For example, the absence, existence, content or enforceability of 

cerning preservation of living resources in the Northern Atlantic a

tant political and economic issues for many countries. However

these issues are resolved in one way or other will not alter the struct

sic characteristics of international society or international law. At 

time, this is not the case depending upon how the following quest

swered: Is the UN Security Council the only organization that can d

and when to use force (not involving self-defense) or can states, for 

reclaim unpaid debts by using gunboat diplomacy? Radical changes 

bellum reflect serious transformations taking (or that have taken) pl

very structure and characteristics of international society. Such tr

tions create shock waves necessary for overcoming states’ inertia an

ditional conservatism found in legal regimes.

82

21. For example, the 1987 Declaration on the Enhancement of the Effectiveness of t

of Refraining from the Threat or Use of Force in International Relations swearing a

the UN Charter and confirming what had been already said in many previous UN res

not touch upon any controversial issue. See generally G.A. Res. 42/22, U.N. GAOR

U.N. Doc. A/Res/42/22 (1987). See also TREVES, La Declaration des Nations 

renforcement de l’efficacité du principe du non-recours à la force 33 AFDI (1987); CHRIS

INTERNATIONAL LAW AND THE USE OF FORCE 5 (2000).

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The Thirty Years War and its subsequent peace led to the emerge

Westphalian international system. This system has served as the ba

development of the modern international system as well as the dev

of international law, to include its fundamental principles such as 

equality of states and non-intervention in the internal affairs of su

World War I provided the impetus for considerable innovations in 

tional legal treaties generally and in the use of force in particular. T

ing-off” periods provided for in the Statute of the League of Nation

1928 Briand-Kellogg Pact outlawing wars of aggression have been s

landmarks in the development of legal texts on the use of force in 

tional relations.22 Moreover, after the horror and tragedy caused 

War II, significant changes occurred in both jus ad bellum (the UN 

and jus in bello (the 1949 Geneva Conventions). It is reasonable the

clude that only multi-state wars and the shocks felt in their aftermat

to change international law on the use of force. Changes in jus ad be

always been accompanied by changes in the geo-political configurat

world; or rather have been caused by the latter (e.g., the rise of nat

instead of feudal multi-layered authority in Europe; the effect of the 

wars; the emergence and subsequent collapse of the Cold War bipol

If bilateral wars have usually ended with bilateral treaties on “eter

and friendship,” multi-state wars have ended with attempts to crea

norms that purport to regulate, limit or even completely prohibit t

force between states.

Geo-political restructuring does not seem, by itself to cause chan

law regulating the use of force. These changes must also be accom

significant events operating to shock the conscience of the world

states to come together to ensure such events do not happen again. S

ferences took place after the Thirty Years War, the Napoleonic Wa

and WW II. However, even after WW II, the consensus on the proh

use force was only temporary, conditional on unrealistic expectation

istic understood only with hindsight) that the Chapter VII collectiv

mechanism would work. Unfortunately, bilateral treaties espousin

friendship” as well as the general limitations on the use of force h

honored more in the breach than in the observance. Things are 

pletely hopeless and at least in one region, Western Europe, wh

83

22. See League of Nations, arts. 10–13; General Treaty Providing for the Renunciati

an Instrument of National Policy, art. 1 (Aug. 27, 1928), 46 Stat. 2343, 94 L.N.T.S

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World Wars started as well as where many earlier bloody conflicts 

the consensus to ban the aggressive use of force has been quite gen

the Europeans have made it work, at least in their mutual relations.

Since the end of the 1980s the geo-political structure has under

matic changes but this has happened without any single shocking e

would have implicated the vital interests of the most powerful states 

tent, or in the manner, of the two World Wars of the last century

changes have been more gradual, and some of the most significant 

not been bloody. Neither the genocide in Rwanda, nor the crimes a

manity committed in the former Yugoslavia, nor even the September 

rorist attacks (though the last directly affecting by far the most pow

in the world), have forced the states to sit down and draft new ru

sponding to a changed political environment requiring new legal resp

such new threats. These developments have not impacted the evolu

ternational law treaties concerned with the core of internation

self—jus ad bellum, as the two World Wars did. However, du

character of the main victim-state and the particularly tragic nature 

tacks witnessed by millions on television screens on 9/11, terrorists 

become victims of their own “spectacular success” for these events 

shocked the world enough to open the way to radical reappraisal thr

tomary process of some basic principles of the jus ad bellum.

Consequently, a new geo-political environment now exists. Ne

exist that can be effectively dealt with only by using, inter alia, mili

in circumstances not foreseen in 1945 and therefore not provided fo

explicitly) in the UN Charter. However, states have not been, and w

be, able to draft new rules corresponding to the new geo-political env

and allowing for an adequate response to these new threats. No cons

ists on responses to new global threats such as civil wars, humanitar

gencies, international terrorism and the proliferation of weapon

destruction (including into the hands of terrorists). Achieving con

84

23. The European experience, as well as various examples from other parts of the w

that there is no such thing as inherently peaceful nations or regions (or vice versa

bellicose ones). Smaller and weaker nations have historically been more peaceful 

their inability to successfully carry out more aggressive foreign policy. As th

experience testifies, institutions and rules that become a part of political culture are 

make peace durable. Peaceful relations between nations, like human rights in soc

natural or inherent. Rather, war and human wrongs are natural. For nations and peo

peace and human rights it is necessary to fight and constantly work for them as they a

fragile results of the long and difficult development and acculturation of humankin

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these issues is dependent, inter alia, on the co

existence in the cont

world, of three different categories of states and societies—pre-mod

ern and postmodern—each with different characteristics, values, 

and perceptions of security threats. Of course, societies and states w

ent levels of societal development have co-existed in the world b

never before have they co-existed in the world that is so interdepen

shrinking.

Accounting for the fact that the treaties attempting to regulate 

force which were adopted after WW I and WW II, created unrealis

tations and noting the absence of consensus on important new issues 

ing the use of force, the difficulty of drafting new rules of jus ad be

however, not be so dramatic. The customary process may be not o

natural and flexible, but in today’s circumstances, more rapid at con

emerging trends into law. Such a process, inevitably, has its sho

though.

Brownlie observes that the main reason for a huge gap between th

ics of political change and the consistency in law lies in the fact that 

ual States continue to have a fairly conservative view of the law.” 

critical of those academics, who think that that the law has change

pecially of those who, for instance, “believe that there is a right to us

humanitarian purposes.”24

However, even if many states are conservative or inertial, given a

of political will to draft new rules on the use of force and interventio

not necessarily follow that law too is as inertial as are these state

practice in customary international law and its effect on jus ad bellu

this point.

To an extent, this has been a kind of partial effect: a part of inte

law on the use of force, that was understood by most states and by m

mentators, has ceased to exist as a reliable normative guide (if it ha

isted as a reliable guide).25 Moreover, new norms that would hav

general consensus have not (yet?) emerged, though there are new t

joying at least relative consensus.

85

24. See Brownlie Lecture, supra note 17.

25. A different, though related, question: to what extent did the Charter paradigm o

force correspond to the reality existing during the Cold War? During the Cold War, 

paradigm on the use of force competed (usually not very successfully) with rules 

expressed, for example, in the Brezhnev, Johnson or Reagan doctrines, with concep

national liberation, as well as with various ad hoc practices that did not find legitimiz

laws or doctrines.

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Therefore, I agree with Ian Brownlie, but only to an extent. Leg

and even some states’ practice have not undergone any changes sin

tablishment of the UN Charter. However, the position on, and the p

the jus ad bellum by other states as well as actions undertaken by th

Council in recent years, is in many ways quite different from the Cha

digm of the legal regulation of the use of force.

What are these “obvious changes in the political configuratio

world,” that, from Professor Brownlie’s point of view, have had no 

the law, but that in my opinion have had at least a partial effect an

have a complete effect on the jus ad bellum?

Most obvious is the conclusion of the Cold War. Initially, the e

Cold War raised the expectation that the UN Charter, and esp

Chapter VII, would start working as planned when originally dra

Gulf War of 1990–91 provided support for this expectation. Howeve

the Security Council became considerably more active in the 1

Chapter VII paradigm did not become reality. Instead, a new inter

of “threats to international peace and security” and delegation o

Council powers to individual states and regional organizations beca

spread.26 The Council also started to ex post facto legitimize cases 

of force by individual states or groups of states27 and the latter star

Security Council’s findings to carry out acts that, though arguably 

for the implementation of the relevant resolutions of the Security 

were nevertheless neither expressly nor implicitly authorized by th

Council.28

86

26. DANESH SAROOSHI, UNITED NATIONS AND THE DEVELOPMENT OF C

SECURITY (1999); Christine Gray, From Unity to Polarization: International Law an

Force against Iraq, 13 EUR. J. INT’L L. 1–19 (2002), available at http://www.ejil.org/jou

No1/art1-03.html (Nov. 26, 2002).

27. See, e.g., Security Council Resolution 866 stating that the UN peace keepin

Liberia is the “first peace-keeping mission undertaken by the United Nations in coop

a peace-keeping mission already set up by another organization.” S. C. Res. 866, U

48th Sess., U.N. Doc. S/866/(1993). See also S. C. Res. 1181, U.N. SCOR, 53d Sess

S/1181/(1998) (authorizing the same thing in Sierra Leone).

28. For example, neither Operation PROVIDE COMFORT—the humanitarian ai

northern Iraq nor Operation ALLIED FORCE—the NATO led campaign for h

intervention against the former Yugoslavia were undertaken pursuant to authorizati

the Security Council had certainly expressed its concerns with situations in these ar

S. C. Res. 1203, U.N. SCOR, 53d Sess., U.N. Doc. S/1203/(1998) and S. C. Res

SCOR, 46th Sess., U.N. Doc. S/688/(1991).

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Secondly, the Cold War had frozen or at least limited the develo

certain trends beginning before the two World Wars. Among these 

the trends of globalization and its nemesis—fragmentation, both of wh

considerable impact on the issue of the use of force. Fragmentation of

fests itself in wars of secession, conflicts between different religious 

groups. Globalization (which ironically leads also to the globalization o

tation itself), internationalizes such conflicts and other development

cesses, which in different circumstances may have had only a local o

effect. Today, “internal” wars are neither politically nor even legally 

internal affairs of the state in which they occur. Also, such internal w

extend to neighboring states. This internationalizes the conflict.

The legal regime regulating the use of force is only one, though pe

most controversial, of the areas covered by international law demo

that traditional distinctions between domestic and international aff

not disappearing, then at least becoming more confused. Strictly int

ad bellum does not relate well to a changed international system w

state, sub-state and super-state actors play important roles. Mary 

right that “the new wars involve transnational networks, which inc

state and non-state actors—mercenary groups, warlords, as well a

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 

to fulfil its defensive needs. The UN lacks the capability, authority and 

respond to the kind of threat to global security posed by this new 

terrorist world war. The UN was established to deal with wars among 

while a transnational actor that cannot be definitively linked to a state is 

the attacks on the United States. Al Qaeda’s relationship to the Ta

Afghanistan is contingent, with al Qaeda being more the sponsor of t

than the other way around.30

This is one of the reasons why Eric Myjer and Nigel White are worried 

response to the Twin Towers attack may contribute to a developmen

national law, which would place self-defense outside the context an

outside the limit of the Charter of the United Nations.”31 This potent

becomes real if the Charter norms are interpreted out of the current 

87

29. MARY KALDOR, The Power of Terror [hereinafter The Power of Terror], RE-ORD

WORLD—THE LONG TERM IMPLICATIONS OF SEPTEMBER 11TH (Mark Leonar

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-

CONFLICT AND SEC. 1 at 17 (2002) [hereinafter Myjer & White].

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The end of the Cold War ended the Soviet

NATO confrontatio

tended democracy and civil liberties to Eastern and Central Europ

lifted the lid on the multitude of suppressed hatreds and simmering 

As Bernard Lewis observes:

The ending of the Cold War, and the collapse of the bi-polar disciplin

the two superpowers, sometimes acting in competition, sometimes in 

had managed to impose, confronted the people of the Middle East, like 

other regions liberated from superpower control or interference, with a

choice. They could move, however slowly and reluctantly, to sett

disputes and live peacefully side by side, as happened in some parts of th

or they could give free rein to their conflicts and hatreds, and f

descending spiral of strife, bloodshed and torment, as happened in othe

Today, both scenarios are being realized in different parts of the world

parts of the world proliferation of weapons of mass destruction, te

tacks, humanitarian crises, inter-ethnic and inter-religious conflicts h

creased manifold after the end of the Cold War and these deve

unavoidably, affect how and whether military force is used in variou

Bassam Tibi is right that:

with the restraining power of bipolarity no longer maintaining a global 

checks and balances, the aspirations of ethnicities and religio-p

ideologies that had lain low during the Cold War now boiled to the su

was only after the Cold War that the factors underlying these conflicts 

be perceived. Previously, ethnicity, religion, and culture were considere

the terrain of anthropologists, and of little interest of international poli

These factors were of even less interest for international law than fo

tional politics. However, without taking these factors into account

tional lawyers may indeed conclude today that international law is e

the same as it was in 1945 notwithstanding that it is a very different 

Morover, with the end of the Cold War, the polarity of the world 

Instead of being distinctively bipolar, the world is now unipolar, esp

88

32. BERNARD LEWIS, THE MIDDLE EAST. 2000 YEARS OF HISTORY FROM T

CHRISTIANITY TO THE PRESENT DAY at 371–72 (1995).

33. BASSAM TIBI, THE CHALLENGE OF FUNDAMENTALISM. POLITICAL ISLAM AN

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

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the military field.

This means that state practices on the use of forc

not opinio juris) will be determined for the foreseeable future main

United States, acting either with its allies or unilaterally. Historically 

there is a tendency to counterbalance such dominance by one “hyp

and it would be natural that in the future the geo-political environ

change again. No balance, or imbalance for that matter, of power ha

permanent. Nor is such a power arrangement likely to become perm

However, in the foreseeable future it is likely that the world w

militarily unipolar (which does not at all mean that the United St

tarily can do as it wishes) and US dominance will remain significan

other instruments of power as well. For liberal democratic societies 

for societies aspiring to become such, it would be counterproductiv

counterbalance US dominance in either the political and military

domain.35 At the same time, it might well be necessary to join th

States in an effort to influence its policy choices to further enhance 

the world as raw power does not always mix well with sophistication 

eration. Audrey Cronin of Georgetown University, writing insigh

89

34. Stephen Brooks and William Wohlforth, on the basis of thorough analysi

indicators, write: “If today’s American primacy does not constitute unipolarity, th

ever will.” See Stephen Brooks & William Wohlforth, American Primacy in Perspect

AFF’S 21 (2002).

35. Until September 11, 2001 Russia seemed to be trying to create a multi-polar 

Concept of National Security of Russia signed by President Putin in January 2000 

Russia “will advance the ideology of the creation of a multipolar world.” See D

President of the Russian Federation, 24 (Jan. 10, 2000). However, things ha

considerably since then. In their Joint Declaration, the United States and Russia, spe

need to promote stability, sovereignty and territorial integrity in Central Asia an

Caucasus, stated that they “reject the failed model of Great Power rivalry that can o

the potential of conflict in those regions.” See Joint Declaration on New US-Russia R

38 WEEKLY COMP. PRES. DOC. 21, 894–897 (May 24, 2002), available 

frwebgate.access.gpo.gov/cgi-bin/multidb.cgi (Nov. 27, 2002). Dmitri Trenin wr

confrontation with NATO is something Russia cannot afford and sh

attempt. . . . Rather, it is in Russia’s supreme national security interest to strive 

demilitarisation of its relations with the West.” See DIMITRI TRENIN, THE END OF 

285 (2002). Trenin concludes that “Russia stands on the boundary between the p

and modern and even pre-modern world. It must make its choice. The only rationa

fully stress Russia’s European identity and engineer its gradual integration int

Europe.” Id., at 311. Though there are various political forces in Russia vying to ste

policy in opposite directions, it seems that President Putin has reasonably chosen su

United States on many strategic issues. In his keynote public address to the Rus

Ministry on 12 July 2002, President Putin emphasized that cooperation with the Un

the key to Russian political and economic revival. B.B.C. Worldwide Monitoring, 

Importance of Diplomacy in Helping Russian Business (B.B.C. Radio Broadcast, July 1

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terrorism, observes that 

the United States is illequipped by cultur

and bureaucratic structure to respond effectively to this new kind o

threat”36 and that “US political and cultural sophistication lag behin

tary technological capabilities.”37

However, Europe can fulfill its potential in the current and fu

against terrorism and other threats by becoming militarily stronger 

tally tougher. Robert Kagan may have a point that Europeans “hop

strain American power without wielding power themselves. In wh

the ultimate feat of subtlety and indirection, they want to control 

moth by appealing to its conscience.”38 Subtlety and sophisticatio

power though are often impotent while single-mindedness withou

and sophistication often leads to unexpected and unwanted cons

Regardless, today’s liberal democracies can hardly afford the luxury 

ing disunited versus a less centralized but no less serious threat tha

that existed during the Cold War.

Subtlety and Sophistication or Single-Mindedness?

The war against terrorism is in many ways different from traditio

“War” cannot be used, in this context, as a legal term and “war” 

“armed conflicts” are only a part of this wider war on terror to be foug

nomic, financial, educational and other means.39 Audrey Cronin is 

“military responses, while disruptive in the short run, tend to drive 

underground, to encourage innovation, to engender sympathy and, so

even build support for the “underdog.” The point is not that swift an

uses of force are irrelevant; far from it. Instead, the argument is tha

counter-terrorism policy must be placed in a larger strategic context

the longer-term consequences are understood and calculated.”40

90

36. Audrey Cronin, Rethinking Sovereignty: American Strategy in the Age of T

SURVIVAL 2, at 127 (2002) [hereinafter Cronin].

37. Id. at 132.

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

39. Granville Byford makes an important point writing that “wars have typically 

against proper nouns (Germany, say) for good reasons that proper nouns can su

promise not to do it again. Wars against common nouns (poverty, crime, drugs) ha

successful. Such opponents never give up. The war on terrorism, unfortunately, f

second category.” See Graham Byford, The Wrong War, 81 FOR. AFF’S, 34 (2002) 

Byford].

40. Cronin, supra note 36, at 127.

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The use of force against terrorists in the new geo

political env

identifies some questions that before the end of the Cold War and S

11, 2001 seemed far from the law regulating the use of force. Today

of the radical change of the political and military-strategic context 

jus ad bellum functions and the need to extend the application 

bellum rules to areas such as humanitarian intervention, interventio

states or against “rogue” regimes that develop weapons of mass de

(WMD), or self-defense against terrorist attacks by non-state act

questions are no longer distant from the law governing the use of fo

Flatland Thinking and the Fight Against Terrorism

The current debate about terrorism and responses to it reveal a d

(sometimes almost an abyss) in thinking and acting between hawks a

left and right, liberals and conservatives, human rights activists and m

political) leaders, and pacifists and militarists. This is not the natur

omy between terrorists, their supporters and civilized society, rejecti

ism whatever its form. No, this dichotomy, to borrow the simple bu

words of President Bush, is “you’re either with us or against us” in 

against terrorism.

This division is clearly reflected in the different approaches to c

crime, including the crime of terror, and other forms of anti-social 

Liberals often speak of changing social, economic or political condit

ing high crime rates or terrorism while conservatives (often) call for z

ance, longer prison terms or wider use of the death penalty. As A

philosopher Ken Wilber writes:

liberals tend to believe in exterior causes, whereas conservatives 

believe in interior causes. That is, if an individual is suffering, the 

liberal tends to blame external social institutions (if you are poor it is 

you are oppressed by society), whereas the typical conservative tends t

internal factors (you are poor because you are lazy).41

Real life situations are fluid and dynamic and a pure liberal or 

tive approach as the only answer for all circumstances is boun

Wilber calls both of these approaches “flatland” thinking and actin

integral politics would . . . encourage both interior development an

91

41. KEN WILBER,ATHEORY OF EVERYTHING: AN INTEGRAL VISION FOR 

POLITICS, SCIENCE AND SPIRITUALITY 84 (2001).

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development

the growth and development of consciousness and 

well-being, as well as the growth and development of economic, s

material well-being.”42 What seems difficult, if sometimes not impos

be conservative (or at least admit that those who are conservative m

valid point) when the situation requires tough and resolute action

terrorists and those who support them and to be more liberal in tho

deed when studying and addressing contextual issues giving rise to 

and their supporters (such contextual issues are often invoked as a 

justification for terrorist acts).

This dichotomy manifests itself in individual answers to the follow

tions. Whether the national policy should be to pursue vigorously 

using all necessary means, dead or alive, or whether to “drain the sw

to deal with what some call root causes of terrorism (e.g., poverty, 

equality, injustice in various forms or religious fundamentalism an

ism)? What are the root-causes of terrorism? How does a go

guarantee security in a liberal society without sacrificing fundament

rights? Is the US strategy in its war on terrorism correct or inapprop

These are not easy questions and often contain real dilemmas as 

one option may foreclose another. However, this is not always the cas

choices must be made the response must not always be dictated by th

of reasons (e.g., either exclusively by humanitarian concerns or ex

by security rationale). When comparing Benjamin Netanyahu’s 

terrorism43 to that of some Amnesty International representatives, it 

feel frustrated by the simplicity and singlemindedness of either positi

who are tough on crime, on terrorism, on “rogue” states may view t

human rights, economic assistance, state building and other similar is

best an annoyance, at worst as pouring water on the mill of terror.

92

42. Id. at 88.

43. See generally, BENJAMIN NETANYAHU, FIGHTING AGAINST TERROR

DEMOCRACIES CAN DEFEAT THE INTERNATIONAL TERRORIST NETWORK (2001) 

FIGHTING AGAINST TERRORISM].

44. For example, the American Civil Liberties Union has harshly criticized U

General John Ashcroft for his testimony where he equated “legitimate political 

something unpatriotic and un-American.” The statement by Laura W. Murphy, 

ACLU Washington Office emphasized that “the Attorney General swore an oath 

Bill of Rights and the Constitution, including the First Amendment. For him to open

“aiding the enemy” those who question government policy is all the more frightenin

his constitutional duty to protect each and every American’s right to speak and 

mind.” (Laura Murphy, Statement on Attorney General John Ashcroft’s Testim

Washington National Office, Dec. 10, 2001)).

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other hand, human rights activists, leftist liberals and sophisticated a

often seem to be blind to real life hard choices.

The former Prime Minister of Israel Ehud Barak analyzing the 11 

ber attacks writes:

This kind of terror cannot be defeated without determined patience, s

goals and tactical flexibility. You have to think and act, not by the bo

“out of the box,” open eyed, your mind free from any dogma or conve

wisdom. The approach must be systematic: intensive worldwide intel

gathering; a wide operational and logistical deployment; economic sa

and no softness in applying them; diplomatic ultimatums and no backin

from them.45

Beyond this, writes Barak, a systematic battle will require fully stream

migration rules and procedures, internationally coordinated anti-mo

dering legislation, and, importantly, the reassessment of the gene

American practice not permitting pre-emptive strikes against terroris

ror operatives.46 These measures are clearly important and necessar

terrorists but are they sufficient? The short answer is they are not. It is 

tile to use only military or law-enforcement measures in the war again

ism. It would be counterproductive and look very much like a Sisyphe

Professor Lawrence Freedman observes, “if raids failed to differentiat

the guilty, the half-committed and the innocent then the main result 

to generate many new recruits and supporters.”47 Juxtapose this insigh

ment with the recent Israeli attack which killed the Hamas military co

Sheikh Salah Shehada and 14 others, including 9 children, while 

more than 140 people.48 Is it Barak then, or Freedman who is correc

If Barak were only a former general it might be possible to unde

exclusive attention to military and law-enforcement measures. But B

also Prime Minister of Israel, a country constantly facing terrorist at

a politician, such one-sidedness and single-mindedness may be fatal

93

45. Ehud Barak, Security and Counter-Terrorism in RE-ORDERING THE WORLD, supr

93.

46. Id.

47. Lawrence Freedman, A New Type of War, WORLDS IN COLLISION. TERRO

FUTURE OF GLOBAL ORDER 40 (Ken Booth et al. eds., 2002) [hereinafter W

COLLISION].

48. Brian Knowlton, Heavy Handed Israeli Attack is Condemned, INT’L HERALD T

24, 2002, at 1.

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is Ehud Barak and not Benjamin Netanyahu, whose views on terr

much more simplistic.49

However, human rights activists and those with a liberal agenda a

ing any better. For example, Daniel Warner, the acting Secretary G

the Institute of International Studies in Geneva, writes:

But what is terrorism? It is the activity of the dispossessed, the voicele

radically asymmetrical distribution of power.... Terrorism has causes. 

in inequalities of wealth and lack of political access lead to frustration

eventually leads to aggression, violence and terrorism. The greater the l

frustration, the greater the levels of violence. The higher the le

repression, the higher the levels of reaction.50

This is the corresponding liberal approach to terrorism and while the

truth in this approach, such a view is also one-sided and simple. It is 

less to argue what the root causes of terrorism are because there are 

views on this issue that are firmly entrenched. It is also useless becau

ten quite impossible to distinguish clearly between causes of, circu

conducive to and pretexts or justifications for various phenomena, 

terrorism. “To a Western observer,” writes Bernard Lewis,

schooled in the theory and practice of Western freedom, it is precisely t

of freedom—freedom of the mind from constraint and indoctrina

question and inquire and speak; freedom of the economy from corru

pervasive mismanagement; freedom of women from male oppression; f

of citizens from tyranny—that underlies so many of the troubles of the 

world. But the road to democracy, as the Western experience 

demonstrates, is long and hard, full of pitfalls and obstacles.51

Thomas Friedman believes that, “the anti-terror coalition has 

stand what this war is about. It is not fighting to eradicate “terrorism

ism is just a tool. It is fighting to defeat an ideology: religious totalitar

Whether religious totalitarianism is a cause or a circumstance con

94

49. Although most, if not all, of the remedies Netanyahu proposes may be necessary 

are limited to law-enforcement measures, economic or diplomatic sanctions and 

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 HERAL

Sep. 21, 2001, at 11.

51. Bernard Lewis, What Went Wrong?, 289 THE ATLANTIC MONTHLY 1, at 6 (20

52. Thomas Friedman, World War III is Against Religious Totalitarianism, INT

TRIBUNE, Nov. 28, 2001, at 7.

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terrorism is beyond the point. It is a factor closely linked to terror

cially to its modern version.

Poverty, discrimination, repression, inequality and religious intol

contribute to the creation and sustainment of terrorism. Howeve

poor and oppressed are terrorists and most of the terrorists are not a

and oppressed. The false dilemma—whether to concentrate on cha

conditions that may be conducive to terrorism or to respond forcefu

of terror—is answered differently at different times. This is a false dil

tween liberals who see the problems arising from external factors and 

servatives blaming only internal factors—the mindset of perpe

criminal acts. Addressing both sets of factors is equally important a

sary. Responses to terrorism should involve various methods, addr

the causes and conditions favorable to its creation and development

rey Cronin writes, “the United States, working in tandem with key a

the UK to Japan, must disable the enabling environment of terroris

also, however, necessary to use military and/or law-enforcement 

against terrorists and their accomplices as it is impossible to appease 

and hopeless to try to meet their demands believing this would end 

rorist acts.54 Terrorists understand strength and power even if they d

essarily respect (or may even hate) that power. Terrorists als

weakness and see it in every concession and moderation.

Successful domestic societies use both criminal justice and social 

in efforts to lower the crime rate. Similarly, in international society it 

inadequate to resort to only one category of measures. Conditions c

to terrorism have to be addressed and terrorists and those who supp

must be arrested and tried. Moreover, where necessary, military f

measure of self-defense or collective security, must be used against t

Richard Falk correctly distinguishes between two fallacies: “just as 

fist fallacy involves unrealistic exclusion of military force from an a

response, the militarist fallacy involves excessive reliance on military 

manner that magnifies the threat it is trying to diminish, almost 

95

53. Cronin, supra note 36, at 133.

54. In a way, terrorists act counterproductively to the content of their demands si

their demands, even if these demands were justified if not made by terrorists, woul

further terrorism. For example, Palestinian terrorists demand the end of the Israeli 

and dismantlement of the settlements in the occupied territories. Ending this occup

be seen by terrorists, however, as a victory of their means. Surrendering to their de

would only tempt them to increase their demands underpinned by terrorist threats.

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intensify and inflame anti

Americanism.Only when these falla

bine can they become mutually supportable and achieve success.

Post-Modern Societies and Pre-Modern Threats

The post September 11th world reveals another unfortunate and wid

related to the gap between liberals and conservatives, the gap bet

United States and Western Europe in their attitudes towards the w

terrorism and terrorists. One explanation for the different visions on 

may be the huge difference in their military capabilities. Robert Kag

only as a rhetorical question: “If Europe’s strategic culture today p

value on power and military strength and more value on such soft-po

as economics and trade, isn’t it partly because Europe is militarily 

economically strong?”56 However, these differing visions are not only 

gap in military capabilities on both sides of the Atlantic. Kagan in

notes that along with natural consequences of the transatlantic p

there has also opened a broad ideological gap:

Europe, because of its unique historical experience of the pas

century—culminating in the past decade with the creation of the Eu

Union—has developed a set of ideals and principles regarding the uti

morality of power different from the ideals and principles of America

have not shared that experience. If the strategic chasm between the 

States and Europe appears greater than ever today, and grows still wi

worrying pace, it is because these material and ideological differences re

one another.57

Although by their internal characteristics European states and th

States belong to the same category of liberal democratic states with 

veloped market economies, their place and role in the international s

rather different indeed. As international actors they belong not only 

ent weight categories but also even to different worlds.

96

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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Robert Cooper, a senior British diplomat, writes of pre

modern

and post-modern states that co-exist side-by-side in today’s world.58 

of the existence of:

two new types of state: first there are now states—often former colonies—

in some sense the state has almost ceased to exist: a “premodern” zon

the state has failed and a Hobbesian war of all against all is underway (co

like Somalia and, until recently, Afghanistan). Second, there are post im

postmodern states that no longer think of security primarily in t

conquest. And thirdly, of course there remain the traditional “modern

who behave like states always have, following Machiavellian princip

raison d’êtat (one thinks of countries such as India, Pakistan and China

In the post-modern world—the world of the European Union—

no security threats in the traditional sense (at least threats that wo

nate from within this world) and instead of power (or balance of po

prevails. In this world, the traditional distinctions between domesti

eign affairs have broken down; there is not only the legal promise n

force but the use of such force between post-modern states has becom

unthinkable as their security is based on transparency, mutual ope

terdependence and mutual vulnerability. This is a new paradigm o

tional relations, which Western European nations have created onl

after centuries of wars, anarchy and the traditional struggle to balan

The two World Wars served as the main catalyst for the creation o

Kantian world, albeit in one region only. “Within the confines of 

writes Robert Kagan, “the age-old laws of international relations hav

pealed. Europeans have stepped out of the Hobbesian world of ana

the Kantian world of perpetual peace.”60

It is, of course, debatable to what extent this peace is perpetual bu

right in emphasizing: “Consider again the qualities that make up the 

strategic culture, the emphasis on negotiation, diplomacy, and co

ties, on international law over the use of force, on seduction over co

multilateralism over unilateralism.”61 These are admirable qualiti

97

58. See generally ROBERT COOPER, THE POST-MODERN STATE AND THE WORLD O

ed., 2000) [hereinafter WORLD ORDER]; Robert Cooper, The New Liberal 

OBSERVER, (Apr. 7, 2002); Robert Cooper, The Post-Modern State in RE-ORD

WORLD, supra note 29, at 12.

59. Robert Cooper, The Post-Modern Statein RE-ORDERING THE WORLD, supra note 

60. Kagan, supra note 38, at 11.

61. Id. at 10.

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and hopefully they may serve as an example for other states and oth

of the world. Kagan may be right that “the transmission of the Europ

cle to the rest of the world has become Europe’s new mission civ

There is nothing wrong with such a mission as the expansion of hum

ideas, economic aid, assistance in state-building and other similar p

well as the very lessons of European experience (negative and posi

help other societies avoid disasters that the Europeans experienced

necessarily repeating all the mistakes made in Europe.

No society can or should repeat the development or evolution of o

eties, especially if their historic, cultural and religious traditions are r

ferent. Nevertheless if countries like Rwanda or Burundi of today do 

something from the past experience of countries like Sweden or Fin

Rwandas and Burundis of tomorrow will not be much different from 

1994. Some aspects of the European experience, for example, its pa

long process of secularization, may be especially important in the c

today’s major terrorist threats. Chris Brown insightfully writes that:

the subjection of all accounts of the ultimate ends of life to the same rati

which has induced a self-consciously ironic dimension to even deep

religious and social beliefs; the notion that representative forms of dem

are the only legitimate basis for political power; the spread of a huma

culture in which the privileges once extended only to rich and powerfu

males are understood as legitimate only if universally available—this 

rather disparate set of ideas and propositions has come to be seen 

disparate, and thereby separable, but as a package that, taken as suc

meaning to the notion of modernity within Western society and, with th

of globalisation, within a nascent global society.63

However, fundamentalists of various kinds “want a world with mod

nology, but with scientific rational confined to the technical.”64 It m

accidental that amongst terrorists, especially Islamist terrorists, there 

young men educated either in madrasas or technical institutions (not 

ily in flight schools).

Today there are huge differences between the realities of Europ

situation in most other parts of the world. Still it happens that in thei

with actors from different parts of the world, the Europeans often 

98

62. Id. at 12.

63. C. Brown, Narratives of Religion, Civilization and Modernity, [hereinafter Brown] 

IN COLLISION, supra note 47, at 299.

64. Id.

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post

modern rules of the game that (even amongst each other) are 

origin. Europeans too often follow their newly acquired post-moder

when confronting modern or even pre-modern actors. These stand

not apply.

The United States, because of its unique position in the world, C

lieves, combines characteristics of modern and post-modern society

the United States as a “partially post-modern” state, he writes:

Outside Europe, who might be described as postmodern? Canada certai

USA up to a point perhaps. The USA is the more doubtful case since 

clear that the US government or Congress accepts either the necess

desirability of interdependence, or its corollaries of openness, 

surveillance and mutual interference to the same extent as most Eu

governments now do. . . . The knowledge that the defence of the civilise

rests ultimately on its shoulders is perhaps justification enough for 

caution.65

A recent film66 captures the essence of a post-modern society. In i

was unthinkable, everybody was terribly polite and political correc

reached quite absurd levels. A villain (played by Wesley Snipe) from 

lier “modern” age returns to help the leader of the city deal with som

problems left over from previous times. When the “villain,” quite p

acts like a villain, the authorities must bring a “modern” police offic

by Sylvester Stallone) back to deal with the “modern” villain. Usin

force and all necessary means, he succeeds in eliminating the “mode

to the benevolent “post-modern” world.

By analogy, what was Europe when facing President Milosevic, 

Karadjic or General Mladic? Ultimately, Europe was forced to re

United States to face real (and not fictional) villains in its own bac

the same time many Europeans continued to criticize the United 

not being nice enough towards such “modern” and “pre-modern” v

not treating them in accordance with European post-modern rule

not some truth then in the notion that post-modern values can f

places of the world today where societies are at different levels of dev

because the United States has performed for the Europeans the role 

ern cop? As Kagan points out, “Europe’s new Kantian order coul

only under the umbrella of American power exercised according to 

99

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

66. DEMOLITION MAN (Warner Brothers 1996).

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of the old Hobbesian order

and that most Europeans do not see 

paradox: that their passage into post-history has depended on th

States not making the same passage.”67 Though the Vietnam and M

syndromes seriously affected the US ability to act adequately and de

some pre-modern situations (e.g., in Rwanda or Haiti) there is ne

the ring of truth in Kagan’s words.

It is also not by chance that al Qaeda and many other terrorist 

tions have been able to operate freely in Western European countri

the United States) exploiting in their fight against modern (or post

liberties and freedoms, the very same liberties and freedoms, using te

cal achievements of the West to undermine its cultural achievem

mocracy, human rights, tolerance) that have made these tech

achievements possible.68

In the world that is far from post-modern, post-modern states mu

retain and rely upon not only some of their modern capabilities (po

ons, military power) but also some of the norms of the modern world 

power politics. Adequate armed forces and intelligence services 

with the readiness to use them are necessary even for post-mode

Robert Cooper is absolutely right that “in the coming period of peace i

there will be a temptation to neglect our defenses, both physical an

logical. This represents one of the great dangers for the post-moder

Chris Brown, observing that fascism and national socialism did not c

their own contradictions, emphasizes that “the opponents of Islam

have to be prepared to fight for what they believe in, and the intellig

military force will, inevitably, be one component of the struggle.”70

100

67. Kagan, supra note 38, at 16.

68. Bassam Tibi has written that:

Muslim fundamentalists very much favour the adoption of modern scien

technology by contemporary Islam. But they restrict what may be adopted t

instruments, that is, to the products of science and technology, while fiercely re

the rational worldview that made these achievements possible. The late great B

scholar Reinhardt Bendix showed that ‘modernisation in some sphere of life ma

without resulting in [a full measure of] modernity,’ and added that ‘more or less 

adoption of items of modernity [actually] produces obstacles standing in the 

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.

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A dangerous side of European reliance on its post

modern valu

wider world is illustrated by the disastrous standoff between the pos

Dutch peacekeepers and pre-modern Mladic thugs at Srebrenica 

which ended with thousands of Muslim men dead. This is not to cr

young Dutch soldiers but instead the softness of Western and especi

pean leaders and societies as a whole when confronting pre-modern 

Therefore, is not there some truth in Robert Cooper’s words whe

phasizes that “when dealing with more old-fashioned kinds of stat

the post-modern continent of Europe, we need to revert to the roug

ods of an earlier era—force, pre-emptive attack, deception, whateve

sary to deal with those who still live in the nineteenth century worl

state for itself?”71 Among ourselves, he continues, “we keep the law 

we are operating in the jungle, we must also use the laws of the jun

phasizing the need to get used to the idea of double standards.72

The language used by Cooper may be too provocative and shou

taken literally. International law and not the law of the jungle has 

role even in dealings with modern and post-modern states and oth

from that world. However, double standards, or even treble standard

matter, may be acceptable if we openly recognize, for example, th

categories of weapons are much more dangerous in the hands of re

Saddam Hussein’s than in the hands of more responsible and civiliz

or that not all ideologies are of equal value (we have already made e

for fascism and recently for communism too), that some of them are 

ant that they constitute a threat to international peace and security. 

ciples and rules of international law applicable in the non-Kantian w

be different from those applicable in the post-modern environment. 

then that contemporary jus ad bellum cannot be based on the values 

ciples applicable in the post-modern Kantian world where the usefu

applicability of jus ad bellum is unthinkable. What then is the cont

jus ad bellum and what should it be? As further discussed infra, t

eignty of those states that massively violate human rights or failed s

are unable to guarantee a minimum of order and justice and especi

states that are unwilling or unable to prevent their territory from b

for carrying out terrorist attacks against other states and their natio

not be respected in the same way as the sovereignty of other state

101

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

72. Id.

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Annan, the UN Secretary General, said during the NATO ope

Kosovo: “[T]here is emerging international law that countries canno

hind sovereignty and abuse people without expecting the rest of the 

do something about it.”73

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

The question of the current state of the law on the use of force is app

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 C

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 tod

Different authors have used in their study of the use of force all of 

proaches. States have also relied, in various degrees and com

depending on circumstances, on all these possible interpretations 

bellum.

Today, however, we have a rather schizophrenic situation in jus a

The more one thinks of it, the less one seems to understand it. The 

tries to understand it, the less certain one becomes about what it 

Therefore, it is wise in many cases to avoid definitive conclusions li

national law certainly allows it,” or vice versa, that “it certainly pro

Most conclusions of that nature are not only vulnerable to convin

cism but also cannot be verified as correct.

It would be equally wrong to say either that there have been n

whatsoever in the legal regime regulating the use of force, or, on the co

interpret too creatively certain tendencies in the rather confused inte

practice in order to conclude, for example, that there undoubtedly is 

use force to save lives in foreign countries. Today, there are not man

102

73. Tim Burton & Robert Anderson, UN Warns Yugoslavia Over Human Rights, 

TIMES, May 26, 1999, at 2.

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jus ad bellum where the word 

undoubtedlyis used. Instead, it is 

speak of trends, legitimization and more justifiable or less justifiable 

It follows that it is better to avoid definitive terms such as lawful or i

For some, the UN Charter seems to have acquired certain charact

the Holy Books—either the Bible or the Koran. One cannot change i

to believe in it and even swear allegiance to it, but at the same time

hardly live by it. However, a Charter fundamentalism may be almost 

ous as Biblical or Koranic fundamentalisms. Literal and non-contex

pretation of any text—be they religious or secular texts—is bound 

social impasse. If in the case of holy texts such interpretation sometim

towards and justifies violence, in the case of the UN Charter, it may 

the causes of the inability to adequately respond to violence.

However, it is often said that the prohibition on the use of forc

2(4) of the Charter] is a jus cogens norm74 and therefore treaties an

not only cannot deviate from it but even when such practice is wide

does not undermine or change the fundamental norm. In such a case

one question what the Charter says on the use of force?

Many things might be said about jus cogens in support of this conce

as by way of criticism.75 It is necessary here to emphasize what Oscar 

has written about principles of international law. He distinguishes be

core and penumbra of applicability of such principles.76 While the co

jus cogens, the penumbra need not necessarily be of such a characte

If we take by way of comparison and illustration, for example, one 

sic human rights norms—the right to life—we see that the core of it—

hibition of arbitrary deprivation of life and especially the proh

genocide (e.g., Article 6 of the International Covenant on Civil and 

Rights)—is undoubtedly jus cogens in the sense that no deviation 

permitted under any circumstances. When deviations do occur, th

undermine the basic prohibition since there is strong and general o

supporting this core of the norm. However, when considering, for 

the issue of the death penalty it is much less clear. Contradictory pr

well as contradictory opinions (including opinio juris) exist on th

Sensitive areas such as abortion and euthanasia—both hotly debate

life issues—make the problem of the jus cogens character of the ri

103

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

75. See, e.g., REIN MÜLLERSON, ORDERING ANARCHY 156–61 (2000).

76. OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 

[hereinafter SCHACHTER].

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(its absolute and non

derogable character) as a whole uncer

complicated.

Similar situation exists in the legal regulation of the use of force. O

there are areas of jus ad bellum where legal rules are rather certain. T

ter and customary international law prohibition against the use of 

example, for territorial aggrandizement or political subjugation of ot

(as well as the affirmative right to use force in self-defense) remain 

relatively non-controversial. The Iraqi aggression against Kuwait 

world community’s responses to it have confirmed and reinforced 

pects of the prohibition on the use of force. As Anne-Marie Slau

William Burke-White, referring to the numerous resolutions of th

Assembly and the Security Council, write, “when interstate aggres

pens, the vast majority of the world’s nations routinely and automati

demn it as illegal.”77 However, when considering issues like the use o

humanitarian intervention different practices and conflicting views 

chael Glennon’s point that “there is, today, no coherent internat

concerning intervention by states. States disagree profoundly on fun

issues—issues on which consensus is necessary for a treaty or custo

to work.”78 Though consensus does not exist in some domains 

bellum, it is somewhat difficult to accept this negative evaluation of t

the UN Security Council in the changes that are taking place in jus a

Glennon writes:

By intervening in the internal affairs of states, the Security Counc

contributed to the erosion of the Charter’s constraints on use of force, be

with Southern Rhodesia and continuing with legally questionable interv

in South Africa, Iraq, Somalia, Rwanda, and Haiti. Governments th

come to justify humanitarian intervention by states acting in the face of S

Council paralysis rely on the Council’s own record.79

Glennon believes that “there can be little doubt that the Security Co

acted in a manner inconsistent with the limits placed on its authority 

39 and Article 2(7) of the Charter.”80 In support of this thesis he qu

104

77. Anne Slaughter & William Burke-White, An International Constitutional Momen

INT’L L. J. 1 (2002) [hereinafter Slaughter & Burke-White].

78. MICHAEL GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER. INTERV

AFTER KOSOVO 2 (2001).

79. Id. at 114.

80. Id. at 120.

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Murphy who wrote: 

by considering essentially internal human rig

tions and deprivations to be “threats to the peace,” the Security Cou

panding the scope of its authority beyond that originally envisioned in 

VII of the Charter.”81

However, these are two rather different statements. Murphy’s un

ing corresponds to Schachter’s explanation that “no text adopted b

ments can or should foreclose choices imposed by changing conditio

new perceptions of ends and means. The Charter is a living instrum

like every constitutional instrument, continuously interpreted, mou

adapted to meet the interests of the parties.”82 Had not the Securit

reacted to changing circumstances, had it continued to apply the in

tion of the Charter held by its drafters in 1945, the Council would 

mained completely inadequate. As the Permanent Court of Inte

Justice observed in 1923, “the question whether a certain matter is 

solely within the jurisdiction of a state is an essentially relative quest

pends upon the development of international relations.”83 The Co

not yet come close to intervening in any state’s internal affairs. W

Council, using its wide discretionary powers, have found threats to 

tional peace and security (e.g., Haiti) where no such threat seemed 

given the egregious behavior of these states towards their people, th

ior could not be viewed as within the “internal affairs of the state” an

Michael Schmitt is correct when emphasizing that:

Professor Glennon’s thoughtful analysis exaggerates the de jure-de facto 

In fact, what has been happening over the past half-century is a 

evolution in the global community’s understanding of the use of force 

This evolution has been, as it always is and always must be, responsiv

changing circumstances in which international law operates. Practice d

contradict law so much as it informs law as to the global community’s no

expectations.84

105

81. SEAN MURPHY, HUMANITARIAN INTERVENTION: THE UNITED NATIO

EVOLVING WORLD 196 (1996).

82. SCHACHTER, supra note 76, at 118–19.

83. See Nationality Decrees in Tunis and Morocco Case, P.C.I.J., Series B, No. 4, at 

349 (1923).

84. Michael Schmitt, Counter-Terrorism and the Use of Force in International Law, su

this volume.

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Although the end of the Cold War and the accelerating pace of event

quired more changes in the law of jus ad bellum85 than in the pre

years, neither the existing Charter interpretation nor a completely n

rules is either possible or even desirable. International lawyers, be th

service of their governments or academics, must avoid extreme ch

tween, using the words of Ronald Dworkin, “the dead but legitimat

the past and the distinctly illicit charm of progress.”86 Past decisions h

interpreted and reinterpreted in the light of current needs and tende

Terrorism: Jus ad Bellum or Jus in Bello?

Since terrorism is basically about means and methods and not abou

pose for the use of force87 why is it a jus ad bellum issue at all? Should 

106

85. Slaughter and Burke-White even write that “[T]o respond adequately and effec

threats and challenges that are emerging in this new paradigm, we need new rule

1945, the nations of the world today face an international constitutional moment.” 

Burke-White, supra note 77, at 2.

86. RONALD DWORKIN, LAW’S EMPIRE 348 (1998). While Dworkin writes that ju

choose between these extremes, his whole book seems to indicate that the proper c

be somewhere in between and not always either the legitimate hand of the past 

charm of progress.

87. Granville Byford draws our attention to the fact that many historical figures w

admired (at least, but not exclusively, by their own people) have committed act

would be defined as terrorism or crimes against humanity. He, for example, refers 

who killed his prisoners before the Battle of Agincourt but was still lionized by S

Byford, supra note 39, at 36. Tamerlane enjoyed building huge pyramids from huma

today on his monument in the centre of Uzbek capital Tashkent the following words 

to him: “Power is in Justice.” Even in the second half of the twentieth century (the 

period) several future Israeli leaders used terror tactics in their fight for Israeli sta

even the accusations of terrorism against Nelson Mandela’s ANC were not all grou

Irish Republican Army has had sympathizers in various US governments and the 

continued. Byford, therefore, proposes, in order to untangle the knot, “to think of 

the morality of means running along one axis and the morality of the ends runnin

other.” (Id. at 38). Byford correctly observes that even in today’s world in certain 

noble aims cannot be achieved without the recourse to violence. However, what wa

or even heroic in the past may well be criminal today, and secondly, if vio

considerable) may be necessary and acceptable for the achievement of even noble aim

not mean that terrorism is acceptable too. No graph that would justify terror violenc

on the high morality of pursued aims should be acceptable. We have had it enough a

is called: one man’s terrorist is another man’s freedom fighter.

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as some argue,

an issue of criminal justice, or if it has anything to d

legal regulation of use of force at all, then a jus in bello topic only? 

something cannot be a jus in bello issue without first coming und

bellum and terrorism belongs to the domain of jus ad bellum as terror

may constitute a specific, non-traditional (i.e., what the drafters o

Charter did not have in mind in 1945) form of an armed attack that gi

the right of self-defense and/or collective security measures involv

force under Chapter VII of the UN Charter.

Of course, if a terrorist attack is covered by jus ad bellum, if it cons

armed attack or a threat to international peace and security agai

Chapter VII collective security measures involving use of force are ap

automatically also contrary to jus in bello. Such a conclusion follow

very definition of terrorism as a crime.89 Note here that not every te

tack is contrary to jus ad bellum (either because it does not have any 

ement or because of the relatively insignificant nature of the attack). 

every terrorist attack that comes under jus ad bellum, by definition v

in bello. For terrorists, attacks against civilians and civilian objects ar

lateral to the recourse to military force but one of the necessary elem

Jason Vest notes that a defining characteristic of fourth-generation 

“the emphasis on bypassing an opposing military force and striking 

cultural, political, or population targets.”90 This is what terrorists do 

kind of tactic is, ab initio, contrary to jus in bello and (as discuss

107

88. Abdullahi Ahmed An-Na’im, for example, writes that “the answer is simply tha

were international crimes of the utmost seriousness that must be vigorously investiga

to hold those responsible accountable under the law. . . . If there is the political will 

attacks as a matter for law enforcement, not military retaliation, I believe there 

normative and institutional resources to begin the process of criminal accounta

international law.” See Abdullahi An-Na’im, Upholding International Legality a

WORLDS IN COLLISION, supra note 47, at 169. It is interesting that though An-Na’im 

in the case of the 9/11 attacks pursuing extradition would have been unrealistic, he n

accuses the United States of failing to do so. This is like asking the current Iraq

extradite Saddam Hussein. Such a request does not correspond with the seriou

matter. Moreover, in the case of crimes of that magnitude, history since the Nure

have shown, that military and criminal justice measures are almost necessarily inter

89. One may ask whether those who commit acts of terror in armed conflicts are terr

criminals. They are both, of course. In time of war, acts of terror (e.g., deliberate

civilians, killing POWs, using indiscriminate force etc.) are either grave breache

Geneva Conventions or other acts defined as war crimes. See, e.g., Article 1

Convention (III) Relative to the Treatment of Prisoners of War, 1949, reprinted in TH

ARMED CONFLICTS:ACOLLECTION OF CONVENTIONS, RESOLUTIONS A

DOCUMENTS 435 (D. Schindler & J. Toman eds., 3rd ed., 1988).

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

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necessarily changes some modalities of defensive responses. Still, C

has ably demonstrated in his book The Lessons of Terror that terror ta

historically used as a supposedly effective method of waging wars 

Carr convincingly argues that even in the past, though such tactics 

provided some short-term tactical advantages, they have always been 

productive in the long run).91

Of course, a direct armed attack by armed forces of state A again

may be also committed as a terrorist attack if the attack is carried 

grant violation of jus in bello requirements and if at least one of the 

of the use of such modalities of attack is spreading terror among th

tion of the victim state or forcing the government to change its p

surrender.

Terror Attacks and the Necessity of Self-Defense

Terrorism has different causes and circumstances exist that may enha

minish its likely emergence and flourishing. These circumstances 

course, be addressed. However, leaving terrorist attacks without a t

physical response, addressing only the so-called “underlying causes

strates weakness thereby only encouraging new attacks. The use of 

law-enforcement measure or as a military response, though not the on

perhaps the most important means of dealing with terrorism, is no

necessary as both a special and general deterrent. Authorization for m

sponses to terrorist attacks may combine both the element of self-de

that of necessity. Of course, these two are closely linked any way as th

Caroline case speaks of the “necessity of self-defense.”92 In fact, th

Caroline case is often used in the practice and teaching of internation

self-defense precedent that clarifies issues such as necessity, imme

proportionality, the International Law Commission (ILC) has dealt 

the case as one dealing with the concept of necessity.93 The 1980 Rep

ILC, for example, observes that:

108

91. See CALEB CARR, LESSONS OF TERROR.AHISTORY OF WARFARE 

CIVILIANS—WHY IT HAS ALWAYS FAILED, AND WHY IT WILL FAIL AGAIN (200

92. R. Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT’L. L. 82 (1938) 

Jennings].

93. See International Law Commission Commentaries to the Draft Articles on Res

States for Internationally Wrongful Acts, para. 5, UN GAOR, 56th Sess., Supp. No. 10, 

56/10 (2001) [hereinafter Commentaries].

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p, 

invoked precisely to preclude the wrongfulness of an armed incursi

foreign territory for the purpose of carrying out one or another of the ope

referred above. To cite only one example of the many involving situation

kind, there was the celebrated “Caroline” case.”94

Unlike in the first half of the 19th century when the Caroline inc

curred, the right to self-defense today includes measures undertake

non-state entities.95 Accordingly, a situation can exist today when se

against terrorist attacks may be carried out, by necessity and under c

cumstances, in the territory of a third state even without the latter’

Hence, the concept of self-defense characterizes the use of force v

terrorist organization, while the concept of necessity characterizes 

such force in the territory of another state. Necessity, unlike the 

right to self-defense, is not a right (though both are considered a

stances precluding wrongfulness), but as a justification used in ex

circumstances, or as the ILC comments, “under certain very limit

tions.”96

When terrorists operate from the territory of a state and that state 

or unwilling to end the terrorist acts, military action by other states d

the terrorists within the state where the terror operations are origina

can be justified as a state of necessity. This is what Roberto Ago’s co

the draft article in the ILC Report called “the existence of conduct 

though infringing the territorial sovereignty of a State, need not nec

considered as an act of aggression, or not, in any case, as a breach o

national obligation of jus cogens.”97 This is instead a self-defense 

against the terrorist organization that is by necessity carried out in 

tory of a third state; preferably, of course, with the latter’s consent. 

if the territorial state, which has itself been unable to prevent 

109

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

1.

95. In the Caroline incident, the British in 1837 crossed the Niagara River and d

steamship Caroline which was being used by private persons to help rebels fight the 

British were not attacked by the United States or by irregulars acting on behalf of 

States. Therefore, the ensuing discussion between US Secretary of State Daniel Web

Envoy Lord Alexander Ashburton might as well have been about the actions of non-s

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/19

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attacking other states or their nationals and interests, resists the vic

(or its allies) in their efforts to eliminate the terrorists, it itself becom

complice to the terrorist organization. The Entebbe raid in 1976 

this point nicely. When Ugandan forces attacked the Israeli comm

tempting to liberate the hostages (something the Ugandan autho

failed to do), Ugandan forces became legitimate targets of Israeli 

measures.

Once again, of course, the requirements of necessity and propo

play an important role in determining the character of self-defense 

Indeed, the character of terrorist attacks themselves, often of uncert

and magnitude, puts an even higher emphasis on the need to observe 

ciples of necessity and proportionality in the use of military force in 

to such attacks. They are especially important in helping to avoid esc

terrorist related conflicts.

This portion of this article concentrates only on the self-defense 

response to terrorists attacks—leaving for another day the discussi

collective security paradigm. These two paradigms are not exclusiv

ally, responses to terrorist attacks should involve the use of force ac

paradigms.

An armed attack, in the form of a terrorist attack or not, is an erga 

olation of international law and the victim state is not the only injur

A terrorist act(s) that is tantamount to an armed attack concerns 

international community and therefore any such attack should idea

the UN collective security mechanism at the same time as the right o

tim state to use force, either alone or together with its allies, in self-d

curs. Indeed, although dealing primarily with terrorists and suppor

terrorists, Security Council Resolution 1373 states that all states s

the necessary steps to prevent the commission of terrorist acts.” Wh

ent from, and falling short of authorizing the “use of all necessary m

interpretation of this language may well lead to similar conclusions.

Interestingly, the Security Council, while taking measures nec

maintain international peace and security, at the same time recogn

Resolution 1368 and reaffirmed in Resolution 1373 the inheren

110

98. International Law Commission, Draft Articles on Responsibility of States for In

Wrongful Acts, Report of the International Law Commission on the Work of its Fifty-third 

48(1b), U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001) [herei

Articles].

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individual and collective self

defense.Accordingly, though the Co

acting within the collective security paradigm in these resolutions, 

consider that these measures in any way interfered with or superc

right to use force in individual or collective self-defense.

In the current fight against terrorism the use of military force in se

in Afghanistan by the United States, United Kingdom, Canada and 

lies is combined with collective security such as those that are the ba

International Security Assistance Force (ISAF).100 These are not the 

lective security measures being used by the Security Council. As an 

it has also used financial measures against al Qaeda, other terrorist 

tions and individuals linked to them. Chapter VII non-military me

beyond the scope of this article and will not therefore be addressed. 

their use does help make the point that only combinations of vario

and methods of fighting terrorism can lead ultimately to success.

Specific Characteristics of Self-Defense Against Terrorist Atta

Terrorist attacks have some characteristics which traditional a

tacks, as a rule, do not have: (i) attacks are usually carried out not b

armed forces but by non-state groups which may or may not have 

some states (except that terrorist groups have to operate on the terr

least some states and this is one of the essential differences between p

terrorism, though in some respect they may be comparable); (ii) the i

the attackers and their affiliation with other entities (including stat

ally not clear; and, (iii) the means and methods used by terrorists ar

nition, contrary to international humanitarian law since they int

111

99. Myjer and White point to the fact that references to the right to self-defense 

the Preambles of the Security Council Resolutions 1368 and 1373 and therefore, in th

the Council did not unequivocally determine that there had been an armed attack 

United States on 11 September 2001. They believe that “at an early stage therefore 

Council should have made it clear without a shadow of doubt whether it was of the 

there solely is an article 39 situation, or a Chapter VII self-defence situation.” S

White, supra note 31, at 10. However, on 12 September when the Security Cou

Resolution 1368 it may not yet have been clear who was behind these attacks (e.g., h

committed by a US terrorist group, then such an attack would not have given rise to 

self-defense under international law notwithstanding the magnitude of the attack)

the Security Council could not have used such specific language. Moreover, a refe

right to self-defense in the preamble of a resolution wholly devoted to a terroris

sufficient indication that the Council believed that there was at least a prima facie 

situation.

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

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target non

combatants and attack prohibited objects. These parti

tures of terrorist attacks condition the character of responses to the

First, what is the status of terrorist organizations in international 

Article 51 apply to attacks carried out by non-state entities? Mich

writes that “it will probably be argued that the atrocities of 11 Sept

not constitute an armed attack since they did not involve the use of 

state, and that the relevant framework of analysis is instead internatio

inal law.”101 Eric Myjer and Nigel White write that “the categorizat

terrorist attacks on New York and Washington as an “armed attac

the meaning of article 51 is problematic to say the least. . . . Self-defen

tionally speaking, applies to an armed response to an attack by a 

Pierre-Marie Dupuy writes that “the shock of 11 September should c

examination of norms conceived solely on the basis of relations 

states.”103 However, such a re-examination has already been ongoing 

time and international law is no longer as state-centric as it was, for 

in 1945 when the UN Charter was adopted. Not only are individ

criminally responsible directly under international law for geno

crimes and crimes against humanity, but the Security Council has g

as to impose sanctions against non-state entities such as the Ian Smi

in Southern Rhodesia, UNITA in Angola and Bosnian Serbs.104

There is little doubt that the drafters of Article 51 contemplated 

tacks committed only by states even though the article itself does n

itly say so. However, it is not only the absence of any direct refere

armed attack by a state in Article 51 but more importantly, the need 

pret the Charter in the context of current realities that indicates tha

of self-defense may arise also in the case of attacks by non-state enti

Yoram Dinstein writes:

112

101. Michael Byers, Terrorism, the Use of Force and International Law after 11 Septemb

411 (2002).

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

103. Pierre-Marie Dupuy, The Law After the Destruction of the Towers, EUR 

DISCUSSION FORUM at 1 (2002) available at http://www.ejil.org/forum_WTC/ny

(Nov. 30, 2002).

104. For example, Security Council Resolution 924 imposed sanctions against Bosnia

S. C. Res. 924, U.N. SCOR, 49th Sess., U.N. Doc. S/924/(1994). Similarly, Res

found that “as a result of UNITA’s military actions, the situation in Angola constitu

to international peace and security.” An arms embargo was imposed against 

entity—UNITA. See S. C. Res. 864, U.N. SCOR, 48th Sess., U.N. Doc. S/864/(199

105. See, e.g., Ruth Wedgwood, Responding to Terrorism: The Strikes against bin Laden

INT’L L. 559 (1999).

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[

]p, jy 

of self-defence under Article 51, it need not be committed by anothe

Ordinarily, the perpetrator of the armed attack is indeed a foreign state 

Yet, in exceptional circumstances, an armed attack—although mount

the territory of a foreign state—is not launched by that state.106

Referring to the case when the Security Council had employed 

“armed attacks” characterizing raids by mercenaries from the territo

gola and condemning Portugal for not preventing these raids, Dinste

sizes that “armed attacks by non-state actors are still armed attack

commenced only from—and not by—another State.”107

Giorgio Gaja, analyzing the 11 September attacks against the Uni

in light of the references to the right to self-defense in Security Coun

tions and the NATO decision activating Article 5 of the Washingto

cautiously opines that “depending on the factual circumstances, the 

of the terrorist acts of September 11th as “armed attack” may not n

imply that the concept actually refers to acts that are not attribu

state.”108 However, the US demands addressed to the Taliban (wh

was a non-recognized authority that various Security Council resolu

called “the Afghan faction known as the Taliban, which also calls its

lamic Emirate of Afghanistan”)109 to surrender Osama bin Laden an

Qaeda terrorists seem to indicate that the United States, at least in

not consider that Afghanistan (or even the Taliban for that matte

rectly responsible for the attacks.110 Only the refusal of the Taliban 

comply with the US demands and their active defense of the Qaed

led to the use of force in self-defense against both al Qaeda and the 

113

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. D

FORUM at 1 (2002), available at http://www.ejil.org/forum_WTC/ny-gaja.html (Nov

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

110. The Unites States insisted that the Taliban: “Deliver to United States autho

leaders of Al Qaeda who hide in your land. Release all foreign diplomats, includin

citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats, and ai

your country. Close immediately and permanently every terrorist training camp in A

and hand over every terrorist and every person in their support structure to 

authorities. Give the United States full access to terrorist training camps, so we ca

they are no longer operating.” President George W. Bush, Address Before a Joint Se

Congress on the United States Response to the Terrorist Attacks of September 11, 

COMP. PRES. DOC. 1347 (Sep. 20, 2001).

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The current war against terrorism, of course, differs from previo

the sense that though there was a clear victim of the attack—th

States (or rather several victims because, e.g., hundreds of British 

nationals were also attacked), there was no prima facie perpetrato

one of the peculiarities of 21st century wars, that is not without p

Acts of so-called indirect aggression111 do not always have an obvio

since it may be difficult to attribute acts of paramilitary or irregular f

specific state. However, indirect aggression, as enshrined in the 197

tion of Aggression, presumes the existence of an aggressor state, whic

of using its regular armed forces perpetrates acts of aggression throu

lar armed bands, guerrilla forces, etc. In such a case, irregulars are ag

aggressor state.

Contemporary terrorism is even more complicated. Acts of indire

sion are usually, though not necessarily always, carried out against 

ing states and notwithstanding that there may be difficulties in attrib

of irregulars to the state from the territory of which these at

launched, the identity of the state is not, as a rule, in question (wh

questioned is whether that state is an aggressor or not). Attacks lik

September 11th may not even have a prima facie culprit, state or no

However, this does not mean that an aggressor does not exist. Su

clusion would not only be contrary to common sense, it is not one re

contemporary international law.

In a sense, military responses to terrorist attacks do not raise leg

sophical, moral or even political issues as complicated as, for example

itarian intervention does. First of all, notwithstanding its specific 

non-traditional features, terrorist attacks originating from abroad c

qualified as armed attacks giving rise to the inherent right to sel

Together with military operations to rescue one’s nationals abro

anti-terrorist operations may be qualified as special (non-traditio

defense operations. Secondly, military responses to terrorist attacks 

politically less controversial than, for example, the use of force to pr

man rights in foreign countries. Although some states still refuse to 

specific terrorist attacks and even try to find justifications for som

114

111. See Article 3(a) of the Definition of Aggression of 1974 which states that “the s

on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry 

armed force against another state of such gravity as to amount to the acts listed a

substantial involvement therein,” is an act of aggression. See 1974 U.N. Definition o

29 U.N. GAOR, Supp. 31, art. 3(a), U.N. Doc. A/RES/3314 (XXIX) (1975) 

Definition of Aggression].

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(e.g., most Arab states still refuse to condemn, without any qualifica

estinian terrorism), the traditional support for the idea that a just c

national-liberation struggle) justifies the use of terrorist methods is 

weaker.112

If the right to the use of force in self-defense is dependent on the 

of an armed attack (or arguably in the case of so-called anticipatory 

ceptive self-defense in anticipation of such an attack), the modalit

exercise of this right depend on the characteristics of the armed 

Therefore, we have to consider the specific and distinctive features o

attacks that would condition specific methods and means of 

responses.

In the case of responses to terrorist attacks, the question of imme

have to be addressed differently. As the source of attacks may not b

ately obvious and preparations for responses that often have to be s

take time (gathering intelligence data, building coalitions etc.), the p

tween the attack and responsive measures may be rather substantia

respect, the situation may be compared to one that existed, for exam

the Iraqi invasion of Kuwait. Although for almost half a year there w

tive military operations going on after the Iraqis had occupied Ku

right by Kuwait and its allies to use force in self-defense was not ext

(maybe only suspended for a while due to the active involvement of 

rity Council). The Gulf War did not start on January 15th, 1991 whe

alition launched Operation DESERT STORM. It started on August 

when the Iraqi troops attacked and occupied Kuwait. Similarly

against terrorist attacks started on September 11th at 8:45 when th

craft hit the World Trade Center, if not earlier had the United St

able to use its right to anticipatory or interceptive self-defense.

115

112. In 1978 the statement by Ambassador Harriman of Nigeria, who was Chairma

Hoc Committee on the Drafting of an International Convention Against the 

Hostages, disputed the use of the word ‘terrorist’ describing the Palestinian stru

Israel: “Here I wish to reiterate that my Government does not believe that an

movement should damage its prestige by taking hostages, and that the noble fights f

should be based on very high values. I believe that the PLO at no stage in its war for li

abused privilege; at no stage has it terrorised; it is at war.” Ambassador Harriman 

William O’Brien, Reprisals, Deterrence and Self-Defense in Counterterror Operation

INT’L L. 449 (1990). If at that time, the Soviet Union, a permanent member of 

Council, wholeheartedly subscribed to this statement, today Russia, which is facin

terrorism in Chechnya, as well as Central Asian successor states to the Soviet Union

reject such assessments of ‘liberation’ movements.

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

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The question of immediacy is close also to two other issues: use o

anticipation of an attack and defensive reprisals. Often military res

terrorist attacks have to draw a fine balance between two controvers

ities of the use of military force in self-defense—the Scylla of anticip

defense and the Charybdis of reprisals. As Gregory Travalio writes, “

ticipated action by terrorists is not sufficiently imminent, the right to 

is not available for purposes of deterrence. On the other hand, if pas

actions by a group are too remote in time, the response by force is li

characterized as an illegal reprisal.”114 Because terrorist warfare usu

sists of a series of relatively small-scale attacks that often need to be p

by measures that combine some elements of retaliation (since a res

mes after the attack) and anticipation (since a response comes in an

of a new attack), the exercise of the right to self-defense against te

tacks requires at least some (sometimes quite considerable) practi

concepts of a anticipatory self-defense and defensive reprisals.

The need to use preventive force against terrorists becomes even 

vious when we take into consideration the fact that terrorists do n

military targets that are usually well defended and that, at least in 

should be ready to defend themselves when attacked. Anne-Marie 

and William Burke-White observe that “in our previous understandi

it was possible to attack the vital life within a nation by first destr

army that protected it.”115 Today, terrorists avoiding military objecti

tionally target defenseless civilians and civilian objects, i.e., non-co

they choose soft targets that would be almost inevitably destroyed 

were not prevented. Therefore, in many cases preventive, anticipat

terceptive self-defense is the only effective method of preventing 

from achieving their goals.

Interceptive self-defense seems to indicate that only when an at

ready launched is it legitimate to intercept (e.g., intercepting missile

boost trajectories but not destroying them in their launching silos). I

of traditional inter-state conflicts this is probably a prudent interpr

the right to self-defense. However, today and in the context of se

against terrorist attacks (especially if the latter have access to WMD

tive or anticipatory measures seem justified. As terrorism is usually a 

ous process being carried out in the murky underworld, it would be t

116

114. Gregory Travalio, Terrorism, International Law, and the Use of Military Force, 18 

L. J. 165 (2000) [hereinafter Travalio].

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

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risky to rely only on the interception of individual attacks that hav

ready irrevocably launched without attempting to destroy terrorist b

ply lines, training camps and other similar facilities.

The necessity to use military force in self-defense against terrori

shows that the dividing line drawn, for example, by the Internationa

Justice in the Nicaragua Case between armed attacks and “less grave 

the use of force,116 is no longer tenable, if it ever was.117 Dinstein, re

J.L. Hargrove and J.I. Kunz, has rightly emphasized that “in reality, t

cause to remove small-scale armed attacks from the spectrum of 

tacks. Article 51 in no way limits itself to large, direct or important 

tacks.”118 The same criticism also applies to Article 3(g) of the De

Aggression, which emphasizes that actions by armed bands, groups, 

or mercenaries “sent by or on behalf of a state,” which carry out acts 

force against another state “of such gravity as to amount to an actu

attack conducted by regular forces” could be considered as acts 

sion.119 Why only attacks of such gravity? Why this difference? It 

quirement of proportionality between a legitimate purpose for the u

and the character and scale of force necessary to achieve that purpos

to take care that relatively minor incidents involving the use of mili

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, som

(notably Israel, the United States and South Africa) argued in the past th

could use force in self-defence to respond to such attacks by targeting t

bases in the host country. This recourse to self-defence was predicated 

principle that such countries, by harbouring terrorist organisations, so

promoted or at least tolerated terrorism and where therefore “accom

they were responsible for the so-called indirect armed aggression. Howe

majority of states did not share let alone approve this view. Furthermore

reprisals in response to small-scale use of force short of an “armed 

proper, have been regarded as unlawful both against states and against t

117

116. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U

I.C.J. Reports 1986, para. 191 [hereinafter Nicaragua].

117. Many authors have criticized this distinction drawn by the ICJ between armed 

“mere border incidents.” See, e.g., ROSALYN HIGGINS, PROBLEM AND 

INTERNATIONAL LAW AND HOW WE USE IT, 250–51, (1994); DINSTEIN, supra not

118. DINSTEIN, supra note 6 at 192.

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

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gpy 

framework.”120

This traditional attitude that may have been prevailing before 9/11 w

cated on the paradigm of traditional state-to-state conflicts but tod

not correspond to the character and seriousness of terrorist threats.

In the case of terrorist attacks the immediate gravity of a single a

not be very significant indeed either because this is a link in a chain o

or even more importantly, because in the case of a terrorist attack th

ate target is not the only and even the most important objective. A

Reisman writes:

terrorism, like any other act of unauthorised violence, has three exp

circles of effects including: an immediate effect of killing or injuring peop

are deemed, either for all purposes or in that context, to consti

internationally prohibited target; an intermediate effect of intimidating 

number of people and thereby influencing their political behaviour and 

their government; and an aggregate effect of undermining inclusive 

order.121

This means that legal frames of responses to terrorist attacks cann

lored on the basis of the experience of the World Wars (or even the 

for that matter) only.

In order to provide for effective responses to terrorist attacks, inte

law cannot prohibit the use of military force in self-defense in case

ICJ may have defined as “less grave forms.”122 At the same time, res

terrorist attacks may combine significant elements of deterrence, an

and reprisal. The changing character of jus ad bellum, it seems, will m

ably lead in the short run towards the emergence of a kind of flexible 

ad bellum—jus ad bellum in which the concept of legitimacy instea

ity is central, where the impact of a few specially interested states (o

ganizations such as NATO, G8 or G9) is crucial, where the legitimiz

the Security Council (especially its P5) remains noticeable, where th

of some states and opinio juris of other states may considerably differ a

118

120. Antonio Cassese, Terrorism Is also Disputing some Crucial Categories of Internatio

EUR. J. INT’L L. 996 (2001).

121. W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. IN

(1999).

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

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the frontiers between interstate and intrastate conflicts is becoming 

more blurred. Such a flexible set of guidelines enjoying consensus o

jority of states and being supported by the world public opinion cre

tive predictability and is therefore preferable to “hard,” definitive 

rules that are not observed in practice.

Terrorist Organizations and States Supporting Them

Another specific feature of military responses to terrorist attacks arise

link between terrorist organizations and states in the territory, or from 

tory, of which they operate. Somewhat different is the situation wh

supports terrorists (e.g., financially, logistically, politically, ideologica

erwise) but its territory is not used as a basis for launching terrorist att

ferences, however, do not mean that the latter can eschew responsib

support of terrorists.

The fact that non-state entities are directly responsible under inte

law for armed attacks and that states have the right to use force in se

against such entities does not mean that the states from which these 

operate are not themselves responsible under international law. D

on the degree of support given to, or control exercised by, a state ove

ist organization such a state may be directly responsible for armed at

ried out by terrorists.

It has been argued, however, that a mere tolerance of the presen

rorist groups in the territory of a state or even encouragement of th

ties is an insufficient connection to constitute an armed attack by th

It has been asserted that the state must exercise actual control over 

organization to have the latter’s acts attributed to the state.124

In the Nicaragua Case the ICJ held, for example, that assistance in 

of providing weapons, logistical or other support did not amount to an 

tack.125 The Court found that by training, arming, equipping, financin

plying the Contra forces or otherwise encouraging, supporting a

military and paramilitary activities in and against Nicaragua” the Uni

had been “in breach of its obligation under customary international l

intervene in the affairs of another state.”126 The Court also said tha

119

123. See, e.g., RICHARD ERICKSON, LEGITIMATE USE OF FORCE AGAINST STATE S

TERRORISM, 134 (U.S. Air War College 1989).

124. Francis A. Boyle, Military Responses to Terrorism: Remarks of Francis A. Boyle, 81 

SOC’Y INT’L L. 288 (1987).

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

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

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those acts of intervention referred to in subparagraph (3) (i.e., a

contras and otherwise encouraging and supporting military and param

tivities in and against Nicaragua),” which involved “the use of force

United States acted “in breach of its obligation under customary int

law not to use force.”127 Here the Court clearly made a distinction be

breach of the non-use of force principle and the concept of armed atta

did not consider that any support by the United States to the Contr

tuted an armed attack. However, it is not clear at all as to the kind of f

by whom?) the Court spoke of in paragraph 292 (4). If it is force us

Contras against the Sandinista government then should not it be qui

that the US support as a whole should have been in breach of the n

force principle?

Judge Stephen Schwebel in his dissenting opinion concluded 

Judgement of the Court on the critical question of whether aid to 

may be tantamount to an armed attack departs from accepted—a

able—law.”128 Judge Sir Robert Jennings expressed a similar view stat

it may be readily agreed that the mere provision of arms cannot be 

amount to an armed attack. But the provision of arms may, neverthele

very important element in what might be thought to amount to armed 

where it is coupled with other kinds of involvement. Accordingly, it seem

that to say that the provision of arms, coupled with logistical or other su

not armed attack is going much too far.129

Although it seems that during the Cold War, state practice did 

sider assistance in the form of arming and financing armed groups t

ated in other countries as armed attacks by supporting states (bec

parties of the Cold War used to support financially and militarily th

ies), today there are rather strong arguments in favor of reconsideri

condescending posture towards states that support terrorist groups

ternational law has not always had such a complacent attitude 

attributability to states of acts of non-state entities was recently rein

the International Criminal Tribunal for the Former Yugoslavia (ICT

The Appeals Chamber of the ICTY in its Judgement of 15 July 19

Dusco Tadic case found that “a first ground on which the Nicarag

such may be held to be unconvincing is based on the very logic of 

120

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

128. Nicaragua, supra note 119, at Dissenting Opinion of Judge Schwebel, para. 15

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

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system of international law on State responsibility.

The Chamb

that under this logic

States are not allowed on the one hand to act de facto through individu

on the other to disassociate themselves from such conduct when 

individuals breach international law. The requirement of international 

the attribution to States of acts performed by private individuals is t

State exercises control over the individual. The degree of control may, h

vary according to the factual circumstances of each case. The Appeals C

fails to see why in each and every circumstance international law should 

high threshold for the test of control.131

The Chamber found that “the “effective control” test propounded by 

national Court of Justice is at variance with international and S

tice.”132 References to state practice collected over many years, int

various ILC reports on the Draft Articles on State Responsibility see

port the position of the Appeals Chamber of the ICTY.

Although one of the important features of the changing internatio

scape is the increasing role (both positive and negative) of non-sta

the world still is, and in the foreseeable future will remain, divided 

sovereign states. Therefore, terrorists necessarily act (preparing for 

tacks, training, receiving financial and other support) from the te

some states even when they do not act on behalf of, or are not even s

by any state. Such states are either unable or unwilling133 to prevent 

terrorist organizations using their territory for the purposes of carryi

tacks against other states. Thereby they are committing, using the la

the Draft Articles on State Responsibility recently adopted by the ILC

nationally wrongful acts either by action (condoning or supporting 

121

130. See Prosecutor v. Tadic, Judgement of 15 July 1999 in the Appeals Chamber, 

(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 

organizations and sympathy for their cause but also active support, assistance as we

degrees of control.

134. See generally Draft Articles, supra note 99.

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or by omission (not preventing attacks from its territory agains

state).135 At the same time, as Gregory Travalio writes,

although this may not necessarily preclude the use of military force in r

to a terrorist attack emanating from such a state, the impotence of a 

control international terrorist organisations would not be an armed 

against another state, and, therefore the use of force in response is not e

sanctioned by Article 51.136

However, this only means that the use of force is not sanctione

such an impotent state. This does not mean that use of force would 

ful against the terrorist group which is present and operates in the t

that state. If a state is impotent to prevent the presence of terrorist 

its territory and their attacks against third states it must not preven

state or its allies from exercising their right to individual or collectiv

fense in response to armed attacks by terrorists. In such a case, the 

the territory of which a terrorist group operates is under the obligat

hinder the victim state in the exercise of its right to individual or 

self-defense in the territory that it is unable to control. If such a sta

prevent the exercise of the right to use force in self-defense against t

ist organization, it becomes an accomplice of the terrorist organizati

that case it is not important whether the state supports terrorists, or 

the latter, as it seems to have been the case with al Qaeda in Afg

control the state. Otherwise, the impotence of territorial states wou

impunity of terrorist organizations.

Conclusion

Simplifying a bit, the law of self-defense has, at least until recen

sponded to the strictly inter-state nature of international society mo

bilateral manifestation. The law of collective security corresponds 

feeble shoots of the supra-state elements in international society. 

about uses of force against terrorists or to protect fundamental hum

These seem to be contrary to the very nature of a strictly inter-sta

However, the contemporary international system itself is less and le

122

135. Article 2 of the Draft Articles states “‘there is an internationally wrongful ac

when conduct consisting of action or omission’ is attributable to the State and c

breach of an international obligation of the State.” Id. at art. 2.

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

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an inter

state one. One of the consequences of such a change in th

tional system is the impossibility of seeing states as “black boxes.” If 

ditionally collided as “billiard balls” (from the point of view of inte

law) in the “armed attack—self-defense” paradigm they could even

engage and continue, at least for a while, to co-exist more or less p

(often until the next conflict) without changing their internal, or ev

nal, characteristics. Historically, this is what usually happened. The 

recent Iraq-Iran war, for example, ended in such a way. However, ev

inter-state “armed attack—self-defense” paradigm it may be necess

der to break the cycle of violence, to change internal characteristics 

the participants in the conflict. The de-nazification of Germany or 

ization and democratization of Japan after WW II may serve as ex

such necessary changes. Even today there are potential, simmering 

conflicts between states that could find peaceful and durable soluti

participating states (all or some) radically change their policies, inc

ternal ones. For example, Iraq was defeated in 1991 as a result of O

DESERT STORM but notwithstanding measures requested from, and 

undertaken against it, the regime in power in Iraq is the same as it w

and the threats it constitutes to the regional and world security are 

the same too. To fight against terrorists without addressing circu

conducive to the rise of terrorism or intervening for the sake of hum

without being ready to undertake considerable efforts focused on st

ing will be in most cases simply a Sisyphean toil. As Dmitri Trenin, w

the future place and role of Russia in the world and referring, inter a

Russian problems with Islamic militants, observes,

there is no acceptable alternative to fighting Islamic terrorism. At th

time, cultural and humanitarian dialogue across that divide is a must, 

development of economic links, including new communications alon

East-West and North-South axes, is one of the few instruments avai

encourage modernization and help resolve or manage the various confl

I prefer to discuss the use of force against terrorists and not again

ism. Fighting terrorism or waging a war against terrorism (which in a

a non-legal concept) goes far beyond jus ad bellum or jus in bello, for 

ter. Fighting terrorism implies, besides fighting terrorists through m

nancial or law-enforcement means, also addressing the conditions c

123

137. DIMTRI TRENIN, THE END OF EURASIA. RUSSIA ON THE BORDER 

GEOPOLITICS AND GLOBALIZATION, 196 (2002).

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to the emergence and flourishing of terrorism. One of the peculiar f

the fight against terrorism is that tough military or, depending on 

stances, law enforcement measures, practically always have to be par

the search for political solutions to problems exploited by terror

changes in the social and economic conditions that are cond

terrorism.

Looking at the character and causes of some of the most violent c

rary conflicts, states, and the societies they represent, have to becom

important respects more similar to each other than they are today. C

versity is, of course, a source of the rich tapestry of the world. Howe

huge developmental gaps are taken for cultural differences, denyi

same time, that certain cultural factors condition the existence of t

that such factors may be also a serious source of the wealth of some 

and the poverty of others, serious sources of conflicts cannot be i

people, for example, in Saudi Arabia or other Islamic states have 

choices—the corrupt and authoritarian regimes or Islamic fund

ism—these societies will remain a fertile soil for terrorism. Of cours

gions have always had and many still have this totalitarian exclusiv

As Hamid Enayat has written, “if Islam comes into conflict with cert

lates of democracy it is because of its general character as a religion. 

trinsic concomitant of democracy . . . involves a challenge to many 

axiom.”138 And Rabbi David Hartman writes: “[a]ll faiths that come 

biblical tradition—Judaism, Christianity and Islam—have the tende

lieve that they have the exclusive truth.”139 However, in contradist

Christianity, Islam has not gone through what Francis Fukuyama h

the Protestantisation of Catholicism140 or the secularization of 

worldviews. Bassam Tibi writes:

[i]n the Middle East as well as in other parts of the World of Islam, th

never been a process of structural change underlying a substantive 

worldview from a religious one to a secular one, as did occur in the h

process that took place in Europe. Given the community and dominanc

Muslim’s worldview there has never been a genuine process of secularis

the Middle East underlain by secular ideologies.141

124

138. HAMID ENAYAT, MODERN ISLAMIC THOUGHT, 126 (1982).

139. Id.

140. FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CRE

PROSPERITY, 41 (1995).

141. Tibi, supra note 33, at 97.

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Secularization of religious worldview has helped Western societies 

(modernize) in response to natural and social challenges. Returning t

never an adequate response to any new challenge and only adequately 

ing to constant challenges are societies able to develop and flourish

ization, including democratization, the development of huma

including freedom of expression, and equality between sexes, is a co

qua non of the development of Islamic and other societies in the so-

veloping world. Karim Raslan, a Malaysian lawyer, writes that:

[t]he moral bankruptcy of militant Islam as embodied by the Taliban, a

its abject failure in socio-economic terms, should embolden the lea

moderate, predominantly Muslim nations such as Turkey, Indone

Malaysia in their struggle against religious obscurantism and backwa

Needless to say, Saudi Arabia, as an absolute monarchy with no concern 

liberties, does not constitute a model Islamic polity.142

He also correctly points out that reforms must be driven from with

lamic world. It is doubtful whether those Islamic scholars who, as Kar

writes, try to “extract the prophetic truths from the Koran to show the 

compatibility of modern-day concerns with sacred texts,”143 can do w

tian scholars failed in doing. Bassam Tibi has written that:

[t]he predicament of Islamic fundamentalists vis-à-vis modernity has 

become an expression of their ambiguity: on the one hand they 

accommodate instrumentally all or most of the material achievem

modernity (that is, science and technology) into Islamic civilisation; 

other hand, they reject vehemently the adoption of the man-centred rat

that has made these achievements possible.144

As a result of that we have post-modern weapons in pre-modern hand

Tibi further writes that “secular cultural modernity is worth defendin

the predations of religious fundamentalisms,” and he and Ernest Gel

the conviction that “reason and enlightenment need also be protected 

intellectual adventures of postmodernism.”145 I agree.

125

142. Karim Ralsan, Now a Historic Chance to Welcome Muslims into the System, INT

TRIBUNE, Nov. 27, 2001, at 8.

143. Id.

144. Tibi, supra note 33, at 118.

145. Id. at 47.

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Western political correctness that is not unrelated to the pos

sense of guilt and shame for injustices committed against non-Wes

ples sometimes reminds of the ostrich who, facing a threat, hides i

sand. Something like that happens when some Western liberals d

face, threats from culturally and religiously different sources. It is cor

also politically correct), to say that poverty and injustice are conduc

rorism (whether they are root-causes or not, is another matter). How

also correct (but politically incorrect), to say that often poverty and 

are due not only and not so much to the colonial or neo-colonial inh

but are of endogenous, and not exogenous, origin. Chris Brown writ

the West’s handling of the religious dimension of the current conflict h

based on a rather irritating, if perhaps politically understandable, 

standard. Christians such as Tony Blair and George W. Bush—und

sincere in their beliefs, but living in a world where religious conviction i

with irony—cannot express their own deeply held convictions in ex

Christian terms for fear of alienating the decidedly un-ironic beliefs 

coalition partners in Pakistan and the Arab world. The sensibilities 

latter—however irrational—have to be respected; and, indeed, respec

case seems to mean actually pandering to irrational. The implicit assu

seems to be that it would be both unfair and unsafe to subject Muslim 

attitudes and behaviour to the kind of robust criticism common in W

societies.146

Brown calls it “reverse racism” that is expressed, for example, in the 

British correspondent of The Independent Robert Fisk who, as a West

beaten up in Afghanistan, but who seemed to understand and justi

havior of his tormentors “given the indignities and violence to which 

been subjected.”147 As New Yorkers seem not to be justified in beatin

lims, the obvious explanation, writes Brown, is that Muslims as indivi

not be held morally responsible for their acts in the way New Yorke

Politicians and diplomats may be justified (naturally not always lest it 

bad habit) in avoiding straight talk when building shaky but necess

tions but journalists and especially academics have to try to unco

however unpleasant or inconvenient they may be. Pretending tha

126

146. Brown, supra note 63, in WORLDS IN COLLISION, supra note 47, at 295.

147. Robert Fisk, My Beating by Refugees is Symbol of the Hatred and Fury of the Filth

INDEPENDENT, Dec. 10, 2001, at 1.

148. Brown, supra note 63, in WORLDS IN COLLISION, supra note 47, at 295.

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fundamentalism has nothing to do with the religion of which it is o

trends does not help.

The war against terrorism requires moral clarity, intellectual soph

and military toughness—qualities that are not always in harmoniou

ship. This makes that war especially difficult. However, only address

conditions that are conducive to the emergence and flourishing of 

searching for solutions to political situations and crises that are ex

terrorists but that often are real and serious, using available and cre

criminal justice mechanisms and, finally, when necessary intelligen

ing to military coercion, is it possible to control terrorism.

127

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IV

Panel I

Commentary—Jus ad Bellum

Robert Turner1

tarting with the issue of the Taliban, Mike Schmitt continues t

bled about the legality of using force against the Taliban. I beg

position also. Indeed, at one point I authored an opinion for an edit

stating that if the Taliban resisted when the United States used for

al Qaeda, it would be legally permissible to use force against the Tali

sequently, I have re-thought this view and I now think the appropria

deal with this issue is to recognize that the Taliban was not in fact eith

or de facto the lawful government of Afghanistan.

To begin with, at the height of the “Taliban Regime,” only three 

in the world, Saudi Arabia, United Arab Emirates, and Pakistan, c

diplomatic relations with the Taliban. This means that 189 countrie

When the UN Security Council ordered countries to either break 

with the Taliban or not to have dealings with the Taliban, the n

states with diplomatic relations with the Taliban became one, Pakist

aside, I believe that Pakistan was probably encouraged by a number o

1. Professor Robert Turner co-founded the Center for National Security Law at th

of Virginia School of Law in April 1981 and is its Associate Director. He is a former h

Charles H. Stockton Chair of International Law at the US Naval War College 

Rhode Island.

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retain such a relationship with the Taliban in order to have a state c

communicating demands to the Taliban. However, almost all states 

prise the world community did not recognize the Taliban as the go

of a sovereign state. Moreover, at the time the United States initiate

of military force against the Taliban, the UN Security Council, on 

the international community, had taken the position that the Taliba

comprise the government of a state. In fact, the Security Council co

has referred to them as the “faction in Afghanistan known as the T

as to ensure there is a clear international understanding that the T

not comprise the recognized government of the country of Afghanis

The easiest way then, to resolve the issue of whether the Taliba

recognized government of Afghanistan or not is to conclude that th

was a religious force that had seized control over substantial parts of 

stan and was trying to enforce its moral rules upon the people. I do n

that the Taliban viewed itself as the government of Afghanistan. M

guess is that military leaders of the Taliban militia did not hold com

issued in the name of the government of Afghanistan nor did they 

themselves as the armed forces of Afghanistan but rather as the enf

arm of a religious organization or entity. Before Operation ENDURI

DOM began, I do not think the United States government, its citize

citizens of Afghanistan perceived that the United States was going to 

Afghanistan. I think the perception and the reality were that th

States was using force inside Afghanistan to bring to an end a very a

legitimate, totalitarian regime, controlling the people of that cou

United States was liberating the people of Afghanistan not oppressi

On a related note, an argument exists based on humanitarian int

grounds for the US intervention in Afghanistan. After all, if one tak

sition that international law makes it unlawful for sovereign states 

vene to prevent the genocide in World War II or the slaughter of tw

Cambodians, then international law itself has become part of the pro

the solution. Indeed my friend Rudy Rummel in his book Death by G

points out that during the 20th century, probably three to four ti

people were slaughtered by their own governments than died in 

throughout the entire century.3

Now let me raise a trivial point and one I have previously discu

Professor Schmitt. Mike refers to the September 11th attacks as 

130

2. See, e.g., S. C. Res. 1193 U.N. SCOR, 53d Sess., U.N. Doc. S/1193/(1998), para

3. RUDY RUMMELL, DEATH BY GOVERNMENT (1994).

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property and financial damage measuring in the hundreds of millio

lars.” The reality is that this cost must be in the many billions o

Counting only the value of the human lives lost in the attack on t

Trade Center, the cost would surely be in the billions of dollars. Th

nothing of the incredible clean-up efforts currently underway or the 

the attacks on financial institutions throughout the world. Added 

course, are the countless costs such as the lost time of business exe

airport security, the cost of strengthening cockpit doors, the loss to t

industry.

These costs are only financial in nature though. How much mor

to attempt to quantify the emotional costs in fear, anger and grief? 

lectured on terrorism at the Naval Justice School, and my son came 

During my presentation, my nine-year-old son drew a picture of t

Trade Center with some very poignant words about terrorism. Th

emotional cost cannot be measured in dollars but it is nonetheles

dous. When all of these costs are quantified, we may well be talking i

lions of dollars.

More substantively, I have a nuanced difference with Mike Schm

ing the definition of what an “armed attack” truly is. I think Professo

is taking a literalist approach to the UN Charter regarding the defini

armed attack. It is true that Article 51 refers to the inherent right 

fense if an armed attack occurs against a member of the United 

However, Professor Schmitt also makes the point that only memb

United Nations are cloaked with the inherent right of self-defense pu

Article 51. While perhaps true with respect to Article 51 in the lite

this is false in reality inasmuch as the inherent right to self-defense is 

stone of customary international law. As an example, when non-UN 

North Korea invaded non-UN member South Korea, the United N

curity Council acted and authorized the use of force in collective sel

Clearly, South Korea had this right before the action of the Secur

cil. Undoubtedly, the prohibition on the use of aggressive force con

Article 2(4) of the UN Charter is binding but the more importan

131

4. U.N. CHARTER, art. 51, provides that “[n]othing in the present Charter shal

inherent right of individual or collective self-defence if an armed attack occurs again

of the United Nations until the Security Council has taken measures necessary 

international peace and security.”

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that Article 51 of the Charter does not create the right of self

defens

Article 51 was one of the most important parts of the charter, it w

afterthought.

The prohibition against the aggressive use of force is embodied 

2(4) of the UN Charter. With the conclusion of the Act of Chapu

19456 which embodied the principle of collective self-defense, th

States and its Latin American neighbors wanted the UN Charter 

state that if the Security Council was blocked from taking action by 

some other reason, the traditional right of collective self-defense as 

in the Act of Chapultepec remained unimpaired and available. Th

ultimate purpose of Article 51 of the United Nations Charter.

Although the drafters of the UN Charter had in mind World W

World War II, the French version of Article 51 uses the term arme

sion and not armed attack and I believe this to be the more appropr

of Article 51. The question is whether there is a wrongful act involvi

of lethal force that creates a right to use force in self-defense. Mind 

proportionality doctrine applies in this analysis and a small incursio

authorize a nuclear response or any disproportional response.

This view is quite clearly supported by a review of the notes exc

the time of the Kellogg Briand Pact of 1928. Prior to entry into for

Pact, a number of countries were prepared to include reservations to 

fication reserving the right to self-defense. The US response was to s

diplomatic note saying the right to self-defense is imprescriptable. 

pre-exists treaties, is inherent in treaties, and cannot be taken away

treaty. Interestingly, the Russian text of Article 51 also does not re

inherent right of individual or collective self-defense but instea

132

5. In 1928, Secretary of State Frank Kellogg stated “that right is inherent in every 

implicit in each treaty. Every nation is free at all times and regardless of treaty p

defend its territory from invasion and it alone is competent to decide whether c

require recourse to war in self-defense.” Frank B. Kellogg, Address Before the Amer

of International Law (Apr. 28, 1928) in 22 PROC AM. SOC’Y INT’L L. 141, 143 (

quote constituted official US recognition at the time that the right of self-defens

restricted by treaty.

6. Inter-American Reciprocal Treaty of Assistance and Solidarity (Act of C

Mexico); March 6, 1945 This act provided:

[t]hat every attack of a State against the integrity or the inviolability of the terr

against the sovereignty or political independence of an American State

conformably to Part III hereof, be considered as an act of aggression against th

States which sign this Act. In any case invasion by armed forces of one State i

territory of another trespassing boundaries established by treaty and demarc

accordance therewith shall constitute an act of aggression.

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imprescriptable right of individual or collective self

defense. Thus, 

US position and indeed that of the nations that became signator

Kellogg Briand Pact, the individual and collective right to self-defe

deed imprescriptable.

So, to state that after entry into effect of the UN Charter, self-

only permissible in response to an armed attack, misses the point t

force continues to be available to states, members and non-membe

defense and in collective self-defense supporting the victims of agg

the illegal use of lethal force by other states. Accordingly, I do not b

standard to invoke either self-defense or collective self-defense to b

difficult to achieve as perhaps Professor Schmitt indicates.

Additionally, I believe that the International Court of Justice in th

and Paramilitary Activities Case In and Against Nicaragua7 quite simply

the wrong conclusion. This case had more political involvement t

cases and in my view does not reflect the law. Although Article 59 o

ute of the ICJ provides that ICJ decisions have “no binding force e

tween the parties and in respect to that particular case,”8 such dec

often very useful for international lawyers trying to understand the d

law. However, with the exception of the brilliant dissent authored 

Schwabel, the ICJ decision in the Nicaragua Case is mostly cited in 

ment. In my opinion, this particular case has absolutely no precedent

The Caroline Case I think is better viewed as a description of an

self defense than of self defense.9 Others may disagree but if you rea

the facts, the steamboat was being fitted out with the intention of 

support to rebels in Canada. The British crossed the Canadian-US b

the Caroline afire, cut it adrift, and apparently not realizing there we

onboard sent it over the falls. I think the Caroline Case may be too 

test for self-defense. Regardless of which term is used, there ought 

overwhelming presumption against the legality of initiating force p

attack by another country. But, particularly in an environment of w

mass destruction, the idea that the law ought to say a Saddam Hu

one more free kick before a state can defend itself strikes me as not 

thought out.

133

7. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U

1986 I.C.J. 14 [hereinafter Nicaragua Case].

8. Article 59, states: The decision of the Court has no binding force except between 

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)

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On a related note, Professor Schmitt seemed to struggle a bit with 

tion for the attacks on the al Qaeda terrorist group. This is so becau

2(4) of the UN Charter only talks about states. This seems to be a s

easier problem to resolve though. The Charter is designed to primar

the rights of states although it also set the stage for a tremendous gro

ternational humanitarian law involving individuals. I think the be

that terrorists such as al Qaeda members are just like pirates in the 

they are the common enemy of mankind. I think this should be the o

position, that terrorists occupy the same legal status as pirate. Note 

does not mean that terrorists are not protected by international la

you cannot murder pirates, you cannot murder, maim, or torture 

Both of these groups are entitled to some fundamental due process pr

once they have either surrendered or are under your control. Howev

as they continue to engage in piracy or ongoing acts of terrorism, the

ful targets.

With respect to Rein Müllerson’s paper, his notion that the UN 

continues to be updated by evolving customary international law m

sense. I also share his view that al Qaeda is more the marionette 

Taliban. Professor Müllerson’s comments on post-modern societies 

and the tension created between post-modern European societies an

modern society of the United States were also quite intriguing. Th

between these two models presents serious problems.

Sun Tzu teaches us that the acme of skill is not to win one hund

ries and one hundred battles but to subdue the enemy without fight

best way to do that with thugs such as Osama bin Laden and Saddam 

is to demonstrate to them that the perceived benefits of their beh

greatly outweighed by the perceived cost. To do this, the world m

against them.

We had to use force in 1991, but at that point we reestablished th

ity of the world community through the Security Council. Sadly, si

we have largely frittered away that credibility in a variety of rather t

dents. At least prior to 9/11, we missed several opportunities to respo

to threats to the peace and particularly the problem of terrorism. A

time is not on the side of the United States nor the other peace lov

tries. In this era of weapons of mass destruction, this ostrich-like ide

United States should not do anything until Saddam Hussein obtain

of mass destruction and delivery systems is fatally flawed. Should th

134

10. SUN TZU, THE ART OF WAR (Samuel Griffith trans., 1963).

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States really wait to act until after Saddam Hussein blows up his ne

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 coh

ternational law regarding the intervention of states. The basic p

against the aggressive use of force by states is well understood. As an 

even before the United Nations Charter, when Adolf Hitler invade

he claimed he was defending Germany from Poland. This was a lie bu

Hitler bother to lie? Hitler understood that, by itself, aggression was 

and that the world community viewed aggression as unlawful. Simila

Kim Il Sung invaded South Korea in 1950, he claimed that North K

simply defending itself against attacks by South Korea. This too 

These two events highlight the reality that even the worst tyrants un

that it is illegal to engage in major acts of aggression. They mask it.

