LEGITIMATE USE OF MILITARY FORCE AGAINST STA

SPONSORED INTERNATIONAL TERRORISM 

by 

RICHARD J. ERICKSON, LT COL. USAF 

Research Fellow 

Airpower Research Institute 

Winner of the Air Force Historical Foundationís 

1987 Colonel James Cannell Memorial Award 

Air University Press 

Maxwell Air Force Base, Alabama 36112-5532 

July 1989 

Scanned copy November 2001 

Document format changed from original printed version 

 
 ii 

Library of Congress Cataloging-in-Publication Data 

Erickson, Richard J. 

Legitimate use of military force against state-sponsored international terrorism

Bibliography: p. 

1. Terrorism. 2. Self-defense (International law) 3. Military law. I. Title. II. Tit

sponsored terrorism. 

JX5420.E75 1989 341.773 E68L C.5 89-15038 

DISCLAIMER 

This publication was produced in the Department of Defense schoo

environment in the interest of academic freedom and the advancement o

national defense-related concepts. The views expressed in this publicati

are those of the author and do not reflect the official policy or position o

the Department of Defense or the United States government. 

This publication has been reviewed by security and policy review authorities and is cleared for public release. 

For Sale by the Superintendent of Documents 

US Government Printing Office 

Washington DC 20402 
 iii 

CONTENTS 

 Page 

Disclaimer ii 

Foreword vi 

About the Author vii 

Preface viii 

IntroductionóTHE RELEVANCE OF INTERNATIONAL LAW 1 

What Is This Study All About? 1 

What Is the Purpose of This Study? 3 

Limits of This Study 3 

This Study, How Meaningful? 5 

International Law, Why Bother? 8 

Notes 10 

Chapter 1 WHAT IS TERRORISM AND HOW SERIOUS IS THE 

THREAT? 19 

What Is Terrorism? 20 

Is a Legal Definition Necessary? 23 

International Terrorism: A Working Definition 25 

Levels of State Involvement 25 

Terrorism in Perspective 27 

A Threat More Serious Than Numbers Indicate? 31 

Summary and Transition 35 

Notes 36 

Chapter 2 INTERNATIONAL LAW AND INTERNATIONAL 

TERRORISM: WHICH APPROACH SHOULD WE TAKE? 46 

West Opts for Law Enforcement Approach 47 

Why the Bias toward Law Enforcement? 49 

Managing International Terrorism 52 

Thrust of the Law Enforcement Approach 53 

Use of Force Abroad: In What Context? 57 

Peacetime Crisis Response: What Does It Mean? 57 

Law of Armed Conflict: An Alternate Approach? 59 

Summary and Transition 65 

Notes 67 
 iv 

Chapter 3 STATES HAVE RESPONSIBILITIES AS WELL 

AS RIGHTS 75 

Concept of State Responsibility 75 

International Terrorism and the Duty of States 77 

What Quality of Evidence Is Required? 81 

How to Improve Intelligence Gathering 83 

When Is intervention Lawful? 84 

Interposition and the United Nations Charter 86 

Summary and Transition 90 

Notes 92 

Chapter 4 INDIVIDUAL SELF-DEFENSE AS A JUSTIFICATION 

FOR THE USE OF FORCE 99 

Doctrine of Individual Self-Defense 100 

Conditions Permitting Individual Self-Defense 102 

Summary and Transition 115 

Notes 116 

Chapter 5 COLLECTIVE USE OF FORCE: ACTIONS STATES 

CAN TAKE TOGETHER 124 

What Is Collective Self-Defense? 125 

Regional Enforcement Action 127 

Regional Peacekeeping 128 

Summary and Transition 129 

Notes 130 

Chapter 6 OTHER LEGAL ARGUMENTS TO JUSTIFY USE 

OF FORCE 133 

Invitation 134 

Peacetime Reprisal 135 

Status of Reprisal in Contemporary International Law 138 

Protecting Oneís Own Nationals 139 

Humanitarian Intervention 143 

Hot Pursuit 147 

Piracy: ëWhat Is It? 148 

Self-Help: A Bonn Fide Precept? 149 

Summary 150 

Notes 151 
 v 

SWORD OR LAME WARNING? 158 

Notes 163 

Appendix Page 

A Uses of Armed Force Checklist (Legal) 164 

B United Nations Charter (Selected Articles) 173 

C Statute of the International Court of Justice (Selected Article) 175 

SELECTED BIBLIOGRAPHY 176 

ILLUSTRATIONS 

Figure Page 

1 International Terrorist Incidents, 1980ó84 28 

2 Casualties from International Terrorist Attacks, 1981ó85 30 

Table Page 

1 International Terrorist Incidents Involving DOD 

Personnel, 1980ó84 29 

2 Alternative Legal Approaches Compared 66 

3 Conditions under Which States Fail to Exercise Due Diligence 81 

4 Intervention and Interposition Compared 86 
 vi 

A military response has been a viable option for combating international terrorism 

and it will continue to be an option in the future. Possible military actions range from r

hostages to neutralizing terrorist camps and making direct strikes against targets verifi

infrastructure for state-sponsored training and support complexes of terrorist groups. 

The military response is part of a larger strategy that seeks to maximize the risk of 

punishment for terrorists and their sponsors and supporters while minimizing their pot

rewards. In this context military action must be consistent with international law. If sta

that all means are justified, then those acting to preserve the rule of law in the face of t

threat will become indistinguishable from the evil they seek to undo. 

Colonel Ericksonís study presents an overview of international law directed at the 

managing international terrorism. This study is thought provoking and provides the 

decisionmaker with a useful tool. Of particular note is the checklist provided in append

summarizes chapters 4-6. 

It behooves everyone dedicated to achieving a world free from terror to learn more 

phenomenon and how we can deal with it. Colonel Ericksonís study, for the first time 

place, makes available a general survey of international law concerning this subject. I 

recommend his study. 

 ROBERT W. NORRIS 

Major General, USAF 

The Judge Advocate General, USA
 vii 

Lt Col Richard J. Erickson was The Judge Advocate General, Headquarters United 

Force, sponsored research fellow to the Airpower Research Institute (ARI), Air Univer

Center for Aerospace Doctrine, Research, and Education (AUCADRE) for 1986-87. 

Colonel Erickson graduated from Florida State University with a bachelor of arts (

international relations and speech in 1964 and a master of arts in government in 1965. 

awarded his doctor of jurisprudence (cum laude) from the University of Michigan in 1

his doctor of philosophy in foreign affairs from the University of Virginia in 1971. His 

professional military education includes the Judge Advocate Staff Officer Course, Staf

Advocate Course, Squadron Officer School, Air Command and Staff College, Industri

of the Armed Forces (National Security Management Course), Naval War College (Int

Law Course), and Air War College. He also attended the 1977 Public International Law 

at the Hague Academy of International Law and the 1985 Law of War Course at the S

Institute for International Humanitarian Law. 

Colonel Erickson entered the United States Air Force in 1971 with initial assignme

legal staff of Headquarters Air University, Maxwell Air Force Base, Alabama. From 1

served as a faculty instructor in international law and editor in chief, The Air Force La

at the Judge Advocate General School, US Air Force, also located at Maxwell Air For

Thereafter, he served in numerous international law assignments at Headquarters Unite

Air Forces in-Europe (USAFE), and Headquarters United States Air Force. Before arri

AUCADRE, he served as staff judge advocate, 7206th Air Base Group, Hellenikon Ai

Greece, and as the senior US Defense Department attorney there. 

He is a member of the bar of the state of Michigan. Colonel Erickson is also a mem

American Bar Association, American Society of International Law, American Branch 

International Law Association of Brussels, and the Federal Bar Association. He is auth

International Law and the Revolutionary State, published by Oceana Publications in 19

numerous articles and other publications. He authored the initial draft of AFP 110-31, 

International LawóThe Conduct of Armed Conflict and Air Operations. 

Colonel Erickson is married to the former Joan Kathryn Harmony of New London

They have one daughter, Karen. 
 viii 

I thank Maj Gen Robert W. Norris, The Judge Advocate General, Headquarters Uni

Air Force, for the opportunity to research the subject of international law within the co

legitimating military force as an option in response to international terrorism. The stud

capacity of international law to meet the challenge of terrorism has been inadequate. In 

study, I explore the full capacity of international law in this regard. 

I would be remiss if I did not also express my appreciation to General Norris for his 

unwavering support and encouragement and for the valuable assistance provided to me 

staff. In particular, I thank Col Nolan Sklute, executive to The Judge Advocate Genera

Robert Hitt, chief, International Law Division, Headquarters United States Air Force. I 

grateful to several of Colonel Hittís staff: Will Carroll, Lt Col Philip Meek, Lt Col Den

Yoder, and Maj Thomas Tudor. 

This study would not have been possible without the support of the Air University C

Aerospace Doctrine, Research, and Education (AUCADRE). My thanks to Dr Lawren

who as my research adviser, provided immeasurable and professional guidance and as

am indebted also to Tom Lobenstein who served as my editor. Special thanks are due D

Sloan, former senior research fellow, AUCADRE; Dr James Winkates, Air War Colle

Richard Porter, US Department of State, Office of Counter-terrorism; Lt Col Joe Ryan 

members of seminar five of the Air War College class of 1987; and Jane Gibish, biblio

Air University Library. 

Most of all, I thank my wife, Joan, and my daughter, Karen, for reasons only they k

RICHARD J. ERICKSON, Lt Col, USAF 

 Research Fellow 

Airpower Research Institute 
INTRODUCTION 1 

THE RELEVANCE OF 

INTERNATIONAL LAW 

Terrorism, whether international or translational, is not only a political problem

is not only a psychological problem; it is not only a moral problem; it is, 

fundamentally, a legal problem. 

Robert A. Friedlan

A reassessment of current legal systems to accommodate issues arising from th

use of both international and domestic terrorism is needed. 

Issue Paper No. 41, Vice Preside

Task Force on Combatting Terror

The Departments of State and Justice should encourage private and academic 

study to determine how international law might be used to hastenórather than 

hamperóefforts to respond to an act of terrorism. 

Public Report of the Vice Preside

Task Force on Combatting Terror

Proverbs 3:25 admonishes us to ìbe not afraid of sudden terror.î Has the age o

terrorism descended upon mankind? Clearly, in the contemporary world, terror 

knows no boundary and the world is its theater. International terrorism is a fact 

international life. It ranks among the most important and the most controversia

all international law problems. 

What Is This Study All About? 

This study should help us as a nation deal with being uncertain as to how best t

with the threat posed by terrorism. We do not understand international terrorism in an 

international law context. We tend to emphasize the inadequacies of international law 

with terrorism without fully comprehending the usefulness of international law. We ne

anchor for our thinking and for our actions. We need to return to basics, to grasp the 

fundamentals. We need to clarify in our own minds what our legal approach to interna

terrorism should be and what assumptions we must make in taking such an approach. 
INTRODUCTION 2 

Combatting Terrorism, have called for an in-depth legal analysis of this social phenom

members of a democratic society we are governed by the rule of law. Yet, we know so 

about the role of law in combating international terrorism, which is both ironic and sad

to improve our intellect and sharpen our insight into such issues as: What is the legal 

responsibility of one state to another and to the international community concerning te

How should terrorism be approached? Should it be considered a criminal activity in a 

enforcement context or should it be viewed as a combatant activity in an armed conflic

What legal reasoning exists to support the use of military force against international te

well as their state sponsors and supporters?1 

This study, written for both the lawyer and the lay person, explores these and o

issues. For the benefit of the general reader, the text has been written with minimum re

upon legal jargon. The legal scholar should refer to the endnotes for a more exhaustive 

treatment of concepts and issues. Chapter 1 looks at the nature of international terroris

seriousness of the threat. This chapter is important because it provides a foundation for 

what legal approach we should take to terrorism. It also examines some of the factors t

must consider in deciding on an appropriate legal basis for the employment of military 

abroad in combating terrorism. 

Chapter 2 addresses choice of law, reviewing the pros and cons of various lega

approaches to dealing with terrorism. Should the approach be essentially law enforcem

should it be combatant? Should the challenge of international terrorism be viewed as a 

crisis or as a situation of armed conflict? Does the degree of state sponsorship or suppo

difference? 

Chapter 3 examines the much overlooked concept of state responsibility. State 

responsibility is the international law concept of the duty that one state owes to anothe

international community. States that sponsor or support terrorist activities against othe

so in disregard of their state responsibility. When this occurs what rights does the injur

acquire? 

Chapters 4-6 form the core of the study. These chapters show how, throughout 

twentieth century and culminating with the United Nations Charter, the international c

has sought to restrain the use of force as a method for resolving international disputes. 

only a limited number of circumstances justify the force option. These circumstances a

contained in legal concepts or principles that, if satisfied, could serve as a rationale for 

use of military force abroad. Such principles include, for example, individual and colle

defense, anticipatory self-defense, regional peacekeeping, protection of oneís national

invitation. This study examines the strengths and weaknesses of these and other princi

well as the degree to which the community of nations accepts each concept. The discu

identifies the set of factual conditions or circumstances that must exist if a state opts to 

particular principle of law. Appendix A summarizes 13 legal principles; it serves as a r

reference for decisionmakers. One must be cautioned not to use the appendix without f

read the commentary regarding each principle. To do so runs the risk of misunderstand
INTRODUCTION 3 

directions. Finally, a detailed bibliography provides the reader with a starting point for 

independent research. 

What Is the Purpose of This Study? 

In conducting military operations against international terrorists and their state 

or supporters, the United States is committed to democratic values, which rest in large 

upon the rule of law, including international law.2 Operational international law is that 

treaty and customary international law that affects the otherwise unrestrained executio

military action. It reflects a community desire for restraint in the use of armed force. It 

necessitates legal advice in the planning of military operations. But what are the princi

international law that decisionmakers must consider? 

The primary objective of this study is to identify those principles for the lawful 

military force. The study has two secondary purposes. The first is to review available l

approaches to terrorism. Should terrorism be treated as ordinary crime,3 whether under 

or international law,4 or as unlawful combat and war crime under the law of armed con

second objective is to determine the current applicable international law of state respon

This study provides decisionmakers with: 

ï A focus for further discussion and decision. 

ï An opportunity to rethink fundamentals such as the status of terrorists and the 

responsibility of those states that sponsor or support them. 

ï A clearer understanding of the legitimate use of military force abroad under c

international law. 

ï A practical framework to evaluate proposed future use of military force in sit

context.6

ï An array of legal justifications so that the full potential of international law ca

utilized. 

ï An appreciation for the realism (rather tan the inadequacy) of international la

Limits of This Study 

Not all aspects of law and terrorism are discussed in this study; such an endeav

be too ambitious an undertaking. Rather this study more narrowly focuses on contemp

norms of international law for the use of overt military force abroad against internation

terrorists and their sponsors and supporters. 
INTRODUCTION 4 

ï This study surveys current international law but excludes attempts to project 

future directions in the law may be. 

ï This study does not examine proposals to make terrorism an international crim

establish an international criminal court or an international police force, to create a com

judicial area for prosecution of terrorists, or to develop innovative ideas for the develo

international customary law.8 Instead, the focus is on existing rules governing forcible 

ï The discussion includes legal rules or norms but excludes foreign policy and 

nonlegal considerations bearing on the use or nonuse of force.9

ï The study examines international law but excludes domestic law. Combating 

involves many domestic law issues that are beyond the scope of this study. Among the 

law issues for the United States, for example, are the Posse Commitatus Act, the War P

Resolution, and other legislative initiatives to deal with terrorism.10

ï The discussion examines the principles governing the legitimate use of milita

but excludes other international law rules unrelated to this determination. Although sta

forces agreements and landing and overflight privileges are important legal considerat

planning and executing military operations, they are not considered in this study becau

address how a military operation can be properly accomplished and not whether the in

decision to use force is proper.11 Also beyond the scope of this study are other modalit

projecting power such as diplomatic or economic action. This study focuses strictly on 

force. Consequently, international initiatives to outlaw various terrorist acts and to enh

extradition and prosecution of terrorists are outside the purview of this work.12

ï This study examines the overt use of military force but excludes covert opera

Since, within the United States government, covert operations are not the responsibilit

Department of Defense (DOD), they are not considered here.13

ï The study includes a discussion of forcible action abroad but excludes forcibl

home. This study is concerned with the application of military force outside the territo

jurisdiction of a state against international terrorists and their state sponsors and suppo

of force against domestic terrorists within a stateís own territory is essentially a law en

action governed by domestic law. Although this latter use of force could raise human r

other legal issues, such use is beyond the scope of this study. 

Having drawn the parameters of this study, a caveat is required. Even though a

beyond the scope of this study in itself, it may be discussed to the extent of its ancillary 

upon the primary issues under consideration. This study looks at only one piece of a co

jigsaw puzzle. To fully understand that piece, it may be necessary to have some unders

the pieces that surround it. 
INTRODUCTION 5 

States combating terrorism, including the United States, are increasingly opting 

military force. One need only recall the Israeli raid on the Beirut airport in 1968; the h

rescue missions to Entebbe in 1976, Mogadishu in 1977, and Tehran in 1980; the Israe

the Iraqi nuclear reactor in 1981; and the Achille Lauro incident of 1985, the US raid o

1986, and the Israeli raid on Tunis in 1987. As a consequence, understanding internati

applicable to the legitimate use of force has become more relevant and pertinent. A ho

rescue mission in the overseas environment is one use of force. But use of military for

restricted to such operations as the April 1986 raid on Libya reminds us. The announce

States policy of active defense portends future uses of military force in ways perhaps n

previously imagined. 

How did we arrive at this juncture? Frustration has driven us here. As terrorist 

Brian Jenkins of the Rand Corporation has noted, ìconfronted with terrorist violence f

abroad, and frustrated by the lack of international cooperation, national governments a

likely to take direct military action.î14 Frustrations and failures in the international aren

like-minded Western states, including the United States, to turn to the military option a

resort in combating this threat. 

Lack of international cooperation in this area has a long history. Following the 

assassination of King Alexander of Yugoslavia and French foreign minister Louis Bar

Marseilles on 9 October 1934, the Council of the League of Nations appointed a comm

experts to draw up a preliminary draft of an international convention to assure repressi

conspiracies or crimes committed with a political or terrorist purpose.15 The result was 

Convention on Terrorism, which only one state, India, ratified and which never entered 

force. 

The United Nations record is also one of frustration for the West. After the ma

the Israeli Olympians in Munich in 1972, the United States introduced in the United N

draft convention on terrorism. The UN secretary general also asked the UN General A

add to its agenda at its 27th session ìmeasures to prevent terrorist and other forms of v

which endanger or take innocent human lives or jeopardize fundamental freedoms.î16A

to Judge Abraham Sofaer, US Department of State legal adviser, ìthe Secretary-Gener

statement evoked angry opposition, which took the immediate form of protests against 

considering terrorism without considering its causes.î17 Two fundamentally opposing v

in the United Nations on the issue of terrorism: one focusing on acts and the other on c

former views terrorism as evil irrespective of cause. The latter sees terrorism as good o

depending on the cause in whose service it is employed. This latter view also consider

outlaw terrorism as an indirect way of attempting to restrain national liberation movem

United States and other Western democracies take the first view. The third world, supp

the Soviet Union and its followers, takes the second. 18

Even though the United Nations failed to reach agreement on the proposed Uni

draft general convention on terrorism or to take meaningful action on the secretary gen
INTRODUCTION 6 

Convention on the Prevention and Punishment of Crimes against Internationally Prote

Persons, Including Diplomatic Agents,19 and the 1979 International Convention on Ho

Taking.20 Yet, these and other conventions concerning aerial hijacking and letter bomb

example, have not produced a solution to the terrorist problem. Several factors have w

slow progress toward this end. 

First, many of the specialized conventions are watered down by conditional lan

example, the 1973 Convention on the Prevention and Punishment of Crimes against Pr

Persons is annexed to UN General Assembly Resolution 3166, 28th session, which pro

the provisions of the annexed convention could not in any way prejudice the exercise o

legitimate right to self-determination and independenceÖ by peoples struggling again

colonialism, alien domination, foreign occupation, racial discrimination (including Zio

apartheid.î21 Second, many states that actively sponsor or support terrorism are not par

these conventions. Third, the conventions fail to provide any viable enforcement mech

Extradition, where provided, is subject to the ìpolitical offenseî escape clause and pun

sanctions are lacking.22 Brian Jenkins summarizes the political climate as follows: ìTh

will not simply outlaw international terrorismÖ We should not be overoptimistic in re

obtaining and enforcing international agreements.î23

This same lack of consensus that contributes to ineffective international rule m

underlies the failure of the UN Charterí s general enforcement machinery to ensure int

peace and security. When established in 1945, a great assumption was made that the g

powers would continue to work together in the postwar era. Due to great power rivalry 

exercise of the veto power, ìthe military enforcement machinery contemplated by the 

Charter to enforce its rule against shooting first was never createdÖ The Security Cou

not provide reliable central authority to enforce the rule against first use of force.î24 Th

Assembly has only powers of recommendation. Even if the General Assembly could a

forcefully, its members are divided and its resolutions are replete with language strong

supporting the actions of national liberation movements while refusing to condemn ter

se.25 This record has led Western scholars to conclude that ìthe United Nations is, for t

part, useless in combating terrorism.î26 This disdain of the United Nations is a theme t

surfaces from time to time in this study. In particular, it becomes an argument for reint

of the UN Charterís provisions on the use of force. 

This lack of international cooperation has not been limited to the United Nation

International Criminal Police Organization (Interpol) constitution provides in article 3 

strictly forbidden for the organization to undertake any intervention or activities of a p

military, religious or racial character.î27 Arab membership and this constitutional limit

reduced the organizationís effectiveness in countering terrorism. Many of its functions 

collating and distributing of information have been assumed by the West German gove

antiterrorism computer center in Wiesbaden.28 Terrorism, viewed as a political express

had an adverse impact on Interpol. The great irony is that terrorist groups seem better a

cooperate than governments have. 
INTRODUCTION 7 

industrialized Western democracies that make up the summit seven (United States, C

United Kingdom, France, West Germany, Italy, and Japan) is noteworthy.29 So is the 1

European Convention on the Suppression of Terrorism, which entered into force on 4 

1978 for all members of the Council of Europe except Ireland and Malta. This convent

ìremoves the traditional ëpolitical offenceí safeguard in extradition for crimes of hijac

other offences against aircraft, serious attacks on internationally protected persons, kid

taking of hostages and offences involving the use of explosives or firearms if these end

persons.î30

But these and other limited successes have been insufficient to meet the challen

terrorism. States have increasingly turned to unilateral action, including the use of mili

The aim is deterrence31 and ìmilitary force must always be one option.î32 Israel, West 

the United Kingdom, the United States, and others have used and, in all likelihood, wi

the force option. The ideal objective is a consistent policy of maximizing risks to terro

their sponsors and supporters while minimizing their potential rewards. In the words o

William J. Casey, former director of the Central Intelligence Agency (CIA), ìperpetrat

sponsors of terrorist acts must be held accountable for their deeds.î33 Use of force is on

of achieving accountability. 

To achieve deterrence and accountability, the Reagan administration has shifte

policy from a passive to an active response to terrorism.34 National Security Defense D

(NSDD) 138, 3 April 1984, endorses ìactive defenseî through the preemptive use of m

force.35 In implementing the final report of the vice presidentís task force, NSDD 207 

January 1986) provides for an active national strategy to combat terrorism.36 Secretary 

George Shultz described the active defense policy thusly: 

It is time to think long, hard, and seriously about more active means of defense

about defense through appropriate preventive or preemptive actions against 

terrorist groups before they strike. One of the best deterrents to terrorism is the 

certainty that swift and sure measures will be taken against those who engage i

it. Resort to arms in behalf of democracy against repressive regimes or 

movements is indeed a fight for freedom, since there may be no other way that 

freedom can be achieved.37

Brian Jenkins noted that ìan active defense meant the use of military force.î38 W

Casey confirmed that ìwe must be free to consider an armed strike against terrorists an

who support them, where elimination of the threat does not appear to be feasible by an

means.î39 An active defense policy, relying as it does on the military option, emphasiz

importance of understanding international law norms on the use of force. 

International Law, Why Bother? 

Some believe that international law is nothing more than irrelevant legal hocus

They believe that when it comes to power politics, the law of nations is not germane. O
INTRODUCTION 8 

to comply with international law, other important reasons exist as to why international 

applicable to the conduct of military operations by the United States. 

First, as stated by Justice Horace Gray in Paquette Habana, ìinternational law i

our law.î40 The US Constitution, article I, section 8, clause 10 and article III, section 2

recognizes that the United States is subject to international law and Congress has the p

define offenses under the law of nations. From the very beginning of our federal repub

courts have treated customary international law as an integral part of the law of the Un

States. As Prof Louis Henkin, Columbia ëUniversity, states, ìinternational law is not m

binding on the United States internationally but it is also incorporated into United Stat

Violation of international law becomes a breach of US law that can have a significant 

us as a nation and as individuals. 

International treaty law is also US law, but it is treated somewhat differently. T

Constitution, article VI, clause 2, provides that ìall treaties made, or which shall be ma

the Authority of the United Statesî are, like federal laws, the supreme law of the land. 

Consequently, all laws and treaties of the United States are supreme over state laws, bu

status to one another. Thus, a US law passed after a treaty takes effect may prevail ove

treaty without violating the Constitution. Moreover, since the president has the constitu

capacity to unilaterally denounce a treaty, such action could not be challenged in US c

these circumstances, US law would not be violated even though international law wou

the United States could be held accountable by the international community for such a

important point to recognize is that customary international law, unlike treaty law, is in

part of US law and always applies. Customary law provides the great body of internati

norms relative to the use of military force. Even those principles concerning the use of 

are contained in the United Nations Charter, articles 2(4) and 51, are now generally co

by legal scholars as having become customary international law. Moreover, no matter 

status of treaty obligations of the United States may be under our law, such obligations 

United States internationally until properly terminated in accordance with the law of n

Second, democratic societies are established on the rule of law, and complianc

international law is fundamental to American tradition. In the eloquent words of Abram 

former State Department legal adviser, 

A nation which professes to live by the rule of law invites a sure penalty, 

sometimes more swiftly than by the judgment of a court, if it turns from the pat

of the law. For us and our associates, moreover, whether we will profess to live 

the law is not an issue of policy on which we have alternatives. The answer is 

inherent in our national tradition, in our culture, and it is implied in the purpose

for which we strive in the world. It is implicit in our avowal at birth of ìa decen

respect for the opinions of mankind.î Thus it seems to me we will have a hard 

time in developing a doctrine as to the use of force which will permit us to be 

judge in our own case.42
INTRODUCTION 9 

overreact, acting outside the law as terrorists themselves do, thereby undermining the l

of the government itself.43

Third, conduct consistent with international norms provides governments with 

and legal high ground for dealing with terrorism. Failure to comply with the law will r

loss of government support at home and abroad. In the words of Prof Oscar Schachter, 

University Law School, ìstates require a basis of legitimacy to justify their actionsÖ P

interest are not superceded by law, but law cannot be excluded from the significant fac

influencing the uses of power and the perception of interests.î44

Fourth, and finally, the United States complies with international law because i

national self-interest to do so. The reasons discussed above are indicative, in part, of th

interest. Also, the United States has an interest in preserving the status quo and the inte

legal order. To the extent that the United States undermines the law, it undermines inte

order and those vital interests.45
INTRODUCTION 10 

1. For a discussion of the terms terrorism, international terrorism, state-sponsored 

and state-supported terrorism, see chapter 1. 

2. International law is 

the standard of conduct, at a given time, for states and other entities subject 

thereto. It comprises the rights, privileges, powers, and immunities of states an

entities invoking its provisions, as well as the correlative fundamental duties, 

absence of rights, liabilities and disabilities. International law is, more or less, i

continual state of change and development. 

Department of State, Office of the Legal Adviser, Digest of International Law, vol. 1, 

Marjorie M. Whiteman (Washington, D.C.: June 1963), State Department, 7403. 

Article 38(1), Statute of the International Court of Justice, annexed to the Char

United Nations, identifies the primary sources of international law as (a) ìinternationa

conventions [treaties], whether general or particular, establishing rules expressly recog

the contesting states,î (b) ìinternational custom, as evidence of a general practice acce

law,î and (c) ìthe general principles of law recognized by civilized nations.î The statu

identifies the ìsubsidiary means for the determination of [international] law as (a) judi

decisions and (b) the teachings of most highly qualified publicists.î ìCharter of the Un

Nations,î 26 June 1945, Statutes at Large, vol. 59: 1031; United States Treaty Series (

Department of State, Treaties and Other International Ads Series (TIAS), 5857; Depar

State, Treaties and Other International Agreements of the United States. 1776-1949, co

under the direction of Charles I. Bevans (hereinafter Bevans), vol. 3, Multilateral, 193

1153. 

3. The term ordinary crime as used in this study applies to all criminal acts other t

that arise in time of armed conflict, namely, war crimes and grave breaches of internat

4. In this study, the term domestic law, sometimes referred to as municipal law, re

law internally created by sovereign states as contrasted to international law. 

5. The term law of armed conflict encompasses ìthe international law regulating t

conduct of states and combatants engaged in armed hostilities, often termed the law of 

Force Pamphlet (AFP) 110-31, International LawóThe Conduct of Armed Conflict an

Operations, November 1976, para. 1-2b. 

6.The vice presidentís task force recognized the need for a framework for decision

and recommended that 

the Interdepartmental Group on Terrorism should prepare, and submit to the N

[National Security Council] for approval, policy criteria for deciding when, if a

how to use force to preempt, react and retaliate. This framework will offer 

decisionmaking bodies a workable set of standards by which to judge each 

terrorist threat or incident. 

