Apocalyptic Terrorism: 

The Case for Preventive Action

by Joseph McMillan

Strategic Forum

T

he judicious use of decisive force

against terrorists and their support

structures is a vital component of the

U.S. strategy to defeat global terrorism. Another component is the development of a

consensus that terrorism is contrary to international norms of behavior. Achieving such a

consensus will be possible only if the United

States can convince the world community

that the counterterrorist struggle is being

conducted in accordance with these norms.

The United States, therefore, needs to

articulate a strong case for the right of antiterrorist intervention based on three concepts

adapted from international law:

■ the classification of terrorists as the common enemy of humankind

■ a renewed emphasis on sovereign responsibility as the corollary of sovereign rights

■ application of the logic of the inherent right

of self-defense to the realities of 21st-century

terrorism.

Achieving global consensus on a doctrine based upon these points will not be

easy. But by articulating these principles and

building on such steps as the North Atlantic

Treaty Organization and Organization of

American States characterizations of the 9/11

strikes as “armed attacks,” the United States

and its allies can create a body of customary

international law around which global consensus in support of a right of antiterrorist

intervention can coalesce.

The nature and capabilities of 21st-century

terrorists, especially those such as al Qaeda and

its allies who pursue an apocalyptic agenda,

make it essential that governments can take

decisive preventive action, including the use of

force, rather than waiting to respond to attacks

after the fact. In certain circumstances, this

means being able to conduct military operations on the territory of foreign countries without their consent.

Immediately after 9/11, there was little

need to ponder the legitimacy of such action;

global opinion expected—indeed, demanded—

a robust response to the attacks that took place.

Three years later, however, a worldwide consensus can no longer be taken for granted. Increasingly, voices are heard arguing that the United

States lacks a sound legal basis for resorting to

force in its global campaign against terrorism.

Maintaining international support for the

war on terrorism demands that the United

States confront head-on the complex issues

raised by critics by articulating and generating

support for an unassailable, legitimate basis for

current and future action. In fact, the United

States has a strong case that operations against

terrorists on foreign soil are justified under

international law and consistent with the

United Nations (UN) Charter. 

A Different Threat

Today’s terrorist threat is decidedly different from that of the late 20th century. The radical Islamist terrorists who constitute the gravest

danger operate from different motivations than

their predecessors of 20 to 30 years ago, or even

more territorially motivated jihadists of today

such as Hamas and Hezbollah. As Bruce Hoffman observed several years before the attacks of

September 11, terrorism motivated by extreme

interpretations of religious doctrine “assumes a

transcendental dimension, and its perpetrators

are consequently unconstrained by the political,

moral or practical constraints that may affect

other terrorists.”1 No longer can we take for

granted, as Brian Jenkins put it, that “terrorists

want a lot of people watching and a lot of

people listening and not a lot of people dead.”2

Some terrorists, at least, want thousands of

people dead, and the fruits of globalization have

afforded them such extraordinary reach and

lethality that they can now make that wish

come true.

A different threat implies a different strategy for combating it. It is not enough to plan

defensive measures premised on raising the

risks to would-be attackers if they are bent on

killing themselves as an integral part of the

terrorist act. In the best case, defenses may be

able to hold losses at a level to which the public becomes inured, but they can never be so

effective as to deter future attacks or provide a

guarantee against terrorist successes. Efforts to

undercut popular support for terrorist movements and stem the flow of recruits by addressing the underlying causes of terrorism are

essential, but the agenda of Islamist terrorists

is so transcendent and the grievances that

their supporters harbor so sweeping that

addressing root causes will take

decades at least. Finally, the

attacks of 9/11 drove home

that the traditional approach of relying on

the criminal justice

No. 212

November 2004

Institute for National Strategic Studies

National Defense University

Key Points

No. 212, November 2004

Post-9/11 Critic

Issues Serie
system to capture and prosecute terrorists after

the fact was inadequate to prevent them from

doing catastrophic harm.