When the Sandinistas attempted to overthrow the government of 

dor, they did a brilliant job of turning the world against the defensive 

of the United States. But they did not come out and claim a right to o

the government of El Salvador. They did it in secret because they k

so was unlawful. If you read the American and Nicaraguan briefs b

world court, it would be hard to distinguish them. They basically 

same summary of the law.11 And each party charged the other with 

money, support and advice and said this is illegal. The question d

whether the US involvement was a defensive response, or was it an 

gression directed against Nicaragua? I think the evidence now clearl

was a defensive response.

135

11. See Nicaragua Case, supra note 7.

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V

Panel I

Commentary—Jus ad Bellum

William Dalton1

note with interest and some curiosity that the two presenters for 

employ a UN Charter paradigm when discussing the war on terro

inherent right of collective and individual self-defense embodied in c

international law might well be a more appropriate analytical star

when discussing Operation ENDURING FREEDOM, however. This see

fundamental question worthy of debate and discussion. Many of the 

raised by Rear Admiral Rempt this morning are also of a fundament

Such questions as what is the nature of terrorism, are terrorists lawfu

ants, do terrorists comply with the law of armed conflict; do they wear 

tive uniform, are they under military command, are all question

import as the United States prosecutes this Global War on Terrorism

In my view, terrorists do not qualify as lawful combatants. Instead

unlawful combatants and international thugs. Given this starting p

are nations constrained in pursuing and eliminating international 

Why are preemptive strikes not routinely taken? One basic reason st

ate within the framework of international law is the existence and str

corded state sovereignty. The UN Charter prohibits states from en

1. William Dalton is a retired Navy captain and now serves as the Assistant General 

Intelligence with the US Department of Defense.

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aggressive wars against one another.

Numerous mutual agreements 

suant to this same charter that recognize, with the exception of v

of self-defense, that the Security Council is the only organization 

authorize the aggressive use of force. This inability to use aggress

properly or improperly, constrains how states respond to internation

ism. This is quite an interesting dilemma; one almost certainly not c

when the Charter itself was written.

When looking at the Caroline Case, Secretary Webster was really 

domestic concept of self-defense—the defender having his back to 

and having to respond immediately.3 Groups engaging in terrorist ac

the United States need time to plan, to organize, to mount such 

When applying the imminency requirement necessary for anticipa

defense to international terrorism, there must be a lessening of the im

of the threat. In other words, the requirement to have an immediate 

fore anticipatory self-defense can be invoked must be moderated.

On a different matter, in looking at the close relationship bet

Taliban and al Qaeda, it is clear that a mutual dependency existed 

the two organizations. Each of these organizations enjoyed a mutu

from the other. The Taliban enjoying the purchasing power of al Qa

and al Qaeda enjoyed the safe haven of Afghanistan provided by th

In order to allay the threat presented by al Qaeda it was necessary 

cute the Taliban as well because as long as the Taliban provided safe 

al Qaeda, al Qaeda continued to be an imminent threat to the coali

ners. So it was as a matter of military necessity in applying anticip

defense that action was undertaken against the Taliban. In my m

made the Taliban a perfectly legitimate target. Note also, that this an

plies to the current situation with Iraq. The key here is that of nec

some point, it will become necessary to respond to the Iraqi regime

point the threat will be so imminent and so serious that the inte

community will have to respond. Clearly then, the key to the over

terrorism is this notion of imminency and the exercise of the extr

right of self-defense.

138

2. Article 2(4) of the United Nations Charter prohibits the aggressive use of force 

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)

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VI

Panel I

Discussion—Jus ad Bellum

On the Application of Force to al Qaeda and Taliban Memb

Leslie Green

I do not believe that we have distinguished sufficiently between al Qa

bers and Taliban members. Bear in mind that many of the volunteer

United Kingdom or from other countries who went to join the Talib

desire to take part in al Qaeda terrorist activities. These volunteers 

cerned with spreading a fundamentalist type of Islam. They were pro

in many cases assisting Islamic colleagues in places such as Chechny

The Taliban may indeed not have been the government of the 

Afghanistan. They were, however, the de facto authority in contro

of the territory comprising Afghanistan. If this be the case thou

al Qaeda has been dealt with, the issue of what are we doing in Af

must be raised. Otherwise, we might be supporting a government in 

ing a revolution or a civil war.

Finally, the word terrorism is used with too much abandon. This 

has been too widely used and attributed to non-terrorist groups. Gov

have always argued that those trying to overthrow them are terro

torically, governments have also taken the position that if the group 

ing a government that was not liked, the group consisted of freedom 

fighting for their liberation. Care should be taken to not become in

what are simply civil wars even when carried out by political ideologi

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not appeal to us. Such civil wars do not rise to the level of terrorist m

simply because we do not like them.

Rein Müllerson

There are many governments which use the mantra of the Global W

rorism to fight their opponents who may not be terrorists at all. This 

course, always exists and can be seen today in both Russia and Cen

Our task is to distinguish between those using terror tactics and thos

not. It is true that in Afghanistan, and also in Chechnya and other p

gious fundamentalists have used terror tactics. So one has to make di

between freedom fighters genuinely struggling for independence and 

terrorists. Though I believe in many cases, if not in most cases, ter

independence fighters and independence fighters are terrorists too 

use terror tactics in order to achieve their aims. There should not be 

ence whether their aims are noble, lawful or not. If they use terror ta

are terrorists.

Now about the distinctions between al Qaeda and the Taliban. O

there are these distinctions. Al Qaeda is a worldwide net, and the Ta

an endogenous organization operating only in the territory of Afg

And the United States made these distinctions I believe. The Uni

demanded that the Taliban surrender Osama bin Laden and other 

al Qaeda to it and that the Taliban dismantle the bases used by al Q

Taliban did not comply with these requests and so the United St

force in self-defense against both al Qaeda and the Taliban.

Perhaps a fine distinction between al Qaeda and the Taliban ma

you could initially attack only al Qaeda and then based upon the r

the Taliban, attack them as well. That is to say, if the Taliban come 

sistance of al Qaeda then they too could be properly targeted. This 

me to be too formalistic, however, and international law does no

making this distinction.

Robert Turner

When asked, “who was the government of Afghanistan on 11 Septe

would respond by querying whether Somalia had a government a deca

is clearly possible to have states that are so dysfunctional and so split t

thority constitutes the legitimate government. The UN Security Cou

ing on behalf of the world community, has taken the position that th

140

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was not the government of Afghanistan, referring to it only as a factio

over, the Security Council had ordered all states to immediately ceas

ing terrorism, declaring such support a threat to the peace.2 Given 

Security Council had de-legitimized any Taliban claim to act on beh

government of Afghanistan, it is hard to argue the case that the Ta

the government of Afghanistan. In my view then, the Taliban was ne

gitimate government of Afghanistan. This of course does not necessa

that a true, legitimate government actually existed within Afghanist

I am not of the same opinion as Michael Schmitt that the case 

force against the Taliban would be easier to understand if the Taliba

legitimate government of Afghanistan. Subparagraph 4 of Article 2 o

Charter protects states against intervention by other states.3 The L

tells us that international law is permissive.4 The UN Charter and th

Briand Pact say states cannot use armed force in their political diplo

lations against each other to solve problems.5 States may use force 

themselves against attacks by other states.6 However, a large body o

tional law on state responses to attacks by non-state entities such a

groups does not currently exist.

States are not guarantors of the security of their neighbors but the

a legal obligation to take reasonable steps to insure that their territ

used to launch armed attacks against other states.7 Having been plac

tice that terrorist activity is originating from within their territory an

ter demonstrating an unwillingness or inability to control such activi

is deprived to some degree of its right against non-intervention b

grieved state. In this case, in the absence of other effective remedie

grieved state may enter the host state for the express purpose of se

against the terrorist threat. The aggrieved state may not generally a

141

1. See generally S. C. Res. 1214, U.N. SCOR, 53d Sess., U.N. Doc. S/1214/(1998), an

1373, U.N. SCOR, 54th Sess., U.N. Doc. S/1373/(2001).

2. Id.

3. Article 2(4) specifically provides that “[a]ll Members shall refrain in their in

relations from the threat or use of force against the territorial integrity or political in

of any state, or in any other manner inconsistent with the Purposes of the United Nat

CHARTER, art. 2(4).

4. Lotus Case (Fr. v. Turk.), P.C.I.J. (ser. A) No. 10 (1923), 2 Hudson, World Cour

(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

1626 (1984); JOHN F. MURPHY, STATES SUPPORT OF INTERNATIONALTERRORISM at 

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host state

s government or attempt to overthrow it. However, when 

ernment is actively engaged in supporting the terrorist, then it too b

lawful target. Under this rationale, the Taliban were clearly a legitim

of the United States, after September 11th.

A note of caution is appropriate though. The general principle t

may not use armed force as a means of resolving differences with ot

in a non-defensive setting is thoroughly agreed upon and is tremend

portant to uphold. Taking the position, as some do, that there is n

tional law governing use of force is not only silly but it is harmful to t

of the rule of law that prohibits states from engaging in aggressive w

Michael Schmitt

Once the Taliban refused to comply with the demands of the United 

relinquished the exclusive right to act against al Qaeda. At that p

Taliban right to territorial integrity was subordinated to the right t

fense possessed by the United States. This type of distinction is of c

portance because many states provide support to different rebel gro

difference needs to be maintained to prevent the argument that any 

viding support to a rebel group in another state is engaging in an arm

thereby authorizing the state to invoke self-defense as a basis for ac

US support of the Iraqi resistance is a great example of this. Clearly, t

States does not want to be in a position where international law 

Saddam Hussein to claim a right of self-defense against the United S

ply because the Unites States is funding the acts of the Iraqi resistan

Recognizing that the right to self-defense may only have applie

against al Qaeda, as soon as the Taliban interfered with the US e

that right the Taliban properly became targetable as well. Such int

would have been wrongful and would constitute an armed attac

Taliban, justifying the application of force against the Taliban b

States and coalition forces. I remain somewhat surprised that US 

forces engaged the Taliban on the first day of Operation ENDURING 

instead of waiting until Taliban forces proved they were hostile to th

of US self-defense. Certainly, had coalition forces waited until the de

tion of such hostility by the Taliban, their claim that their actions a

Taliban were legitimate because they had been attacked and were 

the right of self-defense would ring truer.

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Wolff von Heinegg

I would caution against a rush to abolish recognized principles and r

ternational law just to serve certain purposes. So for example, if it is a

Taliban is the de facto regime, the Taliban should be treated as suc

protections of the Third Geneva Convention should be applied t

members.8

Christopher Greenwood

The Taliban cannot be considered anything other than the de fact

ment of Afghanistan immediately before the use of force in October. T

trolled 80% of the territory of the country. They controlled virtua

levers of power within the state and all of the ordinary organs of go

from the central bank to the air traffic controllers. The border author

taking their instructions from the Taliban. I know it was not the kind 

ment the civilized world is used to. However, in functioning terms 

government of Afghanistan. And therefore its acts are imputable to 

stan. I agree with Professor Schmitt that this makes the actions of the 

easier rather than more difficult to justify. However, I do not believ

question of whether it is convenient to us or not that these people wer

ernment of Afghanistan has any real bearing on the question of whe

were in fact the government. It seems to me that we have become all 

to accept interpretations of the law on the basis of the convenient res

they produce. As lawyers we should have the integrity to say this i

think the law is. If the consequences of that are inconvenient, let us l

what we can do about that. We should not, however, allow the wish to 

to the thought.

Legitimacy of the Use of Force

Robert Turner

As is well established, there are two instances where force may be app

used pursuant to the UN Charter: when authorized by the Securit

and in different variations of self-defense.9 Interceptive self-defense 

patory self-defense is the theory that force may be used in order t

against the prospective loss of lives caused by an armed attack. 

143

8. See generally Geneva Convention Relative to the Treatment of Prisoners of War o

1949, 6 U.S.T. 3516.

9. See U.N. CHARTER arts. 42 and 51.

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historically, pre

UN Charter, that if a state was slaughtering its own 

another state would have no legitimate basis for intervening as th

purely matters internal to the affairs of the state. However, the growt

national humanitarian law subsequent to the Charter clearly recog

individuals have internationally respected rights and that when a stat

gage in an act like genocide, it is not an internal matter. It is a matte

mate global concern and international law should apply and prohibit 

acts. To promote such international law, states must act as if it is the

ary practice to recognize a limited right of the world community to int

stop massive slaughter of innocent people.

Wolff von Heinegg

There is no need to refer to humanitarian intervention as a legal ju

for the attacks on Afghanistan. There seems to be a general consensu

fight against terrorism justifies the action taken in and against Afghan

probably in and against all other states similarly situated. Referring to 

tarian intervention as a basis for action against Afghanistan is count

tive, lessening state credibility in the fight against international terro

In looking at the action taken against Afghanistan, the stronges

legal justification is self-defense. If it is proved that the acts of Septem

are attributable to the Taliban and thus to Afghanistan, every measu

defense may be taken. This is a very important point as it addresses 

tional concept of self-defense and what we are today ready to ackno

be within the competency of the Security Council. If the Security C

Resolution 1373 requires states to take very concrete measure agains

tional terrorism, every state is obliged to do just that. Such oblig

conferred upon states by the Security Council for the purpose of pea

ternational security. Benefiting from these measures is the entire inte

community and not just the United States or Germany. So these o

laid down by the Security Council, for example in 1373, can be qual

gations. When a state does not comply with such resolutions, it viola

ligations towards the community of states as a whole. This violation

constitutes a threat like permitting al Qaeda to continue operatio

ghanistan, can then be acted upon by the affected community of s

whole. Clearly in a situation like this, there is no need to advocate h

ian intervention as the basis for such actions when the self-defense p

so strong.

144

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Michael Schmitt

It is important that Security Council Resolution 1368 and 1373 not 

preted as use of force authorizations, which they clearly were not. 

would seem to somehow imply that the Security Council needs to 

the right of self-defense matures and can be exercised. The law of se

provides all the answers necessary for determining whether the right 

ists for the United States as well as the international community

Council Resolution 1373 is relevant on the issue of whether or not th

is in compliance with their obligations under international law to re

al Qaeda threat on the territory that it controls. The resolution th

not needed before the right to act in self-defense could be invok

grieved states.

Christopher Greenwood

The self-defense case for the use of force by the Americans and the

Afghanistan is an extremely powerful one and should not be watere

any way by trying to squeeze interpretations out of Security Counc

tions or referring to humanitarian law as the basis for intervention in 

stan. This is a classic example of how to undercut a strong case. Alth

a supporter of humanitarian intervention, I do not believe that Afgha

particularly good example of this. Instead of straining to understand 

Afghanistan as for humanitarian purposes, we should instead stay fo

the self-defense reasons for such actions.

If a neutral state allowed a belligerent to conduct military operat

its territory or from its waters and refused to put a stop to that, then t

ing belligerent is entitled to take military action in the neutral’s te

put a stop to them. If the neutral state intervened to protect the bel

had been sheltering, then it exposed its own armed forces to attac

present case, this argument is particularly strong as the Taliban re

subject to sanctions imposed by the United Nations beforehand for 

port for al Qaeda. The Taliban made it crystal clear that they would 

orously any attempt by any part of the international community to 

the al Qaeda presence in their territory. This is an important point 

not want to give credence to a theory that as soon as any state has 

terrorists which have operated from its territory, it exposes itself to 

tack. That very broad brush approach opens up the most horrific po

because at some time or other virtually every state however hard it 

otherwise, had ended up with terrorists operating from its territory.

145

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On Regime Change In Iraq

Robert Turner

Saddam Hussein’s non-nuclear options are the options that truly fri

As we all know, Saddam Hussein is trying to obtain nuclear weapons 

ery systems. However, he is also playing with smallpox that is immune 

cures as well as with the bubonic plague. Saddam does not stop there 

is playing with all sorts of biological systems that could be spread with

ing fingerprints and that could cause a major loss of life around the w

As long ago as October 1990 I advocated the intentional killing o

Hussein and I continue to feel that way.10 Attacking regime elites who 

international peace is clearly not “assassination” but is instead a legi

of self-defense which the United States should avail itself of. The s

ment can be made for targeting and eliminating Osama bin Laden.

The consequences of military action in the Middle East are frigh

there is the very real possibility that conflict with Iraq may spread a

the entire region. However, the penalties for inaction are even grea

is not on our side. The best way for the United States to deter Sadda

procurement of weapons of mass destruction is by presenting a un

with the world community that demands the unfettered access of U

ons inspectors.

One viable justification for attacking Iraq might well be a request f

for assistance under Article 51 given that Saddam Hussein has repe

mitted to not only encouraging people to engage in terrorism, but to 

money to pay the families of people who commit suicide bombings. C

liciting such acts against the sovereign territory of Israel violates inte

law and Israel and its allies are entitled to act in defense of Israeli cit

Moreover, given that the UN Security Council Resolutions of 

1991 remain valid, the conditions contained in them have not bee

Saddam Hussein, and since Saddam Hussein continued to aggressiv

the development of weapons of mass destruction in violation of inte

law, it seems clear that sufficient authority exists to effect a regime 

Iraq. Saddam Hussein is acting aggressively, in violation of internat

and I believe it is legal for the world community to use force against Ir

that threat. Furthermore, I also believe that it is legal to specifically 

against Saddam Hussein as an individual if that is the best method av

end the threat to world peace.

146

10. Robert F. Turner, Killing Saddam: Would it be a Crime?., WASH. POST, Oct. 7, 

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Michael Schmitt

There is a colorable argument that an international armed conflict 

exists with Iraq and that the conflict is merely in a state of ceasefire. G

to the extent that Iraq has in some form materially breached the 

agreement then recommencement of hostilities would be appropriate

sition certainly has merit.

Yoram Dinstein

Under the jus in bello, there is nothing inherently wrong in the target

emy combatants. Enemy military personnel can be attacked either co

or individually. Saddam Hussein, being the commander-in-chief of 

forces, is a legitimate military objective for attack by the United State

ously, such an attack—like all other attacks—has to be carried out 

combatants on the American side, i.e., members of the armed force

uniform, carrying their arms openly, etc.

147

11. See Yoram Dinstein, Legitimate Military Objectives under the Current Jus in Bell

AND ETHICAL LESSONS OF NATO’S KOSOVO CAMPAIGN (Andru Wall ed., 2003) 

Naval War College International Law Studies).

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Panel II

Wednesday—June 26, 2002

1:30 PM–4:30 PM

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

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VII

Unlawful Combatancy

Yoram Dinstein1

Combatants and Civilians

nder the jus in bello, combatants are persons who are either 

of the armed forces (except medical and religious personnel) 

spective of such membership—who take an active part in hostilities in 

national armed conflict.2 The jus in bello posits a fundamental pr

distinction between combatants and non-combatants (i.e., civilia

goal is to ensure in every feasible manner that inter-state armed co

waged solely among the combatants of the belligerent parties. Lawfu

ants can attack enemy combatants or military objectives, causing dea

and destruction. By contrast, civilians are not allowed to participa

1. Professor Yoram Dinstein is the Charles H. Stockton Professor of Internation

Naval War College, Newport, Rhode Island.

2. See A.P.V. ROGERS & P. MALHERBE, MODEL MANUAL ON THE LAW OF ARMED 

29 (ICRC, 1999).

3. See Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 

REPORTS 226, 257.

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fighting. As a complementary norm, civilians 

enjoy general protectio

dangers arising from military operations.”4

It is not always easy to define what an active participation in hos

notes. Sometimes, the reference is to “direct” participation in hostil

the adjective “direct” does not shed much light on the extent of par

required. For instance, a person who gathers military intelligence 

controlled territory and a driver delivering ammunition to firing pos

generally acknowledged as actively taking part in hostilities (althou

assisting in the general war effort does not suffice).6

A civilian may convert himself into a combatant. In fact, every c

is a former civilian: nobody is born a combatant. In the same vein, 

ant may retire and become a civilian. But at any given point a perso

a combatant or a civilian: he cannot (and is not allowed to) be bo

same time, nor can he constantly shift from one position to the othe

Whether on land, by sea or in the air, one cannot fight the enem

main a civilian. Interestingly, this general norm first began coalesc

law of sea warfare. By the time of the Declaration of Paris of 1856, 

proclaimed: “Privateering is, and remains, abolished.”7 Privateers we

persons (at times known as corsairs, not to be confused with pirates

tained official letters of marque from a government, allowing them 

enemy merchant ships.8 As the language of the Declaration of Paris 

it merely confirms the abolition of privateering as “an already establi

ation” under customary international law.9 The law of land (and ai

ultimately adjusted to proscribe parallel modes of behavior.

Combatants can withdraw from the hostilities not only by retirin

coming civilians, but also by becoming hors de combat. This can h

ther by choice (through laying down of arms and surrendering) or b

152

4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (Protocol I), 1977, repri

LAWS OF ARMED CONFLICTS:ACOLLECTION OF CONVENTIONS, RESOLUTIONS A

DOCUMENTS 621, 651 (D. Schindler & J. Toman eds., 3rd ed., 1988) (Ar

[hereinafter LAWS OF ARMED CONFLICT].

5. See ROGERS & MALHERBE, supra note 2, at 29. Cf. Article 51(3) of Protocol 

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

4, at 787, 788.

8. See Ulrich Scheuner, Privateering,3ENCYCLOPEDIA OF PUBLIC INTERNATIONAL 

1120–1121 (R. Bernhardt ed., 1997).

9. Id. at 1122.

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circumstances (by getting wounded, sick or shipwrecked). A comba

is hors de combat and falls into the hands of the enemy is in principl

to the status of a prisoner of war. Being a prisoner of war means den

erty, i.e., detention for the duration of the hostilities (which may 

many years). However, that detention has only one purpose: to pre

further participation of the prisoner of war in the ongoing hostilities

tention is not due to any criminal act committed by the prisoner of w

cannot be prosecuted and punished “simply for having taken part 

ties.”10 While his liberty is temporarily denied, the decisive point i

life, health and dignity of a prisoner of war are guaranteed. Detailed p

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 

emy—is vouchsafed to every combatant, subject to the conditio sin

that he is a lawful combatant. The distinction between lawful and 

combatants complements the fundamental distinction between co

and civilians: the primary goal of the former is to preserve the latter.12 

bello can effectively protect civilians from being objects of attack in w

and when they can be identified by the enemy as non-combatants. Co

“may try to become invisible in the landscape, but not in the crowd.”

the lines of division between combatants and civilians is bound to re

vilians suffering the consequences of being suspected as covert co

Hence, under customary international law, a sanction (deprivation of 

leges of prisoners of war) is imposed on any combatant masquerading 

ian in order to mislead the enemy and avoid detection.

An enemy civilian who does not take up arms, and does not othe

ticipate actively in the hostilities, is guaranteed by the jus in bello no

life, health and dignity (as is done with respect to prisoners of war)

his personal liberty which cannot be deprived (through detention

153

10. ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR:A

INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 82 (

11. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949 

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 C

40 NORDISK TIDSSKRIFT FOR INT’L RET 47, 62 (1970).

13. Denise Bindschedler-Robert, A Reconsideration of the Law of Armed Conflicts, T

ARMED CONFLICTS: REPORT OF THE CONFERENCE ON CONTEMPORARY PROBL

LAW OF ARMED CONFLICT, 1, 43 (1971).

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cause. But a person is not allowed to wear simultaneously two caps: 

a civilian and the helmet of a soldier. A person who engages in mil

by night, while purporting to be an innocent civilian by day, is neith

ian nor a combatant. He is an unlawful combatant.

Upon being captured by the enemy, an unlawful combatant—lik

combatant (and unlike a civilian)—is subject to automatic detentio

contradistinction to a lawful combatant, an unlawful combatant fail

the benefits of the status of a prisoner of war. Hence, although he 

executed without trial, he is susceptible to being prosecuted and sev

ished for any acts of violence committed in the course of the ho

which he has participated. The legal position was summed up by the 

Court of the United States, in the Quirin case of 1942 (per Chi

Stone):

[b]y universal agreement and practice, the law of war draws a dis

between the armed forces and the peaceful populations of belligerent 

and also between those who are lawful and unlawful combatants. 

combatants are subject to capture and detention as prisoners of war by o

military forces. Unlawful combatants are likewise subject to captu

detention, but in addition they are subject to trial and punishment by 

tribunals for acts which render their belligerency unlawful.14

With the exception of the last few words, this is an accurate reflection 

in bello.

What can unlawful combatants be prosecuted and punished 

Quirin judgment refers to “trial and punishment by military tribuna

which render their belligerency unlawful.” Admittedly, sometime

which turns a person into an unlawful combatant constitutes by it

fence (under either domestic or international law) and can be prose

punished as such before a military tribunal. But on other occasions th

proceedings may be conducted before regular courts and, more sign

they are likely to pertain to acts other than those that divested the 

the status of lawful combatant. Even when the act negating the s

lawful combatant does not constitute a crime per se (under either do

international law), it can expose the perpetrator to ordinary penal 

(pursuant to the domestic legal system) for other acts committed by 

are branded as criminal. Unlawful combatants “may be punished und

ternal criminal legislation of the adversary for having committed h

154

14. Ex parte Quirin, 317 U.S. 1, 30–31 (1942).

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in violation of its provisions (e.g., for murder), even if these acts do n

tute war crimes under international law.”15

At bottom, warfare by its very nature consists of a series of acts o

(like homicide, assault, battery and arson) ordinarily penalized by th

codes of all countries. When a combatant, John Doe, holds a rifle, 

Richard Roe (a soldier belonging to the enemy’s armed forces) with 

kill, pulls the trigger, and causes Richard Roe’s death, what we hav

meditated homicide fitting the definition of murder in virtually all 

penal codes. If, upon being captured by the enemy, John Doe is not p

for murder, this is due to one reason only. The jus in bello provides 

with a legal shield, protecting him from trial and punishment, by c

upon him the status of a prisoner of war. Yet, the shield is availabl

condition that John Doe is a lawful combatant. If John Doe acts as h

yond the pale of legal combatancy, the jus in bello simply removes th

tive shield. Thereby, it subjects John Doe to the full rigor of the 

domestic legal system, and the ordinary penal sanctions provided b

will become applicable to him.

There are several differences between the prosecution of war crim

that of unlawful combatants.16 The principal distinction is derived 

active or passive role of the jus in bello. War criminals are brought t

serious violations of the jus in bello itself. With unlawful combatan

in bello refrains from stigmatizing the acts as criminal. It merely t

mantle of immunity from the defendant, who is therefore accessibl

charges for any offence committed against the domestic legal system

It is also noteworthy that, unlike war criminals (who must be b

trial), unlawful combatants may simply be subjected to administrati

tion without trial. Detention of unlawful combatants without trial w

cally mentioned as an option in the Quirin case (as quoted above)

option has indeed been used widely by the United States in the war in 

istan (see infra).

Detention of unlawful combatants is also the subject of special leg

Israel, passed by the Knesset in 2002.17 This Detention of Unlawful 

ants Law defines an unlawful combatant as anyone taking part—dire

directly—in hostilities against the State of Israel, who is not e

155

15. Rosas, supra note 10, at 305.

16. See Yoram Dinstein, The Distinction between Unlawful Combatants and Wa

INTERNATIONAL LAW AT A TIME OF PERPLEXITY 103–116 (Essays in Honour 

Rosenne, Y. Dinstein ed., 1989).

17. See Detention of Unlawful Combatants Law, 2002, 1834 Sefer Hahukim [S.H.] 

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prisoner of war status under Geneva Convention (III).

Detention is 

the decision of the chief of staff of the armed forces, on grounds of s

rity, but it is subject to judicial review by a (civilian) district court 

tially and every six months thereafter).19 The law emphasizes that de

just one option, and that an unlawful combatant can equally be b

trial under any criminal law.20 An important point addressed by the 

maximum duration of the detention. An unlawful combatant can b

detention as long as the hostilities of the force to which he belongs 

been terminated.21

The Entitlement to Prisoner of War Status under Customar

International Law

Article 1 of the Regulations Respecting the Laws and Customs of War 

Annexed to Hague Convention (II) of 1899 and Hague Conventio

1907, proclaims:

[t]he laws, rights, and duties of war apply not only to armies, but also to 

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 o

Article 2 adds a provision entitled “Levée en masse,” which reads in t

1907 version:

[t]he inhabitants of a territory which has not been occupied, who, 

approach of the enemy, spontaneously take up arms to resist the invadin

without having had time to organize themselves in accordance with A

156

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 

Convention (II) of 1899 and Hague Convention (IV) of 1907, in LAWS OF ARMED 

supra note 4, at 63, 75.

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ggy y py y p

laws and customs of war.23

Article 3 prescribes further: “[t]he armed forces of the belligerent p

consist of combatants and non-combatants. In the case of capture b

emy, both have a right to be treated as prisoners of war.”24 As far a

who are not employed by the armed forces, yet accompany them, A

stipulates:

[i]ndividuals who follow an army without directly belonging to it, 

newspaper correspondents and reporters, sutlers and contractors, who 

the enemy’s hands and whom the latter thinks expedient to detain, are 

to be treated as prisoners of war, provided they are in possession of a ce

from the military authorities of the army which they were accompanyin

The Hague formula thus establishes four general—and cumulativ

tions for lawful combatancy: (i) subordination to responsible comm

fixed distinctive emblem, (iii) carrying arms openly, and (iv) conduct 

dance with the jus in bello. In the special setting of a “levée en mass

tions (i) and (ii) are dispensed with, and only conditions (iii) and (i

valid. These provisions of the Hague Regulations (like others) “are c

to embody the customary law of war on land.”26

The Geneva Conventions of 1949 retain the Hague formula, 

even more stringent. Article 4(A) of Geneva Convention (III) sets 

A. Prisoners of war, in the sense of the present Convention, are persons be

to one of the following categories, who have fallen into the power of the 

(1) Members of the armed forces of a Party to the conflict, as well as m

of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer 

including those of organized resistance movements, belonging to a 

the conflict and operating in or outside their own territory, even 

territory is occupied, provided that such militias or volunteer 

including such organized resistance movements, fulfil the fo

conditions:

157

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 Warfa

Y.B. INT’L L. 173, 186 (1971).

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(a) that of being commanded by a person responsible 

subordinates;

(b) that of having a fixed distinctive sign recognizable at a distan

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the l

customs of war.

(3) Members of regular armed forces who profess allegiance to a gove

or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actuall

members thereof, such as civilian members of military aircraft cre

correspondents, supply contractors, members of labour units or of 

responsible for the welfare of the armed forces, provided that th

received authorization from the armed forces which they accompa

shall provide them for that purpose with an identity card similar 

annexed model.

(5) Members of crews, including masters, pilots and apprentices

merchant marine and the crews of civil aircraft of the Parties to the c

who do not benefit by more favourable treatment under any other pr

of international law.

(6) Inhabitants of a non-occupied territory, who on the approach 

enemy spontaneously take up arms to resist the invading forces, 

having had time to form themselves into regular armed units, provid

carry arms openly and respect the laws and customs of war.27

This language is replicated in Article 13 of both Geneva Conven

and Geneva Convention (II).29 Article 4(B) of Geneva Convention 

on to create two further categories of persons that should be treated 

ers of war: one relating to occupied territories (members of armed f

have been released from detention in an occupied territory and 

158

27. Geneva Convention III, art. 4, in LAWS OF ARMED CONFLICT, supra note 4, a

28. Geneva Convention (I) for the Amelioration of the Condition of the Wounded 

Armed Forces in the Field, 1949, in LAWS OF ARMED CONFLICT, supra note 4, at 373

29. Geneva Convention (II) for the Amelioration of the Condition of Wounde

Shipwrecked Members of Armed Forces at Sea, 1949, in LAWS OF ARMED CONFLICT

4, at 401, 408.

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reinterned),

and the other pertaining to neutral countries (me

armed forces of belligerents who reach neutral territory and have 

terned there as required by international law).31 Article 4(C) states t

ing in the above provisions affects the status of medical perso

chaplains32 who, under Article 33 of Geneva Convention (III) c

taken prisoners of war, but may be retained by the Detaining Pow

view to assisting prisoners of war.33

The first and foremost category of persons entitled to the status of 

of war covers members of the armed forces of the belligerent Parties, 

all their different components. These are the regular forces of the be

It does not matter what the semantic appellation of regular forces is 

function, e.g., under the technical designation of militias); how they 

tured; whether military service is compulsory or voluntary; and wh

units are part of standing armed forces or consist of reservists called 

The distinction is between regular forces of all types, on the one han

regular forces in the sense of partisans or guerrilla forces, on the oth

On the face of it, the Geneva Conventions do not pose any con

the eligibility of regular forces to prisoners of war status. Neverthele

forces are not absolved from meeting the cumulative condition

irregular forces. There is simply a presumption that regular forc

naturally meet those conditions. But the presumption can definitely 

ted. The issue came to the fore in the Mohamed Ali case of 1968, w

Privy Council held (per Viscount Dilhorne) that it is not enough to 

that a person belongs to the regular armed forces, in order to guarant

the status of a prisoner of war.34 The Privy Council pronounced 

members of the armed forces must observe the cumulative condition

on irregular forces, although this is not stated expressis verbis in th

Conventions or in the Hague Regulations.35 The facts of the case rela

donesian soldiers who—at a time of a “confrontation” between Indo

159

30. This special category makes it “impossible for an occupying Power to deprive pris

of the benefit of the convention through the subterfuge of release and subsequ

Raymond Yingling & Robert Ginnane, The Geneva Conventions of 1949, 46 AM. J. I

405–406 (1952).

31. Geneva Convention III, art. 4(B), in LAWS OF ARMED CONFLICT, supra note 4, 

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.

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Malaysia

planted explosives in a building in Singapore (then a part 

sia) while wearing civilian clothes. The Privy Council confir

appellants’ death sentence for murder, on the ground that a regu

committing an act of sabotage while not in uniform loses the entitle

prisoner of war status.36 The earlier Quirin judgment—concerning 

members of the armed forces who took off their uniforms when on a 

mission in the United States (where they had landed by submarine)—

same effect.37

The second category of prisoners of war under the Geneva Co

pertains to irregular forces: guerrillas, partisans and the like, howeve

themselves. This is the most problematic category, given the prolif

such forces in modern warfare. The Geneva Conventions repeat 

Hague conditions verbatim. However, two additional conditions ar

from the chapeau of Article 4(A)(2): (v) organization, and (vi) belo

party to the conflict. One more condition is distilled in the case law 

text of the Geneva Conventions: (vii) lack of duty of allegiance t

taining Power.

Each of the four Hague conditions, and the additional three cond

serves a few words of explanation:

The first condition—of subordination to a responsible command

signed to exclude the possibility of activities of individuals (known 

as “franc-tireurs”) on their own. The operation of small units of 

forces is permissible, provided that the other conditions are fulfilled, 

is no room for individual initiatives. John Doe or Richard Roe—esp

an occupied territory—cannot legitimately conduct a private war a

enemy.

The second condition—of having a fixed distinct emblem recogn

distance—is predicated on two elements. The emblem in question m

the dual requirement of distinction (i.e., it must identify and charac

force using it) and fixity (to wit, the force is not allowed to confuse t

by ceaselessly changing its distinctive emblem). The most obvious 

tinct emblem of regular armed forces is that of a particular uniform. 

ular armed forces need not have any uniform, and suffice it for them 

a less complex distinctive emblem: part of the clothing (like a speci

particular headgear) or certain insignia.38

160

36. Id. at 451–454.

37. Ex parte Quirin, supra note 14, at 35–36.

38. JEAN DE PREUX, COMMENTARY III: GENEVA CONVENTION RELATIV

TREATMENT OF PRISONERS OF WAR 60 (1960).

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The fixed distinctive emblem must be worn throughout every milit

tion against the enemy in which the combatant takes part (througho

from start to finish, namely, from the beginning of deployment to the e

engagement), and the emblem must not be deliberately removed at a

the course of the operation.39 Still, combatants are not bound to we

tinctive emblem when discharging duties not linked to military operat

as training or administration).40

The condition of having a fixed distinctive emblem raises a numbe

tions owing to its language. Thus, it is not easy to fully understand the 

that the distinctive emblem will be recognizable at a distance. The ph

must be reasonably interpreted. Combatants seeking to stay alive do no

to draw attention to themselves. On the contrary, even soldiers in un

prone to use camouflage. This is a legitimate ruse of war,41 as long as th

ant merely exploits the topographical conditions: the physical as distinc

demographic landscape of civilians.42 Another question is germane to 

fare. Needless to say, if the combatant does not carry an illuminated 

emblem, that emblem will not be recognizable at a distance in the dark

is important that the terse and imperfect wording would not oversh

thrust of the condition, which is crystal clear. Just as regular forces wear 

so must irregular forces use a fixed emblem which will distinguish them

nary circumstances and in a reasonable fashion—from the civilian p

The issue is not whether combatants can be seen, but the lack of desir

part to create the false impression that they are civilians.

It should be added that when combatants go to (or from) battle in a 

a tank—and, similarly, if they sail in a vessel or fly in an aircraft—it is n

for each individual person to carry the distinctive emblem: the vehicl

platform must itself be properly identified.43 By the same token, th

marking of the vehicle or platform does not absolve the combatants 

from having their personal distinctive emblems. As for members of the 

military aircraft, there is a specific provision to that effect in Article 

(non-binding) 1923 Hague Rules of Air Warfare, where it is explained 

161

39. Howard Levie, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 4

Levie ed., 1978), (Vol. 59, US Naval War College International Law Studies).

40. WALDEMAR SOLF, Article 44, NEW RULES FOR VICTIMS OF ARMED 

COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO TH

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 64

42. Bindschedler-Robert, supra note 13, at 43.

43. DE PREUX, supra note 38, at 60.

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required in case the members of the crew 

become separated from 

craft.”44

The third condition—of carrying arms openly—brings up simila

the second. Does this mean that a combatant is barred from carryin

gun in a holster or hand grenades in a pouch? The question is patent

cal. Once more, what counts is not the ambiguous language but the 

condition. A lawful combatant must abstain from purporting to be 

cent civilian, with a view to facilitating access to the enemy by st

must carry his arms openly in a reasonable way, depending on the 

the weapon and the circumstances at hand.

The fourth condition—conduct in accordance with the jus in bel

key to lawful combatancy. Unless a combatant is willing himself to re

jus in bello, he is estopped from relying on that body of law when d

enjoying its benefits.45

These are the original Hague conditions, endorsed by the Geneva 

tions. As mentioned, the following additional conditions are derived 

Conventions:

The fifth condition—organization—actually reinvigorates the fi

tion in a somewhat different way. Lawful combatants must act within 

chic framework, embedded in discipline, and subject to supervision 

echelons of what is being done by subordinate units in the field.

The sixth condition—belonging to a party to the conflict—got a 

expression in the 1969 judgment of an Israeli military court in th

case.46 Here a number of people who belonged to an organization ca

the “Popular Front for the Liberation of Palestine” crossed the Jor

from the East Bank (the Kingdom of Jordan) to the West Bank (Isr

pied territory) for sabotage purposes. When captured and charged w

rity offences, they claimed entitlement to prisoners of war status. T

Military Court held that irregular forces must belong to a party to 

flict.47 Since no Arab government at war with Israel had assumed re

ity for the activities of the Popular Front—which was indeed ille

Kingdom of Jordan—the condition was not fulfilled.48 The judgment 

cized by Georg Schwarzenberger on the ground that the Geneva Co

162

44. Hague Rules of Air Warfare, 1923, art. 15, in LAWS OF ARMED CONFLICT, sup

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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were not meant to limit the scope of lawful combatancy under p

rules of international law.49 However, even prior to the Geneva Con

the premise was that the Hague conditions apply only to combatants 

behalf of a state party to the conflict.50 It is evident that the member

dependent band of guerrillas cannot be regarded as lawful combatan

they observe the jus in bello, use a fixed distinctive emblem, and c

arms openly. One way or another, “a certain relationship with a b

government is necessary.”51 One can, of course, argue whether P

guerrillas factually belonged at the time to a party to the conflict. Bu

dition itself is irreproachable.

The seventh and last condition—of non-allegiance to the 

Power—is not specifically mentioned in the Geneva Conventions, 

rived from the case law. The principal authority is the 1967 Judgm

Privy Council in the Koi case,52 in which captured Indonesian p

ers—landing in Malaysia—included a number of Malays convicted 

tenced to death for having unlawfully possessed arms in a security 

question on appeal before the Privy Council was whether they wer

to prisoners of war status. The Privy Council held (per Lord Hod

nationals of the Detaining Power, as well as other persons owing it 

allegiance, are not entitled to such status.53 This was viewed by 

Council as a rule of customary international law.54 Although the 

does not appear in the text of Article 4(A), the Privy Council fou

provisions of Geneva Convention (III)—specifically Articles 

10055—in which it is clearly stated that prisoners of war are not na

the Detaining Power and do not owe it any duty of allegiance.56

The requirement of nationality (or allegiance) has to be approac

fully. The fact that a combatant belonging to state A—captured by s

a national of state C, does not make any difference. A German sold

French Foreign Legion was entitled to a prisoner of war status in 

163

49. Georg Schwarzenberger, Human Rights and Guerrilla Warfare,1ISR. Y.B. HUM

252 (1971).

50. Lester Nurick & Roger Barrett, Legality of Guerrilla Forces under the Laws of Wa

INT’L L. 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 no

464.

56. Koi, supra note 52, at 857.

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China War. But such a soldier would not have been entitled to the sa

if fighting in a war against Germany.

The Koi case occasions also a question of the law of evidence. Un

cle 5 (para. 2) of Geneva Convention (III), should any doubt a

whether certain persons belong to any of the categories enumerated 

4, they enjoy the Convention’s protection until their status is determ

competent tribunal. Opinions in the Privy Council were divided as t

the mere allegation by a defendant that he is a foreign national 

doubt in accordance with Article 5: the majority held that that was 

position, but a minority dissented.57 The more central issue is that o

den of proof. The minority opined that the burden of proof lies on t

dant, who must show that he is entitled to prisoner of war st

consequently that he is not a national of the Detaining Power).58 Th

did not address the point. But the correct position apparently is th

defendant persuades the court that he is a member of the enemy arm

the burden of proof that he owes allegiance to the Detaining Pow

therefore not entitled to prisoner of war status) falls on the prosecu

contestably, the defendant first has to establish that he is a member 

emy armed forces.

It is not easy for irregular forces to observe cumulatively the sev

tions catalogued or—for that matter—even the core four Hague c

These conditions are actually patterned after the operations of regu

(to which they do not explicitly allude). Regular forces are organized

ject to hierarchical discipline, and naturally belong to a party to the 

they have a proud tradition of wearing uniforms and carrying t

openly; they are trained to observe the jus in bello; and the issue of 

scarcely arises. However, with irregular forces (to whom the cond

pressly refer), the position is not so simple. Even if other problems ar

the difficulty to meet both the (ii) and (iii) conditions (of a fixed d

emblem and carrying arms openly) is blatant, “since secrecy and su

the essence” of guerrilla warfare.60 Most of the partisan (resistanc

ments of World War II did not fulfil all the cumulative conditions

164

57. Id. at 855, 865.

58. Id. at 864.

59. Richard Baxter, The Privy Council on the Qualifications of Belligerents, 63 AM. J. I

293 (1969).

60. Richard Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Sabote

Y.B. INT’L L. 323, 328 (1951).

61. Jean Pictet, The New Geneva Conventions for the Protection of War Victims, 45 AM

462, 472 (1951).

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practical standpoint, many believe that 

obedience to these rules 

tantamount to committing suicide, as far as most guerrillas would 

cerned.”62 Still, these are the norms of the Hague Regulations, th

Conventions, and customary international law.

Under the Hague Regulations, the Geneva Conventions, and c

international law, the only time that the cumulative conditions ar

that of “levée en masse.” It must be accentuated that this category ap

to the inhabitants of unoccupied areas, so that there is no “levée en 

occupied territories. The idea (originating in the French Revolution

at the point of invasion—and in order to forestall occupation—th

population takes arms spontaneously, without an opportunity to 

This is an extraordinary situation in the course of which—for a sh

and as an interim stage in the fighting—there is no need to meet all 

mulative conditions to the status of lawful combatancy. The Hagu

tions and Geneva Conventions enumerate only two cumulative co

carrying arms openly and respect for the jus in bello (conditions (iii) 

It follows that there is no need to meet the two other Hague conditio

ordination to a responsible commander and using a fixed distinctiv

(conditions (i) and (ii)). Given the postulate that there was no tim

nize, condition (v) is inapplicable. Condition (vi) is also irrelevant: 

civilian population resists invasion, the problem of belonging to a pa

conflict is moot. On the other hand, it is arguable that condition (v

tionality (or allegiance) remains in place. In any event, the transitio

of “levée en masse” lapses ex hypothesi after a relatively short duratio

three things is bound to happen: either the territory will be occupie

the “levée en masse”); or the invading force will be repulsed (than

“levée en masse” or to the timely arrival of reinforcements); or the 

defense will stabilize, and then there is ample opportunity for organ

Both the Hague Regulations and the Geneva Conventions equate 

tion of certain civilians—employed by or accompanying the armed f

that of lawful combatants as far as prisoners of war status is concer

dently, the fact that a civilian is employed by or accompanies the arm

does not turn him into a combatant. Hence, the question of the ful

most of the cumulative conditions does not arise. Yet, in all instanc

tion (iv) must be regarded as paramount: anybody seeking the privile

165

62. Gerhard von Glahn, The Protection of Human Rights in Time of Armed Conflicts

HUM. RTS. 208, 223 (1971).

63. On the origins of the institution, see Walter Rabus, A New Definition of the ‘Lev

24 NETH INT’L L. REV. 232 (1977).

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jus in bello must himself respect the laws from which he proposes t

Condition (vii) of nationality—or allegiance—is also relevant to 

Should the civilian bear light arms for self-defense, condition (iii) r

carrying the arms openly will apply.

Who should observe the seven conditions: the individual or the 

which he is a member? The issue does not arise with respect to regul

The assumption is that these forces collectively fulfil all the conditio

the extent that there is doubt in the concrete case, it affects John Do

an entire army. In the Mohamed Ali and Koi cases, there was no d

members of the armed forces of Indonesia generally wear uniforms a

owe allegiance to Malaysia, although the defendants in the dock faile

these conditions (and were therefore denied prisoners of war statu

ever, where irregular forces are concerned, the question whether t

tions of lawful combatancy are met may relate both to a guerrilla m

collectively and to each of its members individually. The answer to 

tion is contingent on the various conditions.

The addressee of conditions (i), (v) and (vi) is clearly the group co

and not any of the members individually. It is necessary to ascertain 

group as a whole is organized, has a responsible commander and be

party to the conflict. Should that be the case, the same yardsticks m

plied to all members of the group.64 The reverse applies to condition 

rected at each member of the group rather than the group as a colle

link of nationality is determined individually. In between are the oth

tions: (ii), (iii) and (iv). Condition (ii) on a fixed distinctive emblem 

some preliminary action on the part of the group, which must adopt 

fying emblem; if it does not do that, no member of the group is capabl

ing the condition. Still, even if the group adopts a fixed distinctive 

that does not mean that John Doe will use it at the critical time (just 

fendants in the Mohamed Ali case did not wear their uniforms at th

time). If John Doe fails to do that, his misconduct does not contam

entire group, but the personal consequences are liable to be dire.

As for conditions (iii) and (iv)—carrying arms openly and obse

the jus in bello—the present writer believes that the correct approa

their fulfilment should be monitored primarily on an individual basi

secondarily on a group basis. That is to say, if observance of these c

in the individual case comes to a test in reality, John Doe has to answ

actual behavior. However, if no opportunity for such individual ve

166

64. See Draper, supra note 26, at 196.

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presents itself

for instance, when John Doe is captured in possessio

but before setting out to accomplish any hostile mission—it is poss

tablish how the group behaves in general and extrapolate from the c

to the individual. If the group as a whole has a record of disrespect f

in bello, there is no need to accord John Doe prisoner of war sta

versely, if the group as a whole generally acts in compliance with 

bello, John Doe should be allowed to benefit from doubt. It has been 

that—even if John Doe actually observes the jus in bello—he shou

deemed a lawful combatant when the group as a whole general

breach of that body of law.65 This is unassailable in extreme cas

Qaeda. But if the conduct of the members of the group is uneven, 

should be judged on the merits of his own case and not on the deme

comrades at arms.

The Legal Position under Protocol I of 1977

The legal position is radically changed pursuant to Additional Pro

1977. Article 43 of the Protocol promulgates:

1. The armed forces of a Party to a conflict consist of organized armed 

groups and units which are under a command responsible to that Party 

conduct of its subordinates, even if that Party is represented by a govern

an authority not recognized by an adverse Party. Such armed forces 

subject to an internal disciplinary system which, inter alia, shall 

compliance with the rules of international law applicable in armed conf

2. Members of the armed forces of a Party to a conflict (other than 

personnel and chaplains covered by Article 33 of the Third Conventi

combatants, that is to say, they have the right to participate directly in ho

3. Whenever a Party to the conflict incorporates a paramilitary or arm

enforcement agency into its armed forces it shall so notify the other Partie

conflict.66

By itself, Article 43 appears to follow in the footsteps of the H

Geneva rules, as reflected in customary international law. Indeed, it 

four of the seven conditions for (lawful) combatancy: condition (i) co

the existence of a command responsible for the conduct of its sub

condition (iv) about compliance with the rules of the jus in bello; 

167

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.

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(v) stressing the need for organization and discipline; and condition 

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 powe

adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of intern

law applicable in armed conflict, violations of these rules shall not de

combatant of his right to be a combatant or, if he falls into the powe

adverse Party, of his right to be a prisoner of war, except as prov

paragraphs 3 and 4.

3. In order to promote the protection of the civilian population from th

of hostilities, combatants are obliged to distinguish themselves from the 

population while they are engaged in an attack or in a military op

preparatory to an attack. Recognizing, however, that there are situa

armed conflicts where, owing to the nature of the hostilities an armed com

cannot so distinguish himself, he shall retain his status as a combatant, p

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 engag

military deployment preceding the launching of an attack in which 

participate.

Acts which comply with the requirements of this paragraph shall 

considered as perfidious within the meaning of Article 37, paragraph 1(

4. A combatant who falls into the power of an adverse Party while failing 

the requirements set forth in the second sentence of paragraph 3 shall fo

right to be a prisoner of war, but he shall, nevertheless, be given pro

equivalent in all respects to those accorded to prisoners of war by th

Convention and by this Protocol. The protection includes protections eq

to those accorded to prisoners of war by the Third Convention in the cas

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 wh

engaged in an attack or in a military operation preparatory to an attack s

168

67. See Jean de Preux, Article 43, COMMENTARY ON THE ADDITIONAL PROTOCOL

1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 505, 517 (Y. Sando

ICRC, 1987).

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forfeit his rights to be a combatant and a prisoner of war by virtue of h

activities.

6. This article is without prejudice to the right of any person to be a pri

war pursuant to Article 4 of the Third Convention.

7. This article is not intended to change the generally accepted pra

States with respect to the wearing of the uniform by combatants assigne

regular, uniformed armed units of a Party to the conflict.

8. In addition to the categories of persons mentioned in Article 13 of t

and Second Conventions, all members of the armed forces of a Party 

conflict, as defined in Article 43 of this Protocol, shall be entitled to pro

under those Conventions if they are wounded or sick or, in the case 

Second Convention, shipwrecked at sea or in other waters.68

The language of this verbose text is quite convoluted, not to say 

But when a serious attempt is made to reconcile its disparate paragr

one another, a distressing picture emerges. Notwithstanding the pr

Article 43, Article 44(2) does away—for all intents and purposes—

dition (iv): whether or not in compliance with the jus in bello, all co

(i.e., those taking a direct part in hostilities) are entitled to the statu

combatancy and to the attendant privileges of prisoners of war. Para

of Article 44, while paying lip service to the principle of distinctio

only a truncated version of condition (iii): the duty to carry arms op

stricted to the duration of the battle itself and to the preliminary ph

ployment in preparation for the launching of an attack, while being 

the enemy. The issue of visibility to the enemy is complex, implying 

combatant neither knows nor should know that he is visible, the 

does not apply.69 It is not clear whether visibility is determined sol

naked eye or it also includes observation by means of binoculars and 

fra-red equipment.70 More significantly, there is no agreement as to 

ployment begins: at the original assembly point (from which the co

proceed to their destination) or only moments before the attack is la

But these and other points are quite moot, since—in a most 

169

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 PROTO

note 67, at 519, 535.

70. See Solf, supra note 40, at 254–255.

71. See DE PREUX, supra note 69, at 534–535.

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fashion

Paragraph (4) mandates that, albeit technically deprived 

ers of war status, transgressors must be accorded every protection 

on prisoners of war. Thus, in terms of practicality, condition (iii)—

circumscribed—is vitiated by Article 44. As far as condition (ii) is c

the sole reference to it is made in Paragraph (7), articulating an int

not affect the practice of wearing uniforms by regular armies. Thereb

44 only underscores the elimination of condition (ii) where it real

namely, when irregular forces take part in hostilities. In fact, the con

is “to tip the balance of protection in favor of irregular combatants t

riment of the regular soldier and the civilian.”73 In the final analysi

civilians who will suffer. “Inevitably, regular forces would treat civil

harshly and with less restraint if they believed that their opponents 

to pose as civilians while retaining their right to act as combatants 

POW status if captured.”74

As pointed out above, the seven cumulative conditions 

combatancy are onerous for irregular forces. Hence, it would have m

to alleviate the conditions to some extent. For instance, condition

(iii) could become alternative rather than cumulative in their ap

considering that when one is fulfilled the other may be looked at 

dant.75 Still, the pendulum in Article 44 has swung from one extre

other, reducing ad absurdum the conditions of lawful combatancy. 

come is that, for contracting parties to the Protocol, the general d

between lawful and unlawful combatants becomes nominal in value

Objections to the new legal regime created in Article 44 are amon

reasons why the leading military power of the day—the United St

clines to ratify Protocol I (while recognizing that many of its other p

reflect customary international law),76 and this negative assessment 

by an array of other states.

170

72. See Ruth Lapidoth, Qui a Droit au Statut de Prisonnier de Guerre?, 82 REV. GNR

INT’L PUBLIC 170, 204 (1978).

73. Guy Roberts, The New Rules for Waging War: The Case against Ratification o

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 

(1988).

75. See W.J. Ford, Members of Resistance Movements, 24 NETH INT’L L. REV. 92, 10

76. See INTERNATIONAL AND OPERATIONAL LAW DEP’T, THE JUDGE 

GENERAL’S SCHOOL, U.S. ARMY, JA-422, OPERATIONAL LAW HANDBOOK, 11 (

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The War in Afghanistan

The war in Afghanistan, waged by the United States and several all

tries against the Taliban regime and the al Qaeda terrorist network—

the armed attacks of 11 September 2001—raises multiple issues germ

status of lawful/unlawful combatancy:

1. The first problem relates to the standing of Taliban fighters. O

hand, the Taliban regime—on the eve of the war—was in de facto 

as much as 90% of the territory of Afghanistan. On the other hand, t

was unrecognized by the overwhelming majority of the internationa

nity. This lack of recognition does not by itself alter the legal positio

batants under customary international law. According to Article 4

Geneva Convention (III), members of regular armed forces profes

giance to a government unrecognized by the Detaining Power (the 

matic case being that of the “Free France” forces of General De 

World War II, unrecognized by Nazi Germany77) are entitled to pr

war status. Yet, inasmuch as the underlying idea is the equivalence 

forces of recognized and unrecognized governments, the latter—no 

the former—are bound by the seven cumulative conditions 

combatancy. The proper question, therefore, is not whether the T

gime was recognized, but whether the Taliban forces actually ob

these conditions.

In light of close scrutiny of the war in Afghanistan by the w

dia—and, in particular, the live coverage by television of literally tho

Taliban troops before and after their surrender—it is undenia

whereas Taliban forces were carrying their arms openly (condition 

possibly meeting other conditions of lawful combatancy, they did 

uniforms nor did they display any other fixed distinctive emblem (

(ii)). Since the conditions are cumulative, members of the Talib

failed to qualify as prisoners of war under the customary internation

teria. These criteria admit of no exception, not even in the unusua

stances of Afghanistan as run by the Taliban regime. To say th

Taliban do not wear uniforms in the traditional western sense”78 is 

leading, for the Taliban forces did not wear any uniform in any se

Western or Eastern (nor even any special headgear that would single 

171

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.&

70 (2002).

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from civilians). All armed forces

including those belonging to th

regime—are required to wear uniforms or use some other fixed distin

blem. If they do not, they cannot claim prisoners of war status.

The legal position seems singularly clear to the present writer. 

some observers appear to entertain doubt in the matter (perhaps be

case of governmental forces not wearing any uniform is so extraordi

issue could be put to judicial test. Article 5 (Second Paragraph) o

Convention (III) enunciates:

Should any doubt arise as to whether persons, having committed a bel

act and having fallen into the hands of the enemy, belong to any 

categories enumerated in Article 4, such persons shall enjoy the prote

the present Convention until such time as their status has been determin

competent tribunal.79

Ex abundante cautela, the United States might be well advised to have 

of Taliban forces determined by a competent tribunal. A competen

for this purpose can be a military commission.80

2. The legal position of al Qaeda fighters must not be confused w

Taliban forces. Al Qaeda fighters constitute irregular forces. They 

isfy the requirement of belonging to a Party to the conflict (conditio

reality, in the relations between al Qaeda and the Taliban regime t

times when it appeared that “the tail was wagging the dog,” in oth

that the party to the conflict (Afghanistan) belonged to al Qaeda ra

the reverse. Incontrovertibly, al Qaeda is a well-organized group (

(v)), with subordination to command structure (condition (i)), a

hostilities in Afghanistan its members carried their arms openly (

(iii)). However, apart from the fact that al Qaeda (like the Taliba

has declined to use a uniform or possess a fixed distinctive emblem (

(ii)), the group has displayed utter disdain towards the jus in bello 

disregard of condition (iv).81 Al Qaeda’s contempt for this paramou

uisite qualification of lawful combatancy was flaunted in the execut

original armed attack of 9/11. Not only did the al Qaeda terrorists, w

vilian clothes, hijack US civilian passenger planes. The most strikin

172

79. Geneva Convention III, art. 5, in LAWS OF ARMED CONFLICT, supra note 4, a

80. See Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists? 

Defense of Military Commissions and United States Policy on Detainees at Guantanam

Base, 25 HARV. J.L. & PUB. POL’Y 591, 619–620 (2002).

81. See Christopher Greenwood, International Law and the ‘War against Terrorism

AFF’S 301, 316 (2002).

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of the shocking events of 9/11 are that (i) the hijacked planes (with 

plosive fuel load) were used as weapons, in total oblivion to the fate 

vilian passengers on board; and (ii) the primary objective targeted (t

Trade Center in New York City) was manifestly a civilian object rath

military objective.82 The net result was a carnage in which some 3,

cent civilians lost their lives. No group conducting attacks in such 

gious fashion can claim prisoner of war status for its fighters . Wha

lingering doubt which may exist with respect to the entitlement o

forces to prisoners of war status, there is—and there can be—none 

al Qaeda terrorists.

3. The al Qaeda involvement raises another issue. Whereas th

forces were composed of Afghan (and some Pakistani) nationals, al 

an assemblage of Moslem fanatics from all parts of the world. Most o

apparently Arabs, but some have come from Western countries, 

were at least two cases of renegade American nationals. Without de

the question of how the United States should have handled the situa

the standpoint of its domestic—constitutional and criminal—leg

the salient point is that, under the jus in bello, irrespective of all oth

erations, nobody owing allegiance to the Detaining Power can exp

treated as a prisoner of war (condition (vii)).

4. The constraints of the conditions of lawful combatancy must 

ever, be seen as binding on only one party to the conflict in Afghan

the hostilities progressed, it became all too evident (again, thanks to 

uitous TV cameras) that some US combatants—CIA agents in the 

conceivably others—were not wearing uniforms while in combat. I

underscored that observance by even 99% of the armed forces of a 

conflict of the seven conditions of lawful combatancy—including t

tion relating to having a fixed distinctive emblem, such as a unifor

tion (ii))—does not absolve the remaining 1% from the unshakable o

to conduct themselves pursuant to the same conditions. Conseque

any US combatants in civilian clothing been captured by the en

would not be any more entitled to prisoner of war status than Talib

Qaeda fighters in a similar situation.

5. Perhaps “the primary focus of debate and controversy” in this 

been the detention of al Qaeda terrorists transferred by the Unit

173

82. On the principle of military objectives, see Yoram Dinstein, Legitimate Milita

Under the Current Jus in Bello, LEGAL AND ETHICAL LESSONS OF NATO’S KOSOVO 

(Andru Wall ed., 2003) (Vol 79, US Naval War College International Law Studies

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from Afghanistan to Guantanamo Bay (on the island of Cuba).

Sin

ful combatants are not entitled to prisoners of war status, most 

against conditions of detention in Guantanamo are beside the po

ever, it must be understood that—assuming that the detainee

charged with any crime in judicial proceedings—detention (as a p

ministrative measure) cannot go on beyond the termination of hostil

tilities in Afghanistan as regards Taliban personnel; hostilities in 

Qaeda is involved in the case of its incarcerated fighters.

Conclusion

Unlawful combatancy is a matter of great practical significance in pr

international law. Unlawful combatants may be tried for violations o

domestic laws and they may also be detained without trial (as long as 

ities by the force to whom they belong go on). The seven cumulative c

of lawful combatancy are no doubt stringent. But as the Afghanistan 

ply demonstrates, the need for maintaining the distinction between l

unlawful combatants is as imperative as ever. Otherwise, complianc

basic rule of distinction between civilians and combatants wou

jeopardy.

174

83. Anderson, supra note 80, at 621.

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VIII

The Laws of War in the War on Ter

Adam Roberts2

Introduction

he laws of war—the parts of international law explicitly app

armed conflict—have a major bearing on the “war on te

claimed and initiated by the United States following the attacks of 1

ber 2001. They address a range of critical issues that perenniall

campaigns against terrorist movements, including discrimination in 

protection of civilians, and status and treatment of prisoners. Howeve

plication of the laws of war in counter-terrorist operations has always 

ticularly problematical. Because of the character of such operations, d

1. Copyright © Adam Roberts, 2002, 2003. This is a revised version of Counter-terro

Force and the Laws of War, 44 SURVIVAL 1 (Spring 2002), 7–32. It incorporates 

available up to 15 December 2002. I am grateful for help received from a large numb

who read drafts, including particularly Dr. Dana Allin, Dr. Kenneth Anderson, Dr

Fox, Colonel Charles Garraway, Richard Guelff, Commander Steven Haines, and Pr

Schmitt; participants at the Carr Centre conference on “Humanitarian Issues 

Targeting,” Washington DC, 7–8 March 2002; and participants at the US Naval W

conference on “International Law & the War on Terrorism,” Newport, RI, 26–28 

Versions of this paper have also appeared on the website of the Social Science Resea

New York, at http://www.ssrc.org.

2. Sir Adam Roberts is Montague Burton Professor of International Relations at Oxfor

and Fellow of Balliol College. He is co-editor, with Richard Guelff (District of Colum

DOCUMENTS ON THE LAWS OF WAR (Oxford and New York: Oxford University Pr

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important respects from what was originally envisaged in the treatie

ing the laws of war, a key issue in any analysis is not just whether or ho

is applied by the belligerents, but also its relevance to the particula

stances of the operations. It is not just the conduct of the parties that 

amination, but also the adequacy of the law itself. Thus there is a ne

at the actual events of wars involving a terrorist adversary, and at 

ways in which, rightly or wrongly, the law is considered to have a b

them.

The present survey critically examines not only certain statemen

tions of the US administration, but also those of the International C

of the Red Cross (ICRC) and certain other bodies concerned with h

ian and human rights issues. While touching on many ways in which 

of war impinge on policy, the main focus is on the following 

questions.

1. Are the laws of war, according to their specific terms, app

counter-terrorist military operations?

2. In the event that counter-terrorist military operations in

uations different from those envisaged in international agreemen

laws of war, should the attempt still be made to apply that body of la

situations?

3. Are captured personnel who are suspected of involveme

rorist organizations entitled to prisoner-of-war (POW) status? If th

considered to be POWs, does the law recognize a different status, an

ternational standards apply to their treatment?

4. Is there a case for a revision of the laws of war to tak

count the special circumstances of contemporary counte

operations?

The answers to these questions may vary in different circumsta

US-led “war on terror” involves action in many countries, with diffe

and factual contexts. By no means does all action against terrorism

part of the “war on terror,” involve military action in any form, 

armed conflict of the kind in which the laws of war are formally a

The war’s most prominent military manifestation to date, and the fo

survey, is the coalition military action in Afghanistan that commen

October 2001 and still continues. While certain phases and aspects 

tion ENDURING FREEDOM involved an international armed conflict

tionably bringing the laws of war into play, other phases and aspects 

debatable with respect to the application of this body of law.

176

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The laws of war are not the only body of law potentially relevant to 

sideration of terrorist and counter-terrorist actions. For example

cases terrorists acts would indeed be violations of the laws of war if 

conducted in the course of an international or an internal armed 

However, because they frequently occur in what is widely viewed 

time, the illegality of such acts has to be established first and foremos

ence to the national law of states; international treaties on terro

related matters;3 and other relevant parts of international law (inclu

of the laws of war) that apply in peacetime as well as wartime, for ex

rules relating to genocide, crimes against humanity and certain rule

to human rights. All of these legal categories are relevant to consid

the attacks of 11 September. For example, the attacks constitute m

der the domestic law of states, and at the same time can be regarded 

against humanity,” a category which encompasses widespread or s

murder committed against any civilian population.4

177

3. For texts of treaties and other international documents on terrorism, and usefu

thereof, see TERRORISM AND INTERNATIONAL LAW (Rosalyn Higgins and Mauric

1997). For more recent treaties and UN resolutions see the information on terrorism 

website, at http://www.un.org.

4. Crimes against humanity, defined in the Charter and Judgment of the Internatio

Tribunal at Nuremburg in 1945–46, are more fully defined in Article 7 of the 1998 R

of the International Criminal Court, which entered into force on 1 July 2002. T

include any of the following acts when committed as part of a widespread or system

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 viola

fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, e

sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, 

national, ethnic, cultural, religious, gender . . . or other grounds that are uni

recognized as impermissible under international law, in connection with a

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 Internatio

Court, Rome Statute of the International Criminal Court, U.N. Doc. No. A/CONF.1

[hereinafter Rome Statute]. The Rome Statute does not apply retroactively and the U

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In an effort to answer the questions posed in this introduction, thi

divided into six parts.

1. The Laws of War 

2. Counter-Terrorist Military Operations 

3. War in Afghanistan 

4. Prisoners 

5. Further Development of International Law 

6. Conclusions 

The Laws of War

The laws of war (also referred to as “jus in bello” and “international h

ian law applicable in armed conflict”) are embodied and interpreted in 

of sources: treaties, customary law, judicial decisions, writings of leg

ists, military manuals and resolutions of international organizations. 

some of the law is immensely detailed, its basic principles are si

wounded and sick, POWs and civilians are to be protected; milita

must be attacked in such a manner as to keep civilian casualties and d

a minimum; humanitarian and peacekeeping personnel must be r

neutral or non-belligerent states have certain rights and duties; and 

certain weapons (including chemical weapons) is prohibited, as also a

other means and methods of warfare. The four 1949 Geneva 

tions—the treaties that form the keystone of the modern laws of war—

cerned largely with the protection of victims of war who have fallen 

hands of an adversary, as distinct from the conduct of military opera

178

has stated its intent to not become a party to this treaty. For a detailed treatment of US 

the ICC, see John Bolton, The Risks and Weaknesses of the International Criminal Court fr

Perspective, 41 VA. J. INT’L L. 186 (2000); Michael Newton, Comparative Complementa

Jurisdiction Consistent with Rome Statute of the International Criminal Court, 167 MIL. L. RE

5. See Convention for the Amelioration of the Condition of the Wounded and Si

Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U

Convention for the Amelioration of the Condition of the Wounded, Sick, and S

Members of Armed Forces at Sea, Aug. 12, 1949, 6. U.S.T. 3217, T.I.A.S. No. 3363, 

85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U

T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative to th

of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. N

U.N.T.S. 287 [hereinafter GC IV]. These four conventions are all reprinted in DOC

THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) 

DOCUMENTS ON THE LAWS OF WAR]; and in THE LAWS OF ARMED CO

COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENT

Schindler and Jiri Toman eds., 3rd ed. 1988). Treaty texts are also available at the I

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 betwe

and reflect their experiences and interests, including those of th

forces. For centuries these rules, albeit frequently the subject of co

have had an important function in the policies and practices of state

in military operations. With respect to international coalitions in

combat, given the needs of the members to harmonize their actions o

of practical issues, these rules have long had particular significance

situations in which their formal applicability may be questionable, 

sometimes been accepted as relevant guidelines.

Scope of application

The laws of war have a scope of application that is not limited to war

recognized states. They apply in a wide, but not infinitely wide, variet

tions. In the 1949 Geneva Conventions, Common Article 1 specifie

parties “undertake to respect and to ensure respect for the present Co

in all circumstances.”6 Common Article 2, which deals directly with 

application, specifies that the Conventions “apply to all cases of decla

of any other armed conflict which may arise between two or more of 

Contracting Parties, even if the state of war is not recognized by one 

indicating that the existence or non-existence of a declaration of wa

mal state of war, is not necessary for the application of the Conventio

mon Article 3 contains certain minimum provisions to be applied in t

armed conflict not of an international character, concentrating pa

on treatment of persons taking no active part in hostilities.7 Cer

179

6. For an authoritative account of the origins and meanings of Common Article 

Kalshoven, The Undertaking to Respect and Ensure Respect in All Circumstances: From 

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 t

of one of the High Contracting Parties, each Party to the conflict shall be b

apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of arme

who have laid down their arms and those placed hors de combat by sickness, w

detention, or any other cause, shall in all circumstances be treated humanely, 

any adverse distinction founded on race, colour, religion or faith, sex, birth or we

any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and 

place whatsoever with respect to the above-mentioned persons:

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agreements, especially those concluded since the early 1990s, apply i

ternational as well as international armed conflicts.

The distinction that has traditionally been drawn in the laws o

tween international and non-international armed conflict has co

challenge in the post-1945 era. This is not only because many war

volved elements of both civil and international war, but also beca

nature of counter-terrorist operations. These have aspects that are si

civil war, particularly as they typically involve governmental forces c

non-governmental groups; but they may not meet all the criteria (su

holding of territory by insurgents) required for the application of pa

law governing non-international armed conflict; and they can also 

pects that are more closely akin to international war, especially if the 

operate in armed units outside their own countries.

Application of the law is not necessarily dependent on formal de

of a conflict as international or non-international. In some instance

cated below, the UN Security Council or particular belligerents hav

the rules governing international armed conflict to be applicable 

largely internal situation. The US armed forces have indicated their 

to observe the rules governing international armed conflicts, even 

tions that may differ in certain respects from the classical model of 

state war. The Standing Rules of Engagement issued by the US Joint 

Staff spell this out:

U.S. forces will comply with the Law of War during military op

involving armed conflict, no matter how the conflict may be chara

under international law, and will comply with its principles and spirit du

other operations.8

180

(a) violence to life and person, in particular murder of all kinds, mutilatio

treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading trea

(d) the passing of sentences and the carrying out of executions without p

judgment pronounced by a regularly constituted court, affording all the 

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

8. CHAIRMAN JOINT CHIEFS OF STAFF INSTR 3121.01A STANDING RULES OF EN

FOR U.S. FORCES, ENCLOSURE (A) A-9 [hereinafter CJCS INSTR 3121.01A]. A sim

identical statement had appeared in the Standing ROE of 1 October 1994, which th

replaces. See CJCS INSTR, 3121.01 STANDING RULES OF ENGAGEMENT FOR U.S

OCT. 1994). A number of other US military-doctrinal statements are equally defin

forces will always apply the law of armed conflict.

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In certain inter

state conflicts, Western armed forces, engaging w

saries showing at best limited respect for ethical and legal restrai

managed to observe basic rules of the laws of war. This was the c

1991 Gulf War, in which Iraq mistreated prisoners, despoiled the 

ment and had to be warned in brutally clear terms not to engage in 

or biological attacks and terrorist operations. The US-led Gulf 

sought to observe the law not because of any guarantee of reciprocit

cause such conduct was important to the ethos of the armed force

cause it contributed to the maintenance of internal discipline, and of 

and international support. Similar conclusions could be drawn from 

Kosovo War. In short, practice has provided some evidence in supp

legal position that reciprocity with one adversary in one particular 

far from being a necessary condition for observing the laws of war.

Whether all aspects of counter-terrorist operations fall within th

application of the laws of war will be explored further in Part 2 belo

Jus ad bellum and jus in bello

In any armed conflict, including one against terrorism, it is important 

guish between the legality of resorting to force and the legality of t

which such force is used. In strict legal terms, the law relating to the r

sort to the use of force (jus ad bellum) and the law governing the act

force in war (jus in bello) are separate. The jus in bello applies to the c

belligerents in international armed conflict irrespective of their righ

to the use of force under the jus ad bellum. As regards the jus ad bel

raised after 11 September, my own views are in favor of the legality, a

overall moral justifiability, of the military action in Afghanistan. How

survey’s focus is on the jus in bello aspects of the US-led military op

Despite the lack of a formal connection between jus ad bellum 

bello, there are certain ways in which they interact in practice, espe

war against terrorists. By observing jus in bello, a state or a coalition 

may contribute to perceptions of the justice of a cause in three rela

First, in all military operations, whether or not against terrorists, th

tion that a state or a coalition of states is observing recognized inte

standards may contribute to public support domestically and intern

Second, if the coalition were to violate jus in bello in a major way, fo

by the commission of atrocities, that would be likely to advance th

the adversary forces, arguably providing them a justification for thei

force. Third, in counter-terrorist campaigns in particular, a basis for 

in military operations is often a perception that there is a defin

181

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distinction between the types of actions engaged in by terrorists and 

gaged in by their adversaries. Observance of jus in bello can form a p

moral distinction.

However, the jus ad bellum rationale that armed hostilities have b

ated in response to major terrorist acts can raise issues relating to th

tion of certain jus in bello principles. Two such issues are explored h

whether there is scope for neutrality in relation to an armed conflict 

one side is fighting in the name of opposing terrorism; second, whet

responsible for terrorist campaigns can be viewed as exclusively respo

all the death and destruction of an ensuing war.

The right of states to be neutral in an armed conflict is a long-stan

ciple of the laws of war. Events of the past century, especially the o

imposed by membership of international organizations, have expo

lems in the traditional idea of strictly impartial neutrality and have 

modification and even erosion. In many conflicts there were stat

even while not belligerents, pursued policies favoring one side, for 

joining in sanctions against a state perceived to be an aggressor. 

Charter, by providing for the Security Council to require all states to 

tain actions against offending states, added to the erosion of traditi

cepts of neutrality, at least in those cases in which the Security Co

been able to agree on a common course of action (e.g., sanctions). T

tance of new forms of non-belligerence, distinct from traditional n

may help to explain the emergence of terms such as “neutral or non-b

powers” in post-1945 treaties on the laws of war.9 In many recent ep

cluding the 1991 Gulf War and the 1999 Kosovo War, when the use 

force by a coalition has been combined with the application of ge

sanctions against the adversary state, the scope for traditional (i.e., 

neutrality has indeed been limited, but certain forms of non-belliger

survived. As outlined below in Part 3 on War in Afghanistan, the “w

ror” which began in 2001 with Operation ENDURING FREEDOM w

firm that in certain armed conflicts, particularly when the UN 

Council has given approval to one party, the scope for neutrality m

ited or non-existent.

182

9. See GC III, supra note 5, at articles 4(B)(2) and 122. See also the references to 

other States not Parties to the conflict” in 1977 Geneva Protocol I Additional to 

Conventions of 12 August 1949 and Relating to the Protection of Victims of I

Armed Conflicts, Articles 9, 19, 31 opened for signature Dec. 12, 1977, 1125 

[hereinafter GP I], reprinted in DOCUMENTS ON THE LAWS OF WAR at 419, supra 

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Can those who initiated terrorist campaigns be held responsible 

death and destruction of an ensuing war? When fighting terrorism i

for resorting to war under the jus ad bellum, there is sometimes a ten

the general indignation caused by terrorist attacks to affect adverse

plementation of jus in bello. It is sometimes argued that because the 

started the war, they are responsible for all the subsequent horror

December 2001, discussing civilian casualties, US Secretary of 

Donald Rumsfeld said: “We did not start this war. So understand, re

ity for every single casualty in this war, whether they’re innocent A

innocent Americans, rests at the feet of the al Qaeda and the Taliban

a view, if it implies that the peculiar circumstances involved in t

bellum might override certain considerations of jus in bello in the wa

lows, has no basis in the law.

Proportionality

“Proportionality” is a long-established principle that sets out criteria 

ing the use of force. One of its meanings relates to the proportionality 

tary action compared to a grievance, and thus constitutes a fu

between jus in bello and jus ad bellum. It involves a complex balance 

erations, and it would be incorrect to interpret this principle to imply 

tit-for-tat retaliation. For example, it would be legally unjustified for 

response to a terrorist act to have the objective of killing the same n

people, and there was no suggestion or indication that this was a coa

jective in Afghanistan. Nor does this principle prevent a response fr

into account a range of issues not limited to the size of the initial att

The other main meaning of proportionality relates to the actual c

ongoing hostilities. As a US Army manual succinctly interprets it, “

life and damage to property incidental to attacks must not be excessi

tion to the concrete and direct military advantage expected to be 

This meaning of proportionality (which is not directly linked to jus a

is often difficult to apply in armed conflict, especially in counte

183

10. Secretary of Defense Donald Rumsfeld, News Conference at the Pentagon (D

available at http://www.defenselink.mil/news/Dec2001/t12042001_t1204sd.html (No

11. In an assessment of the events of 2001, Christopher Greenwood has 

“proportionality in self-defence looks forward. The test is whether the force used is pr

to the threat it is designed to meet, not to the events of the past.” See Christopher 

International Law and the “War Against Terrorism,” 78 INT’L AFF’S 2, 313–314 (Apr

12. U.S. DEPT OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, p

1956) [hereinafter FM 27-10].

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operations. It may, but does not necessarily, limit the use of force to 

level or amount of force as that employed by an adversary. It exists 

the principle of military necessity, which is defined in the US Army 

one that “justifies those measures not forbidden by international l

are indispensable for securing the complete submission of the enem

as possible.”13 The principle of proportionality is therefore in tensio

necessarily in conflict, with the current US military doctrine, which 

overwhelming use of force in order to achieve decisive victory quic

minimum cost in terms of US casualties.14

Counter-Terrorist Military Operations

Counter-terrorism has been defined as “offensive military operations 

to prevent, deter and respond to terrorism.”15 Such operations, includ

resulting from the events of 11 September, may involve inter-state ar

flict as principally envisaged in the laws of war: in such cases that bo

applies straightforwardly. However, such operations can also involv

with other characteristics—a fact that helps to explain why the la

have often proved difficult to apply in them. Six factors, all relating 

ture of the opposition, point to potential problems in the application o

of war in counter-terrorist operations:

• Neither all terrorist activities, nor all counter-terrorist 

operations, even when they have some international dimension, n

constitute armed conflict between states. Terrorist movements th

generally have a non-state character. Therefore, military operations b

state and such a movement, even if they involve the state’s armed for

184

13. Id. at para. 3. A subsequent official US exposition of the principle states: “Only 

and kind of force, not otherwise prohibited by the law of armed conflict, required for t

complete submission of the enemy with a minimum expenditure of time, life a

resources may be applied.” ANNOTATED SUPPLEMENT TO THE COMMANDER’S H

ON THE LAW OF NAVAL OPERATIONS, para. 5-2 (A. Thomas and J. Duncan eds., 

73, US Naval War College International Law Studies).

14. For a brief discussion of United States and NATO strategic doctrine,see pages 19

15. By contrast, “antiterrorism” has been defined as “defensive measures to 

vulnerability of individuals and property to terrorist attacks.” See INTERNATI

OPERATIONAL LAW DEP’T, THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. AR

OPERATIONAL LAW HANDBOOK (2003), at 312–3 [hereinafter OPLAW HANDB

annual publication is available at https://www.jagcnet.army.mil/JAGCN

Homepages/AC/CLAMO-Public.nsf (Nov. 14, 2002).

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outside its own territory, are not necessarily such as to bring them w

scope of application of the full range of provisions regarding inte

armed conflict in the 1949 Geneva Conventions and the 1977 

Protocol I.16

• Counter-terrorist operations may assume the form of acti

government against forces operating within its own territory; or, mo

may be actions by opposition forces against a government percei

committing or supporting terrorist acts. In both these cases, the con

have more the character of non-international armed conflict (that is, 

as distinct from international war. Fewer laws-of-war rules have been 

applicable to civil as distinct from international war, although the si

now changing in some respects.

• In many cases, the attributes and actions of a terrorist movemen

come within the field of application even of the modest body of rules r

non-international armed conflict. Common Article 3 of the 194

Conventions is the core of these rules, but says little about the 

application. The principal subsequent agreement on non-internatio

conflict, the 1977 Geneva Protocol II, is based on the assumption th

a conflict between a state’s armed forces and organized armed grou

under responsible command, exercise control over a part of its terr

carry out sustained and concerted military operations. The protocol 

does not apply to situations of internal disturbance and tension, suc

and isolated and sporadic acts of violence.17

• Since terrorist forces often have little regard for internationa

rules of restraint, the resolve of the counter-terrorist forces to obse

may also be weakened, given the low expectation of reciprocity 

tendency of some part of the public under attack to overlook any br

their own forces.

• A basic principle of the laws of war is that attacks should be 

against the adversary’s military forces, rather than against civili

principle, violated in terrorist attacks specifically directed against civ

185

16. In ratifying the 1977 Geneva Protocol I in 1998, the United Kingdom made a sta

the term “armed conflict” denotes “a situation which is not constituted by the co

ordinary crimes including acts of terrorism whether concerted or in isolation.” See 

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 Augus

Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1

DOCUMENTS ON THE LAWS OF WAR, at 481, supra note 5 [hereinafter GP II].

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be difficult to apply in counter

terrorist operations, because the 

movement may not be composed of defined military forces that a

distinguished from civilians.

• Some captured personnel who are members of a terrorist org

may not meet the criteria for POW status as set out in 1949 

Convention III. (The question of prisoners is discussed in grea

below.)

These six factors reflect the same underlying difficulty governmen

applying the laws of war to civil wars, namely, that the opponent te

viewed as criminals, without the right to engage in combat operat

factor above all explains why, despite the progress of recent decad

governments are doubtful about, or opposed to, applying the full ran

applicable in international armed conflict to operations against r

terrorists.

For at least 25 years, the United States has expressed a concern, 

some degree by certain other states, regarding the whole principle o

about terrorists and other irregular forces in a laws-of-war framework

to such a framework, which recognizes rights and duties, might seem 

a degree of moral acceptance of the right of any particular group to 

acts of violence, at least against military targets.18 Successive US ad

tions have objected to certain revisions to the laws of war on the gro

they might actually favor guerrilla fighters and terrorists, affording th

tus that the United States believes they do not deserve. The stronge

sion of this view was a letter of 29 January 1987 explaining 

administration was not recommending Senate approval of 1977 Ge

tocol I. The letter mentioned that granting combatant status to certa

lar forces “would endanger civilians among whom terrorists a

irregulars attempt to conceal themselves.” It indicated a concern tha

visions would endanger US soldiers, and stated in very general terms 

Joint Chiefs of Staff have also concluded that a number of the pro

the protocol are militarily unacceptable.” United States repudiati

protocol would be an important move against “the intense efforts o

organizations and their supporters to promote the legitimacy of their 

186

18. For fuller discussion, and evidence that the concern about the hazards of 

terrorism in a laws-of-war framework is not new, see ADAM ROBERTS, TERR

INTERNATIONAL ORDER, 14–15 (Lawrence Freedman et al. eds., 1986).

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practices.

Whether all this was based on a fair interpretation 

Geneva Protocol I is the subject of impassioned debate that is be

scope of this survey. The key point is the US concern—which 

changed fundamentally in the years since 1987—that the laws of war 

misused by some in order to give an unwarranted degree of recog

guerrillas and terrorists.

Application of the law in previous operations

In many counter-terrorist campaigns since 1945 issues relating to t

vance or non-observance of basic rules of law, including the laws of 

perennially been of considerable significance. This has been the 

when a counter-terrorist campaign has been part of an internation

conflict, and when such a campaign has been a largely internal ma

ducted by a government within its own territory, in a situation which 

cross the threshold to be considered an armed conflict. In such circu

the laws of war may be of limited formal application, but their underl

ciples, as well as other legal and prudential limits, are important. Wi

tioning states, terrorist campaigns have often been defeated through 

patient police work (sometimes with military assistance) rather than m

itary campaigns; for example, the actions against the Red Army Factio

many and the Red Brigades in Italy in the 1970s.

The British military and police operation against “Communist T

in Malaya after 1948 is an example (in a colonial context) of a long-d

and patient counter-terrorist campaign that was eventually successf

the key military figures involved in that campaign, Sir Robert Thom

tilling five basic principles of counter-insurgency from this and ot

wrote of the crucial importance of operating within a properly functi

mestic legal framework:

Second principle. The government must function in accordance with law

is a very strong temptation in dealing both with terrorism and with g

actions for government forces to act outside the law, the excuses being 

processes of law are too cumbersome, that the normal safeguards in the 

the individual are not designed for an insurgency and that a terrorist des

187

19. Letter of Transmittal from President Ronald Reagan, 1977 Geneva Protocol I A

the Geneva Conventions of 12 August 1949 and Relating to the Protection o

International Armed Conflict, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at 

reprinted in 81 AM J. INT’L L. 910–912 (1988).

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yyy y g, 

period, it will create more practical difficulties for a government than it s

The United Kingdom’s long engagement against terrorism in Nor

land, although in an essentially internal situation, provides one prec

affording treatment based on certain international rules to prison

status is contested. This was one of many conflicts in which those d

be “terrorists” were aware of the value, including propaganda value, 

claims to POW status. While denying that there was an armed 

whether international or otherwise, and strongly resisting any gr

POW status to detainees and convicted prisoners, the United Kin

come to accept that international standards had to apply to their t

The minority report of a UK Commission of Inquiry in 1972 which 

conclusion is an interesting example of asserting the wider relevanc

an internal conflict, of certain international legal standards, includ

from the main body of the four 1949 Geneva Conventions.21 The U

ment’s acceptance of this approach was only a decision, not a comp

tion to a matter that continued to be contentious.

Questions about the status and treatment of prisoners, some of w

considered as terrorists, also arose during the US involvement in Vi

1967–8, the United States took a judiciously inclusive approach to t

when it issued directives to classify Viet Cong main force and local for

nel, and certain Viet Cong irregulars, as POWs. This was despite the ex

doubts and ambiguities as to whether these forces met all the criteria in 

of 1949 Geneva Convention III. Viet Cong irregulars were to be cl

POWs if captured while engaging in combat or a belligerent act un

“other than an act of terrorism, sabotage, or spying.” There was provis

tablishing tribunals, in accordance with Article 5 of the Geneva Conv

188

20. ROBERT THOMPSON, DEFEATING COMMUNIST INSURGENCY: EXPERIEN

MALAYA AND VIETNAM, 52 (1966). From 1957 to 1961 the author was successi

Secretary and Secretary for Defense in Malaya. As his and other accounts make 

course of the Malayan Emergency there were certain derogations from human righ

including detentions and compulsory relocations of villages.

21. Report of the Committee of Privy Counsellors Appointed to Consider 

Procedures for the Interrogation of Persons Suspected of Terrorism, Cmnd. 4901, H

Stationery Office, London, 1972, at 1–2 and 11–23.

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determine, in doubtful or contested cases, whether individual detainee

titled to POW status.22

One example of a counter-terrorist military campaign, the 1982

raeli presence in Lebanon, shows the importance of legal restraints in 

terrorist operations, and the hazards that can attend a failure to obse

This episode has certain similarities to the case of Afghanistan in 20

as well as some obvious differences. Israel’s June 1982 invasion of 

was explicitly in response to “constant terrorist provocations,” i

since July 1981, “150 acts of terrorism instigated by the PLO, orig

Lebanon, against Israelis and Jews in Israel and elsewhere: in Athen

Paris and London.” Israel said that if Lebanon was unwilling or unab

vent the harboring, training and financing of terrorists, it must face 

counter-measures.23 The invasion led to the attacks on the inha

Sabra and Shatila refugee camps outside Beirut in September 1982 

local co-belligerents, the Lebanese Phalangists. At the lowest estim

eral hundred Palestinians in the camps, including many women and 

were killed. This event aroused strong opposition internationally, a

Israel. The Israeli authorities established a Commission of Inquiry, w

cluded that, while the Phalangist forces were directly responsibl

slaughter, Israel bore indirect responsibility.24 During the whole pe

raeli military involvement in Lebanon, the treatment of alleged ter

tainees also caused controversy. Israel opposed granting them POW 

the grounds that as terrorists they were not entitled to it. The detai

held in very poor conditions in notorious camps, including al-Khia

the Israeli-created South Lebanese Army) and al-Ansar (run by 

189

22. Two key directives issued by US Military Assistance Command, Vietnam, on the 

eligibility for POW status are (1) Annex A, “Criteria for Classification and Di

Detainees,” part of Directive no. 381–46 of 27 December 1967; and (2) Directive n

March 1968, “Inspections and Investigations: Prisoners of War – Determination o

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, Sp

the Security Council, U.N. SCOR, 36th Sess., Supp. 21, U.N. Doc. S/PV.2292 

Security Council unanimously demanded an end to all military activities and a w

Israeli forces from Lebanon in Resolutions 508 and 509 of 5 and 6 June 1982 resp

S. C. Res. 508, U.N. SCOR, 37th Sess., U.N. Doc. S/508/(1982); and S. C. Res

SCOR, 37th Sess., U.N. Doc. S/509/(1982).

24. See Commission of Inquiry into the Events at the Refugee Camps in Beirut, Fin

53–54 (1983) [hereinafter Kahan Report], reprinted in 22 I.L.M. 3, at 473 (1983).

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Defense Forces).

The Israeli military presence in Lebanon receiv

sive criticism internationally and in Israel, and cost many lives amo

rael Defense Forces, their adversaries and the civilian population. 

with a unilateral Israeli withdrawal in May 2000.

Past evidence suggests that while the application of the law may b

larly difficult in counter-terrorist operations, it cannot be neglect

failures to observe legal restraints in past campaigns have been instr

military operations with the purpose of stopping terrorist activities, 

been a tendency for counter-terrorist forces to violate basic legal 

There have been many instances in which prisoners were subjecte

treatment or torture. In some cases, excesses by the government or 

vening forces supporting the government may have had the uninten

of assisting a terrorist campaign. Applying pressure on a governmen

to change its approach to counter-terrorism, to bring it more into lin

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 p

considerations that militate in favor of observing legal standards, wh

creasingly seen as consisting of not only domestic legal standards, b

ternational ones, including those embodied in the laws of wa

considerations include securing public and international support; 

that terrorists are not given the propaganda gift of atrocities or mal

by their adversaries; and maintaining discipline and high professio

dards in the counter-terrorist forces; and assisting reconciliation a

peace. Such considerations may carry great weight even in conflicts, 

ular episodes within them, which differ from what is envisaged in t

provisions regarding scope of application of relevant treaties. These 

ations in favor of observing the law may be important irrespective o

there is reciprocity in such observance by all the parties to a partic

However, it is not realistic to expect that the result of the applicatio

rules will be a sanitized form of war in which civilian suffering and 

eliminated.

190

25. In a case concerning detainees in Ansar Prison on which the Israeli Supreme C

judgment on 11 May 1983, the Israeli authorities asserted that the prisoners w

foreigners detained because they belong to the forces of terrorist organizations, o

their connections or closeness to terrorist organizations.” Israel, while refusing 

status, claimed to observe “humanitarian guidelines” of the 1949 Geneva Conve

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 mark

that permitted by the written laws of war. These wars always had a ci

mension, traditionally subject to fewer rules in the laws of war; and 

warfare, already endemic in Afghanistan in the nineteenth centur

ously blurs the traditional distinction between soldier and civilian tha

heart of the laws of war. Some local customs, for example regarding 

of prisoners and looting, are directly contrary to long-established pri

the law. Other customs are different from what is envisaged by the la

not necessarily a violation of it: for example, the practice of soldiers 

defeated side willingly joining their adversary rather than being taken 

In some cases, conduct has been consistent with international norm

ample, the ICRC had access to some prisoners during the Soviet inte

Overall, however, compliance with the laws of war has been limited

From the start, the implementation of the laws of war posed a pr

Operation ENDURING FREEDOM.

26 Difficult practical issues facing 

tion included: the problem of conducting operations discriminate

elusive enemies; the possibility that adversary forces might mistreat o

coalition prisoners; the possibility that some enemy personnel facin

might be reluctant to surrender their weapons, and that they might 

the criteria for POW status; the urgent need for humanitarian rel

tions during ongoing war; and maintenance of order (and avoidance 

and revenge killings) in liberated towns. These problems were exace

the character of the coalition’s local partner, the Northern Allian

number of different forces involved, many of which were under the 

191

26. The name Operation ENDURING FREEDOM was announced by Donald Rumsfe

conference on 25 September 2001. See Secretary of Defense Donald Rumsfeld News 

at the Pentagon (Sep. 25, 2001), available at http://www.defenselink.mil/new

t09252001_t0925sd.html (Dec. 28, 2002). Operation ENDURING FREEDOM, he said

“umbrella phrase” for the entire anti-terror campaign, but referred to a “broa

multifaceted effort.” It has been used to refer to the coalition military operations in 

Afghanistan that began on 7 October 2001. Operation ENDURING FREEDOM 

encompass the operations of the International Security Assistance Force in A

mentioned below.

27. “Northern Alliance” is a colloquial term for the “United Islamic Front for the 

Afghanistan.” This organization was formed in 1996-7. See Afghanistan and the Un

(Jan. 6, 2003), available at http://www.un.org/News/dh/latest/afghan/un-afghan-h

(Jan. 6, 2003).

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of local warlords, and the lack of clear structures of authority, 

making and military discipline within them, militated against the imp

tion of international norms.

The active role of the media in this war ensured that many of th

were heavily publicized. Reporters operated close to, and even in fro

front lines, sending back reports and high-resolution pictures as e

folded. Up to the end of January 2002, more reporters died while cov

war in Afghanistan than non-Afghan coalition military personne

other modern wars, the press played a critical role in repeatedly raisin

germane to the laws of war.

This part deals mainly with the war in Afghanistan after the beg

major US military action there on 7 October 2001. It cannot explore 

sues relating to the laws of war that have cropped up in regard to Afg

It considers the applicability of the laws of war to the various aspe

armed conflict generally, glances at the limited scope for neutrality, 

surveys three specific issues that were raised in the war: bombing; ga

manitarian assistance and refugee matters. Prisoners are considered i

Applicability of the laws of war to the armed conflict

An armed conflict in Afghanistan—principally between the Ta

Northern Alliance forces—had been going on for many years before t

of 11 September 2001. The UN Security Council had called on both 

comply with their obligations under international humanitarian la

similar resolution on Bosnia six years earlier, a 1998 UN Security Cou

lution on Afghanistan reaffirmed:

that all parties to the conflict are bound to comply with their obligation

international humanitarian law and in particular the Geneva Conventio

August 1949 and that persons who commit or order the commission o

breaches of the Conventions are individually responsible in respect 

breaches.29

192

28. Eight reporters died in the period October–December 2001, several of them due to ba

than military operations. Interview with Nik Gowing, BBC World Television Reporter (Jan

29. UN Security Council Resolution 1193 of 28 August 1998, passed unanimously. S

1193, U.N. SCOR, 53d Sess., U.N. Doc. S/1193/(1998). Identical wording had been u

Res. 764 of 13 July 1992 on the war in Bosnia and Herzegovina. See S. C. Res. 764, U.N. 

Sess., U.N. Doc. S/764/(1992). This wording did not necessarily mean that the Secu

viewed these wars as international armed conflicts, but it did mean that international st

to be observed in them. Nor did it indicate that the Council considered any prisoners ta

wars to have the full status of prisoners of war; but it implied that they should rece

treatment in accord with international standards.

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The reference to grave breaches would appear to suggest that th

Council viewed all the rules of the 1949 Geneva Conventions as a

and not just Common Article 3, which deals with civil war. Thus, th

before it became directly involved, the United States as well as oth

viewed the laws of war as applicable to the Afghan conflict.

Like the period of Soviet intervention of 1979–89, and indeed war

countries in the period since 1945, the armed conflict in Afghani

7 October 2001 can perhaps be best characterized as “internationa

war.” This is not a formal legal category, but an indication that the 

taining to both international and civil wars may be applicable in dif

pects and phases of the conflict.30

Major aspects of the war in Afghanistan have been international 

ter. Following the attacks of 11 September 2001, the UN Securit

adopted Resolution 1368, recognizing the right of individual or colle

defense and condemning international terrorism as a threat to inte

peace and security. This and the more detailed Resolution 1373 r

the international dimensions of the struggle against terrorism.31 D

period October–December 2001, there was an international arme

between the US-led coalition on the one side, and the Taliban and 

on the other. Following the fall of the Taliban regime, and the ac

power of the Afghan Interim Authority on 22 December 2001, the c

role was essentially that of aiding a government but in a struggle th

least partly international. Even after the convening of the Loya Jirga 

in June 2002 and the establishment of the Afghan Transitional Go

on 19 June, coalition (including Afghan) forces were engaged not on

Taliban or other mainly Afghan forces, but also against certain no

forces, especially al Qaeda. Despite the fact that al Qaeda lacked the 

of a state, the continuing hostilities with it could still be understood 

an international armed conflict. This coalition military action wa

from the assistance to the government in maintaining security in K

surrounding areas through the International Security Assistan

(ISAF).32

193

30. See Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Ca

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

SCOR, 53d Sess., U.N. Doc. S/1373/(2001).

32. ISAF was established in Afghanistan in January 2002 on the basis of UN Secu

Resolution 1386 of December 20, 2001, passed unanimously. See S. C. Res. 1386, U.N

Sess., U.N. Doc. S/1386/(2001). Details of the Military Technical Agreement betwe

the Interim Administration, plus annexes, are available at http://www.operat

isafmta.doc (Nov. 15, 2002).