Vice President, Public Report of the Vice Presidentís Task Force on Combatting Terro

(Washington, D.C.: February 1986), 22. 
INTRODUCTION 11 

of the terrorist challenge, not the least of which has been Judge Abraham D. Sofaer, th

Department of State legal adviser. He has written, ìThe law, as presently formulated c

reasonably be expected to repress international terrorism.î Sofaer, ìTerrorism and the 

Foreign Affairs 64, no. 5 (Summer 1986): 922. See also Fehmy Saddy, ìInternational T

Human Rights, and World Order,î Terrorism: An International Journal 5, no. 4 (1982)

and Grant Wardlaw, Political Terrorism: Theory, Tactics and Counter-Measures (Cam

England: Cambridge University Press, 1982), 120. 

One of the central themes of the present study is that the inadequacy that many obs

exists in international law is merely the reflection of the current state of international r

The frustration of Judge Sofaer and others is with the inability of states to achieve con

future development of international law. International law can only develop as nation-

willing to allow it to do so. No world government exists to legislate. In this sense inter

law is a practical expression of the art of the possible in a world composed of independ

sovereign states. This state of affairs is the realism of international law. 

International law may not be as inadequate as some believe, however. Concepts of 

international law such as choice of law (chapter 2) and state responsibility (chapter 3) 

interesting possibilities that deserve greater attention, as do the principles concerning t

force in contemporary international law (chapters 4-6). As Prof Harry E. Almond, Jr., 

Defense University, has written, 

Accordingly, it must be concluded that with respect to the use of force, the 

loopholes in the law are not substantial. More difficult is the policy question: 

establishing community policy among states, state commitments to that policy, 

and support of states when force is used. 

Almonds ìUsing Law to Combat Terrorism,î in Fighting Back: Winning the War agai

Terrorism, ed. Neil C. Livingstone and Terrell E. Arnold (Lexington, Mass.: D. C. Hea

Co., 1986), 171. Prof Shabtai Rosenne offers these encouraging words: ìinternational 

all law, is common sense writ large.î Rosenne, ìInternational Law and the Use of Forc

Naval War College International law Studies 62 (1980): 8. 

8. For more detail on the efforts to make terrorism a crime, see the records on Con

the Punishment and Prevention of Terrorism, opened for signature at Geneva, 16 Nove

1937, League of Nations, C.94.M.47. l938.V. The general view at present is that effort

criminalize specific acts that terrorists commit have greater hope for success than wou

terrorism itself a crime. In this regard, see the work of the International Law Associati

Committee on International Terrorism, ìInternational Terrorism,î Report of the Fifty-S

Conference Held at New Delhi (Great Britain: 1976), 155-77; ìInternational Terrorism

of the Fifty-Seventh Conference Held at Madrid (Great Britain: 1918), 11941; ìInterna

Terrorism: Third Interim Report of the Committee,î Report of the Fifty-Ninth Confere

at Belgrade (Great Britain: 1982), 495-519; ìInternational Law: Fourth Interim Report 

Committee,î Report of the Sixtieth Conference Held at Montreal (Great Britain: 1983)

and ìTerrorism: Final Committee Report,î Report of the Sixty-First Conference Held 

(Great Britain: 1985), 313-22. For comments on the work of the ILA generally, see Te

An International Journal 7, no. 2 (1984). 
INTRODUCTION 12 

an International Criminal Court, opened for signature at Geneva, 16 November 1937, 

C.94.N4.47. l938.V. For a contemporary discussion of the issue, see M. Cherif Bassiou

International Terrorism and Political Crimes, 3d Conference on Terrorism and Politica

1973 (Springfield, Ill.: Charles C. Thomas for International Institute for Advanced Cri

Sciences, 1975). Regarding the possibility of such a court, this author agrees with Prof 

Hailbronner of the Federal Republic of Germany, who states: ìI think there is no chanc

whatever of reaching agreement on that.î Hailbronner quoted in ILA, ìInternational T

Report of the 56th Conference, 118. 

For comments on efforts to create an international force to combat terrorism, see ì

International Force the Best Way to Fight It,î editorial, Fort Worth Star-Telegram, 1 M

reprinted in ìSpecial EditionóTerrorismî published by the Air Force News Clipping 

Analysis Service, 3 July 1986, 38. In the present study, the author agrees with Grant W

103): ìThe diplomatic and political implications of, for example, an international anti-

strike force are such that suggestions of this kind are never likely to be translated into r

On the efforts to establish a special jurisdiction and legal process for terrorism, see 

Wilkinsonís discussion of French president Valery Giscard díEstaingís suggestion of c

European judicial zone. Wilkinson sees progress in this area as unlikely. Wilkinson, ìP

for a Liberal-Democratic Government Response to Terrorism and Low-Intensity Viole

Domestic and International Levels.î in Terrorism and Beyond: An International Confe

Terrorism and Law-Level Conflict, ed. Brian M. Jenkins (Santa Monica, Calif.: Rand C

December 1982), 220-23, Rand, R-27 14-DOE/DOJ/DOS/RC 

Concerning the development of new customary rules, see article 38(1) of the Statu

International Court of Justice, which provides that international custom is ìevidence o

practice accepted as law.î Two basic conditions are required to create customary law: 

practice of states (material element) and the belief that the practice has been accepted a

psychological element referred to as opinion juris sive necessitatis). This second eleme

distinguishes customary international law from international comity or courtesy (comi

gentium). The possibilities of developing customary law, as distinguished from conven

treaty law, in meeting the challenge of terrorism may have potential. Further research i

area of the law is needed. 

9. International law is but one factor to consider in making a foreign policy decisio

military force. As Brian Jenkins notes, 

How many incidents are likely to warrant a military response? Very few, judgi

by the historical recordÖ Nor is the United States likely to carry out military 

operations on the territory of the Soviet Union or Eastern EuropeÖ Military 

operations in response to terrorism are likely to involve a handful of hostile 

countries in the Third World where the United States has incontrovertible 

evidence that agents in the employ of a government have carried out a terrorist 

attack, that a government has instigated a terrorist attack or permitted one to oc

through willful negligence, or that a government is able to bring the perpetrator

to justice hot refuses to do so. If we apply these criteriaÖ a military response 

might have been contemplated in only a handful of episodesóless than one 

percent. 
INTRODUCTION 13 

Jenkins, Combatting Terrorism Becomes a War, Rand, 6988, Rand Corp., Santa Mo

Calif., May 1984,6. See also Department of the Army, Training and Doctrine Comman

Low-Intensity Conflict Project, vol. 1, Analytical Review of Low-Intensity Conflict (F

Monroe, Va.: August 1986), chap. 6. 

For a discussion that the use of force is likely in the event of nuclear terrorism, see 

Frank, ìNuclear Terrorism and the Escalation of International Conflict,î US Naval Wa

International Law Studies 62 (1980): 339. Another likely occasion for the use of force 

rescue operations. See Gail Basset et al., Options for U.S. Policy on Terrorism (Santa M

Calif.: Rand Corp., 1981), 6, Rand, R-2764-RC. 

The announced United States policy is to use armed force only in compliance with 

international law. Robert C. McFarlane, former assistant to the president for national s

affairs, described the elements of the US active defense policy toward terrorism to the 

Strategy Forum on 23 March 1985. One element was: ìState-sponsored terrorism cons

hostile to the United States and ëmust be resisted by all legal meansí.î Quoted in Almo

69. This US policy was reaffirmed, in relevant part, as follows: ìThe U.S. Governmen

the practice of terrorism by a person or group a potential threat to its national security 

resist the use of terrorism by all legal means availableî (emphasis supplied). Vice Pres

Report on Combatting Terrorism, 7. 

10. Posse Comitatus Act, US Code, Title 18, sec. 1835; 1981 amendment at US Co

10, secs. 37 1-378. For a discussion, see William Regis Farrell, The U.S. Government 

to Terrorism: In Search of an Effective Strategy (Boulder, Colo.: Westview Press, 198

Powers Resolution, US Code, Title 50, secs. 1541-1548 (PL 93-148). 

The United States has enacted specific domestic legislation in direct response to te

See An Act for the Protection of Foreign Officials anti Guests of the United States, US 

Title 18, secs. 112, 878, 970, 1116, 1117, and 1201 (PL 92-539); US Code, Title 18, se

makes criminal the taking of US hostages worldwide; (IS Code, Title 18, sec. 3077, au

the attorney general to pay rewards for terrorism suppression; Foreign Intelligence Sur

Act (FSA), US Code, Title 50, sec. 1801 et seq.; and Antihijacking Act (PL 93-366). 

11. The 15 April 1986 US raid on Libya provides an example of how important lan

overflight rights can be to a military operation. For a brief discussion of the United Kin

authorization to allow US forces to depart on the mission, see James M. Perry, ìThatch

Harsh Criticism by Labour, European Allies for Sanctioning Libya Strike,î Wall Stree

European edition, 16 April 1986, 4. Concerning overflight rights, see James M. Markh

ìGerman Voices Doubts on Qaddafi Terror Role,î New York Times, 2 September 198

12. Regarding aerial hijacking, see ìConvention for the Suppression of Unlawful A

against the Safety of Civil Aviationî (Montreal Convention), 23 September 1971, TIA

Department of State, United States Treaties and Other International Agreements (UST

pt. 1, 564; ìConvention for the Suppression of Unlawful Seizure of Aircraftî (Hague 

Convention), 16 December 1970, TIAS 7192, UST, vol. 22, pt. 2, 1641; and ìConvent

Offenses and Certain Other Acts Committed on Board Aircraftî (Tokyo Convention), 

September 1963, TIAS 6768, UST, vol. 20, pt. 3, 2941; United Nations Treaty Series (

Treaties and international Agreements Reported and Filed or Recorded with the Secret

United Nations, vol. 704 (1969), no. 10106, 219. 

On hostage taking, see ìConvention to Prevent and Punish the Acts of Terrorism T
INTRODUCTION 14 

February 1971, TIAS 8413, UST, vol. 21, pt. 4, 3949; Organization of American State

AG/88/rev.; and ìInternational Convention against Taking of Hostages,î 17 December 

A/34/819 (1979). 

Regarding letter bombs, see ìUniversal Postal Convention,î 10 July 1964. TIAS 5

vol. 16, pt. 2, 1291. For a discussion of this convention, see L. C. Green, ìInternationa

the Control of Terrorism,î Dalhousie Law Journal 7, no. 2 (April 1983): 244. 

Regarding diplomats, see ìConvention on the Prevention and Punishment of Crime

Internationally Protected Persons, Including Diplomatic Agentsî (New York Conventi

December 1973, TIAS 8532, UST, vol. 28, pt. 2, 1955. 

Requests regarding extradition ënay be denied on the basis of the political offense 

Although the basic rule in international law is cooperation among states with respect to 

from justice, an exception to this rule for political offenses arose during the eighteenth

revolutions for political freedom and liberty. How broadly the exception is interpreted 

dispute. Some argue that it should extend only to those whose extradition is sought for 

political freedoms such as free speech. Others argue that it extends to any political stat

such as violence in furtherance of oneís political cause. This issue takes on significanc

context of terrorism. If one assumes the broad view of the political offense exception, 

must agree with Noemi Gal-Or, who argues that ìthe problem of determining the polit

character of the political terrorist offence is non-existent. Such an offence is by definit

political offence par excellenceÖ The terrorist offence always fits into some theoretic

of political offence.î Gal-Or, international Cooperation to Suppress Terrorism (New Y

Martinís Press, 1985), 136. 

A broad view would inhibit greatly extradition of terrorists to stand trial in countri

they committed their acts. Recently the United States and the United Kingdom conclud

supplement to their extradition treaty narrowing the political offense exception. Much 

be done in this area. For a general discussion, see Department of State, Bureau of Publ

ìThe Political Offense Exception and Terrorism,î statement by Abraham Sofaer, legal 

Department of State, before the Senate Foreign Relations Committee, 1 August 1985, 

Policy 762. 

13. Another related issue concerns assassination. For US guidance, see Executive O

12333, US Intelligence Activities, 4 December 1981, Code of Federal Register (CFR), 

The President, 1981 Compilation, 200; Christopher Dobson and Ronald Payne, Counte

The Westís Battle against the Terrorists (New York: Facts on File, 1982), xv-xvi; and 

Jenkins. ìAssassination: Bad Policy. Morally and Logically,î Alabama Journal-Montg

Advertiser, 16 November 1986, 5(B). 

14. Brian Michael Jenkins. ìResearch Note: Randís Research on Terrorism.î Terro

International Journal 1, no. 1 (1977): 92. 

15. A concise history of the steps leading to the 1937 Convention for the Preventio

Punishment of Terrorism is in Proceedings of the International Conference on the Rep

Terrorism, League of Nations, C.94.M.47.l938.V (1938.V.3), 49-50. See also Maj Wil

Farrell, USAF, ìTerrorism Is .?î Naval War College Review 32, no. 3 (May-June 1980

Seymour Maxwell Finger, ìInternational Terrorism and the United Nations ì in Intern

Terrorism: National, Regional and Global Perspectives, ed. Yonah Alexander (New Y

Praeger Publishing, 1976), 323; Thomas M. Franck and Bert B. Lockwood, Jr., ìPrelim
INTRODUCTION 15 

Law 68, no. 1 (January 1974): 69-70; and Robert A. Friedlander, Terror- Violence: As

Social Control (New York: Oceana Publications, 1983), 87. 

16. UN General Assembly, Official Records (UN GAOR), 27th sess., A/8791 (197

17. Sofaer, 903. 

18. The breadth of the gap is illustrated by the remarks of delegates speaking in be

third world position during the UN Sixth (Legal) Committee meetings. Guinea suppor

right of national liberation movements ìto undertake any type of action to assure that t

countries attain independence.î UN Sixth (Legal) Committee, 1362d meeting, UN GA

sess., A/C.6/SR. 1362 (1972), 16. The Cuban representative noted that ìthe methods o

used by national liberation movements could not be declared illegal while the policy o

unleashed against certain peoples was declared legitimate.î UN Sixth (Legal) Commit

meeting, UN GAOR, 27th sess., A/C.6/SR. 1358 (1972), 11. The Madagascar represen

that ìacts of terrorism inspired by base motives of personal gain were to be condemned

political terrorism, on the other hand, undertaken to vindicate hallowed rights recogniz

United Nations, were praiseworthy. It was, of course, regrettable that certain acts in th

category affected innocent persons.î UN Sixth (Legal) Committee, 1365th meeting, U

27th sess., A/C.6/SR.1365 (1972), 14. 

The UN Sixth (Legal) Committee recommended to the UN General Assembly that 

member ad hoc committee on terrorism be formed. The committee met from 16 July th

August 1973. That it failed to provide more than a summary of divergent views and th

unable to produce a draft convention should come as a surprise to no one. For a discus

committeeís lack of success, see Wardlaw, 109. According to Franck and Lockwood (

committee did not produce a recommendation since ìserious study of the causes of ter

long term project.î The committee reconvened on 14 and 25 March 1977, but again m

result and its report reflected the divergent opinions of its member countries. See Ward

19. New York Convention. 

20. UN Convention against Taking Hostages. For a discussion of this convention, 

252-54. 

21. UN General Assembly, ìConvention on the Prevention and Punishment of Crim

Internationally Protected Persons, Including Diplomatic Agents,î 14 December 1973, 

3166, UN GAOR, 28th sess., supp. 30, A/9030 (1973), 146. 

22. See Farrell, ìTerrorists,î 66-67; David L. Milbank, ìInternational and Transnat

Terrorism: Diagnosis and Prognosis,î in Contemporary Terrorism: Selected Readings, 

D. Elliott and Leslie K. Gibson (Gaithersburg, Md.: International Association of Polic

1978); and Paul Wilkinson, Terrorism and the Liberal State (New York: John Wiley an

Halsted Press, 1977), 221. 

23. Brian Michael Jenkins, ìA Strategy for Combatting Terrorism,î Rand, 6624, R

Santa Monica, Calif., May 1981, 7-8. Or, as noted by Manuel R. Garcia-Mora, 

punishing terrorists is further complicated by the fact that no government is rea

willing to punish individuals when in so doing its political interests might be 

jeopardized. This observation is even more compelling in situations where a sta

avails itself of the activities of private persons to promote its international 

objectives. 
INTRODUCTION 16 

Garcia-Mora, International Responsibility for Hostile Acts of Private Persons against F

States (The Hague, Netherlands: Martinus Nijhoff, 1962), 195. 

24. George Bunn, ìInternational Law and the Use of Force in Peacetime: Do U.S. 

Have to Take the First Hit?î Naval War College Review 39, no. 3 (May-June 1986): 7

25. See, for example, UN General Assembly ìBasic Principles of the Legal Status 

Combatants Struggling against Colonial and Alien Domination and Racist Regimes,î 

December 1973, Resolution 3103, UN GAOR, supp. 30, 28th sess., A/9030 (1973). Th

the struggle of national liberation movements is central to the UN arena and the desire 

third world to press for consideration of the cause before condemning the act. The prob

course, that one groupís national liberation is anotherís aggression. It also brings back 

law the concept of just war, which has long since been discarded. In this latter regard P

Norton Moore writes that the argument for national liberation movements is: 

nothing more than the old ëjust warî notion resurrected in the modern setting o

the post-Charter period, and it violates that judgmental decision made by the 

framers of the Charter that war in the modern world is too destructive to allow 

social change to be brought about in international relations through the use of 

force. 

Moore, ìLegal Standards for Intervention in Internal Conflicts,î Georgia Journal of In

and Comparative law 13, supp. (1983): 196. See also Richard R. Baxter, ìThe Geneva 

Conventions of 1949 and Wars of National Liberation,î in Bassiouni; Lt Cot Frances T

USAF, ìTerrorism and the Amended Law of War,î student research paper (Maxwell A

Air War College, 15 June 1982), 7-8; and Edward McWhinney, ìInternational Terroris

Nations Projects for Legal Controls,î Terrorism: An International Journal 7, no. 2 (198

84. 

Of what legal effect are United Nations resolutions? Generally speaking, they have 

binding authority. However, to the extent that they express the will of the international 

community, they may have authority. In this regard the West ought to be gravely conc

about the course of events in the UN General Assembly and about the content of Gene

Assembly resolutions. They could impact on the development of customary internation

manner adverse to the foreign policy interests of the United States and the West. For a 

of General Assembly resolutions, see Jorge Castaneda, Legal Effects of United Nation

Resolutions (New York: Columbia University Press, 1969), and ìReport of the Comm

Use of Force in Relations among States,î in ILA, American Branch, 1985-86 Proceedi

Committee Reports (New York: ILA, American Branch, 1986), 191. 

26. Neil C. Livingstone and Terrell E. Arnold, ìDemocracy under Attack,î in Figh

ed. Livingstone and Arnold, 9. See also Benjamin Netanyahu, ìTerrorism: How the W

Win,î Time, 14 April 1986, 57; Gayle Rivers, The War against the Terrorists: How to 

(New York: Stein and Day, 1986), 225; and Paul Wilkinson, ìCan a State Be a ëTerror

International Affairs 57, no. 3 (Summer 1981): 468. 

27. Interpol constitution quoted in Edward A. Lynch, ìInternational Terrorism: Th

for a Policy,î Terrorism: An International Journal 9, no. 1 (1986): 68. 

28. See Dobson and Payne, xx. 
INTRODUCTION 17 

30. United Kingdom, Foreign and Commonwealth Office, International Reaction 

Terrorism,î background brief, January 1986, 5. 

31. ìOur goal,î in the words of Secretary of State Shultz, ìmust be to prevent and d

future terrorist acts.î George P. Shultz, ìTerrorism and the Modern World,î Terrorism

International Journal 7, no. 4 (1985): 442. See also Netanyahu, ìTerrorism: How the W

Win,î 50; Jeffrey A. Sheehan, ìThe Entebbe Raid: The Principle of Self-Help in Intern

Law as a Justification for State Use of Armed Force,î Fletcher Forum 1 (Spring 1977)

Paul Wilkinson, ìProposals for Government and International Responses to Terrorism

Terrorism: An International Journal 5, nos. 1-2 (1981): 161-93; and Senate, Committe

Judiciary, Subcommittee on Security and Terrorism, Report on ìState-Sponsored Terro

ì99th Cong., 1st sess., June 1985, Senate print 99-56, 74-75. 

32. Wilkinson, ìResponses to Terrorism,î 192-93. 

33. William J. Casey, ìInternational Terrorism: Potent Challenge to American Inte

address at Fletcher School of Law and Diplomacy, Tufts University, Medford, Mass., 

1985, in Terrorism, ed. Steven Anzovin, The Reference Shelf, vol. 58, no. 3 (New Yor

Wilson Co., 1986), 69; reprinted from Vital Speeches 51, no. 23 (15 September 1985)

34. According to Secretary Shultz ìa purely passive defense does not provide enou

deterrence to terrorism and the states that sponsor it.î George P. Shultz ìTerrorism: Th

Challenge to Democracy,î address to the Jonathan Instituteís Second Conference on 

International Terrorism, Washington, D.C., 24 June 1984, in Anzovin, 58; reprinted fr

Department of State Bulletin 84, no. 2089 (August 1984). On 9 July 1986, Secretary S

stated further, ìWe have to be willing to do something about it in an active wayÖ and 

should know and states that support terrorists should know that the United States will t

and therefore they donít operate in a cost-free environment.î Department of State, ìRe

Q&A Sessions by the Honorable George P. Shultz, secretary of state, before Foreign P

Center seminar, Countering State Supported Terrorism,î Press Release 147, 9 July 198

also Casey, 70-7 1; McFarlane, quoted in Almond, 168-69; and Vice President, Report 

Combatting Terrorism. 7. 

35. For discussion of NSDD 138, see Jenkins, ìCombatting Terrorism Becomes a W

Col James P. Terry, USMC, ìAn Appraisal of Lawful Military Response to State-Spon

Terrorism,î Naval War College Review 39, no. 3 (May-June 1986): 59; David C. Mor

ìThe ëShadow Warí,î National Journal 18, no. 19 (10 May 1986): 1100; and Stephani

ìMove on Terrorism Ordered by Reagan,î Washington Times, 16 April 1984, 1. 

36. For a discussion of NSDD 207, see US Army, Analytical Review, 8-3. 

37. George P. Shultz, Washington Post, 25 June 1984, 1(A). 

38. Jenkins, ìCombatting Terrorism Becomes a War,î 3. 

39. Casey, 70. 

40. Paquette Habana, 175 US 677 (1900), 700. 

41. Louis Henkin, ìInternational Law as Law in the United States,î Michigan Law 

82 (AprilóMay 1984): 1561. 

42. Abram Chayes, ìInternational Law Issues: The Opposition Position,î in The C

Incursion: Legal Issues; Proceedings of the Fifteenth Hammarskjold Forum, ed. Donal

(Dobbs Ferry, N.Y.: Oceana Publications for the Association of the Bar of New York 

1971), 41. 
INTRODUCTION 18 

97; and Wilkinson, Terrorism and the Liberal State. 

44. Oscar Schachter, ìThe Right of States to Use Armed Force,î Michigan Law Re

(April-May 1984): 1623-24. See also Livingstone and Arnold, ìDemocracy under Atta

and Edward Marks and Debra van Ostpal, eds., Combating Terrorism: A Matter of Lev

(Washington, D.C.: Georgetown University Center for Strategic and International Stud

1986), 16-18. 

45. Sec Francis A. Boyle, ìThe United Nations Charter and the Iranian Hostage Cr

Terrorism, Political Violence and World Order, ed. Henry Hyunwook Han (Lanham, M

University of America. 1984), 537-39; and Stanley Hoffmann, ìInternational Law and 

Control of Force,î in The Relevance of International Law, ed. Karl Deutsch and Stanle

Hoffmann (Cambridge, Mass.: Schenkman Publishing Co., 1968), 21-46. 
WHAT IS TERRORISM AND HOW SERIOUS IS 

THE THREAT? 

The purpose of terror is to terrorize. 

V.I. Le

The one means that wins the easiest victory over reason: terror and force. 

Adolf Hi

The lesson is that America was kicked out of Lebanon when an individual Arab 

was able to kill 300 AmericansóAn armed people will never be defeated, but 

regular armies are unreliable. 

Muíammar al-Qad

As discussed in the next chapter, international law offers two distinct approach

managing terrorism: law enforcement and the law of armed conflict.í Whether either a

appropriate is another question; whichever is best will depend in large measure on the 

the terrorist challenge. We must understand the challenge of terrorism before we can a

suitability of a response. 

This chapter provides the foundation for that understanding. In this chapter we 

as best we can what terrorism is and how serious the threat is. We seek answers to que

as: Is terrorism a minor nuisance or a significant threat to national security? Is it likely 

temporary or an enduring problem? What factors should be considered in evaluating th

Some of these questions cannot be answered completely. However, to the extent that w

make assumptions about terrorism, we must identify them clearly. By distinguishing b

knowledge and assumption, decisionmakers will have a clearer understanding of the is

the alternative courses of action. 

CHAPTER 1 19
terminology must we understand? What is international terrorism? In what ways do sta

involve themselves with terrorists? What distinguishes between state sponsorship, stat

state toleration, and state inaction? How serious is the terrorist threat? Is it a recent thr

it have historical antecedents? Do statistics support the conclusion that the threat is ser

What other factors should we consider to place the magnitude of the challenge into the 

perspective? 

What Is Terrorism? 

According to Darrell M. Trent, associate director and senior research fellow, H

Institution, terrorism has ìno shared definition.î

2 Brian Jenkins of the Rand Corporatio

that terrorism is a ìfad word used promiscuously. . . . What we have, in sum is the sl

of a word that is rather imprecisely defined to begin with.î3 Others have noted that it is 

ìwith various connotations and no singular meaningî4 and that terrorism is a term in co

[having] little common meaning.î5

The term terrorism is an emotive word with negativ

connotations: ìTerrorism, like beauty, remains in the eye of the beholder.î6

 According 

psychologist H. H. A. Cooper, ìterrorism is thus an easily recognized activity of bad c

subjectively determined and shaped by social and political considerations.î7 

Dutch political scientist Alex P. Schmid, in Political Terrorism, reviewed more 

definitions of terrorism written between 1936 and 1981. From these he identified 22 el

and 20 purposes or functions of terrorism. The five most frequently identified element

violence or force, political purpose, terror or fear, threat, and anticipated psychologica

reactions by third parties.í The five most frequently identified purposes or functions w

terrorize or put the public in fear, provoke indiscriminate repression or countermeasure

established authorities, mobilize the forces of terrorism or immobilize the farces of the 

established authorities, affect public opinion in a positive or negative way, and seize p

power or overthrow regimes.9

Although Schmidís study highlights the diversity of views on terrorism, it also 

some general-impressions of what terrorism is about. But these impressions are only v

feelings: political violence, fear, innocent victims, third-party influence, and criminal a

warlike activity. Lacking a common definition of terrorism creates problems of commu

and understanding. Absent an agreed-on definition, statistics must be compiled on the 

assumptions about terrorism. Without a universal definition or standard of what terrori

data bases and statistical collections on terrorism are suspect. To appreciate fully the st

offered, the assumptions underlying the collection of the data must be stated. Unless th

assumptions are stated, comparison of data collected by various organizations, groups, 

individuals is extremely difficult if not impossible. Not only are assumptions likely to 

compiler to compiler, but in compiling their data bases groups may change their basic 

assumptions over time, making comparison of even their data toilsome, if not invalid. 

Rand Corporation10 and the Central Intelligence Agency (CIA)11 data collection efforts 

the problem.

CHAPTER 1 20
The edifice of legitimations, note sociologists P. L. Berger and T. Luckman, is buil

language and uses of language as its principal instrumentality.î12 Language is not neut

value laden. As Brian Jenkins aptly wrote, ìUse of the term [terrorism] implies a mora

judgment; and if one party can successfully attach the label terrorism to its opponent, t

indirectly persuaded others to adopt its moral viewpoint.î13 As Australian criminologis

Wardlaw has noted, ìThis has led a number of writers to contend that the term ëterrori

be used as a behavioral description because it will always carry the flavour of some m

judgement. î14 Certainly the struggle for legitimacy, whether by those fighting terroris

those wishing to avoid being branded as such, must be recognized. 

The issue is a matter of very real concern to all parties. Wrapped up in the law 

recognition, standing, and equality. The more legitimacy a terrorist organization can ob

more it stands on a par with government; the more likely it is to gamer support of mon

men from others; and the better able it will be to pursue its goals. Yasir Arafatís welco

United Nations, for example, gave increased legitimacy to the Palestine Liberation Org

(PLO) and to its methods. Governments opposing terrorism are especially sensitive to 

matter. They want domestic and international law applied to terrorists in a manner den

any measure of legitimacy. In particular, they insist on characterizing every act of terro

criminal. Chapter 2 looks more closely at this issue and the possibilities available in la

governments for accomplishing their objectives. 

Moreover, this lack of ìuniversal agreement about who is a terrorist [exists bec

political and strategic goals affect different states differently. î 15 Religion and ideolog

hamper efforts to reach an agreed-on definition. The third world approach to terrorism 

influenced by their support for national liberation movements. The diverse political an

goals of Israel and the Arab states in a setting of religious struggle gives each of them 

perspective of what is terrorism. Similarly, the political and strategic goals of the Unit

and those of an ideologically motivated Soviet Union affect superpower assessment of 

Nicaraguan contras, the Afghans on either side, and the PLO. 