Meeting the terrorist challenge therefore

requires a combination of defensive and offensive measures. Offensive in this context does

not mean only measures using force but rather

the entire spectrum of military and nonmilitary capabilities that can actively be brought to

bear for the purpose of disabling and destroying terrorists, their organizations, and their

support structures without waiting for them to

attack again.

Experience has shown that when a state

relies on prolonged or excessive use of violence

against terrorists or insurgents, its own legitimacy tends to be eroded while the terrorists’

credibility is enhanced. This process can further alienate those already sympathetic to the

cause espoused by the terrorists, generate more

recruits, and reduce the will of the target population to resist. In many cases, tasks that could

be carried out by use of force—even the physical destruction of terrorist capabilities—could

also be accomplished through diplomatic,

intelligence, and law enforcement means.

Nonmilitary action is therefore preferable—

when it can be effective—purely as a matter of

policy, even without taking international legal

issues into account.

Nevertheless, in some situations decisionmakers in the United States or other countries

will find it necessary to employ force against

terrorist organizations, operatives, or infrastructures in foreign countries. Moreover, it will

sometimes be necessary to do so without the

consent of the government on whose territory

force is used. Terrorists may be planning to

stage an operation from a country whose government is unable to exercise full control over

its own territory but is equally unable to agree

to the presence of foreign forces on its soil. They

could be operating with the witting acquiescence of a corrupt or incompetent government

or even be in league with it. Even where the

host government is prepared in principle to act

against terrorists, there might be situations in

which the threat is so pressing, the target is of

such paramount value, the intelligence about it

so perishable, and the risk that discussions with

the host government will compromise the

operation so high, that a strike must be conducted completely without warning.

International Justification

The question is how this reality—that

states targeted by terrorists will find themselves

compelled to use force on foreign soil without

the consent of the foreign government—could

be reconciled with the conventional understanding of the principles of international law,

which emphasizes noninterference in the affairs

of other sovereigns and renunciation of the use

of force. Some might argue that the issue is

purely academic—that in such cases, raison

d’état will simply trump the niceties of international law. But the issue is actually far from

academic. On the contrary, the United States

and other countries that are in the forefront of

the fight against global terrorism have two

strong realpolitik interests in developing and

articulating an international legal theory that

can accommodate such use of force.

First, from a practical point of view, most

actions against terrorist organizations have to

be conducted by, or at least in cooperation with,

the governments of the states in which the

terrorists are to be found. No organization—

not even the Department of Defense—has the

resources, knowledge, or contacts necessary to

locate, identify, and target terrorist leaders,

operatives, and supporters everywhere in the

world. Strictly from an American point of view,

foreign governments will be more likely to

cooperate with the United States if they are

satisfied that the U.S. antiterrorist campaign is

founded on a sound legal basis. Conversely, they

will be less cooperative if they believe key aspects of the American strategy, such as unilateral military action, are beyond the legal pale.

Secondly, a core element in the ultimate

defeat of terrorism worldwide must be to build a

global grassroots consensus that “all acts of

terrorism are illegitimate, so that terrorism will

be viewed in the same light as slavery, piracy, or

genocide: behavior that no respectable government can condone or support and all must

oppose.”3 Articulating a legal and moral underpinning for the war on terrorism is essential to

building such a consensus.

Among the most important aspects that

must be addressed is the rationale by which the

United States or any other country can claim

the right to use force against terrorists on the

territory of a foreign sovereign. Such a rationale

can be built on three principles adapted from

well-established concepts in international law:

■ terrorists fall within the 2,000-year-old

category of “common enemy of humankind”

■ sovereign responsibility for suppressing

terrorists and other threats to international peace and

stability is the corollary of sovereign rights to participation in the family of nations

■ the use of force against terrorists is justified by the inherent right of self-defense.

The Common Enemy

The Roman statesman Cicero was apparently the first to issue the now-famous legal

maxim, Pirata est hostis humani generis, “a

pirate is the common enemy of humankind.”