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On the technical legal question as to which of the main laws of 

ties were formally binding on the belligerents in the internation

conflict between the US-led coalition and the Taliban regime in Afgh

October–December 2001, the 1907 Hague Convention IV On Land 

applied because of its status as customary law, thereby being binding on 

whether or not parties to the treaty. In addition, Afghanistan and 

members of the international coalition were parties to the following ag

• 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 cer

tional agreements.33 However, the above-named treaties provide 

treaty framework for considering the application of the law in the ar

flict that commenced in October 2001. In addition, rules of custom

national law applied. Apart from the provisions of customary law em

the agreements indicated above, certain provisions of some later ag

including 1977 Geneva Protocol I, are accepted as having that statu

As regards civil-war aspects of the Afghan war, some but not all o

visions of the agreements listed above apply. The 1907 Hague Land W

vention’s Article 2 indicates that the convention and its annexed re

apply only to wars between states. The 1925 Geneva Protocol is no

applicable to civil wars.34 The 1948 Genocide Convention is conside

ply to non-international as well as international armed conflict. In 

Geneva Conventions, Common Article 3 lists certain minimum prov

humane treatment of those taking no active part in hostilities that 

applied in non-international armed conflict. However, the UN 

194

33. On 11 September 2002, Afghanistan acceded to the Ottawa Convention on An

Mines. See “UN Committed to Ridding World of Landmine Threat, Annan 

Meeting” (Sep. 16, 2002), available at http://www.un.org/apps/news/storyAr.

=4724&Cr=mines&Cr1= (Nov. 8, 2002).

34. Afghanistan is nonetheless bound by the complete prohibition on possession 

biological weapons in the 1972 Biological Weapons Convention, which it ratified o

1975. See Convention on the Prohibition of the Development, Production and S

Bacteriological (Biological) and Toxin Weapons and on their Destruction, Apr. 

U.S.T. 583, 1015 U.N.T.S. 163, reprinted in THE LAWS OF ARMED CONFLICTS, sup

137. Afghanistan is not yet a party to the 1993 Chemical Weapons Convention, which 

14 January 1993 but has not ratified. See The Convention on the Prohibition of the D

Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction

signature January 13, 1993, 32 I.L.M. 800 (1993) [hereinafter Chemical Weapons C

available at http://www.opcw.org/html/db/members_frameset.html (Nov. 12, 2002).

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Council

s 1998 resolution had called for application of the Geneva 

tions more generally.

Following the events of 11 September 2001, when it was eviden

armed conflict between the coalition and the Taliban regime was 

ICRC, consistent with its general practice, sent messages to certai

ments reminding them of their obligations under international hum

law. Unfortunately these messages contained some debatable interp

of the law. They put less reliance on binding treaty law than on pro

1977 Geneva Protocol I, to which neither the United States nor Af

was a party, and not all of the provisions of which that were cited can 

be claimed to be “recognized as binding on any Party to an armed co

the messages optimistically asserted. Furthermore, in the first of wh

be many clashes between humanitarian bodies and national govern

this crisis, the ICRC messages to the US and UK governments sta

use of nuclear weapons is incompatible with the provisions of Inte

Humanitarian Law.” Although beyond the scope of this survey, thi

doubtedly wrong as a statement of law. Following strong US object

vised text was sent to the US government, in which the offending wo

changed to the bland formula: “On the subject of nuclear weapons, 

confirms its position as expressed in its Commentary on the 1977 A

Protocols.”35 In its message to the Afghan authorities the ICRC indic

the civil war in Afghanistan was governed primarily by the provision

ble to non-international armed conflicts.36 This reflected the ICRC 

there were two conflicts in Afghanistan (Coalition v. Taliban; and T

Northern Alliance) to which two different branches of law applied. 

this was a surprising stance in view of the strong view about the appl

the 1949 Geneva Conventions to the situation in Afghanistan that 

expressed by the UN Security Council in August 1998. The ICR

quently issued some public statements on the application of the laws 

this crisis, reminding all the parties involved—the Taliban, the Nort

ance and the US-led coalition—of their obligations to respect the 

stating that the ICRC was continuing a wide range of activities insid

istan. One ICRC statement was explicit that “combatants captured 

forces in the international armed conflict between the Taliban and t

195

35. See Memorandum from ICRC to Governments of the US and the UK (Sep. 28, 

memorandum was amended and corrected on October 5 by the ICRC. See Memor

ICRC to Governments of the US and the UK (Oct. 5, 2001).

36. See Memorandum from ICRC to Government of Afghanistan (Sep. 2001) (

memorandum).

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coalition must be treated in accordance with the Third Geneva Con

implying that other aspects of the war in Afghanistan did not rise to 

of international armed conflict, and that captured personnel in that 

the war would have a different and perhaps lesser degree of protecti

In November 2002, the ICRC communicated to concerned cou

conclusions that from 19 June 2002 onwards, the armed conflict in 

stan was no longer an international armed conflict but an internal 

ered by Common Article 3 of the 1949 Geneva Conventions rathe

the more comprehensive regime of the conventions as a whole. Th

sion was not persuasive. It appeared to ignore the continuing involv

certain non-Afghan forces, especially al Qaeda, inside Afghanistan

possible continued involvement in terrorist attacks world-wide of 

other bodies operating in Afghanistan; it failed to note the implicatio

lier UN Security Council Resolutions that the conflict was internati

or that the Geneva Conventions were applicable to it; and its issuanc

a departure from previous ICRC practice of adopting a low profile ap

the legal characterization of situations with characteristics of both 

tional and internal armed conflict.38

Lack of scope for neutrality

The circumstances of the war against al Qaeda and the Taliban were 

little or no room was left for states to adopt a policy of traditional (i.e., 

neutrality, the stresses on which in wars in the twentieth century we

noted above. The lack of scope for neutrality was especially marked b

Qaeda operates in numerous states, and all states have been required b

to take a range of measures against it. The resolution passed by the UN 

Council in 1999 on the subject of the Taliban regime in Afg

196

37. Press Release 01/47, ICRC, Afghanistan: ICRC calls on all parties to conflic

international humanitarian law (Oct. 24, 2001), available at http://www.icrc.o

siteeng0.nsf/iwpList74/0E80282C0A643B05C1256B6600607E00 (Nov. 12, 2002).

38. See ICRC, Aide-Memoire to US (Nov. 19, 2002) (Similar messages were a

Afghanistan and other concerned countries). This communication made no refer

Security Council Resolutions that might suggest the possibility of a different conc

the status of the conflict and the applicability of the 1949 Geneva Conven

questionable legal logic, it asserted that the Third and Fourth Geneva Convention

provided a legal basis to continue holding without criminal charge persons wh

captured in Afghanistan between 7 October 2001 and 19 June 2002, and that if these 

to be kept in captivity, criminal charges must be brought against them. On pre

caution regarding the categorization of conflicts, see Gasser, Internationalized Non-

Armed Conflicts, supra note 30, at 157–159.

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Thursday, April 28, 2005 8:21:31 AM
condemning its support of terrorism and its refusal to hand over O

Laden, had already required all states to take action against the Ta

against Osama bin Laden and associates.39 The UN Security Counc

tions of 12 and 28 September 2001 required all states to take a wide ra

tions against terrorism.40 In his 20 September address to Congress, 

George W. Bush framed the obligations on states in blunter and mor

tered terms:

Every nation, in every region, now has a decision to make. Either you a

us, or you are with the terrorists. From this day forward, any nati

continues to harbor or support terrorism will be regarded by the United S

a hostile regime.41

It is evident that the scope for traditional neutrality was implici

stood by the Security Council, and explicitly proclaimed by the Unit

to be very limited in the overall counter-terrorist campaign. Natur

states, including Iran, proclaimed that they were “neither with Bus

Laden”; and not all states were willing to assist the US-led military 

rectly. It would be absurd to claim that all forms of non-belligerence 

but the particular understanding of neutrality in the written laws of 

ther called in question by the character of the “war on terror.”

Bombing

The development by US and allied forces of techniques of bombing tha

accurate than in previous eras has improved the prospects of certain 

paigns being conducted in a manner that is compatible with the long-e

197

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

1076, U.N. SCOR, 51st Sess., U.N. Doc. S/1076/(1996); and S. C. Res. 1193, U.N. 

Sess., U.N. Doc. S/1193/(1998), which, in addressing the ongoing conflict in Afgha

to the problem of terrorism and call upon states to take specific actions, most notabl

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

U.N. SCOR, 53d Sess., U.N. Doc. S/1373/(2001).

41. President George W. Bush, Address to a Joint Session of Congress and the Amer

37 WEEKLY COMP. PRES. DOC 1347–1351 (Sep. 20, 2001), available 

frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_presidential_

documents&docid=pd17se01_txt-15 (Nov. 12, 2002). The peroration added that 

neutral between freedom and fear, justice and cruelty.

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laws

ofwar principle of discrimination;and with the more specific r

targeting—rules which themselves have changed, not least in 1977 Ge

tocol I. This is a momentous development in the history of war, yet its 

pecially as regards operations against terrorists, should not be exagger

cannot guarantee either success or no deaths of innocents. Precisi

weapons are generally better at hitting fixed objects, such as buildings, t

ing objects that can be concealed, such as people and tanks. Civilian d

still occur, whether because certain dual-use targets are attacked, beca

close proximity of military targets to civilians, or because of faulty in

and human or mechanical errors. In addition, malevolence and callou

still lead to attacks on the wrong places or people. A further problem 

new type of US bombing campaign is that, in the eyes of third parties, it 

look as if the United States puts a lower value on the lives of Iraqis or Se

ghans than it does on its own almost-invulnerable aircrews: a percept

can feed those hostile views of the United States that help to provid

ground against which terrorism can flourish.

Announcing the start of military strikes against Afghanistan on 7 

2001, President Bush stated: “[t]heir carefully targeted actions are d

disrupt the use of Afghanistan as a terrorist base of operations and to 

military capability of the Taliban regime.”43 The principle that the b

Afghanistan should be discriminate was frequently repeated. On 21 

General Richard B. Myers, the Chairman of the Joint Chiefs of Staff

[t]he last thing we want are any civilian casualties. So we plan every 

target with great care. We try to match the weapon to the target and the 

one, to destroy the target, and two, is to prevent any what we call “co

damage” or damage to civilian structures or civilian population.44

From the start of the campaign in Afghanistan, the United State

ticularly sensitive about accusations that it acted indiscriminatel

198

42. The principle of discrimination, which is about the selection of weaponry, m

targets, includes the idea that non-combatants and those hors de combat sh

deliberately targeted.

43. President George W. Bush, Address to the Nation, 37 WEEKLY COMP. PRES. DOC 

(Oct. 7, 2001) available at http://frwebgate.access.gpo.gov/cgi-in/getdoc.cgi?dbn

presidential_documents&docid=pd15oc01_txt-9.pdf (Nov. 12, 2002).

44. Interview by George Stephanopoulos of Chairman of the Joint Chiefs of Staff Richard 

This Week television broadcast, Oct. 21, 2001), available at http://www.defenselin

Oct2001/t10222001_t1021jcs.html (Nov. 12, 2002).

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Thursday, April 28, 2005 8:21:31 AM
October Rumsfeld accused the Taliban and al Qaeda leaders of bot

and faking civilian damage: “they are using mosques for command 

trol, for ammunition storage, and they’re not taking journalists in 

that. What they do is when there’s a bomb. . . they grab some chi

some women and pretend that the bomb hit the women and the ch

What truth there was in all this remains difficult to determine.

About 60% of the 22,000 US bombs and missiles dropped in Af

were precision-guided: the highest percentage in any major bomb

paign. If, as reported, only one in four bombs and missiles dropp

United States on Afghanistan missed its target or malfunctioned in s

the 75% success rate was higher than that achieved in the 1991 Gul

the 1999 Kosovo War.46 This was a remarkable achievement.

The bombing aroused much international concern. There were 

many attacks causing significant civilian casualties and damage. Ac

hitting the intended target area did not itself necessarily eliminate s

lems. An ICRC warehouse in Kabul was hit twice, on 16 and 26 

leading to serious questions about failure to ensure that target lists w

erly prepared and, after the first well-publicized disaster, amended.4

sode was subsequently investigated by the Pentagon.48 Some later 

were even more serious. For example, according to press reports ov

dred villagers may have died in bombings on 1 December 2001 of K

and neighboring villages in eastern Afghanistan, not far from 

199

45. Secretary of Defense Donald Rumsfeld, Remarks outside ABC TV Studio (Oct

available at http://www.defenselink.mil/news/Oct2001/t10292001_t1028sd3.html O

(Nov. 12, 2002).

46. See Eric Schmitt, A Nation Challenged: The Bombing; Improved US Accuracy 

Afghan Air War, N.Y. TIMES, Apr. 9, 2002, at A-16 (reporting on an uncited, detail

assessment).

47. See, e.g., Vernon Loeb & Rajiv Chandrasekaran, Red Cross Compound Mistak

Pentagon Cites “Human Error in the Targeting Process” After Second Mishap, WASH. PO

2001, at A16.

48. See Vernon Loeb, “Friendly Fire” Probed in Death; Airstrike May Have Hit Afg

WASH. POST, Mar. 30, 2002, at A14. See also Breaking News (CNN television bro

19, 2002) in which CNN reported that a preliminary Pentagon investigation into th

of the ICRC warehouse indicated that numerous clerical errors had led to th

bombings, that the US commander in charge of the air campaign, Lt. Gen. Charle

“exceeded his authority in ordering the strike” of 26 October, and that a key issue wa

the target had been placed on a “No Strike List” at the Pentagon, it was inadverten

separate “No Strike List” maintained by the US Central Command in Tampa, Flor

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complex at Tora Bora.

On 1 July 2002, during an operation to hun

leaders, US aircraft attacked four villages around the hamlet of Ka

cording to reports, this episode followed the firing of guns at two wed

ties, and resulted in killing over 50 people and injuring over 100. T

another Pentagon investigation.50 In several cases, bombings led to 

among coalition forces: while this is not a laws-of-war issue as such, 

uncommon in armed conflicts, it further confirms the fact that 

bombing can produce terrible disasters if the intended target is in

identified.51

It is difficult to arrive at a reliable estimate of the overall number 

deaths caused directly by the bombing in Afghanistan. As in the 

and 1999 Kosovo wars, the Pentagon has been reluctant to issu

Whereas Iraq in 1991 and Yugoslavia in 1999 had reasonably effectiv

of official record-keeping in place, Afghanistan in 2001 did not. As 

these factors, estimates of Afghan civilian deaths have been unoffic

Controversy was caused by an estimate of 3,767 as of mid-Decem

made by Professor Marc Herold of the University of New Hampshir

were substantial grounds for doubt about his methodology; and h

almost certainly a serious over-estimate, was later modified.53 In re

200

49. See, e.g., Richard Lloyd Parry & Justin Huggler, Village Air Raid: Error or an act of 

INDEPENDENT, Dec. 2, 2001, available at http://www.independent.co.uk/story.jsp?sto

(Nov. 13, 2002).

50. Dexter Filkins, Flaws in U.S. Air War Left Hundreds of Civilians Dead, N.Y. TI

2002, at Sec. 1, p. 1, col. 5, available at http://query.nytimes.com/search/ab

F40813F83D5C0C728EDDAE0894DA404482 (Nov. 13, 2002).

51. On 13 September 2002 two US pilots who mistakenly bombed and killed Canad

Afghanistan on 18 April 2002 were charged – the first criminal charges against 

connection with the events in Afghanistan. Katy Kay & Richard Cleroux, US pilots 

“friendly fire” deaths, THE TIMES, Sep. 14, 2002, at 16.

52. Marc W. Herold, A Dossier on Civilian Victims of US Aerial Bombing of Afg

Comprehensive Accounting (Dec. 19, 2001), at http://pubpages.unh.edu/~

AfghanDailyCount.xls (Nov. 13, 2002).

53. Criticisms of Herold’s methodology included the following: (1) The calculation

the total figures were not transparent. The author has informed me that the Dece

was not intended to suggest total accuracy. (2) Unavoidably, in view of time con

study relied heavily on media reports, some of them extremely dubious. (3) Some in

counted twice in the December total, e.g., due to different place names being used in 

In some instances al Qaeda deaths, and possibly Taliban deaths, may have been 

civilian deaths. On the other hand it is probable that some civilian casualties 

went unreported and were thus omitted from the report. For a strong critique, se

Isaac, Civilian Casualties in Afghanistan: The Limits of Herold’s “Comprehensive 

(Jan. 10, 2002), available at http://www.indiana.edu/~iupolsci/docs/doc.htm, (Nov. 1

August 2002 Herold stated that “the figure for the October to December period shoul

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Thursday, April 28, 2005 8:21:32 AM
Herold

s December estimate, Rumsfeld stated in an interview on 

2002:

there probably has never in the history of the world been a conflict that h

done as carefully, and with such measure, and care, and with such m

collateral damage to buildings and infrastructure, and with such small n

of unintended civilian casualties.54

In 2002 a number of reports based on on-site examinations gave a 

thoritative, but incomplete, picture. In July the New York Times pub

results of a review of eleven of the “principal places where Afghan

man rights groups claim that civilians have been killed.” It found tha

sites “airstrikes killed as many as 400 civilians.”55 A principal cause 

intelligence. In September a San Francisco-based human rights grou

Exchange, estimated on the basis of a survey conducted in Afghan

“at least 824 Afghan civilians were killed between October 7 an

2002 by the US-led bombing campaign.”56 A Human Rights Watch 

civilian casualties in Afghanistan is in preparation.

While even an approximate figure for civilian casualties of the bo

Afghanistan may never be known, it appears certain that the numbe

ian deaths in the period October–December 2001 was far more tha

in Yugoslavia during the war over Kosovo in 1999, and probable t

over one thousand. The question then is how this was possible g

twice the percentage of precision-guided munitions was used and t

number of weapons dropped was much less. Of the many possible fac

iting investigation, two were the imperfections of the intelligence

201

between 2,650 and 2,970 civilian deaths,” and that “between 3,125 and 3,620 Afgh

were killed between October 7 and July 31.” Marc Herold, Counting the Dead, THE 

Aug. 8, 2002, at 17.

54. Interview of Secretary of Defense Donald Rumsfeld (CSPAN television broadcast, J

available at http://www.defenselink.mil/news/Jan2002/t01082002_t0108sd.html (Nov

55. Filkins, supra note 50. This included reference to the Masuda Sultan survey 

immediately infra.

56. See Masuda Sultan et al., AFGHAN PORTRAITS OF GRIEF: THE CIVILIAN

VICTIMS OF US BOMBING IN AFGHANISTAN (2002), at 3, available 

www.globalexchange.org/september11/apogreport.pdf (Nov. 13, 2002). This shor

report was based on a survey conducted by a 5-person team between March and J

emphasizes that “it was impossible for our survey to be exhaustive and comprehensiv

the figure of 824 “represents only a portion of civilian casualties.” Finally, the report c

US Government to establish an Afghan Victims Fund. Id. at 3, 6.

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Thursday, April 28, 2005 8:21:32 AM
process, and the uncertain identity of the combatants

both of whi

neric problems in counter-terrorist operations.

In legal terms, the incidence of civilian deaths per se does not al

stitute a violation, absent other factors regarding the circumstance

deaths. Wilful killings and intentional attacks against the civilian p

as such or against individual civilians not taking part in hostilities a

illegal. In addition, the 1977 Geneva Protocol I, Article 57, spells o

tive obligation on commanders to exercise care to spare civilians an

objects.57

There are strong reasons to believe US statements that civilian 

Afghanistan due to the US bombing were unintended. Some of the d

pear to have resulted from errors of various kinds, and some may have 

avoidable “collateral damage.” One cause of civilian casu

October–December 2001 may have been the fact that, in a legacy fro

riod of Soviet involvement in Afghanistan, many Taliban military a

located in towns, where they were less vulnerable to raids from ru

guerrillas, but where they were of course closer to civilians who risk

hit in bombing attacks. While much of the bombing has been disc

questions have been raised about whether all appropriate measures h

taken to reduce civilian casualties and damage. Even if much of th

death and destruction is not a violation of the law, the resulting adve

perception risks harming the coalition cause.

The air campaign in Afghanistan confirmed the lesson of earlier c

especially the war over Kosovo in 1999, that there is tension betwee

US and NATO strategic doctrine and certain international legal p

on targeting. The 1977 Geneva Protocol I, Article 52(2), opens 

words: “[a]ttacks shall be limited strictly to military objectives.” It g

indicate the types of objects that might constitute military object

provision presents some difficulties, and has been the subject of inte

declarations by a number of states.58 The United States, although n

by the Protocol, has indicated that it accepts this article.59 However

fore the United States involvement in Afghanistan, a number of US 

perts had expressed serious concerns about the provision. For examp

202

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

5 at 450. Declarations made by states that have a bearing on their understanding o

include those by Australia, Belgium, Canada, Germany, Ireland, Italy, Netherlands

the United Kingdom. Id. at 500–511.

59. OPLAW HANDBOOK, supra note 15, at 11.

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Jeanne Meyer, co

editor of the US Armys Operational Law Handbo

that this article “tries to constrict the use of air power to the specif

military effort at hand” and “ignores the reality that a nation’s wa

composed of more than just military components.” While not sugge

rejection of the provision, she urged the United States to “resist th

to accept restrictive interpretations of Article 52(2).”60 In general, th

States is anxious to retain some legal justification for attacks on certa

that may not themselves be purely military, but which may, for exam

tribute to the military effort or constitute key parts of a regime’s infra

Did the concern over civilian casualties undermine the US bomb

in Afghanistan in its most intense phase in October–December 200

cess against the Taliban would suggest not, but there were indication

concern had serious effects. It was reported that the United States h

erately slowed the pace of the campaign, and increased the risk to t

executing it, because of legal restraints and moral values. It was a

that war planners frequently chose not to hit particular targets, ev

were militarily important, and pilots allegedly complained of lost o

ties. Yet the planners could not reveal their reasoning for ruling o

targets, as it would give the adversary “a recipe book for not being 

The issue of civilian casualties also became ammunition for inter-se

tles, particularly for Army arguments in favor of “boots on the groun

In addition to the direct casualties, there were also, inevitably, in

sualties of the bombing. These appear to have come into two catego

the bombing caused thousands of Afghan civilians to flee their home

died in the harsh conditions of flight and displacement. Second, t

cluster bombs led to immediate and longer-term civilian casualtie

bombs are air-dropped canisters containing numerous separate bom

disperse over a given area. The bomblets, which are meant to explo

pact or to self-deactivate after a specific period, can cause particula

problems if they fail to do so. There have been objections to their u

pally on the ground that they have a tendency, like anti-person

mines, to kill people long after the conflict is over. Reports from Ko

203

60. Jeanne M. Meyer, Tearing Down the Facade: A Critical Look at the Current Law 

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. TIM

2002, at A12, available at http://www.latimes.com/news/nationworld/world/la-011602m

(Nov. 13, 2002).

62. On those who fled from the intense fighting and bombing in Afg

October–November 2001, see notes 74-75 and accompanying text infra.

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Thursday, April 28, 2005 8:21:32 AM
elsewhere have confirmed the general seriousness of the problem.

Mine Action Programme for Afghanistan (MAPA) estimates that 1

ter bombs were dropped by the United States, leaving up to 14,0

ploded bomblets as a result.64 According to the US State Departme

2002, “the clearance of cluster munitions is being achieved at a r

than anticipated. All known cluster munition strike sites have been 

where access is possible and are in the process of being cleared.”65 A

stands, there has been no agreement to outlaw cluster bombs, and w

are not illegal per se, their use does raise questions regarding their co

ity with fundamental principles of the laws of war. They are certain 

subject of further pressures to limit or stop their use, or to ensure m

tive safeguards against later accidental detonations.

A further issue concerns the use of bombing in the hunt for Talib

Qaeda personnel following the fall of the Taliban regime in early D

2001. In the preceding phase, bombing had been used primarily in s

Northern Alliance frontal operations aimed at capturing the main 

held cities. Once this was achieved, a good deal of the bombing wa

against remnant al Qaeda mountain redoubts. It was also directe

Taliban and al Qaeda forces and their leaders, but many incid

reported in the press in which those killed were apparently nei

reports drew attention to the difficulty of distinguishing between civ

these forces. They also raised the question of broader significance in 

terrorist wars: to what extent can bombing remain an appropriat

enforcement once a state is, to a greater or lesser degree, under the 

a new government that is opposed to the terrorists? At that poin

focus be transferred to other forms of police and military action th

less likely than bombing to cause civilian casualties? Here, the legal 

for greater reliance on the discriminate use of ground force merg

practical argument that only such means can prevent the escape of 

being targeted. United States civilian and military officials are re

have concluded that Osama bin Laden had been present at the battl

204

63. According to the ICRC, in the year after the NATO bombing campaign over K

in June 1999, more than 400 people were killed or injured by unexploded bomblets. S

Imerslund, In Action, When Toys Kill, Another Challenge in Kosovo, ICRC MAGA

available at http://www.redcross.int/EN/mag/magazine2000_2/Kosovo.html (Nov. 1

64. Richard Norton-Taylor, Afghanistan Littered with 14,000 Unexploded Bomblets Sa

GUARDIAN, Mar. 23, 2002, at 18.

65. US Department of State, Fact Sheet: U.S. Humanitarian Demining Assistance to 

(Jul. 30, 2002), available at http://www.state.gov/t/pm/rls/fs/2002/12274.htm (Nov. 

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Thursday, April 28, 2005 8:21:32 AM
Bora in December 2001, and that failure to commit ground troops ag

in this mountain battle was the gravest error of the war.66 Whether o

conclusion is correct, it does appear that the reliance of the United 

bombing and its reluctance to put its own troops in harm’s way 

enabled Taliban and al Qaeda leaders to escape.

Gas

One long-standing prohibition in warfare is the rule against use of ga

teriological methods of warfare. The United States repeatedly expre

cern that al Qaeda might be preparing to use such methods in terrori

In addition, there were a few situations in Afghanistan in which th

have been pressures for the United States to use gas. When, in 1975, t

States had ratified the 1925 Geneva Protocol, it had indicated that 

ered that certain uses of riot-control agents in armed conflict did not v

protocol.67 In early December 2001, Rumsfeld was asked at a press con

the United States might use gas in the hunt for Taliban and al Qaeda 

in mountain caves in Afghanistan. Rumsfeld’s response contained n

Well, I noticed that in Mazar, the way they finally got the dead-enders 

out was by flooding the tunnel. And finally they came up and surrende

last hard core al Qaeda elements. And I guess one will do whatev

necessary to do. If people will not surrender, then they’ve made their c

Humanitarian relief and refugee issues

Humanitarian relief and refugee issues impacted upon all phases of o

in Afghanistan. The need for humanitarian relief is particularly likely 

counter-terrorist operations against a weak or failed state, because s

breed conditions in which, simultaneously, terrorist movements ca

and large-scale human misery and refugee flows can occur. The fact o

ing against terrorists, while it may affect the mode of delivery (since 

voys may be vulnerable to seizure) does not affect the law applica

provision of relief. The basic obligations of the various parties to 

205

66. Barton Gellman and Thomas E. Ricks, U.S. Concludes Bin Laden Escaped at Tor

WASH. POST, Apr. 17, 2002, at A1.

67. OPLAW HANDBOOK, supra note 15, at 15–16.

68. Interview by Tim Russert of Secretary of Defense Donald Rumsfeld (NBC Me

television broadcast, Dec. 2, 2001), available at http://www.defenselink.mil/new

t12022001_t1202mtp.html (Nov. 13, 2002).

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conflict to assist in and protect humanitarian relief operations are em

1949 Geneva Convention IV, on civilians.69

The US government put heavy emphasis on air-dropping of sup

nouncing the start of Operation ENDURING FREEDOM, President Bu

“[a]s we strike military targets, we will also drop food, medicine an

to the starving and suffering men and women and children of Afgha

United States forces air-dropped considerable quantities of aid at 

time as the major bombing operations took place. In the first twenty

of the campaign more than one million “humanitarian daily rations” 

livered.71 Some human rights and humanitarian agencies expresse

worries about the air-dropping of food. They were doubtful of the va

dropping supplies compared to the previous deliveries overland, 

concerned that the yellow wrapping of the food packages could lead 

to mistake yellow cluster bomblets for them. More generally, they w

tant to the use of military assets for humanitarian purposes, be it the 

of supplies from the air, or shipping goods in military convoys to di

points. They tended to be critical of the bombing campaign gene

concerned also about the aggravated risks and obstacles to their reli

velopment work that resulted from the military operations, especial

of the onset of winter. The unrealistic call for a bombing pause issu

UN High Commissioner for Refugees (UNHCR) in October was ind

the tension between some agencies and the US government.72 In a

the collapse of the Taliban regime in early December 2001 and it

ment by the interim administration facilitated, but by no means gu

206

69. See GC IV, at arts. 13–26 reprinted in DOCUMENTS ON THE LAWS OF WAR, sup

430–436. See also GP I arts. 69–71, supra note 9, reprinted in DOCUMENTS ON TH

WAR, supra note 5 at 324–5; GP II art. 18, supra note 17, reprinted in DOCUMENTS ON 

OF WAR, supra note 5, at 491. The issue of humanitarian relief is only touched on b

survey as, while of critical importance in Afghanistan, only to a limited extent 

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 ma

news briefings. See, e.g., Gerry Gilmore, Air Campaign Continues Against Taliban, Ter

(American Forces News Service, Oct. 8, 2001), available at http://www.defenselin

Oct2001/n10082001_200110085.html (Nov. 14, 2002); and Kathleen T. Rhem, Fight

Not Only Planes Flying in Afghanistan (American Forces News Service, Oct. 31, 2001)

http://www.defenselink.mil/news/Oct2001/n10312001_200110314.html (Nov. 14, 20

72. Interview with UN High Commissioner for Refugees (Irish radio broadcast, Oct

Interview with UN High Commissioner for Refugees (BBC-1 Breakfast with Fro

broadcast, Oct. 14, 2001).

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the secure delivery of aid by land routes. A wide range of countries an

zations took part in the provision of aid.73

The refugee problem was of massive proportions and could itself 

stituted a possible ground for action over Afghanistan. As of the beg

September 2001 there were about 3.5 million Afghan refugees in ne

countries, mainly Pakistan and Iran. The intense hostilities and bo

October–December led to an additional 200,000 or more fleeing 

ghanistan, as well as in an increase in the number of internally disp

sons (IDPs) by perhaps half a million.74 Many of the internally dis

and refugees from, Afghanistan testified eloquently to the disastrous 

the bombing on civilians and their property.75

The subsequent return of refugees to Afghanistan was on a coloss

started in January 2002, when 3,000 per day began returning to Afgh

Not all who returned in 2002 chose to stay. By December some 300

reported to have returned to Pakistan, disappointed by insecurity 

nomic hardship.77 However, a total of 1.8 million Afghans had retur

million of whom had come from Pakistan and resettled in Afghanista

Playing a major role, the UNHCR reported in September that thi

207

73. On the delivery of humanitarian aid after the collapse of the Taliban regim

Secretary of Defense Donald Rumsfeld and General Tommy Franks, DOD News Br

15, 2002), available at http://www.defenselink.mil/news/Aug2002/t08152002_t

(Nov. 14, 2002); and, Jim Garamone, Humanitarian Success Story In Afghanistan 

Forces News Service, Jan. 18, 2002), available at http://www.defenselink.mil/ne

n01182002_200201185.htm (Nov. 14, 2002).

74. Figures current to Dec. 31, 2001 in UN HIGH COMMISSIONER FOR REFUGEES 

REFUGEES BY NUMBERS, available at http://www.unhcr.ch/cgi-bin/texis/vtx/home

2002).

75. See, e.g., THE DISPOSSESED (documentary film by Taghi Amirani, Nov.–Dec. 

television documentary is about the Makaki Camp in Nimruz Province near the Afg

border. The camp was initially under Taliban and then Northern Alliance control.

76. See UNHCR Spokesman, UNHCR Press Briefing at Palais des Nations, Gene

2002), available at http://wwww.reliefweb.int/w/rwb.nsf/ (Nov. 14, 2002); and UN O

Coordination of Humanitarian Affairs Report No. 37 (Jan. 29, 2002), availabl

wwww.reliefweb.int/w/rwb.nsf/ (Nov. 14, 2002). At that time there were also m

ethnic Pashtun from Afghanistan to Pakistan.

77. Deutsche Presse Agentur Report of December 12, 2002, available 

wwww.reliefweb.int/w/rwb.nsf/ (Jan. 6, 2003).

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largest refugee repatriation in 30 years

i.e., since the creation o

desh.78 Some non-governmental charities and NGOs were critical of 

sure to encourage refugees to return.79 The principal improvements 

ated the conditions for this vast movement of people back to the

resulted from the conclusion of major hostilities, the end of the Talib

in December 2001, and the ending of a years-long drought. Observan

manitarian norms during the war in Afghanistan may have played som

pecially insofar as it helped to limit the amount of destruction caus

bombing.

Prisoners

From late November 2001, the status and treatment of prisoners tak

“war on terror” (most but not all of whom had been captured in Afg

became the subject of major international controversies. These ce

three inter-related issues: first, the extraordinary events relating to pr

Afghanistan in late 2001; second, the broader debate about the legal 

treatment of prisoners taken in the “war on terror” generally, includ

held at Guantanamo; and third, the question of possible judicial pr

against prisoners for pre-capture offenses. This part looks at these th

in turn. (It does not look at the court cases in several countries in whi

questions have been raised.)

Prison disasters in Afghanistan

Initially, international attention focused on one event: the killing 

number of Taliban and al Qaeda prisoners who had been taken at K

around the time of its fall on 23–24 November 2001, and who wer

volved in the revolt at Qala-e Jhangi Fort near Mazar -e-Sharif in the 

November–1 December. There had been very little sign of serious pr

for handling prisoners. The precise chain of events leading to the rev

to be established, but the causes appear to include the following h

Some of the prisoners were fanatical soldiers, for whom the whole c

surrender would be anathema; the arrangements for receiving, ho

208

78. Ron Redmond, UNHCR Press Briefing at Palais des Nations, Geneva (Se

available at http://www.unhcr.ch/cgi-bin/texis/vtx/home/ (Nov. 14, 2002); Nigel 

Assistance Mission in Afghanistan Press Briefing (Dec. 12, 2002) availabl

www.reliefweb.int/w/rwb.nsf.

79. See, e.g., Jonathan Steele, Going Home to Hunger and Death: Aid Agencies Fear 

Persuaded to Leave Refugee Camps, THE GUARDIAN, Apr. 4, 2002, at 17.

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processing them were ad hoc and then casual; there was a failure to c

cate to them that they would be treated in accord with international s

a number of them had not surrendered all their weapons; they were 

place where there was a large store of weapons, to which they gain

some of them, according to reports, feared that they were about to be 

had nothing to lose by revolt; and some feared interrogation by tho

they understood to be CIA operatives, which changed the situation 

Afghan/Afghan equation.80

The revolt at Qala-e Jhangi Fort was a desperate struggle in which 

many prisoners, but also a number of Northern Alliance troops in 

the fort, died. United States bombing, and sharp-shooting by U

forces, played a part in the defeat of the uprising. Public discussi

United Kingdom and elsewhere focused on the events at the fort, 

the question of whether the force used to quell the rebellion was ex

the situation was as desperate and threatening as reports indicated, 

force was hardly surprising. Public discussion could more usefully 

how prisoners should be received and dealt with. The real causes of 

ter were in the period before the prisoners arrived at the fort. There 

ures to think the issue through, to make proper preparations, and esp

disarm all prisoners. The mix of Afghan and outside involvement in 

dling of the prisoners may have further contributed to the outbre

revolt.

Other reports about treatment of Taliban and al Qaeda prisoners, 

at Sebarghan in northern Afghanistan, confirm that the overall ap

the Northern Alliance was defective. By late December there had bee

ous reports of prisoners dying in shipping containers and Afghan cap

ing their detainees. The ICRC was reported as expressing concern t

been able to register only 4,000 of the 7,000 prisoners that the Uni

said it and its Afghan allies had in custody.81 Long after most of the 

209

80. Much valuable evidence about the outbreak and course of the prison revolt at Q

Fort has emerged, including particularly video records. See, e.g., Carlotta Gall, Trac

Prisoners; Video Vividly Captures Prelude to Fortress Revolt, N.Y. TIMES (Jul. 16, 2002

81. See, e.g., Carlotta Gall, Long Journey to Prison Ends in Taliban Deaths: Many 

Sealed Ship Containers, INT’L HERALD TRIBUNE, Dec. 11, 2001, at 4; Babak Dehgh

al., The Death Camp of Afghanistan, NEWSWEEK, Aug. 26, 2002, at 16-25; and R

Afghan jailers beat confessions from men, THE GUARDIAN, Dec. 28, 2001, at 13.

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had been taken, conditions remained shocking, in violation of inte

standards.82 International inquiries into these events are ongoing.

Whether the United States and its coalition partners had any 

over Northern Alliance actions in such basic matters as protection 

ers—and, if so, whether they used it—is open to question. Some 

ments indicated that there could have been such influence. In his 

press briefing on 30 November, Rumsfeld indicated—in general term

connection with the prisoner question—that the United States doe

fluence with the forces with which it operated in Afghanistan:

[w]e have a relationship with all of those elements on the ground. W

provided them food. We’ve provided them ammunition. We’ve prov

support. We’ve provided winter clothing. We’ve worked with them clos

have troops embedded in their forces and have been assisting with ov

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 t

forthcoming military action questions relating to the legal status and 

of prisoners could be difficult. An unpublished document circulated 

Air Force’s International and Operations Law Division contained 

outlines of an approach that would continue to be influential: terroris

be treated as “unlawful combatants;” it was “very unlikely that a cap

rorist will be legally entitled to POW status under the Geneva Conv

however, there was a “practical US interest in application of Law 

Conflict principles in the context of reciprocity of treatment of cap

sonnel.” As regards treatment upon capture,

if a terrorist is captured, Department of Defense members must at the ve

comply with the principles and spirit of the Law of Armed Conflict

210

82. Dexter Filkins, 3,000 Forgotten Taliban, Dirty and Dying, INT’L HERALD TRIBU

2002, at 1.

83. Secretary of Defense Donald Rumsfeld and General Peter Pace, DOD News Br

30, 2001), available at http://www.defenselink.mil/news/Nov2001/t11302001_t

(Nov. 14, 2002). Compare an earlier statement of British Prime Minister Tony Blai

asked on 13 November, also in general terms, “what sanctions do we have over th

Alliance?” replied “None.” Prime Minister Tony Blair, Press Briefing on Afghanista

2001), available at http://www.pm.gov.uk/output/page3852.asp (Nov. 14, 2002).

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ppy y pg

protections of but not the status of a POW.84

Consideration of the legal status and treatment of prisoners tak

US-led coalition must begin with the distinction that has been drawn 

the two main groups: Taliban and al Qaeda. As indicated below, on

tor in determining the lawfulness of a combatant and therefore th

ment to participate directly in hostilities, is the affiliation of the com

a party to the conflict. The Taliban had a material connection to a 

ghanistan), whereas al Qaeda did not. A possible complicating facto

some cases non-Afghan units appear to have fought alongside Talib

and may have been under their control, which would strengthen a 

POW status. In certain cases it may be difficult to determine whethe

vidual should be considered Taliban or al Qaeda, or belongs in so

possible category. At Guantanamo there has evidently been a ten

classify only Afghan prisoners as Taliban. All non-Afghans (some 

were arrested outside Afghanistan) appear to have been classified as 

However, it may be doubted whether all foreigners drawn to supp

lamic cause in Afghanistan, Pakistan or elsewhere, and who end

Guantanamo, were necessarily members of al Qaeda.

The basic rules for determining who is a lawful combatant entitled 

status are in Article 4 of 1949 Geneva Convention III (the POW 

tion). This states, in part:

A. Prisoners of war, in the sense of the present Convention, are 

belonging to one of the following categories, who have fallen into the p

the enemy:

(1) Members of the armed forces of a Party to the conflict as well as m

of militias and volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer 

including those of organized resistance movements, belonging to a 

the conflict and operating in or outside their own territory, even 

territory is occupied, provided that such militias or volunteer 

including such organized resistance movements, fulfil the fo

conditions:

211

84. Memorandum from the International and Operations Law Division of Headquar

Force on the Summary of Legal Issues Relevant to Terrorism Incidents of 11 Sep 01, 

21, 2001).

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(a) that of being commanded by a person responsible 

subordinates;

(b) that of having a fixed distinctive sign recognizable at a distan

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with la

customs of war.

(3) Members of regular armed forces who profess allegiance to a gove

or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actuall

members thereof . . . provided that they have received authorization f

armed forces which they accompany, who shall provide them f

purpose with an identity card.85

The question as to whether, in order to qualify for POW status, m

a state’s regular armed forces all have to meet the four conditions lis

ticle 4(A)(2) specifically in respect to members of militias and 

movements is not pursued here. The general assumption has been th

regular forces should as a matter of course observe these conditions

this general assumption could be challenged, it is widely agreed that 

of a state’s forces must meet certain criteria. For example, they sh

uniforms when involved in military action—a rule that the Unit

views as applying even to commando forces and airborne troops oper

gly.87 There is also an obligation on parties to a conflict to supply ide

uments to all their personnel liable to become POWs.88

However the criteria for POW status are interpreted, states have 

ployed certain personnel such as spies in a manner that does not me

teria, knowing that if they fall into enemy hands they are unlikely to 

or treated as POWs; and they have also deployed certain personn

212

85. See GC III, supra note 5, at art. 4.

86. International Committee of the Red Cross, 3 GENEVA CONVENTION RELAT

TREATMENT OF PRISONERS OF WAR, COMMENTARY 48 (Jean S. Pictet ed., 1960) 

Commentary III]; Howard S. Levie, PRISONERS OF WAR IN INTERNATION

CONFLICT 36–38 (Howard S Levie ed., 1978) (Vol. 59, US Naval War College I

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 abov

that civilian contracted personnel (who played a significant part in the US o

Afghanistan in 2001–2) would appear to qualify for POW status provided that they 

authorization. There is not a requirement that they wear uniform.

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conformity with the criteria is debatable. With respect to the operati

ghanistan in 2001, an argument could possibly be made that some U

tion personnel did not meet one of the conditions: for example, m

US forces (including special forces or forward air controllers), if not 

uniform or fixed sign and not carrying arms openly. Such possibilitie

United States a potential interest in avoiding restrictive approach

granting of POW status and treatment.

All lawful combatants, if captured, are entitled to POW status 

the rights set forth in the Geneva Convention III. They cannot be 

for the mere fact of having participated directly in hostilities, but th

tried for violations of the detaining power’s law, or of internationa

cluding the laws of war) that they may have committed.89

Questions regarding the status of a variety of detainees who m

meet one of the above criteria are not new. In previous wars, POW 

seldom given to those involved in resistance activities against occu

in cases of alleged terrorism. On the other hand, some captured 

who arguably failed to meet one criterion or another applicable at 

were viewed as entitled to POW status.90

A procedure for determining who is a lawful combatant, entitled 

status, is addressed directly in two treaties. The first of these, 194

Convention III, provides in Article 5 that, in cases of doubt, prisone

treated as POWs “until such time as their status has been determ

competent tribunal.” This Article does not specify who has to have t

nor the nature of the “competent tribunal.” However, the general p

clear and is accepted in US official manuals. For example, the US A

ual states unequivocally: “When doubt exists as to whether captur

personnel warrant continued POW [prisoner of war] status, Art. 5 

must be convened.”91

The second treaty to address the procedure for determining who 

combatant is 1977 Geneva Protocol I. Article 45 contains elabo

1949 Convention III’s provisions on the status of detained persons. I

213

89. Id. at arts. 99–104. The separate subject of sanctions in respect of offenses ag

camp discipline is covered in Articles 89–98. As regards judicial proceedings again

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 POW

that being of a different nationality from that of the army in which they serve would 

combatants from having POW status, but he is more doubtful about spies and sab

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

13, at paras. 11.7 and 12.7.1.

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that a detainee has 

the right to assert his entitlement to prisonero

tus before a judicial tribunal,” but allows for considerable leeway in t

dure by which a tribunal could reach a decision about POW st

possibilities that the proceedings could take place after a trial for a

and also in camera in the interest of state security, are not excluded. 

cle recognizes in plain language that not all those who take part in 

are entitled to POW status, but they are entitled to certain fundame

antees discussed further below.

The uncertainties regarding the status and treatment of people w

volved in hostile activities in various ways, but who fail to meet the c

POW status, are reflected in muddled terminology. “Unlawful co

the most common term, is generally used in this paper. The treatie

plicitly create the category do not offer any satisfactory term to desc

persons. The US Supreme Court, in its judgment in the July 1942 

Parte Quirin, used the terms “unlawful combatant” and “unlawful be

apparently interchangeably, to refer to one who, “having the status 

emy belligerent enters or remains, with hostile purpose, upon the t

the United States in time of war without uniform or other appropri

of identification.”92 One term advanced in the early 1950s by a resp

thority as the most appropriate to cover a wide range of combatan

not meet the POW criteria is “unprivileged belligerents”—a term th

the important implication that such persons while not meeting the c

POW status, have not necessarily committed a definite violation of t

war.93 In current US military manuals four terms—“unprivileged bell

“detainees,” “unlawful combatants” and “illegal combatants”—are u

apparently interchangeably, to refer to those who are viewed as 

members of the armed forces of a party to the conflict and not having 

to engage in hostilities against an opposing party.94 The variety of t

nology is not in itself a major problem. The key element of confusion 

bate was the tendency, especially marked in the press in late 2001 

214

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. Baxt

“Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs, 28 BRIT. Y.B. INT’L L. 323

His key conclusion is that this large category of hostile conduct is not per se viol

positive prohibition of international law, but it does expose those engaging in it 

punishment by the enemy, for example under the enemy’s own laws and regulations. 

since he wrote this, many terrorist acts have been prohibited in international law, so 

is not necessarily appropriate for those suspected of involvement in terrorism.

94. OPLAW HANDBOOK, supra note 15, at 12, 22, see also ANNOTATED SUPPLE

note 13, at para. 12.7.1.

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2002, to refer to such terms as 

unlawful combatantsand battlefie

ees” as if they were entirely new, were freshly invented by the US gov

and were completely outside the existing treaty framework.

The ICRC and others have argued that detained persons who do 

ify for POW status (i.e., those often called “unlawful combatants”) 

viewed as civilians and treated in accord with the 1949 Geneva Co

IV. This view would appear to be in conformity with the first paragra

ticle 4 of the Convention:

[p]ersons protected by the Convention are those who, at a given momen

any manner whatsoever, find themselves, in case of a conflict or occupa

the hands of a Party to the conflict or Occupying Power of which they 

nationals.95

Pictet’s commentary on this Convention may appear to confirm t

who are not classified as POWs must be viewed as civilians when it 

a general principle which is embodied in all four Geneva Conventions o

Every person in enemy hands must have some status under international 

is either a prisoner of war and, as such, covered by the Third Conven

civilian covered by the Fourth Convention, or again, a member of the 

personnel of the armed forces who is covered by the First Convention. T

no ‘intermediate status’; nobody in enemy hands can be outside the law

Further ammunition for this view can be found in Article 50 

Geneva Protocol I. However, the view is open to several objection

rooted in the terms of relevant treaties. (1) It is in tension with th

terms of Article 4 of the 1949 Geneva Convention IV, which excl

the Convention’s protection certain persons, namely nationals of ne

co-belligerent states; and it is likewise in tension with Pictet’s state

the Convention is basically about “on the one hand, persons of enem

ality living in the territory of a belligerent State, and on the o

215

95. 1949 Geneva Convention IV, Article 4, first paragraph. For a strong assertion 

combatants, if denied POW status, must be considered as civilians, see Hans-Peter G

of Terror, “Terrorism” and International Humanitarian Law,’ International Review 

Cross, vol. 84, no. 847, September 2002, at p. 568. He emphasizes that “civilia

suspected of having committed a serious crime can and must be put on trial.”

96. International Committee of the Red Cross, 4 GENEVA CONVENTION RELAT

PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR TREATMENT OF PRISONER

COMMENTARY 51 (Jean S. Pictet ed. 1960) [hereinafter Commentary IV].

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inhabitants of occupied territories.

(2) The four 1949 Geneva Con

Common Article 3, acknowledge that in civil wars detainees may h

ferent status from that of POW or civilian. (3) The 1977 Geneva P

Articles 45 and 75, acknowledges that even in international armed 

certain detainees may have a status that is distinct from those of P

civilians under the 1949 Geneva Conventions III and IV. (4) It risk

the key distinction between combatants and civilians that is funda

the laws of war, and is reflected in the 1977 Geneva Protocol I, Art

The fact that certain detainees taken in the “war on terror” may 

status as either a POW or a civilian does not mean that they hav

rights. The provisions of Common Article 3 of the 1949 Geneva Con

although not specific to this category of person and formally applicab

non-international armed conflict, may be viewed as minimum guar

be applied to all detainees.98 In addition, Article 45 of 1977 Geneva 

addresses the matter much more directly: “Any person who has tak

hostilities, who is not entitled to prisoner-of-war status and who doe

efit from more favorable treatment . . . shall have the right at all tim

protection of Article 75 of this Protocol.” The said Article 75 ela

range of fundamental guarantees that are intended to provide minim

of protection for all those who do not benefit from more favorable 

under other rules.

Although neither the United States nor Afghanistan is a party 

Geneva Protocol I, the rules in Articles 45 and 75 are relatively uncon

and it is long-standing US policy that they should be implemented.99 

US officials have repeatedly omitted to mention these articles in c

with the treatment of prisoners held in the “war on terror.” The omi

reflect the US general sensitivity to the 1977 Geneva Protocol I o

doubts about certain provisions of these articles. Nonetheless the 

mention the articles appears odd: reference to Article 75 would hav

216

97. Id. at 45.

98. On the broad scope of application of Common Article 3, see, e.g., Commenta

note 96, at 36, 40.

99. Articles 45 and 75 are among the many articles of GP I (supra note 9) that the U

views as “either legally binding as customary international law or acceptable practice 

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 

international legal framework.100

After the status and treatment of prisoners taken in Afghanista

urgent in November 2001, public statements of the US government 

sistent and clear on one point. By referring to these prisoners general

tlefield detainees” and “unlawful combatants” the United States sig

unwillingness to classify al Qaeda and Taliban prisoners as POWs. 

it was slow to give detailed reasoning, and to indicate the principles 

lowed in the handling of the detainees. On 11 January 2002, wh

whether the ICRC would have any access to the prisoners who had 

taken to the US naval base at Guantanamo Bay in Cuba, Rumsfeld 

I think that we’re in the process of sorting through precisely the right 

handle them, and they will be handled in the right way. They will be h

not as prisoners of war, because they’re not, but as unlawful combatants. 

I understand it, technically unlawful combatants do not have any right

the Geneva Convention. We have indicated that we do plan to, for th

part, treat them in a manner that is reasonably consistent with the 

Conventions, to the extent they are appropriate, and that is exactly w

have been doing.101

In the following weeks there were numerous expressions of conc

United States and internationally about the status and treatment of d

and about the risk that US conduct would lead to a global weaken

POW regime.102 There were also intense disagreements within the U

istration.103 The situation was made worse by the Pentagon’s seemi

issuance on 19 January 2002 of a photograph showing bound and 

prisoners, heads and eyes covered, kneeling before US so

Guantanamo. The photographs, which showed a transitional proces

during the prisoners’ arrival, became a misleading symbol of 

Guantanamo camp was being operated.

217

100. One of the few US publications to note the potential applicability and value o

was by Lee A. Casey, David Rivkin and Darin R. Bartram. See Casey et al., D

Treatment of Combatants in the War on Terrorism (Fed. Soc. L. & Pub. Pol. Studies, 

article was published in early 2002, before the White House announcement of 7 Fe

101. Secretary of Defense Donald Rumsfeld, DOD News Briefing (Jan. 11, 2002)

http://www.defenselink.mil/news/Jan2002/t01112002_t0111sd.html (Nov. 14, 2002

102. See, e.g., Steven Erlanger, Europeans Take Aim at U.S. on Detainees, INT

TRIBUNE, Jan. 24, 2002, at 4.

103. See Thom Shanker and Katharine Q. Seelye, Behind-the-Scenes Clash Led Bus

Himself on Applying Geneva Conventions, N.Y. TIMES, Feb. 22, 2002, at A12.

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Certain conciliatory gestures were made by the US administration

tional Committee of the Red Cross officials started interviewing de

Guantanamo on 18 January 2002, and were able to establish a p

presence there. Rumsfeld’s above-quoted suggestion that unlawfu

ants have no rights under the Geneva Convention was modified wh

January, he recognized that “under the Geneva Convention, an 

combatant is entitled to humane treatment.”104 On 7 February, t

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 ind

detained at Guantanamo humanely and, to the extent appropria

consistent with military necessity, in a manner consistent with the princ

the Third Geneva Convention of 1949.

The President has determined that the Geneva Convention applies 

Taliban detainees, but not to the al Qaeda detainees.

Al Qaeda is not a state party to the Geneva Convention; it is a foreign t

group. As such, its members are not entitled to POW status.

Although we never recognized the Taliban as the legitimate 

government, Afghanistan is a party to the Convention, and the Presid

determined that the Taliban are covered by the Convention. Under the 

the Geneva Convention, however, the Taliban detainees do not qu

POWs.

Therefore, neither the Taliban nor al Qaeda detainees are entitled t

status.

Even though the detainees are not entitled to POW privileges, they 

provided with many POW privileges as a matter of policy.105

The Fact Sheet, while containing numerous detailed assurances 

treatment of the detainees at Guantanamo, indicated that they wou

ceive certain specific privileges afforded to POWs by the Geneva Co

III, including:

218

104. Secretary of Defense Donald Rumsfeld, DOD News Briefing, (Jan. 22, 2002)

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 G

(Feb. 7, 2002), available at http://www.whitehouse.gov/news/releases/2002/02

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

outfits.106

This United States refusal to grant these particular privileges wa

in terms of the security risk posed by many detainees at Guantanam

guards and to each other. A specific indication of this kind can be c

with an overall approach of respect for a legal regime, and can also c

to change in that regime. The refusal of these privileges caused no ou

parts of the 7 February statement reassured international opinion.

However, the earlier part of the statement was incoherent in c

spects. The recognition that the Geneva Convention III did app

Taliban, followed by the blanket statement that the Taliban did not 

POWs, had the confusing appearance of simultaneous admission a

tion. In his accompanying statement, the White House Press Secre

cated the reason why the Taliban detainees failed to qualify as POW

[t]o qualify as POWs under Article 4, al Qaeda and Taliban detainee

have to have satisfied four conditions. They would have to be part of a 

hierarchy; they would have to have worn uniforms or other distinctiv

visible at a distance; they would have to have carried arms openly; a

would have to have conducted their military operations in accordance w

laws and customs of war.

The Taliban have not effectively distinguished themselves from the 

population of Afghanistan. Moreover, they have not conducte

operations in accordance with the laws and customs of war. Instead, th

knowingly adopted and provided support to the unlawful terrorist objec

the al Qaeda.

Al Qaeda is an international terrorist group and cannot be considered 

party to the Geneva Convention. Its members, therefore, are not covere

Geneva Convention, and are not entitled to POW status under the tre

219

106. Id. at 2. The privileges cited are outlined in GC III, supra note 5, arts. 28, 60, 64–

107. White House Press Secretary Ari Fleischer, Press Briefing at the White Ho

2002), at 1–2, available at Lexis, Federal News Service (Jan. 6, 2003).

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The argument about the Taliban appears to assume that the fo

tions which are listed in Article 4(A)(2) specifically in respect of m

“other militias” and resistance movements must necessarily app

Taliban; and it then proceeds to interpret the four conditions in su

that support for “unlawful terrorist objectives” becomes one basis for 

POW status. As for the al Qaeda detainees, although certain of the s

sons for not applying the Convention to them are well founded, the 

argument that because al Qaeda is not a party to the Convention 

benefit from it is far from correct. There was a curiously legalistic str

approach which put such emphasis on the purported distinction be

Taliban and al Qaeda detainees yet saw no practical consequences

tinction will be made in the good treatment given to the al-Qai

Taliban.”108 A striking feature of the statement is its avoidance of a

doubt about status: none of the detainees, even the Taliban ones, co

bly qualify as POWs. In keeping with this, nothing was said about 

nals provided for in Article 5 of 1949 Geneva Convention III and Ar

1977 Geneva Protocol I. A further notable omission was the absenc

ence to Article 75 of the 1977 Protocol. Despite certain merits, the 

ment was less technically proficient, and less reassuring, than it co

been. Expressions of international concern regarding the status and 

of detainees in Guantanamo and elsewhere continued.

In response to the White House statement of 7 February, the IC

Office in Geneva maintained its position that “people in a situation o

tional conflict are considered to be prisoners of war unless a compet

nal decides otherwise.”109 The ICRC emphasis on POW status contra

its statements in respect of prisoners in the wars in the former Yug

1991–5: in these wars, which were partly internal but also had an inte

dimension, the ICRC generally avoided status questions, and vario

such terms as “captured combatants,” “prisoners” and “detainee

ICRC statement in respect of prisoners taken in Afghanistan is argua

cord with Article 45 of 1977 Geneva Protocol I, but went well beyond 

220

108. Id. at 3.

109. See ICRC, Press Release, Geneva Convention of Prisoners of War (Feb. 9, 2002)

http://www.icrc.org/ (Nov. 14, 2002).

110. See ICRC Compilation of Press Releases and Communications to the Press by 

Former Yugoslavia, Federal Republic of Yugoslavia, Republic of Croatia, Republic of 

Herzegovina, 2 July 1991 – 20 March 1998 (1998) (bound collection of photocopied 

with author).

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of 1949 Geneva Convention III, which makes the more modest s

that in cases of doubt prisoners shall be treated as POWs. Presuma

could be cases in which there is no doubt in the first place. In some s

ICRC press spokesmen went so far as to deny the existence of a lega

of unprivileged or illegal combatant. Since the category of unprivileg

erent has a long history, is implicit in the criteria for POW statu

Geneva Convention III, and is explicit in Article 45 of 1977 Gene

col I, these statements were not well founded and they were modif

course of 2002. The same basic stance, with the same weaknesses, wa

Amnesty International in London and Human Rights Watch in Ne

These positions may have reinforced the reservations of the US admi

about the advice they were receiving from outside bodies.

The fundamental US position that many of the detainees taken in 

stan should not be accorded the status of POWs appears to have b

on three main practical considerations: the first related to conditio

tention of prisoners, the second to their release, and the third to th

of judicial proceedings.

On conditions of detention, a main concern was that 1949 Gen

vention III famously states that POWs are only obliged to give nam

date of birth and serial number.112 The United States was anxious 

considerably more information from the detainees. There is nothi

Convention that precludes questioning on other issues and whethe

ent classification actually improves the prospects of securing accur

mation is debatable. The United States also wished to keep the 

more segregated from each other, and with less access to means of co

harm, than full observance of all the POW Convention’s artic

provide.

221

111. See, e.g., Kenneth Roth, Executive Director of Human Rights Watch, Bush Poli

American and Allied Troops, INT’L HERALD TRIBUNE, Mar. 5, 2002, at 7. See a

International Memorandum to US Government on the Rights of People in US 

Afghanistan and Guantanamo Bay (Apr. 15, 2002), available at http://www.amn

(Nov. 14, 2002).

112. GC III, supra note 5, art. 17. This rule does not mean that a POW cannot be 

questions, nor does it prohibit the POW from providing other information. In March 

Kellenberger, President of ICRC, pointed out that there is nothing in humanitarian 

prisoner being questioned, but that he could not be forced to answer. “If he does 

answer, that is his right. Under any system, you cannot do anything to people to 

speak. It is a non-issue.” Jakob Kellenberger, ICRC Rejects Talk of Geneva Conven

Reuters-Geneva (Mar. 21, 2002).

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As regards release of prisoners, Geneva Convention III codifies 

that is normally pursued after a war—releasing and repatriating PO

such release of all the detainees from the “war on terror” would p

problems. First, there may not be a clear end of hostilities: while the w

ghanistan may be concluded at a definite date, it may be decades b

United States or other states can declare that the “war on terror” is 

ond, unlike POWs in a “normal” inter-state war, some of the priso

cerned might continue to be extremely dangerous after release, g

training, their motivation to commit acts of terrorism, and lack of go

tal control over them. Third, their countries of origin might refuse 

them back, except perhaps as prisoners.

Judicial proceedings

As regards judicial proceedings in respect of pre-capture offenses, from 

in the war the United States reportedly intended to prosecute a num

Qaeda and Taliban leaders, including Osama bin Laden if captured. 

it is unclear that the point of detaining the prisoners in Guantanam

them.113 Insofar as the possibility of trials is envisaged, the United 

pears reluctant to pursue the procedure laid down in Geneva Conve

which specifies that any sentence of a POW must be “by the same 

cording to the same procedure as in the case of members of the arme

the Detaining Power.”114 If, following this provision, cases were 

through the normal US military courts, there could be problems, esp

garding the normal US military procedures for appeals.115 Moreover

capture offense was of a type that would result in members of the arm

of the detaining power appearing before a civil court, then it is impl

above-quoted terms of the Convention that a POW could appear bef

222

113. In a thorough and perceptive account of Camp Delta at Guantanamo datelined 

2002, Joseph Lelyveld suggests that it is a holding camp for detainees who are not 

released or tried soon, and many of whom may be relatively minor figures who were i

place at the wrong time. Joseph Lelyveld, In Guantanamo, 17 N.Y. REV. OF BOO

2002), at 62–68, available at http://www.nybooks.com/articles/15806 (Nov. 30, 200

114. GC III, supra note 5, at art. 102. This appears to be the relevant article of the Co

far as trials for crimes committed before capture are concerned. (The distinct subj

discipline issues is addressed in Article 82.) Commentary III, supra note 86, at 406 

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 c

service, then through the US Court of Appeals for the Armed Forces, and then o

Supreme Court. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, RULES 

MARTIAL 1203–1205 (2000).

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court. Such standard procedures, US officials feared, could provide o

ties for al Qaeda suspects and their lawyers to prolong legal process

tract publicity. There was also concern that in cases involving defend

no documents and no willingness to collaborate with any of the pr

and where evidence might be largely based on intelligence sources, i

difficult to provide evidence that met high standards of admissib

equally high standards of proof of direct personal involvement in terro

ities. Further, al Qaeda might learn valuable information from ev

open court, for example about its vulnerability to intelligence gather

It was because of such fears about normal judicial procedures th

ministration made provision for trial by military commissions. Ther

merous precedents for such provision: for example, President R

Proclamation of 2 July 1942, bluntly entitled “Denying Certain Ene

cess to the Courts of the United States.”116 In its decision of 31 Jul

the case of Ex Parte Quirin the US Supreme Court ruled in favor of t

ness of the Proclamation.117 The current status of such legal preced

yond the scope of this survey. President Bush’s Military Order of 13 N

2001 provides for the option of trying certain accused terrorists b

commissions operating under special rules. It applies only to non-U

It specifies that individual terrorists, including members of al Qaed

detained and tried “for violations of the laws of war and other 

laws,” and that the military commissions would not be bound by “t

ples of law and the rules of evidence generally recognized in the tria

nal cases in the United States district courts.” It also contains some 

brief provisions for humane conditions of detention, and provides fo

retary of Defense to issue detailed regulations on such matters as th

of proceedings of the military commissions.118

President Bush’s Military Order was the subject of considerable 

political debate in the United States and elsewhere as to its constitu

practicability and advisability. The controversy about the 

223

116. Denying Certain Enemies Access to the Courts of the United States, Procla

2561, 7 Fed. Reg. 5,103 (Jul. 2, 1942). On this and other cases of US establish

commissions, see CONGRESSIONAL RESEARCH SERVICE, TERRORISM AND THE LA

TRYING TERRORISTS AS WAR CRIMINALS BEFORE MILITARY COMMISSIONS 18

(updated Dec. 11, 2001), available at http://www.fpc.state.gov/documents/organizati

(Nov. 14, 2002).

117. Quirin, supra note 92, at 6.

118. Military Order of 13 November 2001 - Detention, Treatment and Trial of C

Citizens in the War Against Terrorism, secs. 1(e), 1(f), 3, 4(b), 4(c), 66 Fed. Reg. 5

16, 2001), available at http://frwebgate.access.gpo.gov/cgi-bin/multidb.cgi (Nov. 14, 

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commissions was part of a larger debate about which particular ap

the prosecution and trial of alleged terrorists should be pursued. Po

that were raised in public discussion included US federal courts, fo

tional courts, a UN ad hoc international criminal tribunal, a coalit

criminal tribunal, and a special Islamic court.119

The controversy about the proposed military commissions abated 

over time. On 30 November 2001, the President’s Counsel offered sev

ances, including that military commissions are one option, but not th

tion.120 On 21 March 2002 the Pentagon issued the long-promise

regulations on the conduct of proceedings of the projected military 

sions, the terms of which went some way to meet the expressions of co

garding President Bush’s Military Order of the previous November.12

the laws of war are concerned, a key issue (not explicitly addressed in t

gon document) is whether the provisions regarding the trial procedur

with the ten recognized principles of regular judicial procedure outline

Geneva Protocol I, Article 75, which relates to persons not entitled to 

tus. The Pentagon’s detailed regulations appear to conform with almos

principles apart, arguably, from the final one, which is that “a convict

shall be advised on conviction of his judicial and other remedies and o

limits within which they may be exercised.”122

A problem regarding the prisoners held by the United States is t

tainty regarding whether and when they will be tried, and whether th

held indefinitely or released. Nearly 600 suspects of many different 

ties are held at Guantanamo, but at the time of this writing, there is 

224

119. For a useful exploration of these and other possibilities, see DAVID SCHEFFER

FOR PROSECUTING INTERNATIONAL TERRORISTS (US Institute of Peace, Nov. 14

120. President’s Counsel Alberto Gonzalez, Address to American Bar Associatio

(Nov. 30, 2001) cited in AM. SOC. INT’L L. NEWSLETTER, at 12 (Nov–Dec 2001).

121. DOD Military Commission Order No.1 - Procedures for Trials by Military Com

Certain Non-United States Citizens In the War Against Terrorism (Mar. 21, 2002)

http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf (Nov. 14, 2002) 

DOD Military Commission]. For a response claiming that these procedures, if not per 

of international law, are highly problematic, see Jordan J. Paust, Antiterrori

Commissions: The Ad Hoc DOD Rules of Procedure Courting Illegality, 23 MICH J. I

(Spring 2002).

122. GP I, supra note 9, at art. 75(4)(j). The Pentagon’s detailed regulations provid

trial Review Panel to which the defense can make written submissions, not for 

appeal procedure. A further reservation about the regulations concerns the role of 

counsel, who would be excluded with the accused from closed sessions, at wh

“assigned” defense counsel would be present who would be forbidden to speak w

counsel or the accused. See DOD Military Commission, supra note 119, at 8, 14.

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the military commissions becoming operational. The United States 

cated that the judicial process may have to wait until after “the war o

won,” at which distant point the detainees may be tried or released

indefinite detention, without any charge or trial, would violate fun

standards of human rights and be hard to justify. Yet when the main 

with potential suicide bombers is not what they have done, but w

might do in the future, the resort to judicial procedures does not ad

essence of the problem.

Further Development of the Law

The phenomena of global terrorism and the response thereto, wh

means wholly new, pose many challenges to existing legal provisions, 

ters as large as the meaning of “armed conflict” to those as detailed a

ditions of detention. Thus it is not surprising that there wer

suggestions that the existing laws of war might need to be revised, upd

plemented or reinterpreted to take into account new forms of conflict

for such reconsideration, which basically arose in connection with t

Afghanistan and the many related issues, may have been reinforced 

elsewhere, especially the numerous cases of Palestinian suicide bo

2001–2. In February 2002, following the furor over the det

Guantanamo, Pierre-Richard Prosper, the US Ambassador-at-Larg

Crimes Issues, stated: “[t]he war on terror is a new type of war not e

when the Geneva Conventions were negotiated and signed.”124 He a

that time: “[w]e should look at all international documents to see wh

are compatible with this moment in history.”125

Such suggestions that the law might need to be revised are vuln

four obvious lines of criticism. (1) In several statements on the ma

bassador Prosper gave little indication of what particular revisions 

made to the 1949 Geneva Conventions. (2) There was naturally a su

certain humanitarian organizations that suggestions that existing la

of date or irrelevant to the terrorist problem might be a way of trying 

225

123. War Crimes at Large Ambassador Richard Prosper Address in London (Sep. 20, 2

Owen Boycott, Guantanamo Britons Still a Threat, says US, THE GUARDIAN, Sep. 21, 20

124. War Crimes at Large Ambassador Richard Prosper Address at the Royal 

International Affairs in London (Feb. 20, 2002).

125. Kim Sengupta and Andrew Buncombe, Change Geneva Convention Rules, Says 

Rules of Warfare Legal Foundation for the Red Cross has Helped Maintain Humanity an

Combat for 140 Years, THE INDEPENDENT, Feb. 22, 2002, at 1–2.

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obligations to implement existing law fully. (3) Proponents of chang

mention that the negotiators at Geneva in 1949 had addressed a c

lated issue, namely the activities of resistance movements during th

World War, and that Articles 4 and 5 of the Geneva Conventio

among the provisions that already reflect this. (4) There was also a 

mention in this context the revisions that had already been made to 

Geneva Conventions. Proponents of change were notably reluctan

tion even the title of 1977 Geneva Protocol I although it constitutes 

important actual updating of the 1949 conventions. It contains th

prohibitions in the laws of war of certain actions in which many 

movements engage, such as attacks on civilians. It also introduces s

structive provisions that are germane to the “war on terror.” Such p

that the United States has in principle accepted include those on 

and on the treatment of detainees who do not qualify as POWs.

Although such criticisms have considerable force, the fact is that 

bound to evolve in response to the new problems of a new age. Mu

evolution may take the form, not of new conventions, but rather o

state practice some of which may have, or acquire, the status of custo

However, some of the legal evolution may involve international confe

Of the many issues related to the “war on terror” that could come 

exploratory process with a view to further change in the law, five of t

dates for consideration could be: (a) the conditions of application o

of war; (b) the classification and treatment of detainees; (c) legitim

of responding to suicide bombers who by definition cannot be deterr

mal means, and whether reprisals can ever be justified in this contex

interpretation of the rules on targeting in the light of the experience 

wars in Afghanistan and elsewhere; and (e) remnants of war, a pro

includes but is by no means restricted to cluster bombs, and is in an

subject of separate negotiation in a UN framework in Geneva.

Partly because of the salience of such issues, there continued to 

demand for an exploration of how the law relates to certain aspects o

porary conflicts. In September 2002 the Swiss Foreign Ministry an

that it “wishes to support an informal process and provide a space f

on the reaffirmation and development of international humanitari

light of the new and evolving realities of contemporary conflict si

Representatives of certain governments and international bodies, as 

dependent experts, were to be invited to contribute to an informal m

be held in January 2003. Cautiously, the Swiss note announcing t

that one of the purposes of the exercise was “if necessary, the consid

226

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the development of new rules.

The potential topics listed were at 

general and imprecise.126

Conclusions

There are ample grounds for questioning whether military operations 

action against terrorists constitute either a new, or a wholly distinct, c

war. The coalition operations in Afghanistan, and the larger war agai

ism of which they are a part, are not completely unlike earlier wars. M

of military action and issues raised are similar to those in previous mili

ations, and concern issues already addressed by the laws of war.

Events in Afghanistan have confirmed that there are particular d

in applying the laws of war to counter-terrorist operations. A war th

purpose the pursuit of people deemed to be criminals involves many 

issues for which the existing laws of war are not a perfect fit. In add

use of local forces as proxies (a common feature in counter-terro

risks creating a situation in which major powers fail to exercise re

control over their local agents, whose commitment to the laws of w

slight. More fundamentally, any war against a grand abstraction, as 

on terror” undoubtedly is, risks creating a mentality in which adver

seen as dehumanized, and the cosmic importance of the struggl

thought to outweigh mundane legal or humanitarian considerations

However, treating, or appearing to treat, the law in a cavalier ma

creating new problems. If a major power is perceived as ignoring cer

norms, this may have a negative effect within a coalition, or on enem

involve severe risks to any of its own nationals who may be taken p

may also affect the conduct of other states in other conflicts. In t

sense, the principle of reciprocity in the observance of law retains its 

In particular, the United States’ handling of questions relating to 

ment and status of prisoners has caused widespread concern and cri

regards those under Northern Alliance control, practical arran

around the time of the rebellion at Mazar -e-Sharif and also subs

were inadequate. More generally, although many key US positions 

fensible, especially that certain prisoners did not qualify for POW 

pects of US policy and procedures were poorly presented, and in so

did not appear to be fully thought-out. The prisoner issue—always 

227

126. See Diplomatic Note, Switzerland-US, Sep. 13, 2002. See also Unknown Autho

a Meeting to Re-examine the Geneva Conventions, N.Y. TIMES, Oct. 6, 2002, at sec. 1

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anyway

was especially significant in this war: if the coalition were 

to have treated prisoners inhumanely, or to have regarded their s

treatment as being in an international legal limbo, there would be 

general weakening of the prisoner regime, including for any coalitio

nel taken prisoner in the ongoing war on terrorism. The handling of 

was a potential threat to coalition unity. The controversies over th

question had a special resonance because of the concern of other 

that the United States had been moving towards unilateralism gene

wide range of matters. In this perspective, fairly or unfairly, the Uni

reluctance to accept the full application of 1949 Geneva Convent

those particular prisoners was seen as one more example of a sele

proach to international law.

In the course of the first year of its “war on terror,” and especially in 

handling of prisoner issues in Afghanistan and at Guantanamo, the 

ministration’s expression of policies on certain laws-of-war issues wa

hesitant and unskillful. It would be easy to attribute this to the admin

alleged general ideological hostility towards international agreemen

ever, some other explanations may carry more weight. The United St

record of concern stretching back decades about the ways in which 

tional humanitarian law has been developing, especially as regards 

and also in regard to the rules on what is a legitimate target. The adm

was right that certain aspects of the law, including aspects of the POW 

were not appropriate for the treatment of alleged terrorists. Part of the 

tion of the administration’s failure to handle the particular question 

tus of detainees effectively may lie quite simply in the fact th

proceeding in a reactive manner. In addition, there appears to have b

ficient consultation with the military’s own legal specialists.

Whatever the defects of the Bush Administration’s response, th

sionalism of the US armed forces, coupled with the effect of critici

and beyond the United States, led to policy and practice on the priso

evolving in a generally sensible direction. This evolution has been a

incomplete. In general, there have been no major public doctrinal s

from the US government on how the laws of war apply to the “w

ror”—perhaps because the application of those laws can indeed b

cated and policy-makers do not wish to foreclose options.

This war occasioned a greater degree of tension between the Uni

on the one hand, and international humanitarian and human rights 

the other, than any of the wars of the post-Cold War period. The h

certain laws-of-war issues by the ICRC and various other hum

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organizations left much to be desired. It was natural that they should b

about the US administration’s view of international humanitarian law 

they should press for full implementation of that law, especially in r

prisoners. However, they were on legally dubious ground when they p

the United States to view detainees as being entitled to be POWs, an

insistence that if they were not given POW status then they must be cl

civilians. They missed a major opportunity to point out publicly the re

certain provisions of 1977 Protocol I to persons not entitled to POW 

was odd and out of character for the ICRC to deny the applicability 

governing international armed conflict to certain aspects of the Afgha

including the phase from June 2002 onwards. Overall, the stance of su

while leading to certain useful clarifications of US policy, may also hav

regrettable effect of reinforcing US concerns (well publicized in deba

the International Criminal Court) about zealous international lawyer

in unsympathetic judgement on the actions of US forces.

Returning to the four questions set out at the beginning of this su

foregoing account suggests these responses:

First, according to a strict interpretation of their terms, the main t

lating to the conduct of international armed conflict are formally an

plicable to counter-terrorist military operations only when those o

have an inter-state character. Where counter-terrorist operations a

part of a civil war, the parties must apply, as a minimum, the rules 

to civil wars. Where operations are simply part of a state’s policing

part of an armed conflict such as to bring the laws of war into play, t

war are not formally in force.

Second, in counter-terrorist military operations, certain phases a

tions may well be different from what was envisaged in the scope o

tion and other provisions of the main treaties on the laws of war. T

differ from the provisions for both international and non-internation

conflict. Recognizing that there are difficulties in applying internati

in the special circumstances of counter-terrorist war, the attempt 

should nevertheless be made to apply the law to the maximum exten

At the very least, it has considerable value as a blueprint or templat

principles embodied in the laws of war should be applied in a wide 

situations. This conclusion is reinforced by decisions of commissi

quiry, certain resolutions of the UN Security Council, some doc

practice of states (including the United States), and consideration

dence. In the “war on terror,” while there have been shortcomings 

terpretation and application of existing law by governments 

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humanitarian organizations, much of what has been done has been w

framework of the law and has confirmed its relevance.

Third, although the great majority of prisoners taken in war are 

qualifying for POW status, in a counter-terrorist war, as in other ar

flicts, there are likely to be individuals and even whole classes of priso

do not meet the treaty-defined criteria for such status. A procedure 

in the 1949 POW Convention and in US military manuals is that 

doubt about their status such people should be accorded the treat

not the status, of a POW until a tribunal convened by the captor d

the status to which the individual is entitled. However, in a struggle 

an organization that plainly does not meet the criteria (and especia

as with al Qaeda, it is not in any sense a state) it may be reasonable to 

that captured members cannot be considered for POW status. In ca

it is determined that certain detainees are not POWs, they may be c

to be “unlawful combatants.” It is doubtful whether such persons 

classified as “civilians.” However, there are certain fundamental rule

ble to their treatment, including those outlined in Article 75 of 197

Protocol I; and there is a tradition of applying basic norms of the POW 

Any prisoner, whether classified as a POW or not, can be tried for of

cluding those against international law.

Fourth, there is a case for consideration of further revision of th

law. Suggestions that the existing laws of war are generally out of d

face of the terrorist challenge are wide of the mark. However impe

law has played, and will continue to play, an important part in influe

conduct of the “war on terror.” There has neither been a serious s

that the existing legal framework should be abandoned, nor substa

posals for an alternative set of rules. However, some modest evo

changes in the law can be envisaged, for example regarding conditi

plication, the classification and treatment of detainees, the difficul

of how to respond to suicide bombers, the problems of targeting, an

new rules regarding remnants of war. The application of the law to n

national armed conflicts is another area in which there has been mu

opment since 1990 and more may be anticipated. Some changes i

these areas may require a formal negotiating process. Some, howeve

achieved—indeed, may have been achieved—by the practice of stat

ternational bodies, including through explicit and internationally 

derogations from particular rules that are manifestly inappropriate t

cumstances at hand; and also through the application of rules in situ

nificantly different from inter-state war.

230

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IX

Panel II

Commentary—Jus in Bello

Charles Garraway1

ll new warfare operates to stress existing law. This is true for 

and every conflict occurring over the last several hundred y

new type of warfare involved in “the war on terrorism” is no exception

should be taken, however, not to throw out the existing regime but i

should study and analyze these stresses for such stresses are not n

fatal.

There is always a danger, amply demonstrated over the last few m

decisions being taken and then followed by legal justifications. Th

creates further dangers as it may lead to conflicting reinterpretation

ing law. For example, we have discussed the differences between Eu

the United States. However, despite these differences, the end resu

exactly the same. The departing point is in how European countrie

their conclusions since they have different drivers, different lega

(both national and international), different cultures, and differen

tions. It follows occasionally then, that the European legal justificati

action may be quite different from that of the United States. This 

1. Colonel Charles Garraway is currently serving in the Ministry of Defence of 

Kingdom, advising on issues of international law.

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itself creates some danger as there are then two, or more competing 

tifications. Undoubtedly, states on both sides of the Atlantic wou

from more consultation and coordination before particular pos

adopted.

I agree with Professor Dinstein that existing law is adequate for 

presented today. I also agree that the principle of distinction is fun

and absolutely vital when determining combatant status. However

agree with Professor Dinstein on everything. The law of armed con

signed to have a greater degree of flexibility than national law becau

many respects, always focuses on the last conflict. Accordingly, the

quirement for built in flexibility so that we can apply the law design

last conflict to the new situation.

The definition of armed forces has for generations been based 

tional forms of armies. I am talking here about regular armed forces

parts of the world today though, we are returning almost to the Mi

and seeing feudal types of armed forces with warlords raising their o

in much the same way as the barons did against King John. Accord

notion of a structured, disciplined armed force is not reflected in the 

of some states today. The question regarding these forces then becom

status and treatment under the law of armed conflict.

Should these forces be treated as militias and therefore be define

batants under the Hauge Regulations, Geneva Conventions, and th

cols or as something else? Must we re-interpret what is meant by 

“armed forces?” Professor Dinstein chooses a tried and true method 

mining that the Taliban are not members of the armed forces of a 

tracting party to the Geneva Conventions and are therefore not e

the protections and privileges of combatancy. I, however, believe th

grave danger in the position that has been taken that no Taliban me

entitled to prisoner of war status once captured as this position may 

on the developed countries of the world in future conflicts. It seems s

strange to have an armed conflict in which one side, by definition, i

entirely of “unprivileged belligerents.”

Regarding the presentation of Professor Adam Roberts, I agree th

because a war is started by a state, that state does not become respo

everything occurring during the course of the war. I further agree 

applied in the current “war on terror” must be proportionate in na

portionate here is used in a different context to the way it is used 

cussing pure jus in bello concepts of course.

232

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Terrorism occupies the zone between criminal law and the law 

conflict. Sometimes terrorism is solely within one or the other of the

However, the current situation is one where substantial overlap 

tween the two competing and somewhat conflicting legal regimes. W

an overlap exists, there is also the very real danger of gaps in coverag

the two systems.

An ad hoc approach to interpreting treaty obligations is one met

onstrated lately. The danger with such an approach is that your st

protest the treatment of your own service members is weakened wh

not apply the Geneva Conventions to those who seem to fall within 

perfect example of this is the US position on the “detainees” held 

tanamo Bay, Cuba. As we all know, prisoners of war are subject to 

and regulations of the armed forces of the detaining party. Th

ordinarily mean trial by courts-martial. However, in the same way th

personnel cannot ordinarily be tried by military courts for pre-enlis

fences, so prisoners of war will not be subject to court-martial jurisd

offences prior to their capture.2 This principle seems to force state

their civil courts for jurisdiction over detainees. However, the Uni

has clearly stated that it will use military commissions and not prose

its federal courts. Using military commissions is entirely consistent 

law of armed conflict provided they apply to all who commit war 

whatever nationality. It seems that this issue may have been misapp

when the issue of the designation of Taliban members as prisoners 

detainees initially surfaced.

Finally I would just like to quote from the US Joint Chiefs of Staff 

Rules of Engagement, dated January 15th, 2000: “U.S. Forces will co

the law of war during military operations involving armed conflict 

how the conflict may be characterized under international law and 

ply with its principles and spirit during all operations.”3 That is a s

clear instruction to commanders and to soldiers. I think those instru

sensible and that we move away from them at our own peril.

233

2. See generally Geneva Convention III Relative to the Treatment of Prisoners of W

1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, Chap. III - Penal and 

Sanctions, reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Ric

eds., 3rd ed., 2000) at 243.

3. CHAIRMAN JOINT CHIEFS OF STAFF INSTR 3121.01A STANDING RULES OF EN

FOR U.S. FORCES, ENCLOSURE (A) A-9, (15 Jan 2000).

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X

Panel II

Commentary—Jus in Bello

Leslie Green1

he first issue to be considered when examining the impact of 

armed conflict on the war against terrorism is the nature of 

Immediately after the September 11th attacks, President George W

clared that we were now involved in a “war against terrorism—the f

the twenty-first century.”2 Moreover, President Bush subsequently 

that those “who are not with us are against us,” thus negating any 

that those failing to see eye to eye with him could claim to be neutral

be the case if this were a traditional war.3 Prima facie, the President’s 

1. Leslie Green is Professor Emeritus of International Law at the University of Albert

2. President George W. Bush, Remarks by The President Upon Returning to the W

(Sep. 16, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010

(Sep. 23, 2002).

3. President George W. Bush, Remarks by the President to the Employees of the De

Labor (Oct. 4, 2001), available at http://www.whitehouse.gov/news/releases/2001/10

8.html (Sep. 23, 2002). Note that the concept of neutrality is markedly changed w

with a UN Security Council Resolution calling upon all member nations to use forc

a certain objective. In this instance, the traditional concept of neutrality does not a

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implied that any state not supporting the United States would be con

“enemy” of the United States.

A major difficulty with the President’s approach is that the attac

tember 11th, organized by non-state actors, were not the acts of a sta

ing the traditional notion of self-defense against an act of aggres

breach of the peace as outlined in Article 51 of the UN Charte

tionally, and in accordance with the normally understood rules o

tional law, war is an armed conflict conducted by the organized arm

of two or more contesting states. After the events of September 1

was no opposing “state” upon which to declare “war.” In other w

President’s statement that “we are at war” seemed more to be politi

ric, possessing certain similarities to the language used in the past i

to the “war against poverty” or the “war against drugs.”

The fundamental difference in this case from these other “war

is the determination of the United States to resort to armed force an

sue and destroy or bring to justice the offenders identified as memb

al Qaeda terrorist group led by Osama bin Laden. This group had 

quarters in Afghanistan, a state governed by a de facto admi

known as the Taliban. The Taliban was not the actual governme

ghanistan but instead was a group in possession of much of the territ

ghanistan. The only government of Afghanistan legitimately reco

the UN was the Northern Alliance. In fact, the Taliban administr

achieved only minimal recognition as the government of the cou

gaining official recognition of such status by Pakistan and two othe

states.5 Shortly after the United States began its operations, even th

recognizing the Taliban as the legitimate government of Afghanis

drew their recognition.6

When the Taliban authorities rejected a demand that they captu

bin Laden and his leading henchmen and hand them over to th

States for trial and punishment, the American authorities decided 

236

4. U.N. CHARTER art. 51.

5. The two other states recognizing the Taliban as the legitimate government of A

on September 11th were Saudi Arabia and the United Arab Emirates. Both Saudi 

the United Arab Emirates severed ties with the Taliban very quickly after Septe

Pakistan did not do so until November 22, 2001. See Pakistan Shuts Down Talib

USA TODAY, Nov. 22, 2001, available at http://www.usatoday.com/news/attack/

taliban-embassy.htm#more (Sep. 23, 2002).

6. Id.

7. President George W. Bush, Presidential Address to the Nation (Oct. 7, 2001) 

available at http://www.whitehouse.gov/news/releases/2001/10/20011007-8.html) (Sep

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in self

help, invading Afghanistan.This action was undertaken w

sort to the Security Council but did receive general international sup

a variety of states, particularly after al Qaeda made it clear that th

campaign was not necessarily restricted to American targets. Given 

United States decided to use force against not only al Qaeda bu

Taliban administration, it might have been presumed that the law 

conflict regarding prisoners of war and the application of the princip

tinction and proportionality would come into play.

The attacks against the Pentagon and the World Trade Center w

threats to the sovereignty and security of the United States. While 

argued that the attack on the World Trade Center was primarily 

against private, non-governmental interests and thus not prima facie 

the state, this cannot be the case as regards the Pentagon. The atta

Pentagon was clearly aimed at the very heart of American governm

cesses, thus constituting a threat to the very existence of the state. S

tack clearly entitled the United States to expect authorities of states 

the perpetrators or their supporters reside to cooperate in seeking 

The failure of the Taliban administration to do so opened the w

United States to engage in self-help. Such self-help, though, would 

solely against al Qaeda bases and any Afghan organization clearly a

with al Qaeda or supporting al Qaeda. The authority to target the T

ministration itself would require proof of a close relationship bet

Taliban itself and al Qaeda.

At the same time that the United States was beginning its attac

building a coalition of nations. Propaganda by al Qaeda and previou

acts directed against US embassies as well as a US warship made it 

the events of September 11th were part of a continuum. Intelligen

suggested that similar attacks were likely to follow, making it easier 

states to support the US efforts. Such states based their efforts upon 

ciple of collective self-defense, including the right of preventive and 

ticipatory self-defense. Within this coalition, however, some issues d

as to the application of the law of armed conflict to certain personn

While the United States never declared “war” as such, the bom

subsequent land offensive by it and allies such as Canada and the Un

dom amounted to an armed conflict within the terms of the 

237

8. See Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 1

2, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III] 

DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd e

243 [hereinafter DOCUMENTS ON THE LAWS OF WAR].

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Conventions of 1949.

This seems particularly to be the case regardin

members and installations under the control of the Taliban. Once o

evolved to the point that they were directed at al Qaeda and at th

ment of the Taliban with the Northern Alliance, the Geneva Conve

came relevant. Despite the absence of a declaration of war, the actu

conflict was enough to invoke the fundamental principles of the law 

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 a

armed conflict which may arise between two or more of the High Contracting 

even if the state of war is not recognized by one of them. The Conventions s

apply to all cases of total or partial occupation of the territory of a High Con

Party, even if the said occupation meets with no resistance. Although on

Powers in conflict may not be a party to the present Convention, the 

who are parties thereto shall remain bound by it in their mutual relatio

In accordance with the normal law concerning treaties, the Taliba

istration would be bound in the same way as the Northern Allianc

which it would be considered a rebel authority, with its forces entit

same rights and subject to the same duties as the forces of the 

Afghan government, the Northern Alliance. It might have been 

that allies of the legally recognized authority capturing Taliban 

would hand such captives over to the Northern Alliance for trial or d

as was the customary practice of the United States in its participatio

tilities on behalf of the Republic of Vietnam. In this case, however, th

States treated all captives, whether supporters of the Taliban or al 

potential terrorists.

This ignored the fact that while the Taliban authorities might, du

failure to cooperate in seeking out al Qaeda personnel, constitute a 

target, it does not follow that every member of the Taliban forces fa

the same category. Ample evidence exists to indicate that many of 

and file Taliban were orthodox, if not fundamentalist, followers of I

had taken up arms only against the Northern Alliance.

As a consequence of this policy, the United States announced t

not going to treat any captive or detainee as a prisoner of war, no

238

9. Id. (italics added).

10. Ari Fleisher, Press Briefing, Office of the Press Secretary (Jan. 31, 2002), availa

www.whitehouse.gov/news/releases/2002/01/20020128-11.html#prisoners%20dow

%20Guantanamo%20Bay (Sep. 24, 2002).

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them the protection of Geneva Convention III relating to the tre

prisoners of war.10 Not all coalition members of the US campaign fa

policy, as the United Kingdom, Australia, and Germany registered 

about the lack of adherence to the Geneva Convention on Prisone

(GC III).11 Despite these protests, the United States refused to con

detainees as potential prisoners of war.

Article 4 of the Convention provides in part that:

[p]risoners of war . . . are persons belonging to one of the following cat

who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as mem

militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, in

those of organized resistance movements, belonging to a Party to the conf

operating in or outside their own territory, even if this territory is oc

provided that such militias or volunteer corps, including such or

resistance movements, fulfill the following conditions:

(a) that of being commanded by a person responsible for his subordi

(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 la

customs of war.

(3) Members of regular armed forces who profess allegiance to a govern

an authority not recognized by the Detaining Power.12

239

11. See, e.g., Coalition at Odds over Cuban Camp, THE SCOTSMAN, 1, Jan. 21, 20

at http://news.scotsman.com/archive.cfm?id=75162002&rware=HYRBHPXMU

CUR_DOCUMENT=4 (Sep. 24, 2002); Rocks, stones found in cells - War on Terro

Missing Son, THE DAILY TELEGRAPH, Jan. 28, 2002, available at LexisNexis, M

Newspapers (Sep. 24, 2002). The United States changed this initial approach on 

2002 when the Office of the Press Secretary released a fact sheet stating that “[t]he P

determined that the Geneva Convention applies to the Taliban detainees, but n

Qaeda detainees” but that “[u]nder the terms of the Geneva Convention, however, 

detainees do not qualify as POWs” and “therefore neither the Taliban nor al Qaeda d

entitled to POW status.” Office of the Press Secretary, Fact Sheet - Status of D

Guantanamo, February 7, 2002, available at http://www.whitehouse.gov/news/relea

20020207-13.html (Sep. 24, 2002).

12. See GC III, supra note 8 at art. 4.

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Note that this article makes no reference to parties to the Conventio

fers solely to parties to the conflict. Paragraph 3 is significant for those 

the Taliban or seeking al Qaeda members since it expressly refers to 

of an authority unrecognized by a captor. As to paragraph 2, it seems 

ous Taliban units were under a proper command and may have been 

distinctive insignia as they wore a black head-covering of a similar ty

Taliban supporters carried their arms openly and it is not known whe

complied with the laws and customs of war as there were no real la

tions allowing for this to be studied.

Further coalition problems arose regarding the actions of the Uni

when studying other articles of this convention. Article 5 provides:

[t]he present Convention shall apply to the persons referred to in Articl

the time they fall into the power of the enemy and until their final rele

repatriation.

Should any doubt arise as to whether persons, having committed a bel

act and having fallen into the hands of the enemy, belong to any 

categories enumerated in Article 4, such persons shall enjoy the prote

the present Convention until such time as their status has been determin

competent tribunal.13

To date, not a single Article 5 hearing has been undertaken by th

States, nor are such hearing likely to take place in the future. Th

States has taken the position that such hearings are not required fo

or al Qaeda members as they fall so clearly outside the scope of Arti

there can be no question but that they are not entitled to the protect

Convention.

Additionally, although the United States has announced it is es

special military commissions for the trial of these “detainees,” trials h

take place. In fact, no charges have even been made public. Finally

clear what crimes, if any, the majority of Taliban members de

Guantanamo Bay have actually committed.

240

13. See GC III, supra note 8 at art. 5.

14. This is particularly true for those allies who have ratified Additional Proto

increases the types of people considered to be lawful combatants and impose

obligation on holding powers. See, e.g., 1977 Geneva Protocol I Additional to 

Conventions of 12 August 1949, and Relating to the Protection of Victims of In

Armed Conflicts, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 8 at 

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This policy of refusing to treat detainees as required by the Thir

Convention has caused problems for US allies such as Canada and th

Kingdom.14 By way of example, though Canada has not declared war

is that its forces will at all times observe the law of armed conflict 

nized by Canada.15 As debate developed in Canada as to the applicat

Third Geneva Convention to detainees, Taliban members captured 

dian Forces were turned over to the United States.16 Such transfer w

in breach of Canadian obligations in Article 12 of the Third Geneva 

tion which provides that:

[p]risoners of war may only be transferred by the Detaining Power to 

which is a Party to the Convention and after the Detaining Power has 

itself of the willingness and ability of such transferee Power to ap

Convention.... [I]f that Power fails to carry out the provisions 

Convention in any important respect, the Power by whom the prisoner

were transferred shall, upon being notified by the Protecting Powe

effective measures to correct the situation or shall request the return 

prisoners of war. Such requests must be complied with.17

Though no Protecting Power existed in this case, the United States ha

clear that it would not apply the protections of GC III to these detain

ertheless, no Canadian request for the return of these prisoners 

made,18 causing an apparent breach of GC III by Canada.

A singular lesson exists from these problems. As situations like 

velop where a need exists to take combined action outside the umbr

UN, great care should be taken as early as possible to agree upon po

will effectively deal with these types of issues to the satisfaction of al

members.

241

15. See Code of Conduct for CF Personnel, Office of the Judge Advocate General, 

1999, p. 2, available at http://www.dnd.ca/jag/jag_pdf_docs/codeconduct_ch1to3_

24, 2002).

16. See Tim Naumetz, Prisoner Furor Dogs Grits, CALGARY HERALD, p. A1 (Jan

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 

operating in Afghanistan to the Northern Alliance, as the legitimate governm

country, which was entitled to treat such persons in accordance with its own laws, s

might be.

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XI

Panel II

Commentary—Jus in Bello

Tony Montgomery1

he principle of distinction is a fundamental component of t

armed conflict. Attackers must adhere to this principle in sele

gets for destruction. What is not appropriately stressed in the liter

commentary is that this same principle applies to the defender as wel

attacker. Routinely, the enemies of the United States—the Saddam 

the Slobodan Milosevics, and the Taliban—place military equipme

middle of protected areas containing civilians. As is well known, this 

tion of the law of armed conflict yet the United States constantly f

struggling with such difficult targeting issues because of these illegal a

enemy.2

Cloaking such targets behind civilians and in protected places 

however, deprive the target of its military utility. Greater discussion 

sponsibility of the defender to segregate such military targets from 

1. Lieutenant Colonel Tony Montgomery is the Deputy Staff Judge Advocate for the 

Operations Command.

2. See 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 Augu

Relating to the Protection of Victims of International Armed Conflicts, opened for sig

12, 1977, 1125 U.N.T.S. 1, art. 51(7), reprinted in DOCUMENTS ON THE LAWS OF W

Roberts and Richard Guelff eds., 3rd ed., 2000) [hereinafter DOCUMENTS ON TH

WAR] at 419.

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and protected places would be helpful to those who engage in the b

targeting.

On September 11th, I was a member of the Office of the Staff Jud

cate for the US Special Operations Command. Recognizing that th

acts perpetrated on September 11th would quickly elicit a response 

nation, my office began searching for use of force parallels that mi

One we found that proved to be of great utility was an article dealin

use of force in guerilla warfare.3 Many might denounce any sort of 

between guerilla war and the Global War on Terrorism. I suggest, 

that the concepts are far more similar than dissimilar.

From an application of force perspective, my office came to sever

sions. Our first conclusion was that our forces should apply the law 

conflict in the face of the events of September 11th. United States fo

familiarity with these laws; they train using these laws and are comfo

hering to them. Secondly, US public support of military operations i

when our forces adhere to the law of armed conflict. Lastly, US adh

the law of armed conflict also helps ensure the support of US alli

were provided to our commander explaining why the US response 

tacks should comply with the law of armed conflict.

Another controversial area we have been facing is the requiremen

uniforms while conducting military operations in Afghanistan. A cri

ponent of receiving the privileges accorded a lawful combatant by th

Conventions is that, amongst other things, the individual wears a “

tinctive sign recognizable at a distance.”4

The mission of US special operations forces is to plan, prepare 

when directed, deploy to conduct unconventional warfare, foreign 

defense, special reconnaissance and direct actions in support of US 

policy objectives within designated areas of responsibility.5 There 

types of forces within the US Special Operations Command and e

has a different focus and mission. Some of our forces are designed 

scale operations and will always be in uniform while conducting o

Others, however, have mission profiles that require smaller groups t

244

3. Ken Brown, Counter-Guerilla Operations: Does the Law of War Proscribe Success?, 

REV. 123 (1997).

4. See Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug

U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, art. 4(2)(b), reprinted in DOCUMEN

LAWS OF WAR, supra note 2, at 234.

5. 10 U.S.C. § 167 (2000).

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more unconventional types of warfare. These sorts of operations oft

quire our forces to live with the indigenous force conducting the ca

In Afghanistan, this was the Northern Alliance. As was made cl

photographs broadcast by the media, many US forces, to blend in an

credibility, adopted at least some parts of the uniform worn by memb

Northern Alliance. Our office provided advice within our comman

requirement for our forces to wear a fixed, distinctive insignia in co

with the Geneva Conventions. Our advice was that although for go

tional reasons our forces might need to adopt some of the unifo

Northern Alliance, they must still have some type of insignia distinct

United States. Judging from the photographs displayed by the med

still an issue needing resolution. Our office continues to believe tha

this fixed distinctive insignia is required by the Third Geneva Conve

operates to protect our forces more than it does to identify them as 

One final thought based on comments I have read and heard tod

do with the relevancy of the existing laws of armed conflict and the 

mitment to comply with those laws. The United States has recen

drawn from the Anti-Ballistic Missile Treaty; will not ratify the Rom

enacting the International Criminal Court; has interpreted the Thir

Convention to not require Article 5 tribunals for determining the sta

tainees currently confined in Guantanamo Bay, Cuba; is reviewing 

on the use of nuclear weapons; and has announced a policy of preem

sponse to threats to our security. The events of September 11th 

change things. And, I for one do not believe we yet understand the m

of that change. The basis for the modern laws of war was after a tim

horror and reflect the thinking of that time. Have times changed to 

that those rules, restrictions, inhibitions are no longer sufficient? Or

ply that the United States needs a set of rules for its activities, with 

else following the old rules? Whatever the case, the United States 

tinue to protect its citizens and sovereignty.