Even within the US government, officials do not have a uniform view of what 

terrorism. A 1985 Senate report concluded that ìeach agency or office of government h

approached the problem of definition from its own point of view and responsibilities.î

differences abound as each federal agency has written its own definition. Walter Laque

chairman of the Research Council, Center for Strategic and International Studies, Geor

University, noted that ìthe U.S. Government alone has provided half a dozen [definitio

are by no means identical.íí17

Although the US government has produced numerous definitions of terrorism, 

most authoritative are: 

CHAPTER 1 21
The unlawful use or threat of violence against persons or property to further 

political or social objectives. It is generally intended to intimidate or coerce a 

government, individuals or groups to modify their behavior or policies.18

2. Department of State 

Premeditated, politically motivated violence perpetrated against noncombatant 

targets by subnational groups or clandestine state agents, usually intended to 

influence an audience.19

3. Department of Defense 

Unlawful use or threatened use of force or violence against individuals or 

property, with the intention of coercing or intimidating governments or societie

often for political or ideological purposes.20

Being the most authoritative does not mean that these definitions are official. A

vice presidentís task force and the Department of State acknowledge, ìwhile neither th

States nor the United Nations has adopted official definitions of terrorism, Americans 

recognize the bombing of an embassy, political hostage taking and most hijackings of 

as terrorist acts.î21 Simply put, these are definitions drafted and used by US governmen

and groups but none are officially the accepted definition of the US government. 

Each of the three definitions is flawed in some way; thus the unofficial status o

fortunate. The major defect in the State Department definition is the omission of the m

unlawful to describe the violence perpetrated by terrorists. It is inconceivable that terro

violence could ever be other than illegal and criminal. The vice presidentís task force a

Department of Defense (DOD) definitions have the same problem. Both believe it pos

terrorize property. It is difficult to imagine threatening property in the terrorist sense. P

inanimate. Ultimately property put at risk must threaten a human being if it is to gener

terroróan essential element of terrorism. The DOD definition contains another, perhap

serious, problem. It suggests by the use of the word often that terrorism might occur fo

than political or ideological reasons. If terrorism can result from acts motivated by per

reasons, then how can terrorist acts be distinguished from ordinary crimes?

Terrorism is a slippery subject and the foregoing comments indicate the compl

the definitional problem. Perhaps the most that can be hoped for is a sense or feeling f

terrorism is. Secretary of State George P. Shultz may have best sensed it when he wrot

ìTerrorism is, above all, a form of political violence.î22 For purposes of this study the 

definition crafted from the three authoritative ones discussed above will be used as a g

guide: 

CHAPTER 1 22
governments, societies, or individuals for political, social, or ideological purpo

Is a Legal Definition Necessary? 

A generally accepted definition of terrorism does not exist in international law.

words of George Washington University law professor W. T. Mallison, Jr., ìterror and 

are not words which refer to a well defined and clearly identified set of factual events. 

the words have any widely accepted meaning in legal doctrine. Terror and terrorism, 

consequently, do not refer to a unitary concept in law or fact.î

24

The first attempt at a definition in international law was in the 1937 Conventio

Prevention and Punishment of Terrorism. That convention defined ìacts of terrorismî 

ìcriminal acts directed against a State and intended or calculated to create a state of ter

minds of particular persons, or a group of persons or the general public.î25 Other provi

the convention severely restricted the acts recognized as crimes chiefly to those comm

against public officials. The convention never entered into force and the definition, tho

many to be narrow and unrealistic, became a dead letter.26 From that time until the pre

further definition of terrorism in international law has been formulated. A 1972 United 

effort at a convention on terrorism, which included a legal definition, failed. The most 

effort on terrorism, General Assembly Resolution 40/61, 9 December 1985, does not e

attempt to define it.27

International lawyers are divided ova whether, the lack of an international law 

of terrorism is a serious problem.

28 But most agree with the late Judge Richard Baxter, 

University law professor and judge of the International Court of Justice (ICJ), that ìwe 

cause to regret that a legal concept of ëterrorismí was ever inflicted upon us. The term 

imprecise; it is ambiguous; and above all, it serves no operative legal purpose.î29 If on

the long history of the UN effort to define aggression, a term that much like terrorism 

emotional, value laden, and inextricably intertwined in politics, then one is led to ackn

the wisdom of Judge Baxter. 30

Why has a legal definition of terrorism been so difficult to achieve? The answe

the issue of legitimacy but viewed from a slightly different perspective. States wish to 

themselves the political and legal determination of what terrorism is. They do not wan

bound by an abstract definition that could create serious political problems in a particu

situation.31 Also, some states see efforts directed at terrorism as opposition to self-dete

Others see measures aimed at controlling terrorism as disguised measures aimed at the

Still others see the need to address the underlying causes of terrorism before terrorism 

be addressed.32

CHAPTER 1 23
emotive aspects. Such a new term would not be so easy to conjure up. However, such 

approach has a precedent. The evolution of the term quarantine in the Cuban missile cr

example, but the creation of this new term was not without criticism. 33 

Second, terrorism could be viewed as merely one aspect of a much larger huma

issue. This view was reflected in the thinking of the Carter administration.34 This appro

rooted in the observation of University of Houston law professor Jordan Paust that ìhu

expectations seem to prohibit all forms of violent terrorism per se.î35 However, treatin

as a human rights question is a two-edged sword. 

A persuasive argument can be made that human rights and terrorism are fundam

incompatible and that terrorism must yield to the higher community value of human ri

Therefore, terrorism is unlawful activity. But, if terrorism is a human rights issue, then 

human rights issues terrorism should be judged by the purpose or cause which it is inte

serve. Suggesting that the terrorist cause might be germane to judging the lawfulness o

acts is anathema to the West. In the words of Secretary Shultz, ìthe grievances that ter

supposedly seek to redress through acts of violence may or may not be legitimate. The 

acts themselves, however, can never be legitimate. And legitimate causes can never ju

excuse terrorism. Terrorist means discredit their ends.íí36

A third approach is to focus on the acts of terrorists and seek to criminalize tho

through international agreement rather than attempting to define terrorism. The Comm

Terrorism of the International Law Association has taken this tack. 37 The United State

supporting those bilateral and multilateral conventions that prohibit certain acts such a

and those agreements that protect diplomatsóhas furthered this approach.38 But this ap

has serious limitations not the least of which are loose language, unenforceability, and 

nonratification by states whose conduct supports terrorists. Each of these three approac

further study. 

This study focuses on a fourth approach: the use or threatened use of military f

abroad. When certain factual circumstances exist, a nation is justified under internation

resorting to the use or threatened use of military force. This principle applies even in th

of an accepted international law definition of terrorism. Put another way: What legal 

preconditions justify the force option? Subsequent chapters will consider those factual 

circumstances. 

We can strive to develop definitions for particular documents as required, but w

not be consumed in the task of attempting to write a general all-encompassing legal de

fully describe such a complex subject. Definitions are merely tools which, in and of th

are more or less useful. As long as we have a sense of the social phenomenon of terror

general legal definition may be unnecessary. And although a general international law 

does not exist, we can proceed without one. Other terminology used in this study, how

requires clarification, not in the legal but in the factual sense. 

CHAPTER 1 24
The Department of State defines international terrorism as ìterrorism involving 

or territory of more than one country.î39 For purposes of this study, however, the more 

definition proposed by Brian Jenkins is adopted. He defines international terrorism as 

incidents in which terrorists go abroad to strike their targets, select victims or 

targets because of their connection to a foreign state (diplomats, executives or 

foreign corporations), attack airliners on international flights, or force airliners 

fly to another country. It excludes the considerable amount of terrorist violence 

carried out by terrorists operating within their own country against their own 

nationals, and in many countries by governments against their own citizens.40

As Jenkins notes, ìInternational terrorism in this sense is violence against the ësystemí

outside the ësystemí.î41 It is terroristic violence ìacross international î42 having ìintern

repercussions; or acts of violence which are outside the accepted norms of internationa

diplomacy and rules of war.î43 Precisely this type of terrorismóthat is, terrorism proje

across national frontiersóis the concern of international law. International terrorism is 

international law issue.44

Hence, state sponsorship or support is not a precondition for international terro

the term is used in this study. The CIA45 and some scholars46 distinguish international 

from transnational terrorism47 based on whether the terrorist act is state sponsored. In C

rhetoric, state-sponsored international terrorism would be a redundancy. Not so here. T

does not adopt the CIA approach because of the need to consider the nature and degree 

involvement in international terrorism as a separate issue from whether terrorists opera

national boundaries. The latter condition, per se, violates international law, while the l

kind of state involvement are factors that determine the legal remedies open to the harm

as we shall see in the discussion of state responsibility in chapter 3.48

Levels of State Involvement 

As noted by Prof John H. Murphy, Villanova University, ìthe whole issue of st

support of international terrorism, however, is badly in need of typology; there are diff

kinds of state support.î49 Four levels of state involvement, from greatest to least, are: 

sponsorship, support, toleration, and inaction through inability to act. Because these le

not been understood nor carefully delineated in the general literature, some confusion p

CHAPTER 1 25
State sponsorship exists when a state directly uses international terrorism as a

weapon of warfare to gain strategic advantage where they cannot use conventional me

According to the CIA, 1980 was ìthe first year [since World War II] that a large numb

deadly terrorist attacks were carried out by national governments. î51 State-sponsored 

to turn a phrase of Gen Carl von Clausewitz, ìis a continuation of war by other means.

Senate report agreed that terrorism ìcan be another tool for nations to project military 

political power. Terrorism [becomes] an instrument that can be brought into action wh

state wishes to project its power into the territory of another without accepting the resp

accountability, and risks of avowed belligerency.î52 States identified by the United Sta

government as having sponsored international terrorism at one time or another include 

Iraq, Syria, and South Yemen.53

State Support 

State support of international terrorism exists when a state uses its resources to 

assistance in the form of training, arms, explosives, equipment, intelligence, safe haven

communications, travel documents, financing, or other logistic support but does not di

terrorist incidents.54 States give support when they provide capability without assumin

or direction. Current evidence suggests that the Soviet Union and Soviet-bloc countrie

including Bulgaria, Cuba, Czechoslovakia, and East Germanyóare actively providing 

of state support.55

State Toleration 

State toleration exists when states, although aware of terrorist groups within th

do not support them but do not act to suppress them either. Such terrorists groups may 

supporting or may have foreign sponsors or supporters. They may carry out their terror

activities primarily abroad having reached an unspoken understanding with the host go

Allegations that some Western European nations have tolerated international terrorists 

their borders have surfaced from time to timeóthe Euzkadi ta Azkatasuna (Basque Na

Liberty movement) in southwestern France, for example). 

State Inaction 

In this particular circumstance, the state does not wish to ignore international te

within its borders but lacks the ability (either through inadequate domestic police and m

forces or lack of technology) to respond effectively. In such a situation, as we shall see 

3, the stateís responsibility to deal with these terrorists continues. It may meet this resp

by inviting another state or regional organization to assist it. The aerial hijacking to M

in 1977 is an example. The Somalian government, unable to act, asked for assistance f

West German government. If a state is incapable of responding to international terroris

does not request outside help, then a situation may arise in which assistance may be gi

without an invitation. The Entebbe hostage rescue is sometimes cited as an example, a

CHAPTER 1 26
Terrorism in Perspective 

Scholars agree that terrorism is an ancient trade, a form of political activity as o

history. The Romans had to deal with the terrorism of the sicarii, a sect of Jewish zealo

in ancient Judea (AD. 66ó73). Hassan Ben Sabbah, born in AD. 1007, was the leader 

that reputedly drugged its victims with hashish prior to killing them. The word assassin 

from this sectís method of murder. In the period of the Jacobins, 1793ó94, France ha

of Terror. It is from these times that the word terror was added to our vocabulary. The 

of nineteenth- and twentieth-century anarchist and terror groups are well known. Infam

the Peopleís Will (Narodnaya Volya) and their assassination of Russian tsar Alexande

1881; the Israeli Stern gang of the 1930s and l940s; and factions of the Palestine Liber

Organization.56

Over the years, several political thinkers have written about this phenomenon. 

Nietzsche wrote, ìWe are terrified by the idea of being terrified.î57 Niccolo Machiavel

in The Prince that ìin actions of man, and especially princes, from which there is no ap

end justifies the means. Let a prince therefore aim at conquering and maintaining the s

the means will always be judged honorable and praised by everyone.î58 Mikhail Bakun

Russian anarchist, called terrorism ìthe propaganda of the dead.î59 

The historical examples cited thus far have been of domestic terrorism. It woul

error to conclude, as some do, that domestic terrorism is old but international terrorism 

having its origins in the midtwentieth century. We can find many prominent examples 

international terrorism. On 14 January 1858 Felice Orsini, an Italian, attempted to assa

Emperor Napoleon III and Empress Eugenie of France. On 28 June 1914 a Serbian, Ga

Princip, a member of Young Bosnia (Mlada Bosna), assassinated Archduke Francis Fe

Austria and his wife at Sarajevo, Yugoslavia. This act played a vital role in igniting W

As Paul Wilkinson of the University of Aberdeen notes, after the First World War inte

terrorists were endemic in the new Balkan States.60

Although surveys of history show that terrorism has been a problem for earlier 

statistics available today seem to indicate that terrorism now may be far more widespr

acceptable as a form of political action than at any time in the past. Keeping in mind th

problems and assumptions underlying data collection, as previously noted, what gener

impressions can statistics provide us about the threat? Department of State* statistics (

the five years 1980ó84 indicate that international terrorist incidents are on the rise. 

CHAPTER 1 27
Source: US Department of State, ìInternational Terrorism,î Selected Docume

24 (1986), 3 

Figure 1. International Terrorist Incidents, 1980-44. 

*The Department of State is the lead agency in the US government on international ter

CHAPTER 1 28
rising to 812 in 1985.

 This trend probably will continue upward in the years to come

Approximately 25 percent of all incidents were directed against Americans; of these, t

directed against Defense Department personnel and facilities is shown in table 1. 

TABLE 1 

International Terrorist Incidents 

Involving DOD Personnel, 1980ó84 

Year Number of Incidents 

 1980 43 

 1981 56 

 1982 67 

 1983 56 

 1984 60 

 1985 47 

Source: USAF Special Operations School, Dynamics of International Terrori

Course, Class 86J, August 1986, Hurlburt Field, Florida. 

Figure 2 shows the number of total US casualties killed or wounded as a result 

international terrorist incidents for the period 1981 through 1985. In reviewing the stat

the late 1960s to the present, we find that fewer than 500 Americans have been killed a

of incidents.63 The 241 Marines and other service members who died in Beirut in 1983 

more than half this figure. In 1984, 31 Americans were injured and 11 killed; 160 Ame

were injured and 233 killed in 812 terrorist incidents in 1985. Compared to the 45,000 

highway fatalities and the 18,000 American homicides in 1985, this threat does not see

significant.64 The threat seems even less serious when we are told by the Federal Burea

Investigation (FBI) that for the past two and one-half years no international terrorist in

have occurred in the United States.65

CHAPTER 1 29
1985 figures are preliminary and may be subject to review and revision 

Source: US Department of State, ìPatterns of Global Terrorism: 1984,î 

November 1985, ii. 

Figure 2. Casualties from International Terrorist Attacks, 1981-85. 

In pure numbers the international terrorist threat appears to be overstated. ìThe 

amount of violence caused by international terrorism,î admits Brian Jenkins, ìhas been 

exaggerated. Compared with the world volume of violence or national crime rates, the 

been small.î66 He also notes, ìIndeed, compared with the volume of ordinary violent c

amount of terrorist violence is minuscule.î67 In yet another analysis, Jenkins observes, 

devaluating human life it might also be pointed out that terrorism at least at its current 

bearable price. A comparison of the toll of terrorism versus the toll of ordinary crimes 

serve to reduce an exaggerated sense of alarm caused by a relatively few, albeit drama

CHAPTER 1 30
Statistical data in itself does not support the proposition that international terro

serious threat.69 Some writers have suggested that ìthe United States might be far bette

ignore terrorism on the political level, both minimizing its inability to deter attacks and 

the status of terrorists from international outlaws to common criminals.î70 The United 

however, has not chosen to follow this course. According to the Vice Presidentís Task 

Combatting Terrorism, in 1985 the US government spent more than $2 billion and 18,

years addressing this problem.

71 This effort also consumed much valuable time of man

US officials.

Why does combating international terrorism rank so high on the national agend

be as serious an issue as war, national debt, overpopulation, starvation, trade balance, a

disease? And why was Secretary Shultz moved to say on 4 February 1985: ìTerrorism 

direct threat not only to Western strategic interests but to the very moral principles tha

Western democratic society [emphasis supplied]?î

72 Several factors make internationa

a threat beyond what mere numbers suggest. 

Perception

The strength in terrorism is not in action but in reaction. The effect is greater th

event. Popular ìperceptions of terrorism are determined not by statistics but rather by s

acts.î73 By achieving disproportionately large effects, terrorists are able to cause world

alarm and force governments to deal with them. These perceptions, although not realit

reality.74 Confidence in government is shaken. According to Robert Grant, a terrorism 

with the Atlantic Council of the United States, terrorism ìcreates the enormous frustra

government of not being able to provide for the security of its citizens, and undermine

perceptions of the governmentís ability to rule.î75

Antithesis of Democracy and Morality 

Terrorism is contrary to all that democracy stands for. It seeks to displace the r

majority by the dictates of the few. Some authorities consider it another form of totalit

The vast majority of terrorist acts have been directed against democracies.

76 Seldom is 

totalitarian state the victim; frequently it is a sponsor or supporter. Darrell Trent summ

concern in these words: 

Terrorists seek reversals in the system of authority that is the framework of 

civilized peopleóby demanding release for those who have been imprisoned 

according to due process of law, by attempting to dictate policy without regard 

the structure of democracy, by aspiring to reorder society or determine its 

direction without consideration of, or in spite of, majority consensus.77

In sum, ëëterrorism is an affront to civilization.íí78

CHAPTER 1 31
International terrorism is an international problem. The world community look

United States as a community leader to provide direction. However, the United States 

in many of its visible counterterrorist efforts, a fact that has created doubt about US co

ìThe U.S. experience in the Iranian desert was depicted,î concluded the Georgetown U

Center for Strategic and International Studies, ìnot simply as a difficult attempt that fa

a debacle, a symbol of U.S. military impotence and presidential bungling.î

79 Robert M

then assistant to the president for national security affairs, remarked in 1985 that ìa cu

effect of this pattern of low level violence is a slow attrition of our national security br

by the slow erosion of our reliability, of our apparent ability to solve problems, a decli

confidence among our friends and allies.î80

Multiplier Effect of Terrorist Attacks 

International terrorist incidents can trigger bigger events. The assassination of t

the throne of the Austro-Hungarian Empire in 1914, which led to World War I, is a fre

cited example. Although recent terrorist events have not had such cataclysmic effects (

worry about miscalculated state sponsorship or Soviet support of international terrorism 

escalating into World War III), significant effects have occurred. Adm James D. Watk

chief of naval operations, found that more than 30 armed conflicts in progress in 1984 

spawned by some form of terrorism.

81 

Consider the impact on governments and on North-South and East-West relatio

assassination of Anwar Sadat of Egypt, Indira Gandhi of India, and Bashir Gemayel of 

Lebanon.82 What would have been the impact if the attempted assassination of Prime M

Margaret Thatcher in Brighton had been successful? On 13 May 1981 a Turkish terror

attempted to assassinate Pope John Paul II in St. Peterís Square, Rome. What effect wo

have had on Soviet influence in Poland and on Solidarity?83 On 9 October 1983 North 

agents set off an explosion at the Aung San or Martyrsí Mausoleum in Rangoon, Burm

to murder President Chun Doo Hwan and the entire South Korean cabinet. Seventeen o

died, including the deputy prime minister and three senior cabinet officials. President C

escaped. The purpose of the terrorist attack was to cause the collapse of the Seoul gove

International terrorism has had a considerable impact on the US government. In 

US Embassy in Tehran, Iran, was seized, and for 444 days the nation was held hostage

Following the 1983 and 1984 bombings of the US Embassy annex and US Marine Cor

headquarters in Lebanon, the United States withdrew its forces from the area, an action 

reduced Western leverage there and allowed control of Lebanon to shift to more radica

elements.85 At the end of 1986, the Reagan administration revealed that it had sold mil

to Iran (while pressuring other nations not to do so) in what amounted to an exchange 

the release of American hostages held in Lebanon.86 Uncertainty has arisen over the 

administrationís policy on hostage taking and negotiating with terrorists.87 Foreign gov

are upset; senior administration officials are at odds with one another; and some top of

have resigned or been dismissed. 

CHAPTER 1 32
In 1980 Guatemalan police stormed the Spanish Embassy. During the attack a fire brok

embassy (which was occupied by arm-at militants) was burned and 39 persons died, in

of the 33 hostages. Only the Spanish ambassador survived. Outraged, Spain broke rela

Guatemala.88 The shooting in April 1984 of a London policewoman at St. James Squar

of the Libyan Peopleís Bureau led to Great Britainís breaking of diplomatic relations w

Libya.89 The involvement of Syria in the attempted El Al bombing on 17 April 1986 by 

Hindawi led to Britainís severing of diplomatic relations with Syria.90 United States-It

relations were not helped as the forces of each faced one another on the tarmac in Sard

the United States militarily diverted the Egyptian airliner carrying the Achille Lauro te

Neither were US-Egyptian relations. 

Hijackings and terrorist incidents make foreign travel less desirable. Experts ha

estimated that in 1986 American tourism to Europe was down more than 50 percent du

terrorism. Terrorism indirectly caused one of the worst international aviation accidents

27 March 1977, two 747 jets collided at Tenerife Airport, Canary Islands. The two airc

been diverted from Las Palmas because a terrorist bomb had exploded in a flower shop 

Brian Jenkins authored a scenario on how terrorism might be used to influence 

beyond the immediate incident. 

Suppose a target nation has pan of its strategic forces deployed overseas, 

including missile sites in another country. Perhaps there already has been some

local opposition to the presence of these weapons. And perhaps also there arc o

or two extremist groups which have carried out relatively minor ads of violenc

The groups have some international links but they lack the resources for any 

major undertaking. It is conceivable that through their links with a foreign pow

local terrorists could be provided with the intelligence and some equipment 

necessary to launch an attack on one of the sites. Shortly before a bilateral treat

allowing the use of the sites is to be renewed, the terrorists attack, but, of cours

fail. They penetrate the perimeter, but little damage is done to the missiles. Loc

newspapers, however, receive an anonymous tip that some lethal radioactive 

material has been released as a result of the attack. Indeed, checks with primitiv

Geiger counters show some presence of radioactivity. The country whose miss

they are claims that no radioactive material escaped, and that probably the 

terrorists themselves deliberately spread a small quantity of radioactive waste 

material to alarm the population; there is said to be no danger; the denial is not 

convincing. Meanwhile, the terrorists warn of further attacks. Demonstrations 

against renewal of the arrangement by which the weapons are there in the first 

place begin and growÖ The local government is shaken by the episode. There 

further terrorist incidents. Relations between the two countries are strained. Th

owner of the missiles is finally asked to remove them.

92

CHAPTER 1 33
Europe against the deployment of the cruise missile. And consider the following: Unk

individuals disseminated radioactive materials normally used in medicine aboard an A

train in April 1974, causing much concern if not substantial property damage and casu

among railroad passengers.íí93

Terrorism disrupts international relations. It plays states and societies against o

another. ìThe delivery truck,î notes a 1985 Senate report, ìmay turn out to be the mos

destructive weapon of this era, not the SS-18 or the 55-20 ballistic missile.î94

ìNew Aspectsî 

As discussed, international terrorism is not new. But developments of the past 

have given it a new and more threatening character. One new aspect is networking, tha

rendering of assistance between terrorist organizations.95 Another new and more dange

aspect is state sponsorship and support.96

Access to the armories, training facilities, intelligence service, funds, safe have

other sources of expertise of sympathetic states vastly improves the firepower, effectiv

sophistication of terrorist groups.97 States sponsor and support terrorism because it is c

the risk, low. ìModern conventional war,î writes Brian Jenkins, ìis becoming increasi

impractical. It is too destructive. It is too expensive.î98 Terrorism is a force multiplier. 

For the weaker states the high leverage/low cost factors provide them with an 

impact they could never hope to achieve in a conventional arena. For the Sovie

Union, the high leverage/low risk function is attractive because it is able to 

achieve certain strategic objectivesódisunity within the NATO alliance, for 

exampleówithout increasing the risk of conventional or nuclear engagement. T

United States has been hard put to devise a policy that would alter the risk-ben

calculus for these sponsors of international terrorism.

99

In 1969 Andrew Scott articulated the concept of informal penetration in his stu

Revolution in Statecraft.100 He saw, in addition to formal techniques of foreign policy, 

complexity of informal operations carried on by persons other than diplomats and sold

(nonactors). These nonactors received state support through large organizations, massi

budgets, extensive training programs, and all paraphernalia of institutionalization. He w

uncertain whether this trend was good or bad, acknowledging that ìthe full implication

informal penetration for international stability will probably not be clear for some time 

come.î101 Scott thought this trend created both problems and potentialities and withhel

judgment. Today the implications are clearer. Sponsors and supporters of international 

have no compunction about their methods while democratic states are constrained in th

in which they can effectively meet the challenge. 102

CHAPTER 1 34
terrorism has been called a new form of warfare,

a tool of low-intensity warfare

ëëprotracted political warfareÖ a form of ëindirect aggressioní,î105 and ìsurrogate war

Jacques Bergier in his book World War III Has Begun sees World War II as the last co

war, World War III as a terrorist war having begun with the West already losing.107 Is 

properly to be equated with war and warfare? Most commentators use these terms in th

sense much as they would refer to the war on poverty or the war against disease or 

unemployment. Whether, in legal terminology, terrorist conduct constitutes war or war

entirely different issue that we explore in chapter 2. What is certain, however, is that m

more states are sponsoring and supporting international terrorism. This trend likely wi

because of the low cost and risk to the sponsoring or supporting state. 108

 Many believe 

effective way to meet this challenge is not only to deal with the international terrorists 

themselves but to weaken the link between them and their sponsors and supporters.109

Summary and Transition 

International state-sponsored and -supported terrorism is a serious threat to the 

States.110 The US government considers it a national security challenge.111

 The Joint C

Staff (JCS) evaluated this threat in the U.S. Military Force Posture FY-I 986 in these w

The use of terrorism against the United StatesÖ continues to pose a formidable 

challengeÖ The threat from international terrorism has never been greaterÖ In additio

renewed activity of terrorists indigenous to countries of western Europe, the threat is g

from Muslim transnational groups which originate in the Middle East and are influenc

Libya and Syria. These groups pose a significant threat to U.S. interests both in the Mi

and in Europe.112

What factual circumstances, evidence, and preconditions must exist in a particu

situation to justify the lawful use of military force as an option is yet to be addressed. T

chapter has provided an insight into basic definitions and with a historical and statistic

overview of the threat and has examined other perspectives that help explain the seriou

terrorist activities. If the reader understands that state-sponsored and -supported intern

terrorism is a serious challenge to international order and to American security interest

basis exists for an understanding of why the use of military force may be necessary in 

situations. If the threat is not appreciated, then neither will be the remedy.113

CHAPTER 1 35
1. The goal is to ìmanageî terrorism. It cannot be eliminated for, as Ernest Ev

ìin a world marked by ideological rivalries, ethnic clashes, and extremes of wealth and 

it is utopian to hope for an end to politically motivated violence.î Evans, ìToward a M

Effective U.S. Policy on Terrorism,î in Political Terrorism and Energy: The Threat an

Response, ed. Yonah Alexander and Charles K. Ebinger (New York: Praeger, 1982), 2

as Brian Jenkins notes, ìa certain amount of political violence is a price paid for a free 

society.î Brian Michael Jenkins, ìFighting Terrorism: An Enduring Task,î Rand, 6585

Corp., Santa Monica, Calif., February 1981, 4. 

2. Darrell M. Trent, ìTerrorism: Threat and Reality,î Vital Speeches 46, no. 3 

November 1979): 79. 

3. Brian Jenkins, International Terrorism: A New Mode of Conflict (Los Ange

Crescent Publications, 1975), 2, California Seminar on Anna Control and Foreign Poli

research paper 48. 

4. Charles W. Stecker, ìPolitical Terrorism: National and International Respon

1972î (masterís thesis, University of Nebraska, December 1982), 4. 

5. Maj William R. Farrell, USAF, ìTerrorism IsÖ?î Naval War College Revi

3 (May-June 1980): 64. 

6. Ibid., 68. 

7. H. H. A. Cooper quoted in ibid., 64. 

8. The 22 elements identified were: (1) violence, force; (2) political; (3) fear, t

emphasized; (4) threat; (5) (psychological) effects and (anticipated) reactions; (6) victi

differentiation; (7) purposive, planned, systematic, organized action; (8) method of com

strategy, tactic; (9) extranormality, in breach of accepted rules, without humanitarian c

(10) coercion, extortion, induction of compliance; (11) publicity aspect; (12) arbitrarin

impersonal, random character, indiscriminateness; (13) civilians, noncombatants, nonr

neutrals, outsiders as victims; (14) intimidation; (15) innocence of victims emphasized

group, movement, organization as perpetrator; (17) symbolic aspect, demonstration to 

(18) incalculability. unpredictability, unexpectedness of occurrence of violence; (19) c

coven nature; (20) repetitiveness, serial or campaign character of violence; (21) crimin

(22) demands made on third parties. Alex P. Schmid, Political Terrorism: A Research 

Concepts, Theories, Data Bases and Literature (Amsterdam: North-Holland Publishing 

1983), 76ó77. 