The implications of that characterization

varied over the centuries as the nature of the

international state system evolved,4 but for

more than four centuries the general understanding of its meaning has been that expressed by the Italian theorist Pierino Belli,

who wrote that war could be commenced

against pirates without a declaration of war

because “they are both technically and in fact

already at war; for people whose hand is

against every man should expect a like return

from all men, and it should be permissible for

any one to attack them.”5 Two centuries later,

the great English jurist, Sir William Blackstone,

provided a formulation that has shaped how

the expression hostis humani generis has been

understood ever since. Given that a pirate,

wrote Blackstone, “has renounced all the

benefits of society and government, and has

reduced himself afresh to the savage state of

nature, by declaring war against all mankind,

all mankind must declare war against him.”6

Over the course of the 19th century, a

number of states (notably the United Kingdom

and the United States) acted upon the right or

even, as Blackstone phrased it, the obligation

of all states to make war on pirates to an extent

2 Strategic Forum No. 212, November 2004

Joseph McMillan is a senior research fellow in the Institute for National Strategic Studies at the National

Defense University. Comments or questions may be sent to the author at mcmillanj@ndu.edu.

a core element in the

defeat of terrorism must

be a global grassroots

consensus that all acts of

terrorism are illegitimate
that can be said to have established this obligation in international law by virtue of customary

state practice.7 Since then, a number of governments, courts, and legal scholars have sought

to expand the concept of “common enemy of

humankind” to slave traders, war criminals,

and torturers, with varying degrees of acceptance in the international legal community. To

none of these categories, however, including

pirates, does the term apply with greater precision than to international terrorists. 

As the UN Security Council stated in Resolution 1368, passed the day after 9/11, any act

of international terrorism is “a threat to international peace and security.” Resolution 1377,

passed 2 months later, went further, declaring

that “acts of international terrorism constitute a

challenge to all States and to all of humanity”

and that “acts of terrorism endanger innocent

lives and the dignity and security of human

beings everywhere, threaten the social and

economic development of all States and undermine global stability and prosperity.”

Even if terrorism had none of these pernicious international effects, the very nature of

terrorist methods would suffice to place their

exponents in the ranks of enemies of all humankind. The hallmark that most clearly

distinguishes the terrorist from the insurgent—

the intentional targeting of noncombatants—

flagrantly defies the law of nations as embodied

in the Geneva Conventions and other treaties,

the centuries-old laws of armed conflict, and

the teachings of all major religions. Moreover,

the peculiarly apocalyptic form of terrorism

represented by al Qaeda and its ideological

allies is a direct challenge to the legitimacy of

the entire international state system just as

much as 19th-century anarchism ever was.

Defining terrorists as the common enemies of humankind creates universal jurisdiction for states to take legal action against

them. Until now, prosecution of international

terrorists outside the jurisdictions where they

committed their crimes has been based on the

passive personality principle. That is, states

have asserted the right to act against those who

harm their own citizens. However, as Hugo

Grotius wrote:

It must also be known that kings, and any who

have rights equal to the rights of kings, may

demand that punishment be imposed not only

for wrongs committed against them or their

subjects, but also for all such wrongs as do not

specifically concern them, but violate in extreme

form in relation to any persons, the law of

nature or the law of nations.

8

This universal principle has been applied to

piracy, slavery, genocide, and hijacking, and

many have contended that it should also apply

to egregious violations of human rights. There

can be little disagreement that terrorists meet

Grotius’ standard of “violat[ing] in extreme

form . . . the law of nature or the law of nations.” That being the case, all states must have

the right to punish them regardless of where the

terrorist act takes place or against whom.

Sovereign Responsibility

For our present purposes, however, the

effect of declaring terrorists to be common

enemies of humankind in regard to how they

are prosecuted is less relevant legally than its

implications for how they are prosecuted militarily. Those implications are set forth in Blackstone’s commentary on piracy: since they have

declared war “against all mankind, all

mankind must declare war” against them.

Note that Blackstone says “must,” not “may”;

states are under a positive duty to make war on

the common enemies of humankind.