245

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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, an

no overlap between them. First of all, the aggressor (pursuant to t

bellum) may conduct hostilities in an impeccable way from the stan

the jus in bello, and the state resorting to self-defense (under the jus a

may conduct hostilities in a manner incompatible with the jus in be

sometimes the same party is held accountable for flagrant aggression (

jus ad bellum) and for the most horrendous war crimes (in violation of 

bello). The paradigmatic case is the Nazi record in World War II. 

here, let us not forget that the Nazis were not the only ones who disreg

jus in bello. The Soviet march to Berlin in 1945 was regrettably acc

by hundreds of thousands of cases of rape of German women.1 Th

breaches of the jus in bello do not diminish one iota from the fact t

Germany that invaded the USSR in Operation BARBAROSSA in Ju

Consequently, responsibility for the war of aggression (in conformity 

jus ad bellum) was incurred exclusively by the Nazis.

Secondly, the issue of proportionality—which is of consequence b

jus ad bellum and in the jus in bello—has a totally different meanin

body of law. In the context of the jus in bello, proportionality denote

lateral damage to civilians must not be excessive compared to th

1. ANTHONY BEEVOR, THE FALL OF BERLIN, 1945 (2002)

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advantage anticipated in the attack. This requires a balancing act be

expected casualties among combatants and civilians. Insofar as t

bellum is concerned, there is also a balancing act between casualties 

in an armed attack and in a defensive armed reprisal carried out in 

However, if we are talking about war of self-defense in response to an 

tack of a critical nature, no such balance is required. The best exam

of Pearl Harbor and the Pacific War. The Japanese attack of 7 D

1941 was of critical significance, since it altered the entire strategic 

in the Pacific. Hence, it justified the American declaration of w

defense. As we all know, by the time the Pacific War was over, the

proportion between the number of American casualties sustained in P

bor (or for that matter thereafter) and the countless Japanese losses 

out the war and especially towards the end (when Japanese c

pulverized by both conventional and unconventional weapons). Th

proportionality in losses and counter-losses was irrelevant under t

bellum. Once the Japanese attack in Pearl Harbor justified a war of se

on the part of the United States, that war could be fought—as it wa

finish, irrespective of total numbers of casualties.

Adam Roberts

I believe there is some overlap between jus ad bellum and jus in bell

comes to the impact that they have in public debate. They are not i

separate watertight compartments. Charles Garraway put it particula

when he quoted from the US Standing Rules of Engagement that 

crucially important that irrespective of the circumstances in which 

gins, irrespective of the jus ad bellum, the jus in bello be observed. It 

position that these two areas be completely confused with each oth

that there is some degree of overlap occurring inevitably in public de

On the Power of the Security Council

Yoram Dinstein

In accordance with the UN Charter, members of the organization are 

carry out decisions of the Security Council, especially in matters affec

and security.2 In practice, when the Security Council states in a resol

it is acting under Chapter VII of the Charter,3 this is understood to 

248

2. U.N. CHARTER, arts. 25, 48.

3. U.N. CHARTER, arts. 39-51.

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text is binding. Moreover, Article 103 of the Charter proclaims th

event of a conflict between the obligations of member states under th

and their obligations under any other treaty, the Charter obligation

The upshot is that, when the Security Council creates obligations for 

state thorough a legally binding decision, the state has to observe th

Council decree irrespective of any other conflicting obligation. The c

obligation may be derived from the Geneva or Hague Conventions 

the law of armed conflict. Notwithstanding their venerated status, the

ments must give ground to any obligation based on the Charter. Th

happened in 1990, in the Gulf War with Iraq, when the Security Co

posed a blockade going beyond the general rules regulating blockade 

conflict. The Security Council had the authority to do this by virtue 

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 ope

within a state. They may mount their attack against targets in the sam

they can use their bases in that state for attacks against other states

tional law obligates a state not to allow its territory to be used as a sp

for attacks by terrorists against another state. If the local state in unab

inate the terrorists, that does not mean that the aggrieved state must 

In the absence of effective action by the local state, the aggrieved for

may send an expeditionary force into the territory of the state where t

ists have their bases, with a view to taking them out. But then all actio

directed against the terrorists, and not against the local government

The question in Afghanistan was not simply whether the Unit

could enter its territory in order to eradicate al Qaeda. The que

whether the United States could target only al Qaeda fighters on A

or also members of the Taliban forces. In my opinion, the Taliba

themselves up to an American use of force because the regime ratifi

tions of al Qaeda of 11 September 2001. Between September 11th a

ber 7th, the United States tried to persuade the Taliban to extr

Laden and otherwise disassociate themselves from al Qaeda. The T

nored this pressure and refused to cooperate with the United Stat

249

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the warnings by the United States and the strong language used in 

Council Resolution 1373.4 Thereby the Taliban regime aligned itse

Qaeda and turned its own forces into legitimate targets for American 

self-defense against the armed attacks of September 11th.

An analogy for this type of retroactive ratification by a governm

misdeeds of non-state actors can be found in Iran in 1979. The Ayat

gime in Iran in 1979—just like the Taliban regime in Afgha

2001—endorsed unlawful action against the United States by non

tors. In 1979, that unlawful action consisted of the takeover of th

bassy by militant students. In 2001, it was the al Qaeda outrages of S

11. In both instances, the original armed attack was carried out b

without the apparent advance approval of the local governm

Ayatollah’s and the Taliban, respectively). But in both instances, 

government assumed full responsibility for the armed attack, and e

self to counteraction by way of self-defense. In the case of Iran, the 

teraction was ineffective. In the case of Afghanistan, the US coun

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 violat

jus in bello. the question is whether, in light of the presence of th

shields, the other belligerent party must abort an attack against the m

get, bearing in mind the expected high number of civilian casualtie

likely to ensue. In my opinion, in such instances, the proportionality 

(which forbids excessive collateral damage to civilians) need not be 

the usual manner. Much more latitude has to be given to the attack

the high number of civilian casualties is deliberately induced by th

That is to say, an attack that would otherwise be unlawful due to exc

lateral damage to civilians would be permissible when caused by th

abuse of the law. When shielding a military target with civilians, th

the civilians will normally stain the hands of the defending rather 

attacking side.

250

4. Resolution 1373 required, amongst other things, that states shall “refrain from p

type of support . . . to entities or persons involved in terrorist attacks.” See S. C. Res

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

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On the Currency of the Law of Armed Conflict

Adam Roberts

There currently exists a problem with certain areas of the law of arme

This may partly be a problem of some international agreements concl

considerable pressure from non-governmental organizations and inte

governmental organizations that have considerable support from leg

ers but about which major powers that may have to engage in war ha

reservations. There is a possible disjunction there that needs to be t

ously. I am not suggesting that the existing body of law is perfect. For 

the UK’s reservations to Geneva Protocol I are extremely long and co

sive. And in my view, despite the recent movement by negotiators to a

limit reservations to treaties such as the International Criminal Cour

posterous to prohibit reservations. Any major military power should a

able to make reservations in some form. However, suggesting that 

need for completely new law dealing with terrorist operations may be 

a more evolutionary kind of approach based on the practice of states i

ary international law may be more appropriate.

Unprivileged Combatants

Yoram Dinstein

Civilians who choose to act as combatants without wearing uniforms 

fixed distinctive emblems) do not commit war crimes. But they exp

selves to attack as combatants, and, most significantly, they are deem

ful (or unprivileged) combatants and therefore are not entitled to th

prisoners of war. Absent that status, they can be detained or put on t

mestic courts for ordinary crimes such as murder, assault, or arson. 

rule applies to combatants who fight out of uniform, do not carry t

openly, etc. The latter rule determines the fate of Taliban and al Qaed

(currently in Guantanamo Bay and other places of detension). But it 

true of Central Intelligence Agency (CIA) operatives and other A

who participated in hostilities in Afghanistan out of uniform. Had 

captured by the enemy, they would have not qualified for protection 

Geneva Convention (III) Relative to the Treatment of Prisoners of 

The decision to forego protection pursuant to the jus in bello may 

erate. There is a cost/benefit calculus, and the CIA probably reached 

clusion that it was willing to run the risk (especially since, in any e

Afghan reputation in terms of compliance with the Geneva Conv

251

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regards to prisoners of war leaves a lot to be desired). There are 

stances in which risks are deliberately assumed in view of the con

the situation. For example, in some armed conflicts, the enemy is 

concentrate fire on members of the medical personnel in the field

wearing the distinctive armband of the Red Cross (or its equivalent

ber of armed forces therefore instruct their medical personnel to rem

armband. There is nothing wrong with such instructions, but it mus

in mind that the consequence is liable to be loss of protection u

Geneva Conventions. Of course, once they remove their armband

the protection afforded by the Conventions, members of the medic

nel may as well behave as full-fledged combatants (actively partic

hostilities), neither seeking nor dispensing any protection from atta

Charles Garraway

I am not convinced that a medic can actually give up his prote

may choose not to wear the armband that indicates that he is protec

the Geneva Conventions but the fact remains that if he is a medic e

full-time medical duties, he is entitled to the protections of the Gen

ventions. The difficulty arising from not wearing an armband is one 

tion for the enemy. However, if the enemy knows he is a medic 

acting as a medic, despite the fact that he is not wearing a Red Cross 

he may not be targeted.

An issue related to this which causes much concern is that of the 

of combatants. As you know, combatants are by definition permitted 

direct part in the hostilities and it seems that many states are tak

rower and narrower view of what it means to take a direct part in ho

an effort to save costs by using civilians in positions historically filled 

bers of the armed forces. This issue is a fundamental one and should 

studied to determine what exactly is meant by taking a direct p

hostilities.

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Panel III

Thursday—June 27, 2002

8:30 AM–12:30 PM

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

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XIII

The Legality of Maritime Intercepti

Interdiction Operations Within

the Framework of

Operation ENDURING FREEDOM

Wolff von Heinegg1

Object and Purpose of Operation ENDURING FREEDOM

hile Operation ENDURING FREEDOM covers a wide set of 

against international terrorism, the naval forces deploy

Horn of Africa and in the sea areas around the Arab peninsula have a 

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 prevent

from supporting and financing international terrorism;

• elimination of terrorist command and training facilities; and

• capture of international terrorists for the purpose of prosecutin

1. Wolff von Heinegg is a Professor of International Law at Europa-University 

(Oder), Germany.

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The tasks presuppose a sound knowledge of the geography and 

present in the sea area concerned. The naval units, therefore, hav

cisely and comprehensively monitor sea and air traffic. Intelligence 

and surveillance by means of the electronic and other equipment 

such warships does not create any significant legal problems, since i

interfere with the rights of other states. If such equipment is used d

sage in the territorial sea of another state, in principle, the prohibiti

in Article 19 of the UN Convention on the Law of the Sea (herein

Convention) must be observed.2 Activities “prejudicial to the peace

security of the coastal state” are, however, to some extent modified 

herent right of self-defense found in both Article 51 of the UN Ch

customary international law. As soon as there is reasonable grounds 

a concrete threat against the vessel or its personnel exists, the warshi

titled to take all measures necessary to neutralize or eliminate the th

256

2. Article 19 of the UN Convention on the Law of the Sea provides that “[p]assage 

so long as it is not prejudicial to the peace, good order or security of the coastal Sta

prejudicial to peace, good order or security of the coastal state includes a foreign ship 

any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or p

independence of the coastal State, or in any other manner in violation of the pr

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 sec

the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coasta

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary 

customs, fiscal, immigration or sanitary laws and regulations of the coastal Stat

(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 an

facilities or installations of the coastal State;

(l) 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

BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW SELECTED D

(2001), at 553 [hereinafter INTERNATIONAL LAW SELECTED DOCUMENTS].

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Within a foreign territorial sea, replenishment at sea would be co

Article 19(g) of the LOS Convention, unless the coastal state exp

thorized it. All other activities, not listed in Article 19 UNCLOS ar

ted. Importantly, coastal states may not require warships to notify 

their passage in advance or to make that passage subject to prior 

This, a fortiori, holds true for transit passage through international str

as in the Strait of Bab el Mandeb.

The purpose of this article is not to analyze each of these issues, 

Instead, the emphasis of this article is on the basis for, and legality of, 

interception/interdiction operations.

Legality of Maritime Interception/Interdiction Operations

Given that flag states exercise exclusive jurisdiction over “their” 

sea areas beyond the territorial sea of third states, the question ar

whether coalition members in the Global War on Terror may inte

such vessels if the flag state has not consented or has expressly 

Moreover, even if the flag state is obliged to tolerate maritime interc

terdiction operations (MIO) against its shipping, the applicable leg

must be understood for such operations. This is particularly true to

though MIO is currently being conducted by the United States and 

members in Operation ENDURING FREEDOM, the UN Security Co

neither imposed such an obligation on flag states nor expressly auth

United States and its coalition members to conduct such operation

Legal Basis For MIO

What then is the legal basis for the United States and coalition mem

duct of MIO in support of Operation ENDURING FREEDOM? It must fi

phasized that international law permits interference with foreign sh

cargo and their crew/passengers only when:

257

3. In their joint statement agreed upon in Jackson Hole on 23 September 1989 the fo

Union and the United States emphasized that “the provisions of the 1982 Uni

Convention on the Law of the Sea, with respect to traditional uses of the ocean

constitute international law and practice and balance fairly the interests of all Sta

DEPT. STATE BULL. 25f. (December 1989), reprinted in 14 LAW OF THE SEA BUL

(December 1989).

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a treaty rule exists that expressly provides for interference such 

case of piracy4 or severe pollution of the marine environment,5 or

• the interfering state finds itself in a special situation, i.e., in an int

armed conflict. 6

In the latter situation the parties of the conflict are not limite

search, and capture of only enemy vessels. Rather, according to t

maritime neutrality,7 each state party may also take measures again

flying the flags of third/neutral states to include visit and search, cap

in exceptional circumstances, even to the destruction of those ve

long as these measures conform with the law of naval warfare and wi

of maritime neutrality, flag states must tolerate them. The reason f

quirement stems from the merging in certain aspects of the law of p

the law of war. Given the existence of the UN Charter, the following 

ations are now decisive:

In the absence of a Security Council resolution affirmatively ident

aggressor state, it remains essential, in view of the continuing objec

pose of international law to secure international peace and securit

vent the escalation of an ongoing international armed conflict. Th

258

4. See LOS Convention, supra note 2, at art. 105, reprinted in INTERNATIONAL LAW 

DOCUMENTS at 582. Note, however, that the customary definition of piracy is broad

agreed upon in the LOS Convention. See A.P. Rubin, The Law of Piracy, 63 INT’L L

337 (1988). For measures that may be taken against pirates, see S.P. Menefee, F

Intervention in Cases of Piracy: Problems and Strategies, 14 INT’L J. MARINE AND COA

(1999).

5. See, e.g., LOS Convention, supra note 2, at art. 220, para. 6, reprinted in INTE

LAW SELECTED DOCUMENTS at 621. See also, Myron H. Nordquist, UNITED 

CONVENTION ON THE LAW OF THE SEA 1982, A COMMENTARY, Vol. IV, at 301 (D

al. eds., 1991); T. Treves, Intervention en haute-mer et navires étrangers, XLI 

FRANÇAIS DE DROIT INTERNATIONAL 651 (1995).

6. For the measures that may be taken against (neutral) merchant vessels see 

MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SE

67, 118, 146 (Cambridge Univ. Press, 1995) [hereinafter SAN REMO MANUAL]. 

HEINTSCHEL v. HEINEGG, SEEKRIEGSRECHT UND NEUTRALITÄT IM SEEKRIEG, 

567, 582 (Berlin 1995) [hereinafter SEEKRIEGSRECHT UND NEUTRALITÄT IM SEEK

7. The exact status of the traditional law of neutrality is far from clear. On the one 

are overlaps with political concepts of neutrality. On the other hand, the scope of 

(only in a “war” strictu sensu?) is highly disputed. Still, with regard to the maritime a

law of neutrality some rules and principles have developed that are met by wide agr

e.g., Helsinki Principles on the Law of Maritime Neutrality, in 68 INT’L L. ASSO

(1998) [hereinafter Helsinki Principles].

8. Cf. SAN REMO MANUAL, supra note 6, at paras. 67, 118, 146. See also, SEEKRIEGS

NEUTRALITÄT IM SEEKRIEG, supra note 6, at 567, 582.

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includes limiting and preventing the involvement of third states and 

tionals. This indeed is the main objective of the law of maritime neut

the one hand, according to that law, the parties to the conflict are, 

ple, obliged not to interfere with neutral vessels and aircraft. On 

hand, neutral vessels and aircraft are prohibited from contributing to 

fighting efforts of one party to the disadvantage of the other party to 

flict.9 If neutral vessels and aircraft violate these rules designed to s

protection, they lose their protected status.10

According to the law of maritime neutrality, the parties to the co

entitled to monitor neutral shipping and neutral aircraft in order t

they are abiding by the prohibitions on non-neutral service. Flag st

tolerate these measures11 and possess very limited means to preven

ties to the conflict from interference.

Importantly, the foregoing principles only apply in internation

conflicts. In cases of inner disturbances and of internal armed con

parties may not, beyond their own territorial sea, interfere with for

ping and aviation, unless the measures taken are in conformity with 

the sea or with other rules of international law.12

259

9. See generally Chap. 7, ANNOTATED SUPPLEMENT TO THE COMMANDER’S HAN

THE LAW OF NAVAL OPERATIONS (A. R. Thomas and James Duncan eds., 1999) 

Naval War College International Law Studies) [hereinafter ANNOTATED SUPPLEM

10. In this context, two situations must be distinguished: Neutral vessels actively p

in the hostilities or being integrated into the enemy’s command, control and inform

are legitimate military objectives in the sense of Article 52, para. 2 of Additional Pr

the corresponding customary law. See 1977 Geneva Protocol I Additional to 

Conventions of 12 August 1949, and Relating to the Protection of Victims of I

Armed Conflicts, Articles 52(2), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 1 

GP I], reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard 

3rd ed., 2000), at 419 [hereinafter DOCUMENTS ON THE LAWS OF WAR]. Thus, 

may be attacked and sunk without prior warning. If, however, neutral merchant ve

assist the enemy, by, e.g., transporting contraband, they may only be captured an

preconditions are fulfilled, seized according to the law of prize. If the latter vessels r

they may also be considered legitimate military objectives. See ANNOTATED SUPPLE

note 9, at para. 7.10.

11. Such measures include the stopping, visit, search and diversion (for the purpose 

merchant vessels. See SAN REMO MANUAL, supra note 6, at para 118; Helsinki Prin

note 7 at 5.2.1.

12. Hence, the legality of measures taken by France during the Algerian crisi

doubtful. For an evaluation see L. Lucchini, Actes de contrainte exercés par la France e

au cours des opérations en Algérie, XII ANNUAIRE FRANÇAIS DE DROIT INTERN

803–822 (1966).

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The present situation of the war on terrorism can be characteriz

ther an internal nor an international armed conflict strictu sensu. An 

tional armed conflict presupposes that at least two states are invo

though the United States has been (and most probably is and will be

tim of acts of international (transborder) terrorism that can be equa

armed attack in the sense of Article 51 of the UN Charter, there (

other state to whom these acts can be attributed. While it might h

possible to attribute certain terrorist activities to Afghanistan or th

regime in the past, in view of the changed circumstances, this is no lo

sible. Therefore, MIO directed against the shipping of third states s

prohibited if it is not based upon the consent of the flag state or 

mented against the express will of the flag state. Clearly, this is true 

no treaty rule expressly providing for MIO.

Analogizing MIO to anti-piracy measures does not help either. I

tional terrorists could be considered pirates in the sense of 

Convention, every state would be entitled to take measures agains

sea areas beyond the sovereignty of their state. However, this woul

pose that terrorists have taken control over a respective ship, a rathe

nario. More importantly, however, is the absence of such an e

analogy in international law—insofar as there exist special rules 

dealing with international terrorism and it is impossible to detect 

juris of states that the rules on piracy are applicable to acts of interna

rorism.13

However, such tortured constructions are not necessary in conclu

current MIO performed by the United States and its coalition partn

around the Persian Gulf states is legal. Recall that by Resolution 136

curity Council:

calls on all States to work together urgently to bring to justice the perpe

organizers and sponsors of these terrorist attacks and stresses tha

responsible for aiding, supporting or harbouring the perpetrators, organi

sponsors of these acts will be held accountable.14

260

13. An example of how that could be achieved is the 1937 Nyon Agreement—by w

attacks by unidentified submarines were considered acts of piracy. See Nyon Agre

L.N.T.S. 137-40, 151, reprinted in THE LAWS OF ARMED CONFLICTS:ACOLL

CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS (Dietrich Schindler and 

eds., 3rd ed. 1988) at 887, 889. For an analysis of the Nyon Agreements, see L.

Commentary on the 1937 Nyon Agreements, in THE LAW OF NAVAL WARFARE.AC

OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES, 489 (N. Ronzitti ed., 

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

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In Resolution 1373 the Security Council is more precise by decidin

states shall, inter alia,

[p]rohibit their nationals or any persons and entities within their territor

making any funds, financial assets or economic resources or financial o

related services available, directly or indirectly, for the benefit of perso

commit or attempt to commit or facilitate or participate in the commi

terrorist acts, of entities owned or controlled, directly or indirectly, by such 

and of persons and entities acting on behalf of or at the direction 

persons;...

(a) Refrain from providing any form of support, active or passive, to 

or persons involved in terrorist acts, including by suppressing recruit

members of terrorist groups and eliminating the supply of wea

terrorists;

(b) Take the necessary steps to prevent the commission of terror

including by provision of early warning to other States by exch

information;

(c) Deny safe haven to those who finance, plan, support, or commit 

acts, or provide safe havens;

(d) Prevent those who finance, plan, facilitate or commit terrorist a

using their respective territories for those purposes against other S

their citizens;

(e) Ensure that any person who participates in the financing, pl

preparation or perpetration of terrorist acts or in supporting terroris

brought to justice and ensure that, in addition to any other measures 

them, such terrorist acts are established as serious criminal offe

domestic laws and regulations and that the punishment duly refle

seriousness of such terrorist acts;...

(g) Prevent the movement of terrorists or terrorist groups by effective 

controls and controls on issuance of identity papers and travel doc

and through measures for preventing counterfeiting, forgery or fra

use of identity papers and travel documents;...15

This implies, for example, that states may not (knowingly) allow their n

ships and aircraft to transport international terrorists and goods that ar

to further acts of international terrorism. If they obtain knowledg

261

15. S. C. Res. 1373, para. 1d, 2a, 2e, U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2

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activities they must take the necessary preventive or suppressive measu

willingly abstain from such measures they are not only in breach of th

tions under the UN Charter but may also become legitimate targets of se

measures if abstention is equated to permitting the activities concerne

But even if such private acts may not be attributed to another stat

flag state is unable to take the necessary measures according to R

1373, abstaining from action would still have to be considered a bre

ternational law. In such cases third states are entitled, in lieu of the 

primary responsibility for acting, to take the necessary measures to 

requirements of Resolution 1373. It would be incompatible with R

1373 to permit a flag state to object to MIO by claiming the right of 

eignty or the lack of explicit consent. As the Security Council has m

dantly clear, international terrorism is a threat to international p

security that must be eliminated.16 Accordingly, if a vessel is on the 

and is suspected of carrying international terrorists or weapons desti

ternational terrorists it is not necessary to inform the flag state in ad

cause requiring such notice would jeopardize the effectivenes

international efforts against international terrorism in an intolerable 

To this point, this article has dealt with situations in which all pa

have knowledge of the presence of either terrorists or certain cargo o

vessel or aircraft. The question remains whether measures seeking sim

ify whether there is some involvement in international terrorism ca

considered as in accordance with international law in cases where t

state counterpart. Recall in this context that vessels and aircraft regu

ate at great distance from the territories of their respective flag states

authorities are generally ignorant of the route, of the cargo and of the 

passengers on these vessels and aircraft. Even if they are in possession 

formation, the information may be inaccurate or false. Only in excepti

will the national authorities be in a position to control or otherwise ver

racity of a described route or of a passenger or cargo manifest. If, howe

sel with international terrorists on board reaches its point of destinatio

attacks like those seen on September 11th could be expected. States o

the flag state are therefore entitled to prevent this as early as possible. T

is only feasible if the vehicles in question can be controlled. Hence, the 

must tolerate such control measures because they merely serve the p

262

16. Id. at preamble. See also S. C. Res. U.N. SCOR, 55th Sess., U.N. Doc. S/126

which the Security Council, inter alia, condemns “all acts of terrorism, irrespectiv

wherever and by whomever committed.”

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countering international terrorism as effectively as necessary. If such c

veals that the vehicle in question is incorporated into the network o

tional terrorism or is otherwise assisting it, all further adequate measur

capture, may be taken.

As far as the transport of weapons to Somalia is concerned a spec

ensues from Resolution 1356.17 In paragraph 1 of that resolution, th

Council “reiterates to all States their obligation to comply with the 

imposed by Resolution 733 (1992), and urges each State to take the 

steps to ensure full implementation and enforcement of the arms e

Although the second part of this paragraph speaks to measures 

obliged to take in the sphere of their national jurisdiction, it nonet

lows from the first part that Resolution 73318 continues to be fully in 

applicable. Paragraph 5 of this resolution states:

that all States shall, for the purpose of establishing peace and stab

Somalia, immediately implement a general and complete embargo 

deliveries of weapons and military equipment to Somalia until the 

decides otherwise.19

One means of implementing this weapons embargo is through th

measures provided for in paragraph 5 of Resolution 733. After all, wit

national measures an arms embargo would not make much sense. Stil

to fully comply with Resolution 733, states need not merely confine th

to national measures. According to Resolution 733 they are to imp

“complete” and “general” embargo. Hence, embargo measures mus

cover all arms, weapons and the like (complete), but must also be 

against all actual and potential suppliers (general). If a state complie

obligation by controlling the sea and air traffic to Somalia, it is allow

and search any vessel or aircraft that is reasonably suspected of bein

in the transport of arms because only by such control can a “general

be effectively implemented. A feasible understanding of Resolution 7

the wide meaning of “implement” then, authorizes states to conduc

weapons destined for Somalia. Accordingly, the United States and its 

partners are not restricted only to measures against vehicles flying 

flags or bearing their own markings.

263

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.

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Some commentators may not be inclined to subscribe to such an 

tation of Resolutions 1356 (in connection with Resolution 733) an

the Security Council has neither authorized MIO explicitly nor 

member states to tolerate such interference with their merchant shi

civil aviation. However, even if this position is not shared by the r

world, MIO by the United States and its coalition partners would co

be legal provided it was done as part of the exercise of these states’ rig

dividual and collective self-defense.

Clearly, the UN Security Council, by expressly reaffirming the rig

defense in the context of the terrorist attacks on the United States in i

tions 1368 and 1373, has acknowledged the so-called Anglo-America

of self-defense,20 i.e., a broad interpretation of Article 51 of the UN Ch

of the customary inherent right of self-defense. In his press statement 

ber 2001 the President of the Security Council, Richard Ryan, declar

[t]he members of the Security Council took note of the letters t

representatives of the United States and of the United Kingdom sent ye

to the President of the Security Council, in accordance with Article 5

United Nations Charter, in which they state that the action was t

accordance with the inherent right of individual and collective self-

following the terrorist attacks in the United States of 11 September 20

The permanent representatives made it clear that the military acti

commenced on 7 October was taken in self-defense and directed at te

and those who harboured them. They stressed that every effort was bein

to avoid civilian casualties, and that the action was in no way a strike aga

people of Afghanistan, Islam or the Muslim world.

The members of the Council were appreciative of the presentation mad

United States and the United Kingdom.21

Hence, self-defense is permitted not only in situations where a state, e

its armed forces or in some other way attributable to it, attacks ano

but also where armed force is used against a state from outside its bor

when that use of force cannot be attributed to another state.22 This 

264

20. Cf. Alberto Coll, The Legal and Moral Adequacy of Military Responses to Terroris

AM. SOC. INT’L L. 297, at 305 (1987).

21. Ambassador to the UN Richard Ryan, President of the Security Council, Pres

(Oct. 8, 2001).

22. The same position is taken by T. Bruha & M. Bortfeld, Terrorismus und Selbstve

VEREINTE NATIONEN, 161, at 165 (2001).

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can be labelled a self

defense situation in a material sense only. Alth

interpretation might exceed the wording of Article 51 UN Charter, i

exceed the inherent, i.e., customary, right of self-defense.

This is confirmed by the reactions of the international community 

termath of the September 11th attacks. On 12 September the North 

Council stated:

[t]he Council agreed that if it is determined that this attack was direct

abroad against the United States, it shall be regarded as an action cov

Article 5 of the Washington Treaty, which states that an armed attack 

one or more of the Allies in Europe or North America shall be consid

attack against them all.23

Moreover, the Organization for Security and Cooperation in 

(OSCE)24 as well as the majority of states obviously consider th

States as the state most entitled, according to the right of self-defens

bat international terrorism by all necessary means.

Resolutions 1368 and 1373 must be understood in this broad sen

wake of September 11th, the Security Council has not by chance t

firmed the right of self-defense. Nor has it pursued some kind of s

policy in case that in some distant or near future the direct involve

foreign state can be proved. The express reaffirmation of the right 

fense is contingent on the character of the terrorist attacks themselv

not based on the amount of damage done or lives lost, but instead be

attacks did not originate from US territory and could be carried out 

to the transnational character of the terrorist network. This network 

operates world-wide but it is also able to evade control by the auth

the state in which it resides.

It can not be excluded that in some cases, state authorities acquie

planning, organizing and execution of terrorist acts. In view of the spe

acter of the al Qaeda network, it was not necessary for the Security C

identify a state against which self-defense measures could be taken

form of international terrorism is far different from the context 

sponsored” terrorism or of a “classical” armed attack. This does not m

265

23. NATO Press Release 124 (Sep. 12, 2001), available at http://www.nato.int/do

p01-124e.htm (Nov. 21, 2002).

24. OSCE Ministerial Council Decision No. 1, Combatting Terrorism (MC

Dec. 4, 2001), available at http://www.osce.org/events/mc/romania2001/documen

1007474752_o.pdf (Nov. 21, 2002).

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criteria used in identifying and evaluating these are no longer of r

Armed attacks and sheltering terrorists may be very different and 

may not necessarily trigger the right to self-defense.25 However, 

clearly instances where acts of international terrorism can be attribu

other state.

Although no state currently exists against which the terrorist ac

attributed and that therefore could be the legitimate object of measu

in self-defense, the potential target states of international terrorism 

obliged to adopt a wait-and-see policy until there is sufficient eviden

(direct) involvement of a foreign state or even until further terrori

occur. To the contrary, the United States and its coalition partners 

tled to take all measures reasonably necessary to prevent such attack

and as effectively as possible. Such measures do not merely include 

ture of international terrorists and of weapons or other goods de

them. The United States and coalition partners may also control inte

shipping and aviation in order to verify the innocent status of such 

and aviation. Of course, MIO are governed by the principle of pro

ity.26 Accordingly, they can be based upon the right of self-defen

there are sufficient intelligence indicators of the integration of the af

hicles into conspiracies to commit, or acts of, international terrori

criminate implementation and enforcement of MIO covering vast 

would be disproportionate and not justified by the right of self-defen

tations such as these are observed, affected states are obligated t

these measures. Moreover, there is no need for prior approval or c

third states as it is neither feasible nor compatible with the right o

fense. Were this the case, the inherent right to self-defense would 

gated to the will of third states. Article 51 of the UN Charter provide

for such an understanding. Interestingly, no state has yet objected to 

ity of MIO in the framework of Operation ENDURING FREEDOM.

The validity of the above findings is confirmed by the parallels be

given situation and an international armed conflict at sea. In such a co

irrelevant whether one of the parties violated the jus ad bellum.27 Ins

266

25. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v

I.C.J. 14, at 104 (1986), available at http://www.icj-cij.org/icjwww/icases/inus/inu

(Nov. 21, 2002) [hereinafter Nicaragua Case].

26. For the validity of the principle of proportionality in the context of self-defe

further references, see A. Randelzhofer, Article 51, CHARTA DER VEREINTEN N

KOMMENTAR, at note 37 (B. Simma ed., 1991).

27. See SEEKRIEGSRECHT UND NEUTRALITÄT IM SEEKRIEG, supra note 6, at 86.

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party is entitled to verify by appropriate control measures, like visit an

whether neutral merchant vessels and civil aircraft are contributing 

spective enemy’s war-fighting efforts.28 According to the law of mari

trality, neutral states are obligated to tolerate these measures in order 

an escalation of the conflict and in order to meet the interests of the 

the conflict.29 This also holds true if further measures are taken, such 

neutral merchant vessel is incorporated into the enemy’s intelligence 

The flag state of the merchant vessel has no right to interfere or to 

prevent a belligerent from capturing or even sinking the vessel.

While the current situation differs from an international armed conf

as there is no “enemy state,” this is not sufficient grounds to remove t

third states to tolerate interference with their merchant shipping and 

tion. In an international armed conflict that obligation exists for the m

that the parties to the conflict have decided to take such measures. As l

Security Council has not authoritatively identified one of the belligere

aggressor, the duty of toleration persists. A fortiori this must hold true if 

rity Council has expressly affirmed the existence of a self-defense situa

though there is no state to which the attacks can be attributed.

For these reasons the United States and its coalition partners are e

establish maritime interdiction areas, i.e., to restrict access to certain se

the shipping and aviation of third states.31 These areas should not be 

with safety zones32 because they are not primarily designed to serve th

267

28. See SAN REMO MANUAL, supra note 5, para. 118; Helsinki Principles, supra not

G.P. POLITAKIS, MODERN ASPECTS OF THE LAWS OF NAVAL WARFARE AND 

NEUTRALITY, at 529 (1998) [hereinafter MODERN ASPECTS].

29. SAN REMO MANUAL, supra note 5, para. 118; Helsinki Principles, supra note 

MODERN ASPECTS, supra note 28, at 529.

30. See SAN REMO MANUAL, supra note 6, para. 67; SEEKRIEGSRECHT UND NEUT

SEEKRIEG, supra note 6, at 5.2.1.

31. For the equivalent of such zones in the law of naval warfare see SAN REMO MA

note 5, para. 105.

32. Such safety zones are sometimes labelled “naval vessel protection zones.” See, e.g

Navigation Areas and Limited Access Areas, 33 C.F.R. § 165 (2002). See also A

SUPPLEMENT, supra note 9, at 7.8, which provides that:

[w]ithin the immediate area or vicinity of naval operations, a belligerent may e

special restrictions upon the activities of neutral vessels and aircraft and may 

altogether such vessels and aircraft from entering the area. The immediate 

vicinity of naval operations is that area within which hostilities are taking 

belligerent forces are actually operating.

The legality of such safety zones is undisputed. See, inter alia, D.P. O’CONNELL, THE IN

LAW ON SEA POWER at 168 (1975); G.P. POLITAKIS, MODERN ASPECTS, supra note 

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a warship or unit but to instead facilitate the identification of vesse

craft or to prevent international terrorists or weapons destined for t

getting access to the area concerned. Hence, the legal basis of marit

diction areas is to be found in Resolution 1373 and in the right of 

and collective self-defense. Note also that according to customary 

tional law they are entitled to temporarily make exclusive use of rest

areas for military and security purposes.33 However, it follows from t

ple of proportionality that the exact coordinates of the sea areas a

well as the measures to be taken there have to be published in advan

by a Notice to Mariners/Airmen. Moreover, foreign ships and aircraft 

be prohibited from entering the area as long as doubts persist about t

tity, their cargo, their crews, and their passengers. If they refuse to giv

evant information or if they continue their journey regardless o

warning all necessary measures may be taken against them.

Legal Restrictions

The United States and its coalition partners are limited by more th

the principle of proportionality however. If the jus in bello and the la

time neutrality are understood as an order of necessity, internationa

vides for situations in which two or more states consider themselves 

adhere to the prohibition on the use of force,34 then the legal restric

down in that order of necessity, a fortiori, must be observed in situatio

268

33. Cf. J. Astley & Michael Schmitt, The Law of the Sea and Naval Operations, 42 AF

(1997); Ch. E. Pirtle, Military Uses of Ocean Space and the Law of the Sea in the New M

OCEAN DEVELOPMENT & INT’L L. 7 (2000); R. Wolfrum, Military Activities on th

What are the Impacts of the U.N. Convention on the Law of the Sea?, in THE LAW 

CONFLICT: INTO THE NEXT MILLENIUM at 501 (Michael Schmitt & Leslie Green 

(Vol. 71, US Naval War College International Law Studies). It may be added that th

seas freedoms in Article 87, paragraph 1 of the LOS Convention is not exhaustive. A

these freedoms also include the use of the high seas and of EEZ areas for milita

Moreover it is clear from the second sentence of that paragraph that freedom of the 

not only “exercised under the conditions laid down by this Convention” but also “b

of international law.” See LOS Convention, supra note 4, at art. 87. The military uses 

areas (including EEZ areas) is governed by customary international law, by the l

warfare and by the law of maritime neutrality. Accordingly, and since milita

traditionally have been conducted in those sea areas, such uses are generally acknow

part of customary international law.

34. For this characterization see W. Heintschel v. Heinegg, The Current State of 

Prize Law, INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, 5–34 (H.H

1994).

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not yet amount to an international armed conflict strictu sensu.

Hen

conducting MIO, states are obliged to comply with the international 

legal requirements of the law of naval warfare and of the law of 

neutrality.

To begin with, they have to distinguish between state vessels an

on the one hand and other vehicles on the other hand. State vesse

craft enjoy sovereign immunity and may not be interfered with un

pose an imminent threat. That immunity is extended to mercha

travelling under the convoy of a warship. Therefore these mercha

are, in principle, exempt from the exercise of the right of visit and 

However, the commander of the accompanying warship is obliged t

all information as to the character of the merchant vessel and its ca

If not travelling under convoy, foreign merchant vessels may be re

provide all information necessary to verify their identity, their de

their route, their crews, their passengers and their cargo. If they refu

vide this information, or if they otherwise try to evade identification

sures necessary to enforce the duty of identification and informatio

taken against them. Here again, the principle of proportionality ap

cordingly, the use of armed force is admissible only as an ultima ratio 

weapons may only be employed if there are no other means to stop 

or to prevent it from escape. Regularly, a warning shot fired away from 

sel will suffice. If not, it may be forced to stop by a shot into the rud

269

35. The International Court of Justice, in the Corfu Channel and in the Nica

referred to Hague Convention VIII of 1907 although in both cases there existed no i

armed conflict. See Corfu Channel (Merits) (U.K. v. Alb.), 1949 I.C.J. 4 (Ap

[hereinafter Corfu Channel]; Nicaragua Case, supra note 25 at 112. See also Convent

to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332 

Hague VIII]. The principles laid down in Hague VIII were characterized by the IC

general and well recognized principles, namely: elementary considerations of hum

more exacting in peace than in war.” See Corfu Channel at 22; Nicaragua Case at 

the ICJ also seems to take the position that the rules and principles of the jus in be

final limits of what is tolerable under international law.

36. ANNOTATED HANDBOOK, supra note 9, para. 7.6.; FEDERAL MINISTRY OF D

THE FEDERAL REPUBLIC OF GERMANY, HUMANITARIAN LAW IN ARMED C

MANUAL (ZDv 15/2), para. 1141 (Bonn, 1993); R. W. TUCKER, THE LAW OF 

NEUTRALITY AT SEA, at 334 (1957); M. DONNER, DIE NEUTRALE HANDELSSCH

BEGRENZTEN MILITÄRISCHEN KONFLIKT, at 174 (Kehl A.R. et al., 1993); CH. RO

DROIT DES CONFLITS ARMES, at 431 (1983); SAN REMO MANUAL, supra note 6 a

127. “The right of neutrals to convoy is recognized. Consequently, neutral States h

to accompany commercial ships flying their own or another neutral State’s f

warships.” Helsinki Principles, supra note 7, at 6.1.

37. SAN REMO MANUAL, supra note 6, at para. 120(d).

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Stricter legal restrictions apply when it comes to the use of for

civil aircraft that are also obliged to identify themselves and to pr

said information. In view of the vulnerability of aircraft, the use 

force must be limited to warning shots as long as there is no clear ev

a terrorist activity. The only means available of using force is to re

aircraft to land.38

If, according to intelligence information, there are reasonable g

believe that a merchant vessel is transporting terrorists or goods d

them, or if doubts persist as to the truth of the information provi

master, a boarding team may be sent on board the merchant vessel 

take all measures necessary to clarify the circumstances (e.g., exam

documents and search of the vessel). The members of the boarding 

be armed in order to be able to defend themselves against attacks. If 

suspicion proves true or if circumstances cannot be clarified to the sa

of the responsible commander, the vessel may be diverted to a port o

where a thorough search will be conducted. If the master refuses to 

diversion order, the boarding team may capture the vessel by taking 

mand and control. Note that in the majority of cases, search on the 

will be practically possible only with the master’s consent, when th

stances are easily clarified, and if no other difficulties are encountere

these conditions, the vessel must either be diverted or allowed to co

journey. In view of the considerable economic losses involved, a 

must be in strict accordance with the principle of proportionality. M

cion of involvement with terrorist activities will generally not suffic

the grounds for suspicion must be clear and reasonable which presup

ficient intelligence information. The same limitations apply with 

capture. The legality of capture cannot be doubted if the merchant 

sists visit and search because it is a means to enforce the obligation t

these measures. If the master has complied with his obligations, how

ture, as a severe encroachment on the flag state’s sovereignty, is just

where there is strong suspicion of the commission of an offense.

With respect to individuals on board who are suspected of bein

tional terrorists or who are suspected of having assisted internation

ism in some other way and with regard to cargo that is bound for 

international terrorists, specific rules and principles must be observe

ists may be taken prisoner to prosecute them for their illegal actio

270

38. For the special protection of civil aircraft against the use of armed force see Co

International Civil Aviation, opened for signature Dec. 7, 1944, art. 3, ICAO Doc

U.N.T.S. 6605 and SAN REMO MANUAL, supra note 6, at para. 153.

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may be taken to a court of the capturing warship

s flag state or to 

one of its allies.39 If Taliban members are captured, there is a presu

their participation in the hostilities on behalf of, or with the conse

de-facto government of Afghanistan. They remain liable, of cour

crimes they have committed. They may, however, not be prosecuted 

for having taken part in the hostilities. Moreover, they are entitled t

of war (POW) status.40 The mere change in government does not 

tunc the authorization or consent of the predecessor. If those taken 

are members of al Qaeda they are entitled to POW status only if they 

part of the Afghan armed forces or if they had otherwise “belonge

ghanistan as a party to the armed conflict. If neither of these conditio

ruled out the presumption or rule of doubt laid down in Articl

Geneva Convention III comes into operation and an Article 5 trib

take place.41 Nevertheless POW status does not preclude punishmen

ticipation in, or commitment of, acts of international terrorism.42

271

39. Transfer of prisoners to an ally will, however, pose considerable problems 

concerned are bound by different rules of international law, especially with regard to 

of the death penalty.

40. According to Article 4A of Geneva Convention III of 12 August 1949 rel

Treatment of Prisoners of War not only members of the regular armed forces are entit

status but also members of militias and volunteer corps either “forming part of such a

or “belonging to a Party to the conflict.” Also protected are “members of regular a

who profess allegiance to a government or an authority not recognized by the Detain

See Convention Relative to the Treatment of Prisoners of War, Aug. 12, art. 4, 19

3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]. Editor’s Not

Government has taken the position that the Taliban are not entitled to POW stat

Taliban was never the legitimate government of Afghanistan and Taliban members 

the four part test found in Article 4 of GC III. See GC III at art. 4; see Statement by W

Press Secretary Ari Fleischer (Feb. 7, 2002).

41. “Should any doubt arise as to whether persons, having committed a belligerent ac

fallen into the hands of the enemy, belong to any of the categories enumerated in Ar

persons shall enjoy the protection of the present Convention until such time as the

been determined by a competent tribunal.” Id. at art. 5. This provision is generally 

customary international law based, in part, on the reaction of the international commu

media to the treatment of the detainees in Guantanamo Bay. For states parties to 

Protocol I of 1977 a further obligation applies. According to Article 45 of this protoc

who . . . is not held as a prisoner of war and is to be tried . . . for an offence arisin

hostilities... shall have the right to assert the entitlement to prisoner-of-war status bef

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 th

Detaining Power for acts committed prior to capture shall retain, even if convicted, 

of the present Convention.” GC III, supra note 40, at art. 85.

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Weapons, ammunition and other military equipment destined fo

tional terrorists or supply goods as well as everything serving for the 

of international terrorism, including drugs or other prohibited good

captured and seized. Other objects and cargo have to be return

owner.

Captured vessels (and aircraft) may also be seized as soon as th

sufficient proof that they are owned by al Qaeda or some other grou

national terrorists. As for the rest it will depend on the respective 

criminal law whether their confiscation is possible or not. Interna

provides no clear rule on that question unless the vessel or aircraft c

had been used in a terrorist attack or had actively resisted visit and 

diversion. Therefore, in case of doubt, these vehicles should be re

their respective owners if a participation in terrorist acts c

established.

If MIO are conducted beyond the territorial sea of third states—or w

territorial sea with the approval of the coastal state—their legal ba

from the right of individual and collective self-defense as long as th

strictions referred to above are observed. Would a US warship or an a

ship also be entitled to enter the territorial sea if the coastal stat

consent and if a merchant vessel suspected of transporting internation

ists tried to evade capture by taking refuge, for example, in the territo

Somalia? From the perspective of the law of the sea that operation, 

the territorial sovereignty of Somalia, would be illegal unless exception

fied. Here again a plea of self-defense could serve as a justification. 

self-defense as traditionally understood might pose a problem insofar 

activity of Somali authorities would perhaps not be sufficient to est

attributability necessary to legitimize actions taken against that state

legality of pursuing such a vessel into the territorial sea becomes evid

law of maritime neutrality is again considered. According to that la

states are under an obligation to take the measures necessary to term

violation of the law by one of the belligerents, especially if that b

makes use of the neutral’s territorial sea as a base of his military ope

the neutral state fails to terminate the violation—be it because it is 

unwilling to do so—the opposing belligerent, if certain precondition

may use such force as is strictly necessary to respond to the threat po

violation.43 Note that the behavior of the neutral coastal state need no

272

43. SAN REMO MANUAL, supra note 6, at para. 22; SEEKRIEGSRECHT UND NEUT

SEEKRIEG, supra note 6, at 505.

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to a direct and attributable contribution to the enemy

s war fighting 

that were the case that state would become a party to the conflict. T

maritime neutrality would be replaced by the jus in bello.

In any event, the measures taken within neutral territorial seas m

stricted to the termination of the violation. Resolution 1373 ob

states to prevent and suppress within their territories all acts of inte

terrorism as well as all activities in support of international terrorism

that is either unwilling or unable to comply with these obligations v

ternational law. This also holds true where, as in Somalia, the state 

Hence, there are good reasons that exceptional situations like th

limited actions taken within foreign territorial seas in order to capt

national terrorists and weapons destined for them are justified by 

tional law if the coastal state is unwilling or unable to take the 

necessary according to Resolution 1373.

Conclusion

As seen, MIO conducted within the framework of Operation ENDUR

DOM can be based upon the right of individual and collective self-de

additionally, on Resolution 1373 of the UN Security Council. Third 

obligated to tolerate the control measures taken against their shipping 

tion by the United States and its coalition partners. The UN Securit

has made sufficiently clear that self-defense is not restricted to armed a

tributable to a given state. Rather, it has acknowledged that a self-def

digm can exist without a state being the potential object 

countermeasures. This, however, does not mean that the United Sta

coalition partners are free to interfere with foreign shipping and aviatio

will. They must observe the limitations imposed upon them by the law 

warfare and by the law of maritime neutrality. This corpus of interna

must be observed in spite of the fact that there exists no international a

flict strictu sensu. Respect for these requirements is of utmost importanc

only thus can the support of the international community in the fight 

ternational terrorism be maintained.

Of course, in view of the varying treaty obligations and in view o

concepts of self-defense, a multinational operation like ENDURING 

is a difficult task. The most promising way to cope with these difficu

draw multinational rules of engagement in order to ensure that at 

common minimum legal denominator that is so important for inte

political support operates effectively.

273

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XIV

The Limits of Coalition Cooperation i

War on Terrorism

Ivan Shearer1

The Wide Range of Issues

he events of September 11, 2001 revealed deep and widesp

ings of revulsion, even in unlikely quarters, against the indis

use of violence to achieve political ends. National leaders throug

world condemned the terrorist attacks in the United States and expre

solidarity with the American government and people. The world’s 

other media were equally condemnatory. The reaction of the Unite

was swift: resolutions of broad reach and specific content were passed 

measures to be taken by all states to suppress terrorism and to coo

bringing terrorists to justice.2

The military operations carried out by the United States and a n

its allies in Afghanistan were not specifically authorized by the U

tions Security Council. Although justifiable as an exercise of the rig

defense, recognized by Article 51 of the Charter of the United Na

failure of the United States to seek such authorization retrospec

1. Ivan Shearer is the Challis Professor of International Law, University of Sydney, 

2. See, e.g., S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001); S. C

U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001); S. C. Res. 1377, U.N. SCOR

U.N. Doc. S/1377/(2001).

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envisaged by Article 51, raises both political and legal questions. T

will not, however, be concerned with these issues—the jus ad bellu

they are dealt with elsewhere in this publication.3 Moreover, it is pe

probable that the future war against terrorism will be conducted i

stances where a state has admitted its responsibility for harboring 

and has refused to take effective measures against them. As a con

traditional jus in bello issues will not frequently arise in the familiar c

battlefield conditions, such as in Afghanistan, where operations w

ducted against regular forces as well as terrorists, but may call for ap

if at all, rather by way of analogy.

The issues most likely to arise are those relating to the cooperation 

states in the early warning, hunting down, and bringing to justice of 

There is unlikely to be a clearly delineated battlefield where terrorist

open armed operations or hide in caves. Their shadowy operations 

rected under the cover of apparently innocuous business or other e

cated in unsuspecting host countries. They will move easily between 

on valid or false documents. Financial transactions will take pla

seemingly innocent cover, or through informal means. Intelligence 

munications networks will operate using freely available public facil

Since there is nearly universal recognition of the threat to inte

peace and security posed by terrorists and of the need for cooperatio

suppression, it follows that an effective response must lie in the han

many nations comprising the international community. That respo

be multilateral and multilayered. It must not be left entirely to the 

rectly affected by terrorism, still less to the most powerful among the

all the United States. There must be a coalition of states. This coaliti

doubt consist of an inner circle of closely allied states, and a perimet

ers, more loosely—or not at all—allied, which acknowledge the d

themselves of failing to cooperate to meet the global challenge of 

Differences in their policies, laws, human and material resources, a

efficiency of the exercise of their governmental powers, will call for 

ation. Whether these differences constitute impediments to the effe

of the war against terrorism, and thus call for elimination, or whe

constitute legitimate constraints or sensitivities, and thus call for r

the topic of this paper.

It is taken as a given that international law is an integral part of 

ning process in any actions against terrorists and that it constitute

276

3. See Chapters VIII-XIII supra.

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yardstick the world has against which to measure the legitimacy of th

taken. There is a tendency in some quarters to see international law 

due restraining factor to be set aside in times of crisis. 4 Not only doe

tude strike at the heart of civilized values; it ignores the very real opp

afforded by the concessive rules of international law to allow effect

to be taken against terrorists in a principled fashion which upholds w

lic order.

Particular reference will be made in this paper to the laws and p

Australia, as an example of a close ally of the United States and a 

partner in the war against terrorism.

National Laws With Respect To Terrorism

In the absence of a universally accepted definition of terrorism, state

ently free to adopt their own definitions for the purposes of their dom

Many have no defined crime of terrorism, as such, in their laws, bu

laws respecting most of the constituent elements of terrorism, such a

manslaughter, violence against the person, criminal damage to prop

threats and conspiracies to commit crimes of violence.

In enacting anti-terrorism laws, states will generally note the defi

terrorism contained in international conventions to which they are 

to agreed definitions adopted by authoritative international bodies. 

nately, a universal definition of terrorism has proved to be difficult t

as witnessed by the lack of consensus found in the attempted definit

Draft International Convention on Terrorism, presently before th

Nations.5 The core definition of the crime in that draft is, howev

doubt as Article 2 of the Draft Convention provides:

1. Any person commits an offence within the meaning of this Conve

that person, by any means, unlawfully and intentionally, causes:

(a) death or serious bodily injury to any person; or

277

4. Former Australian Permanent Representative to the UN and head of the 

Commission on Disarmament in Iraq Ambassador Richard Butler, quoted US Unde

State John Bolton, as having said in 2000 when discussing the International Crimina

“[t]here is no such thing as international law, only national sovereignty.” Richard 

supine leading the blind,” THE AUSTRALIAN, June 14, 2002 at 13.

5. See Report of the Ad Hoc Committee Established by General Assembly Resoluti

17 December 1996, U.N. GAOR, 57th Sess., Supp. No. 37, U.N. Doc A/57/33.(200

at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/248/17/PDF/N0224817.pdf?O

(Jan. 11, 2003) [hereinafter Draft International Convention on Terrorism].

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(b) serious damage to public or private property, including a place o

use, a state or government facility, a public transportation syst

infrastructure facility, or the environment; or

(c) damage to property, places, facilities or systems referred to in para

(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 intim

population, or to compel a government or an international organization 

abstain from doing any act. 6

The difficulty that has arisen, and that so far remains to be 

through continuing negotiations, concerns the qualifying provision

article 18 of this convention. In one version, that article would exe

categorization as terrorism the activities of armed forces during arme

governed by international humanitarian law, and in the other ver

posed by the Member States of the Organization of the Islamic Co

would exempt the activities of the parties to an armed conflict, “inc

situations of foreign occupation.”7 The basis of the disagreement in 

tinuing conflict between Israel and the Palestinians is obvious.

Both the United Kingdom8 and Australia9 have already adopted a 

law definition of terrorism with the Australian definition largely foll

UK model. It requires as an element of the offense that the act be c

“for the purpose of advancing a political, religious or ideological caus

excludes from the definition acts that consist of advocacy, protest, 

labor disputes.

For the purposes of domestic law, an internationally accepted de

terrorism, if and when it eventuates, will be of crucial importance. In 

stitutional systems of some states, the definition in the Convention 

ate directly as domestic law upon its ratification and promulgation by 

parties. In other constitutional systems, especially those of the Eng

mon law inheritance such as Australia, Canada, and the United Kin

278

6. Id. at art. 2. Note that the precise definitions of the property and institutions m

Article 2, paragraphs 1(b) and 1(c) are contained in Article 1 of the Draft Conven

7. Id. at art. 18.

8. See Anti-terrorism, Crime and Security Act, 2001, c. 11 § 1 (UK). The version 

printed in CURRENT LAW STATUTES, 2000 (Sweet & Maxwell eds., 2000) contains 

which trace the history of the definition from the troubles in Northern Ireland, from 

and Lloyd Commissions, to the present.

9. See Criminal Code Act, c. 1, pt. 5.3 d. 100 (Austl.).

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Convention definition will require adoption and incorporation by sta

possibly also adaptation to meet local circumstances.

In the meantime, in many countries, new laws are being intro

drafted in order to give the police, or intelligence agencies, increas

to detain and question not only those suspected of terrorism but 

who may be thought to have relevant information. Bills currently b

Australian Parliament, for example, would give to the Australian Sec

Intelligence Organization (ASIO), an organization not previously 

with coercive powers, the power to obtain a warrant to secretly detai

suspected of terrorism or those thought to possess information abo

ists.10 It is also proposed that the Attorney-General be given pow

scribe certain organizations.11 Members and supporters of those org

could be jailed for up to 25 years.

The definition of terrorism in domestic law, or the applicability 

mestic law of other denominations of offense to terrorist acts, will ha

ular implications for jurisdiction and extradition.

Jurisdiction

International law recognizes the jurisdiction of states to prescribe an

their criminal laws subject to certain conditions.12 The very wide pow

scribe laws, seemingly allowed by the Permanent Court of Internation

in the Case of the S.S. Lotus (1927),13 must now be regarded as some

rower in extent, especially since the decision of the present Internatio

of Justice in the Case of the Arrest Warrant of 11 April 2000 (Democrat

lic of Congo v. Belgium) (2002).14 It must now be regarded as essent

scriptive jurisdiction that there be some nexus or linking point bet

legislating state and the reprehended activity that is supported by th

279

10. The Australian Security and Intelligence Organization Legislation Amendment 

Bill after passing both the Australian House and Senate was not approved by Prime M

Howard. The Bill will be reconsidered in the 2003 Parliament. See Paul Sheehan, PM

dissolution Trigger Finger must be Itching over ASIO Bill, SYDNEY MORNING HERAL

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 T

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 o

Belgium), 41 I.L.M. 536 (2002), available at http://www.lawschool.cornell.edu/libr

icjwww/ipresscom/ipress2002/ipresscom2002-04_cobe_20020214.htm (Jan. 10, 200

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practice of other states.

In any event, the power to enforce validly p

laws is dependent upon physical custody of the offender or upon the a

of extradition from another state having custody.

States have jurisdiction to prescribe the applicability of their crim

upon the following generally recognized bases:

(a) The territorial basis of jurisdiction. States have jurisdiction to 

laws governing activities occurring in their territory, or in places assim

their territory, such as ships and aircraft of their nationality. It is an 

extension of this basis of jurisdiction that states also have jurisdictio

fenses, elements of which occur outside their territory but which 

pleted, or have effect, or are intended to have effect, within it.16

(b) The nationality basis of jurisdiction. States have jurisdictio

scribe laws governing the activities of their citizens wherever th

Whether states are also justified in international law in asserting ju

over those who commit offenses against their citizens (the “passive 

ity” basis of jurisdiction) is disputable. State practice in the matter i

form.17

(c) The protective principle of jurisdiction. States have jurisdicti

scribe laws governing the activities of those who would assault its ex

damage its essential interests.18 Accepted examples include plannin

sion of the territory or the overthrow of its government, counterfeiti

rency, and breaching the fiscal, immigration, sanitary and cust

applicable against inbound vessels in the contiguous zone under th

tional law of the sea. Extensions, however, to interests that are not 

the international community, such as the protection of the nation

through blasphemy laws, or the reputation of national rulers (“sland

the state”) will not be widely recognized.

(d) The universality principle of jurisdiction. States have jurisd

prescribe laws that correspond to offenses regarded by internation

280

15. See, e.g., Israel v. Adolf Eichmann, 36 I.L.R. Rep. 5 (D.C. Jm., 1961) [hereinafter E

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

taking. See, e.g., Hostage Taking Act § 2001, 18 U.S.C. § 1203 (2002). 

comprehensive basis a Bill has been introduced into the Australian Parliament: T

Code Amendment. This bill has now been enacted as Division 104 of the Crimina

1995, available at http://search.aph.gov.au/search/ParlInfo.ASP?action=browse&Path=

Current+Bills+by+Title/Criminal+Code+Amendment+(Offences+Against+A

+Bill+2002&Start=3&iGD#top (Jan. 10, 2003).

18. See Eichmann, supra note 15, at 5.

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crimes by the law of nations. The historic instance is piracy. Bey

there is doubt, because of the difficulty in establishing whether d

have crystallized as customary international law. Strong candidates 

sion in the category, however, are slavery, crimes against humanity, 

planning and conducting a war of aggression, and war crimes.

Instead of leaving the development of crimes against internationa

the concomitant universality of jurisdiction over them, to the evo

processes of customary law, the trend since 1948 has been to defin

against international law in international conventions. There are a l

ber of these.19 The jurisdiction prescribed by these conventions is 

universal in the sense that any state may prosecute, as in the case 

Instead they prescribe a variety of jurisdictional bases for prosecut

duty on the state actually having custody of the offender to either 

the offender itself or extradite to another state having jurisdiction 

the bases set out. This duty is described as aut dedere aut judicare (pu

duty to extradite or to prosecute). It might therefore be described as 

universality” basis of jurisdiction, because there must be a linking 

tween the offense and the prosecuting state, even though that mig

be the fortuitous presence of the offender in the territory of the state 

finds and detains the offender.

Note that many of the above conventions incorporating the aut 

judicare formula are related to particular forms of terrorism. The 

these, the International Convention for the Suppression of Terror

ings, 1998, incorporates the same formula.20

The Draft Comprehensive International Convention on Terrori

negotiation in the United Nations, also incorporates the aut dedere a

281

19. See, e.g,. Convention for the Amelioration of the Condition of the Wounded 

Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 

31; Convention for the Amelioration of the Condition of the Wounded, Sick, and S

Members of Armed Forces at Sea, Aug. 12, 1949, 6. U.S.T. 3217, T.I.A.S. No. 3363, 

85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U

T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative to th

of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. N

U.N.T.S. 287 [hereinafter GC IV]; Hague Convention for the Suppression of Unla

of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641 (1971); Convention Against Torture 

Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 

GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984), reprinted in 23 I.L.M. 

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 

(Dec. 15, 1997), 37 I.L.M. 249 (1998) (ratified by the United States on Jun

[hereinafter Terrorist Bombings Convention].

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principle.

In addition to the states whose jurisdiction must be assur

ant to the Convention—the territorial state, the state of nationality 

or aircraft affected, and the state of nationality of the offender—the 

optional bases of national jurisdiction are also prescribed:

(a) The offence is committed by a stateless person who has his or her h

residence in the territory of that state; or

(b) The offence is committed wholly or partially outside its territory, if th

of the conduct or its intended effects constitute or result in, within its t

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 th

abroad, including an embassy or other diplomatic or consular premises 

state; or

(e) The offence is committed in an attempt to compel that state to d

abstain from doing any act; or

(f) The offence is committed on board an aircraft which is operated 

government of that state.22

The Relevance of International Norms of Human Rights

In the treatment of suspected terrorists after their detention, states 

by the international norms of human rights. The provisions of the 

Declaration of Human Rights, 1948 are regarded as declaratory of 

binding international law, as are—for the greater part—the provisi

International Covenant on Civil and Political Rights of 1966. Th

States and 147 other states are parties to the latter instrument and 

bound by it also as a treaty instrument.23

The following provisions of the Universal Declaration are espec

vant to the treatment of suspected terrorists:

282

21. See Draft International Convention on Terrorism, supra note 5, at art. 11.

22. Id., art. 6(2).

23. See Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A(III

A/810 (1948) [hereinafter Universal Declaration of Human Rights]; International C

Civil and Political Rights, opened for signature Dec. 19, 1966, 1991 U.N.T.S. 171 (

force Mar. 23, 1976, ratified by the United States on June 8, 1992) [hereinafter ICC

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Article 5. 

No one shall be subjected to torture or to cruel, inhum

grading treatment or punishment.”24

Article 9. “No one shall be subjected to arbitrary arrest, detent

ile.”25

Article 10. “Everyone is entitled in full equality to a fair and publ

by an independent and impartial tribunal in the determination of 

and obligations and of any criminal charge against him.”26

Article 11. “(1) Everyone charged with a penal offence has the r

presumed innocent until proved guilty according to law in a publ

which he has had all the guarantees necessary for his defence.”27

These provisions are confirmed and expanded in articles 7, 9, and 14 

ternational Covenant on Civil and Political Rights.28

Do these provisions impose extraterritorial obligations on states? 

(1) of the Covenant obliges each state party to respect and to ensure 

recognized in the Covenant “to all individuals within its territory an

to its jurisdiction.” Is the word “and” to be read conjunctively or disju

The latter appears to be the preferred reading. The Human Rights C

established under the Covenant, has determined that this article 

imply that the state party concerned cannot be held accountable for 

of rights under the Covenant which its agents commit upon the te

another state, whether with the acquiescence of the government of 

or in opposition to it.”29 The Committee has also had occasion to ad

same point in its observations on Belgium’s periodic report:

The Committee is concerned about the behaviour of Belgian soldiers in S

under the aegis of the United Nations Operation in Somalia (UNSOM 

acknowledges that the State Party has recognized the applicability 

283

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 Hu

Committee, U.N. GAOR, 36th Sess., Supp. No. 40, at 176, U.N. Doc. A/36/40 (1981

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, 

AND COMMENTARY (S. Joseph et al. eds., 2000), at 59–60 [hereinafter INTE

COVENANT]. As noted by these authors, the separate reasoning in this case of 

Member Christian Tomuschat is most persuasive. A similar conclusion was rea

Human Rights Committee in the case of Celiberti de Casariego v. Uruguay. See Co

13/56, Report of the Human Rights Committee, U.N. GAOR, 36th Sess., Supp. No

U.N. Doc. A/36/40 (1981).

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pp7pp

investigation.30

It would thus appear to be the case that states, in their operatio

terrorists, cannot avoid their obligations under international human 

by detaining suspects in offshore facilities. “Jurisdiction” means e

“within the power of.” In battlefield conditions, where it is not im

obvious who are lawful combatants and who are criminals, the l

Geneva Conventions, 1949, must obviously apply as a lex specialis. Bu

not covered by the Geneva Conventions, international human r

applies.

It may be argued that the international norms of human rights app

normal circumstances and not in relation to terrorists, whose very 

violation of the human rights of others and the destruction of institu

many cases, transparent and democratically accountable institut

Covenant recognizes this by the inclusion, in Article 4, of a right o

tion, but in strictly limited circumstances. Article 4 states:

1. In time of public emergency which threatens the life of the nation 

existence of which is officially proclaimed, the States Parties to the 

Covenant may take measures derogating from their obligations un

present Covenant to the extent strictly required by the exigencies 

situation, provided that such measures are not inconsistent with the

obligations under international law and do not involve discrimination s

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 

may be made under this provision.

3. Any State Party to the present Covenant availing itself of the 

derogation shall immediately inform the other States Parties to the 

Covenant, through the intermediary of the Secretary-General of the 

Nations, of the provisions from which it has derogated and of the rea

which it was actuated. A further communication shall be made, thro

same intermediary, on the date on which it terminates such derogation.

284

30. See Human Rights Committee, 64th Sess., Consideration of Reports Submit

Parties Under Article 40 of the Covenant, U.N. Doc. CCPR/C/79/Add.99 availa

www.hri.ca/fortherecord1998/documentation/tbodies/ccpr-c-79-add99.htm (Jan. 

reprinted in INTERNATIONAL COVENANT, supra note 29, at 62.

31. See ICCPR, supra note 23, art. 4.

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The provisions of Article 4 have been the subject of considerabl

tion and interpretation. The Human Rights Committee itself issued 

Comment on the article in 2001;32 in 1984 the International Law A

adopted the Paris Minimum Standards of Human Rights Norms in 

Emergency;33 and, in 1985 a group of experts in international law ad

Siracusa Principles on the Limitation and Derogation Provision

ICCPR.34 Common to these formulations is the invocation of the pr

proportionality of the measures in derogation, and the requirement 

be withdrawn as soon as the emergency has passed.

It will be seen that the threshold of justification is set high by th

paragraph 1. For countries such as the United States or Australia, th

be an understandable reluctance to declare a state of emergency, e

such catastrophic events as those of 11 September 2001, for fear of 

panic in the community, or of appearing to confess the inability of th

ment to take effective measures against terrorists within the existing 

danger should have manifested itself more widely and frequently 

such a step.35 Nevertheless, certain measures have been taken in r

suspected terrorists arrested in the United States, and those detain

ghanistan and other places, without a declaration so far of derogat

the Covenant. Special powers of arrest and detention in relation to 

285

32. See U.N. International Human Rights Instruments, Compilation of General Co

General Recommendations Adopted by Human Rights Treaty Bodies, Addendu

Comment No. 29, U.N. Doc. HRI/GEN/1/Rev.5/Add.1 (Apr. 18, 2002) availab

www.unhchr.ch/pdf/Gen1rev5add1_E.pdf (Jan. 12, 2003).

33. See THE PARIS MINIMUM STANDARDS OF HUMAN RIGHTS NORMS IN A 

EMERGENCY (1984), reprinted in 79 AM. J. INT’L L. 1072 (1985).

34. See The Siracusa Principles on the Limitation and Derogation Provisi

International Covenant on Civil and Political Rights, arts. 29–32, reprinted in 7 HUM

QUARTERLY 1 (1985).

35. The United Kingdom had availed itself in the past of the power of derogatio

Covenant, but only in respect of the territory of Northern Ireland, notwithstanding t

terrorist acts were being committed elsewhere in the United Kingdom. On 18 Dec

however, the United Kingdom gave notice of derogation for the whole of the United 

reason of a general public emergency following the events of September 11, 

declaration referred to the enactment of the Anti-terrorism, Crime and Security Ac

was limited to a derogation from article 9 of the Covenant in relation to extended pow

and detention of foreign nationals where there is an intention to deport. See An

Crime and Security Act 2001, c. 24, 21–23 (Eng.) (detailing the new law of the Unit

for dealing with suspected international terrorists, through certification, depo

detention), available at http://www.legislation.hmso .gov.uk/acts/acts2001/2001002

12, 2003).

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terrorists are currently being considered by the Australian Parliamen

is a question therefore whether these measures are compatible with 

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 interna

to grant extradition of accused or convicted criminals at the request o

state. A duty to extradite is imposed only by treaty. These treaties ma

eral, or they may be contained in multilateral treaties, especially of th

scribed above in which the parties are bound to either extradite or 

(aut dedere aut judicare).

Existing extradition treaties, whether bilateral or multilateral, 

many countries already cover in substance the offenses commonly re

pertaining to terrorism. There are gaps in that coverage, however, 

graphically and substantively. For those countries whose power to gr

dition depends on the existence of an applicable treaty the treaty net

have become neglected or have fallen behind in its recognition of ne

offenses, such as terrorism. For those countries whose laws permi

grant extradition without a treaty, on an ad hoc basis, and subject to 

stration of criminality under the laws of both the requesting and the 

states (the rule of dual criminality), those laws may similarly have 

hind current needs.

Two frequently encountered exceptions to extradition found i

and national laws are a prohibition of the extradition by a state of its 

zens, and the exception of politically motivated offenders.

The prohibition of extradition of citizens is a rule deeply entrench

legal systems of civil law countries. It derives from Roman Law and e

for the duty of obedience that the citizen owes to the state a duty o

not to deliver up a citizen to a foreign jurisdiction. Countries of the 

law tradition recognize no such restriction. In many extradition tr

tween civil law and common law countries, therefore, the refusal to 

citizens is made discretionary, so that the civil law position can be m

while giving an opportunity to the common law country to refuse 

reciprocity. The result is a mismatch. Civil law countries allow for pr

of their own citizens for crimes committed anywhere in the world, a

nized in international law by the nationality principle of jurisdiction. 

286

36. See note 10 supra and accompanying text.

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exceptions, the common law countries remain attached to the territ

ciple of jurisdiction. This attachment goes back to the earliest days o

lish common law and the institution of trial by jury; crime was local 

could be presented by a grand jury and judged by a petty jury, comp

of local citizens. The result can be that where a common law count

extradition of one of its citizens by way of reciprocity, there is no po

the offender in the common law country, and a failure of justice ma

There would appear to be no way around this difficulty. The non-e

of citizens is a principle even embedded in the constitutions of some 

It is unlikely that any international convention on terrorism would s

setting aside that principle. Perhaps only the United Nations Securit

could do so, as it did in relation to those charged with the Locke

dent.38

The exception from extradition of political offenses and of perso

extradited, might suffer prejudice at their trial on account of their 

gion, nationality or political opinion is almost universally recognized 

dition treaties and national extradition laws.39 Terrorism is an exa

excellence of a politically motivated offense. As far back as the 19th 

doubts began to be voiced about protecting individuals from extrad

had committed indiscriminate or cruel crimes for a political moti

chists were held to be outside the rule and therefore extraditable. At

exclude the rule against the extradition of such individuals failed in t

(1970) and Montreal (1971) Conventions on hijacking and sabota

craft, respectively. However, the European Convention on the Supp

Terrorism, 1977, expressly set aside the rule 40 and the curre

287

37. IVAN SHEARER, EXTRADITION IN INTERNATIONAL LAW 94–131 (1971) 

SHEARER].

38. See Case Concerning Questions of Interpretation and Application of the 197

Convention Arising from the Aerial Incident at Lockerbie (Libya v. US; Libya v. U

for the Indication of Provisional Measures), 1992 I.C.J. 3. [hereinafter Lockerbie C

39. SHEARER, supra note 37, at 166–193.

40. See European Convention on the Suppression of Terrorism, Eur. T.S. No. 90 (Ja

available at http://conventions.coe.int (Jan. 13, 2003). The Convention requires that 

following offenses shall be regarded as political for the purposes of extradition: crim

international conventions regarding hijacking and sabotage of aircraft, hostage tak

against internationally protected persons, or “an offense involving the use of a bom

rocket, automatic firearm or letter or parcel bomb if this use endangers persons.” 

complicity in the above offenses are also excluded. Optionally, under article 2, states 

regard any act of violence against the person, or any act against property if the a

collective danger to persons, as not qualifying as a political offense. Id.

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Comprehensive Terrorism Convention, being considered by the U

tions, does so also.

Within some states, the domestic law may be in advance of wha

ventions require, as is the case of Australia. The extradition laws of 

exclude from the application of the political offense exception offen

lished under the international conventions concerning the hijacki

craft, sabotage of aircraft, genocide, internationally protected 

hostage taking, and torture.41 Regarding countries to which this pr

applied specifically by regulation, the exception may not be invoked 

of the murder, kidnapping or attack on the person of a Head of Stat

of Government of a country, or the taking or endangering of life be

fense “committed in circumstances in which such conduct creates a 

danger, whether direct or indirect, to the lives of other persons.”42 H

general exception of terrorism from the category of political offense

tralia’s extradition laws has not yet been effected.

It thus emerges that the non-extradition of citizens rule const

greater continuing handicap to the surrender of a terrorist offende

questing state. The national state of the offender, not being the st

the act occurred or had its effects, is entitled to prosecute but might 

der evidentiary handicaps, or without diligence. That state might 

most reluctant to undertake the task of prosecution, where local sy

lay with the offender, or where the state felt intimidated by the p

possible retaliation against itself by associates of the offender. In suc

the International Criminal Court were invested with jurisdiction ov

fense, it would be a relief to be able to cede the case to that Court.

Resolution 1373 (2001), adopted unanimously by the United N

curity Council on 28 September 2001, did not attempt to impose a d

tradition as such, but laid down several important obligations ancill

extradition process. Paragraph 2 of the resolution, adopted under Ch

of the Charter and under the heading “Decides” (which triggers its b

fect for all Members of the UN, as prescribed in article 25 of the Cha

UN), includes the following subparagraphs:

288

41. See Extradition Act, 1988, § 5 (Austl).

42. Id.

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(e) Ensure that any person who participates in the financing, pl

preparation or perpetration of terrorist acts or in supporting terrorist 

brought to justice and ensure that, in addition to any other measures 

them, such terrorist acts are established as serious criminal offences in d

laws and regulations and that the punishment duly reflects the seriou

such terrorist acts;

(f) Afford one another the greatest measure of assistance in connecti

criminal investigations or criminal proceedings relating to the finan

support of terrorist acts, including assistance in obtaining evidence 

possession necessary for the proceedings.43

The phrase in subparagraph (e) “is brought to justice” seems to com

the aut dedere aut judicare principle without explicitly saying so. The i

that domestic laws be enacted to make terrorist acts, as such, distinc

under national law serves as a necessary precondition to the full app

the dual criminality requirement of extradition law.

Paragraph three of the resolution, in which the Security Coun

upon all States to . . .”, is not binding under article 25 of the Charter, 

a decision, but is nonetheless a directive that has weight. Subparagr

this paragraph calls upon states to ensure that “claims of political m

are not recognized as grounds for refusing requests for the extradit

leged terrorists.”44 This relatively weak provision reflects the failure 

ous efforts in multilateral conventions, such as the hijacking and sa

aircraft conventions, to exclude the political offense exception to e

altogether. On the other hand, the political offense exception has be

itly excluded in the International Convention for the Suppression of 

Bombings (1998)45 and in the current Draft Comprehensive Inte

Convention on Terrorism.46

Another aspect of extradition of terrorists is revealed by the cas

men accused of conspiracy with Osama bin Laden and the al Qaeda 

289

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 p

“[e]ach State Party shall adopt such measures as may be necessary, including, where 

domestic legislation, to ensure that criminal acts within the scope of this Conventio

no circumstances justifiable by considerations of a political, philosophical, ideolo

ethnic, religious or other similar nature.”

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commit the bombings of the American Embassies in Nairobi, Keny

es Salaam, Tanzania. They were arrested in the United Kingdom an

extradition to the United States. No point could have been taken th

fenses, being politically motivated, should have been excluded from 

tion, because terrorism is expressly excepted from the category o

offenses for which extradition may not be given.47 The point taken 

of the accused on appeal to the House of Lords was that the allege

having been committed in Kenya and Tanzania, were not committe

the jurisdiction” of the United States, as required by the applicabl

treaty of extradition between the United Kingdom and the United S

the UK Extradition Act, 1989. The House of Lords held unanimo

“jurisdiction” was a wide enough expression to comprehend extra

jurisdiction of the kind asserted by both the United States and th

Kingdom in like cases.48 Lord Hutton stated that:

[m]y principal reason for forming this opinion is that in the modern w

international terrorism and crime proper effect would not be given 

extradition procedures agreed upon between states if a person accus

requesting state of an offence over which that state had extra-te

jurisdiction (it also being an offence over which the requested state wou

jurisdiction) could avoid extradition on the ground that the offence 

committed within the territory of the requesting state.49

The Death Penalty

Still another impediment to extradition of terrorists is the difference 

among even otherwise like-minded states as to the death penalty. T

tries of the European Union, Australia, Canada and New Zealand h

ished the death penalty in their own laws, and will extradite to state

the United States, which retain the death penalty, only on conditio

death penalty, if imposed, will not be carried out.

In the case of In re Fawwaz, Lord Scott of Foscote in his separat

noted that the Act of 1989 contained certain safeguards for the fugit

nal whose extradition is sought. Among these was:

290

47. Extradition Act, 1989, c. 33, § 24 (UK).

48. In re Al-Fawwaz [2002] 1 A.C. 556; 41 I.L.M. 1224 (2002).

49. Id. at para. 64.

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[

][] y 

matter of discretion, to order that the extradition may proceed. It has 

the settled practice, as I understand it, for the Secretary of State, in a cas

the law of the extraditing state might subject the extradited priso

conviction to the death penalty, to require a guarantee that a death s

will not be imposed (see Soering v. UK (1989) 11 EHRR 439).50

If, as is to be expected, an increasing number of terrorists associ

the events of September 11, 2001 are arrested in countries outside th

States, these differences in policies raise serious legal and political q

The legal questions will arise under the laws of the requested state a

the terms of the applicable extradition treaties with the United Stat

the death penalty is available under the laws of both requesting and 

states there will be no problem. But an increasing number of states h

ished the death penalty. This gives rise to the specter of discrimin

imposition of the death penalty on a terrorist extradited from anothe

will depend upon whether conditions have been attached to the ex

as in Fawwaz. Presumably the United States would be in a position t

those conditions, where terrorists are prosecuted under federal and 

laws.51

The political questions are obvious, but their answers are not. Ho

explain to the people of New York City, or indeed the entire Unit

that an extradited terrorist associated with the attack on the Wo

Center can get a maximum of life imprisonment, whereas an ordin

derer faces the death penalty?

Fair Trial Safeguards in Extradition

Extradition treaties do not usually contain provisions requiring the 

observe accepted standards of a fair trial after extradition. In the pas

existence of a bilateral treaty, or a willingness to act on an ad hoc b

been regarded as tacit acknowledgment of the respect the parties ha

another’s processes. Doubts have emerged, however, in recent ye

multilateral treaties containing extradition clauses are open to all sta

here. It may sometimes be the case that the internal situation in a 

291

50. Id. at para 121.

51. See Case Concerning the Vienna Convention on Consular Relations (Paraguay 

I.C.J. 99, 37 I.L.M. 812 (1998); Breard v. Greene, 532 U.S. 371 (1998) reprinted in 37 

LaGrand Case (F.R.G. v. US), 1999 I.C.J. 9.

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partner state, once of an acceptable order, has deteriorated. There i

that under the laws of some states it is difficult or impossible to refus

tion on the grounds that the human rights of the person extradited m

olated after return: the so-called “rule of non-inquiry.”52

To some extent, the issue of fair trial safeguards overlaps with th

tion accorded political offenders. The formula most often used is to 

that the extradition of a requested person may be refused if the reque

has reason to believe that, if returned, the alleged offender may be 

or suffer prejudice at his or her trial, on account of race, religion, nati

political opinion. On the other hand, if the issue of a fair trial arises in 

text of corruption or incompetence in the legal system of the reques

or of cruel or unusual punishments, it is likely to be dealt with throu

ercise of the general discretion of requested states to refuse extradi

the circumstances of the case. Where the exercise of that dis

unreviewable by a court in the requested state, the outcome for the a

fender can be unpredictable.

A more principled manner in which the executive discretion to 

tradition in such circumstances could be exercised would be by ref

Article 14 of the International Covenant on Civil and Political Righ

sets out fair trial rights in detail. Article 14 provides, inter alia, that 

shall be entitled to a fair and public hearing by a competent, indepen

impartial tribunal established by law.”53 There is an exception, ho

particular relevance in respect to the procedures proposed for the tr

rorist suspects in the United States:

[t]he press and the public may be excluded from all or part of a trial for 

of morals, public order (ordre public) or national security in a democratic 

or where the interest of the private lives of the parties so requires, o

extent strictly necessary in the opinion of the court in special circum

where publicity would prejudice the interests of justice; but any ju

rendered in a criminal case or in a suit at law shall be made public excep

the interest of juvenile persons otherwise requires or the proceedings c

matrimonial disputes or the guardianship of children.54

Parts of this provision (made somewhat turgid in its attempt at co

siveness) have obvious implications for the trial of terrorists.

292

52. On this question see John Dugard and Christine Van den Wyngaert, Reconcilin

with Human Rights, 92 AM. J. INT’L. L. (1998).

53. See ICCPR, supra note 23, art. 14.

54. Id.

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In the case of Fawwaz, Lord Scott, after raising the question of 

penalty, proceeded to another matter of concern: trial before specia

[t]he media have, over the past few weeks, carried reports of the intentio

President of the US, acting under emergency executive powers, to e

military tribunals to try non-US citizens who are accused of terrorist o

The offences with which these appellants are charged might well fall wi

category of offences proposed to be dealt with by military tribunals. It is r

that the proposed military tribunals will be presided over by military per

not judges, will be able to admit evidence that would not ordin

admissible before a criminal court of law, and will be able to conduct t

behind closed doors. The charges against the appellants that have led 

extradition requests were laid before the US District Court for the So

District of New York. If the appellants are to be extradited I imagine th

will be tried before that court or some other Federal Court and not b

military tribunal that will not need to sit in public and that need not obse

rules of evidence.55

Although another member of the House of Lords, Lord Hutton, 

dissociated himself from the remarks of Lord Scott, observing that 

had not been raised in argument,56 this consideration could clearly 

future occasion.

The International Criminal Court

The opposition of the United States to the establishment and future 

of the International Criminal Court is well known. It stands in contr

attitude of many of its closest allies, including Australia, Canada

United Kingdom, which have all ratified the Rome Statute. It is not 

to examine the differences in policies in this paper. There are, how

points of relevance to the topic of terrorism.

In the first place, terrorism, as such, is not a crime within the juris

the International Criminal Court. At the Rome Conference, states u

terrorism be designated a crime within the jurisdiction of the Court 

Algeria, India, Israel, Libya, Russia, and Turkey. However, most d

were opposed. As one commentator has remarked, “An essential r

hind the resistance to the inclusion of terrorism within the ICC’s ju

293

55. See In re Al-Fawwaz, supra note 48, at para. 121.

56. Id. at para. 93.

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is the fear of politicization of the ICC. The League of Arab States op

inclusion of international terrorism in the ICC Statute on the groun

international community has not been able to define ‘terrorism’ in s

as to be generally acceptable.”57

However, it seems that certain acts of terrorism might constitut

against humanity, as defined in the Statute. On the face of it, the de

murder in Article 7 of the Rome Statute would cover such acts as th

tion of the PanAm flight over Lockerbie, Scotland, in 1988, and the 

the World Trade Center on September 11, 2001:

1. For the purposes of this Statute, ‘crime against humanity’ means an

following acts when committed as part of a widespread or systematic 

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 co

conduct involving the multiple commission of acts referred to in para

against any civilian population, pursuant to or in furtherance of a 

organizational policy to commit such attack.58

In both cases there was a systematic59 attack causing multiple deaths o

in furtherance of an organizational policy by terrorist groups.

Whether such cases would be brought before the International 

Court, and whether that Court would accept jurisdiction over them

to be seen. It may be that, if current negotiations in the United Na

ceed in producing a widely accepted and comprehensive conventio

rorism, a new category of crimes following the convention def

terrorism might be added to the Rome Statute by way of the am

mechanism included in that Statute. The existence of such a neutral 

the prosecution of terrorist offenses would have several advant

294

57. KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW (2001), 227

58. See Rome Statute of the International Criminal Court, art. 7, U.N. Doc. A/C

(1998), available at http://www.un.org/law/icc/statute/romefra.htm (Jan. 13, 2003) 

Rome Statute].

59. While not defined in the Rome Statute, the term “systematic” is familiar to re

tribunals and was discussed in Prosecutor v. Akayesu, Judgement, No. ICTR-96-

1998), which stated that: “systematic” may be defined as thoroughly organized and 

regular pattern on the basis of a common policy involving substantial public or privat

See Prosecutor v. Tadic, Opinion and Judgment, No. IT-94-1-T, para. 652 (Ma

excerpted in 36 I.L.M. 908, § 6.4.

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prosecution before the courts of the states most closely affected. The 

portant of these are the transparency and international charact

Court’s proceedings, and the credibility of its findings and sentence

There is some force in the objections raised by the United States to

ICC, or at least in so far as it might in future assert jurisdiction over U

As the almost always indispensable leader of UN and other peace en

operations, US personnel are more likely than others to be exposed to 

bility of maliciously inspired prosecutions for alleged war crimes. The 

of complementarity, which gives primacy to the national courts of t

offender, goes a long way towards meeting that objection. This, of c

sumes that in such a case the United States would be willing at least t

an investigation into the allegations. A negative finding would be ac

the Court as a bar to prosecution before it, unless the decision not to 

in the national jurisdiction “resulted from the unwillingness or the i

the State concerned genuinely to prosecute.”60

Another protection built into the Rome Statute is that where a reque

of a state for the surrender of an accused person to the Court, the requ

may not be required to “act inconsistently with its obligations under int

agreements pursuant to which the consent of a sending state is required 

der a person of that state to the Court, unless the Court can first obtain 

eration of the sending state for the giving of consent to the surrender.”61 

“sending state” is not defined, but it is a term of art used not only to r

state establishing a diplomatic or consular mission in another state (“the 

state”) but also the state which stations military personnel in another s

arrangements of the nature of a status of visiting forces agreement. Thu

tary personnel stationed in Australia would not be surrendered by Austr

Tribunal without the consent of the United States.

The United States introduced into the Security Council in June 20

resolution that would have the effect of excluding from the jurisdict

ICC the personnel of all missions, military and civilian, engaged in o

sanctioned by the United Nations. 62 This is understandable. A 

295

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 

Doc. S/1422/(2002), which provides that consistent with Article 16 of the Rome S

ICC, if a case arises involving current or former officials or personnel from a contri

not a Party to the Rome Statute over acts or omissions relating to a United Nations e

authorized operations, shall for a twelve-month period starting 1 July 2002 not co

proceed with investigation or prosecution of any such case, unless the Security Cou

otherwise.”

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Council resolution would, of course, 

trumpthe provisions of the R

ute.63 Less understandable is a draft bill introduced into Congress, th

can Servicemembers’ Protection Act, which would authorize r

measures in the event that a US citizen were ever placed before th

This is the kind of reaction that dismays America’s allies. A 

triumphalism, or American exceptionalism, serves to undermine th

tional goodwill and spirit of cooperation that alone can defeat the 

terrorism.

Conclusion

The events of September 11th, 2001 have driven home the point th

cant issues impacting coalition operations continue to exist. These iss

ing from the lack of an internationally accepted definition of terrori

problems associated with jurisdiction and extradition of terrorists, 

that a truly effective response to terrorist acts must be through an effe

herent multilateral and multistate effort. Clearly there is much still t

in these areas to win the war on terrorism.

296

63. See Lockerbie Case, supra note 38.

64. Editor’s note: The American Servicemembers’ Protection Act of 2002, was sig

by President George W. Bush on August 2, 2002. Section 7427 of the act au

president to use all necessary means to free certain individuals from the jurisdiction 

See The American Servicemember’s Protection Act of 2002, 22 U.S.C.S. § 7427 (2

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XV

Panel III

Commentary—Maritime & Coaliti

Operations

Kenneth O’Rourke1

well remember the day, during Operation ENDURING FREED

General Tommy Franks2 called me into his office and stated th

gence indicated there were four vessels containing al Qaeda membe

ing Pakistani waters on their way to Northern Africa. His question 

are we authorized to do? My response was that we are within our right

cept them—with some quick coordination, maritime interception o

(MIO) were born. I based my response primarily on Article 51 of the U

ter and articulated that we had the right to intercept vessels containi

ist leaders who represented an immediate threat to our country. S

initial intercept, I have heard many argue that maritime intercepts ar

more than piracy and interference with freedom of the high seas. P

not. The coalition is not interdicting every vessel on the high seas, 

ping every vessel at gunpoint. Interdiction measures are limited in n

1. Commander Kenneth O’Rourke is a US Navy judge advocate serving as the D

Judge Advocate for US Central Command.

2. General Franks is the current commander of the US Central Command. T

Command geographic area of responsibility includes Afghanistan.

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designed to address a specific threat, including what is ultimately a th

to maritime safety.

There are a number of legal authorities used by various nations to 

these operations. Two of the legal justifications for conducting MIO 

many of the coalition partners are the consent of the master and/or 

sent of the flag state to conduct a visit/search. In that regard, th

States has bilateral agreements with various countries permit

boardings. The belligerent right of visit and search is yet another 

some nations rely on. Of course, however, Article 51 of the UN Ch

come to be accepted as the primary basis for undertaking such oper

In this war on terror there is a nontraditional enemy. This war 

have many of the characteristic associated with a traditional war. T

enemy that blends with civilians, a criminal enemy in the case of 

operating with an unrecognized sovereign, the Taliban. Neither of t

mies operate within a recognized chain of command that conforms t

of armed conflict, nor do they have traditional target sets such as m

frastructure and armored vehicle formations to engage. This is a ne

war. This “war” is unique in that it is a blend of fighting criminals 

tional combatants. A war fought applying international criminal law 

law of armed conflict. Nontraditional measures may be required to r

this threat.

For the time being, Article 51 provides the coalition with the nec

thority to engage in maritime interception operations against both 

nal and combatant elements of our enemy. This right to conduct ope

“self-defense” may become attenuated over time, however, as Afgha

comes a legitimate state and al Qaeda goes into, no doubt temporar

As time passes, the question will loom larger and larger as to wheth

mediacy of the threat exists and additional authority is needed. Pe

authority to continue maritime interception operations against ter

ments already exists as a matter of custom under international law

Article 51 justification fade and not provide adequate authority to 

maritime intercept operations against terrorists? Only time will tell.

As we all know, Article 110 of the UN Law of Sea Convention (L

vention) provides authority to exercise limited jurisdiction over fo

vessels. That is, to undertake the right of approach and visit in circu

where it is suspected that a vessel is, among other things, engaged in 

298

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slave trade, or when the vessel is flagless.

Does the international co

need more authority than is provided by Article 51 of the Charter, 

that contained in Article 110 of the LOS Convention, to counter t

from terrorism? I suggest that the additional authority already exists 

and needs to be explicitly recognized. Application of Article 51 has i

limits - temporal limits and geographic limits that are viewed by ma

clude continuing maritime interception operations to thwart presen

ture terrorist threats. It may be time for the international comm

recognize that “terrorism” is an internationally recognized crim

equally as abhorrent as piracy and slavery and that additional autho

quired to combat the threat.

Only the future holds the answer to a number of very important 

related to the war on terrorism in a maritime environment. It rem

seen if the United States and coalition partners can continue to use A

as the basis for maritime interception operations six months or a 

now. Will it work over the entire globe or only close to Afghanistan

be able to approach vessels providing financial support to terrorist 

planning a strike six months from now? Will these actions be accepta

an Article 51 self-defense concept or will new legal authority be re

the international community? Have new legal authorities already be

lished in custom and practice treating vessels playing a part in terr

vessels participating in slavery and piracy? Clearly, there are unknow

future of the war on terrorism. The international community mu

these issues and provide the legal authorities necessary to continue 

cute the war on terrorism in a maritime environment.

299

3. See U.N. Convention on Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), 

BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW SELECTED D

(2001), at 553.

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XVI

Panel III

Commentary—Maritime & Coaliti

Operations

Paul Cronan1

hile Australia has not yet participated in maritime intercep

ations in support of the global war on terrorism, Australia 

involved in maritime interception operations in the Gulf of Arabia 

UN Security Council resolutions against Iraq for over ten years. 

strongly supports the Security Council sanctions enforcement regim

involvement in these operations is ongoing. Given our participatio

maritime interception operations, Australia has been perfectly pos

closely observe the conduct of maritime interception operations in 

the global war on terrorism. In my view, Australia would have few leg

ties supporting these operations which have their legal basis in Article 

UN Charter. Ample legal authority exists for conducting such opera

vided the essential elements of an Article 51 operation are met. Whil

tainly preferable to have a United Nations Security Council R

authorizing these interception operations, such authority is not neces

1. Wing Commander Paul Cronan is the Chief Legal Officer at Headquarters

Theatre.

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the existence of Article 51 and the customary international law right 

this codification of the inherent right of self-defense.

On the subject of significant coalition legal issues that confronted 

in the lead-up to deploying troops in support of the US-led military 

to international terrorism, host nation basing arrangements was ne

of the list. Notwithstanding Australia’s early agreement to support th

coalition, it took some time for Australia to put in place the necessar

tional agreements to support the basing of Australian troops in th

East. Most Middle East countries supported the United States in its e

to root out international terrorism from the region but negotiati

agreements takes time. What quickly became apparent was that the

tial host countries were fielding requests from a variety of nations to 

ple, aircraft, ships, etc. in their territory. Unlike Australia, the Uni

and United Kingdom had pre-existing relationships with many of th

tries and, accordingly had little difficulty activating existing or n

new basing agreements. Australia had few pre-existing agreement

gional Middle East nations and it took time to negotiate relevant bas

This directly impacted on the timing of the deployment of relevant A

Defence Force elements. The lesson for Australia then, and one it 

United States understands well, is that existing strategic relations

countries throughout Australia’s sphere of interest is preferable to 

put such relationships in place only when the need arises.

From a legal planning perspective, Australia had difficulties dep

military legal officers (Judge Advocates) to those locations where t

best value-add to the operation. When the number of personnel dep

an operation are limited, it is often difficult identifying where and w

officers should be involved in the planning and operations process. I

lia’s case, legal officers deploying on operations is a relatively recent 

ena. As the audience recognizes however, early identification and r

of key legal issues can save considerable time and frustration later on

of this inability to position legal officers as desired and get them invo

in the coalition legal planning process, Australia tended to coordina

of engagement only with the United States (as opposed to the Uni

dom and Canada, for example) and only then very late in the ROE 

ment process. Although these ROE seem to be working fine for 

today, from a coalition legal planning perspective this approach is n

mended. Proper positioning of legal officers early and in the right loc

lesson re-learned for Australia’s military legal staff.

302

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XVII

Panel III

Commentary—Maritime & Coaliti

Operations

Neil Brown1

he United Kingdom’s participation in operations against al Q

the Taliban (in support of Operation ENDURING FREEDOM

the exception of the contribution to the International Security and A

Force (ISAF) in Afghanistan, pursuant to the right to self-defense c

Article 51 of the UN Charter. In those operations, the United Kingd

ticipating in an extensive, US-led, multi-national coalition. No single 

alition rules of engagement (ROE) exists for all states partici

Operation ENDURING FREEDOM. Each nation operates under its own 

ROE, for what are perfectly understandable reasons. After all, the 

produced specifically for each mission, taking into account the threa

each nation’s policy and its view of the relevant international law w

define its national mission. Whereas for other coalition and combin

tions, ROE are routinely shared, it seems more than likely, for reason

plain, that nations will, for the foreseeable future, keep a fairly close h

1. Commander Neil Brown is an judge advocate serving in the UK Royal Navy. 

initial phase of Operation ENDURING FREEDOM he was assigned as a liaison of

Central Command.

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ROE applying to their forces undertaking missions in what is often r

as the “global war on terrorism.”

The history of the United Kingdom is one that speaks to our m

volvement in the Gulf of Arabia over a long period. After all, oil prod

the Gulf region began in earnest to meet the need for oil to fuel 

Navy’s ships. In recent years, the United Kingdom has routinely depl

ships to the Gulf, first to keep oil flowing through the Straits of Horm

the Iran–Iraq War, and (apart from initial operations against Iraq 

the invasion of Kuwait) ever since then in support of UN Securit

Resolution 665.2

The Royal Navy’s familiarity with the region has been a tremendo

tional strength, as has working with many of the same coalition 

while adjoined to the US Central Command. In the days following S

11th, this familiarity was also, I sense, something of a complication

haps inevitable that differences between missions not sharing the s

bases would not be immediately obvious, particularly when set again

litical and media background presenting a united front in the war 

ism. The fact that operations against al Qaeda and the Taliban are c

under Article 51 as “collective self-defence” did not appear to ma

than the lawyers) to be significant at the outset. This only becam

when it manifested in practice when UK ROE reflecting the precis

the UK mission were compared to, for example, the US ROE reflecti

mission. The call to service lawyers that “there is an ROE issue,” did 

essarily mean then that there is an ROE issue of the sort usually capa

olution between military commands, but represented instead a fric

between different national policies and law. In the area of our coali

time operations this has been the background to much important a

esting debate, especially in the area of terrorism.

The UK approach to operations against al Qaeda and the Taliba

terms of law and policy, has permitted participation both in operatio

ghanistan and in simultaneous coalition maritime operations aimin

ture, or deprive sea mobility, to terrorists on the high seas, the latter 

a coalition of states all of whose armed forces and other governmen

have collaborated to ensure that the important issues have been co

304

2. S. C. Res. 665, U.N. SCOR, 45th Sess., U.N. Doc S/665/(1990) calls on all mem

“halt inward and outward maritime shipping to inspect their cargos and to e

implementation with the provisions” contained in UN Security Council Resolutio

Res. 661, U.N. SCOR, 45th Sess., U.N. Doc S/661/(1990) calls upon member state

to cease all trade with Iraq.

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and addressed. That is not the same as saying that maritime oper

conducted as part of a global war against terrorism.