9. The 20 purposes or functions were: (1) to terrorize, to put the public or secti

public in fear; (2) to provoke (indiscriminate) countermeasures by the incumbents, del

provoking repression, reprisals, and counterterrorism; (3) to mobilize forces; (4) to aff

opinion in a positive or negative way, to cause a polarization and radicalization among 

or sections thereof; (5) to seize political power, to overthrow regimes; (6) to break dow

eradicate resistance; (7) to obtain money to finance arms purchases and operations; (8) 

maintain power, to discipline, to control, to dissuade target groups, to enforce obedien

allegiance, conformity; (9) disorientation, psychological isolation of the individual fro

social context; demoralization of society, causing disorder; create alarm; create an atm

anxiety, insecurity; create a climate of panic, collapse; (10) extermination, to damage, 

eliminate government property or personnel, elimination of opposing and rivaling forc

CHAPTER 1 36
disrupt normal operations of society, to demonstrate the vulnerability of the governme

shatter the image of strength surrounding it; (12) to project an image of strength and 

determination (abroad); (13) advertising the movement or cause, to gain publicity, to a

attention, to awaken public opinion, to force audiences to take grievances seriously an

redress them, to gain recognition, to acquire popular support; (14) to immobilize secur

apparatus, to immobilize forces; (15) to win recruits for the terrorist movement; (16) m

building within the terrorist movement itself and with their sympathizers; (17) to main

discipline within the terrorist organization, to punish errant members and traitors; (18) 

of specific concessions through coercive bargaining (release of prisoners, publication o

manifesto, etc.), extortion; (19) punishment for cooperation with the enemy or for enga

harmful activities or for other guilts; and (20) to impose domination, to subdue and par

subjugate, intimidate. Ibid., 97-99. 

10. Concerning the factors and assumptions underlying the Rand Corporationí

on terrorism, see Brian Michael Jenkins, ìThe Study of Terrorism: Definitional Proble

Rand, 6563, Rand Corp., Santa Monica, Calif., November 1980, 5-6. 

11. Concerning CIA statistics, Grant Wardlaw writes, with evident frustration: 

A recent report by the United States central Intelligence Agency (CIA) illustrat

that even compilations of statistics of international terrorism are fraught with 

dangerÖ The 1980 report was interesting in that it completely revised many of 

the figures published in previous years. ìThe agency said that its previous data 

had been too dependent on ëU.S. sourcesí and that it is now satisfied that its 

records are complete and currentÖ The fact that an agency with the resources 

the CIA can conclude at a particular point in time that many of its previously 

published statistics were underestimates makes it difficult to have confidence in 

the accuracy of their figures. 

Wardlaw, Political Terrorism: Theory, Tactics, and Counter-Measures (Cambridge, En

Cambridge University Press, 1982), 50-51. See also John F. Murphy, Punishing Intern

Terrorists: The legal Framework for Policy Initiatives (Totowa, N.J.: Rowman & Allan

1985), 119; and Schmid, 267-78. 

12. P. L. Berger and T. Luckman, The Social Construction of Reality: A Treat

Sociology of Knowledge (Garden City, N.J.: Doubleday and Co., 1966), 64. 

13. Jenkins, ìStudy of Terrorism,î 1. One panel at the 1981 National Security 

Conference saw obstacles to defining terrorism ìnot the least of which were ideologica

and bureaucratic politics that distorts analysis, and cross-national differences that mak

difficult to generalize about terrorist profiles and the effectiveness of terrorism.î Panel 

summary, ìGlobal Terrorism: What Should the U.S. Do?î in ìThe 1980s: Decade of

Confrontation?î Proceedings of the Eighth Annual National Security Affairs Conferen

June 1981 (Ft. Lesley J. McNair, Washington, D.C.: National Defense University, 198

14. Wardlaw, 5. 

15. Senate, Committee on the Judiciary, Subcommittee on Security and Terror

Report on ìState-Sponsored Terrorism,î 99th Cong., 1st sess., June 1985, Senate print 

16. Ibid., 25. 

CHAPTER 1 37
18. Vice President, Public Report of the Vice Presidents Task Force on Comb

Terrorism (Washington, D.C., February 1986), 1. 

19. Department of State, ìPatterns of Global Terrorism: 1984,î Washington, D

November 1985, inside front cover. 

20. DOD Directive 2000.12, Protection of DOD Personnel and Resources agai

Terrorist Acts, 16 June 1986, para. C.1. This definition is a change from the 12 Februa

version of DODD 2000.12, which provided that the unlawful use or threatened use of 

violence was ìby a revolutionary organization.íí An Air Force definition can be found 

208ó1, The US Air Force Antiterrorism Program, October 1982, para. a. This is a lim

definition, however, intended for use within the context of the US Air Force antilogari

program. 

21. Vice President, Report on Terrorism, 1. See also State Dept., ìGlobal Terr

inside front cover. 

22. George P. Shultz, ìTerrorism in the Modern World,î Terrorism: An Intern

Journal 7, no. 4 (1985): 432. 

23. Domestic law of the United States has not addressed the definitional issue 

no federal common law exists. A few federal statutes contain definitions, but those def

were drafted for the specific purpose of each law. For example, US Code, Title IS, sec

makes criminal the taking of US citizens as hostages worldwide, while sec. 3077 autho

attorney general to pay rewards for suppression of terrorism. Sixteen states have statut

with terrorism or terrorist threats: Arkansas, California, Delaware, Georgia, Hawaii, Io

Kansas, Maine, Michigan, Minnesota, New Hampshire, North Dakota, Pennsylvania, T

Texas, and Utah. 

24. W. T. Mallison, Jr., and S. V. Mallison, ìThe Concept of Public Purpose T

International Law: Doctrine and Sanctions to Reduce the Destruction of Human and M

Values,î Howard Law journal 18(1974): In a similar vein, Francis A. Boyle has writte

ìëterrorismí is a vacuous and amorphous concept entirely devoid of an accepted intern

meaning.î Boyle, ìUpholding International Law in the Middle East,î in Terrorism, Po

Violence and World Order, ed. Henry Hyunwook Han (Lanham, Md.: University of A

1984), 519. Christopher C. Joyner, George Washington University, agrees that terroris

status under international law remains open to conjecture and polemical interpretation

ìOffshore Maritime Terrorism: International Implications and Legal Response,î Nava

College Review 36, no. 4 (JulyóAugust 1983): 20. See also Paul Wilkinson, Terrorism 

Liberal State (New York: john Wiley and Sons, Halsted Press, 1977), 52. 

25. See Convention for the Prevention and Punishment of Terrorism, opened f

signature at Geneva, 16 November 1937, League of Nations, C.94.M.47.1938.V. 

26. See Hans-Peter Glasser, ìProhibition of Terrorist Acts in International Hum

Law,î International Review of the Red Cross, no. 253 (July-August 1986): 201; and Jo

Paust, ìëNonprotectedí Persons or Things,î in Legal Aspects of International Terrorism

Alona E. Evans and John P. Murphy (Lexington, Mass.: Lexington Books for America

of International Law, 1978), 351. 

CHAPTER 1 38
Resolution 61, UN GAOR, 40th sess., supp. 53, A/40/53 (1986), reprinted in Official 

Documents, American Journal of International Law 80, no. 2 (April 1986): 435-37. Se

George R. Constantinople, who writes, ìThe resolution condemns terrorism, but it is 

disappointing in its force since it does not define terrorism and takes no substantive me

act against terrorism on the international level. The denunciation of terrorism is carefu

balanced by the reaffirmation of the ëinalienable right to self-determinationí.î Constan

ìToward a New Definition of Piracy: The Achille Lauro Incident,î Virginia Journal of 

International Law 26, no. 3 (1986): 724, n. 1. The vice presidentís task force on terrori

misread the value of this resolution by calling it the ìfirst unequivocal resolution cond

terrorism.î Vice President, Report on Terrorism, 12. 

28. Jordan Paust, University of Houston Law School, takes the view that a pre

realistic definition at the international level is necessary for common opposition to imp

terrorism [emphasis added].î See Paust, 351. See also Edward A. Lynch, ìInternationa

Terrorism: The Search for a Policy,î Terrorism: An International Journal 9, no. 1 (198

Wardlaw, 103. 

29. Richard R. Baxter, ìA Skeptical Look at the Concept of Terrorism,î Akron 

Review 7 (1974): 380. 

30. See UN General Assembly, ìDefinition of Aggression,î Resolution 3314, 

GAOR, 29th sess., supp. 31, A/9631 (1974), 142. See also Jack I. Garvey, ìThe U.N. D

of ëAggressioní: Law and Illusion in the Context of Collective Security,î Virginia Jou

International Law 17, no. 2 (Winter 1977): 199. 

31. See Senate, State-Sponsored Terrorism, 29. 

32. See Noemi Gal-Or, International Cooperation to Suppress Terrorism (New 

Martinís Press, 1985), 99, n. 6. 

33. See Carl Q. Christol and Comdr Charles R. Davis, USN, ìMaritime Quara

Naval Interdiction of Offensive Weapons and Associated Materiel to Cuba, 1962,î Am

Journal of International Law 57, no. 3 (July 1963): 52545; Leonard C. Meeker, ìDefen

Quarantine and the Law,î American Journal of International Law 57, no. 3 (July 1963

and Quincy Wright, ìThe Cuban Quarantine,î American Journal of International Law 

(July 1963): 546-65. 

34. See Combatting Terrorism: A Matter of Leverage, ed. Edward Marks and 

Ostpal (Washington, D.C.: Georgetown University Center for Strategic and Internation

June 1986), 49-50. 

35. Jordan J. Paust quoted in Richard B. Lillich and John M. Paxman, ìState 

Responsibility for Injuries to Aliens Occasioned by Terrorist Activities,î American Un

Law Review 26, no. 2 (Winter 1977): 308. See also Paust, 354-57; and Robert A. Fried

Terror-Violence: Aspects of Social Control (New York: Oceana Publications, 1983), 9

36. Shultz, ìTerrorism in the Modern World,î 437. See also Friedlander, 77; G

Rivers, The War against Terrorists: How to Win It (New York: Stein and Day, 1986), 

Wilkinson, book review essay, Can a State Be a ëTerroristí?î Journal of International A

no. 3 (Summer 1981): 468; and S. J. Sorabjee quoted in International Law Association 

ìInternational Terrorism,î in Report of the Fifty-Seventh Conference Held at Madrid (

Britain: 1978), 134. 

CHAPTER 1 39
Committee on International Terrorism (1982), Terrorism: An International Journal 7, 

(1984): 66; Christopher Dobson and Ronald Payne, Counterattack: The Westís Battle 

Terrorists (New York: Facts on File, 1982), 184; John R. Stevenson, ìInternational La

Export of Terrorism,î Department of State Bulletin 67, no. 1745 (4 December 1972): 6

Williamson, Jr., ìTerrorism: What Should We Do?î in Terrorism, ed. Steven Anzovin

Reference Shelf, vol. 58, no. 3 (New York: H. W. Wilson Co., 1986), 173; and ìContr

Terrorism in International Life: Cooperation and Self-Help,î in American Society of 

International Law, Proceedings of the 71st Annual Meeting, 21-23 April 1977 (Washin

D.C.: 1977), 18-19. 

39. State Department. ìGlobal Terrorism,î inside front cover. 

40. Jenkins, ìStudy of Terrorism,î 3-4. See also Brian M. Jenkins, ìInternation

Terrorism: Trends and Potentialities,î Journal of International Aft fairs 32, no, 1(1978

only US federal statute containing a definition of international terrorism is the Foreign 

Intelligence Surveillance Act (FISA), US Code, Title 50, chap. 36, sec. 1801. The FISA 

definition is a narrow one drafted for the limited purpose of providing the FBI with jur

overseas and for the purpose of issuing warrants. International terrorism is defined as: 

1. Violent acts or acts dangerous to human life that are a violation of th

criminal laws of the United States or of any state [thereof], or that woul

he a criminal violation if committed within the jurisdiction of the Unite

States or any state [thereof]: 

2. [Acts that] appear to be intended 

A. to intimidate or coerce a civilian population. 

B. to influence the policy of the government by intimidation or 

coercion; or 

C. to effect the conduct of a government by assassination or 

kidnapping; and 

3. [Actions that] occur totally outside the United States or transcend 

national boundaries in terms of the means by which they are 

accomplished, the person they appear intended to coerce or intimidate, 

the locale in which their perpetrators operate or seek asylum. 

41. Jenkins, A New Mode of Conflict, 9. 

42. Andrew J. Pierre, ìThe Politics of International Terrorism,î in Contempor

Terrorism, ed. John D. Elliott and Leslie K. Gibson (Gaithersburg. Md.: International 

Association of Chiefs of Police, 1978), 36; reprinted from Orbis 19, no. 4 (Winter 197

43. Jenkins, A New Mode of Conflict, 11. 

CHAPTER 1 40
concerned with issues affecting the interests of more than one country. In so far as terr

concerned this means that the act in question must in one way or another be transnatio

character.î Green, ìInternational Law and the Control of Terrorism,î Dalhousie Law J

no. 2 (April 1983): 244. 

45. Central Intelligence Agency (CIA), National Foreign Assessment Center, ì

of International Terrorism: 1980,î June 1981, ii. See also Jenkins, ìStudy of Terrorism

distinction between international terrorism and transnational terrorism was also made i

during the Dynamics of International Terrorism Course, USAF Special Operations Sch

Hurlburt Field, Fla., and Legal Aspects of Terrorism Course, the US Army Judge Adv

Generals School, Charlottesville, Va. 

46. See Farrell, 68; Friedlander, 85; and Lt Col Donald B. Vought, USA, Retir

Col James H. Fraser, Jr., USA, ìTerrorism: The Search for Working Definitions,î Mil

Review 66, no. 7 (July 1986): 75. 

47. The distinction made between the international and transnational terrorist i

former is state-sponsored or state-supported while the latter acts autonomously withou

sponsorship or support. Some argue that these terms are dated and that state-sponsored 

should be used instead of international terrorism and nonstate-sponsored terrorism sho

used instead of transnational terrorism. 

48. See generally Gail Basset al., Options for U.S. Policy on Terrorism (Santa 

Calif.: Rand Corp., 1981), 6, Rand, R-2764-RC; and Louis G. Fields, Jr., ìThe Third A

Waldemar A. Solf Lecture in International Law: Contemporary Terrorism and the Rul

Military Law Review, no. 113 (Summer 1986): 11. 

49. John F. Murphy quoted in ìTerrorism and Countermeasures: Is Section 90

Revised Restatement Helpful?î in International Law Practitionerís Handbook, no. 32 (

1986): 12. 

50. Shultz, ìTerrorism: The Challenge to Democracies,î address before the Jo

Instituteís second Conference on International Terrorism, Washington, D.C., 24 June 1

Anzovin, 55; reprinted from Department of State Bulletin 84, no. 2089 (August 1984). 

51. CIA, ìPatterns of Terrorism,î iii.

52. Senate, State-Sponsored Terrorism, 47-48. See also Brian Michael Jenkins

Force May Not Be Ruled Out,î Rand, 7103, Rand Corp., Santa Monica, Calif., June 19

Lynch, 4-5. 

53. See State Department, ìGlobal Terrorism,íí 4. For Libyaís role in sponsorin

international terrorism, see Foreign and Commonwealth Office, ìLibyan State Terroris

background brief, April 1986, 1-4; Department of State, ìLibya under Qadhafi: A Patt

Aggression,î Special Report 138, January 1986, 1-8; Department of State, Office for C

Terrorism, ìLibya Talking Points,î 1 April 1986, 1; Department of State, Office of the 

Adviser, Digest of United States Practice in International Law, 1977, ed. John A Boyd 

(Washington, D.C.:1979), 209, State Department, 8960; Senate, Committee on the Jud

Subcommittee on Security and Terrorism, Hearings on Terrorism: The Role of Moscow 

Subcontractors, 97th Cong., 1st sess., 26 June 1981, series no. 97-44, 15-16; David Se

ìLibya: Millions for Murder: Khadaffi Bankrolls World Terror,î Soldier of Fortune, A

CHAPTER 1 41
54. See Vice President, Report on Terrorism, 2; and Marian Nash Leich. Fou

Proposed by President Reagan to Counter Terrorism,î American Journal of Internation

no. 4 (October 1984): 915. 

55. Sec Basset al., 10-11; Department of Defense, Soviet Military Power, 1986 

(Washington, D.C.: 1986), 124-28; Maj John G. Humphries, USAF, ìInternational Ter

a Lawful Form of Warfare: An Idea Whose Time Should Not Arrive,î student research 

1200 (Maxwell AFB, Ala.: Air Command and Staff College, April 1986), I; ìl980s: D

Confrontation?î 239-60; Senate, Stare-Sponsored Terrorism, 8-9; Senate, Hearings on 

Terrorism, 4-6; Shultz, ìTerrorism: The Challenge,î 55; Dobson and Payne, xi-xiii; Sa

Francis, The Soviet Strategy of Terror (Washington, D.C.: Heritage Foundation, 1981)

Goren, The Soviet Union and Terrorism (London: George Allen and Unwin, 1984); Cl

Sterling, The Terror Network: The Secret War of International Terrorism (New York: 

Digest Press, 1981); Wardlaw, 55-56; Lynch, 19; Robert C. McFarlane. ìTerrorism an

Future of Free Society,î in American Bar Association, Committee on Law and Nation

Intelligence Report 7, no. 5 (May 1985): 7; and Drew Middleton, ìSoviets Seen Adopt

Intensity Warfareí,î Air Force Times, 5 August 1986, 69. 

56. See ìPreface,î Anzovin, 5; Richard B. Lillich, Transnational Terrorism: C

and Commentary (Charlottesville, Va.: Michie Co., 1982), xiii; Wardlaw, 18-24; and C

William D. Neale, USA, Retired, ìOldest Weapon in the Arsenal: Terror,î Army 23, n

(August 1973): 10-17. 

57. Friedrich Nietzsche quoted in Neale, 11. 

58. Niccolo Machiavelli quoted in ibid. 

59. Mikhail Bakunin quoted in ibid. 

60. Wilkinson, Terrorism and the Liberal State, 180-81. 

61. Vice President, Report on Terrorism, ìPreamble/Foreword.î 

62. See Soviet Military Power, 125; Department of State, Office for Corn-batt

Terrorism, ìFact Sheet: World-wide Terrorismî (1986); Basset al., I; Marks and van O

Rushworth M. Kidder, ìThe Libyan Raid: Four Months Later,î Christian Science Mon

August 1986, 21; Jeffrey D. Simon, ìGlobal Perspective: The Year of the Terrorist,î T

6, no. 3 (Winter 1986): 1; Scott C. Truver, ìMaritime Terrorism, 1985,î US Naval Ins

Proceedings 112 (May 1986), 161; Andrew Whitley, ìDeaths from Terrorism ëDouble 

Financial Times, 14 August 1986, 4; and ìSpecial Report: Terrorism,î The World and 

(March 1986), 38-102. 

63. See Lt Col William R. Farrell, USAF, ìResponding to Terrorism: What, W

When,î Naval War College Review 39, no. 1 (January-February 1986): 49. 

64. A study of the Israeli situation found that terrorism inflicted 0.5 percent of 

number of casualties (exogenous deaths and injuries) but counterterrorism consumed a

percent of Israelís total casualty-preventing expenditures. The reason, according to the 

that Israel perceives terrorism as a major threat not based on statistics but on other fact

Another possibility might well be that the heavy expenditures have resulted in a highly 

successful program. See Lt Col Hanan Alon, Israeli Defense Forces, ìTerrorism and 

Countermeasures: Analysis versus a Participantís Observation,î in Terrorism and Bey

International Conference on Terrorism and Low-Intensity Conflict, ed. Brian M. Jenki

Monica, Calif.: Rand Corp., December 1982), 233-39, Rand, R-2714-DOE/DOJ/DOS/

CHAPTER 1 42
Research and Analysis Center, Criminal Investigative Division, Federal Bureau of Inv

to the Eighth Legal Aspects of Terrorism Course, US Army Judge Advocate Generals 

Charlottesville, Va., 20 October 1986. 

66. Jenkins, A New Mode of Conflict, 12. 

67. Brian Jenkins, ìFuture Trends in International Terrorism,î presented at De

Intelligence College, Washington, D.C., Rand, 7176, Rand Corp., Santa Monica, Calif

December 1985, 3. 

68. Jenkins, ìFighting Terrorism,î 5. 

69. ìPerhaps we count the wrong things,î writes Brian M. Jenkins, ìmore like

things we can count do not reflect our perceptions of the phenomenon. Terrorism is no

what terrorists do, but the effectsóthe publicity, the alarmóthey create by their action

Jenkins, ìTrends and Potentialities,î 119. 

70. Marks and van Ostpal, 5. 

71. Vice President, Report on Terrorism, 10. According to Brian Jenkins, ìPrio

1973 Yom Kippur War, a senior Israeli officer estimated that the total cost in men and 

Israel for all defensive and offensive measures against at most a few thousand Arab ter

was 40 times that of the Six Day War in 1967.î Jenkins, A New Mode of Conflict, 21. 

72. George P. Shultz quoted in Senate, State-Sponsored Terrorism. 38. 

73. Jenkins, ìFighting Terrorism,î 3. 

74. See Brian Michael Jenkins, ìCombatting Terrorism Becomes a War,î Ran

Rand Corp., Santa Monica, Calif., May 1984, 3; and Wilkinson, ìCan a State Be a ëTe

469. 

75. Robert Grant, ìTerrorism: What Should We Do?î in Anzovin, 160. 

76. See Laqueur, 87; Trent, 79-81; and Senate, State-Sponsored Terrorism. 

77. Trent, 82. 

78. Marks and van Ostpal, 5. See also Senate, State-Sponsored Terrorism, 5. 

Marks and van Ostpal, 6. 

McFarlane, 5. 

Adm James D. Watkins, USN, ìTerrorism: An ëAlready Declaredí War,î Wing

9, no. 2 (Summer 1984): 19. 

82. See William J. Casey, ìInternational Terrorism: Potent Challenge to Amer

Intelligence,î address at the Fletcher School of Law and Diplomacy, Tufts University, 

Mass., 17 April 1985, in Anzovin, 59-60; reprinted from Vital Speeches 5), no. 23 (15 

September 1985): 713-11. See also David L. Milbank, ìInternational and Transnationa

Terrorism: Diagnosis and Prognosis,î in Elliott and Gibson, 66-67. 

83. See Senate, State-Sponsored Terrorism. 13. 

84. See ibid., 15. See also Neil C. Livingstone and Terrel E. Arnold, ìThe Rise 

Sponsored Terrorism,î in Fighting Back: Winning the War against Terrorism, ed. Livi

and Arnold (Lexington, Mass.: D. C. Heath and Co., 1986), 11-12. They also note that 

Foreign Minister Andrei Gromyko reportedly offered the Spanish government of Prim

Felipe Gonzalez a deal whereby Moscow would end its support of the Basque Homela

Liberty Movement [Euzkadi ta AzkatasunaóETA] in exchange for Spainís agreement 

join NATO.î Livingstone and Arnold, ìRise of Terrorism,î 13. 

CHAPTER 1 43
ed. Livingstone and Arnold, 70. See also Jenkins, Corn- batting Terrorism Becomes a 

86. See Gerald M. Boyd, ìIran Is Said to Get U.S. Weapons Aid in a Hostage 

New York limes, 7 November 1986. 1; William Drozdiak and Walter Pincus, ìIran Sa

McFarlane Carried Out Secret Mission to Iran,î Washington Post, 5 November 1986, 

Walter Pincus, Shultz Protested Iran Deal,î Washington Post, 7 November 1986, 1. 

87. See Department of State, Bureau of Public Affairs, ìInternational Terrorism

Policy on Taking Americans Hostage,î Washington, D.C., June 1986. 

88. See Bass et al., 7; and Jenkins, Terrorism and Beyond, 5. 

89. See Frank Brenchley, ìDiplomatic Immunities and State-Sponsored Terror

Conflict Studies 164 (1984): 2. 

90. See Karen DeYoung, ìBritain Cuts Ties with Syria over El Al Bombing L

Hindawi Guilty; Damascus Reacts,î Washington Post, 25 October 1986, 1(A) and 19(A

91. Friedlander, 86-87. 

92. Brian M. Jenkins, ìInternational Terrorism: A Balance Sheet,î in Elliott an

224. 

93. See, ìAustria Seeks ëAtom Guerillaí,î San Jose Mercury, 23 April 1974, a

Forrest R. Frank, ìNuclear Terrorism and the Escalation of International Conflict,î US 

War College international Law Studies 62 (1980): 535. 

94. Senate, State-Sponsored Terrorism, 2. 

95. See Sterling; and Rivers, 88-101. 

96. See Casey, 61; and Laqueur, 89-98. 

97. See Casey. 66. See also Brian Michael Jenkins, ìCombatting Terrorism: S

Implications.î Rand, 6666, Rand Corp., Santa Monica, Calif., August 1981, 3-6; and W

Terrorism and the Liberal State, 199-200. 

98. Jenkins, ìA Balance Sheet,î 20. See also Kenneth B. Roberts, ìTerrorism 

Military Response,î Strategic Studies Institute, Army War College, Carlisle Barracks, 

October 1975, 2-4. 

99. Marks and van Ostpal, 4. See also Thomas M. Franck, ìInternational Lega

Concerning Terrorism,î Terrorism: An international Journal I, no. 2 (1978): 189; Benj

Netanyahu, ìTerrorism: How the West Can Win,î lime, 14 April 1986, 49; Schmid, 20

Wilkinson, Terrorism and the Liberal State, 181-84; and Maj Jeffery W. Wright, USA

ìTerrorism: A Mode of Warfare,î Military Review 64, no. 10 (October 1984): 38. 

100. Andrew M. Scott, The Revolution in Statecraft: informal Penetration (Ne

Random House, 1969). 

101. Ibid., 166. 

102. See Wilkinson, Terrorism and the Liberal State, 199. 

103. See Edgar OíBallance, ìTerrorism: The New Growth Form of Warfare,î 

international Terrorism in the Contemporary World, ed. Marius H. Livingston, Lee Br

and Marie G. Wanek, Contributions in Political Science, no. 3 (Westport, Conn.: Gree

Press, 1978); Jenkins, ìCorn-batting Terrorism Becomes a Warî; Jenkins, A New Mod

Conflict; and J. Wright. 

104. See Robert H. Kupperman, Debra van Ostpal, and David Williamson, Jr., 

the Strategic Tool: Responses and Control,î Annals of the American Academy of Poli

Social Science 463 (September 1982): 24. 

CHAPTER 1 44
Preemption and Punishment (Maxwell AFB, Ala.: Air University Press, December 198

7. 

106. See Gordon A. Christenson quoted in ìControlling Transnational Terroris

Relevance of International Law,î in American Society of International Law, Proceedin

72nd Annual Meeting, 27-29 April 1978 (Washington, D.C.: 1978), 348. 

107. Jacques Bergierís book is discussed in Gerardo Jorge Schamis, War and T

in international Affairs (New Brunswick, N.J.: Transaction Books, 1980), 35-38. 

108. See Jenkins, ìCombatting Terrorism Becomes a War,î 1; Jenkins, ìFuture 

5-6; Livingstone and Arnold, ìDemocracy under Attack,î in righting Back, ed. Living

Arnold, 3-5; and Milbank, 72. 

109. See Senate, State-Sponsored Terrorism, 68; M. Ma, ìForms of State Supp

Terrorism and the Possibility of Combating Terrorism by Retaliating against Sponsori

in On Terrorism and Combating Terrorism, ed. Arid Merari (Frederick. Md.: Universit

Publications of America, 1985), 119-26; Jenkins. ìA Strategy for Combatting Terroris

6624, Rand Corp., Santa Monica, Calif., May 1981, 6; Netanyahu, 48-52; and William 

Waugh, Jr., International Terrorism; How Nations Respond to Terrorists (Salisbury, N

Documentary Publications, 1982), 137-39. 

See Marks and van Ostpal, 1. 

See US Army, Training and Doctrine Command, Joint Low-intensity Conflict 

vol. 1, Analytical Review of Low-intensity Conflict (Fort Monroe, Va.: 1 August 1986

112. Department of Defense, U.S. Military Force Posture FY-1986 (Washingt

1985). 94-95. Regarding the analysis of the threat of international terrorism, governme

media, and the terrorists themselves tend to overestimate the threat while the militaryó

concerned about roles, missions and fundingótends to underestimate it. 

113. Concerning the problem of educating the public as to the threat, see Vice 

Report on Terrorism, 17; and Sloan, xiv. 

CHAPTER 1 45
INTERNATIONAL LAW AND INTERNATIONAL TERRORISM: W

APPROACH SHOULD WE TAKE? 

Criminal means once tolerated is soon preferred.

Edmund Bu

(Terrorism) is not just criminal activity, but an unbridled form of warfare. 

George P. Sh

The Western democracies are still not aware of it as warfare against them. 

Lord Chalf

Some experts see terrorism as the lower end of the warfare spectrum, a 

form of low-intensity, unconventional aggression. Others, however, believe tha

referring to it as war rather than criminal activity lends dignity to terrorists and 

places their acts in the context of accepted international behavior. 

Vice President s Task Fo

on Combating Terror

International law offers two approaches to international terrorism. States can tr

terrorism as a law enforcement problem or they can invoke the law of armed conflict. 

enforcement approach considers international terrorism as primarily a civil police resp

The objective is to deter terrorists, but, failing that, to manage them successfully throu

prosecution, and imprisonment. Consequently, this approach seeks to improve law enf

by promoting international agreement and cooperation among nations. Outlawing terro

making it a universal international crime like piracy or slave trading is the ideal. For th

states have emphasized negotiating new treaties to define specific terrorist acts as crim

Conventions on aerial hijacking, letter bombs, and attacks on protected persons such a

diplomats are examples. Information exchange and judicial cooperation are essential in

of this approach. Nations have focused their attention on extradition agreements and o

redefining narrowly the political offense escape clause. Terrorists are viewed as ordina

criminals and not as engaging in combatant activity. In exceptional circumstances whe

of military force abroad is required, that action occurs in the context of a response to a 

crisis. 

CHAPTER 2 46 
warlike or combatant activity. As such, terrorists are criminals whose arrest, prosecutio

imprisonment are universal obligations of all states in accordance with the 1949 Genev

conventions. When the use of military force abroad is required, such use takes place in 

context of armed conflict. 