We are so accustomed to hearing about

the rights of sovereign states that asserting the

existence of sovereign duties and responsibilities may sound strange. Yet the idea that sovereignty carries responsibilities as well as rights is

central to the entire concept of statehood that

dates back to the classic period in the development of the nation-state system. For example,

“wielding effective power in the territory under

its control”9 is one of the criteria for a government’s recognition as part of the international

community of states. It is also a well-established principle that “states are under a duty to

prevent and suppress such subversive activity

against foreign Governments as assumes the

form of armed hostile expeditions or attempts

to commit crimes against life or property.”10 It

is difficult to imagine an activity that fits this

description better than terrorism.

In responding to the September 11 attacks, the UN Security Council also spoke in

terms of the duties and responsibilities of states.

Resolution 1373 (2001), a chapter VII resolution that is binding on all members, requires

states to suppress the financial and recruiting

activities of terrorist organizations, block the

supply of arms to them, provide warning to

other governments of terrorist threats, deny

terrorists safe haven, prevent their movements,

and punish them through the criminal justice

process. What is especially important is that

states must “prevent those who finance, plan,

facilitate, or commit terrorist acts from using

their respective territories for those purposes

against other countries and their citizens.”11

The best answer to the scourge of terrorism would be for each sovereign state to live up

to these responsibilities by suppressing any

terrorists within its own territory, and especially

by preventing them from using its territory as

sanctuary or as a launching pad for attacks on

others, as required by both customary international law and the Security Council resolutions.

If they all did so, there would be no need for

any state to conduct counterterrorist operations

on foreign soil. Yet, as noted, some governments lack the ability or the will to prevent

terrorist groups from operating from their

territory. Some even collaborate with them.

This leads to the core of the argument. As

the then-director of policy planning for the U.S.

Department of State expressed: 

Sovereign status is contingent on the fulfillment

by each state of certain fundamental obligations, both to its own citizens and to the international community. When a regime fails to live

up to these responsibilities or abuses its prerogatives, it risks forfeiting its sovereign privileges

including, in extreme cases, its immunity from

armed intervention.12

As we have just seen, the principle that the

suppression of terrorism is one of these fundamental obligations has specific Security Council sanction.

Self-Defense

Among the less publicized provisions of

Resolution 1373 was a reaffirmation of every

state’s inherent right of individual and collective self-defense in the specific context of

responding to terrorism. This right, of course,

No. 212, November 2004 Strategic Forum 3

the idea that sovereignty

carries responsibilities as

well as rights is central to

the entire concept of

statehood
lies at the foundation of the entire international

state system and was already enshrined in

Article 51 of the UN Charter, so what is the

practical effect of this reaffirmation? It is not

easy to say with certainty what the Security

Council itself had in mind; there may well have

been as many views of that as there were countries voting for the resolution. An examination

of the body of customary international law on

the right of self-defense, however, will lead to

some useful insights into the effects of applying

this principle to the problem of terrorism.

An accepted principle of customary international law is that “all acts of [administrative

officials and military and naval forces] in the

exercise of their official functions are prima

facie acts of the State.”13 This principle is also

set forth in the UN International Law Commission’s 2001 Draft Articles on State Responsibility: “The conduct of any State organ shall be

considered an act of that State...even if it

exceeds its authority or contravenes instructions.”14 Moreover, a state’s intentional or

culpably negligent failure to prevent private

groups—such as terrorists—from harming

other states is also an act for which the host

state bears responsibility.15

Under normal circumstances, a state is not

entitled to use force to exact redress for another

state’s violations of its responsibilities. As the

Draft Articles on State Responsibility put it,

“Countermeasures are limited to the nonperformance for the time being of international

obligations of the State taking the measures

towards the responsible State.”16 The need to

defend oneself against anticipated terrorist

attacks, however, cannot be categorized as

normal circumstances. Indeed, that the compilers of the 2001 Draft Articles did not have terrorism in mind when they prepared them is evident from the fact that the words terrorism or

terrorist appear nowhere in the document, even

though it was released only 2 months after the

September 11 attacks struck the city where the

UN headquarters resides.