Terrorism is not a new phenomena to the United Kingdom, ind

been a part of our everyday lives for several decades. Terrorism has 

ally been dealt with as a law enforcement issue (albeit with military s

civilian authorities) and is thought by many in Europe to be essentia

inal problem. It is accepted of course that the scale and character of t

of September 11th set them apart and are properly assessed as amo

an armed attack for the purposes of Article 51 of the UN Charter, p

states on this occasion to respond in self-defense with military forc

context of this operation, the law of armed conflict clearly overlaps w

national and domestic criminal law and it is the effect of this which 

worked hard to understand and deconflict.

Defining terrorism as a universal crime is a laudable goal but pro

As Professor Shearer properly points out, “terrorism” when defined i

ately susceptible to politicization. This has probably stifled attempt

to a definition before now. By way of example, I recently heard a Ru

officer, on extending his condolences and sympathy to the peop

United States for September 11th, make clear that in his view the si

Afghanistan was identical to that faced by Russia in Chechnya. Wit

ing back on the trite and all too easy phrase about “one man’s terro

another man’s freedom fighter,” this is a relevant example of the 

which will be faced in developing an internationally acceptable defin

will not be susceptible to political abuse.

Notwithstanding that offensive UK operations in Afghanistan ma

ducted under Article 51 of the Charter, acting in collective self-def

the United States, and that in Afghanistan (given the way in which 

and the Taliban are inextricably linked) operations are conducted 

law of armed conflict, it has not appeared clear to me that the same c

essarily be said for the simultaneous maritime operations. There is no 

Navy, nor is there an Afghan Navy. The terrorists, if they are at sea, m

the high seas or in the territorial seas of a third state, and if their v

flagged at all will be in vessels which are also of a third state. The p

exercising belligerent rights in the current circumstances seems to 

fore to be implausible. And so it is my view that we have a situation 

erations under Article 51 may not avail themselves of the full rang

usually available to belligerents in an international armed conflict. T

of this would be to say, for example, that although maritime unit

force such as is necessary and proportional, they may be required 

305

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within the peacetime rules and conventions which apply at sea, a cas

being the United Kingdom’s fairly conservative view of the doctri

state consent. As an example, the Royal Navy recently boarded a 

vessel in the English Channel on the basis of intelligence that the v

carrying terrorists who were armed with some sort of weapon which 

an imminent chemical or biological threat.3 Recognizing that the 

could have occurred under an Article 51 basis of self-defense, th

Kingdom nonetheless, and perhaps somewhat conservatively, requ

received the consent of the flag state to board and search the vess

Professor von Heinegg’s concern that this approach might under

continuing right to stop and search a vessel pursuant to Article 51 

believe that the United Kingdom is simply not prepared to invoke th

self-defense for such boardings without seeking flag state approval u

is necessary and proportional in the operational circumstances, for e

circumstances where a flag state would be unwilling or unable to g

the request would compromise the mission.

As noted earlier, the question arises as to how long coalition mem

in good faith continue to rely upon Article 51 as the legal basis for th

force. From a maritime perspective, existing peacetime law permi

ships to board third party vessels on the high seas is quite limited ind

cle 110 of the UN Convention on the Law of the Sea (LOS Con

provides only limited permission to board when such acts as suspect

slave trading, and unauthorized broadcasting are taking place or th

state-less.4 This is somewhat unsatisfactory, and one wonders whe

the LOS Convention been negotiated in 1992, Article 110 might 

cluded powers to interdict drug traffickers, and whether in 2002 it m

been extended to include terrorism. Professor von Heinegg touche

very important area of third party consent when he talked about it i

306

3. Unknown Author, Anti-Terror Teams Intercept Ship, IRISH TIMES, Dec. 20, 2001, 

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

reprinted in BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW 

DOCUMENTS (2001), at 553. Article 110 provides in relevant part that “[e]xcept w

interference derive from powers conferred by treaty, a warship which encounters on t

a foreign ship, other than a ship entitled to complete immunity in accordance with a

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) th

engaged in unauthorized broadcasting and the flag State of the warship has juris

under article 109; (d) the ship is without nationality; or (e) though flying a fore

or refusing to show its flag, the ship is, in reality, of the same nationality as the wa

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tolerating the control which belligerents might exercise. To extend 

available to belligerents where there are reasonable grounds to susp

neutral vessel is subject to capture, to member states of the UN act

cordance with Charter rights (as verified by the UN Security Counc

its subsequent resolutions), is one thing. Indeed, it is not unreasona

pect and even require that third parties permit us to board their ves

there is intelligence that Taliban or al Qaeda members are on board

that further, and suggest for example that there is a general right o

search of third party vessels without such intelligence, is quite anoth

307

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XVIII

Panel III

Commentary—Maritime & Coaliti

Operations

Jean-Guy Perron1

anada has contributed a significant number of personnel and 

the global war on terrorism. Over the last several years, Cana

ships have conducted maritime interdiction missions to interdict sh

breach of the UN Security Council resolutions on Iraq. However, su

tions do not apply in Operation ENDURING FREEDOM (OEF) and C

ployed it ships to conduct maritime interdiction operations for this 

pursuant to the right of collective and individual self-defense contain

ticle 51 of the UN Charter.

Canada is considered to be in armed conflict with the Taliba

Qaeda and such conflict is not limited geographically to the territ

ghanistan but extends to the international waters of the high seas. 

maritime operations searching for those who support the Taliban or 

or who are themselves such, were termed “visit and search” operatio

1. Lieutenant Colonel Jean-Guy Perron is currently the Assistant Judge Advocate Ge

National Capital Region (Ottawa) in Canada. He was deployed to Tampa, Florida in 

2001 as the legal advisor to the Commander, Canadian Joint Task Force South West 

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visit and search operations were conducted pursuant to the p

found in the San Remo Manual on International Law Applicable to Ar

flicts at Sea.

2

Canadian warships could also intercept other vessels pursuant 

110 of the United Nations Convention on the Law of the Sea.3 The p

is that while there are differing legal bases for conducting boarding o

the facts surrounding each such boarding must be carefully studied so 

sure a legitimate basis for boarding exists in international law.

Recognizing that each state in a coalition is truly the master o

ROE, much effort must be spent to harmonize ROE throughout the 

by sharing and deconflicting competing ROE and understanding t

tions and constraints each coalition member has on its missions. Sti

nizing ROE in a coalition, although sometimes problematic, must 

priority. Each state will have a different interpretation of the applica

ternational law. Operational factors relating to coalition member fo

be considered and domestic and international policy consideration

adhered to. Two weapons systems provide good examples of the chal

herent in structuring ROE for coalition operations: anti-personnel l

and riot control agents. Many states have different rules and restricti

on policy reasons, domestic law, or international law that make t

these systems sometimes quite difficult to synthesize. However

through this process is important for commanders as it helps them un

the constraints and limitations on assigning certain tasks to certain 

units.

On a different matter, Canada too had difficulties getting its force

theater of operations for Operation ENDURING FREEDOM. This dem

the need for improving strategic partnerships with other states throu

world to improve this situation.

Finally, it is interesting to note the efforts that Canada has un

since the events of September 11th unfolded. In the area of anti-t

domestic legislation, the Canadian government passed federal l

310

2. See generally, SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE 

CONFLICTS AT SEA (Louise Doswald-Beck ed., 1995), Section II Visit and Search 

Vessels [hereinafter SAN REMO MANUAL].

3. UN Convention on Law of the Sea, UN Doc. A/CONF.62/122 (1982), art. 110

BARRY CARTER AND PHILLIP TRIMBLE, INTERNATIONAL LAW SELECTED DO

(2001) at 553.

4. See Anti-Terrorism Act, R.S.C., C-36 (Dec. 18, 2001); see also, Unknown Autho

of Anti-Terrorism Act, available at http://canada.justice.gc.ca/en/news/nr/2001/doc_

(Oct. 1, 2002) [hereinafter Anti-Terrorism Act].

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permitting it to better identify, prosecute, and convict terrorist gro

Anti-Terrorism Act permits Canada to ratify the two remaining co

rorism conventions it has signed but has yet to ratify.5 Finally, the 

Legislature has amended the Official Secrets Act6 to address nation

concerns pertaining to terrorist related activities as well as the Ca

dence Act7 to provide a new process for dealing with the disclosure 

tive information in judicial proceedings. Clearly, Canada’s respon

events of September 11th have been quite measured and serious.

311

5. These two conventions are: The International Convention for the Suppres

Financing of Terrorism, G.A. Res. 109, U.N. GAOR 6th Comm., 54 Sess., 76th m

Item 160, U.N. Doc. A/54/109 (1999) and International Convention for the Su

Terrorism Bombings, G.A. Res. 165, U.N. GAOR, 52 Sess, U.N. Doc. A/52/164 (1

6. See Anti-Terrorism Act, supra note 4.

7. Id.

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XIX

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 be

taining jurisdiction over individuals through some type of governm

sion which violates international law and obtaining jurisdiction 

happenstance over an individual. In the former case, such jurisdicti

person constitutes an abuse of process for the court to continue tria

case should be dismissed and the individual discharged. When juris

obtained through happenstance, however, trial may proceed. This 

stands in marked contrast to that taken by the US Supreme Court 

States v. Alvarez-Machain where the Court held that it effectively doe

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 

DEA agent, Humberto Alvarez-Machain was kidnapped by the Mexican police and 

United States to be turned over to DEA agents. Defendant contested the jurisdi

federal district court and the Ninth Circuit Court of Appeals reversed the holding o

court. Upon government appeal to the Supreme Court, that Court reversed and re

holding of the Circuit Court of Appeals holding that a criminal defendant, abdu

United States from a nation with which it has an extradition treaty does not acquire 

the jurisdiction of US courts simply by virtue of the abduction itself when the trea

exclude that a party might resort to self-help for achieving the presence of an ind

U.S. 655 (1992) at 662 [hereinafter Machain].

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Wolff von Heinegg

I do not agree that the practice of irregular rendition has a proper plac

national law. The violation of a nation’s sovereignty by resort to self-h

conscionable. Using armed force to conduct such an irregular re

clearly a violation of international law.

Kenneth O’Rourke

United States courts have, on occasion, suggested that a defen

not be prosecuted if his presence is obtained in violation of specific te

extradition treaty prohibiting abduction.2 Where, however, an e

treaty is not violated and a defendant’s presence is obtained throug

abduction, (commonly known as irregular rendition) the US Supre

has consistently recognized that jurisdiction may nonetheless be pr

ercised.3 The propriety of irregular rendition is less clear, however, w

international community, prompting the United States, as a matter 

not to resort to its use. Having said that, I believe irregular renditio

ues to have its place, particularly in the war on terrorism.

As for international law, I do not agree that irregular rendition is 

prohibited and not a proper mechanism for addressing terrorism. For 

the proposition that Article 51 of the UN Charter would not p

United States to enter a country to conduct a rendition, or rendit

matter of national self-defense is illogical. Certainly, if the United St

have snatched Osama bin Laden to remove the threat to its peace 

rity, instead of engaging in a full blown attack on al Qaeda and the T

would have done so and it would have been, if not more favorable a

of self-defense, at least a less aggressive means authorized under Art

seems incongruous to suggest that a state can resort to a full blown ar

flict, invade another state as a matter of self-defense, but could not u

means of force, such as an irregular rendition, to remove the threa

renditions to remedy criminal activity not amounting to a threat to 

and security of a state raise issues of sovereignty that many believe ar

ported by international law. However, renditions to remedy thre

peace and security of an aggrieved state under Article 51 of the UN 

would be much preferable to full blown military action. Unfortunat

case of addressing the terrorist network operating out of Afghan

United States was unable to take this less severe course of actio

314

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 6

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Osama Bin Laden) and, as a result, needed to resort to armed 

against bin Laden and the Taliban who provided material support to 

Christopher Greenwood

Were the US government to be asked whether it were lawful for t

government to abduct Irish Republican Army suspects from Americ

swer would be no. If this is true, then it must be equally true that it is 

for the United States to abduct offenders who are otherwise not extra

bring them to the United States. It is a clear violation of internationa

state to exercise its jurisdiction on the territory of another. The fac

mestic law supports the subsequent trial of such a person is entirely 

from the question of whether jurisdiction exists to seize that person 

territory of another state. There may perhaps be a self-defense except

in the case of someone such as bin Laden, but this is very much the exc

The normal remedy it seems for such an irregular rendition would 

turn of the person concerned as restoration of the status quo is th

remedy required by law. History provides an example of this type 

where a group of British jailers from Gibraltar who were pursuing 

managed to arrest him on the wrong side of the border with Spain

pect was ultimately returned to Spain to rectify the violation of Span

eignty.4

John Murphy

In United States v. Alvarez-Machain, the issue before the Supreme Cou

bilateral extradition treaty between the United States and Mexico.5 T

ity conclusion in this case was that given that the defendant’s abdu

not in violation of the extradition treaty between the United States 

ico, the rule of Ker v. Illinois did not prohibit the trial of Machain in a 

for violations of the criminal laws of the United States.6 It is wor

though, that if the majority had come to the conclusion that the e

treaty barred this abduction, then the defendant would have been rel

returned to Mexico. The Machain Court also parenthetically addres

sue of customary international law, noting that such an abduction 

have been a violation of customary international law as a violati

315

4. See In re Patrick Lawler in 1 Lord McNair International Law Opinions (1956) at 

5. Machain, supra note 1 at 669–70.

6. Id. at 669–70; citing Ker v. Illinois, 119 U.S. 436 (1886).

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sovereignty of Mexico but that such a violation must properly be con

the executive branch and not the judicial branch.7

Two final points of interest merit mention about this case. First, 

quent history of this case tells us that the government’s case was u

dismissed pursuant to Machain’s motion for summary judgment.8 

Dr. Machain currently has civil litigation pending against the Unit

for damages.9

Yoram Dinstein

There is a risk of confusing two completely unrelated issues. One is w

not an act of abduction from abroad constitutes a violation of the sove

a foreign state. Undoubtedly, that is the case, if the abduction is c

without the consent of the local government. A separate issue is wh

state which acquired custody over an individual through such abdu

breach of the sovereignty of another state and therefore in breach o

tional law) may nevertheless exercise jurisdiction over the abductee

swer is clear: jurisdiction exists.

On the one hand, since the act of abduction is in violation of inte

law, the abducting state incurs responsibility vis-à-vis the other st

sovereignty has been encroached upon. On the other hand, the ju

of the abducting state vis-à-vis the person in the dock is not affect

inter-state clash. The paradigmatic case is that of Adolph Eichman

well known, Eichmann was abducted from Argentina, brought 

tried there, convicted, and executed. The matter was brought by A

before the Security Council.11 Interestingly enough, the Security 

316

7. Id. at 669–70.

8. See Machain, supra note 1, at 669–70, rev’d and remanded to United States 

Machain, 971 F.2d 310 (9th Cir. Ct. App. 1992), amended and remanded by sub n

States v. Zuno-Acre, 44 F. 3d (9th Cir. Cal. 1995), post conviction relief denied in part

part 25 F. Supp 2d 1087 (C.D. Cal. 1988), aff’d by 209 F. 3d 1095 (9th Cir. Cal. 200

9. See Alvarez-Machain v. United States, 96 F.3d 1246 (9th Cir. Cal. 1996) amended 

696 (9th Cir. Cal. 1997), cert denied sub nom. Berellez v. Alvarez-Machain, 522 U.S

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 

War II. Abducted by Israeli Mossad agents in 1960 (after a prolonged worldwide sea

put on trial for genocide and related crimes. See generally J. Fawcett, The Eichmann Ca

Y.B. INT’L L. 181 (1962); L.C. Green, The Eichmann Case, 23 MODERN L. REV. 50

Mann, Reflections on the Prosecution of Persons Abducted in Breach of Internatio

INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABAT

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).

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while acknowledging the breach of Argentinian sovereignty, did no

that Israel return Eichmann to Argentina. Eichmann’s case is in 

spects unique. But the view of the US Supreme Court on the underl

was consolidated already in the 19th century in Ker v. Illinois.12 T

held that personal jurisdiction is not affected by the improper m

which a defendant is brought before a court.

Christopher Greenwood

Eichmann is far from a paradigmatic case on the abduction of individ

the territory of another state. First, Eichmann is an egregious case an

no real counterpart to it today. Secondly, the case was decided under 

entirely different world order. Today, the idea that the only violati

posited case is that of the territorial sovereignty of the state where t

tion occurs, simply does not ring true. There is also a violation by the 

state of the international human rights of the abducted individual.

the Human Rights Committee illustrated clearly this to be the case 

This international human right against abduction, is contained in ano

in the prohibition against arbitrary arrest and detention contained 

Nine of the International Covenant on Civil and Political Rights to 

United States is a party.15

International law today would not permit a state to exercise ju

over someone illegally seized for two reasons. In a case like Macha

unlike Eichmann, the state from whose territory the man was abdu

tested throughout, the normal principles of state responsibility requi

ducting state to make good its violation of the other state’s sover

317

12. See Ker v. Illinois, 119 U.S. 436, 444 (1886). Accord Frisbie v. Collins, 342 U

(1952) (no Constitutional prohibition on finding of guilt when criminal defendan

abducted)

13. See Beverly Izes, Drawing Lines in the Sand: When State Sponsored Abduction of W

Should be Permitted, 31 COLUM. J. L. & SOC. PROBS. 1 (1997) 12–14. See 

Morgenstern, Jurisdiction in Seizures Effected in Violation of International Law, 29 BRIT

L. 265, 270 (1952).

14. See Views of the Human Rights Committee on the Complaint of Lopez, 36 U

Supp. No. 40, at 176–84, U.N. Doc. A/36/40 (1981); See also M. Cherif Bassioun

Seizures and Irregular Rendition Devices as Alternatives to Extradition, 7 VAND. J. TRA

25, 59 (1979) (forcible abduction said to violate human right to liberty and fre

arbitrary detention).

15. See International Covenant on Civil and Political Rights, ratified by the Unit

1992, 991 U.N.T.S. 171, 31 I.L.M. 645 (May 1992). Note that the United Stat

consider Articles 1–27 of the covenant as self-executing. See 138 CONG. REC. S4

1992).

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restoring the status quo. Secondly, under the international law in 

today, the abducted individual possesses rights under human righ

which, if taken seriously, operate to ensure that he is not abducted.

The events in Eichmann, are so peculiar to their own facts that t

ize from them is a great mistake. The Machain Court simply create

and happens to turn on a point of US law only. This case was argue

veloped by the defense on the interpretation of a bilateral extradit

and not on the proper grounds of violations of customary internat

Accordingly, if someone is abducted from the United States by 

country, and put on trial in that other country the United States w

mand his return. No remedy less than this under international law 

proper.

Yoram Dinstein

I disagree. I believe that it is very dangerous to apply to extradition law

essentially governs the relations between states—concepts of hum

law. As far as the individual is concerned, assuming that the state ha

tion over him, he should appear before the court when summoned to 

has no human right to be a fugitive from justice. If bounty hunters we

ture and return him, the legality of the act would scarcely be challen

should the position be different if the abduction was carried out by sta

Evidently, all this is not relevant to the grievance to the state whose so

has been disregarded by the abducting agents. The state carrying o

duction may have to compensate or otherwise satisfy the aggrieved 

let us not confuse the state with the individual.

Robert Turner

The Ninth Circuit Court of Appeals in the Machain case, quite simply 

ror and it was proper for the Supreme Court to correct this error in th

bring the decision into line with Ker v. Illinois.

16 The issue here is no

the state has remedies or not but instead, whether the defendant shou

to deprive the US courts of jurisdiction simply because of his abduc

another state. One reason this line of reasoning remains important to

in the global war on terrorism, there are sometimes states that may be 

assist the United States with intelligence on individuals operating wi

borders and may be willing to surreptitiously permit a “cover abduc

avoid angering other terrorists, such states must retain their ability 

318

16. See Machain, supra note 1, at 946 F. 2d 1466 (1991).

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publicly such alleged violations of their sovereignty. This is not to say, 

that such individuals should go free. Accordingly, international law 

to recognize that states may engage in the practice of irregular rendi

Ivan Shearer

Our case study on irregular rendition would not be complete witho

ence to the Second Circuit Court of Appeals case of United 

Toscanino.17 In this 1974 case, the Second Circuit stated that if the 

was accompanied by more than just an abduction, in other words so

tion of due process such as torture or other human rights violation

Second Circuit would refuse to grant jurisdiction over the abducted 

Accordingly, whether the jurisdiction would stand in the event of s

tional harm to the abducted individual, other than the abduction its

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 of engagement (R

combination of mission and threat. Clearly, the mission is defined by p

law. Threat is based on intelligence indicators and often the state of 

order. Currently, the only mission in support of the global war on te

conducted by the United Kingdom that does not explicitly rely upon 

of the UN Charter as its basis for action is that of the UK troops partic

support of the International Security Assistance Force mission in Af

pursuant to Security Council Resolution 1386.19 Of course, notwit

any policy constraints imposed on our forces by ROE, they always p

right to self-defense.

Paul Cronan

From an Australian perspective, we are also relying on Article 51 as 

basis for our involvement in Operation ENDURING FREEDOM. The 

319

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). Thi

provides for the establishment of the “International Security Assistance Force t

Afghan Interim Authority in the maintenance of security in Kabul and its surround

that the Afghan Interim Authority as well as the personnel of the United Nations ca

a secure environment.”

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that must be asked though, is at what point does the authorization to 

in self-defense under Article 51 begin to wane? In other words, what 

our respective countries are not attacked or threatened with attack by 

for the next several years? When does the inherent right to contin

force in self-defense end? How long, for example, can maritime enf

operations based on self-defense continue to be legitimately argued

difficult question and while there exists today a continuing threat, it i

able that this threat will ultimately wane. What then will be the basi

operations?

Jean-Guy Perron

Canadian participation in Operation ENDURING FREEDOM is also ba

collective self-defense provisions contained in Article 51 of the UN 

and in customary international law. Clearly, our forces’ operations are 

and constrained by the law of armed conflict and so our commanders 

must understand how these laws affect their ability to accomplish 

mission.

Terrorism as a Criminal or International Law Problem

Charles Garraway

Up until the last few years, the international community recognized 

as a matter of criminal law to be dealt with by each state independent

not to say that there were not efforts to prohibit broad categories o

acts but rather that these acts once prohibited were typically enforce

the courts of the states affected by them. During the last few years, 

nitely since the events of September 11th, the international view on 

has changed from that of a criminal law matter to that of a law of arme

matter. In many respects, we are now operating in a new paradigm w

for the legal application of deadly force against such terrorists and 

capture and subsequent trial. Perhaps as Commander Brown indica

comments, it would be wise to develop an interagency approach to t

and revise the existing criminal law tools to increase the powers availa

dress the difficult problem of global terrorism.

320

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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

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XX

International Criminal Law Aspects o

War Against Terrorism

Michael Newton1

n March 4, 1801, Thomas Jefferson, the newly inaugurated 

of the United States, took charge of a nation torn between 

bilities of the new century and the uncertainty caused by the changi

warfare. America was a new republic very much aware of its vulnera

facing the future with faith built on dedication to the dual pillars 

through justice and peace through strength.2 As President Jefferson r

liver his inaugural address, America faced a new century filled with 

gers and unfolding challenges that threatened to erode the very foun

our liberty and collective peace. His inaugural message was rooted in o

cratic values, yet articulated an American vision to propel us forwar

tion of purpose and principle in the international arena.

1. Lieutenant Colonel Newton is an Assistant Professor of Law at the US Military 

West Point. He may be reached at michael.newton@usma.edu. The opinions and co

this paper, as well as its flaws, are solely attributable to the author. They do not neces

the views of the Judge Advocate General, the United States Military Academy, the U

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 Cou

Intensity Aggression in the Modern World, in LEGAL AND MORAL CONSTRAINT

INTENSITY CONFLICT, 44 (Alberto R. Coll, et al. eds., 1995), (Vol. 67, US Naval W

International Law Studies).

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Summarizing the themes that would guide America through the u

ties of a new era, President Jefferson began his speech by asserting th

tional principle of seeking “[e]qual and exact justice to all men, of 

state or persuasion, religious or political.”3 President Jefferson po

“bright constellation” composed of nonnegotiable values that would 

to form the “creed of our political faith” and serve as the touchstone 

ture.4 He pointedly told the nation that “should we wander from the

ments of error or alarm, let us hasten to retrace our steps, and to r

road which alone leads us to peace, liberty, and safety.”5 After over 

dred years, these remain in many ways the core objectives for which 

albeit in a much more complicated and changed world.

The shock of the events of September 11 was a visceral kick to 

sciousness of the world. Similar to the September 1972 kidnapping 

der of nine Israeli athletes participating in the Munich Olympi

terrorist attacks were one of those rare galvanizing events that 

across our globe. The attacks directed against America affected ever

age group, religion, and corner of civilization. Though terrorism is n

phenomenon, the September 11 attacks killed citizens of over 80 na

stunned the world by their scope and savagery. In rallying the supp

American people for the campaign against the terrorist aggressor

plaining his vision for the strategic campaign against terrorism, Presid

324

3. Thomas Jefferson, First Inaugural Address, March 4, 1801, reprinted in WILLIAM 

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 allianc

none; the support of state governments in all their rights, as the most com

administration for our domestic concerns, and the surest bulwarks again

republican tendencies: — the preservation of the general government in it

constitutional vigour (sic), as the sheet anchor of our peace at home, an

abroad . . . the diffusion of information, and arraignment of all abuses at the bar o

reason: — freedom of religion; freedom of the press; and freedom of person, un

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 count

policy structures. Vincent Cannistraro and David C. Bresett, The Terrorist Threat In 

ALEXANDER MUNSCH, 16 TERRORISM/DOCUMENTS OF INTERNATIONAL A

CONTROL 3, 26 (1998).

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returned perhaps unconsciously to the themes articulated by Presid

son over two centuries before.7

On September 20, 2001, President Bush addressed a Joint Sessio

gress, aware that the world—and perhaps the terrorist network—was 

The President declared, “we are a country awakened to danger and 

defend freedom. Our grief has turned to anger, and anger to r

Whether we bring our enemies to justice, or bring justice to our ene

tice will be done.”8 President Bush’s declaration of this clear nationa

met by the thunderous applause of the assembled Congress and 

(which also included British Prime Minister Tony Blair). His words s

zens across America to strengthen a communal resolve and rededic

tual commitment to the goal of justice. President Bush further dec

the campaign against international terrorism9 is more than just a fight 

325

7. In another interesting and perhaps ironic parallel, President Jefferson was selected 

chief executive in the wake of one of the most bitterly contested and divisive 

elections in US history. Article II, section 1, clause 3 of the US Constitution speci

House of Representatives shall select the President by ballot if more than one candid

the same number of electoral votes. The House of Representatives did not selec

Jefferson until after a lengthy debate and thirty-five ballots. C.B. TAYLOR,A

HISTORY OF THE UNITED STATES OF AMERICA EMBRACING THE WHOLE PERIOD 

EARLIEST DISCOVERIES TO THE PRESENT TIME 250 (1836).

8. President George W. Bush, Address to a Joint Session of Congress, Septembe

available at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html 

2003). Secretary of State Powell echoed a similar sentiment in his first public comm

from Lima, Peru:

A terrible, terrible tragedy has befallen my nation, but . . . you can be sure that A

will deal with this tragedy in a way that brings those responsible to justice. You 

sure that as terrible a day as this is for us, we will get through it because we are a 

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 la

“international terrorism” means activities that

(A) involve violent acts or acts dangerous to human life that are a violation 

criminal laws of the United States or of any State, or that would be a criminal vio

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; 

(C) occur primarily outside the territory jurisdiction of the United States, or tra

national boundaries in terms of the means by which they are accomplished, the 

they appear intended to intimidate or coerce, or the locale in which the perp

operate or seek asylum.

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American freedoms because it is 

civilizations fightin the sense tha

waged on behalf of all the people who “believe in progress and plural

ance and freedom.”10

Seeking to achieve the goal of justice, the Bush Administratio

shaped the machinery of government around the changed security 

ment. For example, the National Security Strategy of the Unit

focuses on attaining the goal of justice:

[i]n pursuit of our goals, our first imperative is to clarify what we stand 

United States must defend liberty and justice because these principles a

and true for all people everywhere. No nation owns these aspirations, 

nation is exempt from them. Fathers and mothers in all societies wa

children to be educated and to live free from poverty and violence. No 

on earth yearn to be oppressed, aspire to servitude, or eagerly await the m

knock of the secret police. America must stand firmly for the nonne

demands of human dignity: the rule of law; limits on the absolute powe

state; free speech; freedom of worship; equal justice; respect for 

religious and ethnic tolerance; and respect for private property. 11

Though the concept of seeking “justice” to achieve core nationa

goals has been a thread of American political dialogue from the ear

our Republic, the concrete form of that pursuit in practice retains a

often ephemeral, character. “Justice” as a component of US foreign 

valued but vague objective. In the post-September 11 security env

there is no doubt that the inherent and sovereign right of self-defen

the United States to mete out “justice” using its military power.12 

the holistic pursuit of justice embodies a parallel dimension of perso

responsibility. Pursuing personal criminal accountability against inte

terrorists necessarily entails a complicated political dynamic becau

persistence of state sponsorship ranging from philosophical sympathy 

operational support in the form of funding and official sanction for 

and training within the territorial bounds of the state.

The threats to national security presently posed by international 

require a balance between personal punishment of criminal perpetr

326

10. Joint Session, supra note 8.

11. THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 3 

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-De

International Law, 25 HARV. J. L. & PUB. POL’Y 559 (2002).

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the use of military power to eliminate the threats posed by terrorists

tional terrorism remains a national security problem because it is 

form of transnational crime in which private actors seek to unravel 

of civilized society and thereby undermine state, regional, and globa

The simple term “international terrorism” belies the reality that 

seated ideological motives of participants in terrorist acts combine w

cal reality and the interplay of seemingly insoluble root causes to ma

haps the most difficult of all the problems facing internationa

President Bush’s vision reshaped the paradigm for punishing terroris

exclusive reliance on judicial mechanisms to address criminal cond

war-fighting model. In that sense the war on terrorism is much mo

politically convenient phrase. It is a new paradigm which requires 

face between effective judicial mechanisms capable of prosecut

perpetrators who are not eliminated or emasculated by the appl

military power.

This essay will argue that international crimes of terrorism shoul

dled domestically by individual states using existing criminal law me

Rather than blindly heeding the siren’s song of international inst

ization, the states of the world should rededicate themselves to dec

dressing terrorist crimes using their sovereign forums. Bound by a 

unity arising from the ashes of the World Trade Center and the Pent

nations of the world now have a propitious opportunity to reconsid

propriate forums for addressing international crimes of terrorism. C

international criminal process to address terrorism assume the ex

the discrete discipline termed international criminal law which in tu

a normative superiority of internationalized mechanisms over dom

rums. However, the existence of transnational terrorism and the co

of nationals from a variety of nations in the planning and execution 

ist attacks does not mean that those crimes are properly punished i

national penal forum.

This essay superimposes the established framework for addressin

crimes against the arguments in favor of a newly created supranati

cial forum; because the problem of transnational terrorism does not 

of the problems that have been previously addressed by the establi

an internationalized process, such a supranational forum is unnece

could actually undermine the pursuit of justice. The current legal f

is a collage akin to a patchwork quilt of existing norms and conven

seeks to prevent and punish specifically identified terrorist activ

international community has come together to address the core p

327

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transnational terrorism by negotiating a web of occasionally overlap

tilateral conventions. Although this web of conventional law13 is bu

cornerstone of sovereign enforcement of applicable norms, the pers

transnational terrorism as a feature of the international commun

that the existing conventional framework is not a panacea.14 This e

ertheless, concludes that the voluntary efforts of sovereign states 

ment and enforce international norms would not be materially enh

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 pra

empowers domestic states to adjudicate terrorist crimes. Recent a

however, have postulated that an internationalized enforcement mec

warranted simply by virtue of the international nature of the problem

transnational terrorism. International law often evolves in respon

ceived weaknesses in the normative structure that are highlighted b

events.15 This is the pattern for the post-September 11 wave of think

the linkage between international terrorism and an internationalized 

cess. Given the inability of domestic forums to eradicate transnation

ism, it is understandable that the aftermath of September 11 saw a gr

of support for the creation of an international judicial forum to prose

terrorists. Even as they acknowledge that national courts are the bac

the systematic prosecution of international terrorists, some scho

pointed out that an international forum would “symbolize global j

global crimes.”16

328

13. See infra notes 72 to 83.

14. M. CHERIF BASSIOUNI, INTERNATIONAL TERRORISM: MULTILATERAL CON

(1937–2001)(2001); M. Cherif Bassiouni, Legal Control of International Terroris

Oriented Assessment, 43 HARV. INT. L. J. 83, 90 (2001).

15. See generally GEOFFREY BEST, WAR & LAW SINCE 1945 (1994)(focusing on th

development of the law of armed conflict in response to the stimuli of world even

technology, and the weaknesses of codified law as demonstrated by new types of co

CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL 

(2d ed. 1999)(explaining the development of the law regarding crimes against hu

logical progression in response to world affairs and the development of human right

16. Luncheon Address: Rogue Regimes and the Individualization of International 

Marie Slaughter, 36 NEW ENG. L. REV. 815, 820 (2002)(comments based on a m

explication found in Anne-Marie Slaughter & William Burke-White, An 

Constitutional Moment, 43 HARV. INT. L. J. 1 (2002)).

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However, this strain of thought is merely the current incarnat

older set of discarded ideas. Despite nearly a century of discussion an

the nations of the world have not agreed on a comprehensive definit

rorism,17 which is the obvious cornerstone of any international forum 

risdiction over transnational terrorist acts. States instead shifte

universal and general approach towards cooperative efforts to d

criminalize specific manifestations of terrorism through specific m

treaties which bind signatory states to proscribe and punish such 

domestic systems.

As a logical corollary, states have repeatedly rejected proposals fo

arching international tribunal charged with prosecuting crimes o

tional terrorism. The repeated formal rejections of terrorism 

international problem that should be addressed in supranational ju

rums date back to the League of Nations era.18 In 1926, the Inte

Congress of Penal Law recommended that the Permanent Court o

tional Justice “be competent to judge individual liabilities” incurred 

of crimes considered as international offenses “which constitute a 

world peace.”19 This proposal died on the vine of international diplo

The assassination of King Alexander of Yugoslavia in Marseilles 

ber 9, 1934 prompted the French government to propose an inte

convention for the suppression of terrorism in a letter to the Secre

eral of the League of Nations.20 The core of the French proposal was 

tion that an international criminal court would be the most feasible 

addressing political crimes of an international character, and the C

the League responded by establishing a Committee of Experts to 

preliminary draft of “an international convention to assure the rep

329

17. See W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. 

22 (1999); Consensus Eludes Legal Committee in Final Act of Session as it Recomme

Condemnation of Terrorism, Press Release GA/L/3140, Nov. 23, 1999.

18. Voeau of the International Congress of Penal Law Concerning an International Cr

(Brussels, 1926), reprinted in Historical Survey of the Question of International Crimina

Memorandum Submitted by the Secretary-General 74, U.N. Doc. A/CN.4/7Re

(Translating the original French text found in Premier congres international de droit pe

congres 634).

19. Id. This strain of thought eventually led to the development of a draft statute fo

chamber of the Permanent International Court of Justice, 34th Report of the Intern

Association 113–125 (1927).

20. Historical Survey of the Question of International Criminal Jurisdiction, Memorandu

by the Secretary General 16, U.N. Doc. A/CN.4/7Rev.1 (1949).

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conspiracies or crimes committed with a political and terrorist p

From November 1–16, 1937, the International Conference for the R

of Terrorism met in Geneva and adopted a Convention for the Crea

International Criminal Court.22 This effort at an international for

spond to terrorism was implicitly rejected by the international comm

ter only one state (Italy) ratified the multilateral treaty.

Although the proposed 1937 Convention never entered into for

mains highly relevant to the current debate for two reasons. In the f

the jurisdiction of the international court proposed in the 1937 trea

solely from the consent of the affected states,24 and the court was 

applying the “least severe” domestic law of either the state in which t

were committed or the state of the offender’s nationality.25 In effect

Convention created an internationalized process for applying the su

law of different domestic systems, which is the antithesis for mod

ments that an international forum is essential for applying the inte

norms against terrorism.

This model of the 1937 Convention is really the precursor for the 

Court26 and stands in sharp contrast to current efforts to portray tran

terrorism as an international problem that requires a generalized inte

definition and jurisdiction. Secondly, it is important to note that ev

330

21. Id. See also 15 LEAGUE OF NATIONS O.J. 1760 (1934) (containing the tex

resolution passed by the Council).

22. Convention for the Prevention and Punishment of Terrorism, opened for signat

1937, 19 LEAGUE OF NATIONS O.J. 23 (1938), League of Nations Doc. C.546(I).M.3

(1938), reprinted in M. CHERIF BASSIOUNI, INTERNATIONAL TERRORISM: MU

CONVENTIONS (1937–2001) 71 (2001) [hereinafter 1937 Convention].

23. After the Convention was transmitted to all the members of the League of Natio

signed the Convention but only India actually ratified its text.

24. 1937 Convention, supra note 22, art. 21 (referring to the obligation of the dome

enact criminal legislation to punish the acts defined in the underlying multilatera

empowering those same states to “commit the accused to trial” before the Internatio

Court). This provision is in stark contrast to the highly controversial jurisdictional p

the Rome Statute of the International Criminal Court which allow the ICC to 

consenting states in establishing personal jurisdiction over their citizens. Rome S

International Criminal Court, United Nations Diplomatic Conference of Plenipotent

Establishment of an International Criminal Court, July 17, 1998, U.N. Doc. A/C

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 apply

law to prosecute the Libyan nationals responsible for the 1988 bombing of Pan Am 

See http://www.scotcourts.gov.uk/index1.asp?path=%2Fhtml%2Flockerbie%2Eas

2003).

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the multilateral conventions in the sixty

five years of internationa

since the 1937 Convention have adhered to its pattern by defining 

terrorist acts as substantive violations of international law and spec

quiring sovereign states to enact domestic criminal legislation for th

of punishing those acts. This uniform historical pattern undercuts f

guments that the very nature of transnational terrorism requires an 

tional forum and forces proponents of an internationalized process t

burden of overturning the customary practice of the international co

Another persistent strain of thought after September 11 postulate

ternational prosecutions would appear more legitimate, particularl

lim states, than domestic prosecutions, which could be seen w

suspicion overseas. In the view of some commentators, the perceive

macy of US domestic mechanisms, especially the Military Commi

thorized by President Bush,27 mitigates towards the creatio

international supranational tribunal. For example, Justice Richard G

the first chief prosecutor for the International Tribunal for the Pros

Persons Responsible for Serious Violations of International Hum

Law Committed in the Territory of Former Yugoslavia since 1991 

speculated that the perceived difficulty of obtaining a fair trial for te

the United States would cause some countries to resist extraditions 

tic courts, whereas those same countries would be legally barred from 

extradition to a forum created under the Chapter VII authority of 

rity Council.28

331

27. See Military Order of November 13, 2001, Detention, Treatment, and Trial of C

Citizens in the War Against Terrorism, 66 FED. REG. 57,833 (Nov. 16, 2001) (while it is 

scope of this essay to completely assess the merits of the forthcoming military comm

order defines the class of persons subject to the jurisdiction of military commissi

individual who is not a United States citizen” with respect to whom the President de

writing that there is reason to believe that such individual, at the relevant times (i

member of al Qaeda, or (ii) has engaged in, aided, or abetted or conspired to com

international terrorism, or acts in preparation therefore, that have caused, threaten

or have as their aim to cause, injury to or adverse effects on the United States, 

national security, foreign policy or economy; or (iii) has knowingly harbored o

individuals described in subparagraphs (i) or (ii).)

28. Henry Weinstein, A Trial Too Big for the U.S.?, LOS ANGELES TIMES, Oct. 26, 2

Vulliamy, US Dilemma Over Trials of bin Laden, GUARDIAN UNLIMITED OBSERV

2001 (quoting Justice Goldstone as favoring international tribunals for the pro

terrorists and speculating that he would be selected as the first chief prosec

International Criminal Court), available at http://www.observer.uk.co/afghan

0,1501,587365,00.html (Jan. 30, 2003).

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Additionally, in the words of one prominent international lawye

thinking in terms of a global war on terrorism in the long-term, it 

better to try [bin Laden] in an international forum where we could g

put, but also the condemnation of judges from all the world’s legal sy

der both national and international law.”29 In a similar vein, the curr

prosecutor, Carla Del Ponte, reported that “quite a few people” at U

tions headquarters revealed in private conversations that prosecuti

ists in The Hague would be the “most valid solution.”30 This would 

require the Security Council to expand the mandate of the ICTY

Ponte perhaps revealed her agenda for suggesting such an expansion 

caveat that “[i]f the Security Council were to decide to pursue tha

would have to increase the funding earmarked for the Hague Tribu

The Military Order authorizing military commissions has been o

most controversial aspects of the United States’ efforts to bring just

rorists,32 yet even its most vocal critics accept that such forums pro

under the President’s constitutional authority as commander-in

332

29. America’s Legal War on Terrorism: Are These Rules for Hunting Terrorists; Cou

be Brought to Trial (CNN Burden of Proof broadcast, Oct. 6, 2001), cited in David J. S

Future of Atrocity Law, SUFFOLK TRANS. L. REV. 389, 390 n.3 (Summer, 2002). This v

represents a modern incarnation of the views articulated by the then Secretary of St

Jefferson in a letter dated April 18, 1793, 8 WRITINGS OF THOMAS JEFFERSON 11 (1

Compacts . . . between nation and nation, are obligatory on them by the same m

which obliges individuals to observe their compacts. . . . It is true that nations a

judges for themselves; since no one nation has a right to sit in judgment over a

but the tribunal of our conscience remains, and that also of the opinion of the 

These will review the sentence we pass in our own case, and as we respect th

must see that in judging ourselves we have honestly done the part of impart

rigorous judges.

30. Prosecutor Del Ponte Hopes to Try Bin Laden in The Hague, Interview with 

International War Crimes Tribunal Chief Prosecutor Carla Del Ponte, Rome L’Avve

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

http://www.abamet.org/journal/ereport/f8midtribus.html (Jan. 30, 2003); DAVID J

OPTIONS FOR PROSECUTING INTERNATIONAL TERRORISTS, UNITED STATES INS

PEACE SPECIAL REPORT (2001), available at http://www.usip.org/pubs/specialrepor

(Jan. 30, 2003).

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clearly authorized under international law.From this perspecti

than sanctioning a “multiplicity of trials in various countries” the c

an overarching international tribunal that could perhaps include par

of Islamic judges is being packaged as a part of the international 

against terrorism.34 Nevertheless, allowing sovereign states to bypass 

mestic enforcement mechanisms and abdicate their responsibilities t

spawned international mechanism is not likely to be an effective re

the long term.

The cries for an international tribunal imply that an internationa

is always appropriate for crimes grounded in international law that 

conscience of mankind, which in turn implies an unseemly assertion 

mestic prosecutions are always inappropriate and unfair. While te

widespread, and may be impossible to eradicate, the compelling m

that have required the formation of international forums in other co

notably absent.

In other words, despite the inherent difficulty of investigating a

cuting international terrorists, there is no culture of impunity becau

several sovereign states will always have jurisdiction, political will, a

strong motivation to prosecute that particular set of terrorists whe

available evidence sufficient to sustain conviction of persons who a

the substantive and personal jurisdiction of the sovereign state. Crea

international forum specifically designed to respond to crimes of 

would be a wholly new development in the field of international cri

because it would be the first time that an international forum wa

solely due to the nature of the crimes committed. If the nations of 

are committed to combating the core problem of transnational terro

best place is in the domestic forums of affected states. This approac

complish the most in the long term to ensure that the rule of law is 

ened and justice is done.

333

33. William Glaberson, U.S. Faces Tough Choices If Bin Laden Is Captured, N.Y. TIM

22, 2001; Michael R. Belknap, A Putrid Pedigree: the Bush Administration’s Military 

Historical Perspective 38 CAL. W. L. REV. 433, 441 (Spring, 2002). The Bush Admin

pointedly reminded the world that the procedures published that will govern the con

Military Commissions authorized by the President are in full compliance with the in

standards, Article 75, Protocol I. See Protocol Additional to the Geneva Conven

August 1949 and Relating to the Protection of Victims of International Armed Con

U.N.T.S. 3, reprinted in 16 I.L.M. 1391 (1977).

34. Comments by Justice Richard Goldstone, Bringing International Criminals to J

F. Kennedy Library and Foundation Responding to Terrorism Series, Nov. 12, 2001

http://www.jfklibrary.net.forum_goldstone.html (Jan. 30, 2003).

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International Criminal Law

Similarly, an international terrorist tribunal is not warranted by the 

tence of an emerging collection of concepts and processes termed 

tional criminal law.” The concept of international criminal law spring

intersection of two distinct legal planes; due to the nature of the inte

system, the criminal aspects of international law are necessarily imp

through the criminal justice systems of sovereign states. For the purpo

essay, it is important to realize that the simple recognition of legal no

international law in no way leads ineluctably to the conclusion that 

appropriate, or even most desirable forum, is an internationalized co

Though some states cooperate to prescribe some norms in bindin

tional obligations,35 the domestic criminal systems of sovereign stat

a competing set of pragmatic and practical challenges in impleme

enforcing those same norms. The criminal aspects of international 

nate in the choices made by sovereign states who united to criminali

conduct under established international norms.36 In other words, th

nisms of diplomacy and state consent work together to define and 

certain conduct to the point that it ripens into a violation of substan

national norms. From the standpoint of developing binding norms o

through the evolution of international law, the twentieth century wa

of almost breathtaking development.

At the same time, the development of international forums lagg

the substantive development of crimes defined and articulated as a 

international law. Indeed, the principle that states are obligated to u

tic forums to punish violations of international law has roots that ru

the ideas of Hugo Grotius.37 The very nature of sovereign power allow

mestic forums of a state to punish criminals whether their crimes de

international norms or domestic prohibitions. As early as 1842, US 

334

35. Professor Bassiouni has listed 24 categories of international crime generate

international conventions that help guide the merger of international law with crim

CHERIF BASSIOUNI, INTERNATIONAL CRIMINAL LAW CONVENTIONS AND TH

PROVISIONS 20–21 (1997).

36. M. Cherif Bassiouni, The Penal Characteristics of Conventional International Crim

INTERNATIONAL CRIMINAL LAW AND PROCEDURE 27 (John Dugard & Christi

Wyngaert, eds. 1996)(summarizing some twenty different acts and types of conduct 

under binding international conventions and discussing the differing approaches t

international criminal norms).

37. RICHARD TUCK, THE RIGHTS OF WAR AND PEACE: POLITICAL THOUGH

INTERNATIONAL ORDER FROM GROTIUS TO KANT (1999).

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of State Daniel Webster articulated the idea that a nation

s sovere

entails “the strict and faithful observance of all those principles, law

ages which have obtained currency among civilized states, and whic

their object the mitigation of the miseries of war.”38

One way to envision the current state of international criminal 

imagine that pure domestic enforcement of international norms an

finement of new and more effective international forums are like tw

tectonic plates. Even though the body of terrorist conventions fol

pattern of requiring domestic enforcement, there is an inherent tens

fault line between domestic and international criminal forums becau

risdictional allocation is a zero sum game with regard to a particular i

or criminal act.

The phrase “international criminal law” describes a deceptively si

cept that is not confined to the title of law review articles or the sp

brary books. The expression obscures the reality that its genesis l

lawmaking processes of the international community, and cannot th

seen as a linear exercise of legislative mandate accompanied by inte

judicial enforcement. The field of “international criminal law” is an 

ous concept with indistinct boundaries.39

Because no single class of crimes or isolated body of law forms an 

and complete foundation for the currently existing tribunals created 

ternational level to punish individuals for violations of internationa

distinguished scholar and diplomat has proposed the unifying c

“atrocity crimes.”40 In short, the concept of international criminal la

than a mere aspiration to be attained yet falls short of being a co

body of law with an empirical existence and definable contours. For 

observer of this dynamic field, it is not surprising that there is an und

of debate challenging the very existence of a distinct discipline term

national criminal law.”41

335

38. JOHN BASSETT MOORE,1ADIGEST OF INTERNATIONAL LAW 5–6 (1906).

39. Though international criminal law certainly includes the body of law 

international terrorism, this concept also includes crimes against humanity (and its 

parts of persecution of minority populations) torture, some human rights violations

(both in the classic sense of conflicts between nation states and in the growing 

regulating conduct in the context of non-international armed conflicts), genocide

transnational crimes such as piracy, slavery, and drug trafficking.

40. David J. Scheffer, The Future of Atrocity Law, SUFFOLK TRANS. L. REV. 389, 39

2002).

41. See, e.g., Leslie C. Green, Is There an International Criminal Law?, 21 ALBERTA 

(1983).

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As a result of this ambiguity, during the negotiations of the El

Crimes required by Article 9 of the Rome Statute of the Internationa

Court (ICC),42 some delegations vehemently voiced their view that 

cept of “international criminal law” is too ill defined and vague to 

practical meaning. The Elements of Crimes are designed to “assist th

the interpretation and application” of the norms defined in the R

ute.43 The Rome Statute also stipulates that the Court “shall apply

ments of Crimes during its decision-making.44 After agreeing that the 

of Crimes would be much more than a summarized, non-binding s

comments, the delegates negotiated a detailed list of the componen

every one of the numerous offenses proscribed in the Rome Statute 

understanding that the prosecutor must prove each element beyond 

able doubt to sustain a conviction for that offense. A number of deleg

that referencing a discrete body of “international criminal law” in the 

of Crimes document would introduce exactly the kind of circular 

that would defeat the very purpose of negotiating elements for each 

After extensive debate, the nations of the world joined consens

Final Draft Elements of Crimes. The Elements of Crimes are ensh

single, accessible document that takes otherwise amorphous crimes a

eates the conduct, consequences, and circumstances for every offen

with the mens rea that attaches to each component of each crime. 

important development because it portends the possibility tha

around the world now have a unified, consensus document to con

considering the normative content of the crimes of genocide, found in 

of the Rome Statute, crimes against humanity, contained in Article 

expansive list of war crimes contained in Article 8.

The Elements of Crimes are a crosscut of legal norms that are a

shelf source of accessible detail to assist domestic jurisdictions throu

world, in addition to serving as a resource for judicial activities in th

tional arena. Many states are using the agreed elements as a framewo

plementing those crimes within their domestic enforcement mechan

For the purposes of this essay, the Elements do embody consen

ment on the concept of an autonomous legal field termed “internatio

inal law.” The chapeau language to the Article 7 crimes states clearl

336

42. Elements of Crimes, Adopted September 10, 2002, reprinted in Report of the A

States Parties to the Rome Statute of the International Criminal Court, 1st Sess., 108

Doc. ICC-ASP/1/3 (2002).

43. Id., art. 9(1).

44. Id., art. 21.

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crimes against humanity provisions relate to 

international criminal 

accordingly “should be strictly construed.”45 This diplomatic result r

the emergence of an interrelated system in which domestic forums a

sible for implementing international norms, but in no way elevated 

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 eme

a system termed in shorthand “international criminal law” does not m

international forums are the preferred judicial enforcement mechan

pursuit of accountability for international crimes is a notable aspec

dent Bush’s recent observation that the nations of the world are “join

ous purpose—very serious purposes—on which the safety of our peop

fate of our freedom now rest. We build a world of justice, or we wil

world of coercion.”46 Nevertheless, international forums have been 

of last resort rather than the courts primarily charged as the op

response.

Although states cooperate together to define and proscribe crim

international law, the domestic courts of the world have the prima

punishing violations and securing the rule of law.47 The debate 

phrase “international criminal law” described above reflected a c

tension between the international respect for sovereign justice sys

the transcendent importance of truth and accountability. Phrased 

way, none of the international forums in recent history have been c

enforce international norms simply because the offenses were defined 

scribed by the power of international law. Rather, internationalize

nisms have been created only as a necessary fallback when domest

have failed to enforce the transcendent norms of international law.

337

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

http://www.whitehouse.gov/news/releases/2002/05/20020523-2.html (Nov. 20, 200

47. See, e.g., Attorney Gen. of Israel v. Eichmann-Supreme Court Opinion, reprinted 

18, 26, (Isr. Dist. Ct.-Jerusalem, 1961), aff’d 36 I.L.R. 277 (Isr. Sup. Ct., 1962) (inter

is “in the absence of an International Court, in need of the judicial and legislative org

country to give effect to its criminal interdictions and to bring the criminals to trial

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For example, in responding to what President Roosevelt later de

the “blackest crimes in all history,”48 the Allied Powers issued the 

Declaration on October 30, 1943.49 German forces were able to c

most unthinkable brutalities under the shield of Nazi sovereignty. A

ler imposed the Fuehrerprinzip (leadership principle) in order to ex

will as supreme through the police, the courts, the military, and all 

institutions of organized German society.50 The oath of the Nazi par

“I owe inviolable fidelity to Adolf Hitler; I vow absolute obedience t

to the leaders he designates for me.”51 Accordingly, power resided 

from whom subordinates derived absolute authority in hierarchi

This absolute and unconditional obedience to the superior in all are

lic and private life led in Justice Jackson’s famous words to “a Nation

ist despotism equaled only by the dynasties of the ancient East.”52

Sheltered from international scrutiny by German sovereign prerog

domestic system was harnessed to prevent a judicial response to th

dous crimes committed because the outcomes of prosecutions were 

mined to accord with the political guidance of the Fuehrer. The rule 

Germany was therefore twisted to conform to the Nazi party rather 

principles of restraint and justice. In response, the Allied powers used 

cow Declaration to make punishing those perpetrators53 a key allied 

In the context of the current debate over internationalizing justic

portant to note that the Moscow Declaration specifically favored pu

through the national courts in the countries where the crimes were co

The Declaration specifically stated that German criminals were to 

338

48. Statement by the President, March 24, 1944, reprinted in REPORT OF ROBERT H

UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE ON 

TRIBUNALS 12, DEPARTMENT OF STATE PUBLICATION 3080, WASHINGTON D

[hereinafter Jackson Report].

49. IX Department of State Bulletin, No. 228, 310, reprinted in Jackson Report, supra 

11. The Moscow Declaration was actually issued to the Press on November 1, 1

account of the political and legal maneuvering behind the effort to bring this stated w

actuality, see PETER MAGUIRE, LAW AND WAR: AN AMERICAN STORY 85–110 (2

50. DREXEL A. SPRECHER, INSIDE THE NUREMBERG TRIAL:APRO

COMPREHENSIVE ACCOUNT 1037–38.

51. Id. at 157.

52. Opening Statement to the International Military Tribunal at Nuremberg, II TR

MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 

[hereinafter TRIAL OF THE MAJOR WAR CRIMINALS].

53. After extensive debate over the relative merits of the terms “perpetrator” or “a

delegates to the Preparatory Commission (PrepCom) ultimately agreed to use the fo

finalized draft text of the Elements of Crimes for the International Criminal Court

PCNICC/2000/INF/3/Add.2 (2000).

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back to the countries in which their abominable deeds were done in 

they may be judged and punished according to the laws of these 

countries and of the free governments which will be erected there

precedence was clearly stated for building the rule of law at the dome

even though the subject matter jurisdiction for horrific violations c

international law. Presaging the actual International Military Trib

Declaration went on to proclaim that major criminals whose crime

particular geographical localization” would be punished by joint decis

Allied governments.55

Seen through the prism of international criminal law, the Moscow 

tion and the subsequent London Charter did not elevate the interna

rum to an automatic precedence and superiority. The international f

limited only to those offenses where a single country had no greate

for claiming jurisdiction than another country. Justice Jackson recog

reality in his famous opening statement. He accepted the fact that 

national Military Tribunal was merely an alternative to domestic 

prosecuting the “symbols of fierce nationalism and of militarism.”56 H

clarified that any defendants who succeeded in “escaping the cond

of this Tribunal . . . will be delivered up to our continental Allies.”5

Following the legacy of Nuremberg by nearly fifty years, the curre

tribunals were both created in contexts where justice would not be 

or even pursued in domestic forums. Instead of being driven by an 

evaluation of the nature of the offenses as violations of internationa

international community focused on the need to prosecute offender

the domestic enforcement void with an international tribunal. In th

Republic of Yugoslavia, the Milosevic regime exercised dictatorial p

the Yugoslav judicial system that prevented any accountability for 

spread violations of international law. Thus, the “particular circums

the impunity in the Former Yugoslavia warranted the creation of th

tional tribunal.58

Similarly, in the context of the genocide in Rwanda, the Securit

created the International Criminal Tribunal for Rwanda (ICTR) wh

339

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 Re

(1993), U.N. SCOR, 48th Sess., U.N. Doc. S/2-5704, para. 26 (1993).

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would have otherwise been a prosecutorial void. The genocide rip

Rwandan society. All the judges fled and the judicial system was in t

ray. In the case of Rwanda, the problem was not a lack of political 

complete breakdown of the rule of law hampered by a judicial system 

to be incapable of addressing the mass of violations.59

Both the ICTY and ICTR drew their lifeblood from the political 

the Security Council because the only viable system of justice wo

been a newly created international forum. From the perspective of C

gal authority, the ICTY and ICTR are best understood as enforcem

sures of a judicial nature. In other words, the Security Council was 

the circumstances at hand to assume a quasi-sovereign role to creat

nate judicial structures within the territorial bounds that would 

have been policed by responsible governmental structures.60 Natio

gally obligated to accept the decisions of the Security Council.61 H

use of Chapter VII authority in this manner was both unprecedente

genious because the international tribunals were grounded on a 

Council determination that judicial accountability for crimes would 

the maintenance and restoration of international peace and secur

edifice of internationalized justice that has become such a familiar 

on the international scene in the past decade merely filled the void l

functional domestic systems.

In relation to the current debate over creating a supranational for

spond to terrorism, the essential feature of the ad hoc tribunals is t

that they were not created as an international response simply d

nature of the crimes as substantive violations of international law. 

the ad hoc tribunals enjoyed legitimacy and authority over sovereign 

mediately upon their inception by virtue of the plenary authority of 

rity Council with respect to maintaining international peace and 

they represent a limited response to specific enforcement gaps. Th

340

59. See generally VIRGINIA MORRIS & MICHAEL P. SCHARF, THE INTERNATIONAL 

COURT FOR RWANDA (1998).

60. U.N. CHARTER art. 29. See also Theodor Meron, War Crimes in Yugosla

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 th

I.C.J. REPORTS 151 (1962), reprinted in 56 AM. J. INT’L L. 1053 (1962)(holding in p

Security Council has plenary authority under the Charter to take decisions 

enforcement measures under the Charter regime).

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conditions that warranted the creation of the ad hoc tribunals also le

curity Council to mandate a jurisdictional hierarchy in which each 

tional tribunal has explicit jurisdictional “primacy” over nationa

Therefore, the jurisdictional framework of the ad hoc tribunals in n

plies an “inherent supremacy” for international tribunals over domes

that derives simply from the nature of the underlying criminal offens

In the context of the war on terrorism, the formation of the I

ICTR do not warrant the assumption that international mechanism

ways the appropriate response to international crimes. The specific c

interests of eliminating the problem of impunity and restoring respe

rule of law mitigated against relying on domestic enforcement, but 

does that lead to the conclusion that an international forum is the ap

response to international crimes. Unlike the situation in the Former 

via, international terrorists are private actors who act outside the c

of civilized society, and are therefore in no position to block state enf

mechanisms. In Rwanda, the international mechanism was an ess

filler to provide support to a collapsed judicial system.

As noted above, the jurisdictional hierarchy was a logical coroll

use of Chapter VII authority to establish the tribunals. As a legal mat

national efforts are hardly sufficient to be the sole source for dispe

tice.65 As a practical matter, the gap between the victims and t

remains yawning. An effort to create an international tribunal for pr

terrorism would be similarly ineffective as the focal point of effective 

plete enforcement.

The newly established ICC is the culmination of recent efforts t

superstructure of international accountability mechanisms to address 

for international offenses. With respect to the proposal for an inte

341

64. VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTER

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 

legal proceedings (of which 44 are in custody and 11 are provisionally released under 

issued by the Trial Chamber); 33 individuals are currently in various stages of trial wh

have been completed (20 indictments were withdrawn and 10 indictees were dec

ICTR has issued 80 indictments of whom 60 persons are in custody while 20 remai

persons have been sentenced, 1 acquitted; 22 are in trial and 29 are in custody.

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mechanism to try terrorists, it is significant that the Rome Statute d

clude terrorism within its jurisdictional crimes because delegates 

agree on the form of such an offense.66 Despite the clear rejection of 

diction over terrorist crimes during the drafting of the Rome Statute, 

proponents vocally maintained after September 11 that its provisions f

ing crimes against humanity should be twisted to cover terrorist acts a

Attempts to stretch the jurisdictional bounds of the ICC to cover 

terrorism would be the most blatant effort to superimpose internatio

anisms over functioning domestic courts. As of its entry into force 

2002, the Rome Statute purports to establish a permanent supranati

tution that enshrines the principle that state sovereignty can be sub

to the goal of achieving accountability for violations of internationa

tarian law.67 Indeed, one commentator at the diplomatic conference 

argued that “outmoded notions of state sovereignty must not dera

ward movement” towards international peace and order.68 Even the 

dent supporters of the ICC are careful not to portray its potential au

a naked exercise of political power, and view its erosion of state so

only as a necessary but limited incursion.

In other words, the creation of a supranational court empowere

ride the unfettered discretion of some states is seen by the support

ICC as an overdue step towards a uniform system of responsibility de

“promote values fundamental to all democratic and peace-loving 

Depending on their perspectives, commentators on the ICC see eith

pled leadership backed by the courage of deeply held convictions or 

pocrisy and self-serving opportunism.

342

66. See Rome Statute, supra note 24, art 5.

67. See Rome Statute, supra note 24, arts 12–19. The extension of unchecked in

prosecutorial and judicial power over sovereign concerns is one of the primary reas

the United States position to remain unwilling to go forward with the Rome Sta

present form.” David J. Scheffer, The United States and the International Criminal Cou

INT’L L. 14, 21 (1999) [hereinafter Scheffer]. The United States joined internationa

on the Final Draft Rules of Evidence and Procedure and the Final Draft Elements o

June 30, 2000.

68. Benjamin Ferencz, Address to the United Nations Diplomatic Con

Plenipotentiaries on the Establishment of the International Criminal Court (June 

available at http://www.un.org/icc/speeches/616ppc.htm (Jan. 30, 2003).

69. Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consis

Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (2001); Bartram 

Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and 

Tribunals, 23 YALE J. INT’L L. 383, 436 (1998).

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Though its supporters approach the ICC as the penultimate dev

of international criminal justice at the dawn of a new century, the r

core jurisdictional limitation are intellectually identical to the Nurem

bunal and the ad hoc tribunals. Article 1 of the Rome Statute prom

simple language that the court will “be a permanent institution and 

the power to exercise its jurisdiction over persons for the most serio

of international concern . . . and shall be complementary to nationa

jurisdictions.”70 The plain text of Article 1 compels the conclusion 

ICC is intended to supplement sovereign punishment of internatio

tions rather than supplant domestic enforcement of international n

Accordingly, a case is admissible before the ICC only where a dom

ereign that would otherwise exercise jurisdiction is “unwilling or 

genuinely” carry out the investigation or prosecution.71 The pr

complementarity is a mandatory limitation even in a case in which 

jurisdictional criteria are met because the Trial Chamber “shall d

that a case is inadmissible” where the admissibility criteria are not m

hitting a diplomatic dead-end for nearly 70 years, persistent attem

pand (some would say warp) the ICC jurisdictional scope over crim

rorism due to their highly emotionalized nature and the rise of globa

would subvert the complementarity mechanism. Paradoxically, su

pansion would vindicate the stringent arguments of those who view 

national ICC mechanism simply as an international effort to u

sovereignty.

The Nuremberg Tribunal, the ICTR, the ICTY and now the 

erected a formidable edifice of internationalized justice. At the sa

it is absolutely clear that where domestic jurisdictions are functio

internationalized response is not warranted (and in the case of the 

permissible). Though the development of international institutions t

international norms has broken new ground in the past fifty years a

to end impunity in some contexts, international mechanisms are n

priate where domestic courts are complying with the rule of law an

capable of dispensing justice. Consequently, arguments for an inte

terrorist court fall of their own weight unless they can demonstrate 

such a mechanism would fill.

343

70. Rome Statute, supra note 24, art 1. Article 1 echoes the preambular language o

Statute in which the signatories affirm that effective prosecution of international crim

ensured by taking measures at the national level and by enhancing international co

71. Rome Statute, supra note 24, art 17(1). For the negotiating history of the comp

regime, see Newton, supra note 69, at 44–55.

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An International Terrorist Court Has No Purpose

The heading just above would probably seem curious to a casual 

However, in light of the extensive jurisdictional framework conveyi

tensive punitive capacity to sovereign forums, proponents of an inte

terrorist tribunal bear the burden of establishing its usefulness on th

tional landscape. The creation of an international mechanism to pros

rorist crimes would be an inherently political exercise. It would cost a 

of money, and require the expenditure of an enormous amount of poli

will. One of the truths of international diplomacy is that internation

nisms are created by the international community to achieve interna

terests. A terrorist tribunal could actually encourage acts of terro

replaced relatively efficient domestic mechanisms with a cumbersom

sive, and slow process far removed from the realities of everyday pro

and diplomatic practice.

There is no preexisting gap in enforcement mechanisms that woul

by an internationalized process to address crimes of terrorism. As of 

sovereign states of the world have cooperated together in using the U

tions structure to adopt twelve multilateral antiterrorist convention

there are a number of other international instruments that addres

conduct that could be termed “terrorist” depending on the circum

The core body of international instruments includes the following: 

tion on Offenses and Certain Other Acts Committed on Board 

(known as The Tokyo Convention, 1963); Convention for the Supp

Unlawful Seizure of Aircraft73 (known as the Hague Hijacking Co

1970); Convention for the Suppression of Unlawful Acts against the 

Civil Aviation74 (known as the Montreal Convention, 1971); Conv

the Prevention and Punishment of Crimes against Internationally 

Persons, including Diplomatic Agents75 (1973); International Co

344

72. Convention on Offences and Certain Other Acts Committed on Board Aircr

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

1641, 860 U.N.T.S. 105, reprinted in 10 I.L.M. 1333 (1971), available at http://www

humanrts/instree/hague1970.html (Jan. 30, 2003).

74. Convention for the Suppression of Unlawful Acts against the Safety of Civil Av

23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, reprinted in 10 I.L.M. 1151 (1971).

75. Convention on the Prevention and Punishment of Crimes against Int

Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 10

167, reprinted in 13 I.L.M. 41 (1974), available at http://www1.umn.edu/huma

inprotectedpersons.html (Jan. 30, 2003).

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against the Taking of Hostages

(1979); Convention on the Physic

tion of Nuclear Material77 (1979); Protocol for the Suppression of 

Acts of Violence at Airports Serving International Civil Aviation, su

tary to the Convention for the Suppression of Unlawful Acts against 

of Civil Aviation78 (known as the Montreal Protocol, 1988); Conv

the Suppression of Unlawful Acts against the Safety of Maritime Na

(1988); Protocol for the Suppression of Unlawful Acts against the 

Fixed Platforms Located on the Continental Shelf80 (1988); Conv

the Marking of Plastic Explosives for the Purpose of Detection81 (199

national Convention for the Suppression of Terrorist Bombing82 (1

International Convention for the Suppression of the Financing of T

(1999).

As noted above, the piecemeal approach to addressing terrorism 

from the failure of the international community, in conjunction 

United Nations, to develop an overarching, comprehensive co

against terrorism, largely because of lingering dissension over how 

the scope of the international proscription against acts of terrorism. 

gether, the pile of terrorism treaties accomplishes several crucial pu

345

76. International Convention against the Taking of Hostages, Dec. 17, 1979, T.I.

1316 U.N.T.S. 205, reprinted in 18 I.L.M. 1456 (1980), available at http://www

humanrts/instree/takinghostages.html (Jan. 30, 2003).

77. Convention on the Physical Protection of Nuclear Material, Mar. 3, 1980, T.I

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 I

Civil Aviation Supplementary to the Convention for the Suppression of Unlawful 

the Safety of Civil Aviation, Feb. 24, 1988, 974 U.N.T.S. 178,reprinted in 27 I.L.M. 6

79. Convention for the Suppression of Unlawful Acts Against the Safety o

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 Platfo

on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304,reprinted in 27 I.L.M. 68

81. Convention on the Marking of Plastic Explosives for the Purpose of Detection, M

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. R

U.N. GOAR, 52d Sess., U.N. Doc A/RES/52/164, Annex (1997), reprinted in 

BASSIOUNI, INTERNATIONAL TERRORISM: MULTILATERAL CONVENTIONS (1937

(2001), available at http://www.un.org/documents/ga/res/52/a52r164.htm (Jan. 30, 

83. International Convention for the Suppression of the Financing of Terrorism, G

109, 54th Sess., U.N. Doc. A/RES/54/109, Annex (2000), entered into force Ap

available at http://www.un.org/documents/ga/res/54/a54r109.pdf (Jan. 30, 2003).

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Each treaty lists the specific acts that states should proscribe unde

ble domestic law.84 It is fair to say that the international instrument

ing aspects of terrorism have been at the forefront of expanding th

permissible domestic jurisdiction. The terrorist conventions built 

lished principles of territorial and nationality jurisdiction through t

opment of passive personality jurisdiction. Thus, this body of inte

instruments allows a state party to establish personal jurisdiction ov

ers who direct attacks against its nationals regardless of the situs 

tack.85 This principle has been extended to the point that if a perpetr

intends to intimidate the population or to compel a government to 

abstain from taking a particular act, that government may establish 

nal jurisdiction.86 The body of existing conventional law therefore gi

eign states a robust ability to prosecute acts of international terro

generally supports jurisdiction of several states over any particular 

tempted act of international terrorism.

In addition to establishing the norms and the clearly recognizabl

sovereign states to enforce those substantive norms through domest

tion, the existing framework deliberately facilitates the cooperati

necessary to ensure the proper exercise of jurisdiction by one or mo

The underlying goal of the conventions is to facilitate the adminis

justice in the state most able to prosecute the perpetrator. Thus, a 

feature of the texts requires a state party that apprehends an alleged 

in its territory to submit that case “without exception whatsoever” t

petent authorities without “undue delay” for purposes of prosecution 

tradite to another willing state.87 Furthermore, the treaties 

extradition between sovereign states by specifically providing a lega

ther through the text of the convention itself or by inclusion of th

mentioned in the convention into existing or future extradition tr

tween the parties. Lastly, the existing framework of domestic enforc

corporates measures to ensure “the greatest measure of assistance” 

346

84. See, e.g., 18 U.S.C. 32, 2331–2332e, 2339A, 3286, 3592 (2002). See also 28 U.S

(framing issues of jurisdiction).

85. See, e.g., Terrorist Bombing Convention, supra note 82, art. 6(2); Hostage Conve

note 76, art. 5. See also Draft Convention on the Suppression of Acts of Nuclear Terr

Doc. A/AC.252/L.3, reprinted in M. CHERIF BASSIOUNI, INTERNATIONAL T

MULTILATERAL CONVENTIONS (1937–2001) 219 (2001).

86. See, e.g., Terrorist Bombing Convention, supra note 82, art. 2; Financing o

Convention, supra note 83, art. 7(2)(c); Hostage Convention, supra note 76, art. 5(

Platforms Convention, supra note 80, art. 3(2)(c).

87. See, e.g., Terrorist Bombing Convention, supra note 82, art. 8.

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states in connection with investigations and prosecutions related to 

ternational terrorism.88

The Convention on the Prevention and Punishment of Crimes a

ternationally Protected Persons provides a representative sample of t

tion of domestic mechanisms in responding to acts of international 

Its provisions require states parties to cooperate in order to preven

their territories, preparations for attacks on diplomats within or out

territories, to exchange information, and to coordinate administra

sure against such attacks.89 If a perpetrator succeeds in attacking an 

tionally protected person, state parties are obligated to exchange 

information concerning the circumstances of the crime and the a

fender’s identity and whereabouts.90 Ultimately, the state in whose 

the perpetrator is located must either extradite back to another stat

risdiction or “submit, without exception and without undue delay, t

its competent authorities for the purpose of prosecution, through pr

in accordance with the laws of that State.”91

In short, for every terrorist crime committed or attempted, there w

be one or more sovereign states that have both an available basis for 

jurisdiction over the crimes and the motivation to do so. In relati

prosecution of terrorist crimes, there is simply no remaining functio

internationalized process would serve. Nevertheless, if an interna

terrorism tribunal generated a marked deterrent effect on those w

commit similar crimes in the future, the vast amount of dollars, yen, r

euros spent could be a bargain.

Evaluating the potentiality of an internationalized process as an in

of deterrence, it is worth noting that such an international forum 

most certainly be unable to administer capital punishment, and its 

value would therefore be limited to an undetermined degree. Fur

there is no empirical evidence whatsoever of any deterrent effect o

tional justice mechanisms on the actions of real perpetrators in the 

who inflict their crimes on real victims. As Justice Jackson famousl

out in his opening statement at Nuremberg, “[w]ars are started on

347

88. See, e.g., Terrorist Bombing Convention, supra note 82, art. 10(1).

89. Convention on the Prevention and Punishment of Crimes against International

Persons, including Diplomatic Agents, supra note 75, art. 4.

90. Id., art. 5.

91. Id., art. 7.

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theory and in the confidence that they can be won. Persona

ment . . . will probably not be a sufficient deterrent to prevent a war 

war makers feels the chances of defeat to be negligible.”92

Justice Jackson was just articulating the enduring truth that inte

relations theorists are familiar with—regime elites are risk averse 

they see a high probability of punishment and adverse consequence

psychology will often prevent the undesirable conduct. In the field 

ing international norms, this is what we have termed “ending the cy

punity.” In the context of deterring violations of humanitarian law

prosecutions by international tribunals have a theoretical effect, 

hopes and genuine aspirations cannot substitute for the power of ge

terrence. Terrorist actors would presumably be even less susceptible 

nal coercion because their modus operandi is to operate be

constraints of the rule of law and organized international society.

The Kosovo experience is the best available case study on the det

fect of an internationalized process, and it served to demonstrate th

genuine deterrence rather than idealistic assertions of legal proscrip

Security Council repeatedly affirmed ICTY jurisdiction in an ongoin

prevent abuses by the Milosevic regime inside Kosovo, and expressl

the Belgrade regime to cooperate with the investigative efforts of trib

sonnel.93 The same resolution directed the ICTY prosecutor to “beg

ing information related to the violence in Kosovo that may fall 

jurisdiction.”94

In the face of an existing international forum with clear jurisdi

stated international support, Serbian forces massacred forty-five inn

vilians at Racak, Kosovo, crimes that ultimately contributed to the N

tervention in Operation ALLIED FORCE.

95 While governments grum

348

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/1160/(1998).

94. Id., para. 17.

95. Even as the NATO nations gathered in Washington to observe the 50th anniv

alliance, operations in Kosovo threatened to unravel the international posture that 

community of common values based on principles of sovereignty, individual liberty, 

for the rule of law. Operation ALLIED FORCE represented the resolve of the world

military/political alliance to take concrete action against despots who commit 

atrocities. By failing to take strong, if belated, action in the face of the crimes again

committed by the Belgrade regime, NATO would have looked cynical and irrele

security and peace in Europe. THE ECONOMIST 15, Apr. 24, 1999.

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the perceived slow pace of the ICTY investigations,

the Ramboui

ment reiterated ICTY jurisdiction over events in Kosovo through a

provision that required the cooperation of Federal Republic of Y

(FRY) officials with the investigative efforts by ICTY.97

Despite the clear warnings of the international community, and e

risdiction of a functioning international tribunal, Belgrade’s forces 

over 1.5 million Albanians from their homes, committed uncounted 

laged whole communities, destroyed tens of thousands of civilian ho

least 1,200 communities, and murdered an estimated 10,000 Kos

ians.98 The ICTY subsequently indicted Slobodan Milosevic and four 

nior officials for crimes against humanity and violations of the laws o

of war committed in Kosovo,99 one count of which specifically ch

Racak massacre. This indictment and the trials it will spawn continu

debate and keen interest in the law of armed conflict throughout t

Nevertheless, the Milosevic indictment represented an unequivo

rence failure for the established legal codes and judicial framework an

measure of the likely deterrent effect of an international terrorist trib

349

96. Charles Truehart, A New Kind of Justice, THE ATLANTIC MONTHLY 80 (Ap

February, 1999, the Chairman-in-Office of the Organization for Security and Co

Europe reported that there were at least 210,000 internally displaced Kosovars, and 

lack of cooperation by FRY officials with the surviving relatives of the victims from 

massacre. U.N. Doc. S/1999/214/(1999). This unwavering Security Council s

ultimately expressed in the Chapter VII resolution authorizing the international 

civil presence in Kosovo, which “demanded” full cooperation by all parties with 

investigative efforts in the wake of the humanitarian disaster in Kosovo in the first s

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-Governmen

U.N. Doc. S/1999/648, annex, Art. II, para. 13 (1999).

All parties shall comply with their obligation to cooperate in the invest

prosecution of serious violations of international humanitarian law.

a) As required by United Nations Security Council Resolution 827 (199

subsequent resolutions, the Parties shall fully cooperate with the International C

Tribunal for the Former Yugoslavia in its investigations and prosecutions, in

complying with its requests for assistance and its orders.

b) The Parties shall also allow complete, unimpeded, and unfettered ac

international experts—including forensics experts and investigators—to inv

allegations of serious violations of international humanitarian law.

98. ETHNIC CLEANSING IN KOSOVO: AN ACCOUNTING, U.S. DEP’T OF STATE 3 

An earlier version of the report was compiled by the State Department, which also issu

weekly ethnic cleansing reports, available at http://www.state.gov/www/regions/eur (Jan

99. Prosecutor v Milosevic, et al, Indictment, No. IT-99-37 (May 24, 1999), availa

www.un.org/icty/indictment/english/mil-ii990524e.htm (Jan. 30, 2003).

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Security Council Resolution 1373

On September 28, 2001, the Security Council, acting under Chapter 

Charter, adopted Resolution 1373, which on its face is an extraordin

ment of international unity and purpose.100 In the post-Septembe

wave of international concern and cooperation, states had the oppo

revisit the approach that has been developed in dealing with interna

rorism. The patchwork quilt of conventional law, implemented and 

tered through sovereign systems, is clearly not a complete solution

Security Council unanimously elected to reinforce the existing fr

Rather than opting for an internationalized process, the Security Co

cisely framed the language of Resolution 1373 to buttress the current 

Resolution 1373 uses sweeping language to impose a duty on state

legislation and to punish the crimes of terrorism. The operative para

rects every nation in the world to

[e]nsure that any person who participates in the financing, pl

preparation or perpetration of terrorist acts or in supporting terrorist 

brought to justice and ensure that, in addition to any other measures 

them, such terrorist acts are established as serious criminal offences in d

laws and regulations and that the punishment duly reflects the seriou

such terrorist acts.101

Because transnational terrorism is an illegal and immoral epidemic th

mines the stability of world order, the Security Council employed i

authority under Chapter VII to craft the most effective response pos

important that the Security Council focused on improving and imp

the sovereign enforcement of international norms rather than institu

ternationalized judicial response.

In its landmark statement outlining the international response to 

the Security Council also established a number of additional steps tha

states are required to take to combat terrorism. For example, the 

“[d]ecides that all States shall... [p]revent and suppress the financ

rorist acts”102 and then mandated other explicit steps that states a

350

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).

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such as facilitating early warning to other states through the exchang

mation,103 denying safe haven to terrorists,104 and preventing the mo

terrorists by effective border controls and controls on the issuance o

papers and travel documents.105 In the context of criminal investiga

prosecutions, states must “[a]fford one another the greatest measur

tance in connection with criminal investigations or criminal proceed

ing to the financing or support of terrorist acts, including assi

obtaining evidence in their possession necessary for the proceedings

Finally, the Security Council exhorted all sovereign states to take 

of cooperative actions to combat terrorism, including, among others

fying and accelerating the exchange of operational information,”107 

parties to the relevant antiterrorist conventions, including the Inte

Convention for the Suppression of Financing of Terrorism,108 and 

“in conformity with international law,” that refugee status is not 

terrorists, and that “claims of political motivation are not reco

grounds for refusing requests for the extradition of alleged terrorists

Conclusion

My view is that an international tribunal in the present circumsta

inadvisable and unnecessary aspect of the response to transnational 

The world will successfully combat terrorism by aggressively coop

engage, investigate, hunt down, and prosecute those terrorists wh

military action against them. We’ve already seen investigations in 

all around the world that have uncovered links to terrorism—and if 

is credible, have prevented some terrorist attacks. Abdicating state 

bility to an internationalized process would be the first step towards p

politicization of the fight against terrorism and could pave the way to

timate failure in this critical global campaign.

In lieu of creating a superstructure of international enforcement, 

rity Council used Resolution 1373 to take the revolutionary step of es

351

103. Id., para. 2(b).

104. Id., para. 2(c).

105. Id., para. 2(g).

106. Id., para. 2(f).

107. Id., para. 3(a).

108. Id., para. 3(d).

109. Id., para. 3(g).

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a committee (the Counter

Terrorism Committee) to monitor state im

tation of its terms. The Security Council asked all states to report to 

mittee, no later than 90 days after the date of adoption of the resoluti

steps they have taken to implement the various aspects of the res

This is an important effort at identifying the gaps that can be 

through international assistance in creating a more certain expectan

tice for those terrorists and would be terrorists who ignore and unde

international order. In addition to the subsequent Security Council s

on terrorism, the reports that sovereign states have delivered to the 

Terrorism Committee regarding the concrete steps and present statu

national progress in prosecuting terrorist crimes are available on-lin

pathway towards a more secure future for us all treads the terrain of 

international cooperation and sovereign investigations and prosec

international terrorist tribunal would disrupt that vital process.

352

110. Id., para. 6.

111. See http://www.un.org/Docs/sc/committees/1373/ (Jan. 30, 2003).

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XXI

Terrorism:

The Proper Law and the Proper For

Christopher Greenwood1

Introduction

he horrific events of 11 September 2001 changed the whol

of terrorism in the minds not only of Americans but of m

people throughout the world. The atrocities perpetrated by al Qaed

were on a scale that was hitherto (and, we must all hope, for ever 

paralleled. It is obvious, however, that terrorism did not begin that 

also a mistake to conceive of terrorism as something exclusively, or 

marily, directed against the United States. It is almost certainly the 

more lives were lost to terrorism in Algeria during 2001 than were 

by the murders committed at the World Trade Center and the Pen

the names of Algeria’s terrorist victims are unlikely ever to be reco

see the events of 11 September 2001 as the worst case of a phe

which has afflicted most of the world for many years, rather than 

thing unique, is in no way to diminish their horror, still less to excus

duct or minimize the evil of those responsible. It is, however, an 

step which needs to be taken in understanding terrorism and seekin

bat it. A successful strategy against terrorism has to be based on a re

1. Christopher Greenwood is Professor of International Law at the London School o

and Political Science.

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that it is an international phenomenon, the fight against which re

ternational cooperation on a scale which is all too rare.

That is particularly the case with attempts to bring terrorists to 

some respects the record of international cooperation since Septemb

encouraging—the unprecedented action taken by the United Nati

rity Council, and the number of ratifications which the main anti

treaties are now attracting, the broad coalition which cooperated in 

ing al Qaeda’s presence in Afghanistan all demonstrate what can be 

by the international community when it works cohesively. But th

part of the picture. Serious differences remain about the law to be 

acts of terrorism, attempts to characterize terrorists as combatants 

the forum before which terrorist acts can be tried and a host of othe

The purpose of this paper will be to examine two of these issues. F

is the law applicable to international terrorism and the reaction to 

ticular, what is the relationship between the laws of war and inte

criminal law in this context? Secondly, what is the appropriate foru

prosecution of the surviving perpetrators of the 11 September outrag

context, it is also necessary to ask how the machinery for bringing 

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 11 Septe

the reaction they have provoked is whether terrorism falls to be app

reference to the criminal law or the laws of war. The day after the atta

World Trade Center and the Pentagon, the President told the Natio

rity Team that “the deliberate and deadly attacks which were ca

against our country were more than acts of terror; they were acts of war

have argued that what happened was a crime but it had nothing to do 

In approaching this issue, it is important to keep in mind that the 

of crime and act of war are not necessarily exclusive. International 

composed of a series of watertight compartments, each insulated from 

ers. The fact that a particular act is a crime under international law 

der national law) does not mean that it cannot also be an act of 

gravity that it constitutes a casus belli. Thus the fact that the attac

354

2. Remarks by the President in Photo Opportunity with the National Security T

White House Cabinet Room (Sep. 12, 2001), available at http://www.whitehous

releases/2001/09/20010912-4.html# (Apr. 29, 2003).

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World Trade Center and the Pentagon were crimes does not precl

from also constituting an armed attack for the purposes of the rig

defense in international law. That has not prevented a measure of 

controversy on this point. A number of scholars have argued that th

of “armed attack” in Article 51 of the United Nations Charter is co

acts imputable to a state. Others have suggested that there is a bord

tween crime and armed attack which cannot be crossed.

Neither view has much to commend it and both are at odds with 

tice of states and international institutions. Nothing in the text or th

history of the Charter suggests that “armed attack” is confined to t

states. Moreover, the fons et origo of the right of self-defense in inte

law, the famous Caroline incident in 1837, concerned an attack on th

Kingdom’s territory in Canada by a group of what we would now call 

operating from US territory but in no way supported by the Unit

Neither the United States nor the United Kingdom seems to have c

that this fact made any difference to the application of the law on se

and the formulation of the right of self-defense in the correspond

tween them concerning the Caroline has been quoted ever since.3

Nor has state practice or the jurisprudence of international tribu

the adoption of the Charter espoused a formalistic distinction betwe

states and acts of terrorist and other groups in determining what c

an armed attack. The fact that the International Court of Justice, wh

ognized in the Nicaragua case4 that the covert use of force could amo

armed attack, referred only to covert actions by a state should not b

a finding (or even an obiter dictum) that covert uses of force by anyth

than a state could not constitute an armed attack. The simple fact 

was only state conduct which was in issue in the Nicaragua procee

the Court neither needed nor attempted to address the status of vio

petrated without the involvement of a state. Moreover, the Securit

has repeatedly recognized that international terrorism, whether or 

supported, can amount to a threat to international peace and secur

resolutions 1368 and 1373 (2001), adopted in the aftermath of the 

11 September, it expressly recognized that the United States had th

self-defense in terms that could only mean it considered that terrori

a sufficient scale constituted armed attacks for the purposes of Artic

spective of who perpetrated them, for it was already likely by then 

355

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. Un

1986 I.C.J. 3 [hereinafter Nicaragua Case].

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attacks on the World Trade Center and the Pentagon were the w

Qaeda.5 The same approach was taken by the North Atlantic Coun

half of the North Atlantic Treaty Alliance (NATO)6 and the Forei

ters of the Organization of American States (OAS).7

The suggestion by some commentators that international terrorism 

dealt with exclusively through the mode of criminal prosecution of 

vidual and not through an application of the use of force in self-de

anything, even more remote from reality and logic. Arrest, prosec

the ordinary process of the criminal law can occur only once a deg

and order have been reimposed within a society after a shocking res

lence. That reimposition of law and order may well entail the use o

tary even within a state and is still more likely to do so in the c

international society. The prosecution of the Nazi leadership for t

they committed in waging World War II was not an alternative to 

force in self-defense but something which was made possible precisel

the victims of Nazi aggression were able successfully to employ force 

come those aggressors. This is also the approach that must be used 

with the problem of international terrorism. Terrorism on the scal

happened on 11 September cannot be addressed through the medium 

national criminal law or the law on the use of force alone. It requi

scious and judicious application of both.

To that extent, therefore, it is meaningful to talk of terrorism in 

text of the law relating to war, for terrorism may supply a justificati

sort to force under the jus ad bellum. The extent to which th

response to the events of 11 September 2001 was justified under th

Nations Charter is discussed elsewhere in this volume.8 The presen

firmly of the view that the military action in Afghanistan was lawful 

jus ad bellum.9

356

5. See generally, S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(200

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

6. See Press Release, NATO Reaffirms Treaty Commitments in Dealing with Terro

Against the U.S. (Sep. 12, 2001), available at http://www.nato.int/docu/update

e0912a.htm (Apr. 29, 2003).

7. Terrorist Threat to the Americas, OAS Res. RC.24/RES.1/01 (Sep. 21, 2001), re

I.L.M. 1273 (2001).

8. See generally, Chapters II & III supra.

9. Christopher Greenwood, International Law and the “War against Terrorism”, 78 IN

(2002); Christopher Greenwood, International Law and the Pre-emptive Use of Force: 

Al-Qaida and Iraq, 4 SAN DIEGO INT’L L. J. 7 (2003).

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To apply the jus ad bellum in this way, however, is a very differe

from applying the jus in bello to terrorism and the response to terr

course, where the response to an act of terrorism involves the use o

one state against another—as happened in Afghanistan—there will 

ternational armed conflict governed by the jus in bello. Moreover, 

tent that the members of a terrorist movement such as al Qaeda fig

of, or alongside, the armed forces of a state in such a conflict, their 

will be subject to the jus in bello (although they will not qualify for 

of lawful combatants in such a case unless they are integrated into t

forces of a state or form a militia or irregular group responsible to 

and meeting the other criteria of the law of armed conflict10).

That is a very different matter, however, from treating al Qaeda a

erent in its own right and characterizing its relationship with th

States as an armed conflict governed by the jus in bello as some comm

have suggested. Indeed, some have gone so far as to suggest that 

been an armed conflict, presumably of an international character

the United States and al Qaeda that goes back at least to the attac

United States embassies in Kenya and Tanzania in 199811 and possi

early 1990s and the first World Trade Center attack. On this ana

armed conflict was already in being at the time of the 2001 attac

World Trade Center with the result that this attack, against what w

a civilian object containing thousands of civilians, was a war crime. T

on the Pentagon would also have constituted a war crime on thi

even though the Pentagon was itself a military objective, because the 

attack was a hijacked civil airliner.

This theory has the obvious attraction that, as happened in Wor

the crimes which were committed could be tried by military com

Moreover, since this theory means that the United States has been e

an armed conflict for many years, the use of the military on a war fo

under wartime rules of engagement would raise no legal difficulties. 

important considerations but there are several reasons why the te

which they present is one which should be resisted.

357

10. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 1

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, Ta

bombed by powerful car bombs. Over 250 people died in these attacks with over 5,

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).

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First, something does not become so merely because it is usef

should be so. The question whether there is an armed conflict is o

has to be decided by reference to the objective criteria laid down 

national law, not the convenience (or inconvenience) of the resu

may follow.

Secondly, if one applies the criteria of international law, it is cle

Qaeda has neither the right nor the capacity to be a belligerent an

war on the United States. The concept of an international armed 

one which presupposes the existence in all the parties to the conflict 

gal capacity to wage war, that is to say the capacity to be party to inte

agreements on war, to comply with those agreements in the conduct 

ties and, most importantly, to engage in hostilities on a footing of le

ity with one’s adversary. This last consideration is fundamental, for i

the cardinal principles of the law of armed conflict that its rules app

to all parties to the conflict irrespective of whether their resort to 

lawful or unlawful.13 As Sir Hersch Lauterpacht put it, “it is impossib

alize the conduct of hostilities in which one side would be bound b

warfare without benefiting from them and the other side would ben

them without being bound by them.”14 That principle could not be 

hostilities between the United States and al Qaeda.

State practice before 11 September 2001—including, in parti

practice of the United States—was consistent in treating the concep

national armed conflict as something which could normally arise 

tween states. To the extent that there was a departure from this pri

conflicts involving national liberation movements,15 that depar

strictly confined to entities which had a degree of international p

and recognition and which were required to undertake to abide by 

vant international agreements which comprise most of the jus in b

then it was a controversial move and one opposed by the United Sta

is no support in state practice or in the literature of international la

11 September 2001 for treating the concept of international armed c

broad enough to encompass a relationship between a state on the on

358

13. See, e.g., United States v. List, in TRIALS OF WAR CRIMINALS BEFORE THE N

MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, vol. 11, at 1

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. B

206, 212 (1953).

15. Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts, arts. 1(4) and 96(3), De

1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977).

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a group which has no legal personality, no territory, no capacity t

with the laws of the armed conflict (even if it wished to do so), and n

tence to wage war in the terms of traditional international law.

Nor is there any sign that the United States regarded itself as enga

armed conflict with al Qaeda prior to 11 September 2001. The re

earlier acts of terrorism by al Qaeda was not couched in terms of t

armed conflict.16 Consequently, the suggestion that there has been 

conflict between the two dating back, perhaps, to 1993 and the first 

the World Trade Center, requires us to accept that such a confli

even though the United States was apparently unaware of the fa

better part of a decade.

Finally, while the disadvantages of characterizing the relationsh

Qaeda as an armed conflict can no more preclude that relationship f

an armed conflict than the advantages of so characterizing it can ma

it is important to realize that the policy considerations are by no m

sided. To treat al Qaeda as a belligerent is to confer upon it a status t

is not entitled and does not deserve but which will inevitably sugges

observers a degree of equality in its relations with the United St

worth recalling that in the 1980s one of the demands made by the P

Irish Republican Army (IRA) was that the United Kingdom should 

members as combatants, not as common criminals. The United 

rightly resisted this demand even when ten IRA and Irish National L

Army (INLA) members starved themselves to death in protest. W

give al Qaeda precisely what was demanded by, and denied to, the IR

so will inevitably be taken as conferring an element of legitimacy on 

olence which can have no legitimate basis whatever.

In addition, if the United States is engaged in an international ar

flict with al Qaeda, then its operations must be conducted by memb

armed forces subject to military discipline and not by the members o

such as the Central Intelligence Agency or the Federal Bureau of 

tion. There may also be serious consequences in the application of 

neutrality by states which choose to stand aside from the conflict (as 

armed conflict gives them every right to do).

359

16. See, e.g., Remarks by President William Clinton on Departure for Washingto

Martha’s Vineyard (Aug. 20, 1998), 34 WEEKLY COMP. PRES. DOC. 1642 (Aug. 2

his remarks explaining the US response to the embassy attacks, President Clinton did 

the laws of armed conflict as the basis for the US response.

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An earlier speaker

suggested that when the law interferes with 

series of policy imperatives, the law should be “retooled.” The pres

accepts that international terrorism poses new threats which cal

thinking but that does not mean that law built up with painstaking 

many years can or should be brushed aside in favor of the “policy imp

of the moment. This is so not least because conflict between law a

often masks a hidden conflict between immediate short-term pol

tives and longer-term policy imperatives. In the long run, it is paten

interests of the United States that the rule of international law shou

held and, in particular, that the laws of war should be respected 

principles such as equal application and the proper treatment of pr

war of which the United States has long been the champion shou

undermined.

At the very least, therefore, a departure from these principles co

the policy interests of the United States only if it was really necessary

is not the case. The claim that the United States is engaged in an ar

flict has nothing to do with the legality of using force under the jus a

That has to be judged by reference to the criteria of self-defense 

above (and in other chapters of this volume) irrespective of wh

United States is engaged in an armed conflict with al Qaeda. Moreo

ing in international law precludes the United States from using 

forces in counter-terrorist operations unless the jus in bello is applic

does international law fetter the use of lethal force or the adoption 

rules of engagement when military forces are engaged in counter-te

erations in a way that can be avoided by the expedient of declarin

armed conflict exists. It is difficult, therefore, to see what can be 

terms of international law by a distortion of the concept of armed c

make it fit the operations against al Qaeda. If US law creates diffi

the US Government—because, for example, of the application of 

Comitatus Act18—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 applicab

the criminal law (both national and international) on terrorist a

should be made clear that the brief analysis which follows is confined 

ism of a clearly international character. The most obvious point a

360

17. See Chapter XI supra.

18. 18 U.S.C. § 1385 (2003).

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international terrorism is that the acts by which it is accomplish

course, crimes under domestic law. A striking (and profoundly depre

ture of the debate discussing the crimes committed on September 1

the most obvious crime, murder, is often omitted. Murder does not c

murder simply because the victims are counted in thousands rather 

and twos. It does not cease to be murder because it is carried out by 

jacked aircraft into buildings rather than by more conventional m

Lockerbie verdict is a vindication of the principle that terrorist killing

liberate taking of life by terrorists—can and should be prosecuted as m

Other crimes may exist in cases where no deaths occurred or a 

link between the individual being prosecuted and the casualties 

cannot be established. Such crimes include crimes committed on 

aircraft such as those identified in the Hague and Montreal Conv

These crimes are of course found in almost all domestic law systems 

common law countries such as the United States and the United 

the offense of conspiracy offers a valuable weapon against those who 

rorist outrages, even if the offenses they scheme to perpetrate are n

end committed (e.g., because of police intervention). Conspiracy is n

sarily as readily available, however, in civil law countries. Other offe

as the possession of explosives, firearms and biological or chemica

would certainly also be available for charging terrorists. The strik

about the vast majority of these offenses is that they are generally 

crimes covered by the ordinary principles of criminal law.

The fact that in this particular context such crimes are comm

people we would call terrorists may be important for other reasons. 

it does not alter the underlying truth which is that the terrorist is, at 

criminal and nothing more. The dichotomy that society tends to c

tween the common criminal and the terrorist is not always desirab

times this dichotomy seems to be created to make the terrorist crim

worse than he otherwise might. However, what often happens is th

guishing between the ordinary criminal and the terrorist operates to 

terrorist criminal look somehow less than a criminal given the purp

361

19. See Her Majesty’s Advocate v. Megrahi and Fhimah, No. 1475/99, High Court 

at Camp Zeist, the Netherlands, reprinted in 40 I.L.M. 582 (2001). An appeal by M

recently denied on March 14, 2002.

20. See Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Hija

16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105 (1970) [hereinafter Hague Convention

Convention For the Suppression of Unlawful Acts Against the Safety of Civil A

U.S.T. 567, T.I.A.S. No. 7570, 10 I.L.M. 1150 (1971) [hereinafter Montreal Conv

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crimes, for the terrorist often attempts to cloak his actions in the gui

dom fighting and thereby claims that his noble aims permit his ign

Nothing should be allowed to distract from the criminal character 

rorist activity.

Given that terrorist acts almost always constitute domestic crim

are still substantive rules of public international law worth keepin

when discussing these crimes. Many would argue that the Hague a

treal Conventions are relevant when discussing the events of Septem

In one sense, this is not the case. Since all four of the aircraft which 

jacked and then destroyed were US registered, took off from US airp

were flying to other US airports, what happened appears to fall ou

scope of both conventions.21 Nevertheless, although the events of 1

ber 2001 appear to fall outside the scope of both conventions, if a p

of one of the offenses recognized in the Conventions was found in a s

than the United States, the obligation to extradite or prosecute laid 

the Conventions would apply.22

Another Convention, which would have been relevant had th

States been party to it on 11 September 2001, is the Convention for 

pression of Terrorist Bombings (1997).23 Article 2(1) of that Conven

vides that:

Any person commits an offense within the meaning of this Convention 

person unlawfully and intentionally delivers, places, discharges or deton

362

21. See, e.g., Montreal Convention supra note 20, art. 4(2) which provides that the 

shall apply only if:

(a) the place of take-off or landing, actual or intended, of the aircraft is situated 

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 S

registration of the aircraft.