Under both approaches the terrorist is a criminal. However, it is incorrect to be

terrorists would be given a status under the law of armed conflict other than that of unl

combatants engaging in criminal conduct. The differences in these two approaches are 

highlighted by the choices offered in the following questions: Should international terr

civil police or military responsibility? Should international terrorism be viewed as ordi

criminal activity or combatant activity? Is terrorism simply a crime or is it surrogate w

Should use of force abroad against international terrorists and their state sponsors or su

be viewed as a peacetime crisis or as a response to armed conflict?

Among the factors to consider in deciding which is the best approach to interna

terrorism are foreign policy and other political considerations, the nature of the threat, 

advantages and disadvantages of each approach. Foreign policy and other political con

are beyond this study. The nature of the terrorist threat has been discussed in chapter 1

chapter identifies the approach adopted by the West, including the United States; discu

reasons for this approach and its advantages and disadvantages; and examines the alter

approach and its advantages and disadvantages. 

West Opts for Law Enforcement Approach 

The United States and other like-minded governments have tended to target ter

ordinary criminals subject to prosecution under domestic criminal law. Most efforts in 

international arena have been directed at finding ways to enhance the effectiveness of 

domestic criminal law to terrorists. These efforts have included, for example, improvin

extradition procedures and bringing into being new multilateral and bilateral conventio

criminalizing various acts of terroristsósuch as aircraft hijackingóthat can be prosecu

national judicial authorities. 

The United States government and other Western democracies have organized 

with terrorism in terms of law enforcement. The lead US agency for domestic terrorism 

Federal Bureau of Investigation (FBI). The FBI has transferred terrorism responsibility 

intelligence and sabotage division to its criminal division. This shift reflects the thinkin

senior leadership that the terrorist is an ordinary criminal not a combatant. The Departm

State, not the Department of Defense, is the lead US agency for international terrorism

cooperation among nations is at the police-to-police or judiciary-to-judiciary level. 

Law enforcement responsibility is primarily a civil police and not a military fun

instances where military force has been used overseas against international terrorists o

sponsors, the action has been akin to law enforcement (hostage rescue attempts, for ex

CHAPTER 2 47 
StatesÖ just as if [it] had used its own armed forces but international terrorists thems

not be so recognized.1

The military may feel uneasy and uncertain about its role in essentially a law e

function. Terrorists are not combatants, and military action is not taken in a warlike co

Military actions against terrorists are characterized as a response to a peacetime crisis 

armed conflict. Moreover, in todayís world, military force generally is seen as an ineff

means to project power abroad. Hence, in this context, the law of armed conflict does n

to international terrorists.

Some may argue that this view is changing and that terrorism now is viewed as 

essentially a form of warfare. Brian Jenkins of the Rand Corporation has concluded th

ìterrorism indeed has become a new mode of warfare.î2 Terrorist expert Paul Wilkinso

University of Aberdeen agrees: ìInternational terrorist attack is simply a different mod

not an alternative to war as such.î3 But other experts do not fully agree. Some experts 

in that direction but are guarded as to whether terrorism has really become warfare.4

Government officials in the United States have joined the discussion with some 

words about terrorism as warfare. Jeane J. Kirkpatrick, former US permanent represen

the United Nations, has asserted that ìterrorism is a form of war.î5 Ambassador Verno

her successor, agrees, ìWe are not dealing here with the acts of individuals or groups b

with a state policy to use force by clandestine means or, as one speaker in the debate p

by another nameí.î6 Secretary of State George Shultz is quoted as saying that terrorism 

longer the random acts of isolated groups or local fanatics,î but rather it ìis now a met

warfare.î7 The Long commission, appointed by Secretary of Defense Caspar Weinberg

investigate the October 1983 bombing of the Marine Corps headquarters in Beirut, cha

the threat to the United States as ìterrorist warfare, sponsored by sovereign states or or

political entities to achieve political objectives.î8

Ambassador Robert Oakley, head of the Department of State, Office of Counte

terrorism, speaking in September 1985, placed terrorism into the conflict spectrum as a 

low-intensity warfare.î9

 Although Defense Department agencies continued to struggle 

issue, the Joint Chiefs of Staff (JCS), in November 1985, approved a definition of low

conflict that included terrorism. 

Low-intensity conflict is a limited politico-military struggle to achieve 

political, social, economic, or psychological objectives. It is often protracted an

ranges from diplomatic, economic, and psychosocial pressures through terroris

and insurgency. Low-intensity conflict is generally confined to a geographical 

area and is often characterized by constraints on the weaponry, tactics, and leve

of violence.10

CHAPTER 2 48 
1986 Defense Reorganization Act, has given the Defense Department a strong nudge t

these written standards. Yet, one has to wonder whether these military deficiencies exi

the military sees low-intensity conflict, including terrorism, as a low priority, as Congr

suspects, or because the military does not believe that international terrorism should be 

characterized as a form of warfare. Conceptualizing and planning for a nonwarlike act

cannot be an easy task for the military. 

How, then, do we assess the current discussion? The talk about terrorism being 

warfare is just that, talk. It is an attempt to convey or emphasize the seriousness of the 

threat, but it is not intended that the legal consequences of calling terrorism warfare sh

follow. The term is used in the generic sense as one would speak of the war on poverty 

war against illiteracy. The primacy of the criminal element of terrorism is clearly mani

official US government actions and statements. In the words of President Ronald Reag

terrorists ìmust be treated as to what they really are. And that is, they are base crimina

aim, according to Ambassador Louis Fields, is to recognize that ìterrorist crimes, like 

should be universally condemned and universally prosecuted.î12 Terrorism is essential

activity within the domain of law enforcement authorities. 

Why the Bias toward Law Enforcement? 

More and more writers on the subject have taken the position that ìthe key to a

response to the threat posed by terrorist states is the commitment to address the attacks 

sponsor within the scope of armed conflict.î13 Yet, the law enforcement approach stan

unchallenged. Dr Stephen Sloan, a former senior research fellow at the Air University 

Aerospace Doctrine, Research, and Education, could write correctly in mid-1986 that ì

is still not viewed by various civilian policymakers in general and by the military in pa

be a form of warfare,î14

Law Enforcement: The Only Alternative 

Why? First, there has been no serious research into an alternative to the law en

approach. No US government department or agency has studied the pros and cons of th

armed conflict approach. The Vice Presidentís Task Force on Combatting Terrorism d

address the issue. The task forceís final report simply noted that some experts see terro

form of warfare while others ìbelieve that referring to it as war rather than criminal ac

dignity to terrorists and places their acts in the context of accepted international behav

report does not draw a conclusion as to which view is correct but notes that Americans 

terrorism when they see it. Neither private scholars nor jurists have prepared a detailed 

either. 

Although policymakers may have selected the proper approach to international 

they have done so without the benefit of a review of the advantages and disadvantages 

CHAPTER 2 49 
the current approach. Fundamental beliefs are like that. 

Terrorism as a Form of Aggression Is Denied 

Second, as Yale University law professor Eugene Rostow proposes, the psycho

mechanism of denial may be at work in this instance. In an article titled ìOvercoming 

he admonishes: 

We understand what is happening in the world. But we resist confrontin

our knowledge, as our fathers resisted confronting the truth about Hitler fifty 

years agoÖ What can we do about state-sponsored terrorism? We must first 

recognize that it is a form of aggression. Aggression is the most serious of all 

violations of international law, a profound threat to the state system on whose 

stability and viability peace depends.16

International terrorism is recognized as a threat to national security. Is it more appropr

manage such a threat using the law enforcement or law of armed conflict approach? Th

question cannot be answered until denial is overcome and we decide to look critically 

advantages and disadvantages of each approach.

Law of Armed Conflict Misunderstood 

Third, misconceptions about the law of armed conflict approach have driven us 

embrace the law enforcement approach. High-ranking policymakers and jurists hold fa

about the law of armed conflict as a body of law and what it means if it is applied to in

terrorism. They incorrectly believe that the choice is between treating terrorists as crim

under the law enforcement approach or as combatants under the law of armed conflict 

They are unaware that the law of armed conflict would treat terrorists as criminals, wo

recognize them as engaging unlawfully in combatant activity, would consider them as 

combatants, and would deny them legitimacy by identifying them as perpetrators of ac

to the fundamental international humanitarian law that serves as a basis of the law of a

conflict. Because such misconceptions are deeply held, accepting terrorism as warfare 

adopting the law of armed conflict approach have become unthinkable. 

Abraham Sofaer, State Department legal adviser, unequivocally believes ìterro

essence, is criminal activity.íí

17 This assessment, although accurate, is not dispositive o

approach to terrorism should be taken because both approaches would treat internation

terrorists as criminals. Sofaer erroneously continues: ìAnother approach has been to se

terrorism a legal status that obscures or denies its fundamental criminal nature. The law

mark the line between what is criminal and what is an act of combat.î18 His statement 

least three misconceptions. 

CHAPTER 2 50 
the law of armed conflict condemns terrorist methods as unlawful. 

2. There is a wall between criminal law and the law of armed conflict a

the latter did not address criminal activity. The law of armed conflict, to the 

contrary, includes provision for war crimes and grave breaches of the 1949 

Geneva conventions, and provides for universality of criminal jurisdiction. 

3. If the law of armed conflict were applied to international terrorists, t

they would be given combatant status. In fact, however, the law of armed confl

recognizes that not all persons who engage in combatant activity are combatan

entitled to prisoner of war (POW) status. Some, like terrorists, are unprivileged 

unlawful combatants. 

Policymakers, and therefore policy, have been influenced by these incorrect legal view

The following statement of Noel C. Koch, a former senior Department of Defe

responsible for terrorist issues, serves as a clear example: 

There is a legalistic perspective that sees the acts in question as crimes 

their perpetrators as criminals; this is placed against a more general tendency to 

see terrorism as ìwar.î But if war, then its practitioners may be subject to the la

of war, and those apprehended in its practice may be ìprisoners of warî as they 

insist, rather than merely impressionable pawns turned into criminals by more 

clever, and evil men. The point is not academic. It would be grotesque to afford 

terrorists the rights that belong to legitimate combatants under the laws of war.

These issues are not academic, they fundamentally impact on the choice of approach to 

terrorism. But Kochís analysis contains certain misconceptions. 

First, if the law of armed conflict is applied to international terrorists, then they 

somehow cease to be criminals. However, the issue is not whether the acts of terrorists 

crimes or not. The acts of terrorists are criminal under both national domestic law and 

armed conflict. At issue is how best to treat terrorism. Based on the factual situation pr

the better approach to international terrorism essentially to treat it as deviant societal c

a criminal nature within the context of law enforcement or to treat it as a form of warfa

governed by the law of armed conflict, including its criminal law provisions?

Second, if the law of armed conflict is applied to international terrorism, then t

become lawful combatants entitled to POW status if captured. Under the law of armed 

however, terrorists are neither lawful combatants nor entitled to POW status. 

Third, if the law of armed conflict is applied, then the acts of international terrorists wi

sanctioned or approved by the international community and terrorists will have achiev

status and recognition for their cause. This contention is simply incorrect. Because a b

CHAPTER 2 51 
armed conflict addresses terrorist acts as either war crimes or grave breaches of the Ge

conventions and, instead of approving of terrorism, condemns those acts. Rather than b

status or recognition on international terrorists and their state sponsors or supporters, th

armed conflict identifies participation in such acts as universal crimes that bring no ho

words of Dr Sloan, ìIt must be stressed however that recognizing that terrorism may b

than a criminal act does not mean to imply that the perpetrator has some degree of legi

his or her actions.î20

Imprecise Dividing Line between Peace and War 

Fourth, and finally, inadequate research, denial, and misconceptions have contr

belief that treating terrorists as criminals requires a law enforcement approach. We do 

understand what it truly means to treat terrorism as a form of warfare. ìMany, for exam

notes Harry Summers, a recognized writer on military strategy, ìgive lip-service to the 

terrorism is a form of warfare, but few understand what that admission entails.î21 Nati

leaders see the problem for the most part not as a lack of understanding but as a condit

existing political scene. Former secretary of defense Caspar Weinberger notes, for exa

todayís world, the line between peace and war is less clearly drawn than at any time in 

history.î22 Secretary Shultz discusses why this situation exists: 

Among the factors contributing to this lack of understanding are our 

perceptions that the nation and the world are either at war or at peace, with the 

latter being the normal state; and the existence of a well-resourced campaign b

our adversaries to create and support misunderstanding of the means and ends 

this confrontation.23

A realization of a lack of understanding can be healthy. It can lead to research, to rejec

denial, and to dispelling misconceptions. Understanding can be improved but where ar

inquiring initiatives? 

Managing International Terrorism 

In rethinking the issue of how to approach terrorism, we must focus on managi

international terrorism. Domestic terrorismóthat is, terrorism that occurs within the b

particular state and has no international implicationsóis criminal activity within the d

criminal law jurisdiction of that country. The only applicable approach to domestic ter

the law enforcement approach. 

International law governs relations between states and, generally speaking, is n

concerned with matters within a stateís domestic jurisdiction. Whether the law of arme

as part of international law, should apply to international terrorism, as defined in chapt

open for consideration. 

CHAPTER 2 52 
applied to international terrorism, the issue is somewhat more complex than simply ch

between them. It may be inappropriate to take the same approach to all types of interna

terrorism. The law enforcement approach might be the best, if not the only, way to dea

international terrorism that is not state sponsored or supported. However, that assessm

change if the organization engaging in terrorist acts, even though not state sponsored o

supported, has been recognized as having status as an international entity. The PLO, fo

may have such status although a case can be made that the PLO is sponsored or suppor

several states. 

The law of armed conflict, as part of international law, applies between states a

recognized international entities. If an international terrorist organization is not state su

sponsored nor recognized as an international entity, then the law of armed conflict by i

terms may well not apply to the situation. However, since the focus of this study is lim

state-sponsored and -supported international terrorism, both approaches conceivably m

Thrust of the Law Enforcement Approach 

The central feature of the law enforcement approach is to make terrorism synon

with crime.24 But making the law enforcement approach work requires international co

Terrorists are prosecuted for their acts in domestic courts in accordance with domestic 

international tribunal tries them. When terrorists flee the jurisdiction of the state in wh

have committed their criminal act (a modus operandi of international terrorists), that st

seek the judicial assistance of the state to which they have fled. The objective is to hav

in whose jurisdiction the terrorists have sought haven either prosecute or extradite them

Achieving and improving cooperation with foreign law enforcement authorities so that 

offenders do not escape punishment is the primary goal of the United States.25 But ìatt

stretch the authority of a legal system across international boundaries inevitably leads 

collisions with elements of the sovereign-state system, especially jurisdictional barrier

tendency among law enforcement agencies to give low priority to another countryís cr

This section assesses four aspects of the law enforcement approach. The first tw

the effectiveness of efforts to strengthen international cooperation and agreements to im

extradition and to criminalize acts of terrorists. The remaining two, arresting and impr

terrorists, concern the appropriateness of treating terrorists as ordinary criminals. 

Extradition

Improving extradition is an essential element of the law enforcement approach

acts committed in the course of political disturbances [are] intended to disrupt the poli

of states [but] have been considered as ëpolitical actsí [thereby] ruling out extraditionî 

of the political offense exception.27 Moreover as is clear from years of debate on terror

CHAPTER 2 53 
Achieving international cooperation in this area has been difficult. The key problem ha

political offense escape clause in extradition agreements, which gives a requested natio

to deny extradition to the requesting nation. Closing this loophole has proven to be a 

monumental task. How can this clause be narrowed to exclude terrorists but retain its o

purpose of protecting dissidents and other like-minded persons from persecution throu

prosecution for their politically held beliefs? How can third world support be obtained 

their primary concern for national liberation movements? How do you obtain the coop

states that sponsor, support, or tolerate international terrorism by providing terrorists w

havens?

The effort of the European community and the revised United StatesóUnited K

extradition agreements are unusual successes in this area.29 The 1977 European Conve

the Suppression of Terrorism removes the political offense exception from extradition 

for certain offenses such as aircraft hijacking, serious attacks on internationally protect

persons, kidnapping, hostage taking, and use of explosives and firearms to endanger pe

Similarly, the 1985 supplement to the United StatesóUnited Kingdom extradition trea

removes the political offense exception for selected crimes, such as aerial hijacking an

of diplomats, that are associated with terrorism. Noteworthy is the fact that successes t

have been achieved only among the Western democracies. 

Also significant is the fact that even United States courts, as demonstrated in E

Wilkes, have difficulty with the political offense issue if forced to address it. 

The evidence in this case reveals that the PLO seeks the destruction of t

Israeli political structureÖ and thus directs its destructive efforts at a defined 

civilian population. That, it could be argued, may be sufficient to be considered 

violent political disturbance. If, however, considering the nature of the crime 

charged, that were all that was necessary in order to prevent extradition under t

political offense exception nothing would prevent an influx of terrorists seekin

safe haven in America. Those terrorists who flee to this country would avoid 

having to answer to anyone for their crimes. The law is not so utterly absurd. 

Terrorists who have committed barbarous acts elsewhere would be able to flee 

the United States and live in our neighborhoods and walk our streets forever fre

from any accountability for their acts.30

With these words, the Eain court places the emphasis, not on law, but on logic. Much r

be done to make extradition an effective tool in combating terrorism. 

Criminalizing Terrorist Acts 

A second aspect of the law enforcement approach is an initiative to provide a s

basis for judicial cooperation among states through a common agreement on the defini

CHAPTER 2 54 
them international crimes. 

The first general attempt to outlaw terrorism occurred in 1937, in the form of a 

Convention on the Prevention and Punishment of Terrorism.

31 But the draft convention 

entered into force. The effort failed in large measure because World War II occupied t

of states and because the interest of the international community in the subject waned. 

convention was not given serious consideration again until 1972, when the United Stat

introduced in the United Nations the text of a proposed agreement to outlaw terrorism. 

effort also failed, not for any lack of interest, but because the United Nations became e

in a debate of terrorist causes rather than focusing on terrorist acts.32 Consequently, no 

convention is in force today that makes terrorism per se an international crime. 

A recent effort of international law scholars to draft a general convention outla

terrorism deserves mention because those scholars have taken a unique approach to the 

They seek to adopt for law enforcement purposes the criminal standard contained in th

armed conflict. These scholars believe that ìif terrorism is prohibited in time of war, c

must be prohibited in time of peace.î33 The language proposed in 1982 by the Internat

Association (ILA), Committee on Terrorism, reads as follows: 

No person shall be permitted to escape trial or extradition on the ground 

his political motivation who, if he performed the same acts as a soldier engaged 

an international armed conflict, would be subject to trial or extradition. 34

Even though this language has been weakened in later drafts, the ILA proposal has litt

going anywhere.35 Support for any general convention on terrorism does not now exist

effort does show, however, the growing concern about the inequality between the crim

enforcement standards in time of peace and those prevailing in time of armed conflict. 

Efforts to make criminal specific terrorist acts, such as airplane hijacking, hosta

and attacks on diplomatic personnel, have been more successful.36 These conventions h

of limited usefulness, however, because of loose language, nonratification by states tha

or support international terrorism, and lack of enforcement measures for noncomplianc

Arresting Terrorists 

The law enforcement approach considers terrorists to be ordinary criminals and 

treat them as such. But is it appropriate to consider terrorists as ordinary criminals? W

implications of such treatment? The first area of concern is the way that the arrest proc

functions. The kind and degree of force authorized in the arrest process are very differ

the type and level of force applied in a combat situation. The contrast is ìbetween the p

of minimal use of force as practiced by police and the military philosophy to use all ne

force to achieve the objective.î

38 The use of force for civil law enforcement and milita

purposes differs. ìMilitary rules are designed to meet the primary purpose of the engag

CHAPTER 2 55 
[including the criminal] or bystanders.

Does it make sense to take the policemans a

and attempt to arrest politically dedicated and ideologically motivated terrorists who p

substantial firepower and destructive capability?

If the military is called in to assist law enforcement authorities, whose rules are 

police or military? If military force must be used to assist in the arrest, then do terroris

some degree of legitimacy? Some commentators believe so: 

If crack units are necessary for operations against them, that confers a 

special status upon the terrorists. If they can only be mastered by army units, 

surely that means that terrorist bands are in fact military units themselves.

40

Imprisoning Terrorists

The problem of treating terrorists as ordinary criminals does not end with arres

there. Politicized trials are a tactic of terrorists.41 And once convicted, terrorists enter a 

system that is ill prepared to deal with them; punishment, incapacitation, and rehabilita

not fit the terrorist well.

Psychologist Alan F. Sewell has distinguished three types of criminals. They ar

1. The psychopathological offender whose inconsistent behavior reflec

idiosyncratic values. To the extent that political crime represents opposition of 

social value systems, this offenderís behavior cannot be politically motivated. 

2. The common criminal whose behavior is inconsistent but does not 

imply values in conflict with those of his society. This offenderís deviation fro

social values is in the realm of means, not ends. Hence, this offenderís behavio

also cannot be politically motivated. 

3. Ideologically motivated offenders are the true political criminals. Th

behavior demonstrates a consistent opposition of the values of the society in 

which the offense is committed. Their motivation is indeed to harm the politica

system of one society in furtherance of the cause of the political system of anot

society.42

How does one punish a terrorist who does not accept the system or moral responsibilit

offenses committed? How does one apply a parole system, based as it is upon the offen

readiness to reenter society, if rehabilitation does not occur? Indeed, the only function 

jailing terrorists may be to incapacitate them.

43

While imprisoned, the terrorist presents further unique problems. The recruitin

from the prison population to become terrorists is a serious problem. Studies show tha

CHAPTER 2 56 
for the Hamburg magazine Konkret, visited with Andreas Baader while he was in priso

planned and effected Baaderís escape, and formed what became known as the Baader-

gang and, subsequently, the German Red Army faction.44

Use of Force Abroad: In What Context? 

Our analysis of the law enforcement approach thus far has focused on efforts a

international cooperation and the appropriateness of treating terrorists as ordinary crim

the extent that we have discussed the use of force it has been as a function of the arrest 

Now we turn to the issue of the use of force not as a function of arrest but as an end in 

namely, to deter or remove a terrorist threat abroad. It is in this response mode that the 

enforcement approach is weakest, for it seeks to emphasize the criminal character of te

and to de-emphasize its combatant character. When projection of military force overse

becomes necessary, how does the law enforcement approach conceptualize the respon

Traditional international law governing the use or threatened use of military fo

accepts only three possibilities: response to a peacetime crisis, armed conflict, or war. 

choices span the conflict spectrum and each has its own body of international law: law 

peacetime response, law of armed conflict, and law of war. 

Confronted with a set of factual circumstances, states must choose the context 

response.45 Terrorism is not peculiar to a definable area of the conflict spectrum; it is a

unacceptable method of applying violence that can range across the spectrum from the 

the low end. Consequently, states responding to terrorism have latitude to characterize 

response within the conflict spectrum as they deem appropriate to the threat. But, the l

enforcement approach leaves no choice. The only context in which the use of military 

abroad may be employed is in the context of a peacetime crisis. Why? Because contem

international law no longer recognizes war as a choice46 and the armed conflict contex

precisely the choice that the law enforcement approach refuses to make. The only rem

choice is a peacetime crisis response.

Peacetime Crisis Response: What Does It Mean? 

First, a state using or threatening the use of military force to respond to a peace

intends that its actions be viewed as occurring in a peacetime context. The acting state 

declaring war nor does it wish its actions viewed as creating a situation of armed confl

can achieve this characterization of its action only if other involved states likewise agr

or otherwise.47 Should any state involved in the crisis opt to consider the unfolding eve

armed conflict, others will find it difficult to deny this assessment. Generally, during th

four decades, states have approached situations of tension within the context of a peac

response. By stressing military action within a peacetime context, the risk of escalation 

CHAPTER 2 57 
Second, the rules of international law differ depending on whether force is emp

peacetime crisis or during armed conflict. Use or threatened use of force requires two l

decisionmaking: the initial decision to use force and subsequent decisions on the level 

be used. Different bodies of international law exist relevant to each decision. The first 

the question of whether use per se is legitimate; the second addresses the manner and m

use, for example, targets, weapons, and status and treatment of individuals caught up i

event. To understand what it means in international law to elect a peacetime crisis resp

instead of an armed conflict response, a brief look at each is necessary. 

Initial Decision to Use or Threaten Use of Force 

The international law rules governing the legitimacy of a stateís right to use or 

the use of military force abroad are the same whether in a peacetime crisis or in an arm

conflict situation. Those rules, contained chiefly in customary international law and th

Nations Charter, are discussed in detail in chapters 4-6. However, satisfying the condit

requirements of those rules will prove more difficult in a peacetime context. How muc

it for a state to assert persuasively, for example, that it is responding in self-defense to 

attack if the situation is characterized as an armed conflict rather than a peacetime cris

law recognizes that ìa nation, of course, possesses a much broader right to invoke coer

measures against any opposing belligerent [and that] the right to use force in time of p

very limited.î48

Subsequent Decisions on Conduct of Operations 

In international law, the law of armed conflict regulates how force is to be emp

during operations but it does not specify the rules for making the initial decision to use 

threaten the use of force. Many of the rules contained in the law of armed conflict appl

peacetimeósuch as the requirements to minimize collateral civilian damage and injury 

target only military objectives, and the obligation to treat all parties humanely.49 But m

rules of the law of armed conflict do not apply when resort to force occurs in a peaceti

because those rules are triggered only in situations of declaration of war or armed conf

situations that the peacetime crisis response is designed to avoid. 

The neutrality rules, for example, are inapplicable. These detailed and demandi

set the standard of conduct for third-party states not involved in the conflict. They con

responsibilities toward participants in the conflict including economic relations, such a

Also inapplicable are the 1949 Geneva conventions. Common article 2 provides that ì

Convention shall apply to all cases of declared war or of any other armed conflict whic

arise between two or more of the High Contracting Parties, even if the state of war is n

recognized by one of themî (emphasis added).51 Since the Geneva conventions do not 

peacetime, the provisions of the conventions outlawing terrorist acts and providing for 

CHAPTER 2 58 
Moreover, the provisions regarding prisoner of war status in Geneva Conventio

not apply in peacetime either. The law enforcement approach entirely ignores the issue 

whether terrorists would be entitled to POW status. Clearly, if the issue were considere

terrorists would not be entitled to POW status because they would be viewed as unlaw

unprivileged combatants. 

On the other hand, inapplicability of the Geneva conventions raises a serious problem 

using military force in a peacetime context. Are US soldiers sent into combat in peacet

covered by the conventions? They are not, and ways must be found around this proble

solution is for all involved parties simply to apply the conventions. Another solution, w

least risk to military personnel, is to ensure that none are captured. This was a key requ

for example, in planning the April 1986 Libya raid. Planning for ìno lossesî to avoid t

the status of captured personnel has been an important consideration in counterterroris

Law of Armed Conflict: An Alternate Approach? 

Robert Frost lamented in his poem The Road Not Taken that ìtwo roads diverg

yellow wood, And sorry I could not travel both.î The law of armed conflict approach i

not taken. This body of customary and treaty law includes the 1907 Hague Regulation

Geneva Gas Protocol, and the 1949 Geneva conventions, all of which apply in time of 

conflict. By approaching state-sponsored or -supported international terrorism in the co

armed conflict, the United States would be recognizing terrorism as a mode of warfare

the law of armed conflict approach might also serve to emphasize the seriousness of th

US national security. 

A policy decision opting for this approach would, however, admit to a higher l

violence. The law of armed conflict was never intended to apply to individual criminal 

sporadic uprisings, riots, or minor civil disorders.52 Acknowledging the existence of a 

armed conflict may be an unacceptable foreign policy admission. Admission of a high

violence, however, may escalate the situation, which could be a prime argument again

approach. 

Ironically, the law of armed conflict approach provides a more effective crimin

for dealing with international terrorists than does the law enforcement approach. The l

armed conflict makes terrorism an international crime and establishes a universal oblig

the part of all nations to prosecute or extradite those engaging in terrorist conduct. The 

armed conflict does not grant terrorists POW status. Instead it condemns them as unlaw

combatants on six counts. 

Terrorism as Criminal Conduct 

CHAPTER 2 59 
community.

Article 22, Hague Regulations, provides that the right of belligerents to 

means of injuring the enemy is not unlimited.î54 Fundamental to the law of armed con

maintaining the distinction between combatants and noncombatants.55 It forbids makin

the direct object of attack, although it is recognized that in armed conflict incidental da

injury to civilians might occur.56 What is unique about terrorism is its direct targeting o

civilians. ìTerrorists may attack military and internal security forces but the essence o

strategy is to attack what would normally be considered non-Combatant and non-milit

by means violative of the minimal requirements of the law of war... They wage counte

rather than counterforce war.î57

Civilians and civilian objects are specifically protected by Geneva Convention IV, 58 w

provides in article 33 that ìall measures of intimidation or of terrorism are prohibitedî 

added) against them.

59 This ban includes collective punishment, which is a form of terr

the civilian population.60 Article 27, Geneva Convention IV, requires that all civilians 

humanely.61 Thus, against civilians and civilian objects, concludes Hans-Peter Glasser

adviser to the directorate of the International Committee of the Red Cross (ICRC), ìno 

act can ever be justified.î

62 This convention strictly forbids terrorist acts not only again

diplomats, women, children, tourists, businessmen, and ordinary citizens in their daily 

but also those against embassies and consulates; commercial aircraft, ships, trains, and 

hospitals; and like institutions. In short, civilians and civilian objects are not lawful tar

Moreover, the law of armed conflict prohibits the taking of civilian hostages.64 

nations exert great effort to bring into force such law enforcement measures as the 197

International Convention Against Taking of Hostages and to obtain universal acceptan

such a rule already exists in the law of armed conflict.65 Pillage of civilian property als

forbidden.66

The law of armed conflict provides a standard of treatment for prisoners. Gene

Conventions I, II, and III require respect for POWs.67 Killing prisoners, a frequent terr

prohibited. As Glasser notes, ìany attempts upon their lives, or violence to their person

strictly forbiddenÖ Prisoners of war who refuse to answer may not be threatened, insu

exposed to any unpleasant or disadvantageous treatment of any kind.î68 He concludes 

provisions are tantamount to a comprehensive ban on acts of terrorism against overpow

enemies.î69

Additionally, the law of armed conflict forbids the use of weapons, projectiles, 

materials calculated to cause unnecessary suffering.