It is therefore reasonable to conclude,

especially in light of Resolution 1373, that the

victim of a state-sponsored or state-tolerated

terrorist attack does indeed have the right, under

Article 51, to exercise force not only against the

terrorist group conducting the attack, but also

against the state that sponsors or hosts the

terrorist group, just as if that state’s military

forces had launched an armed attack.17

The more difficult case is one of a government that, despite its best efforts, is unable to

prevent terrorists from conducting operations

on or from its territory. In this case, the injured

party may have no legal basis to hold the host

state itself responsible,18 but that does not

negate its right, based on the principle of selfdefense, to take military action on the territory

of the host state against the actual armed

groups of terrorists.19

There is ample precedent in the classic

principles of customary international law for

such action. For example, on numerous occasions in the 19th century, naval forces engaged

in suppressing piracy entered foreign territorial

waters and even put troops ashore to attack

pirate ships in their havens. The United States

asserted and exercised the right in the early 20th

century to send troops into Mexico to pursue

and punish bandits who had conducted crossborder raids against American towns. Lastly,

and most germane to the issue here, was the

so-called Caroline episode of 1837, in which

British forces entered U.S. territory from

Canada to destroy a steamboat being used by

insurgents to stage armed attacks across the

Niagara River. The British government defended its action on the basis of self-defense. In

response, Secretary of State Daniel Webster

formally acknowledged the principle that

under certain conditions a foreign state would

have the right to conduct such operations on

U.S. soil, although he denied that those conditions had been met in the specific case at hand.

Some would argue that whatever such

rights that may have existed in the 19th century

have been curtailed by the UN Charter, especially the provisions in Article 2(4) on renunciation of the use of force. Given that all UN

members have committed to these principles, it

is asked, how can any state be justified in

unilaterally attacking another for failing to live

up to its antiterrorist obligations, rather than

taking the matter before the Security Council?

Two points can be made in response to this

argument. First, documents such as the charter

always embody balances between competing

rights and obligations. When these come into

conflict, the document must be interpreted in a

way that furthers the underlying principles and

purposes for which the document was developed.

U.S. Supreme Court Justice Robert Jackson once

observed that the Constitution’s Bill of Rights is

not a suicide pact.20 Neither is the UN Charter.

The no-use-of-force clause in Article 2(4),

therefore, must not be interpreted so restrictively

that it has the effect of protecting and facilitating practices such as terrorism, which (as Security Council Resolutions 1368, 1373, and 1377

declared) are totally contrary to the purposes of

the United Nations.

Secondly, the text of Article 2 makes clear

that the renunciation of the use of force is not

all-encompassing. The text says that members

must refrain from the “threat or use of

force... against the territorial integrity or

political independence of any state, or in

any other manner inconsistent with the

Purposes of the United Nations [emphasis

added].” Most international lawyers interpret

the Article 2(4) renunciation of force as admitting of exception only in the case of collective

action by the Security Council or exercise of

self-defense against armed attack under Article

51.21 But the phrase “territorial integrity or

political independence” would be superfluous

if the framers of the UN Charter intended this

renunciation to cover every situation except

self-defense. Indeed, they could have left the

paragraph in its original form as drafted at

Bretton Woods: “threat or use of force in any

manner inconsistent with the purposes of the

Organization.”22 They did not, and we must

therefore assume that the qualifying language

added in the negotiation of the Charter was

meant to have a substantive effect.

This more narrowly focused interpretation

of Article 2(4) is borne out nowhere more

clearly than in the conduct of operations within

Iraq between 1991 and 2003. During that

period, U.S., British, and French23 forces conducted regular overflights to ensure compliance

with restrictions on Iraqi activities laid down by

the coalition in consonance with resolutions of

the UN Security Council, particularly Resolution 688. In the early years of this period, the

same three countries plus Turkey maintained

forces on the ground in northern Iraq, and

Turkey continued to conduct incursions into

Iraqi territory to suppress suspected terrorists of

the Kurdistan Workers Party even after the

withdrawal of other coalition ground troops. Yet

the governments involved repeatedly stated their

support for the “territorial integrity of Iraq.”24

For such operations to be consistent with

a policy of support for Iraq’s territorial integrity,

4 Strategic Forum No. 212, November 2004

the UN Charter is not a

suicide pact
one of three conditions would have to exist.