See also the comparable provision in Article 3(3) of the Hague Convention, supra n

22. See, e.g., Montreal Convention, supra note 20, art. 4(3) which provides that the 

that offenses occur outside the state of the registration of the aircraft does not ap

“offender or the alleged offender is found in the territory of a State other than 

registration of the aircraft.” Finding such an offender then triggers a requirement for 

does not extradite him . . . to submit the case to its competent authorities for the 

prosecution.” Montreal Convention, supra note 20, art. 7. See also Articles 3(5), 6 

Hague Convention, supra note 20.

23. See International Convention for the Suppression of Terrorist Bombings, U

Res.52/164 (Dec. 15, 1997), 37 I.L.M. 249 (1998) (not ratified by the United States u

2002)[hereinafter Terrorist Bombing Convention].

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p, gpp, 

government facility, a public transportation system or an infrastructure f

(a) with the intent to cause death or serious bodily injury; or

(b) with the intent to cause extensive destruction of such a place, fa

system, where such destruction results in or is likely to result in major ec

loss.

While the draftsmen of this Convention did not have in mind an atta

out by flying hijacked civil airliners into buildings, relying on the explo

of the impact and the fuel carried by the aircraft to achieve the destr

fect, the language of the Convention is entirely apposite to cover 

curred on 11 September 2001. Indeed, it is an important remin

however unprecedented the events of 11 September may have been, 

ing fabric of international law is capable of dealing with them and t

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 wh

and perpetrated the atrocities of September 11th could also be cha

crimes against humanity. Crimes against humanity are generally con

consist of murder (or certain other offenses) committed as part of a w

or systematic attack directed against a civilian population.24 There 

quirement that the attack occur in an armed conflict.25 Nor are crim

humanity offenses which may be committed only by the state and i

they are also perfectly capable of being committed by non-state actor

the present writer would prefer to deal with the surviving perpetrators 

tacks of 11 September 2001 under the ordinary criminal law, supp

where necessary, by the counter-terrorism treaties, if, for some reason

useful to try them for a crime against humanity, it seems clear that the 

of such a crime were present. Murder was undoubtedly committed a

363

24. See, e.g., Rome Statute of the International Criminal Court, art. 5, U.N. Doc. A/

9 (1998).

25. The requirement of a nexus with armed conflict in Article 5 of the Sta

International Criminal Tribunal for the Former Yugoslavia is a limitation on the ju

that Tribunal and not a requirement of the substantive law.

26. See W.A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMIN

(Cambridge, 2001), 37. To the surprise of the present writer, Professor Schabas 

discussion with the present writer for the BBC Radio programme “Law in Action” o

2001, that the events of 11 September could not constitute a crime against human

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there was not a widespread attack (a matter for debate) there was c

systematic attack on the civilian population.

The Proper Forum

National and International Tribunals

The second question to consider is what is the appropriate forum 

these offenses? Like Lieutenant Colonel Newton, the present wr

from the premise that in most cases the appropriate forum is a natio

and that the most appropriate national court will generally be fou

state where the offense was committed. So far as this writer is conce

proper forum in which to try those persons still alive who were respo

the attacks of September 11th is the courts of competent jurisdict

United States. Although it has sometimes been suggested that a ju

United States could not give a defendant a fair trial in a case 

charged as, for example, one involving the attack on the World Tr

ter, there is no basis for such a suggestion. While it needs to be r

that outside the common law countries the jury is often viewed as a 

the rights of the accused rather than the guarantee of those rights,27 

sense to say that a jury which had heard all of the evidence put bef

trial with the constitutional and other safeguards of the United Stat

and which was properly directed by an experienced judge could not 

in such a case. To accept the argument that a fair trial in the Uni

would be impossible comes perilously close to creating an atmo

which the more serious the crime, the less likely it is that the perpe

be brought to justice, because it is far from obvious that there is a co

other state which would be able to offer a better guarantee of a fair 

tive trial.

The only alternative to trial in a national court would be trial bef

ternational tribunal. Currently there is, of course, no international t

existence which could exercise jurisdiction over the crimes comm

11 September 2001. Neither the International Criminal Tribunal fo

mer Republic of Yugoslavia (ICTY) nor the International Criminal 

for Rwanda (ICTR) has subject matter jurisdiction over the 

September 11th. The International Criminal Court (ICC) does not 

roactive jurisdiction, quite apart from the fact that neither the Uni

364

27. It is noticeable that in the Lockerbie trial, supra note 19, it was the defenda

Government of Libya who insisted on trial without a jury; see Anthony Aust, Lo

Other Case, 49 INT’L & COMP. L. Q. 278 (2000).

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(as the state in whose territory the offenses were committed) nor th

nationality of at least some of the perpetrators are parties to the stat

ICC. An international trial would, therefore, require the creation by 

rity Council of a new court or tribunal. Such a step seems both un

unnecessary.

That is not to say, however, that international tribunals have n

play in the fight against terrorism. The fact that an act of terroris

scale of 11 September 2001 could constitute a crime against human

that future acts of terrorism on that scale could fall within the juris

the ICC. Indeed, it is worth recalling that the possibility of an inte

court exercising jurisdiction over terrorist offenses in cases where the

national court which was in a position to do so without imposing unr

burdens on the state concerned was one of the reasons for the origin

als for the creation of an international criminal court.

On the subject of the ICC, it is necessary to say a little about th

controversy between the United States and most of the Europea

There is no doubt that the differences between the two on this su

deep. That the United States has serious concerns about the ICC is s

which the European governments have to recognize. Some of the c

the United States position is exaggerated, to say the least. The Uni

was under no obligation to become a party to the ICC Statute and 

not to do so is one which has to be respected. At the same time, how

critics of the court should bear in mind that their constant attac

court are at least as exaggerated and may well be counter-produ

many states—probably a majority—the ICC is an important step f

international cooperation against the most serious of crimes. For th

States to denigrate that step while demanding a range of other form

national cooperation against terrorist crime is scarcely the most effe

to win hearts and minds.

Enhancing Effectiveness of National Mechanisms for Bringing T

to Justice

Since domestic courts are generally the most appropriate forum 

those accused of acts of international terrorism can be brought to ju

a matter of the utmost importance that the machinery for cooper

tween states in relation to extradition and mutual assistance in crim

ters should be made as effective as possible. Sadly, the present sys

from effective. Extradition is understandably subject to safeguards f

cused and those safeguards have been supplemented by the effect 

365

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decisions regarding the scope of international human rights trea

need for fundamental safeguards for the accused is, however, an en

ferent matter from some of the restrictions and limitations with whic

tradition process has become hedged around. This is not the pl

detailed examination of these issues but five matters require brief co

First, extradition must ultimately be based upon trust. The reque

has to be willing to trust the requesting state. That trust is not, of cou

trust. It is axiomatic that extradition should not occur without guara

fair trial. However, all too often it seems that our approach to this 

the right to a fair trial is laced with a somewhat parochial attitude in 

perceive as deficiencies in the legal systems of other states any diffe

tween their legal systems and our own. For example, many US law

askance at the absence in English law of a strict exclusionary rule fo

obtained evidence. On the other hand, many in the United Kingdom 

rified by the sight of a US prosecutor standing on the steps of a co

claiming that the defendant has been indicted for the most serious 

terms which—to the British ear—perhaps fail to make entirely clea

ference between indicted and convicted and which, in the United 

would amount to a criminal contempt of court because of the risk of 

ing the jury. Lawyers in both countries (and indeed throughout the 

law world) are amazed at the practice in some civil law states whe

cused’s previous convictions are disclosed to the court at the comm

of the hearing.

It is entirely appropriate and necessary that the fairness of the p

which the accused will be subject in the requesting state is scrutini

requested country. The process of scrutiny, however, has to be acc

by a recognition that the fact that the courts of the requesting state 

different procedures from those of the requested does not mean tha

not offer a fair trial. The fact that a state has no provision for jury 

not automatically exclude evidence illegally obtained, permits press 

on evidence which will be seen by the jury, or that imposes limitati

miliar to (or unknown in) the requested state on the right of appeal 

and of themselves make the trial process in the requesting state unf

Secondly, the fact that in international law there is no duty on 

extradite a suspect in the absence of an extradition treaty between 

and the state which wants to try the suspect makes it a matter of gre

tance that gaps in the network of extradition treaties be closed whe

sible. The multilateral agreements on terrorism, such as the H

Montreal Conventions and the Terrorist Bombings Convention, ar

366

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significance here, since these treaties serve as extradition treaties 

those parties who do not already have bilateral extradition agreemen

This is particularly important, because the negotiation of new 

agreements can be a very slow process, as can the amendment o

agreements. A case in point is the negotiation in the mid-1980s of th

mentary Extradition Treaty between the United Kingdom and th

States, which was designed to facilitate the extradition of terrorist

time, primarily IRA suspects wanted by the United Kingdom).28 Th

was, to say the least, complex and met with stringent opposition f

senators, notwithstanding that the treaty was between allies in 

against terrorism with legal systems that are closely similar.

One feature of the requirement of a treaty as the basis for extradit

many requests for extradition in terrorist cases are governed by t

some antiquity. Those treaties frequently assume that the only base

diction are that the offense was committed on the territory of a r

state or that the accused was a national of that state. Such an ap

however, far too restrictive in dealing with the phenomenon of inte

terrorism. This point was highlighted in the Al-Fawaz case decid

House of Lords in England in 2002. The case concerned a reque

United States for the extradition of three suspects accused of involv

the bombings of the US embassies in East Africa in 1998. It was 

ground that under international law the United States had extraterr

risdiction in respect of these offenses, because they had been direct

embassies and diplomatic personnel but a question was raised as to 

jurisdiction of this kind was sufficient to meet the requirements o

concluded at a time when the concept of jurisdiction was essential

rial. The Divisional Court concluded that it was not (although it hel

defendants could be extradited on the strength of acts perform

United States).

The House of Lords rejected the Divisional Court’s narrow appro

risdiction. As Lord Hutton (who, as a former Chief Justice of Nor

land, has extensive experience of terrorist trials) said in the Al-Faw

in the modern world of international terrorism and crime, proper effec

not be given to the extradition procedures agreed upon between sta

person accused in a requesting state of an offense over which that st

extra-territorial jurisdiction (it also being an offense over which the re

367

28. See Supplementary Treaty Concerning the Extradition Treaty, June 25, 1985

Exec. Rep. 99-17, 99th Cong., 2d Sess., 16 (1986), reprinted in 24 I.L.M. 1104.

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j) 

ground that the offense was not committed within the territory of the req

state.29

This broader approach to jurisdiction is obviously far more likely to p

effective mechanism for international cooperation against forms of 

for which the traditional concept of territorial jurisdiction is who

quate. Yet it must be open to question whether all courts faced with 

older extradition treaties would be willing to give that treaty the broa

pretation which the House of Lords gave to the United Kingdo

States Treaty.

Thirdly, there is the question of the political offender exception 

pears in most extradition treaties. The notion that an accused will n

tradited for a political offense is well established in most national e

laws and has traditionally been seen as an important safeguard of c

ties. Yet the nature of a terrorist offense is that it is almost always c

for political motives. If extradition could be prevented because of th

cal motives, it would effectively be precluded as a means of bringing 

to justice. Fortunately, while the political offender exception was a s

stacle to the extradition of terrorists at one time, it is of far less impo

day. The more modern multilateral counter-terrorist treaties eac

that the offenses to which they apply are not to be regarded as po

fenses.30 Similarly, the European Convention for the Suppression of 

(1977) provides that the crimes to which it applies may not be treate

ical offenses and relies instead upon the safeguard that a defendant s

be extradited if there are substantial grounds for believing that 

would be prejudiced at their trial by virtue of their political beliefs, 

gion or nationality.31 This approach makes far better sense, offeri

guard based on the nature of the process which a defendant wou

extradited, rather than a “get out of jail free” card based on the nat

offense of which they are accused.

Finally, it needs to be borne in mind that some differences betw

systems create obstacles to extradition which cannot be brushed a

most important instance is probably the different attitudes toward 

368

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, 

INTERNATIONAL INSTRUMENTS RELATED TO THE PREVENTION AND SUPPR

INTERNATIONAL TERRORISM (UN, 2001).

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penalty in democratic states. While some, noticeably the United Sta

the death penalty for murder, the majority do not. For the parties to 

pean Convention on Human Rights, this fact creates a serious obsta

tradition in cases where the accused faces a death sentence in the r

state if convicted. In Soering v. United Kingdom32 the European Court 

Rights held that it would be a violation of the prohibition of Articl

Convention (prohibiting torture, inhuman or degrading treatment o

ment) to extradite a person to a non-Convention state if that perso

serious risk of being sentenced to death in a state where there was 

riod of delay between sentence and execution. More significantly, 

party to Protocol 6 to the Convention, there is a broader prohibiti

death penalty which will generally preclude extradition where a d

tence is a real possibility.33 In those circumstances, effective inte

cooperation in bringing terrorists to justice is not compatible with th

nance of capital punishment.

Conclusion

The title of this panel is bringing terrorists to justice. Bringing te

justice means that they must be brought before a court where they 

trial that is fair and is seen to be fair. This is an important part of 

process as it is not enough to lock someone in prison, execute them, 

make them disappear. Instead, to fight terrorism properly, public opi

be convinced of the guilt of the accused and of the egregious natu

crime that he has committed. If that is to be done in an effective man

quires a clear understanding of the law applicable to terrorist crim

high degree of international cooperation.

369

32. Soering v. United Kingdom, 11 Eur. Ct. H.R. 439 (1989).

33. See Protocol 6 to the European Convention for the Protection of Human 

Fundamental Freedoms, April 28, 1983 (entered into force Mar. 1, 1985), E.T.S. 114

22 I.L.M. 539 (1983).

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XXII

Panel IV

Commentary—Bringing

Terrorists to Justice

Manuel Supervielle1

s the Staff Judge Advocate for the US Southern Command

posed to a number of international legal issues occurring in 

national community. Interestingly, given my position, I am expos

Central and Latin America position on these issues which often cau

delve deeply into the positions the US government takes.

Mike Newton’s thesis is that the decision as to how and whe

against international law are dealt with is a question of national pol

To date, this thesis echoes the US position that it has the requisite 

prosecute the types of crimes that many other nations want the Inte

Criminal Court (ICC) to have jurisdiction over. The United State

Uniform Code of Military Justice, a fairly extensive federal criminal 

supporting state subordinate criminal codes. The United States also 

fective, independent judiciary, which is certainly not true in many ar

world. However, something I think that is occasionally missed 

1. Colonel Manuel Supervielle, an Army Judge Advocate, is the Staff Judge Advocat

Southern Command. In this position, he provides legal advice on international and ope

issues to US military commands or operations throughout Central and South Americ

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advocating the US position is that there are many nations that reco

they do not have the rich history of an independent and impartial 

nor do they have the type of separation of powers to remove bias an

tion from the court systems like the United States does. For these 

many seem to prefer the ICC in lieu of their own domestic courts as 

ply do not trust their own judicial and political systems. Hope has 

frustration which has turned to despair in such countries and it is ac

not surprising that such countries see the ICC as holding out hope f

ing on an international scale, what has proven unattainable on the 

scale. Recognizing then that the United States does have the rich, i

ent infrastructure and a proven history of being able to deal with war 

and the like as well as the political will to handle those accused 

against international law, it might nonetheless behoove the anti-I

cates to consider that other nations and their citizens do not have t

of the same rich history. There may be very logical reasons as to w

countries would sign and ratify the Rome Statute that have nothing 

the US view on the statute.

Chris Greenwood’s point that terrorism certainly did not begin on 

ber 11th is exactly correct. While terrorism became of greater impo

many US citizens on that date, it certainly was not created on that d

countries in the region in which I work have long histories of terrori

their borders. As an example, Colombia has lost some 200,000 peop

ous acts of terror by the Revolutionary Armed Forces of Colombia 

last 40 years.2 Peru has had its share of problems with the Sendero 

terrorist group.3 These examples bring to mind the idea that other 

the world have been dealing with the problem of terrorism for many y

United States must be prepared to do so as well.

Finally, against the backdrop of this panel about challenges in bri

rorists to justice and the previous panel on coalition operations, the 

sage of the American Servicemembers’ Protection Act (ASPA) give

372

2. The Revolutionary Armed Forces of Colombia are also known as the FARC.

3. Sendero Luminoso is also known as the Shining Path.

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concern.

While there is much to like about the contents of this bill

by the President, it is likely to make working in coalition operations 

friend and allies much more difficult in some situations than ever b

sically this bill, with the exception of NATO countries, prohibits th

ernment from providing any kind of security assistance to countrie

party to the ICC. Currently, every country in South America, excep

nam, and every country in Central America, except El Salvador an

ras, have signed or ratified the Rome Statute.5

The caveat to the ASPA is that such security assistance may be pr

the United States to such countries as have entered into an Article 

ment agreeing not to permit extradition of US service-members to 

373

4. Editor’s note: The American Servicemember’s Protection Act became law whe

Bush signed the Emergency Anti-Terror Bill on August 2, 2002. Notably, the ASP

“the United States will not recognize the jurisdiction of the International Crimina

United States nationals,” and provides that no United States court, and no agency 

any state or local government, including any court, may cooperate with the ICC in r

request for cooperation submitted by the ICC pursuant to the Rome Statute. ASPA

The ASPA also prohibits the extradition of permanent resident aliens or US citizens 

the use of appropriated funds to assist the ICC; the participation of US service-mem

chapter VI or VII operations, the creation of which is authorized by the UN on or a

the Rome Statute enters into effect (unless the President certifies that the service-m

not risk criminal prosecution by the ICC); and the provision of “military assistance” 

that is a party to the ICC (this prohibition does not apply to NATO countries or 

NATO allies (Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Kor

Zealand) and Taiwan); the President is authorized to waive this prohibition 

assistance if in the national interest of the United States. ASPA, §§ 2004–2007. 

statute grants the President the prospective authority to “use all means ne

appropriate to bring about the release of any (covered) person who is being 

imprisoned by, or on behalf of, or at the request of the International Criminal Court.

§ 2008(a). Covered persons include “members of the Armed Forces of the United St

or appointed officials of the United States Government, and other persons emp

working on behalf of the United States Government, for so long as the United St

party to the International Criminal Court.” See ASPA, § 2013(4).

5. For a current update on signatories to the Rome Statute, see Country 

Ratification Report, accessible at http://untreaty.un.org/ENGLISH/bible/englishin

partI/chapterXVIII/treaty10.asp (Oct. 23, 2002).

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from their countries.

The US State Department is currently purs

agreements with nations throughout the world but is not having grea

Absent such agreements in our area of operations, it will become in

difficult to plan, fund, and conduct coalition operations with ma

long-term allies in the Southern Hemisphere.

374

6. Article 98 of the Rome Statute provides

1. The Court may not proceed with a request for surrender or assistance which 

require the requested State to act inconsistently with its obligations under intern

law with respect to the State or diplomatic immunity of a person or property of 

State, unless the Court can first obtain the cooperation of that third State for the 

of the immunity.

2. The Court may not proceed with a request for surrender which would req

requested State to act inconsistently with its obligations under intern

agreements pursuant to which the consent of a sending State is required to surr

person of that State to the Court, unless the Court can first obtain the cooper

the sending State for the giving of consent for the surrender.

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XXIII

Panel IV

Commentary—Terrorism and the Pro

of Different Legal Regimes

Daniel Helle1

he multi-faceted nature of “terrorism” along with the lack 

monly agreed understanding of the term gives rise to numer

tions on how the problems should be tackled. Such question

determining whether additional or different norms may be necessary 

deciding which acts should be considered as international crimes) an

combat terrorism while respecting the requirements imposed by exis

The following observations essentially relate to the relationship 

different legal regimes, in particular international human rights law

tional humanitarian law (IHL) and international criminal law.2 All 

1. Daniel Helle is the Deputy Head of the ICRC Delegation to the United Nation

2. When discussing the relationship between IHL and international criminal law

“international criminal law instruments” as encompassing those conventions which 

specifically aimed at preventing and repressing terrorism. I do not wish to label 

Conventions or their Additional Protocols as “international criminal law instrumen

of the fact that these conventions contain obligations on all state parties to p

extradite persons suspected of having committed “grave breaches,” several of whic

terrorist acts. This is because the primary aim of IHL instruments is to highlight th

obligations of the parties to a conflict; whereas the regulation of how cas

implementation should be dealt with is treated on a separate, “second” level.

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also other branches of international law, are relevant when addressin

aspects of “terrorism.” While they share the common aim of seeking 

human dignity and security, each have their strengths and weakn

thus should be reserved to address the areas for which they are mos

The concurrent application of different legal regimes in any given 

is normally an advantage, notably because it helps ensure that vari

festations of terrorism can be addressed, taking into account who ha

ted the act (was it a private individual, a member of a party to 

conflict, a representative of a state); who the act was committed again

ian, a member of the armed forces); and the related question of the c

which the act was committed (was it committed during an armed con

“peace-time”).

In some cases, such a concurrence may help prevent the occu

“gaps” in the system. For instance, if during an armed conflict, in

who do not belong to any of the parties to the conflict commit a te

(whatever the motive), humanitarian law may not adequately addr

sue at the penal level and there is a need for international crimin

“kick in.”3

It is not necessarily a significant drawback that different legal regi

to the same event, if they all point toward a similar result, or the p

provided by one legal regime is “subsumed” by the other. Such m

case, for instance, with respect to fair trial guarantees provided i

rights and humanitarian law.

There are, however, instances where different legal regimes point 

ent results, so that their simultaneous application to the same subjec

difficult to reconcile, or they are simply incompatible with each othe

cases, to achieve an acceptable result, it may be necessary to draft or 

the scope of application of the relevant instruments as mutually exc

One potential problem arises when the logic of criminal repre

croaches excessively onto that of humanitarian action and/or hum

law. The preservation of the latter two is an important reason why 

national Committee of the Red Cross (ICRC) has been attentively 

the drafting of international criminal law instruments at the United 

376

3. The parties do have a general responsibility to protect civilians under their cont

duty of diligence cannot be taken so far as to impose a criminal liability for failing 

every single act of violence which may occur. In any event, there also remains the se

to punish the direct perpetrators of such acts.

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An illustration of this possible tension was seen during the draft

International Convention for the Suppression of the Financing of T

The Convention covers more than just the transfer of “funds” as th

normally understood, so as to include notably “assets of every kind

tangible or intangible, movable or immovable.”5 It criminalizes the pr

funds in the knowledge that they are to be used for a terrorist act.6 In 

text of an armed conflict, what then would be the possibility of an org

such as the ICRC to carry out a large-scale humanitarian assistance p

it were to assume that even a small portion of the assistance might b

by rebel groups who are labelled as terrorists by the government? Cou

doing, be accused of committing an international crime? The ICRC 

concerns with government representatives, who amended the text o

convention (by better qualifying the crime), so as to preserve the po

delivering humanitarian assistance in conflict situations.

As a second example, it may be that an act (such as killing a p

labelled as a crime in an international criminal law instrument, wh

same act (such as killing a soldier) is not considered unlawful per se 

ternational humanitarian law. Unless these two situations are disti

there is a risk that members of one of the parties will be labelled a

tional criminals, for the mere fact of having participated in hostilit

may in turn be a disincentive for them to comply with the demands o

itarian law (such as respecting and protecting detainees under their 

If one side ceases to comply with its obligations, there is a further ris

opposite side will soon cease to comply also. The potential consequ

all those finding themselves in the power of a party to the conflict a

posed to the dangers of military operations should be evident.

A part of the problem is that “one man’s terrorist is another m

dom fighter,” as was observed several times during the conference 

ings. This challenge has been a recurring one; for more than a cent

have been divergent views between government representatives on 

the right to take up arms against one another. It must be recalle

connection, that disagreement in 1899 on the resistance moveme

to fight enemy occupation led to the adoption of the Martens Clau

vision which in its contemporary version ensures that no person i

377

4. See International Convention for the Suppression of the Financing of Terrorism

109, U.N. GAOR, 6th Comm., 54th Sess., 76th Mtg., Agenda Item 160, U.N. Do

(1999), reprinted in 39 I.L.M. 270 (2000) [hereinafter Suppression of Financing Co

5. Id., art. 1.

6. Id., art. 2.

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to the arbitrary treatment of authorities, but remains under the pro

the law.7

Excluding an issue from the scope of international criminal law an

it to the domain of IHL does not necessarily mean that it will b

addressed, but rather that a different set of rules takes over. It should 

in this regard that numerous acts of “terrorism” are already square

ited by IHL, whether as such or as acts subsumed under numerous ot

fications, such as hostage-taking, deliberate attacks against civ

indiscriminate attacks. However, as suggested above, it must be 

edged when considering what falls within the notion of “terrorism,” 

acts which are lawful under IHL are clearly unlawful in peacetime.

When the core characteristics of human rights law, humanitaria

criminal law are put in contrast, there is often no real problem to d

their different nature and thus to assess which legal regime should 

upon to guide how terrorism should be countered. There are some ar

ever, where the delimitation between these branches of internatio

imprecise or uncertain, in which case one must carefully seek to est

boundaries of each legal regime. In this process, it can be useful som

approach “the border” from both sides, considering for each those a

that speak for inclusion and those that speak for exclusion of the reg

considered. In this regard, it should be noted that there are risks a

not only with an excessive scope of application of international crim

but also of international humanitarian law. Thus, if there is do

whether various persons can be considered as taking an active/dire

hostilities, it may be relevant to approach the matter not only from 

of IHL, but also to analyze the question from the perspective of hum

(including the right to life) and international criminal law.

The question of bringing “terrorists” before the right tribunal 

function of how one looks at the subject-matter rather than one of 

ogy. One example can be found in Article 5 of the Third Geneva 

tion, where the drafters, according to the records of the proceeding

to have treated broadly, as one issue, the question of how doubts as t

tus of POWs were to be resolved. This issue masks the fact that the

vastly different questions being considered. In one case it may be, for 

that the detaining authorities consider whether the person c

should be sent to a POW camp or to a camp for civilian internees. T

tion is not entirely without importance, since treatment provided by 

378

7. For a discussion of the Martens Clause, see Theodor Meron, The Martens Clause, 

Humanity, and Dictates of Public Conscience, 94 AM. J. INT’L L. 78 (2000).

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Convention is not identical to that provided by the Fourth Conven

however an entirely different matter to decide whether the person c

should be punished for having taken part in hostilities. In the even

death penalty can be imposed, any absence of available fair tria

tees—including with respect to the composition of the tribunal and t

dure adopted, and whether these originate from humanitarian law 

human rights law—opens up the possibility for arbitrary execution. 

above two questions are of a quite different nature, they should als

with as separate matters; notably so that any initial decision with 

where the person should be detained should have no impact on the 

of criminal liability and punishment.

Lastly, it is clear that terrorism must be countered through a mu

means, including diplomatic efforts, international cooperation to 

information and freeze assets, public debate and awareness-raising

but a few. In this regard, IHL neither should be asked to perform m

what it was made for, nor should it be discredited on erroneous grou

as allegedly opposing criminal repression simply because it mandate

treatment and judicial guarantees. Conversely, IHL should be respe

cases where armed conflict occurs, whether or not the purpose of th

is related to terrorism and in regard to all persons involved in or a

the conflict.

According IHL its appropriate place will help secure, on the one h

various branches of international law have sufficient vitality to bring 

to justice, while at the same time preserving other approaches aim

tecting human dignity and public safety.

379

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XXIV

Panel IV

Discussion—Bringing Terrorists to Ju

On the Distinction Between Armed Conflict and Armed Atta

Yoram Dinstein

Care must be taken to distinguish between the two, markedly differen

of “armed conflict” and “armed attack.” The expression “armed atta

rived from Article 51 of the UN Charter and it constitutes the trigg

exercise of the individual or collective right of self-defense. “Armed 

on the other hand, is the term of art characteristic especially of the 19

col I Additional to the Geneva Convention, where it is used in the se

as well as hostilities short of war between states.1

September 11th—Armed Attack, Armed Conflict, Ordinary Crimi

Michael Newton

The United States was in an armed conflict with al Qaeda at the ve

September 11th. There were, in fact, a long series of armed attacks a

personnel and facilities beginning arguably with the downing of the B

helicopters in Mogadishu, including the bombings of the Khobar towe

tacks on the US embassies in Nairobi and Kenya, and the bombing o

Cole in the Yemeni port. These armed attacks were reinforced and ca

1. See generally Protocol Additional (I) to the Geneva Convention of 12 Augus

Relating to the Protection of Victims of International Armed Conflicts, arts. 51.5(a) & 

& (b), Dec. 12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977).

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various al Qaeda members as well as by bin Laden himself. Each time on

armed attacks occurred, the United States had the authority under Ar

the UN Charter to engage in self-defense against al Qaeda. The 1998 

tacks in Afghanistan are one manifestation of the United States pursui

ful right to self-defense.

Christopher Greenwood

I disagree that an armed conflict existed before, or even after, the even

tember 11th between the United States and al Qaeda. Al Qaeda doe

the capacity to make a declaration of war any more than an individua

official governmental capacity has the ability to do so. Politicians and 

ics alike, within the United States and outside, did not take the posit

September 11th that the United States was party to an armed confl

Qaeda. It is only subsequent to these horrible events that some ha

this to be the case. One reason some have taken this position is th

makes the unlawful targeting of civilians a war crime which may b

brought before a military commission. I believe this to be a perversion 

and quite incorrect. In this respect, I agree with Yoram Dinstein. T

preceding and including those on September 11th were armed attac

the meaning of Article 51 of the UN Charter. These acts were threat

national peace and security and the Security Council, nations, and 

clearly identified them as such.2

Is there an armed conflict against Afghanistan? To be sure the

fighting between the United States and al Qaeda personnel alon

Taliban is regulated and governed by the law of armed conflict bu

cause they are al Qaeda members but instead because they are fight

party to an armed conflict—Afghanistan. The fact that an al Qaed

turns up in another country does not mean that they are automatic 

they are not. By claiming to be in an armed conflict with al Qaeda, th

States is giving a degree of legitimacy to people who are really noth

than horrible criminals. This is a terrible error. I believe this error w

exceedingly difficult to proceed against al Qaeda members before m

bunals. The United States will have to try and fit what is essentially 

crime into a framework of criminal offenses designed for crimes of w

Michael Newton

It is doubtful that anyone at this conference would contest the state

the attacks on the World Trade Center and the Pentagon on Septem

382

2. See S. C. Res. 1368, U.N. SCOR, 56th Sess. U.N. Doc. S/1378/(2001).

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were indeed armed attacks within the meaning of Article 51 of the U

ter. This clearly means that the United States may properly invoke i

self-defense under Article 51 as against al Qaeda members—since 

the threat that caused the events of September 11th. The right of se

allows the United States then to do what? Not to engage in intention

on civilians but instead to attack those who have attacked you. This 

the context of an armed conflict. Recall that the United States is no

tory to Protocol I of the Geneva Conventions so as far as the Unite

concerned, these al Qaeda members are not proper combatants w

meaning of Article 44 of this Protocol.3 They are not civilians sinc

taking an active part in hostilities. Nor are they proper combatant

they are unprivileged or unlawful combatants with none of the prot

383

3. 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 

Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of internatio

applicable in armed conflict, violations of these rules shall not deprive a comb

his right to be a combatant or, if he falls into the power of an adverse Party, of his 

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 ef

hostilities, combatants are obliged to distinguish themselves from the 

population while they are engaged in an attack or in a military operation prepar

an attack. Recognizing, however, that there are situations in armed conflicts 

owing to the nature of the hostilities an armed combatant cannot so distinguish 

he shall retain his status as a combatant, provided that, in such situations, he ca

arms openly:

a. during each military engagement, and

b. during such time as he is visible to the adversary while he is engag

military deployment preceding the launching of an attack in which 

participate.

c. Acts which comply with the requirements of this paragraph shall 

considered as perfidious within the meaning of Article 37, paragraph 1 

4. A combatant who falls into the power of an adverse Party while failing to m

requirements set forth in the second sentence of paragraph 3 shall forfeit his righ

prisoner of war, but he shall, nevertheless, be given protections equivalent in all r

to those accorded to prisoners of war by the Third Convention and by this P

This protection includes protections equivalent to those accorded to prisoners o

the Third Convention in the case where such a person is tried and punished 

offences he has committed.

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the Geneva Conventions. As unlawful combatants, however, they ar

ting war crimes which is exactly what al Qaeda members did on S

11th.

Christopher Greenwood

Al Qaeda members are not unlawful, lawful, or any other type of co

at all. Clearly, no one would suggest that they are lawful combata

under Article 44 of GP I. You continue to give al Qaeda member

they do not deserve. I agree that al Qaeda members who are fighti

side Taliban members in Afghanistan are entitled to be called comb

cause that is truly an armed conflict. However, the attack on t

Trade Center was not perpetrated by unlawful, unprivileged, or any 

of combatant or belligerent. It was perpetrated by common crimina

pretend that what these people did was a war crime. It was simpl

Murder under the ordinary criminal code of the United States and N

nothing more, nothing less.

By bringing this notion of an existing armed conflict dating back 

middle of the 1990s, I believe you are undermining the very laws 

conflict. Taking this position, that an armed conflict exists, will mak

more difficult for the United States to bring them to justice.

Michael Newton

Inasmuch as your position suggests that these types of crimes are b

cuted by domestic tribunals, I agree. That is not to say, however, tha

these people to be the same as the ordinary criminal on the streets of 

City. Terrorism clearly overlaps the boundaries between criminal la

law of armed conflict. As practitioners, however, we must be careful n

to apply domestic criminal law restrictions to what are internation

armed conflict issues.

Manuel Supervielle

This is an excellent point given the authorizations typically containe

of engagement when an opposing force is designated hostile. As we 

when this occurs, US soldiers may target the enemy on sight, reg

enemy actions—except of course if they meet the requirements of e

attempting to surrender. With that being said, when we apply a dom

paradigm to these situations, does it mean that the US sniper on th

who suddenly sees an al Qaeda member must attempt to first arre

prosecution through domestic courts, or alternatively, when al Qae

384

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are declared hostile, should he not simply be able to target an al Qa

ber on sight? These are the very real types of issues that must be re

soldiers have clear guidance and instruction in such difficult situatio

Harvey Rishikof

The tension that exists between these two positions is the problem 

with the current classification schemes. Professor Greenwood would 

ference participants believe that al Qaeda members who committed t

on September 11th are garden variety, ordinary criminals. If this is 

then the correct domestic response would be to mobilize the Federal 

Investigation and bring them all to trial in federal court. This would m

the appropriate response would not be one using the military but in

using available police. On the other hand, these same al Qaeda memb

fit neatly within the established classification system of combatant

combatants. Importantly for the future here, these conflicts between 

fication systems must be resolved. In the future, groups that are likel

such problems are likely to be one part criminal, one part terrorist, an

political. How then do we resolve the classification scheme to deal 

category independently as well as different categories when combine

Michael Newton

Fortunately, the law of armed conflict has demonstrated its ability 

over time and that is exactly what is happening now. It is no longer 

treat terrorism in general within the paradigm of ordinary criminal 

The United States has proven since September 11th that it is unwilli

tinue to treat terrorists this way. So the paradigm must expand or shif

shift is to treat such behavior as war crimes precisely because the Uni

is unwilling to recognize the right of a group to attack a sovereign sta

United States will treat them as unlawful combatants, participants if y

like the word combatant, in what is an organized armed conflict, war 

controlled, directed, and funded against the United States.

Christopher Greenwood

An armed conflict has always been defined as a war or conflict bet

states or possibly, in more modern times, between a state and an entity 

national liberation movement which may have many of the attribu

state. Suggesting that the current conflict between al Qaeda and th

States is an armed conflict within the meaning of that term elevates al 

a status it does not deserve nor is it entitled to. On what basis does 

385

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movement such as al Qaeda acquire the right to declare war on a 

state such as the United States? By suggesting that it has that ability, y

upon it a status that it does not otherwise possess. In doing so, you are 

ing its activities. Finally, I am concerned that this is simply a matter 

nience of the moment to refer to al Qaeda in this fashion. It is 

inconsistent with US actions towards al Qaeda in the past.

Adam Roberts

It is important to remember that the Military Order’s jurisdictional m

for violations of the laws of war and for other applicable laws.4 As I u

it then, there has been no exclusion within that framework for trying 

murder exactly as Professor Greenwood suggested they should be.

On Military Commissions

Michael Newton

Military commissions are an ad hoc mechanism that have existed in h

many years. A perception exists that these commissions will someho

up to the requirements of international humanitarian law but if one 

time to look at the Executive Order and the Secretary of Defens

menting Rules, it will be quickly noted that these commissions will in 

vide the required due process and substantial fairness, fairness not f

number of domestic court systems spread throughout the world.5 Ad

military commissions are not the only option for the prosecution of 

tainees who ultimately are prosecuted, they are merely one option 

The United States may also release some detainees to other nations’ c

or to its own federal courts.

Christopher Greenwood

The idea of military tribunals does not actually bother me. I do find o

able, however, the specific provision of the military order which pro

when a trial before a tribunal is ordered closed, the defense counse

disclose what transpired during the closed session to his own client

386

4. See Executive Order, Detention, Treatment, and Trial of Non-Citizens in the W

Terrorism, 13 November 2001, art. 1.(e), available at http://www.whitehouse.gov/ne

2001/11/20011113-27.html (Oct. 10, 2002).

5. See generally id. See also Department of Defense, Military Commission Order No. 1

2002, available at http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf (Oct

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believe that practicing lawyers could be, nor should they be, require

under such conditions. Many lawyers I know consider such a 

unethical.

Michael Newton

Some commentators have taken the position that when armed confli

people must either be combatants or non-combatants. When capt

combatants become prisoners of war while the non-combatants are 

and should be released. The problem with this approach is that it le

whole third category of individuals. These are people who do not q

lawful combatant status but yet have taken part in the hostilities. For 

members of al Qaeda are not lawful combatants if for no other reason 

do not meet the four-part test for becoming a lawful combatant as set 

Hague Regulations of 1907 or the Geneva Conventions of 1949.6 T

category is one of an unprivileged combatant in an armed conflict. 

say by virtue of taking a part in the hostilities, this combatant is prop

get but is not entitled to the protection of the Geneva Conventions a

a lawful combatant. The United States has taken the position that for 

these combatants are unprivileged/unlawful, they may be punished.

On the Challenges Associated with Defining and Addressing Ter

Michael Newton

The underlying act of killing in a political context, killing to create 

terrorism, or killing in an armed conflict context from an actus reus 

sentially the same. That is to say, it is the taking of a life. The difficulty 

defining when it is a lawful taking of life and when the taking of life is 

side the law. As Daniel Helle indicated, this is a significant challenge 

ing the applicable substantive legal provisions that set out what is 

versus what is a political murder versus what is the act of a lawful c

taking part in armed conflict. The conventions on terrorism correctly 

in a number of places that certain acts do not comprise terrorism when 

ted by a lawful combatant taking part in armed conflict. For examp

19(2) of the Convention for the Suppression of Terrorist Bombings s

387

6. See Hague Convention (IV) Respecting the Law and Customs of War on Land, A

Art. 1(1–4); Convention for the Amelioration of the Condition of the Wounded 

Armed Forces in the Field, Aug. 12, 1949, Art. 4(2(a–d)), 6 U.S.T. 3114, T.I.A.S. N

U.N.T.S. 31.

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states that the activities of armed forces during an armed conflict are 

by international humanitarian law rather than the Convention.

388

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Panel V

Friday—June 28, 2002

8:30 AM–11:30 AM

The Road Ahead

Moderator:

Dr. Richard Nuccio

Director, Pell Center for International

Relations and Public Policy

Salve Regina University

Presenters:

Professor John Murphy

Villanova University School of Law

Dr. Nicholas Rostow

General Counsel

US Mission to the United Nations

Commentators:

Mr. James Terry

Deputy Assistant Secretary for Global Affairs

US Department of State

Dr. Michael Saalfeld

Director, International Legal Affairs

German Ministry of Defence

Mr. Ronald Winfrey

Attorney Advisor

US Pacific Command

Captain Jane Dalton

Judge Advocate, US Navy

Legal Counsel

Chairman of the Joint Chiefs of Staff

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XXV

International Law and the

War on Terrorism: The Road Ahea

John Murphy2

n this, the last panel of the conference, we have been asked to 

“The Road Ahead” or, more specifically, the “application o

lessons learned, review of the role of international conventions on 

and future military operations against terrorism.” This is not an eas

Yogi Berra reportedly once observed, “it’s difficult to make predicti

cially about the future.” This is particularly true given that, as Richa

has recently pointed out, so-called “public intellectuals” or the “exper

notoriously bad record when it comes to predictions.3 Accordingly, in 

so many enterprises, caveat emptor.

Be that as it may, this chapter proceeds along the following li

since any effort at “futurism” necessarily involves an analysis of prese

it attempts to identify the most salient trends in international terr

1. I would like to express my appreciation for the excellent research assistance of An

a third year student at the Villanova University School of Law, Rita Young-Jo

reference law librarian at the Villanova University School of Law, and Charles 

second year student at the Villanova University School of Law. I am also grateful f

2002 research grant from the Villanova University School of Law that greatly facilita

on this chapter.

2. John Murphy is a Professor of Law at Villanova University School of Law.

3. RICHARD A. POSNER, PUBLIC INTELLECTUALS (2001).

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their impact on efforts to combat terrorism. Next it turns to two ki

sponses employed in combating terrorism which have been the foc

siderable scrutiny already at this conference: the so-called ant

conventions, at both the global and the regional levels, and the use o

measures, i.e., economic sanctions and the use of armed force. A

measures, the effort will be to evaluate their strengths and weaknes

cially in light of current trends, and to set forth some tentative pro

improvement.

Trends

September 11th itself is a spectacular demonstration of a disquietin

international terrorism: the increased willingness of terrorists to kill l

bers of people and to make no distinction between military and civilia

Until recently many commentators were of the view that terrorists ha

terest in killing large numbers of people because it would undermin

forts to gain sympathy for their cause. A major cause of this radical 

attitude has been aptly pinpointed by Jeffrey Simon:

Al Qaeda . . . is representative of the emergence of the religious-inspired 

groups that have become the predominant form of terrorism in recent yea

of the key differences between religious-inspired terrorists and po

motivated ones is that the religious-inspired terrorists have fewer constr

their minds about killing large numbers of people. All nonbelievers are vi

the enemy, and the religious terrorists are less concerned than political t

about a possible backlash from their supporters if they kill large num

innocent people. The goal of the religious terrorist is transformation of al

to their religious beliefs, and they believe that killing infidels or nonbeliev

result in their being rewarded in the afterlife. Bin Laden and al Qaeda’s goa

drive US and Western influences out of the Middle East and help bring t

radical Islamic regimes around the world. In February 1998, bin Laden an

groups under the name “World Islamic Front for Jihad Against the Je

Crusaders” issued a fatwa, which is a Muslim religious order, stating that it 

religious duty of all Muslims to wage war on US citizens, military and 

anywhere in the world.5

392

4. It is worth noting that in 1998 bin Laden told ABC News that “he made no 

between American military and civilian targets, despite the fact that the Koran itse

about the protections offered to civilians.” See Peter L. Bergen, Excerpts from Holy W

PHI KAPPA PHI FORUM 26, 28 (2002).

5. Jeffrey D. Simon, The Global Terrorist Threat, 82 PHI KAPPA PHI FORUM 10, 11 

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It is important to note that there are other religious terrorist grou

al Qaeda. Examples include Hizballah, a radical Shia Islamic group 

non, Hamas (Islamic Resistance Movement), and the Palestine Islam

all of whom use terrorism in the West Bank, Gaza Strip, and Israel 

mine Middle East peace negotiations and to establish a fundamental

Palestinian state. There are also the Abu Sayyaf Group, a radical Isla

ratist group operating in the southern Philippines; Al Gama’a al–Isla

lamic Group), which is based in Egypt and seeks the overthrow of the 

government; and the Armed Islamic Group, which is located in A

plots the overthrow of the secular Algerian government and its rep

with an Islamic state.

September 11th may also demonstrate another trend: the eme

smarter and more creative terrorists. The planning and carrying out 

rorist operation on September 11th was diabolically clever, and the 

ers were well educated and from middle to upper middle class bac

Smarter and more creative terrorists, moreover, are better equippe

advantage of the information on weapons—including weapons of 

struction—targets, and resources necessary for a terrorist operatio

available on the Internet. Similarly, they are better able to take adv

the various vulnerabilities of a technologically advanced society, 

major networks of communications, electrical power, pipelines, and 

Another major trend is the “globalization” of terrorism.6 Acc

Joseph Nye, globalization is “the growth of worldwide networks of in

dence.”7 In particular, Nye suggests, over the last several decades, 

been a substantial increase in “social globalization,” i.e., the spread o

cultures, images, and ideas, and this has resulted in “new dimension

tary globalism: humanitarian intervention and terrorism.”8 Perhaps 

salient example of social globalization resulting in terrorist military 

tion is the worldwide expansion of the al Qaeda network, said to o

more than sixty countries.9 It is not the only example, however. Hiz

portedly has operations in six continents, and Hamas and the Sr

393

6. For further discussion see John F. Murphy, The Impact of Terrorism on Globalizati

Versa, 36 THE INTERNATIONAL LAWYER 77(2002).

7. JOSEPH S. NYE, JR., THE PARADOX OF AMERICAN POWER: WHY THE WOR

SUPERPOWER CAN’T GO IT ALONE 78 (2002).

8. Id. at 86–87.

9. See Seeing the World Anew, ECONOMIST, October 27, 2001, at 19.

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Tigers of Tamil Eelam are said to 

maintain cells far from the lan

their goals and grievances are focused.”10

An encouraging trend is the apparent decline in state sponsored 

The breakup of the Soviet Union, and the emergence of the countri

tral and eastern Europe from under the Soviet yoke, greatly red

sources of state support that terrorists could rely on. Even for those 

that remain on the US State Department’s list of sponsors of terrorism

Iran, Iraq, Libya, North Korea, Sudan, and Syria—there has been so

ment away from state support of terrorism toward cooperation with 

national community’s campaign against terrorism.11 The main probl

the Middle East. Although Iran and Syria, for example, have tak

against al Qaeda, they continue their active support for terrorist gro

as Hamas and Hizballah, that primarily target Israel and its citizen

ground that these groups are not terrorists but national liberation mov

Let us reflect for a moment on possible reasons for the distinction

Iran and Syria. It should come as no surprise that Iran and Syria 

willing to cooperate, at least to a limited extent, in efforts to su

Qaeda. The kind of radical Islamic fundamentalism espoused by b

and al Qaeda is a serious threat not only to the United States but 

lamic governments in the Middle East. Even though they may them

regarded as having radical Islamic governments, Iran and Syria are 

less among those threatened by al Qaeda. In contrast, Hamas and 

direct their attention toward Israel, long the target of Iranian and S

mity. Here, one may speculate, the greater danger for Iran and Syria 

not supporting these movements in light of the general support t

among the people of the Islamic countries in the Middle East.

Interestingly, according to the latest US Department of State rep

America had by far the largest number of international terrorist 

2000 and 2001.12 Latin America, too, was a major venue for the ac

Hizbollah, as well as other terrorist groups, “in the tri-border area 

tina, Brazil, and Paraguay, where terrorists raise millions of dollars 

via criminal enterprises.”13 There was also evidence of Hizbollah m

sympathizers in Chile, Colombia, Venezuela, and Panama. But alle

394

10. Paul R. Pillar, Terrorism Goes Global: Extremist Groups Extend Their Reach W

BROOKINGS REVIEW 34 (2001).

11. See US DEPARTMENT OF STATE PATTERNS OF GLOBAL TERRORISM 2001 (M

63.

12. Id. at 172.

13. Id. at 44.

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the presence of bin Laden or al Qaeda support cells in Latin Am

mained uncorroborated.

Colombia was a particular problem area. In response to greatly inc

olence and terror unleashed by Colombia’s largest terrorist organiz

16,000 member Revolutionary Armed Forces of Colombia (FARC

bia’s former President Andres Pastrana decided, in February 2002, 

nate the peace process that had been a hallmark of his presiden

reassert control over the FARC’s demilitarized zone. Three Irish R

Army members, allegedly helping the FARC prepare for an urban te

paign, were arrested as they departed the demilitarized zone, and t

media allegations of similar support by the terrorist group Basque F

and Liberty, or ETA.14

These developments in Latin America, along with an apparent c

of the Shining Path in Peru, may have contributed to the successfu

sion of a new Inter-American Convention Against Terrorism by 

General Assembly on June 3, 2002 (discussed in the next section).

Perhaps the primary impact of these trends, as well as of the seve

September 11th attacks and of the subsequent use of military force b

select NATO forces against the Taliban and al Qaeda in Afghan

been to raise an issue as to the appropriate legal regime to apply to 

control international terrorism. Prior to September 11th internation

ism had been treated primarily as a criminal law matter, with empha

on preventing the commission of the crime through intelligence o

forcement means, or, if prevention failed, on the apprehension, pr

and punishment of the perpetrators. To be sure, the United States h

ously used armed force on occasion against terrorism. For example

the United States bombed Tripoli, Libya in response to Libya’s app

volvement in the bombing of a West Berlin discotheque frequented b

can soldiers and the terrorist attack by Libyan backed Abu Nidal 

airline counters that killed five Americans and wounded many oth

larly, in 1993, the United States bombed Baghdad, Iraq, in response 

sassination plot by Saddam Hussein against former President Geo

and in 1998, it engaged in missile strikes against Afghanistan and the 

response to the East African embassy bombings. But none of these a

volved military force of the magnitude and duration of the actions in 

stan after September 11th. Hence after, and in many respects be

395

14. Id.

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September 11th, the law of armed conflict assumed a much great

nence than it had previously in efforts to combat international terro

But the law of armed conflict has hardly occupied the field. On 

trary, as the fourth panel of this conference (Bringing Terrorists t

The Proper Forum) demonstrated, the issue now may be whether t

armed conflict or international criminal law applies. Also, it is imp

note that in the wake of September 11th, various fields of law and m

gies for combating international terrorism have taken on a much g

nificance. These include, among others, immigration and refu

international human rights law, international finance, US constitut

private remedies (especially civil lawsuits), cyberlaw, privacy, homel

rity, arms control, disarmament, non-proliferation, intelligence gath

public health law.15

Given these developing trends, how has international law respon

before and after September 11th? This chapter now turns to a class

of international criminal law: the so-called antiterrorism convention

addresses economic sanctions against state sponsors of terrorism; a

the jus ad bellum dimensions of the use of armed force against terro

their sponsors.

Antiterrorism Conventions

Global Treaties and Conventions

At this writing the UN or its specialized agencies have adopted twel

multilateral antiterrorist conventions.16 These include the: Conventi

fenses and Certain Other Acts Committed on Board Aircraft (1963)

tion for the Suppression of Unlawful Seizure of Aircraft (1970); Conv

the Suppression of Unlawful Acts against the Safety of Civil Aviatio

Convention on the Prevention and Punishment of Crimes agains

tionally Protected Persons, including Diplomatic Agents (1973); Inte

Convention against the Taking of Hostages (1979); Convention on 

cal Protection of Nuclear Material (1979); Protocol for the Suppressi

lawful Acts of Violence at Airports Serving International Civil 

supplementary to the Convention for the Suppression of Unlawful Ac

396

15. For a sense of the breadth and depth of subjects now relevant to efforts to comb

see the series of articles contained in the lengthy symposium in Law and the War on T

HARV. J. L. PUB. POL’Y ix–834 (2002).

16. The texts of these conventions may be found in INTERNATIONAL INSTRUMENT

TO THE PREVENTION AND SUPPRESSION OF INTERNATIONALTERRORISM 2–131 (U

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the Safety of Civil Aviation (1988); Convention for the Suppression 

ful Acts against the Safety of Maritime Navigation (1988); Protoc

Suppression of Unlawful Acts against the Safety of Fixed Platforms L

the Continental Shelf (1988); Convention on the Marking of Plas

sives for the Purpose of Detection (1991); International Conventio

Suppression of Terrorist Bombing (1997); and International Conv

the Suppression of the Financing of Terrorism (1999).

This plethora of conventions covering individual manifestations 

ism has resulted due to the inability of the UN to develop a comp

convention against terrorism, largely because of disagreement on ho

ism should be defined. This so-called “piecemeal” approach has res

problem of defining terrorism by avoiding it. Although these treaty p

are often loosely described as “antiterrorist,” the acts they cover 

inalized regardless of whether, in a particular case, they could be de

“terrorism.” Recently, however, there have been renewed efforts 

agreement on a comprehensive text, a controversial exercise that is 

below.

The basic purpose of the individual conventions is to establish a f

for international cooperation among states to prevent and suppres

tional terrorism. To accomplish this goal, the Convention on the P

and Punishment of Crimes against Internationally Protected Pe

cluding Diplomatic Agents, for example, requires state parties to 

in order to prevent, within their territories, preparations for attacks 

mats within or outside their territories, to exchange information, an

dinate administrative measures against such attacks.17 If an attack a

internationally protected person takes place, and an alleged offende

the country where the attack occurred, state parties are to cooper

exchange of information concerning the circumstances of the crim

alleged offender’s identity and whereabouts.18 The state party whe

leged offender is found is obliged to take measures to ensure his pre

purposes of extradition or prosecution and to inform interested s

international organizations of the measures taken.19 Finally, state p

to cooperate in assisting criminal proceedings brought for at

397

17. See Convention on the Prevention and Punishment of Crimes Against Int

Protected Persons, Including Diplomatic Agents, G.A. Res. 3166, U.N. GAOR 6th C

Sess., 2202d plen. mtg., Supp. No. 30, U.N. Doc. A/9407 (1973), art. 4, availab

www.undcp.org/odccp/terrorism_convention_protected_persons.html (Jan. 21, 200

18. Id., art. 5.

19. Id., art. 6.

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internationally protected persons, including supplying all relevant ev

their disposal.20

The key feature of these conventions requires a state party that ap

an alleged offender in its territory either to extradite him or to subm

to its authorities for purposes of prosecution. Strictly speaking, non

conventions alone creates an obligation to extradite. Rather, they c

inducement to extradite by requiring the submission of alleged offe

prosecution if extradition fails. Moreover, a legal basis for extraditi

vided either in the convention, or through incorporation of the offe

tioned in the convention into existing or future extradition treatie

the parties. To varying degrees, the conventions also obligate the 

take the important practical step of attempting to apprehend the ac

fender and hold him in custody.

The most important goal of these provisions is to ensure that the 

prosecuted. To this end the alternative obligation to submit for pros

stated quite strongly in these conventions. The obligation, however, is 

the accused, much less to punish him, but to submit the case to be c

for prosecution by the appropriate national prosecuting authority. If th

justice system lacks integrity, the risk of political intervention in the pr

or at trial exists. Such intervention may prevent the trial, a conviction 

propriate punishment of the accused. Such concerns were a major fac

insistence of the United States and the United Kingdom that Libya “s

the two Libyan intelligence agents accused of the bombing of Pan Am 

over Lockerbie, Scotland and their rejection of Libya’s insistence that 

right, under Article 7 of the Convention for the Suppression of Unla

against the Safety of Civil Aviation, to submit the accused instead to “

tent authorities for the purpose of prosecution.”21

Even if the criminal justice system functions with integrity, it ma

difficult to obtain the evidence necessary to convict when the alleg

was committed in a foreign country. This very practical impedime

removed between states of goodwill only by patient and sustained 

develop and expand “judicial assistance” and other forms of coope

tween the law enforcement and judicial systems of different coun

398

20. Id., art. 10.

21. For an interesting exposition of the events leading to the Lockerbie trial, see S

Lockerbie Incident Cases: Libyan-Sponsored Terrorism, Judicial Review And The Politi

Doctrine, 18 MD. J. INT’L L. & TRADE 21 (1994); Donna Azrt, The Lockerbie “E

Analogy” Agreement: “Exceptional Measure” or Template for Transnational Crimina

AM. U. INT’L L. REV. 163 (2002).

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conventions create an obligation to cooperate in this respect but th

tion poses major problems for even good faith efforts among coun

different types of legal systems.22

Under the piecemeal approach, and with the passage of time, g

coverage of terrorist crimes by the early conventions became appa

new conventions covering other international crimes were conclude

ample, the Tokyo, Hague and Montreal conventions on civil aviatio

cover attacks at airports, such as those at the Rome and Vienna air

ing the 1980s. As a consequence, the International Civil Aviation 

tion (ICAO) adopted a Protocol to the Montreal Convention 

Suppression of Unlawful Acts of Violence at Airports serving Inte

Civil Aviation.23 Similarly, the hijacking of the Italian cruise liner 

Lauro” exposed the vulnerability of maritime navigation and infrast

terrorist attack and led to the adoption of the Convention for the Su

of Unlawful Acts against the Safety of Fixed Platforms Located on t

nental Shelf.24

It was in the 1990s, however, that UN member states sought to fil

est gap in coverage of terrorist crimes.

International Convention for the Suppression of Terrorist Bombing

The 1990s was a decade of extraordinary developments. One of the m

the most, extraordinary developments was the collapse of the Soviet U

the end of the Cold War. Also of great significance was the end of ap

South Africa and the coming into power of new governments in Sou

and Namibia. These and other developments led to a less confronta

mosphere in the UN and a sharp decline in support for “wars of natio

tion.” This in turn helped lessen, if not entirely eliminate, the division 

the Western member states and the non-aligned member states that 

trated previous efforts to reach agreement on measures to combat terr

deed, because of the change of atmosphere, the General Assembly d

399

22. The problems become particularly acute in the event of a computer networ

terrorists. See John F. Murphy, Computer Network Attacks By Terrorists: Some Legal 

COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW 323, 340–43 (

Schmitt and Brian T. O’Donnell eds., 2002) (Vol. 76, US Naval War College Intern

Studies).

23. See Protocol for the Suppression of Unlawful Acts of Violence Against Sa

Aviation, 27 I.L.M. 628 (1988).

24. See Convention for the Suppression of Unlawful Acts against the Safety of Fix

Located on the Continental Shelf, 27 I.L.M. 668 (1988), available at http://w

Conventions/contents.asp?topic_id=259&doc_id=686 (Jan. 21, 2003).

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1997 to reincarnate the Ad

Hoc Committee on Measures to Elimin

national Terrorism (hereinafter Ad-Hoc Committee on Terrorism) t

as a matter of priority a draft international convention for the supp

terrorist bombing and a subsequent international convention for th

sion of acts of nuclear terrorism.

It is worthwhile to pause for a moment at this point and consider t

tance, in terms of combating international terrorism, of the Gener

bly’s decision to mandate the preparation of a convention agains

bombing. In an article published in 1990, I suggested:

A more serious deficiency is that none of the antiterrorist convention

those tactics most often used by terrorists, most particularly the de

targeting, by bombs or other weapons, of the civilian population. To und

the reason for this it is necessary to briefly return to the problem of d

terrorism.

A look at the primary components of most definitions of terrorism will he

understand why it has proved impossible to reach agreement in the 

Nations and other international organizations. These definitions 

invariably include a political purpose of motivation behind the violent a

government as the primary target, factors that serve to distinguish te

from violent acts classified as common crimes. The political purpose 

violent act is to influence the policy of a government by intimida

coercion. These same factors, however, may lead some governments to 

only unwilling to criminalize such behavior but prone to actively suppo

****

Nonetheless, there appears to be a growing recognition that even 

national liberation groups cannot be permitted to engage in certain 

violence against certain targets. Moreover, under the law of armed con

deliberate targeting of the civilian population is a war crime. It sh

impermissible as well when the targeting takes place under circumstan

covered by the law of armed conflict. This was the conclusion reached r

by a joint group of U.S. and Soviet experts on international terrori

recommended to their respective governments that they support the con

of an international convention that would make the deliberate target

civilian population an international crime.25

400

25. John F. Murphy, The Need for International Cooperation in Combating T

TERRORISM: AN INTERNATIONAL JOURNAL 381 (1990).

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The adoption by the General Assembly of the International Conventi

Suppression of Terrorist Bombing26 on December 15, 1997, vividly 

the sea change in the attitudes of UN member states towards terroris

various developments in the 1990s brought about, including, it 

noted, several major terrorist bombings directed against various stat

Others have written about the terrorist bombing convention 

detail,28 and no such effort will be undertaken here. There are a few 

tive aspects about the convention, however, that deserve highlig

keeping with the “piecemeal” approach, the convention does not de

rorism” but identifies and defines particular conduct that is to be co

internationally, regardless of its motivation, and subject to criminal 

Article 2(1) of the convention provides:

Any person commits an offense within the meaning of this Convention 

person unlawfully and intentionally delivers, places, discharges or deton

explosive or other lethal device in, into or against a place of public use, a 

governmental facility, a public transportation system or an infrast

facility: (a) with the intent to cause death or serious bodily injury; or 

the intent to cause extensive destruction of such a place, facility or 

where such destruction results in or is likely to result in major economic l

To ensure that sympathy with the motivation behind the bombin

serve as a legal justification of the act, Article 5 requires state partie

any measures that may be necessary to ensure that criminal acts w

scope of the convention, especially when they are intended to create 

terror, are “under no circumstances justifiable by considerations of a 

philosophical, ideological, racial, ethnic, religious or other similar n

are punishable by penalties consistent with their grave nature.”30 No

earlier antiterrorist conventions has a similar provision. Along somew

lar lines, Article 11 expressly eliminates, for the first time in a UN an

401

26. See International Convention for the Suppression of Terrorist Bombings, U

Res.52/164 (Dec. 15, 1997), 37 I.L.M. 249 (1998) (ratified by US on Jun. 26, 2002) 

Terrorist Bombings Convention].

27. These included, among others, the truck bombing attack on US military p

Dhahran, Saudi Arabia, the poison gas attacks in Tokyo’s subways, a bombing in C

Lanka, bombings in Tel Aviv and Jerusalem, and a bombing in Manchester, England

M. Witten, Current Developments: The International Convention for the Suppression 

Bombings, 92 AM. J. INT’L L. 774, note 3 (1998).

28. Id.

29. Terrorist Bombings Convention, supra note 26, at art. 2(1).

30. Id., art. 5.

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convention, the political offense exception for purposes of extrad

mutual legal assistance.31 Samuel Witten notes the impact this pr

likely to have on US law and practice:

In the case of most modern U.S. bilateral extradition treaties, the p

offense exception has been narrowed and is already unavailable for 

covered under the ‘prosecute or extradite’ multilateral conventions such 

Convention. As a result, Article 11 will have the most significant p

effect with respect to U.S. treaty practice on mutual legal assistance 

with political offense exceptions without excluding prosecute or e

multilateral conventions.32

At the same time that it eliminates the political offense excep

bombing convention adds a protection for the accused in Article 

provides that nothing in the convention shall be interpreted as impos

ligation to extradite or to afford mutual legal assistance, if the reque

party has substantial grounds for believing that the request was mad

purpose of prosecuting or punishing a person on account of that pers

religion, nationality, ethnic origin or political opinion or that compli

the request would cause prejudice to that person’s position for any of 

sons.”33 Such a “humanitarian” provision is normally not present i

antiterrorist conventions, although there is a provision along simila

the International Convention against the Taking of Hostages.34

Article 12 does not specify who in the requested state is to decid

“substantial grounds” exist. In the United States there has been con

debate over whether this decision is to be made by the executive bra

the judiciary.35 Interestingly, Article 6, which sets forth the mand

discretionary bases of criminal jurisdiction over the offenses cover

convention, establishes a truly universal system of jurisdiction in t

lizes all five of the accepted bases of jurisdiction in internationa

402

31. Id., art. 11.

32. Witten, supra note 27, at 779.

33. Terrorist Bombings Convention, supra note 26, at art. 12.

34. See International Convention against the Taking of Hostages, G.A. Res. 3

GAOR 6th Comm., 34th Sess., 105th Mtg, Supp. No. 46, U.N. Doc. A/34/819 (1

into force 1983), art. 9, 1316 U.N.T.S. No. 21931.

35. For discussion of this debate, see Christopher H. Pyle, EXTRADITION, POL

HUMAN RIGHTS 118–29 (2001).

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law

territorial, nationality, universal, passive personality, and prot

risdiction.36 As noted by Witten,

[o]f particular interest to countries such as the United States that m

many government facilities outside their territory is the Conv

unprecedented recognition of broad protective jurisdiction in Article 6

with respect to attacks using explosive or other lethal devices against a 

government facility of that state abroad, including an embassy o

diplomatic or consular premises. This provision would recognize the 

States jurisdiction, for example, to prosecute in US courts the perpetr

bombing attacks against all US government facilities abroad, in

diplomatic and consular premises and military installations, e.g., the 1

Khobar Towers bombing in Dhahran.38

It may be noted parenthetically that a US court recently upheld its juris

consider various charges arising from the bombing of the US embassie

and Tanzania, including bombing allegedly committed by foreign nati

resulted in the deaths of foreign nationals on foreign soil.39 The coming 

of the bombing convention clearly confirms this exercise of jurisdictio

Another innovative provision of the bombing convention, not 

prior antiterrorism conventions, is Article 8(2), which provides for 

conditional extradition.41 That is, an accused person might be sen

rarily by her state of nationality to a requesting state for a trial or p

403

36. Terrorist Bombings Convention, supra note 26, at art. 6.

37. Under Article 6(2)(b) of the Terrorists Bombings Convention, each stat

discretion to establish its jurisdiction over offenses set forth in Article 2 when: “Th

committed against a State or government facility of that State abroad, including an 

other diplomatic premises of that State.” In a footnote Witten points out that “the 

will reach attacks on extraterritorial government facilities such as tourist center

development offices and military facilities.” He notes further that “[t]he provi

Bombing Convention regarding attacks on government facilities are... broader than 

1973 Internationally Protected Persons Convention, which addresses attacks o

official premises, the private accommodation or the means of transport of an int

protected person likely to endanger his person or liberty.” Witten, supra note 27, at 

38. Witten, supra note 27, at 778.

39. United States v. Bin Laden, 92 F. Supp. 2d 189 (S.D. N.Y. 2000).

40. The Terrorist Bombings Convention entered into force on May 23, 2001. As 

2002, it had 62 parties. The United States became a party to the convention on April 

41. Article 8(2) of the Bombing Convention provides:

Whenever a State Party is permitted under its domestic law to extradite or ot

surrender one of its nationals only upon the condition that the person will be r

to that State to serve the sentence imposed as a result of the trial or procee

which the extradition or surrender of the person was sought, and this State a

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for an offense under the convention and, if convicted, would be re

her state of nationality to serve any sentence imposed as a result of t

proceeding for which the extradition or surrender had been sought.

As noted above, only the sea change in the attitudes of membe

the UN toward terrorist bombing that took place during the 1990s 

the successful conclusion of the bombing convention. At this writ

ever, there are troubling developments in the Middle East that could 

undermine the success of the convention as an antiterrorist meas

cifically, the sudden increase in suicide bombings by Palestinians a

raeli civilians, and the celebration in some circles of the resulting 

risks a return to some of the divisions between Western member s

certain member states of the developing world that characterized the 

ing the 1970s.

International Convention on the Suppression of Terrorist Financing

As Hans Corell, Under-Secretary-General for Legal Affairs and Lega

of the UN, has noted, as early as 1996, the Secretary-General had r

the need for an international convention dealing with terrorist fund

Similarly, in May 1998, the foreign ministers of the G-8 countrie

statement on terrorism identifying as a “priority area for further ac

venting terrorist fund-raising. . . .”43 The President of France sub

called for the negotiation without delay of a “universal convention a

financing of terrorism” and in December 1998, the General Assembl

that the Ad Hoc Committee on Terrorism “should elaborate a draf

tional convention for the suppression of terrorist financing to supple

isting international instruments.”44 France introduced a draft conven

served as the basis of discussions in the committee and on Decembe

404

State seeking the extradition of the person agree with this option and other ter

may deem appropriate, such a conditional extradition or surrender shall be suffi

discharge the obligation set forth in paragraph 1 of the present article.

See Terrorist Bombings Convention, supra note 26, art. 8.

42. Hans Corell, Possibilities and Limitations of International Sanctions Against T

COUNTERING TERRORISM THROUGH INTERNATIONAL COOPERATION 243, 2

Schmid ed., 2001) [hereinafter COUNTERING TERRORISM].

43. See Clifton M. Johnson, Introductory Note to the International Convention for the S

the Financing of Terrorism, 39 I.L.M. 268 (2000).

44. Measures to Eliminate International Terrorism, G.A. Res. 53/108, U.N. GAOR

Agenda Item 155 (1998).

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the General Assembly adopted a resolution opening for signature th

tional Convention for the Suppression of the Financing of Terrorism

Like its immediate predecessor, the bombing convention, the 

convention is a “model” antiterrorist convention that incorpora

Clifton Johnson, the chief US negotiator for the convention, has ca

increasingly standard provisions of the recent counterterrorism conv

These include provisions: 1) limiting the Convention’s application to a

an international element; 2) obligating States Parties to criminalize the 

offenses irrespective of the motivation of the perpetrators; 3) obligatin

Parties to take into custody offenders found on their territory; 4) facilita

extradition of offenders; 5) requiring States Parties to afford one anot

greatest measure of assistance in connection with the criminal investiga

proceedings relating to the covered offenses; 6) prohibiting extrad

mutual legal assistance requests relating to a covered offense from being 

on political offense grounds; and 7) providing for the transfer of priso

order to assist the investigation or prosecution of covered offenses.46

Johnson goes on to point out that the financing convention adds “sp

unique provisions directed at terrorism financing.” If adopted and e

implemented, these provisions have the potential to constitute a majo

ward in the effort to combat international terrorism.

Dealing with the financing of terrorism is a delicate matter. A m

lem is that terrorists often operate through “front organizations” whi

on the surface to be engaged in legitimate activities or through org

that in fact have charitable, social or cultural goals and engage in 

activities to further these goals. Moreover, in some states, such as th

States, action by the government to prevent or limit the financing of 

tions with charitable or similar goals could raise serious constitution

In an effort to avoid such difficulties, Article 2(1) carefully limits th

the convention:

1. Any person commits an offence within the meaning of this Conventio

person by any means, directly or indirectly, unlawfully and wilfully, pro

collects funds with the intention that they should be used or in the kno

405

45. See International Convention for the Suppression of the Financing of Terrorism

109, U.N. GAOR 6th Comm., 54th Sess., 76th Mtg., Agenda Item 160, U.N. Do

(1999), reprinted in 39 I.L.M. 270 (2000) [hereinafter Suppression of Financing Con

46. Johnson, supra note 43, at 268.

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y , p, y () 

constitutes an offense within the scope of and as defined in one of the 

listed in the annex; or (b) Any other act intended to cause death or 

bodily injury to a civilian, or to any other person not taking an active pa

hostilities in a situation of armed conflict, when the purpose of such an ac

nature or context, is to intimidate a population, or to compel a govern

an international organization to do or abstain from doing any act.47

Under paragraph 1(a) of Article 2, the convention requires act

tion that funds should be used or knowledge that they will be used to 

one of the offenses listed in an annex to the convention. Such an in

knowledge of how the funds are to be used is also required by paragr

The latter paragraph, moreover, sets forth a definition of terrorism, 

the definition is not identified as such. It therefore establishes an 

precedent that may be drawn upon in future antiterrorism conventi

As in the case of its predecessor conventions, the principal object

financing convention is to require state parties to criminalize and es

risdiction over the offenses set forth in the convention and to extrad

mit for prosecution the persons accused of the commission of such 

The financing convention goes further than its predecessors, howev

requirements it imposes on state parties to take steps to prevent the 

sion of covered offenses.48 In particular, as aptly summarized by Roh

Chairman of the Ad-Hoc Committee on Terrorism, the convention 

state parties to consider the following measures:

(i) Adopt regulations, prohibiting the opening of accounts, the ho

beneficiaries of which are unidentified or unidentifiable and measures to 

that such institutions verify the real owner of such transactions.

(ii) With respect to the identification of legal entities, financial inst

when necessary are required to take measures to verify the legal existen

structure of the customer by obtaining either from the public register or f

customer or both, proof of incorporation or other relevant information

(iii) Obligations on financial institutions to report promptly to the com

authorities all complex, unusual large transactions and unusual pat

transactions which have no apparent economic or obviously lawful pur

406

47. Suppression of Financing Convention, supra note 45, art. 2.

48. Id., art. 18.

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(

) qg y

records on transactions, both domestic or international.49

More generally, the convention provides an extensive list of measu

drawn from the 40 recommendations of the multilateral Financial Ac

Force, for state parties to consider in identifying, tracking and blockin

tions involving terrorism financing.50

Another innovative provision in the convention is Article 5, 

quires each state party to “take the necessary measures to enable a le

located in its territory organized under its laws to be held liable when 

responsible for the management or control of that legal entity” has c

an offense under the convention.51 Normally, the antiterrorist co

address only the issue of criminal and not civil liability.52 The conve

enhances the deterrent effect of its provisions by providing for the 

freezing of funds and proceeds used for the commission of an offens

prohibiting state parties from claiming privileged communication, ba

crecy, or the fiscal nature of the offense to refuse a request for mu

tance from another state party.54

As Clifton Johnson has suggested, the financing convention has t

tial to have a considerable impact on efforts to combat terrorism.5

notes further, however, that the impact the convention has in practi

pend in no small measure on “the degree to which investigators and 

tors can establish the necessary link between the act of financing 

terrorist intention of the contributor or collector of the funds.”56 Thi

heavy evidentiary burden to bear, since the contributors and rec

funds for the commission of terrorist acts are adept at using money la

and other techniques to disguise their purpose. Moreover, relatively 

ber states of the UN currently have in place the legal infrastructu

407

49. Rohan Ferera, International Legal Framework for Co-operation in Combating Te

Role of the UN Ad-Hoc Committee on Measures to Eliminate International T

COUNTERING TERRORISM, supra note 42, at 284.

50. Suppression of Financing Convention, supra note 45, at art. 18.

51. Id., art. 5.

52. Elsewhere I have advocated a more extensive use of civil liability against those 

or sponsor the commission of international crimes. See John F. Murphy, Civil Lia

Commission of International Crimes as an Alternative to Criminal Prosecution, 12 HARV

J. 1 (1999).

53. Suppression of Financing Convention, supra note 45, at art. 8.

54. Id., arts. 12 & 13.

55. Johnson, supra note 43, at 268.

56. Id. at 269.

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trained personnel to cope with the techniques of terrorist financing. 

hope, however, that the cooperative arrangements called for by the 

convention will help to remedy this situation.

For the financing convention to be effective, of course, it will h

widely ratified and implemented. At this writing there are 132 signa

34 parties (including the United States). The UN Security Council 

given an enormous boost to the convention and to the effort to comb

ist financing. On September 28, 2001, the Security Council, act

Chapter VII of the Charter, adopted Resolution 1373,57 which, by 

sure, constitutes a landmark step by the Council. In this extraordina

tion, the Council sets forth a plethora of steps that member states ar

to take to combat terrorism. For example, the Council “[d]ecide

States shall . . . [p]revent and suppress the financing of terrorist acts” 

sets forth explicit steps that states are to take to this end.58 The Co

decides that all states shall take a large number of other steps to co

rorism.59 Among the most noteworthy of these, states are to deny s

to terrorists, to afford one another the greatest measure of assistance 

nal investigations or proceedings relating to the financing or support 

ist acts, including assistance in obtaining evidence necessary 

proceedings, and to prevent the movement of terrorists by effecti

controls and controls on the issuance of identity papers and travel do

Using terms of exhortation rather than command, in Resolution 

Council “[c]alls upon all States” to take a number of actions in co

with other states to combat terrorism, including, among others, “in

and accelerating the exchange of operational information,” becomi

to the relevant antiterrorist conventions, including the Internatio

vention for the Suppression of Financing of Terrorism, and ensuring

formity with international law,” that refugee status is not abused by 

and that “claims of political motivation are not recognized as groun

fusing requests for the extradition of alleged terrorists.” 60

In my view, the most significant step the Council has taken in R

1373 is to establish a committee (the Counter-Terrorism Committee

itor implementation of the resolution and to call upon all states to 

the committee, no later than 90 days after the date of adoptio

408

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

58. Id., para. 1(b), (c), and (d).

59. Id., para. 2(a)–(g).

60. Id., para. 3(a)–(g).

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resolution, on the steps they have taken to implement the resoluti

Council further “[e]xpresses its determination to take all necessar

order to ensure the full implementation of this resolution, in accord

its responsibilities under the Charter.”62 Failure to establish such m

devices to ensure that antiterrorist measures adopted by the UN are 

in practice has been a major deficiency of past UN efforts.

A primary example of UN antiterrorist measures that have not b

tively monitored in the past as to their implementation is the an

conventions. As we have seen, a sea change in attitudes on the par

(though not all) member states of the UN has resulted in the con

“model” new antiterrorist conventions, especially the bombing and 

conventions. The conclusion of new, or even the ratification of old

rorist conventions, however, is not the crucial issue. The crucia

the extent to which the global antiterrorist conventions have been 

vigorously implemented. Conclusion of antiterrorist conventions is 

first step in the process. Unfortunately, many state parties seem to re

the last.

Vigorous implementation, moreover, encompasses more than m

fying the conventions, passing implementing legislation, and ado

necessary administrative measures, i.e., creating an appropriate le

structure to combat international terrorism. It requires the taking 

steps toward ensuring the primary goals of the conventions: the prev

the crimes covered by the conventions and the prosecution and pu

of the perpetrators of the crimes. The record of the conventions i

spect is unclear.

A major part of the problem is the lack of adequate data on the 

successful actions to prevent terrorist acts and of successful prosec

terrorists. Although there appears to be adequate data available on 

dition, prosecution and punishment of aircraft hijackers,63 informatio

ing other manifestations of terrorism is quite sparse. Most of the an

conventions contain provisions requiring the state party where the a

fender is prosecuted to communicate the final outcome of the proce

the Secretary-General of the UN (or to the Director-General of IA

409

61. Id., para. 6.

62. Id., para. 8.

63. At least this was the case around 1985 when I last examined the data. SeeJOHN 

PUNISHING INTERNATIONAL TERRORISTS: THE LEGAL FRAMEWORK FO

INITIATIVES, 110–15 (1985).

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Council of ICAO),

and the SecretaryGeneral has issued reports 

sures to Eliminate International Terrorism.”65 But these reports focu

ily on the terrorist events that triggered the conventions and on a su

the most important provisions of these conventions. There appears t

information on the extent and success of efforts to prevent the act

ventions cover or to prosecute the perpetrators of these acts.

Ambassador Jeremy Greenstock, Chairman of the Counter-

Committee established by Resolution 1373, has recently emphasize

portance of implementing antiterrorist measures. According to Am

Greenstock, “Governments were already familiar with what need

done. But few had done it. Resolution 1373 drew on the language n

by all UN members in the 12 Conventions against terrorism, but also 

a strong operational message: get going on effective measures now.

ports that, as of May 30, 2002, 155 reports had been submitted to the 

tee from member states and others. Member states who have not 

reports are “almost without exception those with little experience o

ject and unsophisticated law and order systems.”67

A cursory review of the reports submitted by some member state

phisticated law and order systems (the United States, United Kingdo

Germany and Italy) that have had major problems with international 

reveals that the Counter-Terrorism Committee is gathering valuable 

tion regarding the legislative, executive and judicial steps these cou

taking to combat international terrorism in general and the financin

national terrorism in particular. One of the questions that member s

been asked to respond to is: “What steps have been taken to establis

acts as serious criminal offenses and to ensure that the punishment re

seriousness of such terrorist acts? Please supply examples of any co

obtained and the sentence given.” However, the examples of convic

sentences supplied in these reports are either non-existent or very 

US report is the most forthcoming in this respect, noting that th

410

64. See, e.g., Article 19 of the Suppression of Financing Convention, supra note 45

65. See, e.g., Measures to Eliminate International Terrorism: Report of the Secretary-G

GAOR, 51st Sess., Agenda Item 153, U.N. Doc. A./51/336 (Sep. 6, 1996); Measures 

International Terrorism: Report of the Secretary-General, U.N. GAOR, 55th Sess., A

166, U.N. Doc. A/55/179 (Jul. 26, 2000).

66. Presentation by Ambassador Greenstock, Chairman of the Counter-Terrorism 

(CTC) at the Symposium: Combating International Terrorism: The Contribution o

Nations, held in Vienna on 3–4 June 2002, available at http://www.un.org/Docs/sc/

1373/viennaNotes.htm (Jun. 12, 2002).

67. Id. at 2.

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States has prosecuted cases under US laws implementing the Mont

vention (Aircraft Sabotage), the Hague Convention (Aircraft Hijac

Hostages Convention, and the Internationally Protected Persons Co

and giving, by way of footnotes, citations to cases involving the crime

by these conventions.68 Even this information is skimpy, however, g

example, no information regarding how US law enforcement official

have custody of the accused.

This is a serious problem that should be resolved. It may be that the 

Terrorism Committee, in its future interactions with member states, 

quest more detailed information regarding the apprehension, renditio

applicable), prosecution and punishment of persons who commit t

covered by the 12 antiterrorist conventions. Alternatively, the UN 

Prevention Branch, which is part of the Centre for International C

vention in Vienna, might be assigned the task of collecting such in

with respect to the 11 other antiterrorist conventions.69 Still other a

approaches might be for the Security Council to establish a monito

mittee that would receive and evaluate reports from state parties to so

major antiterrorist conventions or to draft a convention that would e

monitoring committee for selected antiterrorist conventions and cre

ternational obligation for state parties to submit reports to it. For 

monitoring committees, the Counter-Terrorism Committee, with its 

approach,70 could serve as an excellent model.

The Draft International Convention for the Suppression of Nuclear Terr

One of the tasks the newly reconstituted Ad-Hoc Committee on Terr

entrusted with by the General Assembly in 1996 was the preparation 

international convention for the suppression of acts of nuclear terro

Committee began this task in 1998, immediately upon completion of t

ing convention.71

411

68. The US report is attached as an annex to the Letter dated 19 December 20

Chairman of the Security Council Committee established pursuant to Resolution 

concerning counter-terrorism addressed to the President of the Security Council, S

(December 21, 2001), available at http://www.un.org/Docs/sc/committees/1373/ (Jan

The information regarding US prosecutions appears at page 22.

69. In his presentation, Ambassador Greenstock suggested that the Centre for I

Crime Prevention (CICP) might provide “model laws and guidance on implementa

11 other antiterrorist conventions. See Presentation by Ambassador Greenstock, su

70. Id. at 1.

71. Corell, supra note 42, at 254.

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The Russian Federation has been the primary proponent of a conv

combat nuclear terrorism in order to fill gaps in coverage left by the 1

vention on the Physical Protection of Nuclear Material.72 The Conv

Nuclear Material prohibits parties from exporting or importing or au

the export or import of nuclear material used for peaceful purpos

they give assurances that such materials will be protected at prescri

during international transport. The convention also provides a fram

international cooperation in the recovery and protection of stole

material, and requires that state parties make certain serious offens

ing nuclear material punishable, and that they extradite or prosecu

ers. It does not, however, apply to nuclear material used for military p

At this writing the draft convention73 under consideration by th

Committee on Terrorism would expand the definition of “nuclear m

include objects and materials for military use and provide a clearer 

of the crime of illegal acquisition for terrorist purposes. It would also 

rorist acts against nuclear power plants, vessels with nuclear powe

and the use of automatic nuclear devices. As noted by Hans Corell, 

regard, the new convention could cover to the broadest possible e

possible targets, forms and manifestations of acts of nuclear terror

thermore, unlike the 1980 [actually 1979] Convention, the propose

tion would draw a distinction between acts of nuclear terrorism fr

criminal acts involving the use of nuclear material by referring to th

of such acts.”74

To date, however, it has not proven possible to reach agreement 

draft of the convention. The main sticking point seems to be that so

bers of the non-aligned movement want the convention to cover the 

of the military forces of a state. Article 4(2) of the present draft exclu

armed forces from the scope of the convention. Other member states 

posed extending the scope of the convention to include acts of state ter

In this commentator’s view, such proposals have a political agen

them and are unacceptable to Western member states. On

412

72. Convention on the Physical Protection of Nuclear Material, opened for signatu

1980, entered into force on 8 February 1987, 1456 U.N.T.S. 101, reprinted in 18 

(1979).

73. See Measures to Eliminate International Terrorism: Report of the Working G

Committee, 53rd Sess., A/C. 6/53/L.4 (Oct. 22, 1998), at 4.

74. Corell, supra note 42, at 254.

75. Id. at 255.

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convention

s scope is limited to nuclear terrorism by private actor

extended to the acts of state military forces or of government officia

likely to be any prospect of reaching a consensus on a draft conventi

suppression of acts of nuclear terrorism.

One may also question whether the draft convention’s focus on th

ity of nuclear terrorism is too narrow. Many observers, including thi

of the view that the risk of so-called “catastrophic terrorism”76 is gre

the possible use of chemical, biological, or radiological weapons than 

the use of nuclear weapons. For this reason, a joint group of US and 

perts on international terrorism recommended that their governmen

and sponsor a draft convention to cover terrorism involving weapon

destruction, including in particular nuclear, radiological, chemical an

cal weapons.77 To be sure, there is substantial debate as to how gr

there is of terrorists employing weapons of mass destruction.78 B

Kellman’s observations may serve as a sensible middle of the road po

Assessing risk is difficult because catastrophic terrorism is a low pro

threat which, if it occurs, could have exceptionally high casualties. Y

points can be offered without serious contradiction. First, technical obst

catastrophic terrorism will decline with time. The capabilities for pr

lethal devices will spread, and the choke points of human activity will 

more concentrated, thereby unfortunately converging the ability to 

lethal weapon with an ability to use it to devastating effect. The ne

ramification is that whatever the technological barriers to accomplishin

of catastrophic terrorism may or may not be, those barriers will be ov

sooner or later. Even if the risks are not now realistic, they will be.79

413

76. As pointed out by Barry Kellman, Catastrophic Terrorism—Thinking Fearfully, A

20 MICH. J. INT’L L. 537, note 1 (1999):

Catastrophic terrorism is an intentionally undefined term, reflecting the fa

terrorists who aspire to inflict catastrophic injuries have a long menu of op

employ, and reflecting the conclusion that debates over whether a particular tec

is or is not within this category are, essentially, inconclusive. The defin

‘catastrophic terrorism,’ as opposed to conventional terrorism, turns less on wha

device is used than on the magnitude of the effects.

77. See COMMON GROUND ON TERRORISM 176–77 (John Marks and Igor Beliaev e

78. See, e.g., Judith Miller, Threat of Unconventional Terrorism is Overstated Stud

TIMES, October 26, 2000, at A24, col. 1. For a contrary view, see, e.g., Patrick L

Catastrophic Terrorism Just Strategic ‘Peanuts,’ American Bar Association Standing Co

Law and National Security, NATIONAL SECURITY LAW REPORT, July–August 200

79. Kellman, supra note 76, at 538. See also Barry Kellman, An International C

Approach to Bioterrorism, 25 HARV. J. L. PUB. POL’Y 721 (2002).

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With regard to the possibility of catastrophic terrorism, three othe

eral conventions, while not directed expressly against terrorism, 

noted at least parenthetically. The Convention on the Prohibition o

velopment, Production, and Stockpiling of Bacteriological (Biolog

Toxic Weapons and on Their Destruction80 prohibits the developm

duction, or stockpiling of microbiological and biological agents (weap

are of potential use to terrorists. It is generally agreed, however, that 

vention has been ineffective because of a lack of enforcement provi

an effort to remedy this situation through a protocol has apparently f

in the face of opposition from the United States.81 After years of effor

the UN adopted the Convention on the Prohibition of the Developm

duction, Stockpiling and Use of Chemical Weapons.82 In sharp contr

Biological Weapons Convention, the Chemical Weapons Conventio

orous verification procedures implemented through a new Organizati

Prohibition of Chemical Weapons, which was established at the H

has been functioning since 1997. Under the Chemical Weapons Co

state parties are prohibited from using, producing or stockpiling poi

lethal chemical weapons, and are obliged to dispose of existing chem

ons by the year 2010 at the latest. Lastly, the Treaty on the Nonprolif

Nuclear Weapons (NPT),83 which has as its primary goal the prevent

spread of nuclear weapons among states, may also serve to limit the 

individual terrorists to nuclear arms.84

Draft Comprehensive Convention on International Terrorism

At this writing the Ad-Hoc Committee on Terrorism has a draft co

sive convention on international terrorism before it.85 Progress on th

item, however, has been slow and, in the opinion of this observer

414

80. Convention on the Prohibition of the Development, Production and St

Bacteriological (Biological) and Toxic Weapons and on Their Destruction, April 10

U.N.T.S. 1419, 26 U.S.T. 583.

81. See Elizabeth Olson, US Rejects New Accord Covering Germ Warfare, N.Y. TIM

2001, at A47, col. 1.

82. Convention on the Prohibition of the Development, Production, Stockpiling 

Chemical Weapons, January 13, 1993, 1974 U.N.T.S. 3, A/RES/47/391.

83. Treaty on the Nonproliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.

84. For a brief discussion of the NPT, see John F. Murphy, Force and Arms, in T

NATIONS AND INTERNATIONAL LAW 97, 122–29 (Christopher C. Joyner ed., 199

85. See Report of the Ad Hoc Committee established by General Assembly Resoluti

17 December 1996, 6th Sess. (28 January–1 February 2002), U.N. GAOR, 57th Sess

37(A.57/37), at 4–16.

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remain so. I hold with those who question the wisdom of such an exe

history of efforts to conclude a comprehensive convention on inte

terrorism—from the 1937 League of Nations Convention86 to the 1

convention introduced by the United States in the UN 

Assembly87—has not been a happy one. Michael Reisman, an eminen

ity in international law, has recently cautioned that,

d]espite the relatively promising developments in the 1996 General A

resolution . . . and the 1998 Convention for the Suppression of T

Bombing, the political positions which have retarded the developmen

effective international legal regime in this regard have changed little. Th

Aligned Movement’s solidarity has been broken by a number of pro

defections, yet a substantial number of states still resist a definition of te

that might be applied to terrorist activities of groups that some wish to 

‘freedom fighters’ or fighters in wars of ‘national liberation.’88

Despite its limitations, the “piecemeal” approach has served 

community well. It should continue.

Convention against Transnational Organized Crime

Although the recently concluded Convention against Transnatio

nized Crime89 is not, strictly speaking, an antiterrorist convention, it 

brief mention, if only because it has extensive provisions on internatio

eration that might serve as a model for the parties to the antiterroris

tions. Moreover, as pointed out by Hans Corell, the General Assem

resolution adopting the convention, recommends

that the Ad Hoc Committee established by the General Assembly in its re

51/210 of 17 December 1996, which is beginning its deliberations with a 

developing a comprehensive convention on international terrorism, pur

415

86. Convention for the Prevention and Punishment of Terrorism, 7 INTE

LEGISLATION 862, 868 (Manley O. Hudson ed., 1941).

87. Draft Convention for the Prevention and Punishment of Certain Acts of I

Terrorism, U.N. Doc. A/C. 6/L. 850 (1972).

88. W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J. IN

(1999).

89. Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. G

Sess., Supp. No. 49, U.N. Doc. A/45/49 (2001). The text of and information re

convention may be found at http://www.undcp.org/odccp/crime_cicp_convention.h

2003).

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y 4/, 

the provisions of the UN Convention against Transnational Organized C

As noted above, I have grave doubts about the wisdom of trying to c

comprehensive convention on international terrorism, but provisio

Convention against Transnational Organized Crime may well serve 

to future efforts to combat international terrorism.

Regional Treaties and Conventions

There are now at least eight antiterrorist conventions that have bee

at the regional level.91 It is unclear, however, the extent to which thes

tions have had any operational significance. Five of these convent

been adopted only very recently,92 and it is therefore too early to eval

in terms of their operational efficiency. Some of these recently adopte

conventions have noteworthy provisions, however, and these will be 

plored below. The Organization of American States (OAS) Conv

Prevent and Punish the Acts of Terrorism Taking the Form of Crime

Persons and Related Extortion that are of International Significance,

the European Convention on the Suppression of Terrorism, 1977, are 

vintage and will be explored in somewhat greater detail. The terms of 

Asian Association for Regional Cooperation (SAARC) Regional Co

416

90. Hans Corell, Statement by Mr. Hans Corell to the Security Council 

International Terrorism, December 9, 2000, at 9 (copy on file with author).

91. The texts of and dates of entry into force and other information concerning se

treaties and conventions may be found in INTERNATIONAL INSTRUMENTS RELAT

PREVENTION AND SUPPRESSION OF INTERNATIONAL TERRORISM, supra note 16, 

These include: the OAS Convention to Prevent and Punish the Acts of Terrorism 

Form of Crimes Against Persons and Related Extortion that are of International S

the European Convention on the Suppression of Terrorism; the South Asian Ass

Regional Cooperation (SAARC) Regional Convention on Suppression of Terroris

Convention on the Suppression of Terrorism; the Treaty on Cooperation amon

Members of the Commonwealth of Independent States in Combating Internationa

the Convention of the Organization of the Islamic Conference on Combating I

Terrorism; and the OAU Convention on the Prevention and Combating of Terroris

of the Inter-American Convention Against Terrorism, adopted on June 3, 2002, is 

http://www.oas.org/xxxiiga/english/docs_en/docs_items/AGres1840_02.htm (Jan. 1

92. The five recently adopted antiterrorist conventions include the Arab Con

Suppression of Terrorism, 1998; the Treaty on Cooperation among the States Mem

Commonwealth of Independent States in Combating Terrorism, 1999; the Conve

Organization of the Islamic Conference on Combating International Terrorism, 199

Convention on the Prevention and Combating of Terrorism, 1999; and the Inte

Convention Against Terrorism, 2002.

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on Suppression of Terrorism, 1987, will be briefly examined, but the

to be insufficient data available to allow for an evaluation of its op

significance.

The Arab Convention on the Suppression of Terrorism

The Arab Convention on the Suppression of Terrorism (Arab Co

has several noteworthy features. The first is that only member sta

League of Arab States can be parties to the convention.93 The secon

unlike most of the antiterrorist conventions, the Arab Convention d

rorism as:

[a]ny act or threat of violence, whatever its motives or purposes, that oc

the advancement of an individual or collective criminal agenda, causin

among people, causing fear by harming them, or placing their lives, li

security in danger, or aiming to cause damage to the environment or to p

private installations or property or to occupy or seize them, or aim

jeopardize a national resource.94

The convention goes on to define “terrorist offence” as “[a]ny offe

tempted offence committed in furtherance of a terrorist objective in 

Contracting States, or against their nationals, property or interests, th

ishable by their domestic law.”95Also included within the definition o

offense are offenses stipulated in several global antiterrorist conven

well as the provisions of the UN Convention of 1982 on the Law of th

lating to piracy on the high seas.97

Significantly, however, the Arab Convention also provides that “

of struggle by whatever means, including armed struggle, against fore

pation and aggression for liberation and self-determination, in ac

with the principles of international law, shall not be regarded as an 

This provision shall not apply to any act prejudicing the territorial in

417

93. Arab Convention on Suppression of Terrorism, art. 1, available at http://www

arab/docs/league/terrorism98.htm (Jan. 17, 2003) [hereinafter Arab Convention].

94. Id., art. 2.

95. Id., art. 3.

96. These include the Tokyo Convention on Offences and Certain Other Acts Co

Board Aircraft; the Hague Convention for the Suppression of Unlawful Seizure of A

Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civ

the Convention on the Prevention and Punishment of Crimes against International

Persons, including Diplomatic Agents; the International Convention against th

Hostages; and the Arab Convention, supra note 93, at art. 3(a)–(e).

97. Arab Convention, supra note 93, at art. 3(f ).

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any Arab State.

To be blunt, this provision seeks to justify the co

of terrorist acts against Israel and reflects an attitude that prevente

Hoc Committee on Terrorism from adopting measures against terro

ing the early 1970s. There appears to be no data available on the op

significance of the convention, if any.

Treaty on Cooperation among the States Members of the Commonweal

pendent States in Combating Terrorism

The Treaty on Cooperation among the States Members of the Comm

of Independent States in Combating Terrorism (Commonwealth Tr

the Arab Convention, has a definition of terrorism, but, unlike the A

vention, has no provisions providing exceptions for “wars of nation

tion.” Under the Commonwealth Treaty terrorism is defined as “an 

punishable under criminal law committed for the purpose of undermi

lic safety, influencing decision-making by the authorities or terrorizin

ulation, and taking the form of: [there follows a listing of various mani

of violence or threats of violence against persons or property].”99 T

monwealth Treaty also contains an elaborate definition of “technolo

rorism” involving the use or threat of use of nuclear, radiological, ch

bacteriological (biological) weapons or their components—a prov

found in the other antiterrorist conventions.100 Also noteworthy are 

monwealth Treaty’s many detailed provisions on cooperative measu

vent and punish terrorism, including provisions that envision the po

an antiterrorist unit of one state party crossing the borders of ano

party in order to render assistance to the latter state in the event of 

incident.101 Again though, there appears to be little data on the opera

nificance, if any, of the Commonwealth Treaty.

418

98. Id., art. 2(a).

99. Treaty on Cooperation among the States Members of the Commonwealth of I

States in Combating Terrorism, art. 1 (1999).

100. Id.

101. Article 12(1) of the Treaty, for example, provides: “The parties may, at the req

the consent of the Party concerned, send representatives of their competent 

including special anti-terrorist units, to provide procedural, advisory or prac

accordance with this Treaty.” Id. at art. 12.

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OAU Convention on the Prevention and Combating of Terrorism

At this writing the current status of the OAU Convention on the P

and Combating of Terrorism is most uncertain because of the dissolut

Organization of African Unity and the establishment of the African 

Assuming that the new organization adopts the OAU Convention, 

the convention deserves some brief comment.

Like the other recently adopted regional conventions, the OAU 

tion contains a detailed definition of a “terrorist act,”103 as well as 

provisions calling for cooperation among state parties in preventing 

bating terrorism. Unfortunately, like the Arab Convention, as w

Convention of the Organization of the Islamic Conference on Com

ternational Terrorism,104 the OAU Convention also includes a prov

“the struggle waged by peoples in accordance with the principles o

tional law for their liberation or self-determination, including arme

against colonialism, occupation, aggression and domination by fore

shall not be considered as terrorist acts.”105 It is worth noting that su

sions are incompatible with the approach taken by Article 5 of the U

ist Bombing Convention, which provides that terrorist bombings a

no circumstances justifiable by consideration of a political, philo

ideological, racial, religious or other similar nature and are punishab

alties consistent with their grave nature.”

Inter-American Convention Against Terrorism

The Inter-American Convention Against Terrorism,106 adopted o

2002, came about in response to the events of September 11th. The 

tion of American States was the first organization to condemn the 

ber 11th attacks, and ten days thereafter the OAS Foreign Ministers m

Washington instructed the OAS Permanent Council to prepare a dr

an Inter-American Convention Against Terrorism in time for the m

419

102. See Corinne A. Packer and Donald Rukare, The New African Union and Its Con

96 AM J. INT’L L. 365 (2002).

103. OAU Convention on the Prevention and Combating of Terrorism, art. 1(3)

http://www.fidh.org/intgouv/ua/rapport/1999/antiterroconvention.pdf (Jan. 17, 200

104. See Convention of the Organization of the Islamic Conference on Combating I

Terrorism, art. 2, available at http://www.oic-un.org/26icfm/c.html (Jan. 17, 2003).