70 The 1868 Saint Petersburg Conv

prohibits the use of projectiles of less than 400 grams and having certain characteristic

Dumdum and exploding projectiles are forbidden.

72 The 1925 Geneva Gas Protocol pr

and biological warfare.73 Article 23(a) of the Hague Regulations provides: ìIt is especi

forbidden: (a) To employ poison or poisoned weapons.î74 The 1979 poisoning of Israe

with mercury injection by Palestinian extremists, if occurring within armed conflict, w

violated the law of armed conflict, as would the 1982 poisoning of Tylenol capsules w

that killed six persons if the act had been done by terrorists in an armed conflict enviro

CHAPTER 2 60 
The law of armed conflict not only prohibits unlawful weapons, it prohibits unl

of a lawful weapon as well. Air Force Pamphlet (AFP) 110-31, International LawóTh

of Armed Conflict and Air Operations, makes this distinction clear. 

A weapon may be illegal per se if either international custom or treaty h

forbidden its use under all circumstances. An example is poison to kill or injure 

person. On the other hand, any weapon may be used unlawfully, such as when 

is directed against civilians and not at a military objective. In the first example, 

the question of how the weapon is used is irrelevant because the use of the 

weapon itself is prohibited; in the second example, the manner of employment 

critical.

75

In accordance with the law of armed conflict, the use of any weapon against a civilian 

object by a terrorist would be unlawful. 

The law of armed conflict makes military objectives lawful targets while civilia

civilian objects are prohibited targets. Military objects would include, for example, mi

installations, military personnel, and the industrial base supporting the war-fighting ca

One might well ask, if the law of armed conflict approach were adopted, then would n

attacks against these military targets be lawful? The answer to this question would be i

affirmative if terrorists could qualify as lawful combatants, but they cannot. 

Terrorists as Unlawful Combatants 

Terrorists are unprivileged or unlawful combatants and as such are not entitled 

treatment as POWs. They do not meet the conditions for lawful combatant status as pr

article 4, Geneva Convention III.76 One condition is that those engaging in use of force 

organizations that act on behalf of an entity subject to international law. Thus, state-sp

international terrorists might meet this condition. So too might factions of the PLO, wh

have an international status. But those terrorists without such a link cannot be lawful 

combatants.77 Those terrorists fail to meet another condition of the Geneva convention

lawful combatants conduct their operations in accordance with the laws and customs o

terrorists are disqualified on this ground. The terrorist resolve to attack civilians is dire

counter to the letter and spirit of the law of armed conflict, which seeks as one of its pr

purposes to protect those persons. Furthermore, an individual member of a terrorist org

who attacks only military objectives will not receive lawful combatant status any more 

would a group of terrorists captured on a particular mission directed at a true military o

Dr Jiri Toman, deputy director of the Henri Dunant Institute (a research organ of the IC

why. 

These conditions concern the movement as a whole and individual 

violations of these rules [do] not deprive its members of their protection. Those 

CHAPTER 2 61 
movement, even if he personally respects the rules, does not receive the benefit

of privileged treatment. 

Öthe fundamental principles of the law of war exclude the terrorist 

activities. This prohibition is based on the lack of distinction between legitimat

and illegitimate attacks.78

Since terrorists are unlawful combatants, they cannot receive the privilege of P

treatment and consequently are also ìunprivileged combatants.î79 Terrorists and their s

who argue for application of the Geneva conventions to terrorist activity do not unders

that would mean. They ìhave been quick to assert the protective features of the law of 

vis insurgent combatants but have virtually ignored the duties of such combatants to fi

according to the rules of war.î80

To be protected by the Geneva conventions, terrorists would have to change th

methods fundamentally. They would have to cease to be terrorists and comply with the 

armed conflict. And, even if they did so, POW status would not prevent them from bei

ìinterned for the duration of the conflict,î that is, for an indefinite period.81 Since they 

likely to change their methods, applying the Geneva conventions to their conduct wou

subject them to criminal prosecution and punishment for violation of the law applicabl

conflict. Joseph Lador-Lederer summed it up very well when he wrote: ìWar cannot in

terrorism with any legality, nor can it divest terrorism of criminality.î82 Terrorists will 

benefit from this legal regime. 

Duty to Prosecute or Extradite 

In contrast to the law enforcement approach, which seeks international coopera

criminalize terrorism and to improve extradition procedures, the law of armed conflict 

terrorist attacks as serious criminal acts and includes a universal obligation for states to 

or extradite. Moreover, the law of armed conflict characterizes terrorist acts as war crim

crimes against humanity, and grave breaches of the Geneva conventions. The Nuremb

Charter, article 6(b), defines war crimes as including 

murder, ill-treatment or deportation to slave labour or for any other 

purpose of civilian population of or in occupied territory, murder or ill-treatme

of prisoners of war or persons on the seas, killing of hostages, plunder of publi

private property, wanton destruction of cities, towns or villages, or devastation 

justified by military necessity.83

Article 6(c) defines crimes against humanity as including ìmurder, extermination, ensl

deportation, and other inhumane acts committed against any civilian population.î On 1

December 1946 the UN General Assembly passed Resolution 95 (1) unanimously ratif

Nuremberg Charter and Judgment. Since then the Nuremberg principles have become 

CHAPTER 2 62 
The Geneva conventions provide for grave breaches giving rise to individual cr

responsibility to include, for example, the following acts against civilians: willful killin

or inhumane treatment, willfully causing great suffering or serious injury to body or he

unlawful confinement, and taking of hostages.84 The Geneva conventions not only esta

individual criminal responsibility for terrorist acts, but they create a universal obligatio

part of states to enact the necessary domestic criminal laws to ensure effective implem

these criminal provisions of international law and to effect searches for and prosecutio

extradition of offenders. 85 As a general rule individuals are not subjects of internation

international law concerns relations among states. However, individuals can become su

international law when they commit international crimes, such as war crimes, crimes a

humanity, and grave breaches of the Geneva conventions. Nevertheless, in these instan

persons normally are not tried by an international court; the primary obligation to try r

states. The United States, for example, has enacted legislation to prosecute such person

it should be noted that there is no statute of limitations on such crimes. 87

Terroristís Cause Not Legitimated 

The application of the law of armed conflict to international terrorists legitimiz

their methods nor their causes.88 Within the context of the law of armed conflict, the d

between terrorist and freedom fighter or guerrilla is plain. The law of armed conflict is 

causes but is ever mindful of the means employed. The terroristís general purpose is to 

violence against civilians and civilian objects; the guerrilla or freedom fighterís genera

is to direct violence at military objectives. Or put another way, terrorist attacks on mili

objectives are the exception not the rule; guerrilla attacks on military objectives are the 

the exception. Benjamin Netanyahu, Israelís ambassador to the United Nations, summ

precisely when he wrote: 

Terrorists habitually describe themselves as ìguerrillasî but guerrillas a

not terrorists. They [guerrillas] are irregular soldiers who wage war on regular 

military forces. Terrorists choose to attack weak and defenseless civilians: old 

men, women and childrenóanyone in fact except soldiers if terrorists can avoi

it. 

This indeed is one of terrorismís most pernicious effects; it blurs the 

distinction between combatants and noncombatants, the central tenet of the law

of war.89

Terrorism as a Military Responsibility 

Developing doctrine, strategy, tactics, and rules of engagement on combating t

may be assisted by treating international terrorism within the framework of the law of 

conflict. As former secretary of the Air Force Verne Orr admonished in 1985, 

CHAPTER 2 63 
pace with the evolving threat. We need only go back in history to illustrate that 

we must never again prepare to fight ìthe last war.î Future warfare may not ex

in the traditional sense. It may be nothing more than well-organized and 

coordinated terrorism, perpetrated by highly dedicated and heavily armed 

terrorists on a mass scale.90

Doctrine has not kept pace with the terrorist threat. According to the ìUSAF A

Terrorism Task Group Final Report,î 1 January 1984, ìthe Air Force has not develope

to combat terrorism because doctrine focuses on conflict and terrorism has been treate

criminal activity.î91 The report also finds similar deficiencies in rules of engagement (R

Personnel do not tend to think of ROE relative to terrorism. Terrorism

consists of criminal activity and is currently addressed in terms of law 

enforcement and self-defense, most notably centering on the use of deadly 

forceÖ The question arises whether we want to create a separate body of rules 

dealing with terrorism or merely insure that the terrorist threat is adequately 

addressed in existing regulations and plans which are, in effect, the ROE for 

dealing with terrorist and other criminal acts.92

The task group recommended in favor of the second option without considering the po

inherent in the law of armed conflict approach. 

This lack of doctrine and an accompanying confusion over rules of engagemen

helpful. Uncertainty about how and when military force will be used against internatio

terrorism is dangerous and should be troublesome to national leaders. Shifting from a l

enforcement approach to a law of armed conflict approach with emphasis on terrorism 

of warfare could contribute to clearer thinking about the military role and mission. Eve

shift were not to occur, an understanding of the two legal approaches described in this 

could put international terrorism in clear focus. It is disturbing, therefore, to read the A

1986 joint study on low-intensity conflict sponsored by the US Army Training and Do

Command and find nothing in it on the legal aspects of the either low-intensity conflic

subelement, international terrorism.

93

Ancillary Issues 

Finally, applying the law of armed conflict to international terrorist activities c

in some collateral legal problems. Thus, the full effect of such an approach would requ

study. For example, all-risk insurance policies (both life and pro-petty) usually contain 

excluding coverage in time of ìwar... civil war, revolution, rebellion, insurrection, or w

operations, whether there be a declaration of war or not.î For the law of armed conflic

a state of armed conflict must be recognized. Would insurance coverage cease?94

CHAPTER 2 64 
time of peace, they are not. Most nations use dumdum-like ammunition in terrorist situ

to inflict unnecessary suffering on the terrorist but to contain the hostile situation. Dum

rounds have a greater tendency not to pass through the body of the person shot, thus re

likelihood of incidental injury to others. In aircraft hijacking situations, the rounds are 

to pierce the hull of the aircraft, thereby causing depressurization.95

Summary and Transition 

This chapter has outlined two different approaches to state-sponsored internatio

terrorism. The West, including the United States, has elected to respond to terrorism th

law enforcement approach rather than to invoke the law of armed conflict. Both appro

advantages and disadvantages. The choice is not clear cut. Table 2 compares the two a

CHAPTER 2 65 
Alternate Legal Approaches Compared 

Trait Law Enforcement Law of Armed Confl

Basic thrust Civil Military 

Primary level of

responsibility 

Police Armed forces

View of terrorist activity Outlaw Unlawful combat 

Combatant status of 

terrorists 

None Unlawful and unpriv

Treatment of terrorists Criminal Criminal 

Objective of authorities Arrest, prosecute, and imprison Defeat, prosecute, an

imprison 

Offenses, where normally 

defined 

Domestic law International law 

Applicability of treaty law 

defining offenses 

Limited Universal

Applicability of 

extradition law 

Limited Universal

Authority to try Domestic courts Normally domestic, b

international courts c

Context of armed force 

response 

Peacetime crisis Armed conflict

Initial decision to use 

force (go/no-go rules)

(Rules contained in chapters 4-6 are the same for both approa

May be easier for LOAC approach to meet the conditions of t

rules.) 

Subsequent decisions on

use of force (rules 

governing conduct of

military operation) 

Some law of armed 

conflict rules apply. 

Geneva conventions do not

apply.

All law of armed con

rules apply including

Geneva conventions. 

Further review and discussion is encouraged so that the West can best utilize 

international law in combating terrorism. The next chapter lays the foundation for the 

use of armed force abroad by looking at the international law concept of state responsi

CHAPTER 2 66 
1. Department of State, ìLibyan Sanctions,î President Ronald Reagan, openin

statement at news conference, 7 January 1986, Current Policy 780, 1. 

2. Brian Michael Jenkins, ìCombatting Terrorism Becomes a War,î Rand, 698

Corp., Santa Monica, Calif., May 1984, 7. 

3. Paul Wilkinson, Terrorism and the Liberal State (New York: John Wiley & 

Halstead Press, 1977), 179; Richard D. Crabtree, ìU.S. Policy for Countering Terroris

Intelligence Dimension,î Conflict 6, no. 1 (Winter 1986): 5; and Fred Kaplan, ìNew T

Administration Pushing Revival of Units to Fight Small-Scale Wars,î Boston Globe, 1

1986, 1. 

4. Neil C. Livingstone and Terrell E. Arnold write: ìToday international terror

their patrons are, in effect, at war with the United States.î Livingstone and Arnold, ìD

under Attack,íí in Fighting Back: Winning the War against Terrorism, ed. Livingstone 

Arnold (Lexington, Mass.: D. C. Heath and Co., 1986), 1. Donald M. Kerr of the Los A

National Laboratory finds that ìincreasingly, terrorism has become a form of low-inten

warfare.î Kerr, ìCoping with Terrorism,î Terrorism: An International Journal 8, no. 2 

115. Stefan T. Possony, senior fellow at the Hoover Institution avoids reference to the 

when he states in testimony before the US Senate that ìin paraphrase of Clausewitz it c

said that terrorism is the continuation of [a] political feud with other means. It is, there

to regard terrorism, whatever the character of particular operations or campaigns, as m

enterprises.î Senate, Committee on the Judiciary, Subcommittee on Security and Terro

Hearings on Historical Antecedents of Soviet Terrorism, 97th Cong., 1st sess., 11-12 J

series J-97-40, 32-33. 

5. Jeane J. Kirkpatrick quoted in Senate, Committee on the Judiciary, Subcom

Security and Terrorism, Report on ìState-Sponsored Terrorism,î 99th Cong., 1st sess.

1985, Senate print 99-56, 37. 

6. Vernon Walters quoted in ìUS Exercises Right of Self-Defense against Liby

Terrorism,î Department of State Bulletin 86, no. 2111 (June 1986): 21. 

7. George Shultz quoted by Crabtree, 5. 

8. Department of Defense, Report of the Department of Defense Commission 

International Airport Terrorist Act (Washington, D.C.: 23 October 1983), 4. 

9. Department of State, ìTerrorism: Overview and Developments,î address by 

Ambassador Robert B. Oakley, director, Office of Counter-terrorism and Emergency P

before the Issues Management Association, Chicago, Ill., 13 September 1985, Current 

744, 5. 

10. Joint Chiefs of Staff definition quoted in Department of the Army, Trainin

Doctrine Command, Joint Low-intensity Conflict Project, vol. 1, Analytical Review of 

intensity Conflict (Fort Monroe, Va.: 1 August 1986), 1-2. 

11. Quoted by Albert L. Weeks, in ìTerrorism, With Moscowís Backing, Aim

Increasingly at U.S. Targets,î New York City Tribune, 15 May 1986, 1. 

CHAPTER 2 67 
1986): 11. Christopher Dobson and Ronald Payne wrote: The general aim was to mak

terrorism a crime, and to consider terrorists as criminals.î Dobson and Payne, Counter

Westís Battle against the Terrorists (New York: Facts on File, 1982), 16. The US Arm

that ìUnited States policy on terrorism is clear: All terrorists are criminals.î See Depar

the Army, ìDOD Policy on Terrorism,î Speaking with One Voice, 15 September 1982

13. Lt Col James P. Terry, USMC, ìAn Appraisal of Lawful Military Respons

Sponsored Terrorism,î Naval War College Review 39, no. 3 (May-June 1986): 67. See 

T. Correll, editorial, ìTerrorism and Military Force,î Air Force Magazine 69, no. 9 (Se

1986): 8; Capt William H. Burgess III, USA, ìCountering Global Terrorism,î Military 

66, no. 6 (June 1986): 74; Edward A. Lynch, ìInternational Terrorism: The Search for 

Terrorism: An International Journal 9, no. 1 (1986): 51; Jay Mallin, ìTerrorism as a M

Weapon,î in Contemporary Terrorism: Selected Readings, ed. John D. Elliott and Lesl

Gibson (Gaithersburg, Md.: International Association of Chiefs of Police, 1978), 119-2

Rostow, ìOvercoming Denial,î in Terrorism: How the West Can Win, ed. Benjamin N

(New York: Farrar, Straus, and Giroux for the Jonathan Institute, 1986), 146-47; and M

W. Wright, USA, ëTerrorism: A Mode of Warfare,î Military Review 64, no. 10 (Octob

43. 

14. Stephen Sloan, Beating International Terrorism: An Action Strategy for Pr

and Punishment (Maxwell AFB, Ala.: Air University Press, December 1986), xii. 

15. Vice President, Public Report of the Vice Presidentís Task Force on Comb

Terrorism (Washington, D.C.: February 1986), 1. 

16. Rostow, 146. 

17. Abraham D. Sofaer, ìTerrorism and the Law,î Foreign Affairs 64, no. 5 (S

1986): 901. 

18. Ibid., 912. 

19. Noel C. Koch, ìAirlines on the Front Lines,î Wall Street Journal, 12 Septe

1986, 32. 

20. Sloan, 3. 

21. Harry G. Summers, Jr., ìAnti-Terrorism Game Plan,î book review, Washi

Times, 20 May 1986, 1(D). 

22. Caspar Weinberger, Department of Defense, Office of the Assistant Secret

(Public Affairs), News Release 609-84, 28 November 1984. 

23. George Shultz, quoted in Joint Project, Executive Summary, 1. 

24. To the extent that public officials and the press fail to label as terrorist acts 

offenses such as murder, kidnapping, arson, assault, or extortion and use instead other 

implying a noncriminal event, they undermine the goal of identifying terrorism with cr

conduct. 

25. See Charles Maechling, Jr., ìContaining Terrorism,î Foreign Service Journ

7 (July-August 1984), 34; and J. W. Schneider quoted in International Law Associatio

ìInternational Terrorism: Third Interim Report of the Committee,î in Report of the Fif

Conference Held at Belgrade (Great Britain: 1982), 515. 

26. Maechling, 34. 

27. Kay Hailbronner, ìInternational Terrorism and the Laws of War,î in Germ

Book of International Law 25 (Berlin: Duncker & Humblot, 1982), 175. 

CHAPTER 2 68 
29. European Convention on the Suppression of Terrorism, 27 January 1977

European Treaty Series 90; and Abraham Sofaerís discussion of the Supplementary Tr

Concerning the Extradition Treaty between the Government of the United States and th

Government of the United Kingdom of Great Britain and Northern Ireland, signed 25 J

in ìThe Political Offense Exception and Terrorism,î statement before Senate Foreign R

Committee, 1 August 1985, Department of State, Current Policy 762. 

30. Eain v. Wilkes, 641 F. 2d 504 (1981). 

31. ìConvention for the Prevention and Punishment of Terrorism,î opened for 

at Geneva, 16 November 1937, League of Nations, C.94.M.47.1938.V. 

32. See Sofaer, ìTerrorism and the Law,î 903. 

33. Jiri Toman. ìTerrorism and the Regulation of Armed Conflict,î in Internat

Terrorism and Political Crimes, ed. M. Cherif Bassiouni, 3d Conference on Terrorism 

Political Crimes, 1973 (Springfield, Ill.: Charles C. Thomas for International Institute 

Advanced Criminal Sciences, 1975), 152. See also John Norton Moore, ìInternational 

Terrorism,î ROA National Security Report 4, no. 10 (October 1986): 12; and statemen

Monroe Leigh, Department of State legal adviser, in UN Sixth (Legal) Committee, 6 D

1976, as quoted in Department of State, Office of the Legal Adviser, Digest of United 

Practice in International Law, 1976 (Washington, D.C.: 1977), 157. 

34. ILA, ìThird Interim Report,î 354. See also Alfred P. Rubin, ìCurrent Leg

Approaches to International Terrorism,î in Terrorism, Political Violence and World O

Henry Hyunwook Han (Lanham, Md.: University of America, 1984), 437-38. 

35. See ILA, ìTerrorism: Final Committee Report,î Report of the Sixty-First C

Held at Paris (Great Britain: 1985), 320-22. 

36. Department of State, ìConvention for the Suppression of Unlawful Acts ag

Safety of Civil Aviationî (Montreal Convention), 23 September 1971, Treaties and Ot

international Acts Series (TIAS) 7570, United States Treaties and Other International 

Agreements (UST), vol. 24, pt. 1, 564; ìConvention for the Suppression of Unlawful S

Aircraftî (Hague Convention), 16 December 1970, TIAS 7192, UST, vol. 22, pt. 2, 16

ìConvention on Offenses and Certain Other Acts Committed on Board Aircraftî (Toky

Convention), 14 September 1963, TIAS 6768, UST, vol. 20, pt. 3, 2941; United Nation

Series (UNTS), Treaties and International Agreements Registered or Filed and Reporte

Secretariat of the United Nations, vol. 704 (1969), no. 10106, 219; ìConvention on the 

Prevention and Punishment of Crimes against Internationally Protected Persons, Includ

Diplomatic Agentsî (New York Convention), 14 December 1973, TIAS 8532, UST, v

2, 1955; and United Nations, ìInternational Convention against Taking of Hostages,î 

December 1979, A/34/319 (1979). 

For example, the International Convention against Taking of Hostages is not ye

having failed to receive the minimum 22 necessary ratifications. During the debate in t

Sixth (Legal) Committee, the Libyan representative proposed that the text of the conve

limited to ìinnocentíí hostages. The US representative Robert Rosenstock replied: 

CHAPTER 2 69 
that some third party comply with the demands of the perpetrators. It always 

involves demands on a third party. The person or persons held are not held for 

reasons relating to themselves but to the demands on a third party; they are thu

by definition innocent in the context of the act in questionÖ hostages are huma

beings held for what ransom they may bring. Held for what ransom they may 

bring, not for them or their acts. It would be at the least redundant and at most 

dangerously confining to add an inherently irrelevant adjectival qualifier to the 

term hostage. 

Department of State, Office of the Legal Adviser, Digest of United States Prac

international Law, 1976, ed. Eleanor C. McDowell (Washington, D.C.: 1977), 158-59, 

Department, 8908. 

38. Kerr, 122. 

39. Terrell E. Arnold, ìRewriting the Rules of Engagement,î in Fighting Back

Livingstone and Arnold, 188. See also Dobson and Payne, 186; Gayle Rivers, The Wa

the Terrorists: How to Win It (New York: Stein and Day, 1986), 36-37 and 210; and P

Wilkinson, ed., Political Terrorism (London: Macmillan Co., 1974), 150. 

40. Dobson and Payne, 186. See also Bart de Schutter and Christine van de W

ìCoping with Non-International Armed Conflicts: The Borderline between National an

International Law,î Georgia Journal of International and Comparative Law 13, supp. (

280; and British Perspectives on Terrorism, ed. Paul Wilkinson (London: George Alle

Unwin, 1981), 17-71. 

41. See Noemi Gal-Or, International Cooperation to Suppress Terrorism (New 

Martinís Press, 1985), 142-43. 

42. Alan F. Sewell, ìPolitical Crime: A Psychologistís Perspective,î in Bassio

43. See Ronald D. Crelinsten, Danielle Laberge-Altmejd, and Denis Szabo, Te

and Criminal Justice: An international Perspective (Lexington, Mass.: D. C. Heath and 

1978), 35-38; and Senate, Committee on Foreign Relations, Hearings before the Comm

Foreign Relations, S.2236, ìLegal Aspects of International Terrorism: The Trees and t

by Alona E. Evans and John F. Murphy, 95th Cong., 2d sess., 8 June 1978, 91. 

44. See John B. Wolf, Fear of Fear: A Survey of Terrorist Operations and Con

Open Societies (New York: Plenum Press, 1981). 60-65. 

45. See ILA, ìThird Interim Report,î 352; Tom J. Farer, ìLaw and War,î in T

of the International Legal Order, ed. Cyril E. Black and Richard A. Falk, vol. 3, Confli

Management (Princeton, N.J.: Princeton University Press, Center for International Stu

1971), 15. 

46. See Farer, 17; Lt Comdr Bruce Harlow, USN, ìThe Legal Use of ForceÖ 

War,î US Naval Institute, Proceedings 92, no. 11 (November 1966): 89; and Jeffrey A

ìThe Entebbe Raid: The Principle of Self-Help in International Law as Justification fo

of Armed Force,î Fletcher Forum 1 (Spring 1977): 135. In 1880 international jurist W

Hall could write: ìInternational law has no alternative but to accept war, independently 

justice of its origin, as a relation which the parties to it may set up, if they choose, and 

itself only in regulating the effects of the relation,î Quoted by J. L. Brierly, The Law o

6th ed., ed. Sir Humphrey Waldock (New York: Oxford University Press, 1963), 398. 

CHAPTER 2 70 
1968), 742. 

Although states did not agree in the Covenant of the League of Nations to reno

they did agree to a procedure to regulate resorting to it. Members affirmed that they w

resort to war until three months after an award by arbitrators, a judicial decision, or a r

the Council had been ordered (article 12). Resort to war was forbidden against any stat

complied with such arbitral award or judicial decision (article 13), or, if unanimously a

by those Council members not a party to the dispute, any state which complied with th

recommendation of the report of the Council (article 15). See Rosalyn Higgins, ìThe L

Limits to the Use of Force by Sovereign States: United Nations Practice,î in British Y

of International Law, 1961, vol. 37 (Oxford, England: Oxford University Press for Roy

Institute for International Affairs, 1962), 272. 

In 1928 the Pact of Paris, otherwise known as the Kellogg-Briand Pact, was rat

this agreement the high contracting parties, as they were called, agreed to condemn rec

war as a solution for international disputes and to renounce war as an instrument of for

policy. See Department of State, Office of the Legal Adviser, Digest of International L

12, ed. Marjorie M. Whiteman (Washington, D.C.: August 1971), 3, State Department

The ban on declaring war was reaffirmed at the San Francisco Conference in 1945. ìW

United Nations (UN) Charter was adopted,î writes Oscar Schachter, Hamilton Fish Pr

International Law and Diplomacy at Columbia University, ìit was generally considere

outlawed war.î Schachter, ìThe Right of States to Use Armed Force,î Michigan Law R

(April-May 1984): 1620. 

47. See William W. Bishop, Jr., International Law: Cases and Materials, 2d ed

Little, Brown and Co., 1962), 744; and Neil C. Livingstone and Terrell E. Arnold, ìTh

State-Sponsored Terrorism,î in Fighting Back, ed. Livingstone and Arnold, 23. 

48. Harlow, 97-98. 

49. See generally Field Manual (FM) 27-10, The Law of Land Warfare; Naval 

Information Publication (NWIP) 10-2, Law of Naval Warfare; and Air Force Pamphle

110-31, International LawóThe Conduct of Armed Conflict and Air Operations. See 

ìGeneva Convention Relative to the Treatment of Prisoners of Warî (Geneva Convent

12 August 1949, TIAS 3364, UST, vol.6, pt. 3, article 3, 3316; UNTS, vol. 75 (1950), 

135. 

50. See ìConvention Respecting the Rights and Duties of Neutral Powers and 

Case of War on Landî (Hague Convention IV), 18 October 1907, Statutes at Large, vo

2310; United States Treaty Series (TS) 540; United States Treaties and Other Internati

Agreements, 1776-1949, compiled under the direction of Charles I. Bevans (hereinafte

vol. 1, Multilateral, 1776-1917, 654. 

51. ìGeneva Convention for the Amelioration of the Condition of the Wounde

in Armed Forces in the Fieldî (Geneva Convention I), 12 August 1949, TIAS 3362, U

pt. 3, common article 2, 3114; UNTS, vol. 75 (1950), no. 970, 31; ìGeneva Conventio

Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Ar

Forces at Seaî (Geneva Convention II), 12 August 1949, TIAS 3363, UST, vol. 6, pt. 3

UNTS, vol. 75 (1950), no. 971, 85; Geneva Convention III; and ìGeneva Convention 

the Protection of Civilian Persons in Time of Warî (Geneva Convention IV), 11 Augu

TIAS 3365, UST, vol. 6, pt. 3, 3516; UNTS, vol. 75 (1950), no. 973, 287. 

CHAPTER 2 71 
53. See AFP 110-31, para. l-2d; Hans-Peter Glasser, Prohibition of Terrorist 

International Humanitarian Law,î International Review of the Red Cross, no. 253 (July

1986): 200; Jordan J. Paust, ìëNonprotectedí Persons or Things,î in Legal Aspects of 

International Terrorism, et. Alona Evans and John F. Murphy (Lexington, Mass.: Lexi

Hooks for American Society of International Law, 1978), 350; and W. Hays Parks, ìM

in the Law of War,î in Han, 526-27. 

54. Hague Regulations (HR), article 22, annexed to Hague Convention IV; see 

Paust, 352; and Tharp, 98-99. 

55. See AFP 110-31, para, l-3a(2); Richard R. Baxter, ìThe Geneva Conventio

1949 and Wars of National Liberation,î in Bassiouni, 131; and Toman, 134. 

56. See AFP 110-31, para. l-3a(2); United Nations General Assembly, ìRespe

Human Rights in Armed Conflict,î 19 December 1968, Resolution 2444, 23d sess.; an

136-39. 

57. William V. OíBrien, ìTerrorismóWhat Should We Do?î in Terrorism, ed

Anzovin, The Reference Shelf, vol. 58, no. 3 (New York: H. W. Wilson Co., 1986), 15

also Anthony C. E. Quainton, ìTerrorism: Do Something! But What?î Department of 

Bulletin 79, no. 2030 (September 1979): 60. 