First, the operations could be held to fall within

the framework of the inherent right of selfdefense. None of the participants asserted that

this was the case. Alternatively, the operations

could have been authorized by the Security

Council under chapter VII of the UN Charter.

While the United States argued that the operations were justified indirectly by such authority,

the other participants rejected this argument as

the basis for their participation. The only other

possibility was that the states involved did not

consider Iraq’s territorial integrity to be violated

by the conduct of operations on and over Iraqi

soil, provided that those operations were not

intended to change the territorial status quo. In

other words, they did not interpret Article 2(4)

as barring any and all uses of force.

In summary, the plain language of the

Charter, the history of its negotiation, and

actual state practice since its adoption all

demonstrate conclusively that there are some

circumstances in which the use of force is still

permissible, even short of self-defense against

an actual armed attack. That being the case,

the exercise of force to suppress terrorist groups

that are not being suppressed by the state in

which they are located would surely be one of

those circumstances.

The doctrine spelled out here must not be

used to justify everything any country may wish

to do in the name of counterterrorism. Some

potential uses of force—for example, the

reconstruction of political authority in a state

whose government has effectively collapsed—

would require more explicit legal authority

under the Charter. Moreover, unilateral use of

force, as a matter of principle, is not a first

resort, nor is it necessarily the most judicious

course even when legally justifiable.

Nevertheless, there are circumstances

involving what American constitutional lawyers

would call a “clear and present danger,” in

which unilateral military action on foreign soil

would be legally justifiable and strategically

prudent. The best standards for identifying

those circumstances, and the limitations on the

operations carried out in response to them,

may still be those set out by Secretary Webster

in connection with the Caroline case:

It will be for that Government [using force] to

show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no

moment for deliberation... [and that its forces]

did nothing unreasonable or excessive; since the

act justified by the necessity of self-defence, must

be limited by that necessity, and kept clearly

within it.

25

Properly understood, the Caroline standards are even more relevant now than they

were in 1841. Other than the Cold War nuclear

standoff between the United States and the

Soviet Union, is there any threat that better

meets the criteria of being instant and overwhelming than apocalyptic terrorists with the

fruits of globalization at their disposal—unless

it is those same terrorists in possession of a

weapon of mass destruction?

The Way Ahead

It will not be easy to build a 21st-century

international consensus around a doctrine that

uses the concepts of sovereign responsibilities

and self-defense to justify the unilateral use of

force on foreign soil. The prohibition against

sovereigns’ interfering in each others’ internal

affairs has become so deeply ingrained in the

common understanding of the international

rules that arguing in favor of a theory that

seems to contradict that understanding will

strike many as reactionary and dangerous.

Resistance could be especially strong not from

the few countries who wish to harbor terrorists

but from the many who will see such a doctrine

as a formula for the reintroduction of Western

imperialism. It is only reactionary, however, in

the context of misconceptions about the nature

of sovereignty. Rulers in the classical

Westphalian period and well into the 20th century understood a state that could not or did not

control what happened on its territory was

placing itself at risk of military action by others

that suffered injury from its negligence.

Because this concept is still so alien to

many modern governments, the most obvious

means of having it embodied in international

law—the negotiation of a formal universal

convention on the model of the Geneva

Conventions—would probably be doomed to

failure. Instead, those who accept the concept

of sovereign responsibility must begin constructing de facto a body of customary international law and practice in its support. Just as

pirates were universally recognized as international outlaws long before any formal treaty

declared them such, so too should terrorists be

recognized as international outlaws, and the

right of states to strike against them without

explicit UN Security Council action should be

accepted without a formal treaty.

Several constructive steps have been taken

in this direction. The findings of the Security

Council resolutions passed after 9/11 have

already been mentioned. The declarations by the

North Atlantic Treaty Organization (NATO) and

the Organization of American States that the

terrorist strikes on New York and Washington

constituted “armed attacks” on the United States

within the meaning of NATO Article 5 and

Article 3 of the Rio Treaty were perhaps even

more important.26 Logically, if terrorist strikes

are armed attacks, military operations in response are not actions against another country’s

“territorial integrity and political independence”

but a valid exercise of the right of self-defense.