105. OAU Convention, supra note 103, at art. 3(1).

106. See Inter-American Convention Against Terrorism, supra note 77.

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the OAS General Assembly on June 3.

By any measure the conven

extraordinary instrument.

Previously, the only antiterrorist convention adopted in the Inter-

context was the OAS Convention to Prevent and Punish the Acts 

ism Taking the Form of Crimes Against Persons and Related Extortio

of International Significance (OAS Convention).108 The OAS Co

however, is focused narrowly on the kidnaping of diplomats, despite 

broaden the scope of the convention, contains many ambiguities, a

deal with crucial problems. Moreover, it has a total of only nine partie

ing the United States, and has not been an effective international in

for the protection of diplomats. In practice it has in effect been supe

the UN Convention on the Prevention and Punishment of Crimes a

ternationally Protected Persons, including Diplomatic Agents.109

By contrast, 30 of the 33 nations present at the meeting of the O

eral Assembly signed the Inter-American Convention Against Ter

And there is nothing narrow about the focus of the Inter-American 

tion. On the contrary, among other things, the convention defines 

within the scope of its coverage as including the offenses covered b

antiterrorist conventions and requires state parties to the Inter-

Convention to make a declaration upon ratification that they are n

to one or the other of the UN antiterrorist conventions if they wish t

ventions to be inapplicable to them, thus creating a strong induc

OAS member states to sign and ratify the UN antiterrorist conve

Also, under Article 3 of the convention, state parties “shall endeav

come parties to the UN antiterrorist conventions and “to adopt the 

measures to effectively implement such instruments. . . .”112 The co

further requires state parties to use the recommendations of the Fina

tion Task Force and other specialized entities as guidelines for 

420

107. See Secretary of State Colin L. Powell, Opening Remarks and Q&A With the Press Fo

General Assembly, June 3, 2002, http://www.state.gov/secretary/rm/2002/10670.htm (Ju

108. This convention was signed by the United States on Feb. 2, 1971 and entered i

the United States on Oct. 8, 1976. T.I.A.S. No. 8413, available at http://untreaty.un

Terrorism/Conv16.pdf (Jan. 17, 2003).

109. For further discussion of the OAS Convention, see John F. Murphy, Protected 

Diplomatic Facilities, in LEGAL ASPECTS OF INTERNATIONAL TERRORISM 277, 299–

E. Evans and John F. Murphy eds., 1977).

110. See Powell, supra note 107, at 2.

111. See Inter-American Convention Against Terrorism, supra note 91, at art. 2.

112. Id., art. 3.

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combating the financing of terrorism,

to deny safe haven to pe

pected of terrorism, as either refugees,114 or asylum seekers,115 and to 

plication of the political offense exception to requests for extra

mutual legal assistance.116 On the other hand the convention perm

party to refuse to provide mutual legal assistance if it “has substantia

for believing that the request has been made for the purpose of prose

punishing a person on account of that person’s race, religion, nation

nic origin, or political opinion, or that compliance with the requ

cause prejudice to that person’s position for any of these reasons.”11

By way of affirmative steps, the convention requires state parties 

domestic law measures to provide for the identification and seizure 

used to finance terrorism,118 to promote cooperation and the excha

formation in order to improve border and customs control measures 

to prevent the international movement of terrorists and trafficking 

without prejudicing applicable international commitments regardin

movement of people and the facilitation of commerce,119 to enhance 

of communication between their law enforcement authorities,120 

one another the greatest measure of expeditious mutual legal assist

respect to the prevention, investigation, and prosecution of the offen

lished [in the UN antiterrorist conventions],”121 and to promote tec

operation and training programs.122

Significantly, Article 18 of the convention requires the state parti

periodic meetings of consultation, with a view to “[t]he full impleme

this Convention. . . .”123 The Secretary General of the OAS is to c

meeting of consultation of the state parties after receiving the 10

ment of ratification (under Article 22 the convention is to enter int

the 30th day following the date of deposit of the sixth instrument o

tion). Also, the Inter-American Committee against Terrorism, esta

1998, has been revitalized and become active.

421

113. Id., art. 4(2).

114. Id., art. 12.

115. Id., art. 13.

116. Id., art. 11.

117. Id., art. 14.

118. Id., art. 5.

119. Id., art. 7.

120. Id., art. 8.

121. Id., art. 9.

122. Id., art. 16.

123. Id., art. 18.

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The Inter

American Convention Against Terrorism, then, has t

tial to become an important instrument for the effective implemen

least on a regional basis, of the UN antiterrorist conventions. Whet

do so remains to be seen. It might be useful to this end for the OAS 

lish a liaison with the UN’s Counter-Terrorism Committee.

European Convention on the Suppression of Terrorism

The European Convention on the Suppression of Terrorism (Europ

vention)124 was an early attempt to deal with a primary obstacle, espe

ing the 1970s, in the way of efforts to combat terrorism, the politic

exception to international extradition. To this end, Article 1 of the co

lists a series of offenses, none of which “for the purposes of extradition 

Contracting States” are to be regarded “as a political offense or as a

connected with a political motive or as an offense inspired by pol

tives.”125 Under Article 2, the convention invites state parties to exc

tional acts of violence against persons or property from the politic

exception.126 At the same time, Article 13 of the convention allow

party to register a reservation permitting it to reject a request for extr

the ground that the offense is of a political character—notwithstand

listed offense is involved:

provided that it undertakes to take into consideration when evaluat

character of the offense any particularly serious aspects of the offense inc

(a) that it created a collective danger to the life, physical integrity or li

persons; or (b) that it affected persons foreign to the motives behind i

that cruel or vicious means had been used in the commission of the off

Under Article 5 of the Convention a requested state may refuse 

dite an accused if it:

has substantial grounds for believing that the request for extradition 

offense mentioned in Article 1 or 2 has been made for the pur

prosecuting or punishing a person on account of his race, religion, nati

422

124. See European Convention on the Suppression of Terrorism (1977), 

INTERNATIONAL INSTRUMENTS RELATED TO THE PREVENTION AND SUPPR

INTERNATIONAL TERRORISM, supra note 16, at 139, available at http://convent

Treaty/EN/Treaties/Html/090.htm (Jan. 17, 2003).

125. This description of the European Convention is taken largely from Murphy, su

at 13–15.

126. European Convention, supra note 124, art. 2.

127. Id., art. 13.

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pp, ppy pj

these reasons.128

Should a state party decide not to extradite an offender covered by 

vention, under Article 7 it must “submit the case, without exceptio

ever and without undue delay to its competent authorities for the p

prosecution.”129

Although the convention is an antiterrorism initiative, it now

tempts to define terrorism. In attempting to exclude a variety of 

crimes as well as “terrorism” from the political offense exception t

tion, the convention may have attempted too much, because ma

upon signing or ratifying the convention, reserved the right to refuse 

dite for an offense which they consider as political.130 This defect, if s

has largely been cured, at least among state parties who are memb

European Union, by the EU’s 1996 Convention relating to the Extra

tween Member States.131 Article 5 of the EU Convention eliminates 

ical offense exception in extradition between state parties and parag

that article provides that reservations to the European Convention 

apply to extradition between member states.132 However, a member 

limit the ambit of Article 5 of the EU Convention to the viole

listed in Articles 1 and 2 of the European Convention.133 Moreo

graph 3 of Article 5 preserves the right to refuse extradition if th

might be persecuted or punished on account of his race, religion, n

or political opinion.134

Adoption of the EU Convention, then, would appear to have re

least partially, the “internal inconsistency” of the European Conven

raised serious doubts as to its effectiveness in practice.135 Moreo

early hold outs, such as Ireland and France, have become parti

423

128. Id., art. 5.

129. Id., art. 7.

130. Murphy, supra note 52, 14–15.

131. See Convention relating to the Extradition between Member States, OJ 96 C 3

September 1996.

132. Id., art. 5.

133. Id.

134. Id.

135. See Geoff Gilbert, The “Law” and “Transnational Terrorism,” 26 NETHERLAND

L. 3, 21 (1995).

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Thursday, April 28, 2005 8:21:55 AM
European Convention,

and English and French courts have applie

surrendering fugitives.137 Hence, although one could wish there wa

it, there is some evidence that the European Convention has been 

use to European efforts to combat terrorism.

SAARC Regional Convention on Suppression of Terrorism

Like the European Convention, the SAARC Regional Convention 

pression of Terrorism (SAARC Convention),138 in Article I, lists a n

offenses and provides that, for the purpose of extradition, they shall 

garded as political offenses. Further, under Article II, any two or m

parties may agree among themselves for purposes of extradition to in

other offenses involving violence, in which case this offense, too, sh

regarded as a political offense.139 Unlike the European Conven

SAARC Convention contains no provision for reservations to the req

that the listed offenses be regarded as nonpolitical offenses. Article 

ever, provides for an exception to extradition requirements:

if it appears to the requested State that by reason of the trivial nature of 

or by reason of the request for the surrender or return of a fugitive offen

being made in good faith or in the interests of justice or for any reason it i

or inexpedient to surrender or return the fugitive offender.140

Although all seven members of SAARC (Bangladesh, Bhutan, In

dives, Nepal, Pakistan and Sri Lanka) are parties to the convention

clear the extent to which it has had operational significance. As 

appeared that some member states of SAARC had not yet enacte

abling legislation required to give effect to the convention.141

424

136. Initially, Ireland did not even sign the convention, claiming that to ratify it wou

constitution, and France, while an initial signatory, did not ratify because of opposit

French Left, which had traditionally opposed the extradition of political offenders. 

supra note 52, at 14–15.

137. See Gilbert, supra note 135, at 21.

138. See SAARC Regional Convention on Suppression of Terrorism (1987), 

INTERNATIONAL INSTRUMENTS RELATED TO THE PREVENTION AND SUPPR

INTERNATIONAL TERRORISM, supra note 16, at 147, available at http://untreaty.un

Terrorism/Conv18.pdf (Jan. 17, 2003).

139. Id., art. II.

140. Id., art. VII.

141. See Report of the Secretary-General, Measures to Eliminate International Terroris

A/51/336, Sep. 6, 1996, at 42.

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Coercive Measures Against Terrorists And

State Sponsors Of Terrorists

Economic Sanctions

As briefly noted above, the primary goal of the International Conv

the Suppression of the Financing of Terrorism and a primary goal o

concluded Inter-American Convention Against Terrorism is to im

nomic sanctions against terrorists by denying them financing as well 

private organizations who support them by seizing and freezing their 

detailed discussion of United States and other countries’ efforts to bl

nancing of international terrorism is beyond the scope of this cha

worth noting parenthetically, however, that, according to recent new

ports, members of al Qaeda may be turning to trade in gold, diam

gems to finance their terrorist network in response to the freezing of t

accounts.142 Also, al Qaeda reportedly increasingly relies heavil

Internet and on an informal money transfer system, known as “h

Arabic, to move its funds. Hawala relies on trust and networks of fr

family to move its funds and leaves no paper or electronic trails. It is, 

impossible to monitor or freeze an account if there is no bank accoun

tronic movement of money. Lastly, again according to recent new

ports, the United States is beginning to face growing resistance 

European allies over how it identifies terrorists and their financiers. 

officials are reportedly questioning the listing of several individuals an

zations whose links to extremist causes are less clear than those of al 

the Taliban.143

The focus of this section of the chapter is on economic sanction

state sponsors of terrorism and, more specifically, mandatory econo

tions imposed by the UN Security Council under Chapter VII o

Charter. Economic sanctions imposed unilaterally by the United St

concert with like minded states, not pursuant to Security Council 

are outside the scope of this chapter.

Although it was its invasion of Kuwait rather than its sponsorship 

ism that precipitated Security Council action against Iraq, in its fam

lution 687,144 the Council “[r]equires Iraq to inform the Security Co

425

142. See, e.g., Sengupta, U.N. Report Says al Qaeda May be Diversifying Its Finances, 

May 23, 2002, at A15, col. 1.

143. See Johnson et al., Bush Faces Widening Gap With Europe, WALL ST. J. , May 21

15, col. 6.

144. S. C. Res. 687, U.N. SCOR 46th Sess., U.N. Doc. S/687/(1991).

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it will not commit or support any act of international terrorism or allo

ganization directed toward commission of such acts to operate withi

tory and to condemn unequivocally and renounce all acts, met

practices of terrorism.”145 Evidence that Iraq has failed to carry ou

quirement is considerable.146

Economic sanctions imposed by the Security Council against Iraq 

come a highly contentious issue, with critics contending that they 

people but not the government of Iraq and that the Security Counc

are lacking in legitimacy because of dominance by the permanent m

To meet these criticisms and to ensure the continuance of economic 

against Iraq, the Security Council recently agreed to a major revis

sanctions, including the adoption of new so-called “smart sanctions.”

the new sanctions regime, UN export controls on purely civilian g

chased by Iraq are lifted. Indeed, all contracts for export of goods to I

the oil for food program are presumed approved unless found to con

on a “Goods Review List” (GRL).149 The GRL consists of so-called “

items that may have both a legitimate civilian use and a potential m

in a prohibited nuclear, chemical, biological, ballistic missile or con

military program. These items will be subjected to additional scruti

Iraq Sanctions Committee established by the Security Council. Perh

important, Resolution 687 remains in force, with its requirements 

destroy its nuclear, chemical and biological weapons programs, an

ballistic missiles range to 150 km.

It remains to be seen, however, whether the new “smart” sanctio

any more effective than the old “dumb” sanctions were in inducing I

fill its obligations under Resolution 687. This commentator, for one

skeptical. We will return to this issue when we turn to the use of mili

to combat terrorism later in this chapter.

Prior to its recent actions with respect to al Qaeda and the Ta

most elaborate set of actions that the Security Council had undert

respect to international terrorism was with respect to Libya. In respo

idence of Libyan complicity in the destruction of Pan Am flight 

Lockerbie, Scotland and of Union de transports aeriens (UTA) fligh

426

145. Id., para. 32.

146. See, e.g., PATTERNS OF GLOBAL TERRORISM 2001, supra note 11, at 65.

147. See, e.g., Jose E. Alvarez, The Once and Future Security Council, 18 WASH. QTRL

148. See S. C. Res. 1409, U.N. SCOR, 57th Sess., U.N. Doc. S/1409/(2002) and S. C

U.N. SCOR, 56th Sess., U.N. Doc. S/1382/(2001).

149. S. C. Res. 1382, supra note 148.

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Council adopted a resolution urging the Libyan Government to pro

and effective” responses to requests made by the French, the UK, an

Governments concerning these catastrophes.150 When the Libyan 

ment failed to do so, the Council decided that this failure constitute

to international peace and security.151 Acting under Chapter VII of 

ter, the Council decided that states should adopt various sanction

Libya unless it responded to the requests for cooperation. To avoid t

sures Libya also had to commit itself “definitely to cease all forms o

action and all assistance to terrorist groups and... promptly, by con

tions, demonstrate its renunciation of terrorism.”152 In a third reso

Council applied further comprehensive sanctions against Libya in 1

Although they had previously strongly resisted a proposal along th

in 1998, the United States and the United Kingdom agreed to a t

two persons charged with the bombing of Pan Am flight 103 before 

Court siting in the Netherlands. The Security Council welcomed t

tive,154 and decided that the Libyan Government was to ensure th

ance in the Netherlands of the two accused persons.155 The Co

decided that it would suspend the sanctions it had imposed against L

the Secretary-General had reported to the Council that the two acc

sons had arrived in the Netherlands for trial and the Libyan Govern

satisfied the French judicial authorities with regard to the bombin

flight 772.

On April 5, 1999, the Secretary-General reported to the Counci

two accused persons had arrived in the Netherlands for trial and 

French authorities had informed him that the Libyan Government 

fied the Council’s demands with respect to the bombing of UTA f

Accordingly, the President of the Council announced that the 

against Libya had been suspended.156

On January 31, 2001, a three judge Scottish Court, sitting at Ca

the Netherlands, convicted Abdelbaset Ali Mohmed al Megrahi, a L

telligence agent, of murdering 270 people in the 1988 bombing of 

flight 103. The second Libyan defendant, Al Amin Khalifa Fhima

427

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

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

152. Id.

153. S. C. Res. 883, U.N. SCOR, 48th Sess., U.N. Doc. S/883/(1993).

154. S. C. Res. 1192, U.N. SCOR, 53d Sess., U.N. Doc. S/1192/(1998).

155. Id., at para. 4.

156. Statement of the President of the Council, April 8, 1999, S/PRST/1999/10.

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Thursday, April 28, 2005 8:21:55 AM
manager of the Libyan Arab Airlines in Malta where the bomb origin

acquitted.157 The court sentenced Megrahi to life in prison, and his c

was upheld on appeal.158

The Council’s actions against Libya, then, have had a quite extr

denouement. Less successful were the Council’s measures against Af

prior to September 11th and against Sudan. With respect to Afghan

Council, acting under Chapter VII of the Charter, demanded that th

hand over Osama bin Laden, who had been indicted by the United 

the August 7, 1998 bombings of the US embassies in Kenya and Ta

“appropriate authorities in a country where he has been indicted, or 

priate authorities in a country where he will be returned to such a c

to appropriate authorities in a country where he will be arrested a

tively brought to justice.”159 By the same resolution the Council decid

pose economic sanctions against the Taliban as of November 14, 19

failed to accede to this demand. When the Taliban had not turned O

Laden over by November 14, 1999, the Council announced on Nov

1999, that the sanctions were to come into effect.

As to the Sudan, the Security Council became involved in resp

Sudan backed assassination attempt on the life of the President o

Addis Ababa, Ethiopia on June 26, 1995. In a resolution adopted 

ary 31, 1996, the Council declared that “those responsible for that ac

brought to justice,” called upon the Government of the Sudan imme

“extradite to Ethiopia for prosecution the three suspects sheltering 

dan and wanted in connection with the assassination attempt. . . .

ther called upon the Sudan to “[d]esist from engaging in the ac

assisting, supporting and facilitating terrorist elements and act in its 

with its neighbors and with others in full conformity with the Char

UN and with the Charter of the Organization of African Unity.”160 W

Government of the Sudan did not comply with this request, the Cou

ing under Chapter VII of the Charter, decided to impose certain 

sanctions against the Sudan.161

428

157. See Peter Finn, Libyan Convicted of Lockerbie Bombing: Second Man acquitte

WASH. POST, Feb. 1, 2001, at A 1.

158. Al Megrahi v. Her Majesty’s Advocate, Appeal No. C104/01 (J.C. 2002) (Scot.)

http://www.scotcourts.gov.uk/download/lockerbieappealjudgement.pdf (Jan. 17, 20

159. S. C. Res. 1267, U.N. SCOR, 54th Sess., U.N. Doc. S/1267/(1999), para. 2.

160. S. C. Res. 1044, U.N. SCOR, 51st Sess., U.N. Doc. S/1044/(1996), para. 4.

161. S. C. Res. 1070, U.N. SCOR, 51st Sess., U.N. Doc. S/1070/(1996).

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Economic sanctions imposed by the Security Council are often rega

alternative to the use of force in dealing with state sponsors of terroris

the Council declines to impose economic sanctions, or when sanc

posed by the Security Council fail to induce a target state to cease it

ship or support of international terrorism, however, the controversi

what measures of self-help may be taken by states acting without Counc

zation may arise. It is to this issue that we turn in the next section of this 

Use of Armed Force

Other participants in this conference have addressed the jus ad bellu

of the war on terrorism, and I will try to minimize overlap with the 

tions of these other participants. To this end I will largely limit my com

the possible future use of armed force against terrorists in countries o

Afghanistan and against their state sponsors. As to the use of arm

against al Qaeda and the Taliban, I will just state my view that it has 

consonant with the jus ad bellum limitations of the UN Charter.162 I w

dress any of the jus in bello issues.

At this writing there are numerous newspaper reports that the Bu

istration is developing a doctrine of preemptive action against state

rorist groups trying to develop weapons of mass destruction.163 Uni

Vice President Dick Cheney reportedly has given as the rationale 

doctrine the inadequacy of the Cold War approaches of arms contr

and the policy of deterrence for present circumstances. One newspa

quoted Cheney as saying: “In terror, we have enemies with nothing 

A group like al-Qaeda cannot be deterred or reasoned with. This str

not end in a treaty or accommodation with terrorists—it can only en

complete and utter destruction.”164

It seems clear that al Qaeda cannot be deterred or reasoned with. 

dications are that the likely first target of the new doctrine is Iraq 

particularly the regime of Saddam Hussein.165 It is at least debatabl

429

162. Besides the presentations at the conference, for an analysis of the jus ad bellum 

of the use of armed force in Afghanistan, see, e.g., Thomas M. Franck, Terrorism an

Self-Defense, 95 AM. J. INT’L L. 839 (2001); Jack M. Beard, America’s New War on 

Case for Self-Defense under International Law, 25 HARV. J. L. PUB. POL’Y 559 (2002

163. See, e.g., David E. Sanger, Bush to Formalize a Defense Policy of Hitting First, N.Y. 

17, 2002, at A1, col. 1; Lydia Adetunji, Bush to lay out first-strike policy again

FINANCIAL TIMES, June 11, 2002, at 3, col. 1; and Thom Shanker, Defense Secretary 

to Beat Terrorists to Punch, N.Y. TIMES, June 7, 2002, at A8, col. 3.

164. Adetunji, supra note 163.

165. See, e.g., Sanger, supra note 163.

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Saddam Hussein can be deterred or reasoned with. There is substa

dence that, unlike al Qaeda or Palestinian suicide bombers, Saddam 

cares greatly about his own survival and the survival of his regime.

To be sure, there is no question of the evil nature of Saddam Hu

his regime. He is, after all, a man who used chemical weapons agains

own people and in the war with Iran. Because of this history and Ir

sion of Kuwait, Security Council Resolution 687 demands that Iraq 

terrorism and eliminate its weapons of mass destruction under inte

inspection. For the last three years, however, Iraq has barred the U

tors,166 and it is widely assumed that it has been developing its ca

chemical and biological weapons during this time. Margaret That

former British Prime Minister known as the “Iron Lady,” has recen

out strongly in favor of the removal of Saddam Hussein:

Saddam must go. His continued survival after comprehensively losing t

War has done untold damage to the West’s standing in a region where t

unforgivable sin is weakness. His flouting of the terms on which ho

ceased has made a laughingstock of the international community. His a

mistreatment of his own countrymen continues unabated. It is clear to 

willing to face reality that the only reason Saddam took the risk of refu

submit his activities to U.N. inspection was that he is exerting every m

build WMD [weapons of mass destruction]. We do not know exactly wh

that has reached. But to allow this process to continue because the 

action to arrest it seem too great would be foolish in the extreme.167

There is a great variety of views on the issue of whether, as a poli

Saddam should be removed. One alternative view is that he can be c

and the appropriate policy is to ensure the destruction or degra

Saddam’s weapons of mass destruction, if necessary by the use 

force.168 A variant of this view is that there should be a new “Bush 

that would eschew the use of force to overthrow Saddam under pr

cumstances but state explicitly that certain actions or “triggers” wo

430

166. Editor’s Note: UN weapons inspectors returned to Iraq in November 2003, 

Security Council Resolution 1441. U.N. SCOR 58th Sess., U.N. Doc. S/1441/(200

167. Margaret Thatcher, Don’t Go Wobbly, WALL ST. J., June 17, 2002, at A18

another strong statement favoring the removal of Saddam Hussein, see Lawrence F. K

the Bush Administration will go after Iraq, THE NEW REPUBLIC, Dec. 10, 2001, at 21

168. For an article setting forth this view, although the author of the article rejects it

supra note 167.

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in military action and the overthrow of the Saddam regime. Exampl

“triggers” might include further evidence about Saddam’s links with 

any transfer of weapons of mass destruction to al Qaeda or similar group

complicity in the September 11th attacks or any such attacks in the 

involvement in the September–October 2001 anthrax attacks; or the ha

of groups that carry out terrorism against the United States. Bush co

make clear that a range of other Iraqi actions unrela

terrorism—significant progress toward the acquisition of a nuclear w

another attempted invasion of Kuwait; an attack on Israel; or the use 

against American troops—would also be considered redlines that 

produce a policy of overthrow.169

This chapter does not examine the detailed policy arguments 

been advanced in favor of and against a policy of removal of the 

Hussein regime. Rather, for present purposes, it assumes that the po

sion has been made to remove Saddam and that the use of armed for

required to do so. The question then arises whether this policy can 

mented in a manner consistent with US international legal obligati

cially those set forth in the UN Charter. Time and space limitation

that this chapter examine this question only briefly.170

The examination starts from the basic proposition that, unde

Charter, the use of military force is permitted in only two instances: i

ual or collective self-defense under Article 51 of the Charter or pur

Security Council resolution adopted by the Council under Chapter 

431

169. See Philip H. Gordon and Michael E. O’Hanlon, Should the War on Terrorism 

Implementing a Bush Doctrine on Deterrence, THE BROOKINGS INSTITUTION, Policy B

(2002).

170. Because of the recent nature of its formulation, there has been relatively 

commentary on the Bush Administration’s announced intention to remove Saddam H

power, if necessary by force. An exception is Anthony Clark Arend, Iraq: First Ma

WASH. POST, Apr. 17, 2002, at A15. Also, there are a number of writings on the 

against terrorism that are relevant to the Bush Administration’s plans. See especia

supra note 88. Some other writings of note include Christine Gray, From Unity to 

International Law and the Use of Force against Iraq, 13 EUR. J. INT’L L. 1 (2002); Micha

Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq, 13 

L. 21 (2002); Nigel White and Robert Cryer, Unilateral Enforcement of Resolution 687: A 

Far?, 29 CAL. W. L. REV. 243 (1999); Jules Lobel, The Use of Force to Respond to Terr

The Bombing of Sudan and Afghanistan, 24 YALE J. INT’L L. 537 (1999); and Ruth 

Responding To Terrorism: The Strikes Against Bin Laden, 24 YALE J. INT’L L. 559 (199

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Charter.

I am not among those who favor a doctrine of humanitar

vention,” either as lex lata or as de lege feranda.

Let us consider the second exception first. There is little doubt th

curity Council could adopt a resolution authorizing member stat

armed force to remove Saddam Hussein from power. Indeed, a good 

could be made that Security Council Resolution 678,172 which auth

use of force against Iraq in the Gulf War, would have permitted the r

Saddam Hussein if, as a policy matter, a decision was made to do 

suming arguendo that the Council will not adopt a new resolution 

authorizing Saddam’s removal, the issue arises whether any previou

Council resolutions adopted with reference to Iraq implicitly pro

authorization.

The United States and the United Kingdom have, in the past, ar

Security Council resolutions have implicitly authorized the use 

against Iraq. For example, the United States, the United King

France relied on Resolution 688174 as support for the establishment 

force of refugee camps in Northern Iraq in 1991, and later in Southe

well as the creation of “no-fly” zones in both parts of the country. Bu

a highly tenuous argument.175 As noted by Christine Gray,

Security Council Resolution 688 was not passed under Chapter VII and it 

authorize the use of force: it demanded that Iraq end the repression of its 

population and allow access to international humanitarian organizations. 

not stop the USA and the UK from claiming that their actions in the con

clashes with Iraq over the no-fly zones were ‘consistent with’, ‘supportive 

implementation of ’ and ‘pursuant to’ Resolution 688.176

Reliance on implied Security Council authorization was also us

United States and the United Kingdom to justify military actions ag

for non-cooperation with UN weapons inspectors under the Resol

ceasefire regime. Both countries also added another justification for 

of armed force against Iraq. Christine Gray has aptly summarized th

stances. She is worth quoting at some length:

432

171. For further discussion of the Charter paradigm, see Murphy, supra note 84.

172. S. C. Res. 678, U.N. SCOR, 45th Sess., U.N. Doc S/678/(1990).

173. For a brief discussion of this point, see John F. Murphy, Force and Arms, in 

NATIONS LEGAL ORDER 247, 287–288 (Oscar Schachter and Christopher C. Joyner 

174. S. C. Res. 688, U.N. SCOR, 46th Sess., U.N. Doc S/688/(1991).

175. For my view of this argument, see Murphy, supra note 68, at 290–91.

176. Gray, supra note 170, at 9.

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p

response to the withdrawal by Iraq of cooperation with the UN w

inspectors; this was a major operation lasting four days and nights and in

more missiles than used in the entire 1991 conflict. The USA and UK 

to Security Council Resolutions 1154 and 1205 as providing the legal b

their use of force; these resolutions had been passed under Chapter VII, 

not made express provision for the use of force. The first said that Ira

under Resolution 687, accord immediate and unrestricted access to UN

and IAEA inspectors and that any violation would have “the 

consequences for Iraq.” The second resolution condemned the decision 

to stop cooperation with UNSCOM and demanded that Iraq res

decision. Although these resolutions did not explicitly authorize force, 

argued that they provided a clear basis for military action; by Resolutio

the Security Council had implicitly revived the authority to use force g

Resolution 678. The USA also said that its forces were acting un

authority provided by the Security Council resolutions. But this argu

implied authorization was not accepted by other states; in the Security 

debate following the operation only Japan spoke out clearly in its favor

The argument of implied authorization was not used on its own by the U

the UK; this justification was supplemented by the claim that the use 

was a lawful response to a breach by Iraq of the ceasefire. Thus the USA 

that Iraq had repeatedly taken actions which constituted flagrant, m

breaches of its obligations: following these breaches of its obligations 

“coalition” had exercised the authority given by Security Council Res

678 for Member States to employ all necessary means to secure complian

the Council’s resolutions and restore international peace and security 

area. The UK, in the Security Council debate, said that Resolution 687 

a condition of the ceasefire that Iraq destroy its weapons of mass destruct

agree to the monitoring of its obligations to destroy such weapons. B

flagrant violation of the ceasefire resolution the Security Council im

revived the authority to use force given in Resolution 678 (1990).177

In my view Gray has convincingly responded to the US and UK ar

the argument of material breach has been criticized by commentators be

arrogates to individual states power that properly resides with the S

Council. It is for the Security Council to determine not only the existe

breach of the ceasefire, but also the consequences of such a breach 

where there is a binding ceasefire imposed by the Security Council. More

seems doubtful whether any breach of Resolution 687 not itself involv

433

177. Id. at 11–12.

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jy g p

who support this doctrine of material breach seem impatient of disagr

within the Security Council; they revive Cold War arguments that w

Security Council is unable to act because of a permanent member then t

and the UK can go ahead to use force, if there has been a breach of 

resolution passed under Chapter VII, even in the absence of 

authorization. But this has dangers for the Security Council: it discou

words of the resolutions reserving the Security Council’s right to c

further action; it also discounts statements in debates that it is for the S

Council to take further action. This undermines the authority of the S

Council and ignores the careful negotiations between states attempting t

agreement on controversial issues....178

It might also be noted that, as discussed above, the Security Coun

cently adopted a resolution179 that establishes a new system of “sm

tions” to induce Iraq to fulfill its responsibilities under Resolu

Arguably, implicit in this resolution is a requirement that member s

these sanctions a chance to work. If so, the use of armed force n

seem incompatible with this resolution.

Assuming, again arguendo, that existing Security Council re

would not authorize the use of force to remove Saddam’s regime fro

the issue arises whether such an action could be justified as an exerci

vidual or collective self-defense under Article 51 of the UN Charter

nent part, Article 51 provides: “Nothing in the present Charter sh

the inherent right of individual or collective self-defense if an arm

occurs against a Member of the United Nations . . . .” This and other 

in Article 51 has been the subject of much critical analysis and deba

fessor Michael Glennon has recently argued that Article 51 is “inc

that indeed “international ‘rules’ concerning use of force are no long

ered obligatory by states,” and that therefore “Article 51, as authorit

terpreted by the International Court of Justice, cannot guide respo

policy-makers in the US war against terrorism in Afghanistan or elsew

434

178. Id. at 12–13.

179. See S. C. Resolution 1409, U.N. SCOR, 57th Sess., U.N. Doc. S/1409/(2002).

180. For discussion and citations, see LORI F. DAMROSCH ET AL, INTERNATIONAL L

(4th ed. 2001).

181. Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in 

the UN Charter, 25 HARV. J. L. PUB. POL’Y 539, 540, and 541 (2002). See also 

GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER: INTERVENTION AFTE

(2001); Michael J. Glennon, The Case for Anticipatory Self-Defense, WEEKLY STAN

28, 2002, at 24.

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This is not the place or time to address Glennon

s views, except to 

in my view, they are seriously wrongheaded.182 It suffices for present 

to note that, if Glennon is right, and Article 51 and indeed all o

Charter norms on the use of force are inoperative, we are largely w

time at this conference. Interestingly, Glennon himself states that h

tempted merely to suggest what the rules are not, not what the ru

be.”183 Apparently he believes that, with rules of the UN Charter on 

force inoperative, we should simply make up the rules as we go alon

prescription for a return to the “law of the jungle” in my view.

Be that as it may, let us return for present purposes to the text of A

of the UN Charter. By its terms Article 51 seems to require the prese

“armed attack” as a condition precedent for the use of force in ind

collective self-defense. To demonstrate that Iraq had committed an 

tack on the United States, it would appear necessary, at a minim

some evidence be forthcoming that Iraq was involved in some direct 

the planning of, or otherwise directly supported, al Qaeda’s Septem

attack. Such support was at least part of the case in favor of the leg

an act of self-defense of the use of armed force against the Taliban in 

stan. There is some evidence of contact between Iraqi intelligence a

al Qaeda members prior to September 11th,184 but, at least to my kn

there is no evidence at this point of Iraq’s involvement in the Septem

attack.

One of the hotly debated issues over Article 51 is whether it perm

ercise of anticipatory self-defense, i.e., the use of armed force to p

armed attack, not just to respond to a completed armed attack.185 

reading of Article 51 would seem to bar anticipatory self-defense, 

have argued, focusing on the term “inherent” in Article 51 and citin

biguous drafting history of that article, that Article 51 is a savin

435

182. Some, but by no means all, of the problems with Glennon’s views are identifie

H. Tiefer’s review of Glennon’s book, Limits of Law, Prerogatives of Power: Interven

Kosovo, 96 AM J. INT’L L. 489 (2002).

183. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 5

Charter, supra note 181, at 557.

184. According to Lawrence Kaplan, “Czech Prime Minister Milos Zeman ann

November 9 that, in the months preceding the attacks in New York and Washington

11th ringmaster Mohammed Atta met twice in Prague with senior Iraqi intelli

Ahmed Khalil Ibrahim Samir Al-Ani.... According to Zeman, the two men explici

an attack on Radio Free Europe’s headquarters in Prague.” Kaplan, supra note 167, 

185. For discussion of the debate over anticipatory self-defense and additional c

DAMROSCH ET AL, supra note 180, at 968–72.

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preserving the right to self

defense under customary international la

isted prior to the adoption of the UN Charter. Assuming arguendo th

51 permits an exercise of anticipatory self-defense, at least a color

ment can be made that the use of force to remove Saddam would f

the scope of that doctrine. There is considerable evidence that al Q

actively sought the possession of weapons of mass destruction. Iraq’s 

with al Qaeda members, and its provision of bases to various Midd

terrorist groups,186 raise the possibility that Iraq might supply al Qaed

terrorist groups with weapons of mass destruction, especially biologi

ons. Iraq’s past use of chemical weapons makes such a scenario plausi

element of the customary international law of self-defense, as form

US Secretary of State Daniel Webster in a diplomatic note to the 

1842 during the Caroline incident, was that self-defense must be 

cases in which “the necessity of that self-defence is instant, overwhel

leaving no choice of means, and no moment for deliberation.”187 Th

ment of an imminent armed attack is at first blush clearly lacking in t

Iraq. But the concept of imminence arguably takes on a new meanin

Qaeda or other terrorist groups may be supplied biological weapon

such circumstances it will often be impossible to know when an attac

nent, since the terrorist group will decide when it will be launche

forewarning.

When Israel destroyed the Iraqi nuclear reactor near Baghdad in 

tive attack in 1981, there was general outrage expressed in the UN

Security Council adopted a resolution188 that condemned the attack

Reisman has suggested that “now the general consensus is that it [th

was a lawful and justified resort to unilateral preemptive action.”18

But in any event the situation has changed dramatically from 1981

threat from Iraq is not nuclear weapons but chemical and biological 

Moreover, now the threat is not so much that Iraq will use such we

rather that it will make such weapons available to terrorist groups th

be deterred by the threat of massive retaliation. Under these circum

may be argued, it would be suicidal to wait for clear evidence of an 

attack. As Dean Acheson once said in a different context, “the la

suicide pact.”

436

186. See PATTERNS OF GLOBAL TERRORISM 2001, supra note 11, at 65.

187. 2 MOORE, DIGEST OF INTERNATIONAL LAW 412 (1906).

188. S. C. Res. 487, U.N. SCOR, 36th Sess., U.N. Doc. S/487/(1981).

189. Reisman, supra note 88, at 18.

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Many, perhaps most, will not find this argument convincing. As 

advocate’s brief, however, it perhaps has a measure of cogency. At th

the Bush administration has reportedly concluded that military s

opposition forces or fomenting a coup should be tried over the 

months to dislodge Saddam before any decision is made to engage 

out military assault.190 President Bush has reportedly not yet dec

single cause of action, but there are “some indications” that he “ma

covert strategy and international sanctions time to run their course

an approach would be less problematic from an international law s

than an all out military assault and likely to engender much less ne

action. Condoleezza Rice, President Bush’s National Security Ad

reportedly stated that a “critical component” of the administration’s 

tary strategy is establishing “a common security framework for the g

ers,” in which the United States, Russia, China, Japan and Europe 

common security agenda” in which they work together to keep terr

rogue states from challenging that system.192 Avoiding precipitous 

Iraq and working as closely as possible with the other great pow

seem the best way to build such a common security framework and t

a common security agenda.193

437

190. See Christopher Marquis, Bush Officials Differ on Way to Force Out Iraqi Leader, 

June 19, 2002, at A7, col. 1.

191. Id.

192. Id. at A6.

193. As this article is being reviewed in the page proof stage, the United States, 

Kingdom and other member states of a “coalition of the willing” are bringing to 

conclusion the armed conflict stage of Operation IRAQI FREEDOM. Time does no

revision of this article to include a detailed analysis of the legal basis for the laun

armed attack against Iraq. A few preliminary observation may be in order, however

report to the Security Council on the commencement of hostilities, the United Sta

previously adopted Security Council resolutions, including Resolution 1441 (N

2002), as the legal basis for its resort to armed force. See Letter dated 20 March 20

Permanent Representative of the United States of America to the United Nations A

the President of the Security Council (Mar. 21, 2003), U.N. Doc. S/351/(2003). 

justification for the attack also stresses the argument that previous Security Council 

including Resolution 1441, authorize the use of armed force against Iraq. See State

Attorney General Lord Goldsmith in Answer to a Parliamentary Question (regard

basis for the use of force against Iraq), at (Apr. 30, 2003). It is noteworthy that ne

nor the British statements cite self-defense and Article 51 of the UN Charter as a j

Resolution 1441 adds a substantial complexity to the mix, in that it constitutes w

call a “masterpiece of deliberate diplomatic ambiguity” that masked real differen

between the United States and the United Kingdom, on the one hand, and France, G

Russia, on the other, on how Iraq’s failure to fulfill its obligations under Secu

Resolution 687 should be handled. To the United States, for example, the wo

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At this juncture it would seem fruitless to speculate about possib

action against other state sponsors of terrorism, including the other 

bers of the “axis of evil,” Iran and North Korea, except to suggest th

rent circumstances neither case would seem to call for the use 

force.194 The use of US military force against al Qaeda cells or othe

groups is likely to be undertaken with the consent and indeed activ

pation of the host country, as at present in the Philippines or possi

future in Indonesia. The goal should be to continue to develop a

standing on the part of all states that terrorism is a common action 

be defeated only through a common effort.

438

consequences” were code words for the use of armed force, but this was not the in

favored by France, Germany, and Russia. See Bob Sherwood, Military force: pre-empt

breach of international law?, FINANCIAL TIMES, Mar. 11, 2003, at 11, col. 2. Lord 

statement argues that the absence of an explicit requirement in Resolution 1441 

decision of the Security Council before resort to force may take place shows that no 

was intended by the Council. To the contrary, however, the drafting history of Res

demonstrates that France, Russia and Germany viewed the absence of an explicit a

in the resolution as precluding the use of armed force without a further decision of 

Council. See, e.g., World Urges Iraq to Comply with U.N.CNN International at (Apr. 

Assuming arguendo that, on balance, existing Security Council resolution

Resolution 1441, do not authorize the use of force against Iraq because of its failure 

its weapons of mass destruction as required by Resolution 1441, this should not be th

analysis. There is considerable evidence, and more is likely to be disclosed in the 

that, far from helping to enforce Resolution 687, France and Russia engaged in de

Saddam Hussein government that undermined its enforcement. Moreover, in refus

a US and UK proposal that the Security Council adopt a resolution explicitly author

of force if Iraq failed to carry out its obligations to disarm, France, Germany and Ru

failed to fulfill their obligation as members of the Council to allow the Council to 

collective security functions to maintain international peace and security. As Edw

long time observer and commentator on the United Nations, recently noted: “

Nations, sadly, has drifted far from its founding vision. Its Charter neither calls for a 

council nor relegates the collective use of force to a last resort. It was a wartime do

military alliance, not a universal peace platform.” Edward C. Luck, Making the W

Hypocrisy, N.Y. TIMES, Mar. 22, 2003, at A11, col. 1.

Further, as Jacques de Lisle has recently suggested, there may be a virtue in 

“almost legal” manner and, if so, the United States and other members of the coal

justly be accused of engaging in lawless behavior. Jacques de Lisle, Illegal? Yes. Law

Fast: The United States, International Law, & the War in Iraq, Foreign Policy Resea

(Mar. 28, 2003). Professor de Lisle also suggests that, if after the armed conflict in 

there is substantial evidence uncovered of weapons of mass destruction and plans to 

well as of the heinous nature of the Iraq regime, this would “greatly strengthen th

partners’ arguments for the near-legality and, thus, the legitimacy of their war in Ir

194. It is worth noting that even the “Iron Lady” has not called for the use of m

against either Iran or North Korea. Thatcher, supra note 167.

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The Road Ahead: Conclusions and Recommendations

Most of my conclusions and recommendations are set forth in previou

of this chapter. In this, the concluding section of the chapter, I hop

light a few especially important points and, with trepidation, specu

about the future.

A general observation is that we have reached the stage where imp

the legal regime that has been developed to combat terrorism is of p

importance. We now have in place an impressive array of antiterr

ventions, at both the global and regional levels, that covers almost 

ble manifestations of terrorism. To be sure it might be useful to 

convention directed toward the possible use of weapons of mass de

by terrorists but otherwise coverage is impressive. Until recently, 

there has been little effort to ensure that these conventions constitu

erative system for combating terrorism. In contrast, establishme

Counter-Terrorism Committee by the Security Council to oversee 

combat terrorism, especially the financing of terrorism, and adopti

Inter-American Convention Against Terrorism are significant steps to 

The “catastrophic terrorism” of September 11th may so “concen

mind wonderfully”195 that we will finally give the problem of terrorism 

of attention it deserves. The unprecedented cooperation among sta

and outside of the UN, that followed September 11th is a prime e

the high priority efforts to combat terrorism currently enjoy. But the 

coming complacent is always present, and may become greater if, as 

on, no new examples of catastrophic terrorism occur. In this conne

worth noting that in the past al Qaeda has demonstrated great patie

planning of terrorist attacks, with such attacks coming at three year i

Moreover, we are still engaged in a struggle to establish the propos

the acts of terrorism covered by the antiterrorist conventions are il

at all times and under all circumstances whatever the political mot

the terrorist. The support, explicit or tacit, given by many states to 

tinian suicide bombings in Israel and on the West Bank graphically 

the problem. Although this is a subject outside the scope of this con

is crucially important to efforts to combat terrorism that a peaceful r

of the conflict between Israel and the Palestinians be found.

439

195. This paraphrases, of course, the famous quote from Samuel Johnson, “Depend 

when a man knows he is to be hanged in a fortnight, it concentrates his mind w

RESPECTFULLY QUOTED:ADICTIONARY OF QUOTATIONS REQUESTED 

CONGRESSIONAL RESEARCH SERVICE 74 (Suzy Platt ed., 1989).

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Besides the antiterrorist conventions we need to use other tools a

posal more effectively if we are to succeed in this “war on terrorism.

cated previously in this chapter, the record of economic sanction

against state sponsors of terrorism is spotty at best. The record of econo

tions against Iraq has been egregiously bad. We need to work further 

sanctions” that will have a real impact on the governments of state sp

terrorism while sparing the general population of the targeted count

Finally, I return to Ms. Rice’s reported comment calling for the 

ment of “a common security framework for the great powers” with

they “share a common security agenda” and work together to keep 

and rogue states from challenging the system. With respect I wou

that we already have such a common security framework: the UN 

Council and Chapter VII of the UN Charter. Contrary to Professor G

fulminations, in the face of numerous obstacles, this common secur

work has from time to time served us well. It is now time for the gre

to recommit themselves to making the collective security system o

work as envisaged by its founders. Such a pledge is long overdue.

440

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XXVI

Al Qaeda And Taliban Detainees—

Examination Of Legal Rights

And Appropriate Treatment

James Terry1

Introduction

he war against the terrorists who attacked the United State

tember 11, 2001, is a new kind of international conflict. It doe

resent traditional warfare between states adhering to the law of arme

Rather, it reflects non-traditional violence against states and innocen

by individuals or groups for political ends without regard to the civiliz

ior on the battlefield that underpins the four 1949 Geneva Conven

cluding the Convention Relative to the Treatment of Prisoner

(Geneva Convention III).2

1. James Terry is a retired Marine Colonel currently serving as the Deputy Assistant 

State for Regional, Global and Functional Affairs in the Bureau of Legislative Affair

US Department of State. The views expressed in this paper are the views of the aut

2. See Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U

Convention for the Amelioration of the Condition of the Wounded, Sick, and S

Members of Armed Forces at Sea, Aug. 12, 1949, 6. U.S.T. 3217, T.I.A.S. No. 3363, 

85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U

T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative to the 

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The perpetrators of the September 11th violence, the al Qaeda 

tion, were protected and given safe haven in Afghanistan by the 

Taliban militia. Although the Taliban was the strongest of the ethn

in Afghanistan by mid-2001, it was unable to conduct normal foreign 

or to fulfill its international legal obligations. Because the Taliban m

sistently refused to comply with UN Security Council Resoluti

(2000), 1267 (1999) and 1214 (1998),3 independent press reports c

that it had become so subject to the domination and control of al Q

it could not pursue independent policies with respect to other state

While the US–led coalition together with Afghan Northern Allia

were successful in crushing al Qaeda and the Taliban in Oper

DURING FREEDOM, the detainees captured in Afghanistan and tran

Guantanamo Bay, Cuba for post conflict disposition raised issue

dressed since the Vietnam Conflict when Viet Cong forces were ca

South Vietnam. Although entitled only to Common Article 3 sta

442

of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. N

U.N.T.S. 287 [hereinafter GC IV]. These four conventions are all reprinted in DOC

THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) 

DOCUMENTS ON THE LAWS OF WAR]; and in THE LAWS OF ARMED CO

COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS, Dietri

and Jiri Toman eds., 3rd ed. 1988). Treaty texts are also available at the Internationa

of the Red Cross website at http://www.icrc.org/eng (Jan. 3, 2003).

3. Security Council Resolution 1333 “strongly condemn[ed]” the Taliban for the “sh

training of terrorists and [the] planning of terrorist acts,” and “deplor[ed] the f

Taliban continues to provide a safe haven to Usama bin Laden and to allow him 

associated with him to operate a network of terrorist training camps from Taliba

territory and to use Afghanistan as a base from which to sponsor internatio

operations.” U.N. SCOR 55th Sess., U.N. Doc. S/1333/(2000). In its preamble, Reso

found that the Taliban’s failure to comply with the Council’s 1998 demand in Resolu

terminate the use of Afghanistan as a base from which to sponsor internation

constituted a threat to the peace. U.N. SCOR 54th Sess., U.N. Doc. S/1267/(1999

13 of Resolution 1214 enjoined the Taliban from providing a sanctuary and training f

U.N. SCOR 53d Sess., U.N. Doc. S/1214/(1998).

4. See, e.g., Michael Dobbs and Vernon Loeb, 2 U.S. Targets Bound By Fate, WASH. 

14, 2001, at A22.

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each of the four Geneva Conventions,

the Viet Cong prisoners we

theless treated as prisoners of war (POWs).6

Simply stated, the issues presented US officials in Afghanistan 

(1) a determination whether the 1949 Geneva Conventions appli

conflict represented by Operation ENDURING FREEDOM and Operat

CONDA; and (2), if so, whether members of al Qaeda as a group 

Taliban individually or as a group are entitled to POW status unde

Convention III.

The Application of the Laws of War in Afghanistan

Following the post-World War II review of serious breaches of custom

national law and the Hague Conventions of 1899 and 1907 by the Ax

a diplomatic conference invested nearly three years writing the fou

Conventions designed to regulate treatment of those individuals wh

victims of warfare. These four conventions, like other treaties, esta

relationships between nations, not between nations and groups or na

subnational organizations.7 The United States and Afghanistan are b

Contracting Parties to the Conventions,8 including Geneva Conve

and are thus bound by their terms and provisions.

Under Geneva Convention III, individuals entitled to POW st

capture include members of the regular armed forces of a party, th

and those volunteers and volunteer units fighting with the regu

forces of a party.9 Irregular forces, including militia and volunteer

apart from the regular armed forces, can also qualify for POW sta

captured, provided they are serving under an authority responsible 

conduct, are in uniform or are wearing a distinctive sign recogni

443

5. Common Article 3 appears in each of the four 1949 Geneva Conventions an

individuals and groups who do not represent a government or state but rather an in

opposition group to the recognized regime. Unlike the Viet Cong, however, neither 

nor al Qaeda were factions within a state with a recognized central government. L

Cong, however, they were fighting an international coalition of the willing within th

borders of a nation, despite its lack of central government, which was a high contrac

the Geneva Conventions.

6. See Contemporary Practice of the United States, 62 AM. J. INT’L L. 766–768 (

MACV, Annex A of Directive No. 381-46, December 27, 1967.

7. See U.S. ex rel Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir. 1997) where the cour

“[T]reaties are agreements between nations.”

8. The United States became a party on July 14, 1955 while Afghanistan acceded 

1956.

9. GC III, supra note 2, art. 4(A)(1) & 4(A)(4).

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distance, carry their arms openly, and conduct operations in a mann

tent with the laws of war.10

When a captive’s status as a POW is challenged because a part

the individual did not meet the criteria set forth above, that individu

accorded POW treatment until a tribunal convened by the captor 

views the facts and makes a determination.11 Similarly, when an in

belligerent status is not clear upon falling into the hands of the enem

dividual enjoys the protection of Geneva Convention III until such t

status can be determined by an appropriate tribunal.12

The Administration Position

On February 7, 2002, Ari Fleischer, White House Press Secretary, gav

ministration view of the status of Taliban and al Qaeda detainees ca

Afghanistan.

President Bush today has decided that the Geneva Convention will appl

Taliban detainees, but not to the al Qaeda international terrorists.

Afghanistan is a party to the Geneva Convention. Although the Unite

does not recognize the Taliban as a legitimate Afghani governme

President determined that the Taliban members are covered under th

because Afghanistan is a party to the Convention.

Under Article 4 of the Geneva Convention, however, Taliban detainees 

entitled to POW status. To qualify as POWs under Article 4, al Qae

Taliban detainees would have to have satisfied four conditions: They 

have to be part of a military hierarchy; they would have to have worn u

or other distinctive signs visible at a distance; they would have to have 

arms openly; and they would have to have conducted their military op

in accordance with the laws and customs of war.

The Taliban have not effectively distinguished themselves from the 

population of Afghanistan. Moreover, they have not conducted their 

operations in accordance with the laws and customs of war. Instead, th

knowingly adopted and provided support to the unlawful terrorist objec

the al Qaeda.

444

10. Id., art 4(A)(2); see also 1907 Hague Convention IV Respecting the Laws and 

War on Land, Oct. 18, 1907, 36 Stat. 2227, Annex.

11. GC III, supra note 2, art. 5(2).

12. Id.

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Qgp 

party to the Geneva Convention. Its members, therefore, are not covere

Geneva Convention, and are not entitled to POW status under the tre

What the White House was clearly implying, if not saying, was tha

on terrorism was not a war envisaged when Geneva Convention III w

in 1949. In this war, global terrorists transcend national boundaries 

nationally target the innocent. In the February 7 White House state

Bush Administration committed the United States to the principles o

Convention III, while recognizing that the Convention does not co

situation in which people may be captured or detained by military fo

Effect of Not Applying Geneva Convention III to al Qaeda

The language of the four Geneva Conventions applies to internat

flicts first14 and only then does it address the status of those invo

clear, however, that all international conflicts are covered. The Bus

istration position of not applying the Convention to al Qaeda appea

odds with these principles. More importantly, it overlooks the very 

the Convention which is designed to address all combatant actors 

flict. Specifically, the Convention divides all combatants into the c

lawful combatant, or alternatively, that of unlawful combatant.

By decrying the application of Geneva Convention III to al Qaed

the US decision deprives the United States of its strongest legal rat

jurisdiction both in US federal court and internationally. More sp

absent the authority to act under Geneva Convention III, the autho

tain al Qaeda fighters, to remove them from Afghanistan, to try th

military commissions for war crimes, to provide them no more than 

treatment, and to send them to third countries could be challenged

the authority of Geneva Convention III to rely upon, the detainees 

445

13. White House Press Secretary Ari Fleischer, Press Briefing at the White Ho

2002), at 1–2, available at Lexis, Federal News Service (Jan. 6, 2003).

14. See, e.g., GC III, supra note 2, art. 2. Article 2, common to all four Geneva C

provides in relevant part that the conventions shall “apply to all cases of declared w

other armed conflict which may arise between two or more of the High Contracting P

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entitled to rights either enshrined in the US Constitution or the Inte

Covenant on Civil and Political Rights (ICCPR)15 as the ICCPR is 

believed to apply to those situations in which Geneva Conventio

not apply.

The Taliban and Al Qaeda Fighters Must Be Viewed

as One for Purposes of Application of International Law

During the period that Taliban authorities controlled the political m

of state in Kabul, they constituted the de facto government of Afg

Afghanistan continued to have the essential elements of statehood

called upon by the international community to comply with its oblig

reflected in Security Council Resolutions 1267 (1999) and 1333 (200

called upon the Taliban to take specific actions), and the internatio

ments prior Afghan governments had signed (even if it was unable or 

to comply with their terms).16 The close relationship between the Ta

al Qaeda political and military elements was obvious. As Resolution 

ognized, “the Taliban continue[d] to provide a safe haven to Usama 

and to allow him and others associated with him to operate a network 

ist training camps from Taliban-controlled territory and to use Afghan

base from which to sponsor international terrorist operations.”17

Professor Robert Turner of the University of Virginia explained t

“bin Laden masterminded the attacks on New York and Washin

ghanistan [was] in breach of its state responsibility to take reason

sures to prevent its territory from being used to launch attacks aga

states.”18 Prior to September 11, 2001, al Qaeda supplied the Taliban 

money, material, and personnel to help it gain the upper hand with t

ern Alliance.19

446

15. International Covenant on Civil and Political Rights, opened for signature De

1992 U.N.T.S. 171 (entered into force Mar. 23, 1976, signed by the United States O

[hereinafter ICCPR]. The ICCPR provides the same protections, in article 14, that t

has provided to the detainees here.

16. No Security Council document exists claiming that Afghanistan had lost 

nationhood or that it had ceased to exist as a viable state.

17. S. C. Res. 1333, supra note 3.

18. Robert F. Turner, International Law and the Use of Force in Response to the World T

Pentagon Attacks, JURIST ONLINE, available at http://jurist.law.pitt.edu/forum/forum

(Jan. 23, 2003).

19. Michael Jansen, U.S. Focused Initially on bin Laden Mercenaries, IRISH TIMES, O

available at NEXIS, Major World Newspapers (Jan. 23, 2003).

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Thus Afghanistan, as a sovereign state, under the leadership of T

thorities, had thoroughly aligned itself with al Qaeda forces prior to 

ber 11. As the President stated on November 13, 2001, “[i]nte

terrorists, including members of al Qaeda, have carried out attacks o

States diplomatic and military personnel and facilities abroad and o

and property within the United States on a scale that has created 

armed conflict that requires the use of the United States Armed 

This statement reflects recognition that the Taliban and al Qaeda a

aligned and that the Taliban provided the safe haven in which al Qa

function.21 In light of the support and safe haven provided al Qae

Taliban leadership, it must be concluded that the Taliban fighte

Qaeda members who were together when fighting US and Northern 

forces when captured must be viewed as one when determining th

tion of Article 4(A)(1) of Geneva Convention III.

Geneva Convention III is Applicable to al Qaeda and the Tali

Geneva Convention III applies to the detention and trial of the regu

regular forces of a state party whose militia has been engaged in an 

tional armed conflict.22 Article 2 of the Convention provides that it s

to armed conflict which “may arise between two or more of the H

tracting Parties.” As stated previously, Afghanistan has been a stat

the 1949 Geneva Conventions since 1956, the United States since 1

Taliban, with its al Qaeda allies, effectively controlled nearly 90 p

Afghan territory, while exercising governmental functions therein, t

operating a system of taxation, administering Islamic courts, appoi

confirming regional governors, district leaders, mayors, and other reg

local officials, and imposing law and order.

The fact that the United States and its coalition partners did not 

the Taliban government is immaterial to the treatment of its fig

447

20. Military Order of President of the United States, Detention, Treatment, and Tri

Non-Citizens in the War Against Terrorism, November 13, 2001, availabl

www.whitehouse.gov/news/releases/2001/11/20011113-27.html (Jan. 23, 2003) 

supplied).

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

“[d]eploring the fact that the Taliban continues to provide safe haven to Usama bi

to allow him and others associated with him to operate a network of terrorist training 

Taliban-controlled territory and to use Afghanistan as a base from which 

international terrorist operations....”

22. See GC III, supra note 3, arts. 4 & 5.

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those of the allied al Qaeda under Geneva Convention III. Article 4

Convention is clear on this point. That provision extends coverage 

who profess allegiance to a government or an authority “not recogni

Detaining Power.” This interpretation is supported by the Article 4(

ating history.23 Because the Taliban, with its al Qaeda supporters, 

actual control over the greater part of Afghanistan prior to and afte

ber 11, 2001, and clearly opposed the coalition’s use of force in Oper

DURING FREEDOM, it must be concluded that an armed conflict 

between two High Contracting Parties to Geneva Convention III.

Taliban and al Qaeda Forces Do Not Qualify for POW Sta

The fact that the Convention applies to an international armed confl

opposing forces does not mean that these forces will be accorded PO

under the Convention, however. Article 4(A) sets forth in pertinent 

basic categories of persons entitled to protection as POWs. As not

these include: (1) armed forces of a party and militias and volunteer co

ing part of such armed forces; (2) members of other militia and volun

who meet the four basic requirements; and (3) members of regular arm

who profess allegiance to an authority not recognized.

Neither the Taliban nor al Qaeda forces qualify for protection 

Convention as the “armed forces of a Party,” or the “militias and 

corps forming part of such armed forces.” This results from their fail

fill the basic requirements applicable to any armed force, militia, or 

corps under Article 4(A) of the Convention. Neither al Qaeda 

Taliban satisfied the requirement of wearing uniforms or other disti

signia;24 neither were subject to a command structure that enforced 

448

23. See INTERNATIONAL COMMITTEE OF THE RED CROSS,3GENEVA CO

RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, COMMENTARY 63 (Jean 

1960) (noting that Article 4(A)(3) is written to bring an end to the practice of ref

POW status to unrecognized but otherwise deserving combatants).

24. The White House and Department of Defense stated publicly that the Taliban a

did not distinguish themselves from the civilian population. See Press Briefing a

House, supra note 13.

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and customs of warfare,

and neither in their operations adhered to 

and customs of warfare.26

As one independent observer has reported with regard to the l

spect shown to the laws of war:

These non-Afghan fighters, along with the Taliban army, have not only 

the traditional norms of Afghan civil societies, they have also com

massive crimes against humanity by beheading and killing prisoners 

(POWs) and massacring thousands of civilians in different parts of the C

In 1998 and 1999, the International Red Cross reported that the Talib

their non-Afghan army killed thousands of civilians in Bamyan and se

8,000 houses and shops.27

This wanton violence has continued until quite recently. Th

ment of State has reported that the Taliban “massacred hundreds o

civilians, including women and children, in Yakaoloang, Mazar 

Bamayan, Qezelbad, and other towns.”28 The Taliban routinely faile

tacks to discriminate between military objectives and civilians, as req

der the law of armed conflict. For example, “[t]here are reports tha

as 5,000 persons, mostly ethnic Hazara civilians, were massacre

Taliban after the takeover of Mazar -e-Sharif.”29

449

25. Article 4 of GC III requires that forces be “commanded by a person respon

subordinates.” This military command requirement is intended to ensure widespread 

with the laws and customs of war. According to the US Department of Defense, thes

not commanded by any person responsible for his subordinates.” US Departmen

Memorandum: Why Taliban are Unlawful Combatants, at 1 (Oct. 19, 2001) (copy 

author).

26. The Taliban and al Qaeda as a whole ignored the laws and customs of war. Acco

laws and customs of warfare, parties must take precautions to protect civilians, for 

verifying the military nature of targets, respecting the principles of proportionality an

and minimizing incidental loss of civilian life. See generally, GC IV, supra note 2; se

Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and 

the Protection of Victims of International Armed Conflicts, Part IV - Civilian Popula

for signature Dec. 12, 1977, 1125 U.N.T.S. 1 [hereinafter GP I], reprinted in DOCU

THE LAWS OF WAR at 419, supra note 2.

27. NEAMATOLLAH NOJUMI, THE RISE OF THE TALIBAN IN AFGHANISTAN, 229 

also, Lee A. Casey et. al, By the Laws of War, They aren’t POWs, WASH. POST, Mar

A3.

28. US Department of State, Fact Sheet: Taliban Actions Imperil Afghan Civilians, N

2001, at 1, available at http://usembassy.state.gov/islamabad/wwwh01110301.htm

2003).

29. US DEPARTMENT OF STATE COUNTRY REPORTS ON HUMAN RIGHTS PRACT

Afghanistan, at §1(g) (Feb. 2001).

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The State Department also reported in November 2001 that th

were using the entire populations of villages as human shields to pro

stockpiles of ammunition and weapons, that they were relocating 

ministry in Kandahar to mosques, that they had taken over human

lief organization buildings, and that they were discovered transport

and mortar shells in the guise of humanitarian relief.30 These and oth

reports provide strong support for the President’s conclusion that th

(and al Qaeda) forces flagrantly violated the laws and customs of war

exhibit insignia or otherwise distinguish themselves from civilians, 

not subject to responsible military command. Under these circumsta

Taliban and al Qaeda do not meet the Article 4 criteria for groups e

POW status.

A Group Determination of Status Does Not Violate the Conve

Article 5 of Geneva Convention III provides that where doubt arise

proper status of an individual or individuals, “such persons shall enjo

tection of the present convention until such time as their status has b

mined by a competent tribunal.” For the reasons set forth above, the

no doubt that the Taliban and al Qaeda do not qualify for POW stat

sion the President came to after consulting with his most senior adv

undertaking a careful and reasoned analysis.

The process of group determination exercised by the Executive B

consistent with the drafters’ intent that questions of status are give

consideration by responsible leaders.31 It was also consistent with U

lied decisions on POWs in Korea and Vietnam, although Article 5 

were established in Vietnam to address individual cases where doubt 

Nevertheless, the President determined that the detainees would co

enjoy the protections of the present convention as long as they are 

The protections to be accorded all prisoners of war are contained 

of Geneva Convention III. Those protections, which the President 

mined applicable to all al Qaeda and Taliban detainees, even though 

dividuals do not warrant designation as POWs, require humane 

450

30. US Department of State, Fact Sheet: The Taliban’s Betrayal of the Afghan People, N

2001, available at http://usembassy.state.gov/islamabad/wwwh01110702.html (Jan. 

31. See, e.g., FRITZ KALSHOVEN AND LIESBETH ZEBVELD, CONSTRAINTS ON THE W

WAR 53 (2001).

32. See, e.g., Roberts, supra Chapter VII, note 22 and accompanying text.

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and protection from insults, reprisals, and public curiosity.

Part 

quires free “maintenance” and medical attention. The detainees 

provided meals that reflect their Muslim culture and religion, and 

shelter, pads for sleeping, blankets, and medical care.34 They are also 

additional privileges, including the ability to send and receive mail

to visit individually with the ICRC, and the opportunity to worship 

assistance of a Muslim chaplain provided by the US Navy.

While the detainees at Guantanamo are being accorded all protec

POWs under Part II of Geneva Convention III, they are not subj

privileges and benefits accorded POWs under the Convention. Thes

include respect for rank,35 pay,36 and traditional courtesies accorde

personnel by others in the profession of arms.37

The Trial of Detainees before Military Commissions

When President Bush issued his Military Order of November 13, 200

of non-citizens before military tribunals had not been contempla

World War II, and then not specifically for terrorist defendants. In 

the use of military commissions to try these defendants for war crime

important advantages over civilian trials. As White House Counse

Gonzales stated,

[t]hey spare American jurors, judges and courts the grave risks associat

terrorist trials. They allow the government to use classified informa

evidence without compromising intelligence or military efforts. Th

dispense justice swiftly, close to where our forces may be fighting, witho

of pretrial proceedings or post-trial appeals.

And they can consider the broadest range of relevant evidence to rea

verdicts. For example, circumstances in a war zone often make it impo

meet the authentication requirements for documents in a civilian co

451

33. GC III, supra note 2, art. 13.

34. Id., arts. 15–16. The rights announced by President Bush in his Military Order o

13, 2001, supra note 19, at 2, are consistent with the provisions of these two article

35. Id., arts. 44–45.

36. Id., arts. 54, 62.

37. See, e.g., GC III, supra note 2, art. 18, which provides, in pertinent part, that “ba

and nationality, decorations, and articles having above all a personal or sentimenta

not be taken from prisoners of war.”

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Qg

determine the guilt of al Qaeda cell members hiding in the West.38

The procedures for trials by military commission are carefully se

Department of Defense Military Commission Order No. 1, signed by 

Rumsfeld on March 21, 2002.39 As the Order makes clear, “[t]hese p

(discussed in detail below) shall be implemented and construed so as 

that any such individual receives a full and fair trial before a military 

sion . . . .”40

Military commissions do not gain their authority from Article 

Constitution which underlies our federal court system. Rather, these 

operate as a function of the President’s Commander–in–Chief autho

der Article I and have been specifically approved by the US Suprem

The nature of the proceedings and the nature of the evidence are 

the law of armed conflict. That body of law has very different prem

our domestic criminal law. Under domestic law, the killing of anoth

is presumed unlawful unless justified or excused by a specific defe

self-defense) or condition (e.g., mental defect). Under the law of ar

flict, there is a presumption that the killing of another combatant is l

less some other norm is violated, such as the status of the aggres

unlawful combatant. In such cases, the individual had no combata

nity to engage in belligerent acts.

It is also important to note that the purpose of holding the de

Guantanamo is not specifically in anticipation of trial, but rather a

tional function of the US war effort. This is based on a common-sen

nition that if released, detainees would quickly rejoin the hostilitie

reason, trials—if any are held—will not begin until the conflict is 

the end of hostilities, the equation, of course, could change. Cont

tention at that point would have to be based on a legitimate judic

452

38. Alberto R. Gonzales, Military Justice, Full and Fair, N.Y. TIMES, Nov. 30, 2001, 

39. DOD Military Commission Order number 1 – Procedures for Trials by Military C

of Certain Non-United States Citizens In the War Against Terrorism (Mar. 21, 2002)

http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf (Jan. 23, 2003) [herei

Military Commission Order].

40. Id., at 1.

41. See Ex parte Quirin, 317 U.S. 1, 30–31 (1942). This case involved the trial 

commission of unlawful combatants who were German soldiers smuggled into the U

by submarine who discarded their uniforms upon entry, but were captured prior to 

acts of sabotage.

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enforcement need. It is premature at this point to determine to w

need might apply.

At the conclusion of hostilities, those individuals for whom inve

have revealed violations of the law of war could be charged with of

fore a military commission. Under the provisions of Military Comm

der No. 1: (1) the accused will be furnished a copy of the charges s

in advance of trial to prepare a defense; (2) a presumption of innoc

apply; (3) the standard of proof is beyond a reasonable doubt; (4) at 

defense counsel shall be provided; (5) the accused shall not be requi

tify; (6) the accused and his counsel shall have access to the prosecu

dence, including exculpatory evidence, in advance of trial; (7

witnesses and evidence may be presented; and (8) the accused shall b

at all phases of the proceeding.42

Within this construct, commission membership shall include b

and 7 members who shall be commissioned officers of the US arme

The presiding officer shall be a judge advocate.44 This official shall e

expeditious conduct of the trial as well as its fairness.45 Prosecutors sh

be judge advocates from the US armed forces or special trial counse

Department of Justice made available by the Attorney General.46

The conduct of each trial before a commission follows the fede

and is precisely set forth in Article 6(E) of DOD Order No. 1. Post-tr

dures include a formal review process by a three officer review panel

of the officers experienced as a judge.47 The Secretary of Defense wi

view each record of trial and the recommendation of the review pane

after review by the Secretary, the record of trial and all recommenda

be forwarded to the President for review and final decision.49

Conclusion

The Bush Administration has embarked upon a careful process of i

tion and detention of al Qaeda and Taliban combatants, invest

453

42. DOD Military Commission Order, supra note 39, art. 5.

43. Id., art. 4A(2), (3).

44. Id., art. 4A(4).

45. Id., art. 4A(5)(a), (c).

46. Id., art. 4B(2).

47. Id., art. 6H(4).

48. Id., art. 6H(5).

49. Id., art. 6H(6).

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offenses, and the development of a thorough and fair adjudicativ

While differences may exist in terms of how al Qaeda members are c

ized in terms of Geneva Convention III, the regime established to ex

conduct of their actions and the actions of the Taliban fighters will lik

in a mere “distinction without a difference.”

The President has stated that he will only try foreign enemy war 

before military commissions, and then only if they are chargeable wit

against the international laws of war. Trials before military commis

be as open as possible, consistent with the urgent needs of nationa

Each defendant before a military commission will know the charg

him, be represented by qualified counsel and be allowed to presen

defense.

The President’s Military Order of November 13, 2001, like the Se

Defense’s Military Commission Order No. 1 of March 21, 2002, is de

ensure that individuals subject thereto receive a full and fair trial. Th

commissions that are authorized will not undermine the constitutio

of any American nor violate the civil liberties of any non-US nation

ing before them. Rather, the regime created draws a delicate balance 

the President’s obligation to defend the nation and the desire of all A

that any commission established under the President’s Constitutiona

ties provide the same procedural and substantive protections evide

domestic courts of this country.

454

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XXVII

Panel V

Commentary—The Road Ahead i

Afghanistan

James Terry1

oday I will offer a series of observations on actions we must c

the United States moves to the road ahead in Afghanistan. 

the war on terrorism requires that we approach this complex problem 

tifaceted way. We must cultivate counter-terrorism cooperation on 

basis as well as on an individual state basis for it is only through such 

tion that we can be successful.

Using all instruments of power available, we must stimulate an 

political will to act on the part of states on the front lines in this war 

ism. We must enhance our public diplomacy efforts and economic s

stimulate religious and social institutions, especially educational in

to be more responsive and responsible in the education of their futur

We must further, across the reaches of the US Government, enhanc

age and our relationship with the Muslim population, at home and 

1. James Terry, a retired Marine Colonel, serves as the Deputy Assistant Secretary 

Regional, Global and Functional Affairs in the Bureau of Legislative Affairs wit

Department of State. The views expressed in these remarks are the views of the au

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Of critical importance in these efforts is our focus on non heavy

American aid to countries struggling with the difficulty of dealing 

conditions that foster the development of terrorism. In these effort

not be seen as unilateralists but instead must be seen as partners in 

effort to address these issues. We must foster the development of gre

erative action, including the effective exchange of information, 

among Muslim states. This has occurred most recently with Morocc

try with which the United States did not have as developed a relatio

fore the events of September 11th.

We must share the best counter-terrorism laws, regulations, and t

can develop with these states in an effort to aid them in the develo

similar laws. We must create effective agreements between states fo

forcement operations so as to ensure that terrorists captured abroa

ject to extradition. And we must enhance cooperation in our 

intelligence gathering and sharing, much as has been done since 

ber 11th, with countries like Uzbekistan and Turkmenistan.

Regional training programs and bilateral programs designed to en

rensic law enforcement and legal methodology, as are currently bein

with Pakistan, must be undertaken. At the same time, it is critica

guard against the imposition of those US laws and policies which a

from those we wish to influence. As an example, recent Arab bashin

tion proposed in the House of Representatives and the Senate does n

sarily serve our interests well. These efforts may well be called for bu

not help us in our efforts to appear even handed to different groups

Operationally, it is important to understand that capacity buildin

front line states must focus on the ultimate goal of individual state 

bility in dealing with the problems of terrorism. In working towards 

the United States must overcome the view that it has a bias again

tions such as the United Nations. It is important that we not be se

bashing in either our legislation or our voice. In that regard, for the 

months I have been the head of a working group addressing the 

Servicemembers Protection Act.2 Our focus has been on ensuring 

act does not deprive the president of the flexibility he needs to suppo

ternational Criminal Court when it is in our national interest to do 

this work is occurring should be shared with coalition and allied p

ensure they understand that while our principled objections to the 

456

2. American Servicemembers’ Protection Act of 2002, Pub. L. No. 107–206, 1

(2002).

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inherent in the Rome Statute remain very real, our government r

that there may be a time, if certain changes are made to the Rom

when the United States will agree to become a member of the Inte

Criminal Court.

The long-term goal of these operational considerations must be 

nal sustainability of this process region-wide and world-wide. Our 

must be to create national counter-terrorism systems that really do 

support of this goal, we must focus on programs like our Internationa

Education and Training Program and ensure that funds for these 

support those countries working alongside us in pursuit of our g

training assistance must account for the stated needs of the host an

our perceived view of what would make them more effective. In this 

phased approach to engaging these countries would be useful.

Phasing our cooperation and operations with countries in such a 

we move from training to policy and then to operations may well a

gauge the will of these participants at each step; building trust and d

myths about US objectives that are simply not true. On the diplomac

must work with states to harness their desire to increase their 

counter-terrorism role. An example of how this can be successful 

gional counter-terrorism operations center for Southeast Asia, rec

ated by Indonesia, Malaysia, Singapore, and the United States. 

center promises real opportunities to work alongside and support ou

the war on terrorism. Obviously, the regional combatant comman

their respective staff judge advocates must play an important role in 

opment and working of these centers as consultation on the desired 

policy development and operations for such centers is critical for the

Finally, useful agreements must be developed between the United S

other states which tie cooperation on counter-terrorism efforts to 

tance. Such agreements may, by necessity, need to be confidential in 

stages of cooperation but they are nonetheless necessary.

From a governmental process perspective, this will not be easy. 

east Asia for example, Congress must provide the authority to ove

strictions on aid to countries such as Burma, Cambodia, Laos, and I

Necessarily, such legislation will be required to be drafted in such a 

US assistance is contingent upon the particular country’s participat

global war on terrorism. At the same time, over-reaching congressio

dates must be avoided. We must avoid the traditional “litmus test re

guage as a condition for aid and we must ensure that the entire 

457

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foreign military financing, economic support funding and internati

tary and education training funding is used.

Not surprisingly, we have invoked each of these strategies in our 

Afghanistan. Our goals for the road ahead in Afghanistan have focu

curity, infrastructure support, nation building—and by that I includ

development, education and woman’s rights—and reconstruction (

the revitalization of the agricultural sector). In the security area, c

steps to destroy the al Qaeda network include the success of Operat

CONDA and the other follow-on operations to ENDURING FREED

have been complemented by the provision of stability by the Interna

curity Assistance Force (ISAF) in Kabul.

The initial steps to train an Afghan Army and police force are key 

of the US and German efforts to build a more secure Afghanistan. In 

the Germans are doing a superb job in developing a police organiz

understands and respects fundamental human rights. An effort to b

sensus among the different war lords has been pursued through their 

in the political process, most recently in the Loya Jirga electoral proc

cess that resulted in the election of Hamed Karzai to head the tr

governing authority for the next two years. The inclusion of the wa

this process has helped ease ethnic tensions existing in such cities as 

Sharif, Kandahar, and Jalabad.

This is a great start but it is not enough. We must focus now on h

instruments of power in the Afghan government. By that I mean 

economic, political, and military instruments. In that regard, the Bon

ment3 that established this process eight months ago is holding. As 

ple, woman’s rights have been emphasized through the naming of tw

to major cabinet posts within Karzai’s transitional authority. In t

struction area, three successful conferences in Washington, in Bruss

Tokyo have produced pledges of some 4.5 billion dollars in aid, and a

conferences are scheduled. Money is starting to flow to the transi

thority through UN development programs, bilateral donors and the 

of assets frozen during the Taliban regime. Importantly also, refugee

placed persons by the hundreds of thousands are returning to their h

schools have reopened for millions of Afghan children.

458

3. Agreement on Provisional Arrangements in Afghanistan Pending the Re-Estab

Permanent Government Institutions, Dec. 5, 2001, pmbl., at http://www.uno

afghanistan/talks/agreement.htm (Apr. 26, 2003).

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To achieve these goals of political stability, economic developme

fective reconstruction of Afghanistan’s infrastructure, we must ens

broad based government at the working level—not just the cabinet 

established. We must ensure that security forces are trained to re

protect human rights. We must ensure that peaceful and cooperative 

are fostered between Afghanistan and its neighbors, especially Pak

Iran. We must ensure that major drug production and traf

eliminated.

Within the next two years, we must help Afghanistan move t

creased stability and prosperity; a stability and prosperity marked by 

tional authority beginning to provide important social services to it

five million citizens. We must help Afghanistan develop into an 

economy through agricultural development and small scale industry

facilitate the establishment of a national military and police force c

assuming responsibility for internal security. And perhaps most im

we must be prepared to overcome the inevitable backlash which w

when this struggle proves to be long and hard. The road ahead in Af

is surely a difficult one to traverse, but one that our country, working 

with others, can do so with success.

459

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XXVIII

Panel V

Commentary—The Road Ahead

Nicholas Rostow1

will begin by saying a few words about the United Nations and 

before September 11, 2001, the impact of September 11th, and 

United Nations seems to be headed.2 UN Member States have alwa

best, an ambivalent relationship with terrorism. Some delegates have 

to see it as a social phenomenon, not as a criminal instrument for ad

political or other agenda. Indeed, at a UN terrorism symposium in 

2002, over fifty delegates spoke, and almost all of them talked about 

as a social phenomenon; only one speaker addressed terrorism as a 

Part of the difficulty arises from the fact that wars of independence 

volved acts of terrorism. It is difficult for participants in such struggle

1. Nicholas Rostow is currently the General Counsel to the United States Mission to 

Nations. He held the Stockton Chair in International Law at the U.S. Naval Wa

2001, prior to September 11 and being called to the U.S. Mission to the United Nat

served in a number of senior Federal government positions, including Legal Ad

National Security Council, 1987–1993, and Staff Director of the Senate Select Co

Intelligence, 1999–2000. The views expressed are his own and do not necessarily 

positions of the U.S. Government.

2. See my Before and After: The Changed UN Response to Terrorism since Septem

CORNELL INT’L L.J. 476 (2002) and Eric Rosand, Security Council Resolution 1373, 

Terrorism Committee, and the Fight against Terrorism, 97 AM. J. INT’L L. 333 (2003).

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to having used terrorist tactics. And, of course, in the debates about 

Israeli conflict and the Pakistani-Indian conflict over Kashmir, A

Pakistanis and others deprecate the use of the term “terrorist” to de

acts undertaken against “foreign occupation.”3 In contrast, there is s

evidence, including in the Arab-Israeli warfare since September 2

terrorism is a weapon. The evidence of terrorism’s political effective

many governments, inter-governmental institutions, and commen

been accumulating for decades; as UN Secretary General Kofi Anna

on many occasions, terrorism, although itself unjustifiable under an

stances, does not invalidate legitimate grievances.4

Prior to September 11th, UN Member States addressed the issue 

ism chiefly through the General Assembly and the Sixth (Legal) C

in particular. The Sixth Committee and other UN bodies have pro

principal forum for negotiating the twelve conventions elaborating 

terrorist acts: handling of nuclear material,5 hostage taking,6 maritim

tion,7 and the like.8

462

3. See, e.g., Rostow, supra note 1, at 475 n. 4 (Pakistani and Syrian positions). Pa

Mission website states that “a comprehensive legal definition of terrorism should not 

clear distinction between terrorism and people’s legitimate struggle for rig

determination but must also take into account all forms of terrorism including stat

terrorism.” Available at http://www.un.int/pakistan/terrorism.html (last visited Jun

In addition, on June 4, 2002, Pakistan’s UN Ambassador told a meeting of the Org

the Islamic Conference (OIC) at the UN that, “After the events of 11 September 200

sought to take undue advantage of the opportunity to portray the Kashmir liberatio

terrorism, and to delegitimize the struggle, disregarding the fact that the ri

determination is a crucial principle of the UN Charter, as is also the people’s righ

themselves, including by armed resistance. This is true of liberation struggles 

including Palestine.” Available at http://www.un.int/pakistan/20020604.html (last 

16, 2003).

4. See Statement of Secretary-General Kofi Annan to the 20 January Secur

ministerial meeting on terrorism, S/PV.4688 (2003), (“Just as terrorism must never 

so must genuine grievances never be ignored. True, it tarnishes a cause when a few 

commit murder in its name. But it does not make it any less urgent that the cause b

the grievance heard and the wrong put right. Otherwise, we risk losing the contest fo

and minds of much of mankind.”)

5. See Convention on the Physical Protection of Nuclear Material, 1929, 1456 U.N.T

6. See International Convention Against the Taking of Hostages, Dec. 17, 1979, 13

206.

7. See Convention for the Suppression of Unlawful Acts against the Safety o

Navigation, Mar. 10, 1988, S. Treaty Doc. No. 101-1 (1988),reprinted in 27 I.L.M. 67

8. All the Conventions, including in addition some regional conventions, are reprin

publication, INTERNATIONAL INSTRUMENTS RELATED TO THE PREVEN

SUPPRESSION OF INTERNATIONAL TERRORISM (2001).

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The United Nations first began to look seriously at terrorism after 

sacre of the Israeli athletes at the 1972 Munich Olympics. On the in

the then–Secretary General, the General Assembly began attemptin

tiate a comprehensive convention on terrorism. The fact that, th

later, such a convention still does not exist highlights the fundame

lems the international community confronts in terms of reaching 

on how to define terrorism and whether it is unacceptable in al

stances. The Security Council did not begin dealing with terrorism 

end of the twentieth century. When Russia held the presidency of th

Council in October 1999, the Russian UN delegation proposed R

1269, a strong condemnation of terrorist attacks as threats to inte

peace and security.9 At the same time, the General Assembly’s Sixth 

tee continued its work on outlawing specific terrorist acts such a

bombings and the financing of terrorism.10 The events of Septem

changed the Security Council’s focus, making terrorism one of the 

central concerns.

The Security Council’s immediate response was the adoption of R

1368, a severe condemnation of the attacks recognizing that such at

rise to the inherent right to use force in self-defense.11 The Resolu

not include any language about the causes of terrorism. That was a 

the attacks of September 11, 2001, had shaken everyone. Secondly

much ado, the Resolution uses the word “terror” instead of the phra

terrorism.” September 11 thus caused delegates to put to one side t

use of the subject of terrorism in order to engage in political warfare 

Arab-Israeli and India-Pakistan conflicts. Then, on September 28, 

Security Council adopted Resolution 1373.

Resolution 1373 is one of the most far reaching Security Coun

tions ever adopted. It calls on all member states to take the kind of a

mally set forth in multilateral conventions. Indeed, a number of p

dealing with the financing of terrorism mirror provisions of the Te

nancing Convention.12 Without defining terrorism, the Resolution r

463

9. See S.C. Res. 1269, U.N. SCOR 54th Sess., U.N. Doc. S/1269 (1999).

10. See e.g. International Convention for the Suppression of Terrorism Bombings

165, U.N. GAOR, 52d Sess, U.N. Doc. A/52/164 (1998); International Conven

Suppression of the Financing of Terrorism, G.A. Res. 109, U.N. GAOR 6th Comm

76th mtg., Agenda Item 160, U.N. Doc. A/54/109 (1999).

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

12. International Convention for the Suppression of the Financing of Terrorism, D

37 ILM 249 (1998).

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states to cease active and passive assistance to terrorists, including b

iting the harboring of terrorists. States are to make criminal the trans

territory by terrorists as well as financial transactions on behalf of 

The Resolution requires States to freeze assets of terrorists and thei

rators. It calls on States to strengthen border controls, take measure

the forging of identity documents more difficult than it is, and coope

nationally against terrorism, including through sharing information

tion, the Resolution notes with concern the connection between 

and other criminal activity such as narcotics trafficking.

Security Council Resolution 1373 established the Counter-

Committee (CTC) to monitor implementation. Membership is the 

curity Council. The Committee named itself and established its ow

dures for carrying out its mandate. It also has developed relations 

UN membership that have been path-breaking in Security Coun

Both the first Chairman, the British Permanent Representative, an

cessor, the Spanish Permanent Representative, have reported at lea

month to all Member State delegations on the activities of the C

practice of transparency has enhanced Member States’ understandin

ceptance of the CTC.13 One result is that the CTC has received m

300 self-evaluations by Member States of their implementation of R

1373. The CTC responds to each such report, continuing an open-e

logue with Member States that has made the CTC the center of w

efforts to build counter-terrorist capacity. As part of its work, the 

forged relations with international, regional, and sub-regional orga

encouraging them to establish counter-terrorist priorities for their 

and to assist their members in improving their counter-terrorist ca

The work focuses on infrastructure, rather than operations, but i

structure that permits successful counter-terrorism operations.

The CTC, like other Security Council committees, operates by c

Each member therefore has a veto. As a result, the CTC has not 

able to overcome the political differences about terrorism, includin

define terrorism, among its members. Nevertheless, the Committee 

gressed from engaging in a paper dialogue with UN Members to con

of site visits to determine if States are doing what they claim. An

464

13. A refrain at the United Nations is the complaint that the Security Council does 

“transparency.” The CTC has avoided this criticism through the device of frequent 

briefings. The CTC thus has created a model other committees and, indeed, t

Council itself may follow.

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future, the CTC may conclude that it has to refer recalcitrant Memb

Security Council.

Terrorist sanctions constitute another prong of the Security Co

tack on terrorism. The original sanctions regime on terrorism in Af

was established in Resolution 1267.14 This resolution was aimed at th

Afghanistan under the control of the Taliban, Osama bin Laden and 

and demanded that bin Laden be turned over to “appropriate author

ter the collapse of the Taliban regime, the Security Council removed 

torial focus from the Resolution.15 This change also constituted a 

Council innovation. Hitherto, the Council had adopted sanctions a

to influencing a government. Resolution 1390 (2002) and its succes

lution 1455 (2003) target Taliban and al Qaeda personnel in what

they may take in whatever location they may be. Members provide 

rity Council Committee charged with monitoring terrorist sanct

1267 Committee—with names of persons and entities identified as e

terrorism or terrorism-related activities to be adopted so that the en

national community can take action against them. While this syst

some procedural and due process concerns, it has resulted in worldw

against al Qaeda members and collaborators.16

The attacks of September 11, 2001, have had a transforming effec

cans see the world differently as a result. Other countries have be

to change their perceptions; some have yet to do so. The United N

an organization and as a collectivity of independent States, has ch

habits. Some of the changes have enhanced the international com

capacity to combat terrorism, and some have enhanced the inte

community’s ability to undertake anti-terrorist operations. All have 

the role of the United Nations in counter-terrorism, including in r

other international organizations. All also have increased in UN 

tional expertise on terrorism. These actions are not the solution t

rorism crisis; they are important and useful steps in the internationa

to combat terrorism.

465

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

15. See S. C. Res. 1390, U.N. SCOR, 57th Sess., U.N. Doc. S/1390/(2002).

16. See the discussion of these issues in the Proceedings of the American 

International Law annual meeting, April 3, 2003, panel entitled “An Imperial Secur

Implementing Security Council Resolutions 1373 and 1390.”

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XXIX

Panel V

Commentary—The Road Ahead

Michael Saalfeld1

ur discussions have revealed again the extent to which this 

has confronted us with complex new questions and challeng

international legal perspective. We must respond to them with joi

with determination and solidarity but in doing so we must keep our 

The answers we are looking for in the legal field will be decisive f

ture guidelines on countering international terrorism. And we shou

aware of the fact that the shape of these guidelines will be decisive 

fectiveness and stability of the long-term cooperation between 

forming the international coalition against terrorism.

The NATO Alliance as a consequence of the attacks of Septem

considered the attacks to be an act covered by Article 5 of the North 

1. Michael Saalfeld is the Director of International Legal Affairs for the Federal 

Defense in Germany.

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Treaty, which states that an armed attack on one or more of the Al

rope or North America shall be considered an attack against them 

that basis the European NATO Allies are providing substantial mil

tributions to combating terrorism.

Germany, for instance, has a third of its naval assets operating in t

Aden area in support of Operation ENDURING FREEDOM. In Afg

German special operations forces are employed alongside US forces

Germany’s obligations under Security Council Resolution 1373 

quires that all states “take the necessary steps to prevent the comm

terrorist acts . . . (and to) ensure that any person who participates 

nancing, planning, preparation and perpetration of terrorist acts or in 

ing terrorist acts is brought to justice. . . .”3

The requirement for close cooperation among nations in fulfillin

litical mandate, often with military means, calls for some creativity 

vative thinking in the legal arena as well. There seems to be consen

least one point, the longer the war on terrorism lasts, the more impor

aspect of acceptance of the use of these means will gain. In Europe 

the discussion has been characterized by the aim to harmonize as fa

ble the military need to prevent further terrorist acts with the lega

preserve the standards of human rights and humanitarian law wh

been well established over the last 50 years.

Regarding Operation ENDURING FREEDOM, there seems to be a 

derstanding between all coalition partners that the inherent right of 

and individual self-defense as embodied in Article 51 of the UN Ch

vides the authorization to take all necessary measures to accomplish 

set out in Security Council Resolutions 1368 and 1373. Accordingl

no doubt that military forces in the areas of operation are entitled 

persons suspected of perpetrating or supporting acts of internation

ism. Similarly, there is no doubt that military forces have the authori

and detain such personnel in order to bring them before the court

468

2. See North Atlantic Treaty, 4 April 1949, 34 U.N.T.S. 243, art. 5, availab

www.nato.int/docu/basictxt/treaty.htm (Oct. 29, 2002), which provides:

The Parties agree that an armed attack against one or more of them in Europe o

America shall be considered an attack against them all and consequently the

that, if such an armed attack occurs, each of them, in exercise of the right of in

or collective self-defence recognised by Article 51 of the U.N. Charter, will a

Party or Parties so attacked by taking forthwith, individually and in concert w

other Parties, such action as it deems necessary, including the use of armed f

restore and maintain the security of the North Atlantic area.

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

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other hand it is also clear from these two resolutions that self

defens

mate only when performed in accordance with the Charter, which tr

ance the protection of human rights against the aim of ma

international peace and security. The crucial question then becom

does the Charter require?

The fight against international terrorism has to be fought on mult

with multiple means. Three questions have been debated in Europe 

the post September 11th behavior of nations. These questions are:

1. To what extent does humanitarian law, applicable in armed co

ply to detainees in the “War on Terrorism”?

2. To what extent does common human rights law apply?

3. What effect does the prohibition on the death penalty found in 

pean Convention on Human Rights have on US-European military 

tion within the coalition for Operation ENDURING FREEDOM (OEF

I will discuss each of these questions briefly.

Regarding the first question, the UN High Commissioner fo

Rights, Mary Robinson, in her speech at the Commonwealth Institu

don on 6 June of this year stated:

There has been a tendency to ride roughshod over—or at least 

aside—established principles of international human rights and huma

law. There has been confusion about what is and what is not subjec

Geneva Conventions of 1949. There have been suggestions that the t

acts of 11 September and their aftermath in the conflict in Afgh

demonstrated that the Geneva Conventions were out of date.

In that context the President of the ICRC, Jakob Kellenberger, 

an answer which appears as simple as it is to the point:

International humanitarian law is, quite distinctly, the body of ru

regulates the protection of persons and conduct of hostilities during an 

conflict.... Inasmuch as the fight against terrorism takes the form o

conflict, the position is uncontroversial: international humanitarian 

applicable. Factually, if there exists an armed conflict, whatever the 

469

4. See Sixth Protocol to the Convention for the Protection of Human Rights and F

Freedoms Concerning the Abolition of the Death Penalty, art. 1, Apr. 28, 1983, Eur

114, 32, available at http://ccbh.ba/en/econv/protocol6.asp (Oct. 29, 2002).

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, , gy 

humanitarian law.5

While there is an ongoing international discussion as to whether the f

Afghanistan was or is an armed conflict, in my view there are good r

believing that an international armed conflict exists between the Uni

and its allies on the one hand and the Taliban as the de facto governm

ghanistan on the other. This view also seems to be shared by a numbe

gal experts.6 If this is the case, the law of armed conflict started to app

than October 7, 2001, the day Operation ENDURING FREEDOM com

Given that the law of armed conflict applied then in October 200

4 of the Third Geneva Convention would require that Taliban and 

personnel integrated into the Taliban fighter force be treated as Pr

War (POWs). As POWs, these personnel could not be punished for 

participation in hostilities in Afghanistan as they were privileged co

These individuals could, however, be held liable for violations of t

armed conflict and for crimes unrelated to the hostilities. For the

they would, of course, be subject to prosecution. This view seems to 

throughout the European Union. By way of example, none other th

Solano, the European Union Foreign Policy Chief, called for the re

by the United States of the right of the detainees held in Guantanam

be treated as prisoners of war. Mr. Solano further argued Article 5 

should be held for those personnel whose status is uncertain.7

What does that mean for international cooperation in meeting th

by Security Council Resolution 1373, especially that of bringing te

justice? Article 12 of the Third Geneva Convention stipulates th

may only be transferred to a power that is a party to the Convention 

after the detaining power has satisfied itself of the willingness and ab

transferee power to apply the Convention.8 If it is agreed that th

470

5. Jakob Kellenberger, Address at the 26th Round Table in San Remo on Current 

International Humanitarian Law, “The two Additional Protocols to the Geneva C

25 years later – challenges and prospects.” (Sep. 5, 2002), available at http://www.ic

eng/siteeng0.nsf/iwpList99/EFC5A1C8D8DD70B9C1256C36002EFC1E (Oct. 30, 

6. See, e.g., Curtis Bradley & Jack Goldsmith, The Constitutional Validity of Military C

5 GREEN BAG 2d 249, 256 (2002); Robert Goldman, Certain Legal Questions and Issu

the September 11th Attacks,9HUM. RTS. BR. 2 (2001).

7. See David Lee, Al Qaeda Britons have no Complaints, THE SCOTSMAN, Jan. 22, 2

8. See Geneva Convention Relative to the Treatment of Prisoners of War, opened 

Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 134, Art. 12 (1949).

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Conventions apply to those personnel currently held in Guantan

then Article 12 must be adhered to in the event of exchanges of det

tween coalition partners.

Certainly, however, not every person captured in Operation E

FREEDOM is entitled to POW status. There might be al Qaeda mem

have never participated in the fighting in Afghanistan but who h

part in the preparation or perpetration of terrorist acts someplace e

world. Those criminals cannot be POWs but should be granted the 

standards of human rights which are non-abrogable for each person 

by a state authority. These non-abrogable minimum standards are q

lar both according to common human rights law and international h

ian law of armed conflict. Protocol I to the Geneva Conventions prov

of minimum standards in Article 75 for all persons in the power of a 

conflict who do not benefit from more favorable treatment under th

Conventions or Protocol I.9 Under the assumption that Article 75 o

I codifies—more or less—customary law, this article could form 

minimum rights to which each suspect is entitled. Accordingly, tho

ees who are not entitled to POW recognition and protection, s

treated at a minimum in compliance with Article 75 of Protocol I.

Finally, I would like to address the European prohibition on the d

alty as established in the 6th Protocol to the European Convention o

Rights.10 With its Resolution 1271 (2002), “Combating Terrorism 

spect for Human Rights,” on January 24, 2002, the Parliamentary As

the Council of Europe called upon all Council member states “to ref

tradite suspected terrorists to countries that continue to apply the d

tence . . . unless assurances are given that the death penalty w

sought.” Similarly, section 8 of the German International Legal A

Act stipulates that the extradition of a person to a requesting state w

provide for the death penalty for the criminal offense committed i

ceptable if the requesting state guarantees that the death penalty w

not be imposed or enforced.

Clearly, significant differences exist among “War on Terrorism” 

members with respect to the death penalty. Moreover, with the rec

cation of the Rome Statute and the subsequent creation of the Inte

471

9. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8

U.N.T.S. 3, 40-41. Article 75 identifies certain acts that are prohibited regardless of 

a conflict. Such prohibitions include murder, the taking of hostages, and torture, amo

10. Supra note 3.

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Criminal Court on 1 July 2002, different obligations with respect 

standards may seriously affect the ability of coalition members to 

militarily in the “War on Terrorism.” This is particularly the case w

sonnel of a state bound by the Rome Statute are required to work wit

nel of a state not a party to the Rome Statute, for these personnel 

less far-reaching human rights obligations than those personnel from 

fying state.

472

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XXX

Panel V

Commentary—The Road Ahead

Ronald Winfrey1

im Terry spoke about pursuing regional cooperation in the fig

terrorism, about the effective exchange of information, about in

gathering and sharing. I too shall touch on a few of those points mom

as well as a new framework within the structure of the US Pacific C

that is being used to promote such cooperation.

There is quite clearly, a pervasive global threat when you talk 

dressing international terrorism. As the twenty-first century progr

marked by increased interdependence and an increasingly multil

sponse to these threats. Interagency coordination is currently a 

within the US Government but this term is somewhat lacking as it m

tal part of what is necessary in this global war on terrorism. Interage

dination is simply part of the solution. It must be coup

intergovernment coordination on a scale never seen before. With 

come cooperative efforts with nongovernmental organizations as we

A framework that I would suggest as a potential starting point fo

ing regional cooperation on terrorism is that used by the Pacific Co

1. Ronald Winfrey currently serves as Attorney-Advisor for International Law and 

Defense and as the foreign engagement coordinator for the Office of the Staff Judg

US Pacific Command.

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joint interagency coordination group for counter

terrorism. This par

ganization was formed at Pacific Command in Honolulu immediately 

events of September 11th. It was formed in Pacific Command’s O

Directorate and it is a permanent part of that organization.