58. The Protocols Additional to the Geneva Conventions of 12 August 1949 (1

not considered in this study for two reasons. First, the United States is not a ratifying s

Second, the protocols are not significant to the issue of state-sponsored international te

For a discussion of the protocols see George H. Aldrich, ìNew Life for the Laws of W

American Journal of International Law 75, no.4 (October 1981): 764-83; Walter Pincu

ìProgressive Development of the Laws of War: A Reply to the Criticisms of the 1977 

Protocols,î Virginia Journal of International Law 26, no. 3 (Spring 1986): 693-720; Ri

Erickson, ìProtocol I: A Merging of the Hague and Geneva Law of Armed Conflict,î V

Journal of International Law 19, no. 3 (Spring 1979): 557-92; Douglas J. Feith, ìLaw i

Service of TerroróThe Strange Case of the Additional Protocols,î National Interest, n

1985): 36-47; Glasser, 200-12; L. C. Green, ìThe Legalization of Terrorism,î chap. 8 

Terrorism: Theory and Practice, ed. Yonah Alexander, David Carlton, and Paul Wilkin

Westview Special Studies in National and International Terrorism (Boulder, Col.: Wes

Press, 1979); L. C. Green, ìTerrorism and Its Responses,î Terrorism: An International 

no. 1 (1985): 33-77; Hailbronner, 169-98; Guy B. Roberts, ìThe New Rules for Wagin

The Case against Ratification of Additional Protocol I,î Virginia Journal of Internation

26, no. 1 (Fall 1985): 123-70; and Sofaer, ëëTerrorism and the Law,î 901-22. 

59. Geneva Convention IV, article 33. 

60. Ibid.; Paust, 354; and Toman, 138. 

61. Geneva Convention IV, article 27. 

62. Glasser, 206. 

63. See Geneva Convention IV, article 33; and AFP 110-31, para. l-3a(3). 

64. See Geneva Convention IV, article 34. 

65. See International Convention against Taking of Hostages; and Waldemar A

ìProblems with the Application of Norms Governing Interstate Armed Conflict to Non

International Armed Conflict,î Georgia Journal of International and Comparative Law 

(1983), 298. 

CHAPTER 2 72 
68. Ibid., 206. 

69. Ibid. 

70. HR, article 23(e). See also AFP 110-31, chap. 6 

71. The Saint Petersburg Convention is found at 18 Nartens III 474; American 

International Law 1, supp. (1907) 23; and Annex I, ICRC, ëReport of the ICRC, Reaff

and Development of the Laws and Customs Applicable to Armed Conflictî (Geneva: I

1969). 

72. See AFP 110-31, para. 6-3b(2). 

73. ìProhibition against the Use of Asphyxiating, Poisonous or Other Gases, a

Bacteriological Methods of Warfareî (Geneva Gas Protocol), 17 June 1965, TIAS 806

vol. 26, pt. 1, 571; League of Nations Treaty Series (LNTS), vol. 94:65. 

74. HR, article 23(a). See also AFP 110-31, para. 6-4f. 

75. AFP 110-31, para. 6-2. 

76. Geneva Convention III, article 4.

77. See Hailbronner, 178. 

78. Toman, 140-41. See also Aldrich, 769; Gal-Or, 148; and Solf, ìInternation

Terrorism in Armed Conflict,î in Han, 472. 

79. See Geneva Convention III, article 4a; AFP 110-31, para. 3-3a-c; Baxter, 1

Glasser, 203; and Toman, 143. 

80. Paul A. Tharp, Jr., ìThe Laws of War as a Potential for the Control of Terr

Activities,î in International Terrorism: Current Research and Future Directions, ed. Al

Buckley and Daniel D. Olson (Wayne, N.J.: Avery Publishing Co., 1980). 79. 

81. See Francis Anthony Boyle, World Politics and International Law (Durham

Duke University Press, 1985), 105. 

82. Joseph Lador-Lederer, ìA Legal Approach to International Terrorism,î Isr

Review 9 (1974): 209. 

83. ìCharter of the International Military Tribunal,î 8 August 1945, Statutes a

vol. 59:1544; Executive Agreements Series (EAS) 472; Bevans, vol. 3, Multilateral, 19

1238; UNTS, vol. 82 (1951), no. 251, 279. 

84. See Geneva Convention IV, article 147. 

85. See de Schutter and van de Wyngaert, 287; Solf, ìInternational Terrorism,

Solf, ìProblems,î 298. 

86. See Jurisdiction of General Courts-Martial, US Code. Title 10, sec. 818, w

provides in relevant part, ìGeneral courts-martial also have jurisdiction to try any pers

the law of war is subject to trial by military tribunal and may adjudge any punishment 

by the law of war.î See also Executive Order (EO) 12473, Manual for Courts-Martial, 

States, 1984, as amended by EO 12550, Amendments to the Manual for Courts-Martia

States, 1984, Rules of Courts-Martial (R.C.M.) 201 (a)(3), R.C.M. 201 (f)(1)(B), R.C.M

and R.C.M. 203. See additionally Ex Parte Quirin, 317 US 1(1942). 

87. On 19 May 1977 the Department of State responded to a French embassy n

saying, ìUnited States Federal law contains no statute of limitation on war crimes and 

against humanity.î See Department of State, Office of the Legal Adviser, Digest of Un

Practice in International Law, 1977, ed. John A. Boyd (Washington, D.C.: 1979), 927, 

Department, 8960. 

CHAPTER 2 73 
typically neglected with responses to terrorism. The point has been made that one thin

are about is gaining recognition by law to legitimate their cause, to legitimate the kind

which they are making against democracies and against the West in general.î Moore, ì

Terrorism,î 11. See also Robert A. Friedlander, comments, ìUn-muzzling the Dogs of 

Terrorism: An International Journal 7, no. 2 (1984): 170; David M. Graham, ìTerroris

Political Status?íí Round Table, no. 284 (October 1981): 401-3; and Solf, ìInternation

Terrorism,î 473. 

89. Benjamin Netanyahu, ìTerrorism: How the West Can Win,î Time, 14 Apr

49. As President Ronald Reagan has observed, ìFreedom fighters target the military fo

the organized instruments of repression keeping dictatorial regimes in power....Terrori

intentionally kill or maim unarmed civilians; often women and children, often third pa

are not in any way part of dictatorial regime.î President, Office of the Press Secretary, 

Address by the President to the Nation,î 31 May 1986. See also Lynch, 9; Robert C. M

ìTerrorism and the Future of Free Society,î in American Bar Association, Committee 

and National Security, Intelligence Report 7, no. 5 (May 1985): 5; and Robert Oakley 

Department of State, ìInternational Terrorism,íí 1986, Selected Documents 24, 3. It m

recognized, however, that the law of armed conflict does not condemn incident civilian 

or loss which occurs as a result of a direct attack on a military objective as long as the 

proportionality are observed. See AFP 110-31, para. l-3a(2). 

90. Verne Orr, ìPerspectives on Leadership,î Air University Review 36, no. 6 

(September-October 1985): 53. 

91. ìUSAF Anti-Terrorism Task Group Final Report,î 1 January 1984, 7. 

92. Ibid., 54. See also Arnold, 178-79. 

93. See Joint Project, vol. 1, Low-intensity Conflict, 1 August 1986. 

94. See Pan American World Airways, Inc. v. The Aetna Casualty & Surety C

505 F. 2d. 989 (1974); and Borysoglebski v. Continental Insurance Co., Inc., US Dist. 

Dist. Ill., 73 C 1392, 15 April 1974. Both cases discussed in Department of State, Offi

Legal Adviser, Digest of United States Practice in International Law, 1974, ed. Arthur 

Rovine (Washington, D.C.: 1975), 689-92, State Department, 8809. 

95. See Department of the Army, Office of the Judge Advocate General (HQ D

1985/7026), memorandum for director, Operations, Readiness, and Mobilization (DAM

subject: Use of Expanding Ammunition by U.S. Military Forces in Counterterrorist Inc

September 1985. 

CHAPTER 2 74 
STATES HAVE RESPONSIBILITIES 

AS WELL AS RIGHTS 

Since the Ayatollah Khomeini had endorsed rite militantsí action and demands

the acts of the militants became the acts of the Iranian state. 

John R. DíAng

It is well settled that a state is bound to use due diligence to prevent the 

commission within its dominions of criminal acts against another nation or its 

people. 

SS Lotus, Permanent Co

of International Jus

Every State has the duty to refrain from organizing, instigating, assisting or 

participating in acts of civil strife or terrorist acts in another State or acquiescin

in organized activities within its territory directed toward the commission of su

acts, when the acts referred to in the present paragraph involve a threat or use o

force [emphasis supplied]. 

UN General Assembly Resolution 2625, 25th Sess

This chapter examines the concept of state responsibility, that is, the duty that o

owes to another state and to the community of nations. Suppression of international ter

part of that duty. When states fail in their responsibility, either through inaction or thro

sponsorship or support of terrorism, they commit a delict or international wrong. The i

state is entitled to economic compensation and, in certain instances, to use military for

correct the wrong. This chapter also reviews the question of what evidence is necessar

a stateís failure of duty and the role of intelligence agencies in gathering that evidence

Concept of State Responsibility 

State responsibility is a much neglected concept. States combating terrorism ha

to invoke the concept in situations where other nations, directly or indirectly, have spo

supported, or tolerated international terrorism. The premier advocate for pressing this c

Prof Richard B. Lillich, University of Virginia School of Law, who writes, 

A body of international law called State Responsibility LawÖ should he invok

in situations where countries either encourage or tolerate terrorist acts or, if suc

acts are committed without the countryís participation, fail to apprehend, punis

or extradite terrorists. The law is very clear [and] this body of international law 

CHAPTER 3 75 
What is the law of state responsibility? States, like individuals, have both right

duties. Like individuals, states all too frequently seek to stress their rights and ignore t

responsibilities. Duties are a complement to the rights; rights cannot exist without duti

concept of state responsibility was set forth in the Island of Patinas (United States v. T

Netherlands), in clear language: 

Territorial sovereigntyÖ involves the exclusive right to display the activities o

the state, This right has as corollary a duty: the obligation to protect within the 

territory the rights of other States, in particular their right to integrity and 

inviolability in peace and in war, together with the rights which each State may 

claim for its nationals in foreign territory.2

The Permanent Court of International Justice (PCIJ) of the League of Nations i

Chorzow factory decision had occasion to consider the issue of the duty of states. The 

opinion notes: 

Whenever a duty established by any rule of international law has been breache

by act or omission, a new legal relationship automatically comes into existence

This relationship is established between the subject to which the act is imputab

who must ìrespondî by making adequate reparation, and the subject who has a 

claim to reparation because of the breach of duty.

ÖInternational responsibility may be incurred by direct injury to the rights of a 

state and also by a wrongful act or omission which causes injury to an alien.3

The elements of the law of state responsibility are: states have duties, these dut

established by international law, an act or omission that violates an obligation establish

international law is a wrong or delict, the unlawful act must be imputable to a state, los

damage must result from the unlawful act, the legal relationship between the violating 

the injured state is automatically altered, and the injured state, depending upon the 

circumstances, may be entitled to reparations or to use of force. 

Three questions arise that require further study. What duties do states have rega

international terrorism? What quality of proof or evidence is required to link a state ac

omission to international terrorism and for the injured state to demonstrate loss or dam

under what circumstances would resort to force (or even threatened use) be legitimate?

CHAPTER 3 76 
States have many obligations in international law. Among them are the duty to 

disputes peacefully, to abstain from resort to war as an instrument of national policy, t

from giving assistance to any state against which the United Nations is taking preventi

enforcement action, to abstain from recognizing any territorial acquisitions made by a 

violation of the UN Charter, to see that no actions within their jurisdiction might pollu

or water of a neighboring state, to perform all international obligations in good faith, a

conduct all relations in accordance with international law.4 

But the duty of particular relevance to international terrorism is described in UN 

Resolution 2625, 25th session, 24 October 1970. This resolution obligates that states re

organizing, instigating, assisting, or participating in terrorist acts in another state or ac

in organized activity by groups that direct their efforts toward committing terrorist acts 

second state.5 This duty applies at two distinct levels. The first encompasses state activ

(direct state involvement); the second concerns the responsibility of a state for the acti

individuals within its territory (indirect state involvement). This duty is far-reaching. 

Chapter 1 identifies four levels of state involvement in international terrorism:

sponsorship, support, toleration, and inability to act. International law likewise recogn

involvement is of a different degree or magnitude. Hence, the kind of response permitt

injured state will change accordingly.

Although Resolution 2625 represents a clear statement as to state responsibility 

terrorist acts, the General Assembly clouded this duty by suggesting that it might be ov

by the right of self-determination. The resolution, in subsequent language, provides tha

every State has the duty to refrain from any forcible action which deprives peo

Öof their right to self-determination and freedom and independence. In their 

action against, and resistance to, such forcible action in pursuit of the exercise 

their right of self-determination, such peoples are entitled to seek and to receiv

support in accordance with the purposes and principles of the Charter.6

This language makes the resolution ambiguous. It could lead to the false conclu

use of terrorist means in pursuit of self-determination is permissible. If this is the true m

the resolution, then it would be unacceptable to the West. Although neither decisions n

resolutions of the UN General Assembly are binding under the Charter, the West shou

concerned.7

 General Assembly resolutions can become authoritative if it can be said th

represent a reaffirmation by states of present-day international law. 

Separate and apart from Resolution 2625, international law recognizes the duty 

not to abet or condone terrorism nor to permit others within their territory from doing 

recognition arises out of other general duties, such as the duty of nonintervention, the d

refrain from fomenting civil strife in the territory of another state and to prevent others 

territory from engaging in such activities, and the duty to prevent threats to internation

CHAPTER 3 77 
against terrorism.

The totality of these duties has led international lawyers to conclude 

ìalready unlawful for states to incite, finance, tolerate, assist or promote acts of illegal 

abroad.î10 Therefore, to be consistent with international law the right of self-determina

mentioned in Resolution 2625 cannot be interpreted in such a manner as to relieve a st

its responsibility to suppress terrorism. 

Direct Involvement 

States are liable under the concept of state responsibility for such conduct.11 Sta

an obligation not to organize, support, abet, or encourage the formation of hostile expe

within their territory that are directed against another state.12 Such conduct would viola

sovereignty of other states and would be contrary to the duty of nonintervention and th

obligation assumed in article 2(4) of the UN Charter to refrain from the use or threaten

force against the political independence of another state. States also have an obligation 

foreign nationals within their territory. Consequently, when a terrorist incident arises, t

territorial sovereign has the primary responsibility for managing the situation and for d

furtherance of its international obligation.13

As an abstract entity, the state becomes liable under international law through t

omissions of its officials and agents. These acts or omissions are imputed to the state. T

the head of government are always imputable to the state, as are the acts of ministers w

scope of their ministries. The same is true of all other officials and agents, irrespective 

governmental level. This includes military and police authorities. Additionally, acts or 

are imputed to the state even if beyond the scope of the legal power of the official and 

opposite to that directed so long as they are not repudiated by governmental authority 

wrongdoer is not appropriately disciplined or punished.14

The 1979-81 Iranian hostage situation is an example of imputability. In this cas

was originally a nongovernmental act became a governmental act.î15 Other examples o

involvement by heads of state in international terrorism are Idi Amin in the 1976 air hi

Entebbe and the numerous deeds of Muíammar al-Qadhafi of Libya. The list of subalt

involvement is extensive. The nexus in each instance is imputability. State responsibil

a showing of a state act or omission. 

Indirect Involvement 

State toleration of international terrorism or the inability of a state to act to prev

terrorism are examples of indirect involvement. States that tolerate international terror

liable under state responsibility, but those that fail to act through lack of equipment, m

firepower, or other weakness are not. This is not to say that states in the latter category 

fulfilled their international duty. There is a difference between duty and the concept of 

responsibility. Duty is only one element of state responsibility. 

State responsibility is rooted in the principle that ìthe right of jurisdiction whic

CHAPTER 3 78 
territorial sovereignty.

This obligation enjoins states to prevent terrorists from organ

training within a state, from departing the state to carry out their acts, and from perpetr

terrorist acts against foreign nationals within the state.17 But a stateís obligation regard

terrorists is not absolute.

Early writers disagreed on this point. Samuel Pufendorf (1632-94), professor o

of nature and nations at Heidelberg University and later at Lund University, came the c

arguing for the absolutist view: ìNow it is presumed that the heads of a state know wh

openly and frequently done by their subjects, and the power to prevent is always presu

unless its lack be clearly established.í18 Hugo Grotius (1583-1645), Dutch internationa

the father of international law, argued to the contrary. 

A civil community, just as any other community, is not bound by the acts of 

individuals, apart from some act of neglect of its ownÖ But, as we have said, t

participate in a crime a person must not only have knowledge of it but also the 

opportunity to prevent it. This is what the laws mean when they say that 

knowledge; when its punishment is ordained, is taken in the sense of toleration

that he may be held responsible who was able to prevent a crime but did not do 

so; and that the knowledge to be considered here is that associated with the wil

that is, knowledge is to be taken in connection with intent.19

Like Grotius, Swiss diplomat and international lawyer Emerich de Vattel (1714

rejected the absolutist view, because ìit is impossible for the best governed state or for 

watchful and strict sovereign to regulate at will all the acts of their subjects and to hold 

every occasion to the most exact obedience; it would be unjust to impute to the nation, 

sovereign, all the faults of their citizens.î20 Grotius and Vattel prevailed. Both knowled

opportunity are required to find state responsibility. The standard or test has become d

diligence.21 In the words of Manuel R. Garcia-Mora, professor of law, Fordham Unive

failure of a government to use due diligence to prevent an injurious act of a private per

against a foreign state constitutes an international delinquency.î

22 

The due diligence standard was affirmed in 1927 by the Permanent Court in SS 

In 1949 the International Court of Justice (ICJ) recognized due diligence when it held 

channel case: 

It is clear that knowledge of the mine-laying cannot be imputed to the Albanian 

Government by reason of the fact that a minefield discovered in Albanian 

territorial waters caused the explosions of which the British warships were 

victimsÖ It cannot be concluded from the mere fact of the control exercised by 

state over its territory and waters that that state necessarily knew, or ought to h

known, of any unlawful act perpetrated therein, nor yet that it necessarily knew

or should have known, the authors.24

United States courts have long recognized the due diligence standard. In 1887 the US 

CHAPTER 3 79 
with which it is at peace, or to the people thereof.

The central element of due diligence is fault. State responsibility arises if a stat

knowledge or should have had knowledge, and if it fails to act having the opportunity 

For example, the 1942 American-Mexican claims commission found in the Texas cattl

arising from raids conducted between 1860 and 1875 by Mexican renegades and Kicka

other Indians-that the Mexican government had knowledge. The commission further fo

notwithstanding this knowledge, the Mexican government delayed action and failed to 

to these crimes committed against a nation with which it was at peace. Judgment was a

Mexico, which paid $40 million in claims.

26

As an incidence of sovereignty, a state is requiredóunder the due diligence sta

prevent, investigate, and punish those who would inflict injury on another state or its n

When a nation fails to exercise due diligence, it tolerates the unlawful acts of private in

or groups. State responsibility arises but it is not the same kind of responsibility that oc

the state itself becomes a direct sponsor or supporter. In the latter case, the state itself i

responsible for the terrorist acts while in the former it is not. In the words of Danish in

law professor Max Sorensen, ìthe state is internationally responsible not for the acts o

private individual, but for its own omissions, for the lack of ëdue diligenceí of its organ

Due diligence requires both knowledge and opportunity. Opportunity is a comb

circumstance and capability. How do we treat a state that is presented with an occasion 

act but lacks the capability to act? Garcia-Mora writes, ìIf a state has obviously used a

its disposal to prevent a hostile act of a person against a foreign nation but is physically 

suppress it, it certainly has not discharged its international duty [emphasis supplied].î2

Moraís hypothetical state is incapable of acting and, therefore, lacks opportunity. Sinc

opportunity does not exist, the hypothetical state has acted with all due diligence, there

satisfying state responsibility. Yet, the international duty to prevent the violent conduc

individuals or groups has not been satisfied. 

What remedy is available to the offended state? Since the hypothetical state ha

committed no delict, the state to which the duty is owed may not take action against th

But, can the state to which the duty is owed take unilateral action and perform the duty 

hypothetical state? Ambassador Benjamin Netanyahu, Israelís permanent representativ

United Nations, believes so, ìbluntly put, they can either do it themselves or let someo

it. î29 However, without other extenuating circumstances such as imminent threat to th

well-being of hostages, this writer would disagree. 

International law views state involvement with international terrorism as occur

four different levels (table 3). First, some states violate their obligations of state respon

sponsoring or supporting international terrorism through direct state action. These state

responsible for terrorist acts as if the state committed them. Second, some states violat

responsibility by tolerating international terrorism through lack of due diligence. Thes

responsible for their own lack of due diligence and not for the terrorist acts themselves

CHAPTER 3 80 
terrorism. These states are responsible for committing no wrong but neither have they 

any right. 

TABLE 3 

Conditions under Which States 

Fail to Exercise Due Diligence 

Kind of State Violates International 

Involvement Duty? 

Sponsorship Yes 

Support Yes 

Toleration Yes 

Inability to act Yes 

What Quality of Evidence Is Required? 

What sufficiency of proof is necessary to demonstrate the link or nexus betwee

international terrorism and state sponsorship, support, or toleration, and to show the da

loss suffered by the injured state? A survey of writings of international legal scholars a

the open statements of government officials reveals a wide diversity of opinion on this 

Among the standards suggested are ìconcrete and convincing evidence,î30 ìclear and c

evidence,î

31 ìclear evidence,î32 ìclear proof,î33 ìclear cut evidence,î34 ìample evidenc

ìhard evidence,î36 ìconclusive evidence,î37 ìsound evidence,î38 ìsufficient evidence,î

evidencc,î

40 ìsolid proof,î41 ìstrong evidence,î42 ìsubstantial evidence,î43 ìincontrove

evidence,î

44 ìirrefutable proof,î45 ìunequivocallyî established evidence,46 and many o

United States law generally recognizes a hierarchy of standards of persuasion. 

standards for burden of proof, from highest to lowest, are: 

ï Beyond a reasonable doubt (criminal law standard). 

ï Clear and convincing evidence (highest administrative law standard). 

ï Preponderance of evidence (administrative law used standard commonly in p

matters). 

ï Substantial evidence (executive decision-making standard). 

ï A mere scintilla (administrative law standard for certain limited areas such as 

status and security actions). 

Commenting on the evidential standard to show failed state responsibility towa

international terrorism, Secretary of State George P. Shultz notes, ìWe may never hav

of evidence that can stand up in an American court of law.î47 Nor should the United S

world community seek that kind of evidence. The purpose of the evidence is not to pro

in a domestic criminal court but rather to justify the actions of an injured state. These a

CHAPTER 3 81 
evidence necessary to legitimate a military response. The late William J. Casey, while 

the Central Intelligence Agency (CIA), accurately described what the standard should 

ìabsolute evidenceî nor ìproof beyond a reasonable doubtî but ìsufficient evidence.î4

The threshold for what constitutes sufficient evidence varies. Factors that must 

considered are the threat, the response contemplated, and the audience to be persuaded

sufficient evidence to support a monetary claim may be insufficient to support the use 

self-defense under the UN Charter, in part, because use of force represents a challenge 

international peace and security while submission of a claim does not. 

To justify the force option, which the law considers an exceptional course of ac

exceptional conditions must prevail. If the injured state contemplates the use of force, 

must recognize that it must ultimately present its case to the world community. Article 

Charter requires that measures taken in self-defense be reported to the Security Counc

and discussion will follow and this process will necessitate the presentation of evidenc

evidence presented will not be considered by a court in the strict legal sense, unless ref

the International Court of Justice, the judicial organ of the United Nations, but rather w

weighed in a quasi-legal, political sense. Some may view this as a problem but it is a f

international life. 

A serious problem arises where sufficient evidence cannot be produced. In this 

the injured state cannot present the evidence for one of two reasons. First, the evidence 

found. ìSmoking gunsî with the fingerprints of sponsoring states are seldom left lying 

be discovered;49 states sponsoring international terrorism have ìthe option of plausible 

lack of public accountability.î

50 Qadhafiís admissions are the exception, not the rule, f

sponsors.51 Improved intelligence gathering may assist in finding sufficient evidence n

otherwise available. Second, by its very nature intelligence methods and sources must 

protected.52 Some evidence may not be releasable and without it the injured state may 

to present sufficient evidence in the appropriate public forum.

The United States has made it clear that it will not act without sufficient demon

evidence. In the words of President Ronald Reagan, ìWhat we now, I think, are lookin

possibility that some terrorists actually do have national support and backing. With tha

established then you can let that government know that there is going to be redress aga

government if these acts continue [emphasis supplied].î53 Because the United States is 

of the Western world, because of US commitment to the rule of law inherent in its heri

because of the checks and balances of the US political system, because of a free press 

role of the media, and because of the standard of conduct demanded by the people of i

the United States has no other option. It cannot act in the way that Israel does toward t

On 4 February 1986, when Israeli defense minister Rabin indicated that Israel had forc

Libyan civilian airliner without establishing a linkage between terrorists and the aircra

United States press guidance noted that ìit would appear Israel did not apply the same 

guidelines to the interception of an aircraft that we contend should be required.î54 The 

CHAPTER 3 82 
How to Improve Intelligence Gathering? 

Counterterrorism, especially when countermeasures involving military force ar

concerned, requires the best intelligence. Intelligence is needed not only to choose the 

estimate possibilities of success or failure, and weigh the dangers of incidental civilian 

damage, but also to establish direct ties between international terrorist incidents and th

organization behind them. Brian Jenkins, terrorism expert with the Rand Corporation, 

why evidence as to linkage is so fundamental. ìHere the target is not the terrorist group

may exist only as a voice on the telephone, but the patron state. To justify the use of fo

against another country, intelligence must prove the connection between the patron sta

terrorist perpetrators, a difficult task that takes time.î55 The task is difficult because of 

inherent nature of terrorist groups and their activities. As William Casey once observe

terrorist groups are very tough nuts for intelligence to crack. That is almost self

evident. They are small, not easily penetrated, and their operations are closely 

held and compartmented. Only a few people in the organization are privy to 

specific operations, they move quickly, and place a very high premium on secr

and surprise.56

Faced with this challenge, intelligence can and must be improved. Human intel

(HUMINT) is of particular importance when it comes to terrorism. ìWhite satellites an

technological gadgetry are necessary to collect intelligence to fight conventional and n

wars, accurate and timely human intelligence is necessary to wage war against terroris

as the organization and mode of operation of terrorist groups demonstrate, HUMINT i

to obtain. The effort, nonetheless, should be there. Intelligence can be obtained from d

observation, analysis of past terrorist events, evaluation of known terrorist personalitie

studies of known terrorist groups by government and private organizations and citizen

best source of information will come from captured and defecting terrorists and from i

active or potential terrorist groups. A major problem associated with infiltration, one w

terrorists are well aware of is: will the infiltrator be permitted to commit a crime? A ki

A murder? Terrorists will, no doubt, use the commission of a crime as dues for membe

The question, then, is, how far should governments go to gather intelligence? G

must be clear, and democracies, by their nature, are severely disadvantaged.58 Also tho

gather intelligence, the United States as well as international agencies, need to increase 

levels of coordination and cooperation. Obtaining intelligence on terrorism is difficult. 

intelligence acquired must be put to maximum use by analyzing pieces of information 

conjunction with other available intelligence. 

Former Senator Jeremiah Denton, while chairman of the Subcommittee on Sec

Terrorism of the Senate Judiciary Committee, found the coordination and cooperation 

Department of State, the Federal Bureau of Investigation (FBI), the Central Intelligenc

CHAPTER 3 83 
Cooperation among like-minded nations also needs to be improved. The 1976 T

arrangements for exchange of information and experiences on counterterrorism within 

European Community are a step in the right direction.60 But relying on an established 

international organization may not be the best way to foster cooperation. The Internati

Criminal Police (Interpol), for example, is of limited use for the exchange of intelligen

of the membership of Arab states.61

The 1986 Vice Presidentís Task Force on Combatting Terrorism made three 

recommendations to address the two issues raised above: (1) establish a consolidated f

intelligence center on terrorism, (2) increase collection of human intelligence, and (3) 

intelligence between governments.62 Additional areas that deserve attention include US 

regulations, and directives. A complete and thorough review of the legal framework go

intelligence operations is needed to determine answers to the following questions. Has 

States achieved the proper balance between civil liberties and national security? Are th

restrictions on intelligence agencies in their surveillance activities directed at America

and other persons appropriate? Are the regulations for use and dissemination of acquir

information suitable and well reasoned? Are Attorney General William French Smithí

1983 criminal conspiracy guidelines for initiating domestic security terrorism investiga

way to go? 63

For example, some people argue that the Privacy Act 64 and the Freedom of Inf

Act (FOIA)65 unduly restrict collection of intelligence. The latter is a particularly serio

problem because of the ìreal risk of disclosure and possible cause of physical harm to 

who supplies information.î66 Possibly, terrorists and terrorist organizations as well as u

foreign governments can, through the FOIA, gain access to sensitive information.67 Th

Anti-Drug Abuse Act contains language that amends the FOIA and may provide some 

to FBI files concerning, among other matters, international terrorism. But opinions are 

over what this amendment really means.68 Perhaps a detailed analysis of the present sta

law is needed to identify and make any required changes in these two statutes. 

When Is Intervention Lawful? 

A state that fails, through act or omission, to meet obligations of state responsib

commits an international delict. In such circumstance the legal relationship between th

delinquent state and injured state changes. Depending upon the nature of the wrong, th

stateís remedy may be to submit a monetary claim; its option may, however, be the us

military force. 