As other governments and international organizations articulate or acknowledge the validity of

these principles, wider recognition of their

legitimacy will be generated, just as the continued assertion by some European governments of

a right of humanitarian intervention has led to

its progressively wider acceptance as a valid

principle of international law.

The inability of the international community to settle on an accepted definition of terrorism is well known, but building consensus

on a right to act against terrorists on foreign

soil will require at least some degree of agreement on the meaning of the term. The United

States, therefore, has an important interest in

promoting agreement on that front. Moreover,

it has an interest in ensuring that this definition is framed in terms of means, not ends. As

is the case with war crimes, whether or not

something is terrorism must be understood as

a question of the methods used to prosecute a

struggle, not about the justice of the struggle

itself. Otherwise, the subjective nature of judging the righteousness of a cause would invariably leave the international community with

no common ground upon which to act.

Even if terrorism is defined by means and

not ends, considerable argument remains over

No. 212, November 2004 Strategic Forum 5

is there any threat that

better meets the criteria

of being instant and overwhelming than apocalyptic terrorists with the

fruits of globalization at

their disposal?
where to draw the line between terrorist and

nonterrorist behavior. For example, are attacks

on military forces terrorist under some circumstances? What about attacks on other government entities? Is an overt attack on civilians by

an organized belligerent force terrorist, or does

terrorism necessarily imply clandestine means?

From a practical point of view, however, a lack

of resolution on these issues need not pose an

insuperable obstacle to action. One would

begin with a narrowly limited range of behavior on which almost all can agree—the intentional targeting of private noncombatants, for

instance—and articulate the logic for a right

of states to use force against individuals and

groups who carry out violent acts within that

range of behavior. Over time, the defined range

of unacceptable behavior can be broadened as

a consensus is developed.

Making this work will require not only

overcoming the ends-based objections of the

apologists for certain manifestations of terrorism, but also enforcing an unaccustomed

degree of rhetorical self-discipline within the

U.S. Government and among its allies. The

United States must be prepared to accept that

not all acts of violence carried out by groups

with which it disagrees—such as resistance to

military occupation or organized rebellions in

friendly countries—necessarily fall into the

category of terrorism. In particular, the United

States must refrain from describing as terrorism

those acts that do not meet any strict definition

of the term—such as attacks on military forces

in a combat zone—simply on the basis of who

carries them out or to what end.

It bears repeating that the use of force is

not the first choice for dealing with terrorist

threats, particularly on foreign territory. Even

in those cases where states are not able to live

up to their responsibility to prevent armed

bands on their soil from threatening others, the

first choice is to work to strengthen those

governments’ capabilities and reinforce their

disposition to take action. When the use of

force is required, it is preferable to act in

concert with the host country, or at least with

its permission. Almost certainly, however, the

time will come when these preferred options

will not be available. In an era when terrorist

groups such as al Qaeda have the intention

and capabilities of inflicting mass civilian

casualties, no government can remain idle if it

has the means to prevent such an attack on its

people. It is important for the international

community to recognize that governments are

on a solid foundation when they act to prevent

such terrorist attacks.

Notes1

Bruce Hoffman, Inside Terrorism (New York: Columbia

University Press, 1998), 94. 2

Quoted in Hoffman, 198.

3

The National Security Strategy of the United States of

America, September 2002, 6.

4

For a discussion of the evolution of the concept, see

Alfred P. Rubin, The Law of Piracy, U.S. Naval War College

International Law Studies, vol. 63 (Newport: Naval War College

Press, 1988), 4–44. 5

Pierino Belli, De Re Militari et Bello Tractatus (1563),

II.11, quoted in Rubin, 18. 6

Commentaries on the Laws of England, IV.5.iii, 72. 7

See Rubin, 202.

8

De Jure belli ac pacis, XX.20. 9

L. Oppenheim, International Law: A Treatise, 8th ed.

(London: Longmans, Green, 1955), I:135. 10 Ibid., I:292–293.