Generally, we know that terrorists have and will continue to ex

seams between nations, such as nations where passports are easily ob

well as the inherent seams between law enforcement agencies and 

tion agencies. Indeed as we now know, the perpetrators of the Septem

attacks were using legally obtained US visas. Acknowledging tha

these seams may never be closed, there is still much that can be don

many other aspects of this War on Terrorism, the effort to close the 

not be the domain of any single agency, department or ministry. Ac

new forms of governmental and international cooperation are requi

The new counter-terrorism group at Pacific Command is design

phasize capabilities. While coordination is imperative, it is not the 

defeat terrorism—improved capabilities are. Actionable intelligence 

and a collaborative interagency team is the optimum tool to obtain s

ligence. Once this intelligence is obtained, interagency options incl

ter security cooperation with allies in the Pacific, information o

public affairs or public diplomacy initiatives, and finally, military opt

point to leave you with on this is that as terrorist cells become more 

and flexible, so too must governments in their methods of respon

starting point is great intelligence collection and analysis followed b

nation across multiple agencies, multiple governments, and nongove

organizations.

Still another area highlighted by the events of September 11th is 

culty in synchronizing a response plan that not only cuts across mult

cies but multiple time zones and countries. There was a real need aft

ensure security not only in the immediate area of Hawaii but also a

area of responsibility including Japan, Korea, Alaska and Guam. To 

this, the Pacific Command uses a Joint Rear Area Coordinator (JRA

nization. The Joint Rear Coordinator Organization is the centra

antiterrorism efforts in the Pacific Command regarding homeland 

This organization coordinates the contributions of approximately th

sand law enforcement officials (local, state, and federal first respon

terrorist incident. These officials include fire fighters, paramedics

fense officials, public utility officials, and others. This organization 

the framework for coordinated information sharing and planning t

not only Department of Defense installations but also critica

474

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infrastructure within our area. With homeland defense preparat

come a number of very unique legal issues dealing with the use of De

of Defense personnel in response to terrorist attacks—that arena 

primary area of responsibility of civilian law enforcement agencies su

FBI and others. Here Pacific Command must be careful not to run af

Posse Comitatus Act which, as you know, limits the ability of the De

of Defense to undertake certain actions in the United States.2

Jim Terry also spoke of a phased approach to regional cooperatio

Pacific Command, we use and believe in this phased approach, muc

developmental process. Initially, we might begin furthering cooperat

certain country through workshops, seminars, and war games. Ther

might build practical modules into existing exercises—such as our an

bra Gold exercise. Finally, we might transition to a Team Challeng

exercises.

In closing, the scope of cooperation in the current war on terroris

know, is truly remarkable worldwide. Many of the security challeng

not only in the Pacific but throughout the world will require new par

relationships and agreements to begin our effective coordination. T

lot more to be done but I believe that our initial efforts have prove

and we are moving in the right direction.

475

2. 18 U.S.C. § 1385 (2003).

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XXXI

Panel V

Commentary—The Road Ahead

Jane Dalton1

believe that September 11th proved beyond any reasonable dou

ternational treaties and other negotiated documents are not suf

themselves, to win the War on Terrorism. I was in the Pentagon wh

tack came and there is no doubt in my mind that the Pentagon and t

States were attacked with weapons of mass effects. Some 3,200 pe

more than 90 countries throughout the world died on that day.2 This 

tack on democracy, on liberty and on religious freedom. This was no

armed attack by these terrorists on these core American values either

one of a continuing series of attacks, beginning in 1993, if not before

first World Trade Center bombing. These armed attacks included 

embassy attacks in Kenya and Tanzania and continued with the tra

on USS Cole in 2000.

For me then, it is interesting to consider the concept of preempt

ticipatory self-defense while in the middle of an armed conflict as 

concepts do not seem well juxtaposed at times. In World War II and 

1. Navy Captain Jane Dalton is currently the Legal Advisor to the Chairman of the 

of Staff.

2. See Fact Sheet: September 11th, 2001 Basic Facts, Department of State (Aug

available at http://www.state.gov/coalition/cr/fs/12701.htm (Oct. 30, 2002).

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War, enemy forces were declared hostile. No hostile intent was nec

fore striking enemy forces. Being engaged in armed conflict, the Uni

appropriately took the fight to the enemy, not waiting for the enem

to us, nor waiting for some indication of hostile intent or hostile act

at the series of events occurring since 1993, it is clear that the Unite

currently involved in an armed conflict, an ongoing conflict where p

or anticipatory self-defense is not an issue.

If one were to ask leaders of al Qaeda this instant, whether or not 

involved in an armed conflict with the United States, they would 

answer yes. Their actions have made this clear as have their words

that they are at this very moment planning more attacks on the Uni

for the very next possible instant that they can accomplish these att

I concur with John Murphy that imminence takes on a new mean

you are talking about weapons of mass destruction. Perhaps the new 

regarding such imminence or immediacy is not that used in World W

Iraq when forces were massing on borders or scud missiles were flying

instead the new paradigm must consider that at the next possible op

the United States will have to act decisively to prevent an attack on t

States. The intelligence indicators found in past conflicts do not ap

one; we will not see armored units massing on an opposing border. W

be found, however, is the constituent components necessary to build 

of mass destruction (WMD) being transferred from a country to 

group. The indicators of the future may be the assembly of componen

conducting of tests. This point in time may now be the United States 

ble opportunity to prevent an attack. For if the threat is not eliminate

may be impossible to eliminate it later. This, to me, is the new concep

nence that scholars and practitioners must understand.

One reason the UN condemned the Israel attack on the Osiraq re

because the threat caused by the reactor, providing enriched uranium 

nuclear weapons development, was foreseeable but not imminent.3 T

situation may well be reversed. That is, we know that an attack is i

but it is difficult to foresee exactly where or when the attack will occ

this case, the United States must strike now while it has the enemy 

weapons in its sites and it is within US capabilities to strike. Delayi

strike may cause the opportunity to evaporate forever.

478

3. See G.A. Res. 36/27 (Nov. 13, 1981), available at http://www.un.org/Depts/dh

.htm (Oct. 30, 2002). See generally, Mallison & Mallison, The Israeli Aerial Attack of J

Upon the Iraqi Nuclear Reactor: Aggression or Self-Defense?, 15 VAND J. TRANSN

(1982).

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I agree with the idea that there are self

defense criteria that shoul

ied before acts in self-defense are undertaken. These four criteria a

jective indicators that an attack is imminent exist; does past co

hostile declarations reasonably lead to the conclusion that an attack 

ble; do the nature of the weapons available support a likely attack

there no other practicable means than the use of force to mitigate/

the threat. Regarding objective intelligence indicators, although I c

veal classified intelligence here, I believe that there are substantial 

indicators that an attack is imminent. On the second criterion, the 

duct of al Qaeda from 1993 to the present coupled with present de

are nothing short of hostile and indicate that other attacks are plann

the third criterion, al Qaeda has proven its ability to be extremely fle

agile, making civilian airliners as well as simple pleasure boats into 

Finally, are there other options short of using force to mitigate/elim

threat—there do not seem to be such options available. When peopl

ing to martyr themselves, there is very little deterrence that you 

When terrorists belong to no territory, when they have no populat

they are trying to protect, when their goal is to destroy innocent civil

the concept of deterrence becomes an entirely new challenge. Tradi

terrence as we know it does not seem to apply to such zealots.

Yoram Dinstein’s position on interceptive self-defense also intri

This notion of an irreversible course of action commencing might 

ther study. I am uncertain as to what metrics we might develop for m

what is truly an irreversible course of action other than by studying e

things that we have previously discussed, the history of a group, its 

tent, the weapons available, alternative courses of action, etc. Cle

using interceptive self-defense, actions of the United States wou

bound by proportionality and discrimination.

Recall also that the use of military force is only one of the many in

of national power at our disposal. We must continue to use all 

sources to achieve our objectives. The conventions that John Murp

of, as well as diplomacy, economic and other sanctions, law enforce

all available instruments of power. These instruments of power shou

relentlessly, on all fronts, as appropriate. The joint rear area coo

479

4. Professor Dinstein argues that “[i]nterceptive, unlike anticipatory, self-defense 

after the other side has committed itself to an armed attack in an ostensibly irrev

Whereas a preventive strike anticipates an armed attack, an interceptive strike 

armed attack which is ‘imminent’ and practically ‘unavoidable.’” See YORAM DINS

AGGRESSION AND SELF-DEFENSE (3d ed. 2001) 172–173.

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group that Ron Winfrey spoke about in the Pacific Command area 

tions also exists in the Southern Command, European Command 

Central Command. These different exercises of US instruments of 

all absolutely critical. Having said this, the United States should no

to use military force to accomplish “involuntary disarmament” of it

when necessary.

As Ron Winfrey indicated, the greatest current need is for action

ligence. The United States must improve its ability to conduct in

gathering, surveillance, and reconnaissance. We are working toward

an example, Germany has been an exceptional ally in support of o

gence gathering efforts to support our maritime interdiction operati

Central and European Commands’ areas of responsibility. Similarly

ippine Armed Forces have increased dramatically both their intellige

ering and counter-terrorism forces in the last 12 months.

Still another point to be made though is that an increase in US c

is not, by itself, enough. Other states must also step to the forefront 

action. The United States is available to assist such states as Yemen a

gia, but we cannot do it for them. The United States should not be re

be the world’s protector. Other states must also accept responsibilit

own safety. The United States will certainly be willing and able to co

advise and assist in this respect as we are doing in the Philippines an

and Yemen.

Similarly, if we wish to expand regional cooperation, we must ex

funding available for such cooperation. As you well know, the Depa

Defense is constrained in its ability to conduct security assistance 

since it receives no direct funding for such missions. Instead, the De

of State, as the Security Assistance Program Manager, receives fund

curity assistance and then determines how this funding will be sp

wish to improve our coordination and cooperation with our allies

pursue alternative and additional funding to increase our ability 

alongside and conduct exercises with our allies. A significant challe

complishing these missions is the restriction on expenditure of funds 

strains the Department of Defense.

Finally, the coming years offer many challenges as we deconflic

tion in the homeland defense arena. The United States has signific

lenges facing it that must be overcome so as to ensure that the Depa

Defense, the Federal Bureau of Investigation, the Central In

Agency, the Coast Guard, the Bureau of Alcohol, Tobacco, and Fire

Secret Service and other agencies understand who has primary con

480

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what specific types of operations and in response to what specific t

curring in the homeland of the United States.

481

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XXXII

Panel V

Discussion—The Road Ahead

On Iraq

Yoram Dinstein

The road ahead must surely go through Iraq, given recent statements 

the administration in Washington and—even more significantly—

Hussein’s continued breaches of Iraq’s undertakings under the cease-

ment of 1991. At the present moment, however, this is not a questi

defense. Self-defense as an issue vis-à-vis Iraq arose—and was reso

2 August 1990, when Iraq invaded Kuwait. At that point in time, th

Council determined—in a binding resolution—that Iraq had com

breach of the peace.1 Ultimately, the Security Council did not direc

military sanctions on Iraq, in accordance with Article 42 of the UN 

because the Security Council (which has no standing army) canno

Article 42 unless and until special agreements are included with sta

Article 43. What the Security Council did instead was give its bless

use of force, in the exercise of collective self-defense (pursuant to A

of the Charter), by an Amercian-led coalition of states who came to 

Kuwait.2 Legally speaking, the coalition invoking the collective rig

defense could have acted on its own, without the blessing of the 

1. S. C. Res. 660, U.N. SCOR, 45th Sess., U.N. Doc S./660/(1990).

2. Id.; S. C. Res. 678 para. 2 authorized, in relevant part all “Member States co-op

the Government of Kuwait. . . to use all necessary means to restore internationa

security in the area.” U.N. SCOR, 45th Sess., U.N. Doc. S/678/(1990).

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Council (which is not envisaged as necessary by Article 51). Howev

practical-political standpoint, the blessing of the Security Council p

neficent both domestically (in the United States) and internationa

menting the unusual coalition which emerged).

From a jus ad bellum viewpoint, the respective positions of Iraq (

gressor) and the coalition (fighting in collective self-defense) was fix

duration of the war on 2 August 1990. Contrary to what many lay

even lawyers believe, that war has not yet come to an end. Hostil

suspended in 1991 following a cease-fire concluded with the consen

parties, based on Security Council Resolution 687.3 The cease-fire 

been punctuated by thousands of acts of hostilities, the latest of w

curred only last week (when Amercian and British warplanes attac

radar stations which tried to lock on to coalition aviation). There h

other, and more serious, rounds of hostilities in 1998 and 1999.

By dint of Iraq’s continued violations of the 1991 cease-fire—espe

beit not exclusively, insofar as the disarmament of weapons of mas

tion is concerned—if the United States opts to resume hostilities ag

tomorrow or the day after, it would not need a Security Council r

The fact that Iraq has systematically violated the cease-fire terms is 

able, and it suffices to justify unilateral forcible action by the Unit

against Iraq. Should anyone wish to stop the United States, let him 

Security Council and seek such a resolution (which would certainly 

by the United States). Forcible action against Iraq at the present junc

not commence a new armed conflict. It represents, purely and simp

tinuation of the ongoing armed conlict that began when Iraq invade

on 2 August 1990. Therefore, the question of the imminence of a

posed by Iraq today is irrelevant. All that need be said is that Iraq 

material breach of the cease-fire agreement. Under Article 60 of the 

enna Convention on the Law of Treaties, a material breach of any t

cluding a cease-fire agreement) justifies termination of the trea

aggrieved party.4

John Murphy

Yoram Dinstein in his inimitable fashion has set forth a marvelous a

brief for further military action against Iraq. However, I do not quit

484

3. S. C. Res. 687, U.N. SCOR, 46th Sess., U.N. Doc. S/687/(1991).

4. Vienna Convention on the Laws of Treaties, art. 30, 1155 U.N.T.S. 331, 8 

(entered into force Jan. 27, 1980).

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iron tight. There are other positions to be considered, particularly sin

very complex question. Clearly, the Security Council authorized the 

dividual and collective self-defense in its Resolution 678.5 It is also 

this right existed in any event under the terms of Article 51 of the UN 

However, this right to self-defense was to drive Iraq out of Kuwait, n

sarily to re-engage Iraq more than a decade after the ceasefire was si

Security Council Resolution 687 recognizes the restoration of the 

integrity of Kuwait and imposes a number of significant obligations u

These obligations include everything from desisting from the pract

rorism, the involuntary disarmament of weapons of mass destruction

accompanying inspectors to prove this disarmament.6 Clearly, 

Hussein and his regime supporting thugs have violated this resolu

key question though is who gets to decide what happens about th

tions? Who decides whether the cease-fire has been broken? Who 

there has been a material breach, whether this breach is justificatio

continuing use of force? It strikes me that such a decision is properly 

fore the same organization that authorized the initial use of force, th

Council. Accepting Yoram Dinstein’s argument that no additional 

is needed from the Security Council to re-engage Iraq stretches the 

ture of the previous resolutions. I believe there is language in these re

to the contrary and I also believe that there is negotiating history to 

trary. Yoram Dinstein’s case is a nice work of advocacy. But there is 

strong an argument on the other side of his position.

James Terry

President George Herbert Walker Bush was very clear in his view th

tion 678 provided the authority to do very specific things. This essen

to remove Iraqi forces from Kuwait and restore the territorial integr

wait, nothing more. To take the position now that Resolution 687, wh

prets the original authority of Resolution 678, would allow the United 

do such things as Yoram Dinstein suggests must be studied very caref

matic action must prevail as we consider the world community, the 

manent members of the Security Council, and our friends and allies

be dangerous, in my view, to act on the position advocated by Yoram D

485

5. S. C. Res 678, supra note 2.

6. S. C. Res. 687, supra note 4.

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On Terrorism

Chris Greenwood

It is very important to recognize that terrorism is a habit and that o

most serious of the many moral and practical arguments against te

that it becomes rapidly endemic and has done so in many parts of th

the course of the twentieth century. Because the major problem of te

that it is endemic, it is important not to have illusions that the comp

nation of terrorism can be achieved in any short measure of time for 

one proclaims terrorism has been eliminated, every subsequent terro

becomes a victory for the terrorists and a defeat for those claiming eli

Accordingly, there is a need in pursing this campaign against terroris

the rhetoric careful and limited and not to raise false expectations.

Secondly, there is a need for humility and caution in the matter o

operations in response to terrorist acts. Sometimes they may be ext

fective as they have been so far in Afghanistan. In other cases, they 

be. It is sobering to remember that World War I began as an Austria

to wipe out what Vienna perceived as the hornet’s nest of terrorists 

The most difficult issue in dealing with terrorism is not the legal ba

tion but the prudential judgment as to whether a particular course o

wise and will be supported by the international community. This 

continuing criterion, discussed and analyzed, before action is taken

part of this battle as has been reflected by numerous conference par

is for that of ideas. For in many respects, this is a battle to de-legitim

ism and to gain international support, recognizing that gaining suc

on the international stage often requires a large number of comprom

Finally, it is important to study how terrorist campaigns end. S

they run out of steam, sometimes because of the very extreme ch

their actions—and this may well be true ultimately of al Qaeda—the

discredited. Sometimes as we all know, compromises, political comp

various kinds are reached with terrorist groups. We must remember 

terrorists sometimes do act in the name of a larger public cause. Su

causes may have serious elements of legitimacy that must be consid

if the means by which they are pursued cannot be defended. Often, 

cult decisions have to be made as we see that have occurred in Israel 

Palestine. In other words, there is no substitute in the whole of the 

against terrorism for the continuous exercise of historically informe

judgment.

486

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Nick Rostow

The United States has long based its national security policy on the 

anticipatory self-defense. Perhaps not articulated quite as sharply as 

George Walker Bush articulated it but anticipatory self-defense non

do not believe that President Bush changed much in his policy from th

torical approach to protecting itself and its citizens.

487

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APPENDIX A

Contributors

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Contributors

Commander Neil Brown, United Kingdom Royal Navy, is cur

signed to the UK Joint Force Headquarters and deployed as Legal A

the UK National Contingent Commander for Operation TELIC. In 

tion, he provides legal advice on all aspects of the UK contribution 

tion Iraqi Freedom. Previously, CDR Brown has served aboard H

ROTHESAY, LIVERPOOL, YORK, and ILLUSTRIOUS. He has 

Assistant to the Chief Naval Judge Advocate; Legal Adviser to the Fl

Surface Flotilla; and most recently, Legal Adviser to Commander 

Fleet (augmenting the staff of the UK Permanent Joint Headquart

Operation ORACLE (UK contribution to Operation Enduring Freedo

Brown has multiple deployments including to the Persian Gulf, Ba

South China Seas, Sierra Leone, and in support of counter-drug ope

Wing Commander Paul Cronan, Royal Australian Air For

Group Commander Cronan was commissioned in the Royal Aust

Force as a Flight Lieutenant Legal Officer in 1985 and is currently 

the Chief Legal Advisor for Headquarters Australian Theatre. In th

ity, he is responsible for providing advice to the Commander and S

Australian Theatre on all legal aspects of the planning and conduct 

campaigns and operations. Previously, he has held various legal po

the Defence Legal Office in Canberra and Headquarters Air Comm

the US Air Force Judge Advocate General’s Department in Washing

with the Directorate of Air Force Legal Services in Canberra and 

Butterworth, Malaysia.

Captain Jane Dalton, JAGC, US Navy is currently the Legal C

the Chairman of the Joint Chiefs of Staff. She provides legal advice 

nior military official responsible for advising the President on milita

tions. Other career highlights include Commander, Naval Lega

Office North Central, Washington D.C. (1998-2000); Deputy Lega

to the Chairman of the Joint Chiefs of Staff, Washington D.C. (

Staff Judge Advocate, Third Fleet, San Diego, CA (1994–96); an

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Law & Policy Specialist, Strategic Plans & Policy Directorate, Jo

Washington, D.C. (1992–94). Before attending law school at Ge

University Law Center, Captain Dalton was a Surface Warfare Offi

US Navy.

Captain William H. Dalton, JAGC, US Navy (Ret.) is currently 

to the Department of Defense Office of General Counsel as Associa

General Counsel (Intelligence). From 1965 to 1995, he served as a 

vocate in the US Navy. His assignments included service as the Exec

ficer, Naval Legal Service Officer, Pearl Harbor, Hawaii; the Deputy 

Judge Advocate General, Department of the Navy; the Staff Judge A

US Pacific Command in Hawaii; and as the Inspector General, Nava

tems Command, Washington, D.C. Captain Dalton also served on t

of the US Naval War College as the first Deputy Director, Oceans 

Policy Department.

Professor Yoram Dinstein is currently the Charles H. Stockton 

of International Law as the US Naval War College, an appointmen

filled from 1999–2000. Previously, he served as a Humboldt Fellow a

Planck Institute of Foreign, Comparative and International Law i

berg, Germany (2000–01) and as Professor of International Law, 

Professor of Human Rights, President (1991–98), Rector (1980–85) 

of the Faculty of Law (1978–80) at Tel Aviv University. Professor 

started his career in Israel’s Foreign Service and served as Consul o

New York and a member of Israel’s Permanent Mission to the Unite

(1966–70). Professor Dinstein was among a group of international la

naval experts who produced the San Remo Manual on Internationa

plicable to Armed Conflicts at Sea. He is a member of the Institute o

tional Law and the Council of the International Institute of Hum

Law in San Remo. Professor Dinstein is the editor of the Israel Ye

Human Rights, the author of War, Aggression and Self-Defence

written extensively on subjects relating to international law, hum

and the law of armed conflict.

Vice Admiral James H. Doyle, Jr., US Navy (Ret.). Vice Adm

graduated from the US Naval Academy in 1946. From 1950–1953, 

miral Doyle attended George Washington University Law School. A

officer, he served in USS Chicago and USS, John W. Thomason. H

executive officer of USS Bulwark, USS John S. McCain and USS 

News. Vice Admiral Doyle was subsequent the commander of USS 

Redstart, USS John R. Craig, and USS Bainbridge. As a flag officer

Doyle was Chief, International Negotiations Division, Joint Chie

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where his work involved him in SALT 1 and Incidents at Sea ne

with the Soviet Union. Admiral Doyle also represented the Joint 

Staff on the US Delegation to the Law of the Sea Conference. Adm

also commanded Cruiser-Destroyer Group TWELVE, Attack Carrie

Group Two, and Third Fleet (1974–75) Admiral Doyle’s final active 

sition was as the Deputy Chief of Naval Operations for Surface 

(1975–80). Since retiring from active duty, Admiral Doyle has been 

the Johns Hopkins University Applied Physics Laboratory on vario

of Anti-Air Warfare and Fleet Air Defense. He is also the Vice Ch

the Strike, Land Attack and Air Defense Committee for the Nationa

Industrial Association and serves on the Board of Directors for the C

Oceans Law and Policy, University of Virginia and the Internationa

partment of the US Naval War College.

Colonel Charles H. B. Garraway, United Kingdom Army is 

serving in the UK Ministry of Defence in London where he is a princ

sor on issues relating to international law. Colonel Garraway’s tou

have included Cyprus, Germany, Belgium (SHAPE) and Hong Kong 

various tours throughout the United Kingdom. Colonel Garraway 

the senior Army Legal Service officer during the Gulf Ware where he 

tensively with prisoner of war issues. Currently, Colonel Garraway is 

consultant on the draft Tri-Service Manual on the Law of Armed Co

has contributed to a number of academic publications and published 

of articles on issues relating to international law. He has lectured ex

on issues associated with the law of armed conflict and internationa

tarian law in both the United Kingdom and abroad and has taught 

ternational Institute of Humanitarian Law in San Remo since 1994

Garraway is a member of the Managing Board and the Board of Di

the International Society for Military Law and the Law of War and 

eral Rapporteur for its 2003 Congress in Rome as well as the Chairm

General Affairs Committee. He is a visiting professor at the Schoo

King’s College, University of London.

Colonel David E. Graham, JAGC, US Army (Ret.) retired fro

Army in 2002. Prior to his retirement, Colonel Graham was the Ch

national and Operational Law Division within the Office of the Jud

cate General, Department of the Army and the Director, Center fo

Military Operations, the Judge Advocate General’s School of the Ar

lottesville, Virginia. In a career spanning from 1971 to 2002, Col

ham’s other assignments have included Chief, Strategic Planning, 

the Judge Advocate General; Staff Judge Advocate, US Southern c

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Legal Advisor, Multinational Forces and Observers: Peacekeeping Fo

Attorney-Advisor, International Law, Office of the Staff Judge A

Headquarters, US Army Europe and Seventh Army, and Professor

tional and Operational Law Department, The Judge Advocate 

School of the Army.

Professor Leslie C. Green is a former Charles H. Stockton Profe

ternational Law at the US Naval War College (1996–98). After serv

British Army during World War II, he held university appointme

University of London; University of Singapore; University of Alber

he is University Professor Emeritus; Kyung Hee University, Seoul Ko

versity of Colorado; and the University of Denver. Professor Gree

government appointments include Member and Legal Advisor to t

dian delegation to the Geneva Conference on Humanitarian Law 

Conflict (1975–77) and special consultant to the Judge Advocate 

National Defence Headquarters. In the latter capacity, he wrote t

dian Manual on Armed Conflict Law. Professor Green is the author 

ous books including The Contemporary Law of Armed Conflict and 

papers and articles.

Professor Christopher Greenwood is Professor of International L

London School of Economics and Political Science. He is a Barriste

ing from Essex Court Chambers in London, and has represented th

Kingdom before the International Court of Justice in the Nuclear 

and Lockerbie cases, as well as appearing regularly in the UK courts 

cases have included Pinochet and the Guantanamo Bay detainees c

fessor Greenwood was formerly a Fellow and Lecturer at Magdalen

Cambridge, had been a Visiting Professor at the Universities of Marb

Virginia, and Mississippi, and Director of Studies and Lecturer at t

emy of International Law in The Hague. He is a regular lecturer a

colleges, has published a number of articles on international law, a

author of a forthcoming book, The Modern Law of Armed Conflict

Professor Wolff Heintschel von Heinegg is Professor of Public 

tional Law at the University of Frankfurt-Oder and former Professor 

the University of Augsburg, Germany. He was the Rapporteur of th

tional Law Association Committee on Maritime Neutrality and is cur

Vice-President of the German Society of Military Law and the Law 

Professor Heintschel von Heinegg was among a group of internation

and naval experts who produced the San Remo Manual on Internat

Applicable to Armed Conflicts at Sea. He is a widely published auth

cles and books on the law of the sea and naval warfare.

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Mr. Daniel Helle has been the Deputy Head of the ICRC Dele

the United Nations since 2000. A native of Norway, Mr. Helle’s pre

perience includes Legal Adviser, Legal Division, ICRC, Geneva, Sw

(1998–2000) where he provided institutional support on questions 

the status of the ICRC, forced displacements, and women and ch

armed conflict; Associate Expert/Junior Professional Officer, UN C

Human Rights/Office of the High Commissioner for Human Rights

Switzerland (1994–98) where he worked extensively on internally 

persons and human rights and mass exoduses; and as Legal Advis

Norwegian Institute for Human Rights, Oslo Norway.

Lieutenant Colonel Tony E. Montgomery, US Air Force is th

Staff Judge Advocate, US Special Operations Command, MacDill 

Base, Florida. During his career which began in 1983, his assignment

cluded service as the Area Defense Counsel for Florennes Air Base

Chief of Military Justice at Hill Air Force Base, Utah; Staff Judge Ad

Goodfellow Air Force Base, Texas; Chief, Operations and Internat

for Headquarters Air Combat Command, Langley Air Force Base, 

and from 1998–2001, Deputy Judge Advocate and Chief, Operation

the US European Command. During the summer of 1996, Lieutenan

Montgomery served as the Staff Judge Advocate to the Comman

Task Force Southwest Asia.

Professor Rein Müllerson is Professor and Chair of Internation

King’s College of London University where he is also the Direct

Master of Arts Program on International Peace & Security. From 19

he was visiting Centennial Professor of the London School of Econo

Political Science. He served as the First Deputy Foreign Minister o

during 1991–1992 and from 1988–1992, Professor Müllerson was a 

of the United Nations Human Rights Committee. He is a memb

Institut de Droit International and is the author of six books on inte

law and politics as well as more than 150 articles and reviews. His la

are Human Rights Diplomacy (1997) and Ordering Anarchy: Inte

Law in International Society (2000).

Professor John F. Murphy is Professor of Law at Villanova U

School of Law. In addition to teaching, his career has included a yea

on a Ford Foundation Fellowship, private practice in New York and 

ton D.C., and service in the Office of the Assistant Legal Adviser f

Nations Affairs, US Department of State. He was previously on th

ulty at the University of Kansas, and has been a visiting professor a

University and Georgetown University. From 1980–81, Professor M

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the Charles H. Stockton Professor of International Law at the U

War College. He is the author or editor of numerous books and mo

and has authored numerous articles, comments, and reviews on 

tional law and relations. Professor Murphy has served as a consulta

US Departments of State and Justice, the ABA standing Committe

and National Security, and the United Nations Crime Bureaus. He 

fied before Congress on multiple occasions and is currently the A

Bar Association’s Alternate Observer at the US Mission to th

Nations.

Lieutenant Colonel Michael A. Newton, JAGC, US Army, is cu

Assistant Professor of Law at the United States Military Academy 

Point, New York. Prior to this position, Lieutenant Colonel Newto

Senior Advisor to the US Ambassador-at-Large for War Crim

(2001–02) where he was involved in a wide range of issues related t

mation of US policy regarding law of armed conflict issued to includ

to accountability mechanisms worldwide. In this capacity, Lieutenan

Newton served as the US representative on the UN Planning Missi

Sierra Leone Special Court. Lieutenant Colonel Newton has also s

Special Advisor in the Office of War Crimes Issues (1999–2000) an

negotiate the Elements of Crimes document for the International 

Court. Lieutenant Colonel Newton’s other military assignments in

Professor of International and Operational Law at the Judge Advo

eral’s School of the Army, Charlottesville, VA (1996–98), Brigade J

vocate, 194th Armored Brigade (Separate) Fort Knox, KY (1993–

Group Judge Advocate, 7th Special Force Group, Fort Bragg, NC 

Lieutenant Colonel Newton has deployed in support of both Opera

vide Comfort and Operation Uphold Democracy. He is published in 

journals to include the Military Law Review, The Virginia Journal o

tional Law, and the Army Lawyer.

Dr. Richard A. Nuccio is the Founding Director of the Pell 

Salve-Regina University. Prior to assuming his position as director, 

in a number of senior foreign policy position in the US Governme

1995–1996, he was special advisor to the President and the Secretar

for Cuba. After leaving the White House, he returned to the State De

as senior policy adviser to Assistant Secretary of State for Inter-Ame

fairs. From 1997–1998, Dr. Nuccio was the senior foreign policy 

Senator Robert G. Torricelli (D-NJ) and from 1998–1999, he was a

on civil society to the director of the UN Development Program’s Lat

can and Caribbean Bureau, a consultant to the Rand Corporation 

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Peace Research Institute of Oslo. Dr. Nuccio has taught numerous 

multiple colleges and universities to include Williams College, Be

College, Georgetown University and the School of Advanced Inte

Studies of Johns Hopkins University.

Lieutenant Colonel Jean-Guy Perron, Canadian Forces, is pre

Assistant Judge Advocate General for the National Capital Region 

Canada. Prior assignments have included as Legal Adviser to the Co

of Canadian Joint Task Force South West Asia, Tampa, FL (2001–0

cutor, Office of the Director of Military Prosecutions (1998–2001); 

viser to Commander, Canadian Contingent Implementation F

Bosnia-Herzegovina (1996) and Legal Adviser to the Commander, 

Contingent Central Africa (1996) in support of Operation Assuranc

Rwanda and Uganda. Prior to joining the office of the JAG, Lieuten

nel was an infantry officer (Royal 22e Regiment).

Rear Admiral Rodney P. Rempt, US Navy, is the 48th Preside

US Naval War College. Read Admiral Rempt graduated from the U

Academy in 1966 and holds Masters Degrees in Systems Analysis fr

ford University and in National Security and Strategic Studies from 

War College. He has commanded USS Callaghan (DDG 994) 

Bunker Hill (CG 52). From 1996–1998, Rear Admiral Rempt was th

Executive Officer, Theater Air Defense (PEO TAD), additionally 

the U.S. Steering Committee Member for the NATO Seasparrow an

Airframe Missile multi national programs. From 1998–2000, Rear 

Rempt was the first Deputy Assistant Secretary of the Navy for Thea

bat Systems where he was the principle advisor on the introduction 

TBMD and the development of advanced shipboard combat systems

Rear Admiral Rempt became the first Assistant Chief of Naval Oper

Missile Defense.

Professor Harvey Rishikof is Professor of Law at Roger William

sity School of Law. Professor Rishikof has a long history of public ser

ing worked as the Legal Counsel for the Deputy Director for th

Bureau of Investigation, Washington D.C. (1997–99) where he was 

in issues affecting the Deputy Director’s Office on general policy 

matters; Administrative Assistant to the Chief Justice of the US 

Court, Washington D.C. (1994–96) where he was responsible for b

nal Supreme Court and external judicial administrative matters inclu

ing as a liaison for the Executive Branch and Congress; and as 

Fellow in the Administrative Office of the US Courts, Washing

(1993–94). Professor Rishikof lectures extensively and has been 

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numerous times to include in the Journal of Policy Analysis and Man

the Valparaiso Law Review, and the Social Science Research Coun

Professor Sir Adam Roberts is the Montague Burton Professor o

tional Relations at Oxford University and a Fellow of Balliol Colleg

been a lecturer in International Relations at the London School of E

and Political Science and was the Alastair Buchan Reader in Inte

Relations and Fellow of St. Antony’s College, Oxford from 1981–

has a three-year Leverhumle Major research Fellowship for 2000–20

the author of numerous articles and books including Nations in A

Theory and Practice of Territorial Defence and he co-edited Docu

the Laws of War.

Professor Nicholas Rostow is General Counsel, US Mission to th

Nations. Prior to that appointment, he was the Charles H. Stockton 

of International Law at the US Naval War College. Professor Ro

served in senior positions in both the legislative and executive branc

US Government. These include Staff Director of the Senate Select 

tee on Intelligence; Deputy Staff Director and Counsel of the Hou

Committee on US National Security and Military /Commercial 

with the People Republic of China (more familiarly known as the C

mittee); Special Assistant to the State Department’s Legal Adviser; 

cial Assistant to President Reagan and President George H. Bush; 

Adviser to the National Security Council. In addition to governmen

Professor Rostow has taught law and history at the University of Tuls

Fletcher School of Law and Diplomacy. His publications are in the fi

ternational law and diplomatic history.

Dr. Michael Saalfeld is the Director, International Legal Affai

German Ministry of Defense. Dr. Saalfeld began his tour as a legal 

the Federal Armed Forces (Corps level) in 1982. He then became D

rector, International Legal Affairs in 1987 and held that position fo

seven years. Subsequently, he served for three years in the Personne

the Ministry of Defenses’ State Secretary for Personnel and Budget A

1999, during the Kosovo Campaign, Dr. Saalfeld was the Head of the 

Office of Minster Rudolf Scharping.

Professor Michael N. Schmitt is Professor of International L

George C. Marshall European Center for Security Studies, G

Partenkirchen, Germany. Prior to arriving at the Marshall Center, 

Schmitt enjoyed a career in the US Air Force. During that career, h

ized in operational and international law, and was senior legal advis

tiple Air Force units, including units conducting combat operat

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Northern Iraq. Professor Schmitt has been on the faculty of the 

Academy where he was Deputy Head of the Department of Law, an

sistant Director for Aerial Warfare in the International Law Depa

the Naval War College. He has been a Visiting Scholar at Yale La

and lectures and teaches regularly at the International Institute of 

tarian Law and the NATO School. He is the author of many scholar

on law and military affairs and a contributing editor for multiple v

the International Law Studies.

Professor Ivan Shearer is the Challis Professor of International L

University of Sydney. He was formerly Professor of Law and Dean o

ulty of Law at the University of New South Wales, where he was 

Emeritus status in 1993. He has been a Visiting Fellow at All Soul

Oxford, and held visiting appointments at universities in Germ

Greece. Professor Shearer is the Vice President of the Australian 

tional Law Association and is on the editorial board of three professi

nals. He is a member of the International Institute of Humanitarian 

Remo, and was among a group of international lawyers and naval e

produced the San Remo Manual on International Law Applicable 

Conflicts at Sea. He holds the rank of Captain (retired) in the Roy

lian Naval Reserve, and in that capacity gives advice within the De

of Defence and frequent lectures on the law of the sea and interna

to various service bodies. For his services to legal education in th

lian Defence Force he was made a Member of the Order of Au

1995. In 2000 he was elected to a four-year term as a Member of th

Rights Committee of the United Nations. During 2000–2001, 

Shearer was the Charles H. Stockton Professor of International Law 

Naval War College.

Colonel Manuel E. Supervielle, US Army, is currently the S

Advocate for the US Southern Command. Colonel Supervielle’s pri

ments include: Chair & Professor, International and Operational 

partment, The Judge Advocate General’s School of the Army (199

Staff Judge Advocate, US Army South, Republic of panama (

Chief, International Law Branch, International and Operational L

sion, US Army, Office of the Judge Advocate General (1993–95) an

Chief of the Division (1995–96) and Assistant Staff Judge Advocat

cific Command Honolulu, Hawaii (1990–1992). Colonel Superviel

ployed twice as the Staff Judge Advocate for Joint Task Forces p

disaster assistance missions in Western Samoa (1990) and Banglades

He is the author of numerous articles on both international law an

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justice and serves as the President of the Military Law Committ

Inter-American Bar Association.

Colonel James P. Terry, US Marine Corp (Ret.) currently serve

uty Assistant Secretary of State for Global, Functional and Regional 

the Bureau of Legislative Affairs of the US Department of State. 

service as an infantry officer in Vietnam, he served as Commanding 

the Marine Detachment aboard the USS Ticonderoga and in Judge 

billets as trial and defense counsel, military judge, Division Staff Jud

cate, Marine Expeditionary Force Staff Judge Advocate, and as Lega

to the Chairman of the Joint Chiefs of Staff from 1992–1995. Afte

from the US Marine Corps, Colonel Terry served in the Senior Exec

vice in the Department of the Interior, serving first as Deputy Direc

Office of hearings and Appeals and then as an Administrative Jud

Board of Land Appeals. He joined the Department of State in 2001

Professor Robert F. Turner holds his doctorates from the Un

Virginia School of Law, where in 1981, he co-founded the Cente

tional Security Law. He continues to serve as the Center’s Associate 

A former three-term chairman of the ABA Standing Committee on 

National Security, and Editor of the ABA National Security Law 

many years, he previously served as a Principal Deputy Assistant Se

State and as the first President of the congressionally-established US 

of peace in Washington D.C. The author or editor of more than 

books and numerous articles, Professor Turner has testified before m

a dozen congressional committees and was the Charles H. Stockton 

International Law at the Naval War College during 1994–1995.

Captain Ronald R. Winfrey, JAGC, US Navy (Ret.) is the A

Advisor for International Law and Homeland Defense and the Fo

gagement Coordinator for the Office of the Staff Judge Advocate 

Pacific Command. In this capacity, Captain Winfrey provides legal 

the Staff Judge Advocate for the Commander, US Pacific Comman

issues affecting international law and homeland defense. Captain 

served in the US Navy’s Judge Advocate Generals Corps from 19

His duty assignments included Naval Legal Service Office, Treasu

San Francisco, CA; USS Coral Sea; Office of the Judge Advocat

(Litigation /Personnel Division), Washington D.C.; Staff Judge A

Joint Task Force Middle East; Staff Judge Advocate, US Third F

Deputy Staff Judge Advocate, US Pacific Fleet and Commandin

Trial Service Office Pacific.

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Index

A

abduction of terrorists, 312–319

Abu Nidal, 395

Abu Sayyaf Group, 393

Acheson, Dean, 436

Achille Lauro hijacking, 399

ACLU (American Civil Liberties Union), 92 n. 44

Afghanistan, xxi, 2, 3 (see also Operation ENDURING FREEDOM; Taliban)

coalition operations in, see coalition operations

cross-border counter-terrorist attacks in pursuit of non-state entities, 38–47

East African US Embassy bombings, retaliation for, see East African US Embass

1998

economic aid efforts, 455–456, 458–459

economic sanctions, 425, 428

future operations in, 455–459

government by Taliban, legitimacy of, 69, 129–135, 139, 140–141, 143, 446

history of war in, 191

humanitarian intervention as grounds for use of force against, 130, 144

humanitarian relief in, 205–208

ISAF (International Security Assistance Force), 16, 111, 193, 319, 458

MAPA (Mine Action Program for Afghanistan), 204

Northern Alliance, 191, 192, 209–210, 227, 236, 238

police force training, 458

POW status of Taliban and al Qaeda prisoners, 171–174, 441–454, 468–471 (se

unlawful/lawful combatancy and POW status)

raids on terrorist facilities following 1998 US Embassy bombings, 42, 395

refugees, 207–208

self-defense as reason for invasion of, see self-defense

UN Security Council statements pre-9/11, 22–23

Africa, 41, 65, 106 n. 87, 419 (see also individual countries)

African National Congress (ANC), 41, 106 n. 87

Ago, Robert, 109

aid efforts, 455–456, 458–459

air-dropping supplies, 206

airlines and aircraft

El Al Airline counters, Libyan-backed attacks on, 395

Hague Convention for the Suppression of Unlawful Seizures of Aircraft, 35, 287

399, 411

International Civil Aviation Organization (ICAO), 399, 410

Pan Am Flight 103 (Lockerbie), 21, 64, 294, 426–428

Tokyo Convention on Offenses and Certain Other Acts Committed on Board A

399

UTA Flight 722, 21, 426–428

Al-Fawwaz case, 290–291, 293, 367

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yy

al Qaeda, ix, xiii, xiv, xvi, xvii, xx (see also September 11 attacks)

armed conflict between United States and, existence of, 357–360, 381–386, 470

continuing viability of, 37

criminal enforcement against, impossibility of, 36

detainees held in Guantanamo Bay, Cuba, see unlawful/lawful combatancy and 

status

distinguishing from Taliban, 139, 140

East African bombings of 1988, see East African US Embassy bombings, 1998

economic sanctions, 425, 428

Iraqi/Hussein, links with, 431, 436

judicial proceedings against Taliban/al Qaeda detainees, 222–225

Latin American cells, 394–395

POW status of Taliban and al Qaeda prisoners, 171–174, 441–454, 468–471 (se

unlawful/lawful combatancy and POW status)

raids on terrorist facilities following 1998 US Embassy bombings, 42

responsibility for September 11 attacks, 10–11

self-defense against, 33–47

state sponsorship, 394

Taliban, connections to, 12–13, 40, 47–48, 53, 138, 442, 446–447

terrorist threat posed by, 10–12

weapons of mass destruction (WMD), 91, 116, 146, 430, 433, 436

Albania (Corfu Channel case), xiv, 49–51

Alcohol, Tobacco, and Firearms (ATF), 480

Alexander of Yugoslavia (prince), assassination of (1934), 329

Algeria, 293, 353

alternatives to use of force

antiterrorism conventions, see treaties and conventions

economic sanctions, 425–429, 440

future developments, 479–480

proper law and proper forum for terrorism, 356

self-defense, 34–36

Alvarez-Machain case (United States v. Alvarez-Machain), 312, 315–316, 317–318

American Civil Liberties Union (ACLU), 92 n. 44

American Servicemembers’ Protection Act (ASPA), 372–374, 456

Amnesty International, 92

An-Na’im, Abdullahi Ahmed, 107 n. 88

anarchists, extraditability of, 287

ANC (African National Congress), 41, 106 n. 87

Angola, 112, 113

Annan, Kofi, 101–102

anticipatory use of force, see preemptive use of force

antiterrorism conventions, see treaties and conventions

Aquinas, Thomas of (saint), 76

Arab Convention on the Suppression of Terrorism, 417–418

Arab States, League of, 65, 294

Argentina, 316–317, 394

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defining, 21 n. 46, 25–27, 33, 66–67, 112–115

differentiating from armed conflicts, 381–386

jus ad bellum, 112–115, 117–119, 131–132

non-state entities, state responsibility for armed attacks by, 38–47, 68–70, 110, 

proper law and proper forum, 355

“scale and effects” as to what constitutes, 21 n. 46, 25–27, 33

self-defense, 66–67

armed conflict

Canada and al Qaeda, existence of armed conflict between, 309

differentiating armed attack from armed conflict, 381–386

MIO, 258–260

United States and al Qaeda, existence of armed conflict between, 357–360, 381

478

Armed Islamic Group, 393

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), case of, 2

Article 51 of United Nations Charter, xiv, xviii (see also United Nations for other a

UN Charter)

authorization, failure to seek, 275–276

coalition operations relying on, 319–320

future developments and adequacy of, 431–438, 468–469

irregular rendition, 314

jus ad bellum, 132

MIO, 256, 260, 264, 265, 266, 297–299, 301–302, 306

proper law and proper forum, 355

self-defense exception, 14, 20, 33–34, 305, 306

Ashburton, Lord, 43, 77

Asia-Pacific Economic Cooperation Forum, 18

ASPA (American Servicemembers’ Protection Act), 372–374, 456

assassination and assassination attempts

Alexander of Yugoslavia (prince), 1934, 329

Bush, President George H.W., 62, 395

Sudanese-backed attempt to assassinate president of Egypt, 428

ATF (Bureau of Alcohol, Tobacco, and Firearms), 480

Athens, 75–76

Augustine of Hippo (saint), 76

Australia

coalition operations, 277–279, 285–286, 288, 290, 295, 302, 319–320

death penalty, 290

extradition, 288, 290

Guantanamo detainees, concerns regarding, 239

human rights law and arrest of terrorists, 285–286

ICC jurisdiction, 295

MIO, 301–302

Operation ENDURING FREEDOM, 277–279, 285–286, 288, 290, 295, 301–302

self-defense issues, 17, 18, 65

terrorism laws, national, 278, 279

503

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y 

“axis of evil,” 438 (see also Iran, Iraq/Sadam Hussein, North Korea)

B

Barak, Ehud, 93

Belgium, 279, 283

Berra, Yogi, 391

bin Laden, Osama (see also al Qaeda)

abduction or extradition of terrorists, 315

future developments and, 394, 395, 428

judicial proceedings against, 222–225

jus ad bellum and, 113, 134

self-defense issues, 10, 15, 37, 44, 64

Tora Bora, presence at, 204–205

biological weapons

Biological Weapons Convention, 414

Iraq/Hussein’s experiments with, 146

“Blue Book” series, ix

bombing

Convention for the Suppression of Terrorist Bombings, 35, 281, 289, 362–363, 

humanitarian relief, call for pause in bombing for, 206

jus in bello and modern bombing techniques, 197–205

Bosnia, see Yugoslavia, Bosnia, Serbia, and Kosovo

Brazil, 394

Brown, Chris, 98, 126

Brown, Commander Neil, xix, 303–307, 319, 491

Brownlie, Ian, 80, 85–86

Bureau of Alcohol, Tobacco, and Firearms (ATF), 480

Burke-White, William, 104, 116

Burma, 457

Burundi, 98

Bush, President George H.W., 62, 395, 485, 487

Bush, President George W., and administration, 197, 218–219, 235–236, 325–326, 

437, 444–445, 487

Byford, Granville, 106 n. 87

C

Cambodia, 41, 457

Canada, 18, 237, 241, 278, 290, 309–311, 320

capital punishment, 290–291, 368–369, 379, 471–472

Caroline case, 27, 30, 31, 42–44, 77, 108–109, 133, 138, 355, 436

Carr, Caleb, 108

case law

Al-Fawwaz case, 290–291, 293, 367

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), case 

504

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Corfu Channel case, xiv, 49–51

Diplomatic and Consular Staff case, 52–53

Kassem case, 162–163

Kei case, 164, 166

Ker v. Illinois, 315, 318

Lockerbie (Pan Am Flight 103), 21, 64, 294, 426–428

Lotus case, 39, 141

Machain case (United States v. Alvarez-Machain), 312, 315–316, 317–318

Mohamed Ali case, 159–160, 166

Nicaragua case, 26, 51–52, 54–56, 70, 117, 119–120, 133, 135, 355

Nuclear Weapons opinion, International Court of Justice, 28

Prosecutor v. Tadic/Dusco Tadic case, 24 n. 56, 56–57, 120, 294 n. 59

Quirin case, 154, 160, 214

Toscanino case (United States v. Toscanino), 319

Cassese, Antonio, 117

Central Intelligence Agency (CIA), 3, 173, 251, 359, 480

Centre for International Crime Prevention, Vienna, 411

Chapultepec, Act of, 132

characteristics of terrorist attacks and responses, 111–119

Charney, Jonathan, 71–72

Chechnya, 140, 305

chemical weapons

Afghanistan’s potential for using gas, 205

Iraq/Hussein’s experiments with, 436

Chemical Weapons Convention, 414

Cheney, Vice-president Dick, 429

Chile, 394

China, 18, 61, 63, 437

Christianity, 76–77, 124

CIA (Central Intelligence Agency), 3, 173, 251, 359, 480

CIS (Commonwealth of Independent States) antiterrorism convention, 418

citizens

extradition prohibitions, 286–287, 288

jurisdiction, nationality basis for, 280, 282, 286–287

lawful/unlawful combatancy and POW status, 163–164, 173

civil aviation, see airlines and aircraft

civil law countries, 286

civil wars, 194

civilians

distinguished from combatants, 151–153, 170, 197–205, 198, 232, 243–245

shields, used as, 243–245, 250

clear and convincing standard of evidence, validation of counter-terrorist strikes, 7

coalition operations, xviii–xix, 275–296

Article 51 of UN Charter, reliance on, 319–320

Australia, 277–279, 285–286, 288, 290, 295, 302, 319–320

Canada, 309–311, 320

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extradition, 286–293

human rights law, international, 282–286

ICC, 293–296

international law, role of, 276–277

jurisdiction, 279–282, 286–287

national laws on terrorism, 277–279

Operation ENDURING FREEDOM, 235–241

pre-existing strategic relationships, importance of, 302

self-defense, 319–320

United Kingdom, 303–307, 319

unlawful/lawful combatancy and POW status of Taliban/al Qaeda detainees, 22

238–241

Coast Guard, 480

Cold War, 58–59, 62, 79, 83, 86–88, 91, 106, 120, 399, 434

Cole (US vessel), attack on, 477

collateral damage, 18, 29–30, 197–205

Colombia, xx, 372, 394, 395

combatants

civilians distinguished from, 151–153, 170, 197–205, 198, 232, 243–245

lawful/unlawful, see unlawful/lawful combatancy and POW status

common law countries, 278, 286

common security framework, need for, 437, 440, 473–475

Commonwealth of Independent States (CIS) antiterrorism convention, 418

community values regarding self-defense, evolving standard of, 57–72

Comprehensive Convention on International Terrorism (Draft), 277–278, 281–28

414–415

Congo (Democratic Republic), 42, 279

conservatives vs. liberals, 91–96, 126–127

Constitution, U.S., 446

Continental Shelf, Convention for the Suppression of Unlawful Acts against the Sa

Fixed Platforms Located on, 399

conventions, see treaties and conventions; specific titles

Convention against Transnational Organized Crime, 415–416

Convention for the Suppression of Terrorist Bombings, 35, 281, 289, 362–363, 366

Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platfo

Located on the Continental Shelf, 399

Convention on the Physical Protection of Nuclear Material, 412

Convention on the Prevention and Punishment of Crimes against Internationally P

Persons, 397, 411

Cooper, Richard, 97, 99, 100, 101

Corell, Hans, 404, 415

Corfu Channel case, xiv, 49–51

Counter-Terrorism Committee (CTC), United Nations, 464–465

counter-terrorist military operations, 184–190 (see also specific operations)

cross-border attacks in pursuit of non-state entities, 38–47, 68, 141–142

defining, 184

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pppyg j

previous operations, applicability of jus in bello in, 187–190

crimes against humanity, 177, 363–364, 365

criminal law

armed attack, armed conflict, and ordinary criminal acts, 381–386

international, see international criminal law; international terrorist tribunals

murder, terrorism as, 361, 363–364

national enforcement, see national courts as forum for terrorist trials

self-defense actions, criminal law enforcement as alternative to, 34–36, 356

terrorism, proper law for, 320, 360–363, 395–396

training in law enforcement, 456

Cronan, Wing Commander Paul, xix, 301–302, 319–320, 491

Cronin, Audrey, 89–90, 95

cross-border counter-terrorist attacks in pursuit of non-state entities, 38–47, 68, 14

CTC (Counter-Terrorism Committee), United Nations, 464–465

Cuba, 394

Cuellar, Javier Perez de, 61

Czech Republic, 18

D

Dalton, Capt. Jane, xxii, 477–481, 491–492

Dalton, Capt. William H., xv, 137–138, 492

Dar es-Salaam US Embassy bombings, see East African US Embassy bombings, 199

De Gaulle, Charles, 171

de Lisle, Jacques, 438 n. 193

de Vattel, Emerich, 77

death penalty, 290–291, 368–369, 379, 471–472

Declaration of Paris, 152

Declaration on the Strengthening of International Security, 48

definition of terrorism, xviii, 277–279, 305, 387

Del Ponte, Carla, 332

Democratic Republic of Congo, 42, 279

Department of Defense (DOD), 480

detainees held in Guantanamo Bay, Cuba, see unlawful/lawful combatancy and PO

deterrence

international terrorist tribunal as instrument of, 347–349

preemptive strikes against groups that cannot be deterred or reasoned with, 429

dichotomy of responses to terrorism, 91–96

Dilhorne, Viscount, 159

Dinstein, Yoram, xv, 112–113, 147, 151–174, 232, 247–252, 316–318, 381, 479, 48

492

Diplomatic and Consular Staff case, 52–53

diplomatic efforts, 455, 457

discrimination as cause of terrorism, 95

discrimination/distinction principle (between civilians and armed combatants), 15

197–205, 198, 232, 243–245

507

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DOD (Department of Defense), 480

Doyle, Vice Admiral James H., Jr., 492–493

Draft Comprehensive Convention on International Terrorism, 277–278, 281–282, 

414–415

Draft International Convention for the Suppression of Nuclear Terrorism, 411–414

Dupuy, Pierre-Marie, 112

Dusco Tadic case (Prosecutor v. Tadic), 24 n. 56, 56–57, 120, 294 n. 59

Dworkin, Ronald, 106

E

East African US Embassy bombings, 1998

coalition operations, 289–290

extradition and jurisdiction, 289–290

proper law and proper forum for terrorism, 357, 367

self-defense, 22, 36, 42, 45, 64–66, 68, 70

economic aid efforts, 455–456, 458–459

economic sanctions, 425–429, 440

Egypt, 18, 63, 393

Eichmann, Adolph, 316–317

El Al Airline counters, Libyan-backed attacks on, 395

el Qadhafi, Muammar, 60

El Salvador, see Nicaragua case

Elements of Crimes, Rome Statute of the International Criminal Court (ICC), 336

Emergency, Paris Minimum Standards of Human Rights Norms in a State of, 285

Enayat, Hamid, 124

Entebbe Raid of 1976, 110

environmental law, 81, 82

Europe and European Union, 18, 90, 96–102, 231, 265, 290, 437, 469

European Convention on Human Rights, 369, 469–472

European Convention on the Suppression of Terrorism, 368, 416, 422–424

evidence as validation of counter-terrorist strikes, 70–72

extradition, xix, 286–293, 312–319, 365–369, 398

F

failed states, intervention in, 91

fair trial concerns, 291–293, 331–333, 366

Falk, Richard, 95

FARC (Revolutionary Armed Forces of Colombia), xx, 395

Al-Fawwaz case, 290–291, 293, 367

Federal Bureau of Investigation (FBI), 3, 359, 475, 480

financing counter-terrorism, 480

Financing of Terrorism, International Convention for the Suppression of, xxi, 345, 

397, 404–411, 405, 408, 425

Finland, 98

508

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Unlawful Acts against the Safety of, 399

flag states and jurisdiction over maritime vessels, 257, 260, 298–299

flagless vessels, 299

“flatland” thinking, 91–96

“for us or against us” argument, 47, 91–96, 197, 235

force, use of, see jus ad bellum

forum, xix–xx, 364–369

armed attack, armed conflict, and ordinary criminal acts, 381–386

humanitarian, human rights, and criminal law, international, 375–379

international forum, see international terrorist tribunal

jurisdiction over international terrorist acts, 333, 337–342

military commissions used to try terrorists, 222–225, 233, 331–332, 357, 386–38

national courts, see national courts as forum for terrorist trials

fragmentation, 87

France, 65, 329, 404, 427, 432, 438 n. 193

Franks, General Tommy, 297

“Free France” forces (WWII partisans), lawful combatancy status, 164–165, 171

Freedman, Lawrence, 93

French Foreign Legion, 163–164

French Revolution, 165

Friedman, Thomas, 94

Friendly Relations Declaration, 48

Fukuyama, Francis, 124

fundamentalism, 98, 100 n. 68, 103, 124–127

funding

counter-terrorism, 480

International Convention for the Suppression of Financing of Terrorism, xxi, 34

377, 397, 404–411, 405, 408, 425

future attacks, anticipatory actions in self-defense against, 32, 38, 116–119, 133, 13

435–437

future “trends” in terrorism, xx, 391–396

G

Garraway, Col. Charles H. B., xvii, 231–233, 248, 252, 320, 493

gas, see entries at chemical weapons

Gaulle, Charles De, 171

Gellner, Ernest, 125

Geneva Conventions, xvii, xxi, 2, 441 (see also unlawful/lawful combatancy and PO

Afghanistan as party to, 194

coalition operations, 284

detention of POWs, rules for, 153

different legal regimes, 378–379

entitlement to POW status, 157–167, 211–212, 215–216, 443–444, 471

judicial proceedings against detainees, 222–225

509

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major concerns of, 178

Protocol I, 167–170, 186–187, 213–216

release of POWs, 222

scope of application, 179

specific applicability of GC III to Taliban and al Qaeda prisoners, 444–445, 447

US concerns over thinking about terrorism in laws of war framework, 186–187

Vietnamese prisoners, 188–189

Georgia (nation), 18, 480

Germany

French Foreign Legion, German national in, 163–164

future developments, 410, 438 n. 193, 458

Guantanamo detainees, concerns regarding, 239

jus ad bellum issues, 77, 123, 135

La Belle disco bombing, Berlin, 60–61, 63, 395

Nazis, 123, 247, 316–317, 338–339 (see also Nuremberg Trials)

Operation ENDURING FREEDOM, 468

proper law and proper forum, 338–339

Red Army Faction, 187

self-defense issues, 18, 63, 65

Glennon, Michael, 58, 104, 135, 434–435

global antiterrorist conventions, 396–416

Global Exchange, 201

Global War on Terrorism (GWOT), 3, 8, 137, 140, 244, 257, 473

globalization, 87, 393

Goldstone, Justice Richard, 331

Gonzales, Alberto, 451

Goods Review List (GRL), economic sanctions, 426

Graham, Col. David E., 493–494

gravity of aggressive act, 54–55, 117–119

Gray, Christine, 432–434

Greece, classical, 75–76, 77

Green, Leslie C., xvii, 139–140, 235–241, 494

Greenstock, Jeremy, 410

Greenwood, Christopher, xix, xx, 143, 315, 317–318, 353–369, 372, 382, 384, 385

494

GRL (Goods Review List), economic sanctions, 426

Grotius, Hugo, 334

Group of African States, 65

Group of Islamic States, 65

Guam, 474

Guantanamo Bay, Cuba detainees, see unlawful/lawful combatancy and POW statu

Gulf War (see also Iraq/Sadam Hussein; Kuwait)

bombings, 199, 200

coalition operations and MIO, 304

future developments and, 477–478, 483

jus ad bellum, 115, 134

510

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reasons for observing jus in bello, 180

UN Security Council blockade, 249

GWOT (Global War on Terrorism), 3, 8, 137, 140, 244, 257, 473

H

habit, terrorism as, 486

Hague Convention for the Suppression of Unlawful Seizures of Aircraft, 35, 287, 3

399, 411

Hague Regulations, 156–167, 194, 232

The Hague Tribunal, 332

Haiti, 100

Hamas, 93, 393, 394

Heinegg, Wolff Heintschel von, xvii–xviii, 143, 144, 255–273, 306, 314, 494

Helle, Daniel, xx, 375–379, 387, 495

Herold, Marc, 200–201

History of the Peloponnesian War (Thucydides), 75

Hitler, Adolph, 135, 338

Hizballah, 393, 394

Hobbes, Thomas, 97, 100

hors de combat, 153

human rights

European Convention on Human Rights, 369, 469–472

Guantanamo detainees, 217, 220–222, 445–446, 470–471

international human rights law, 282–286, 317–318, 375–379, 469–471

Paris Minimum Standards of Human Rights Norms in a State of Emergency, 28

Universal Declaration of Human Rights, xviii–xix, 282–283

humanitarian intervention, use of force for, 20, 79, 91, 114, 123, 130, 144, 432

humanitarian law, international (IHL), 375–379, 469–471

humanitarian relief, 205–208, 455–456, 458–459

humanity, crimes against, 177, 363–364, 365

Hussein, Sadam, see Iraq/Sadam Hussein

Hutton, Lord, 290, 293, 367

I

ICAO (International Civil Aviation Organization), 399, 410

ICC, see International Criminal Court (ICC)

ICCPR (International Covenant on Civil and Political Rights), 103, 282, 284–286, 292

ICRC (International Committee of the Red Cross), 176, 195–196, 215, 217–218, 2

228–229, 376–377, 469

ICTR (International Criminal Tribunal for Rwanda), 339–340, 343, 364

ICTY (International Criminal Tribunal for the Former Yugoslavia), 120–121, 331–

339–340, 343, 349, 364

IHL (international humanitarian law), 375–379, 469–471

ILC, see International Law Commission (ILC)

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India, 18, 293, 462

indirect aggression, acts of, 114

Indo-China War, 163–164

Indonesia, 23, 159–160, 457

inequality and terrorism, 95

intelligence collection and intelligence services, 100, 256, 270, 279, 311, 480–481

Inter-American Convention Against Terrorism, 395, 419–422, 425

International Civil Aviation Organization (ICAO), 399, 410

International Committee of the Red Cross (ICRC), 176, 195–196, 215, 217–218, 2

228–229, 376–377, 469

International Congress for the Repression of Terrorism (1937), 330–331

International Congress of Penal Law, 1926, 329

International Convention for the Suppression of Nuclear Terrorism (Draft), 411–4

International Convention for the Suppression of Terrorist Bombing, 35, 281, 289, 3

387, 397, 399–404, 415

International Convention for the Suppression of the Financing of Terrorism, xxi, 3

377, 397, 404–411, 405, 408, 425

International Court of Justice, 25–26, 28, 52, 105, 119–120, 133, 355

International Covenant on Civil and Political Rights (ICCPR), 103, 282, 284–286, 292

International Criminal Court (ICC), xix

coalition operations, 293–296

future developments, 456–457

jurisdiction, 293–296

proper law and proper forum, 336, 341–343, 364–365, 372, 373–374

Rome Statute, 293–296, 336, 342, 357

international criminal law

armed attack, armed conflict, and ordinary criminal acts, 381–386

“atrocity crimes” proposed as unifying concept behind, 335

concept and status of, 334–337

Elements of Crimes, Rome Statute of the International Criminal Court (ICC), 3

global antiterrorist conventions, goals of, 397–399

historical ad hoc tribunals, basis for, 338–341

jurisdiction based on failure of domestic forums, 337–342

multilateral antiterrorist conventions, 344–347, 350–351, 362–363, 365–366

relationship to international human rights law and international humanitarian law

terrorism, proper law for, 320, 360–363, 375–379, 395–396

UN Security Council Resolution 1373 reinforcing current framework, 251–352

International Criminal Tribunal for Rwanda (ICTR), 339–340, 343, 364

International Criminal Tribunal for the Former Yugoslavia (ICTY), 120–121, 331–

339–340, 343, 349, 364

international human rights law, 282–286, 317–318, 375–379, 469–471

international humanitarian law (IHL), 375–379, 469–471

international law

coalition operations, role in, 276–277

crimes against humanity, 363–364, 365

criminal law, see international criminal law

512

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terrorism, proper law for, 320, 360–363, 375–379, 395–396

Westphalian international system as basis for, 83

International Law Association, 285

International Law Commission (ILC)

Articles on State Responsibility, 49–52, 121

Caroline case, 108–109

International Military Tribunal at Nuremberg, xv, xix, 338–339, 343

international/multilateral antiterrorist conventions, 344–347, 350–351, 362–363

international phenomenon, terrorism as, 353–354

International Security Assistance Force (ISAF), 16, 111, 193, 319, 458

International Terrorism, Draft Comprehensive Convention on, 277–278, 281–282

414–415

international terrorist tribunals, xix–xx, 364–369 (see also specific tribunals)

armed attack, armed conflict, and ordinary criminal acts, 381–386

deterrence, as instrument of, 347–349

historical ad hoc tribunals as model for, 338–341

history of attempts at establishing, 328–331

ICC as, 341–343

national courts, Newton’s critique in favor of, 323–352

prospects for establishment of, 328–333

UN Security Council Resolution 1373 reinforcing current framework, 251–352

usefulness and purpose, problems with establishing, 344–349

Internationally Protected Persons, Convention on the Prevention and Punishment 

against, 397, 411

Internet, terrorist use of, 393

IRA (Irish Republican Army), xx, 188, 315, 359, 395

Iran, 52–53, 63, 65, 394, 438

Iran hostages, 52–53

Iraq/Sadam Hussein (see also Gulf War)

al Qaeda, links with, 431, 436

antiterrorism conventions, 394, 395

economic sanctions, 425–426

Israel’s destruction of Baghdad reactor, 436, 478

jus ad bellum, 101, 115, 133, 134–135, 146

Operation IRAQI FREEDOM, 436–438 n. 193

preemptive use of force against, 429–438, 483–485

regime change, 146–147, 429–437, 483–485

self-defense as argument for attacking, 2, 41–42, 62, 63, 65, 434–436, 483–485

weapons of mass destruction (WMD), 430, 433, 484

Irish Republican Army (IRA), xx, 188, 315, 359, 395

irregular rendition, 312–319

irreversible course of action, 479

ISAF (International Security Assistance Force), 16, 111, 193, 319, 458

Islam, 76–77, 124–125

Islamic Conference, Organization of, 18, 278

Islamic Jihad, 393

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al-Islamiyya, 393

Israel (see also Palestine)

Baghdad reactor, destruction of, 436, 478

Eichmann trial, 316–317

El Al Airline counters, Libyan-backed attacks on, 395

future developments, 393, 410

ICC, 293

jus ad bellum, 92–94, 106 n. 87, 110, 146

Lebanon, invasion of, 189–190

proper law and proper forum, 324

self-defense issues, 41, 61, 63

suicide bombings, 225, 439

terrorism, definition of, 278

terrorist tactics, Palestinian admission of use of, 462

unlawful combatants, law on, 155–156, 162–163

Italy, 18, 63, 187, 410

J

Jackson, Justice (Nuremberg trials), 338, 339, 347–348

Japan, 18, 63, 65, 123, 248, 437, 474

Jefferson, Thomas, 323–324

Jennings, Judge Sir Robert, 120

Johnson, Clifton, 405, 407

Jordan, 63, 162

Judaism, 76, 124

judicial decisions, see case law

judicial proceedings against Taliban/al Qaeda detainees, 222–225

jurisdiction

coalition operations, 279–282, 286–287

extradition treaties, 367–368

ICC, 293–296

international terrorism, proper forum for, 337–342, 364–365

maritime vessels, 257, 298–299

multilateral antiterrorist conventions establishing grounds for domestic jurisdict

prosecution, 344–347, 350–351, 362–363, 365–366

national courts, 333, 337–342, 346–347, 364

nationality basis, 280, 282, 286–287

POW status, effect of denying, 445–446

territorial basis, 280, 286–287

treaties and conventions, 281–282

universality principle, 280–281

U.S. homeland defense issues, 480–481

jus ad bellum, xiii–xv, 356–357

alternatives to, 34–36, 356, 479–480

defined, 9 n. 6

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evolving concept of, 79–91, 232–233

future use of armed force against terrorists, 429–438

geopolitical changes, effect of, 80–91, 122–126

historical background, 75–80

historical figures’ violations, acceptance of, 106 n. 87

jus in bello and, 181–183, 247–248

non-state entities, see non-state entities

normative framework for use of force, 19–24

panel, 5

positivism, normativism, and normative positivism, 75–80

proportionality, 183–184, 247–248

“scale and effects” as to what constitutes an armed attack, 21 n. 46, 25–27, 33

self-defense, see self-defense

terrorism as issue of, 106–108

terrorism’s difference from other traditional wars, 90–91

UN Charter, intent and interpretation of, 102–106

jus cogens norm, UN Charter’s prohibition on use of force as, 103

jus in bello, xiii, xv–xvii, 357

armed attack, armed conflict, and ordinary criminal acts, 381–386

bombing techniques, 197–205

cassus belli, what constitutes, 354–355

civilians deliberately used as shields, 243–245

combatants, lawful/unlawful, see unlawful/lawful combatancy and POW status

counter-terrorist military operations, 184–190

distinguishing combatants and civilians, 151–153, 170, 197–205, 198, 232, 243–

existence of armed conflict between al Qaeda and United States, 357–360, 381

formal applicability to counter-terrorist operations, xvi–xvii, 175–230 (see also m

specific entries)

ICRC statements regarding, 195–196

jus ad bellum and, 181–183, 247–248

Operation ENDURING FREEDOM, 191–208, 249–250

potential problems in applying to counter-terrorist operations, 184–186

POWs, 208–225 (see also unlawful/lawful combatancy and POW status)

previous counter-terrorist operations, applicability in, 187–190

proportionality, 183–184, 247–248

reasons for adhering to, 181, 190, 231–233, 244

revision of law in light of present developments, 225–227, 230, 251

scope of application, 179–181, 229–230

terrorism as issue of, 106–108, 354–360, 395–396

justice as sovereign principle, 324–326, 328, 352

justifications for terrorism, 114–115, 377, 439, 462

K

Kagan, Robert, 90, 96–100

Kant, Immanuel, 97, 101

515

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Karzai, Hamed, 458

Kashmir, 462

Kassem case, 162–163

Kei case, 164, 166

Kellenberger, Jakob, 469

Kellman, Barry, 413

Kellogg-Briand Pact of 1928, 78, 83, 132, 141

Kenyan US Embassy bombings, see East African US Embassy bombings, 1998

Ker v. Illinois, 315, 318

Kim Il Sung, 135

Korea

North Korea, 135, 394, 438

South Korea, 18, 63, 135, 474

Kosovo, see Yugoslavia, Bosnia, Serbia, and Kosovo

Kurds, 41–42

Kuwait, 23, 62, 115, 304, 425, 430, 483, 485 (see also Gulf War)

L

La Belle disco bombing, Berlin, 60–61, 63, 395

Laden, Osama bin, see bin Laden, Osama

Laos, 457

Latin America (see also individual countries)

incidence of terrorist attacks in, 394–395

OAS (Organization of American States), 17, 355, 395, 416, 419–422

law

conservative nature of, 80–82

crimes against humanity, 363–364, 365

international, see international law

policy imperatives and retooling, 360

reactive nature of, 9–10

terrorism, proper law for, 320, 360–363, 375–379, 395–396

training in law enforcement, 456, 458

laws of war, see jus in bello

League of Arab States, 65, 294

League of Nations, 78, 83, 329, 415

Lebanon, 189–190

levée en masse, 155–156, 165

Lewis, Bernard, 88, 94

lex ferenda and lex lata, 19

liberals vs. conservatives, 91–96, 126–127

Libya, 21, 24, 60–61, 63–65, 293, 394, 395, 426–428

Lisle, Jacques de, 438 n. 193

Lockerbie, see Pan Am Flight 103 (Lockerbie)

Lockerbie (Pan Am Flight 103), 21, 64, 294, 426–428

London Charter, Nuremberg Trials, 339

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Lotus case, 39, 141

M

Machain case (United States v. Alvarez-Machain), 312, 315–316, 317–318

Malaysia, 160, 187, 457

Mandela, Nelson, 106 n. 87

MAPA (Mine Action Program for Afghanistan), 204

maritime interception and interdiction operations (MIO), xvii–xviii, 255–273

areas of maritime interdiction, right to establish, 267–268

Australia, 301–302

Canada, 309–311

cargo, seizure of, 270, 272

goals and objectives, 255–257

legal basis for, 257–268, 297–299, 301–302

legal restrictions on, 268–273

non-state entities, 260, 267, 305

piracy law, 260, 297, 298

POW status of individuals taken, 271

proportionality principle, 266, 268

self-defense, 255–257, 264–266, 272

state sponsorship of terrorist groups, 265–266

state vs. merchant vessels and civil aircraft, distinguishing, 269–270

United Kingdom, 304, 305–306

vessels, confiscation of, 272

Martens Clause, 377

Mayer, Ann Elisabeth, 77

media

Guantanamo detainees, photographs of processing of, 217

role in Operation ENDURING FREEDOM, 192

medical personnel as targets, removal of identifying markers by, 252

Mexico, 41, 77, 312, 315–316

militarist fallacy, 91–96

military attacks in response to terrorism, see counter-terrorist military operations

military commissions used to try terrorists, 222–225, 233, 331–332, 357, 386–387, 

Milosevic, Slobodan, 99, 243, 339, 348, 349

Mine Action Program for Afghanistan (MAPA), 204

MIO, see maritime interception and interdiction operations (MIO)

mission and threat, ROE defined by, 319

Mladic, General, 99

Mohamed Ali case, 159–160, 166

Montgomery, Lt. Col. Tony E., xvii, 243–245, 495

Montreal Convention for the Suppression of Unlawful Acts against the Safety of C

Aviation, 35, 287, 361, 366, 399, 411

Moore, John Basset, 39

moral reasons for use of force, 20, 79–80

517

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Moscow Declaration, 338–339

Müllerson, Rein, xiv–xv, 75–127, 134, 140, 495

multilateral antiterrorist conventions, 344–347, 350–351, 362–363, 365–366

Munich Olympics, 1972, 324, 463

murder/killing and terrorism, 361, 363–364, 377, 387–388

Murphy, John F., xx–xxi, 315–316, 391–440, 478, 479, 484–485, 495–496

Murphy, Sean, 104–105

Myers, General Richard B., 198

Myjer, Eric, 87, 111 n. 99, 112

N

An-Na’im, Abdullahi Ahmed, 107 n. 88

Nairobi US Embassy bombings, see East African US Embassy bombings, 1998

Napoleonic Wars, 83

national courts as forum for terrorist trials, xix–xx, 323–328, 364–369

armed attack, armed conflict, and ordinary criminal acts, 381–386

extradition, xix, 365–369

international criminal law based on national norms and domestic crimes, 334–3

362

jurisdiction of sovereign states, 333, 337–342, 346–347, 364

legitimacy and fairness, perception of, 291–293, 331–333, 366

multilateral antiterrorist conventions establishing grounds for domestic jurisdict

prosecution, 344–347, 350–351, 362–363, 365–366

political will of sovereign states, 333, 337–342, 371–372

self-defense actions, criminal law enforcement as alternative to, 34–36, 356

UN Security Council Resolution 1373 reinforcing current framework, 251–352

national laws on terrorism and coalition operations, 277–279

national security

Canadian legislation, 311

justice used to achieve goals of, 326–327

nationality, see citizens

NATO, see North Atlantic Treaty Organization (NATO)

Nazis, 123, 247, 316–317, 338–339 (see also Nuremberg Trials)

necessity principle, self-defense, 27–28, 34–36, 67, 108–111

Netanyahu, Benjamin, 92, 94

Netherlands, 18, 101, 427–428

neutrality

erosion of concept of, 182

“for us or against us” argument, 47, 91–96, 197, 235

maritime neutrality, 258–259, 269, 272–273

Operation ENDURING FREEDOM’S lack of scope for, 196–197

tight of states to be neutral, 182

New Zealand, 18, 290

Newton, Lt. Col. Michael A., xix–xx, 323–352, 364, 371, 381–388, 496

Nicaragua case, 26, 51–52, 54–56, 70, 117, 119–120, 133, 135, 355

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non-state entities, xiv–xv, xx, 17, 355

community consensus regarding, 66–67, 112–115

MIO, 260, 267, 304

piracy laws, 134, 260

self-defense against, 33–34, 38–47, 48–54, 66–67, 355–356

state responsibility for armed attacks by, 38–47, 68–70, 110, 141–142

state sponsorship of non-state terrorist entities, 54–57, 68–70, 119–120

normativism, positivism, and normative positivism, 75–80

North Atlantic Treaty Organization (NATO)

future developments, 467–468

jus ad bellum, 113

MIO, 265

proper law and proper forum for terrorism, 467–468

self-defense, 16–17, 20, 23, 24, 34, 71, 72

North Korea, 135, 394, 438

Northern Alliance, 191, 192, 209–210, 227, 236, 238, 245

Northern Ireland, xx, 188, 315, 359, 395

Nuccio, Richard A., 496–497

nuclear weapons

Convention on the Physical Protection of Nuclear Material, 412

Draft International Convention for the Suppression of Nuclear Terrorism, 411–

ICRC statement regarding, 195

International Court of Justice Nuclear Weapons opinion, 28

Iraq/ Hussein’s attempts to obtain, 146

Nuremberg Trials, xv, xix, 338–339, 343

Nye, Joseph, 393

O

OAS (Organization of American States), 17, 355, 395, 416, 419–422

OAU (Organization of African Unity) Convention on the Prevention and Combat

Terrorism, 419

O’Connell, Mary Ellen, 70–71

Office of Homeland Security/Homeland Security Council, 12

Oman, 18

Operation ALLIED FORCE, 23, 348

Operation ANACONDA, 458

Operation BARBAROSSA, 247

Operation DENY FLIGHT, 23

Operation DESERT STORM, 115, 123

Operation EL DORADO CANYON, 60–61, 68, 72

Operation ENDURING FREEDOM, xvii, 14–18, 458 (see also Afghanistan)

applicability of jus in bello to, 192–196

Australia, 277–279, 285–286, 288, 290, 295, 301–302

bombing pause, call for, 206

bombing techniques, 197–205

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chemical weapons, 205

coalition operations, 235–241 (see also coalition operations)

humanitarian and human rights law, 468–471

humanitarian relief, 205–208

jus in bello issues, 191–208, 249–250

media role in, 192

MIO, see maritime interception and interdiction operations (MIO)

neutrality, lack of scope for, 196–197

neutrality, scope for, 182

nontraditional nature of enemy, 298

Northern Alliance, 191, 192, 209–210, 227, 238

POW disasters in Afghanistan, 208–210

POW status of Taliban and al Qaeda prisoners, 171–174, 211–222, 441–454, 4

also unlawful/lawful combatancy and POW status)

refugees, 207–208

self-defense, 13

United Kingdom, 237, 303–307

Operation IRAQI FREEDOM, 436–438 n. 193

opinio juris, 78

Organization for Security and Cooperation in Europe (OSCE), 265

Organization of African Unity (OAU) Convention on the Prevention and Combat

Terrorism, 419

Organization of American States (OAS), 17, 355, 395, 416, 419–422

Organization of the Islamic Conference, 18, 278

Organized Crime, Convention against Transnational, 415–416

O’Rourke, Commander Kevin, xix, 297–299, 314–315

OSCE (Organization for Security and Cooperation in Europe), 265

P

Pacific Command coordination group framework, 473–475, 480

Pacific theater, WWII, 248

pacifist fallacy, 91–96

Pakistan, 18, 63, 65, 69, 129, 236, 297, 456, 462

Palestine (see also Israel)

future developments, 462

Islamic Jihad, 393

jus ad bellum, 115

PLO (Palestine Liberation Organization), 41, 189

Popular Front for the Liberation of Palestine, 162–163

suicide bombings, 225, 439

terrorism, definition of, 278

Pan Am Flight 103 (Lockerbie), 21, 64, 294, 426–428

Panama, 394

Paraguay, 394

Paris, Declaration of, 152

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partisans of WWII, lawful combatancy status of, 164–165, 171

Pastrana, Andres, 395

Pearl Harbor, 248

Peloponnesian War, 75

penal law, International Congress of (1936), 329 (see also criminal law)

Pentagon, 9/11 attack on, see September 11 attacks

Perera, Rohan, 406

Perez de Cuellar, Javier, 61

Perron, Lt. Col. Jean-Guy, xix, 309–311, 320, 497

Pershing, General John, 41

Peru, 372, 395

Phalangists, 189

Philippines, 2, 393, 438

Pictet, Jean, 215

piracy, 134, 249, 260, 297, 298

PLO (Palestine Liberation Organization), 41, 189

police force training, 456, 458

political correctness, 126–127

political offender exception to extradition agreements, 286–288, 292, 368

political will of sovereign states to prosecute terrorists, 333, 337–342, 371–372, 455

Ponte, Carla Del, 332

Popular Front for the Liberation of Palestine, 162–163

Portugal, 113

positivism, normativism, and normative positivism, 75–80

Posner, Richard, 391

poverty and terrorism, 95

POWs, see prisoners of war (POWs)

pre-modern vs. post-modern societies, 96–102, 122–126, 134

preemptive use of force

“axis of evil,” against, 438

Iraq/Sadam Hussein, against, 429–438, 483–485

self-defense, anticipatory, 32, 38, 116–119, 133, 134–135, 435–437, 487

prisoners of war (POWs)

Afghanistani POW disasters, 208–210

release of, 222

status as, see unlawful/lawful combatancy and POW status

proper forum, see forum

proper law for terrorism and terrorists, 320, 360–363, 375–379, 395–396

proportionality principle

jus in bello/jus ad bellum, 183–184, 247–248

MIO, 266, 268

self-defense, 28–30, 36–38, 67

Prosper, Pierre-Richard, 225

Protocol I, Geneva Conventions, 167–170, 186–187, 213–216

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el Qadhafi, Muammar, 60

al Qaeda, see al Qaeda, under a

Qala-e Jhangi Fort, POW revolt at, 208–209

Qatar, 18

Quirin case, 154, 160, 214

R

Raslam, Karim, 125

Red Brigade, 187

Red Cross (International Committee, ICRC), 176, 195–196, 215, 217–218, 220–22

228–229, 376–377, 469

refugees, 207–208

regime change in Iraq, 146–147

regional agreements

antiterrorist conventions, 416–424

counter-terrorism programs, 456, 457, 473–475, 480

Reisman, Michael, 59 n. 150, 60 n. 151, 66, 118, 415, 436

religion, 76–77, 94–95, 124–127

Rempt, Rear Admiral Rodney P., 1–3, 137, 497

rendition, irregular, 312–319

replenishment at sea, 257

repression and terrorism, 95

reprisals, defensive, 116–119

Resolution 1373, United Nations Security Council, xiii, xiv, xviii (see also other Re

under United Nations Security Council Resolutions)

extradition, 288–289

future developments, 408, 463–464, 470

international dimensions of Afghan conflict, recognition of, 193

jus ad bellum, 110, 145

maritime interception and interdiction operations (MIO), 260–262, 264, 265, 2

MIO, 260–262

proper forum and proper law for terrorism, 350–352, 355

self-defense, 15, 34

Rhodesia, 112

Rice, Condoleezza, 437, 440

Richard, Ryan, 264

Rio Treaty, 17

Rishikof, Harvey, 385, 497–498

Roberts, Sir Adam, xvi–xvii, 175–230, 232, 248, 251, 386, 498

Robinson, Mary, 469

ROE (rules of engagement), 180, 233, 248, 302, 303–304, 310, 319

“rogue” nations, 91

Rome Statute of the International Criminal Court (ICC), 293–296, 336, 342, 357

Roosevelt, President Franklin D., 323, 338

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rules of engagement (ROE), 180, 233, 248, 302, 303–304, 310, 319

Rumsfeld, Donald, 183, 199, 201, 205, 217

Russia

future developments, 394, 418, 437, 438 n. 193

ICC, 293

jus ad bellum, 89 n. 35, 140, 247

self-defense, 18, 61, 63, 65

terrorism, defining, 305

Rwanda, 98, 100, 339–340, 343, 364

S

Saalfeld, Michael, xxii, 467–472, 498

SAARC (South Asian Association for Regional Cooperation) Regional Conventio

Suppression of Terrorism, 416–417, 424

Saint Augustine of Hippo, 76

Saint Thomas Aquinas, 76

San Remo Manual, 310

Sandinistas, see Nicaragua case

Saudi Arabia, 18, 69

Schmitt, Michael N., xiv, 7–73, 105, 129–134, 141, 142, 145, 147, 498–499

Schwarzenberger, Georg, 162

Schwebel, Judge Stephen, 55, 120

Scott of Foscote, Lord, 290, 293

sea, law of the (LOS Convention), 81, 82, 256–257, 298, 299, 417

Secret Service, 480

self-defense, xiv, 7–73

abduction of terrorists, 315

al Qaeda, US actions in self-defense against, 33–47

basic principles of, 25–32

characteristics of terrorist attacks and responses, 111–119

civilians carrying light arms for purposes of, 164–165

coalition operations, 319–320

criminal law enforcement as alternative, 34–36

criteria for, 479

cross-border counter-terrorist attacks in pursuit of non-state entities, 38–47, 68

evidence requirement, 70–72

evolving standard of, 57–72

future attacks, anticipatory responses to, 32, 38, 116–119, 133, 134–135, 435–4

geopolitical circumstances, change in, 122–123

imminency principle, 30–31, 38, 66–67, 115–116, 138, 436, 478

Iraq/Sadam Hussein, 2, 41–42, 62, 63, 65, 434–436, 483–485

irreversible course of action, 479

MIO, 255–257, 264–266, 272

necessity principle, 27–28, 34–36, 67, 108–111

non-state entities, 33–34, 38–47, 48–54, 66–67, 355–356

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Operation ENDURING FREEDOM, 468–469

pre-combat (unconditional) demands, sufficiency of, 44–46

proportionality principle, 28–30, 36–38, 67

purpose of, 68

regime change in Iraq, 146–147

“scale and effects” as to what constitutes an armed attack, 21 n. 46, 25–27, 33

September 11 attacks and aftermath, 9–19

state responsibility for actions of non-state entity within its borders, 48–54, 142

state sponsorship of terrorists, 54–57, 68–70

Taliban, US actions in self-defense against, 47–57

United Kingdom and coalition operations, 304

September 11 attacks, xi, xiii–xv, xx, xxii (see also al Qaeda; more specific topics)

armed conflict between al Qaeda and United States, existence of, 357–360, 381

conduct in accordance with jus in bello and POW status of al Qaeda detainees, 

cost of, 130–131

impact of, 84, 87, 91, 353, 439, 461–465

justice as goal following, 324–325

qualitative/quantitative distinctiveness of, 7–8

statement of facts and aftermath, 9–19

threat to sovereignty of US from, 232

“trend” in terrorism, as, 392, 393

Serbia, see Yugoslavia, Bosnia, Serbia, and Kosovo

Shaltut, Sheikh, 77

Shearer, Ivan, xviii–xix, 275–296, 312, 319, 499

Shehada, Sheikh Salah, 93

Shining Path, 395

Simon, Jeffrey, 392

Singapore, 160, 457

Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, 285

Slaughter, Anne-Marie, 104, 116

slave trade, vessels engaged in, 299

smallpox, 146

Smith, Ian, 112

social phenomenon, terrorism viewed as, 461–462

Somalia, 23, 100, 140, 263, 272, 283

South Africa, 41

South America, see Latin America

South Asian Association for Regional Cooperation (SAARC) Regional Conventio

Suppression of Terrorism, 416–417, 424

South Korea, 18, 63, 135, 474

Soviet Union, see Russia

space law, 81, 82

Spain, 65

Sparta, 75

special operations forces, US, 244–245

Sri Lankan Tigers of Tamil Eelan, 393–394

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456–457

state sponsorship of terrorist groups, 54–57, 68–70, 119–122, 265–266, 394

Stone, Chief Justice, 154

Sudan, 24, 42, 64, 65, 70, 394, 395, 428

suicide bombings, Palestinian, 225, 439

Sun Tzu, 134

Supervielle, Col. Manuel E. F., xx, 371–374, 384–385, 499–500

Sweden, 98

Syria, 394

T

Tadic, Dusco (Prosecutor v. Tadic/Dusco Tadic case), 24 n. 56, 56–57, 120, 294 n. 5

Tajikistan, 18

Taliban, ix, xiii, xiv, xvi, xvii, 2 (see also Afghanistan)

al Qaeda connections, 12–13, 40, 47–48, 53, 138, 442, 446–447

detainees held in Guantanamo Bay, Cuba, see unlawful/lawful combatancy and PO

distinguishing from al Qaeda, 139, 140

economic sanctions, 425, 428

judicial proceedings against Taliban/al Qaeda detainees, 222–225

legitimacy of government by, 69, 129–135, 139, 140–141, 143, 446

POW status of Taliban and al Qaeda prisoners, 171–174, 441–454, 468–471 (se

unlawful/lawful combatancy and POW status)

self-defense against, US actions in, 47–57

state sponsorship of al Qaeda, 54–57, 68–70

Tamil Tigers, 393–394

Tanzanian US Embassy bombings, see East African US Embassy bombings, 1998

technology, terrorists’ use of, 100

territorial basis for jurisdiction, 280, 286–287

terrorism and terrorists (see also more specific entries)

cassus belli, what constitutes, 354–355

casual/indiscriminate use of term, 139–140, 377

characteristics of terrorist attacks and responses, 111–119

crimes against humanity, terrorism as, 363–364, 365

defining, xviii, 277–279, 305, 387

dichotomy of responses to, 91–96

habit, terrorism as, 486

international phenomenon, terrorism as, 353–354

jus ad bellum and jus in bello, applicability of, 106–108, 354–360, 395–396

justifications for terrorism, 114–115, 377, 439, 462

national laws on terrorism and coalition operations, 277–279

proper law for, 320, 360–363, 375–379, 395–396

social phenomenon vs. weapon, 461–462

traditional wars, terrorism’s difference from, 90–91

“trends” in terrorism, xx, 391–296

Terry, Col. James P., xx, xxi–xxii, 441–459, 473, 475, 485, 500

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third states’ maritime vessels, interception and interdiction of, see maritime interce

interdiction operations (MIO)

Thirty Years War, 83

Thomas Aquinas (saint), 76

Thompson, Sir Robert, 187

threat and mission, ROE defined by, 319

Thucydides, 75

Tibi, Bassam, 88, 100 n. 68, 124, 125

Tigers of Tamil Eelam, 393–394

Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircra

Tora Bora, 200, 204–205

Toscanino case (United States v. Toscanino), 319

training in law enforcement, 456, 458

Transnational Organized Crime, Convention against, 415–416

Travalio, Gregory, 116, 122

treaties and conventions, 396–424 (see also specific titles)

effectiveness of, 84–86, 396–399, 477

extradition treaties, 286, 291, 365–369

global conventions, 396–416

implementation of, 439

jurisdiction, 281–282

jus in bello, 179, 229, 233

MIO, 258

multilateral antiterrorist conventions, 344–347, 350–351, 362–363, 365–366

piecemeal vs. comprehensive approach, 397–399

regional conventions, 416–424

Treaty on Cooperation among the States Members of the Commonwealth of Indep

States in Combating Terrorism, 418

“trends” in terrorism, xx, 391–296

Trenin, Dmitri, 123

Tunisia, 41

Turkey, 18, 41–42, 293

Turkmenistan, 456

Turner, Robert F., xv, 129–135, 140–142, 143–144, 318–319, 446, 500

U

Uganda, 110

unconditional demands, 44–46

uniforms, requirement that lawful combatants wear, 160–162, 170, 171–172, 244–

unilateral use of force, 59

UNITA, 112

United Arab Emirates, 18, 69

United Kingdom

coalition operations, 303–307, 319

counter-terrorist military operations, application of jus in bello to, 187–188

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future developments, 410, 427, 432

Guantanamo detainees, concerns regarding, 239, 241

Gulf region, historic involvement in, 304

IRA (Irish Republican Army), xx, 188, 315, 359, 395

jus ad bellum, 77

MIO, 304, 305–306

mission and threat, ROE defined by, 319

Operation ENDURING FREEDOM, 237, 303–307

Operation IRAQI FREEDOM, 436–438 n. 193

proper law and proper forum for terrorists, 359, 367

self-defense, 14–15, 18, 61, 63, 65

terrorism, definition of, 278

United Nations

antiterrorism conventions, xx–xxi, 396–397 (see also specific conventions)

“armed attacks,” what constitute, 21 n. 46, 25–27, 33, 66–67, 112–115

Article 2(4) of Charter, 19–24, 33, 38, 131

Article 39 of Charter, 23, 33–34

Article 42 of Charter, 16, 19, 483

Article 51 of Charter, see Article 51 of United Nations Charter

Article 103 of Charter, 249

Article 110 of Charter, 306

authorization of use of force, 16, 24, 143, 145, 275–276, 432

common security framework, regarded as, 440

Counter-Terrorism Committee (CTC), 464–465

economic sanctions, 425–429

effect of 9/11 attacks on, xxii, 461–465

enforcement operations, 19, 23–24

General Assembly Resolution 2131, 48

geo-political changes, effect of, 80–91, 122–126

intent and interpretation of Charter, 102–106, 134, 137–138

Iraq and Saddam Hussein’s violations of Security Council Resolutions, 146

law of the sea (LOS) convention, 81, 82, 256–257, 298, 299, 417

multilateral antiterrorist conventions, 344–347, 350–351, 362–363, 365–366

non-state vs. state entities, self-defense against, 33–34

normative framework for use of force, 19–24

normative positivism of Charter, movement away from, 79–80

notification requirements, 14, 25, 64

powers of Security Council, 248–249

September 11 attacks, response to, 15–16, 23–24

Terrorism Prevention Branch, 411

United Nations Security Council Resolutions

Resolution 678, 433, 485

Resolution 687, 430, 438 n. 193, 484, 485

Resolution 688, 432

Resolution 733, 263

Resolution 1154, 433

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Resolution 1205, 433

Resolution 1214, 442

Resolution 1267, 196–197, 442, 446, 465

Resolution 1269, 22

Resolution 1333, 45, 442, 446

Resolution 1356, 263, 264

Resolution 1368, 15, 34, 110, 145, 193, 197, 260, 265, 355, 463

Resolution 1373, see Resolution 1373, United Nations Security Council

Resolution 1377, 23

Resolution 1378, 15

Resolution 1386, 15, 119

Resolution 1441, 437–438 n. 193

Resolution 1445, 465

United States (see also more specific entries)

armed conflict between al Qaeda and, existence of, 357–360, 381–386, 470, 47

concerns over thinking about terrorism in laws of war framework, 186–187

Constitution, 446

European concepts as to war on terrorism vs., 96–102

extradition agreement with United Kingdom, 367

hyperpower following Cold War, 79–80

ICC, opposition to, see International Criminal Court (ICC)

Iraq, regime change in, 429–430, 437

special operations forces, 244–245

Standing Rules of Engagement, 180, 233, 248

United States v. Alvarez-Machain, 312, 315–316, 317–318

United States v. Toscanino, 319

Universal Declaration of Human Rights, xviii–xix, 282–283

universality principle of jurisdiction, 280–281

unlawful/lawful combatancy and POW status, xv–xvi, xvii, 151–174, 210–222, 378

441–454 (see also Geneva Conventions)

Afghanistan war, specific applicability to, 171–174, 211–222, 441–454, 468–47

allegiance/non-allegiance to the detaining power, 163–164, 173

belonging to a party in the conflict, 162–163

Bush Administration’s position as to al Qaeda and Taliban prisoners, 444–445

carrying arms openly, 162, 169–170, 171, 172

coalition operations threatened by, 227–228, 238–241

concerns regarding treatment of Guantanamo detainees, 217–219

conduct in accordance with jus in bello, 162, 169, 172–173

distinguishing combatants and civilians, 151–153, 170

distinguishing lawful and unlawful combatants, 153–156, 211–217

distinguishing (or not distinguishing) al Qaeda from Taliban fighters, 172–173, 

445–447

distinguishing war criminals from unlawful combatants, 155

doubt as to status, 172, 230

eligibility for POW status, 448–450, 451

entitlement to POW status, 156–167, 211–217, 443–444, 471

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p 

group vs. individual observance of laws regarding, 166–167

Hague Regulations, 156–167

human rights and humanitarian law, 217, 220–222, 445–446, 470–471

Israeli special legislation on detention of unlawful combatants, 155–156

judicial effects of denying POW status to al Qaeda detainees, 445–446

judicial proceedings against detainees, 222–225

jus in bello, 210–222

Lebanon, Israel’s invasion of, 189

levée en masse, 155–156, 165

maritime interception and interdiction operations (MIO), 271

medical personnel as targets, removal of identifying markers by, 252

military commissions, trial of detainees before, 222–225, 233, 451–453

Northern Ireland/IRA, 188

organizational requirements for lawful combatants, 162

Protocol I, 167–170, 186–187, 213–216

purpose of taking prisoners of war, 153

recognition of Taliban government, 447–448

regular vs. irregular forces, 159–167

release of prisoners, 222

rights of detainees, 445–446

self-defense issues, 2–3, 19

subordination to a responsible commander, 160, 172

terminological problems regarding, 214–215

UN Charter paradigm and, 137–138

uniform or fixed distinct emblem recognizable at a distance, 160–162, 170, 171–

244–245

US combatants not conforming to requirements, 173, 213, 244–245, 251–252

US elucidation of position, 217–222, 227–228

Vietnam, 188–189, 442–443

wounded combatants, 153

UNSCOM, 433

USS Cole, attack on, 477

UTA Flight 722, 21, 426–428

Uzbekistan, 18, 456

V

Vattel, Emerich de, 77

Venezuela, 77, 394

Vera Cruz incident, 77

Victoria, Franciscus, 76

Vienna Centre for International Crime Prevention, 411

Vienna Convention on the Law of Treaties, 484

Vietnam, 41, 100, 188–189, 442–443

Villa, Pancho, 41

von Heinegg, Wolff Heintschel, xvii–xviii, 143, 144, 255–273, 306, 314, 494

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W

war criminals distinguished from unlawful combatants, 155

war, laws of, see jus in bello

Warner, Daniel, 94

weapon, terrorism viewed as, 461–462

weapons of mass destruction (WMD), 91, 116, 146, 430, 433, 436, 478, 484 (see al

biological weapons; chemical weapons; nuclear weapons)

Webster, Daniel, 27, 43, 77, 138, 335, 436

White, Nigel, 87, 111 n. 99, 112

Wilber, Ken, 91

Winfrey, Capt. Ronald R., xxii, 473–475, 480, 500

WMD (weapons of mass destruction), 91, 116, 146, 430, 433, 436, 478, 484 (see al

biological weapons; chemical weapons; nuclear weapons)

World Trade Center

1993 bombing, 11, 294

September 11 attack on, see September 11 attacks

World War I and World War II, influence of, 2, 58, 83–85, 123, 132, 247–248, 477

World War II partisans, lawful combatancy status, 164–165, 171

wounded combatants, 153

Y-Z

Yemen, 65, 480

Yugoslavia, Bosnia, Serbia, and Kosovo

Alexander of Yugoslavia (prince), assassination of (1934), 329

bombings, 199, 201 203–204

ICRC statements on detainees, 220

International Criminal Tribunal for the Former Yugoslavia (ICTY), 120–121, 3

339–340, 343, 349, 364

jus ad bellum, 84, 101, 102, 112, 120

jus in bello, observance of, 181

neutrality, erosion of concept of, 182

proper forum and proper law for terrorism, 329, 339, 348–349

self-defense, 23, 56

Zimbabwe, 112

530

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Thursday, April 28, 2005 8:22:05 AM