11 Chapter VII resolutions are those concerned with

breaches of the peace, threats to the peace, and international

aggression; compliance with them is obligatory. 12 Richard N. Haass, “Sovereignty: Existing Rights,

Evolving Responsibilities,” speech at Georgetown University

School of Foreign Service, January 14, 2003; available online at

<http://www.state.gov/s/p/rem/2003/16648.htm>. 13 Ibid., I:362–363.

14 “Draft articles on responsibility of states for Internationally Wrongful Acts adopted by the International Law Commission

at its fifty-third session (2001),” articles 4(1) and 7; available

online at <http://www.un.org/law/ilc/texts/State_responsibility/

responsibilityfra.htm>. 15 Oppenheim, I:363.

16 “Draft articles,” article 49(2).

17 Jack M. Beard, “America’s New War on Terror: The Case

for Self-Defense under International Law,” Harvard Journal of

Law and Public Policy 25, no. 3 (Spring 2002), 559–590. 18 Derek Jinks, “State Responsibility for the Acts of Private

Armed Groups,” Chicago Journal of International Law 4, no. 1

(2003). Jinks points out the pitfalls of treating all cases in which

terrorist groups operate from a state’s territory as situations of

state sponsorship. 19 Greg Travalio and John Altenburg, “Terrorism, State

Responsibility, and the Use of Military Force,” Chicago Journal

of International Law 4, no. 1 (2003). 

20 Terminiello v. Chicago, 337 U.S. 1 (1949). Jackson first

used the phrase in a dissenting opinion, but it has since been

cited by majorities of the Court in such decisions as Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 160 (1963), and Haig v.

Agee, 453 U.S. 280 (1981).

21 See, for example, Travalio and Altenburg, 101; and Ian

Brownlie, International Law and the Use of Force by States

(Oxford: Oxford University Press, 1963), 167–168. 22 The amendment specifying “against the territorial

integrity or political independence of any state” was proposed by

Australia as a way of satisfying concerns expressed by a number of

countries, particularly in South America, that the original draft

did not adequately protect the sanctity of existing borders.

Proposals for more sweeping language banning all forms of

intervention and rejecting any use of force except with the

authorization of the Security Council were considered and rejected

at San Francisco. Documents of the United Nations Conference

on International Organization, San Francisco 1945, vol. III

(New York: United Nations Information Corporation, 1945). 23 French forces until December 1998 only.

24 As expressed in the following statements:

■ “The United States firmly supports the territorial integrity of

Iraq.” U.S. President Bill Clinton, message to Congress, September 3, 1998,

available online at <http://usembassy-australia.state.gov/hyper/

WF980903/epf403.htm>.

■ “It has never been our intention to undermine Iraq's territorial

integrity.” British Prime Minister Tony Blair, House of Commons, February

24, 1998, available online at <http://www.parliament.the-stationeryoffice.co.uk/pa/cm199798/cmhansrd/vo980224/debtext/80224-05.htm>. 

■ “We may have our differences in our tactical assessments but

not on the strategic objectives, [including] respect for the territorial

integrity of Iraq.” French Minister of Defense Alain Richard, speech to

Franco-American Foundation, April 18, 1998.

■ “The unity, sovereignty and territorial integrity of Iraq is [sic] of

utmost importance for Turkey.” Turkish President Suleiman Demirel,

speech to Washington Institute for Near East Policy, April 27, 1999,

available online at <http://www.washingtoninstitute.org/media/speakers/

demirel.htm>.

25 Department of State note to British Legation, Washington, DC, April 24, 1841 (accessed from the Yale University Avalon

Project at <http://www.yale.edu/lawweb/avalon/diplomacy/

britian/br-1842d.htm>). 26 Statement of NATO Secretary General Lord Robertson,

October 2, 2001, available online at <http://www.nato.int/docu/

speech/2001/s011002a.htm>; Resolution of the 24th Meeting of

Consultation of Ministers of Foreign Affairs: Terrorist Threat to

the Americas, Organization of American States document

(RC24/Res1/01), September 21, 2001, available online at

<http://www.oas.org/OASpage/crisis/RC.24e.htm>.

6 Strategic Forum No. 212, November 2004

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