Determining the legitimacy of the use or threatened use of force abroad involve

separate but intertwined legal issues. The first is the propriety of intervening into the te

another sovereign. The second issue concerns the propriety of the use or threatened us

itself under contemporary norms of international law. The first issue is considered here 

CHAPTER 3 84 
Territorial sovereignty is a fundamental principle of international law. The gen

nonintervention is simply another way of expressing respect for sovereignty. No seriou

exists over the basic illegality of intervention. However, the norm is not absolute and d

arise as to what constitutes the exceptions to the rule.69 When a state fails to prevent ac

within its own jurisdiction that are injurious to another state or its nationals, then that s

forfeit its right to territorial inviolability. As D. W. Bowett, lecturer in law at Manches

University and an expert on intervention law, states, 

It cannot be supposed that the inviolability of territory is so sacrosanct as to me

that a state may harbour within its territory the most blatant preparations for an 

assault upon another stateís independence with impunity; the inviolability of 

territory is subject to the use of that territory in a manner which does not involv

threat to the rights of other states.70

On several occasions in its history the United States has intervened in the territ

another state in response to armed bands (akin to modern day terrorists) who were enc

supported, or tolerated by the host government. In 1818 Lien Andrew Jackson was sen

Florida because Spanish authorities had not prevented he Seminole Indians from maki

into the United States. In 1795 Spain had agreed by treaty that she would ìkeep her Ind

peace.î Evidence demonstrated that Spain was not only unable to do so but that Spanis

were supplying arms and other materiel to the Indians. In announcing the intervention, 

James Monroe emphasized that the United States had no territorial designs on Florida 

withdraw its forces as soon as the threat was removed. This action has been described 

affirming ìthe absolute obligation of a state to prevent its territory from being used as 

hostile action against another state.íí71

A similar situation arose in 1916 with Mexico. It culminated in May 1916 whe

Francisco ìPanchoî Villa raided a Texas town, killing three US soldiers and a nine yea

secretary of state addressed a note to the Mexican foreign minister that read, in part, ìT

Government cannot and will not allow bands of lawless men to establish themselves u

borders with liberty to invade and plunder American territory with impunity and, when 

to seek safety across the Rio Grande, relying upon the plea of their government that th

of the soil of the Mexican Republic must not be violated.î72 President Woodrow Wilso

US troops under Lien John J. Pershing for the sole purpose of capturing Villa and prev

future raids.

However, intervention is a value-laden term that can refer to a minor or major, 

unlawful intrusion. International law has a bias against intervention. A basic obligation 

is to abstain from intervention. When intervention is unlawful it is frequently termed d

But international law recognizes that there must be a balance between the sovereignty 

independence of states on the one hand and the realities of an interdependent world an

international commitment on the other. Thus, in exceptional cases, intervention is lawf

Throughout modern history, however, the exceptions have been misapplied, leading Fr

foreign minister Charles-Maurice de Talleyrand-Perigord, a great cynic and wise man, 

CHAPTER 3 85 
International law addresses this problem by carving out a form of intervention, 

interposition, which specifies the exceptional circumstances of lawful intrusion into an

stateís territory. Interposition is a response to acts or omissions of foreign government

persons within the jurisdiction of that government, when that government is itself unab

unwilling to afford the requisite protection. When the mission is accomplished, the int

state withdraws leaving the government either as it found it or as it may have been alte

internal or local forces of which the interposing government had no interest, concern o

controlÖ InterpositionÖ is lawful only if there exists a real and immediate requireme

action to be taken in national self-defense or on grounds of humanity.74

The hallmarks of interposition are a demanding, compelling, justifiable, and na

defined purpose for military action combined with execution to attain specific, finite, a

restricted objectives. Interposition seeks to correct an identifiable wrong by achieving 

well-defined end. 

TABLE 4 

Intervention and interposition Compared 

Intervention Interposition

Purpose open-ended limited

Objective broad limited

Examples of interposition in response to international terrorism might be hosta

missions, surgical strike missions against terrorist training camps and support facilities 

by sponsoring states, and missions to intercept and divert aircraft on which terrorists ar

to be passengers. An example of intervention might be military occupation. 

Interposition and the United Nations Charter 

A cornerstone of the United Nations Charter system is its attempt to regulate in

by armed force. Article 2 of the Charter establishes the contemporary guidelines for 

distinguishing between unlawful intervention and lawful interposition. Article 2(7) ma

nonintervention the rule except that ìthis principle shall not prejudice the application o

enforcement measures under Chapter VII.î Chapter VII of the Charter provides for Se

Council action in response to ìthreat to the peace, breach of the peace, or act of aggres

(article 39) and for collective and individual self-defense (article 51).75 Article 51, as a

exception to article 2(7), permits states to engage in lawful interposition by use of arm

the territory of another state if not prohibited by article 2(4).

Article 2(4) contains the Charterís principle restraint on the use or threatened u

armed force. It provides that 

CHAPTER 3 86 
force against the territorial integrity or political independence of any state, or in 

any other manner inconsistent with the Purposes of the United Nations.76

This statement, seemingly simple in its meaning, is quite complex. Not all scho

on the meaning of this provision. Oscar Schachter, Hamilton Fish Professor of Internat

and Diplomacy, Columbia University, writes that, although ìnearly all of its key terms 

questions of interpretation,î77 article 2(4) ìhas a reasonably clear core meaning.î78 Its 

intent is to outlaw war in the classical sense, that is, to make state-initiated warfare ille

restrict severely the lawful use of force in other circumstances. There is not a more imp

principle in international law than the one contained in article 2(4)79 

The term force as used in article 2(4) means armed force. Does a state that spon

supports, or tolerates international terrorists employ force against another state in viola

article 2(4) as if it had sent armies on the march against it? Danish international jurist M

Sorensen seems to suggest an affirmative answer: 

A state uses force when it sends or permits the sending of irregular forces or

armed groups, including non-nationals, across the frontier to operate in another 

stateÖ An indirect involvement of a government in an armed venture outside i

territory constitutes a use of force and is governed by the same law as is 

applicable to open hostilities directed against another state.80

British international jurist Rosalyn Higgins would seem to agree. She argues th

ìuse of forceî by Governments can also be passive, as well as active, can be 

indirect as well as direct; thus the arming of rebel groups in another state, or th

refusal to forbid the training of rebels against another Government on oneís ow

territory, or the failure to restrain volunteers from fighting in another State, are 

forms of aggression commonly termed ìindirect aggressionîóand from a 

functional point of view are a use of force.81

Although international scholars like Sorensen and Higgins appear to believe th

sponsorship and support of international terrorists constitutes a use of force contempla

article 2(4), the harder question is whether aid alone, such as that given to the Nicaragu

contras, would be considered a use of force under article 2(4)? This article is two-edge

efforts to find an interpretation which can be applied with some consistency have not b

successful.82

A second issue is whether a state can use force to enforce rights under internati

Put another way, can a state use force for purposes other than to respond to force? The 

constructionists argue that a broad concept of self-help is incompatible with article 2(4

rely on the opinion of the International Court of Justice in the Corfu channel case; the 

denied the United Kingdomís alleged right to intervene in Albania to assure freedom o

navigation and to preserve evidence for use in judicial proceedings.83 Other internation

CHAPTER 3 87 
related articles did preclude the use of self-help less than self-defense. On reflection, I 

this was a very grave mistake, that article 2(4) and article 51 must be interpreted differ

A third issue, related to the second, is whether a reinterpretation of the Charter

meaning, and in particular article 2(4), is in order because of the United Nationsí gene

to protect international rights. The argument made by the realists, as they call themselv

the United Nations was created on the false premise that the five great powers would c

work together in the postwar era for international peace and security. Article 2(4), they 

represented a quid pro quo. States would forgo self-enforcement of their rights and the 

Nations organization would do it for them. Since the organization never became capab

so, article 2(4) must be reconsidered.85 Columbia University law professor Oscar Scha

expert on the creation of the United Nations, disagrees: 

The legislative history of article 2 of the Charter does not support the notion th

effective enforcement of collective security was a prerequisite to renouncing th

use of force. True, the Charterís drafters must have hoped that the Security 

Council and other relevant U.N. organs would obviate individual recourse to 

force. But they were realistic enough to recognize that this might not be achiev

that is precisely why they preserved the right of self-defense to respond to arme

attack. Force could meet force but, unless authorized by the Security Council, 

force could not answer non-forcible deprivation of rights. It is hardly plausible 

infer from these provisions chat the failure to prevent illegal force now allows 

individual state to use force freely. No evidence or logical reason supports the 

assumption that the drafters or the signatory governments intended this radical 

result. Rather, widespread affirmation of the rules on force as jus cogens, 

preemptory norms of customary law, shows that states regard those rules as 

legally independent of the proper functioning of U.N. organs.86 

The realists also argue that article 2(4) is a dead letter because of contrary state 

One study indicates there have been more than 120 significant armed conflicts since 19

Another study notes more than ten million deaths occurred in the 65 major conflicts th

place between 1960 and 1982. Yet another study indicates that the United States, the S

Union, France, and the United Kingdom have conducted more than 70 military interve

since 1946.87 The strict constructionists respond that ìwhen a principle is repeatedly an

unanimously declared to be a basic rule from which no derogation is allowed, even nu

violations do not become state practice constitutive of a new ruleÖ No state has ever s

that violations of article 2(4) have opened the door to free use of force.î88 

Manipulation of the Charter does not seem the proper approach. If the terms of that ag

are inadequate, then the proper approach would appear to be renegotiation of the docu

Such action is highly unlikely and nations are left with the dilemma identified by Prof 

von Glahn, University of Minnesota at Duluth: 

What the provisions of the Charter have done, in effect, is to deprive states of 

CHAPTER 3 88 
be seen whether states will stand by the prohibition if and when interests or rig

considered to be vital are affected and peaceful methods of settlement or sancti

fail.89 

Fourth and finally, what limitations does article 2(4) place on the use of force g

Some scholars take a narrow view believing, as does British international lawyer Sir H

Waldock, that 

Article 2(4) prohibits entirely any threat or use of armed force between 

independent States except in individual or collective self-defense under Article 

or in execution of collective measures under the Charter for maintaining and 

restoring peace. Armed reprisals to obtain satisfaction for an injury or armed 

intervention as an instrument of national policy otherwise than for self-defense 

illegal under the Charter.90

Others cannot agree. Oscar Schachter, taking the broader and generally accepte

writes, ìIt is generally assumed that the prohibition [of article 2(4)] was intended to pr

use of force except that allowed as self-defense or authorized by the Security Council u

chapter VII of the Charter. Yet the article was not drafted that way. The last twenty-thr

contain qualifications.î91 The qualifying language of article 2(4) prohibits the use of fo

in three circumstances: if it is employed against the territorial integrity of a state, again

political independence of a state, or in any other manner inconsistent with the purpose

Charter. 

The qualifying language of article 2(4) is important because, to the extent not f

by the Charter, the projection of force abroad is lawful interposition. What does it mea

force cannot be applied against the territorial integrity of a state? Territorial integrity i

same as territorial inviolability. A state may retain its territorial integrity even if its fro

violated. ìLoss of territorial integrity implies the loss of effective control over the area

possibly a loss of authoritative jurisdiction as well, if a specified area is formally ceded 

exigencies of hostile military operations.î92 Thus, a state may take military action agai

state in response to international terrorism, and, indeed, may enter the latterís territory

not violate its territorial integrity. For example, it has been suggested that the 7 June 1

raid on the Iraqi nuclear reactor was not a use of force against either Iraqís territorial in

its political independence. No portion of Iraqís territory was taken from Iraq by the 

bombardment. ìA use of the territoryónamely, to construct a nuclear reactorówas in

with, but the territory itself remained integral.î93

Similarly, force directed against the political independence of a state is not forc

merely at a state. It is force ìdirected at controlling the Government and other institutio

of a State, either by setting up a particular form of government with defined ideologica

propensities or by forcing existing institutions to act in the interests of a foreign power

directed at international terrorists or their state sponsors and supporters with a limited 

other than altering the institutions or political independence of a state would not be pro

CHAPTER 3 89 
but in what sense was its governmental authority vis-a-vis other sovereign government

diminished?î95

The proscription against any use of force ìin any manner inconsistent with the 

of the United Nationsî was intended to ensure that there were no loopholes in the Char

language requires the user of force to determine if its action would be consistent with t

purposes of the United Nations. Article 2(4) provides the broad framework for judging 

specific legal argument justifying the use of force. It provides the general principles or 

guidelines. It does not answer all questions. In many cases, it only raises more issues: 

constitutes force? What may force be used to protect? What are the basic limitations on 

force?

Summary and Transition 

State responsibility is a much neglected concept in dealing with international te

As a complement to rights, states have duties to the international community and to oth

States that sponsor, support, or tolerate international terrorism, as well as states that do 

because of their inability to do so, fail in their international duty. A concerted positive 

must be made to place state involvement vis-a-vis international terrorism into the cont

responsibility and international duty. When a state fails in its duty, that failure should b

States injured by states that fail in their duty should, in appropriate cases, consider filin

monetary damage claims. These claims should be filed even in cases where there is a s

indication they will not be given appropriate consideration. Establishing the record is, 

important. On occasion such efforts do prove successful. One need only consider the w

US-Iranian Claims Commission sitting in The Hague, Netherlands, to resolve outstand

arising, in part, from the 1979-81 hostage situation. Part of the success of this commis

the US leverage created by freezing Iranian assets in the United States. Such innovativ

approaches need to be considered. 

On occasion the use of force is the appropriate response to a failure of state 

responsibility. To measure the appropriateness of such a response, sufficient evidence 

to establish the critical link between the state and international terrorism. Once establis

interposition within the framework of article 2(4) becomes a very real option. 

Once having determined the propriety of intervening into the territory of anoth

state must address the issue of the propriety of using force. An opinion by the Internati

Division, Headquarters USAF (HQ USAF/JACI), suggests self-defense (article 51 of t

Charter) as a justification for the use of force. 

A State has the responsibility to prevent armed bands (terrorists) from utilizing 

territory to perpetrate attacks on another State. If the State knows or should kno

that its territory is being utilized as a base for terrorism and is unable or unwilli

to control and restrain such activities, then armed intervention, having as its so

CHAPTER 3 90 
Chapter 4 considers self-defense; subsequent chapters consider other potential 

justifications. 

CHAPTER 3 91 
1. Senate, Committee on Foreign Relations, Subcommittee on Foreign Assistance

on International Terrorism, statement by Richard B. Lillich, 95th Cong.: 1st sess., 14 S

1977, 14-15, 18. See also Lillich, ëControlling Transnational Terrorism: The Relevanc

International Law.î in American Society of International Law, Proceedings of the 72n

Meeting, 27-29 April 1983 (Washington, D.C.,1985), 343; and Lillich. ìInternational 

Terrorism,î in International Law Association (ILA), Report of the Fifty-Seventh Conf

Held at Madrid (Great Britain: 1978), 139-40. 

2. Judge Max Huber, Island of Palmas (United States v. The Netherlands). United 

Reports on International Arbitral Awards, vol.2 (1949), 839. 

3. Chorzow factory, Permanent Court of International Justice (PCU), series A, no

(1928), 29. See also Lt Comdr Michael Franklin Lohr, ìLegal Analysis of U.S. Militar

Responses to State-Sponsored International Terrorism,î Naval Law Review 34 (1985)

Max Sorensen, Manual for Public International Law (New York: St. Martinís Press, 19

35. 

4. See ìCharter of the United Nations,î 26 June 1945, Statutes at Large, vol. 59: 

United States Treaty Series 993; Department of State, United States Treaties and Othe

International Agreements, 1776-1949, compiled under the direction of Charles I. Beva

(hereinafter Bevans), vol. 3, Multilateral, 1931-1945, 1153; ìCharter of the United Na

Amendments to Articles 23, 27, and 67.î 31 August 1965, Treaties and Other Internati

Series (TIAS) 5857, United States Treaties and Other International Agreements (UST)

pt. 2, 1134; United Nations Treaty Series (UNTS), Treaties and Other International Ag

Registered or Filed and Reported with the Secretariat of the United Nations, vol. 557 (

8132, 143; ìCharter of the United Nations: Amendments to Article 109,î 12 June 1969

6529, UST, vol. 19, pt. 5, 5450; ìCharter of the United Nations: Amendments to Artic

September 1973, TIAS 1739, UST, vol. 24, pt. 2, 2225; see also Gerhard von Glahn, L

Among Nations, 3d ed. (New York: Macmillan, 1976), 177-80. 

5. United Nations General Assembly, ìDeclaration on Principles of International 

Concerning Friendly Relations and Cooperation among States,î 24 October 1970, Res

2526, Official Records (UN GAOR), 25th sess., supp. 28, A/8028 (1970), 121. 

6. Maj William R. Farrell, USAF, ìTerrorism IsÖ?î Naval War College Review 

(May-June 1980): 65. 

7. See Oscar Schachter, ëëThe Right of States to Use Armed Force,î Michigan La

82 (April-May 1984): 1622. 

8. See UN General Assembly, ìDeclaration on Inadmissibility of Intervention in t

Domestic Affairs of States and the Protection of Their Political Independence and Sov

21 December 1965, Resolution 2131, UN GAOR, 20th sess., supp. 14, A/60l4 (1965), 

von Glahn, 177-80. 

9. See article 29, ìVienna Convention on Diplomatic Relations and Optional Prot

Disputes,î 18 April 1961, TIAS 7502, UST, vol. 23, pt. 3, 3227; UNTS, vol. 500 (196

7310, 95. A US State Department publication notes: ìIt is internationally accepted that 

governments are responsible for the safety and welfare of persons within the borders o

nation.î Department of State, ìInternational Terrorism: U.S. Policy on Taking Americ

Hostage,î June 1986, 1. 

CHAPTER 3 92 
11. See Seymour Maxwell Finger, International Terrorism and the United Nations

11 in International Terrorism: National, Regional and Global Perspectives, ed. Yonah 

(New York: Praeger Publishers, 1976), 32348; Noemi Gal-Or, International Cooperati

Suppress Terrorism (New York: St. Martinís Press, 1985), 149-51; and Lohr, 708. 

12. See Sir Hersch Lauterpachtís statement, ìInternational law imposes upon the st

duty of restraining persons resident within its territory from engaging in such revolutio

activities against friendly states as amount to organized acts of force in the form of hos

expeditions against the territory of those states.î In Lauterpacht, ìRevolutionary Activ

Private Persons against Foreign States,î American Journal of International Law 22 (19

See also D. W. Bowett, Self-Defence in International Law (New York: Frederick A. P

1958), 45-49; Manuel R. Garcia-Mora, International Responsibility for Hostile Acts of 

Persons against Foreign States (The Hague, Netherlands: Martinus Nijhoff, 1962); and 

States, Arms Control and Disarmament Agency (USACDA), The International Law of 

Aggression and Subversion, prepared by A. J. Thomas, Jr., Ann van Wynen Thomas, a

A. Salas, ACDA, GC-41, 30 June 1966, executive summary, 4-6. An interesting questi

extent to which the United States has fulfilled this international duty. The Vice Preside

Force on Combatting Terrorism notes: ìThe International Trafficking in Arms Regulat

been strengthened to require a license to train foreign persons in the use of certain firea

however, mercenary/survival training camps still operate domestically within the law.î 

President, Public Report of the Vice Presidentís Task Force on Combatting Terrorism 

(Washington, D.C.: February 1986), 26. See also Charles Maechling, Jr., ìContaining 

Terrorism,î Foreign Service Journal, July-August 1984, 35. 

13. See Gail Bass et al., Options for U.S. Policy on Terrorism (Santa Monica, Cali

Corp., 1981), 3, Rand, R-2764-RC; Department of State, ìInternational Terrorism,î Se

Documents 24, 1986, 4; and Vice President, Report on Terrorism, 9. 

14. See Maryan N. A. Green, International Law: Law of Peace (Plymouth, England

Macdonald and Evans, 1982), 207. 

15. Michael Stohl and George A. Lopez, The State as Terrorist: The Dynamics of 

Governmental Violence and Repression (Westport, Conn.: Greenwood Press, 1984), 6

John R. DíAngelo, ìResort to Force by States to Protect Nationals: The U.S. Rescue M

Iran and Its Legality under International Law,î Virginia Journal of International Law 2

(1981): 507; and ëIran: Consequences of the Abortive Attempt to Rescue the American 

Hostages,î Conflict 3, no. 1 (1981): 62. 

16. Charles G. Fenwick, International Law, 3d ed. (New York: Appleton-Century-

1948), 301. See also Garcia-Mora, 5-9; and Green, 208. 

17. See Bush v. United States, 389 F. 2d 485 (3968). Gerhard von Glahn (p. 172) d

the case as follows: 

The duty to abstain from armed intervention clearly means also that no stale m

permit the use of its territory for the staging of hostile expeditions against anoth

state. Thus the United States acted correctly in arresting, on January 2, 1967, a 

group of seventy-three armed men on a Florida key. The individuals in questio

were preparing to invade Haiti in an effort to overthrow the incumbent 

government with the expected help of indigenous malcontents. A year later, the 

CHAPTER 3 93 
18. Samuel Pufendorf, De Jure Naturae et Gentium, Libri Octo [the law of nature a

8 bks.], trans. by C. H. and W. A. Oldfather (Oxford, England: n.p. 1934), bk. 8, chap. 

19. Hugo Grotius, De Jure Belli at Pacis, Libri Tres [the Jaw of war and peace, 3 b

F. Kelsey (Oxford, England: Carnegie Endowment for International Peace, 1925), bk. 

21, sec. 2. 

20. Emerich de Vattel, Le Droit des Gens [the law of nations], trans. C. G. Fenwick 

(Washington, D.C.: n.p., 1916), bk. 2, chap. 6, sec. 73. In section 72, Vattel writes, 

The Nation, or sovereign, must not allow its citizens to injure the subjects of 

another state, much less to offend that state itself; and this not only because no 

sovereign should permit those tinder his rule to violate the precepts of natural l

which forbids such acts, but also because Nations should mutually respect one 

another and avoid any offense, injury, or wrong; in a word, anything which mig

be hurtful to others. If a sovereign who has the power to see that his subjects ac

in a just manner permits them to injure a foreign nation, either the state itself o

citizens, he does no less a wrong to that Nation than if he injured it himself. 

Finally, the very safety of the state and of society at large demands this cast on 

part of every sovereign. 

21. See Bowett, 49; and Thomas, Thomas, and Salas, executive summary, 4-5. 

22. Garcia-Mora, 20. 

23. Judge John B. Moore, SS Lotus (France v. Turkey), PCIJ, series A, no. 10 (192

24. Corfu channel case (United Kingdom v. Albania), merits, 1949, ICJ 18. 

25. United States v. Arjona, 120 US 479 (1887) 484. 

26. Texas cattle claims as reported in Department of State, Office of the Legal Adv

Digest of International Law, vol. 8, ed. Marjorie M. Whiteman (September 1967), 751

Department, 8290. 

27. Sorensen, 560. See also James L. Brierly, ìThe Theory of Implied State Compl

International Crimes,íí in British Year Book of International Law, 1928, vol. 9 (Oxfor

England: Oxford University Press for Royal Institute for Foreign Affairs, 1928), 42. 

28. Yehuda Z. Blum, ìThe Beirut Raid and the International Double Standard,î Am

Journal of International Law 64, no. 1 (January 1970): 84. 

29. Benjamin Netanyahu, ìTerrorism: How the West Can Win,î Time, 14 April 19

30. See Senate, Committee on the Judiciary, Subcommittee on Security and Terror

Report on ìState-Sponsored Terrorism, ì 99th Cong., 1st sess., June 1985, Senate prin

59. 

31. See Francis A. Boyle et al., ìInternational Lawlessness in Grenada,î American 

International Law 78, no. 1 (January 1984): 172. 

32. See Col Dennis M. Corrigan, USA, ìLegal Use of Military Force to Counter T

strategic study 86-1 E-85 (National War College, Washington, D.C., February 1986), 

also President Ronald Reagan quoted in ìUS Exercises Right of Self-Defense against L

Terrorism,î Department of State Bulletin 86, no. 2111 (June 1986): 1. 

33. See James M. Markham quoting West German adviserís comments on Libyan 

ìGerman Voices Doubts on Qaddafi Terror Role,î New York Times, 2 September 198

CHAPTER 3 94 
35. On questioning standard of ample evidence, see Edward A. Lynch, Internation

Terrorism: The Search for a Policy,î Terrorism: An International Journal 9, no. 1 (198

36. For a discussion of the standard insisted upon by some US senators for establis

Soviet complicity with terrorism, see Lynch, 4-6. James McCartney and Owen Ullman

lack ofí ëhard evidenceî was the reason given by an administration official as to why f

action against Libya was not taken. McCartney and Ullmann, ìU.S. Is Said to Brace fo

Crisis,î Philadelphia Inquirer, 26 August 1986, 4. Libya also demanded that the United 

show ìhard evidence.î ìLibya Wants U.S. to Show Some Proof,î Alabama Journal-M

Advertiser, 31 August 1986, 16(A). See also Louis G. Fields, Jr., ìThe Third Annual W

A. Solf Lecture in International Law: Contemporary Terrorism and the Rule of Law,î 

Law Review, no. 113 (Summer 1986): 13. Fields notes that ëhard evidenceî is what th

incredulous and apprehensive world will demand. 

37. Karen DeYoung points out that ìconclusive evidenceî of Syrian involvement w

as justification for the break in diplomatic relations. DeYoung, ìBritain Cuts Tics with 

over El Al Bombing Links: Hindawi Guilty; Damascus Reacts,î Washington Post, 25 

1986, 1(A). The US asserted ìconclusive evidenceî of Libyan involvement in terrorism 

support the Libyan raid of April 1986. See State Department, ìInternational Terrorism

also Robert Grant, ìTerrorism: What Should We Do?î in Terrorism, ed. Steven Anzov

Reference Shelf, vol. 58, no. 3 (New York: H. W. Wilson Co., 1986), 163. 

38. Sec Senate, State-Sponsored Terrorism, 92. 

39. See William J. Casey, ëInternational Terrorism: Potent Challenge to American 

Intelligence,î address to Fletcher School Of Law and Diplomacy, Tufts University, M

Mass., 17 April 1985, reprinted in Vital Speeches 51, no. 23 (15 September 1985): 716

Robert C. McFarlane, ìTerrorism and the Future of Free Society,íí in American Bar A

Committee on Law and National Security, Intelligence Report 7, no. 5 (May 1985): 7. 

40. See ìTerrorismís Grim Upsurge,íí 32; see also State Department, ìInternationa

Terrorism,íí 1. 

41. See Brian Michael Jenkins, ìMilitary Force May Not Be Ruled Out,î Rand, 71

Corp., Santa Monica, Calif., June 1985, 3. 

42. See Department of State, Office of the Legal Adviser, Digest of United States P

International Law, 1977, ed. John A. Boyd (Washington, D.C.: 1979), 150-51, State D

8960. 

43. Ibid. 

44. See Brian Michael Jenkins, ìCombatting Terrorism Becomes a War,î Rand, 69

Corp., Santa Monica, Calif., May 1984, 6. 

45. Some officials and writers seek ìirrefutable proofí that links the Soviet Union t

terrorism. For a discussion of this point see Claire Sterling, The Terror Network: The S

of International Terrorism (New York: Readerís Digest Press, 1981), 291. 

46. Garcia-Mora, 63. 

47. George P. Shultz, ëëTerrorism in the Modern World,î Terrorism: An Internatio

7, no. 4 (1985): 445. 

48. Casey, ìTerrorism: Potent Challenge,î Vital Speeches, 716. 

49. See Fields, 13; arid Walter Laqueur, ìReflections on Terrorism,î Foreign Affai

1 (Fall 1986): 98. 

CHAPTER 3 95 
State, Office for Combatting Terrorism, Libya Talking Points, 1 April 1986. 

52. See 16 April 1986 remarks of Secretary Shultz in World net interview: ìWe he

always to be too explicit with it because being too explicit tends to dry up your intellig

Quoted in Department of State, ìUS Exercises Right of Self-Defense against Libyan T

Department of State Bulletin 86, no. 2111 (June1986): 9. See also John M. Goshko, ìN

in War on Terrorism: Cultivating Foreign Opinion,î Washington Post, 18 July 1986, 1

Anthony C. E. Quainton, ìTerrorism: Do Something! But What?î Department of State 

79, no. 2030 (September 1979): 62. 

53. President Ronald Reagan quoted in Wall Street Journal, 8 February 1985, and r

in Senate, State-Sponsored Terrorism, 20-21. 

54. Department of State, ìPress Guidance on Israeli Force-Down of Libyan Aircra

February 1986, 2. 

55. Jenkins, ìCombatting Terrorism Becomes a War,î 5. See also Grant, ìTerroris

Should We Do?î in Anzovin, 169; and Lynch, 82-83. 

56. Casey, ìTerrorism: Potent Challenge,î in Anzovin, 68; reprinted from Vital Sp

no. 23 (15 September 1985). 

57. Richard D. Crabtree, ìU.S. Policy for Countering Terrorism: The Intelligence 

Dimension,î Conflict 6, no. 1 (Winter 1986): 13. 

58. As Secretary George P. Shultz noted, ìHuman intelligence will be particularly 

since our societies demand that we know with reasonable clarity just what we are doin

Shultz, ìTerrorism: The Challenge to Democracies,î in Anzovin, 58. See also Maechli

and William L. Waugh, Jr., International Terrorism: How Nations Respond to Terroris

(Salisbury, N.C.: Documentary Publications, 1982), 135. 

59. The former senator from Alabama, remarked: 

There appears to be a great need to coordinate the collection and analysis of the 

information we get. We have the FBI, Department of State, CIA, the Defense 

Intelligence Agency, NSA, OEA, and various Armed Forces Intelligence group

collecting, analyzing, and disseminating information on terrorism. And, althou

there is sortie measure of coordination and cooperation clots, it is not sufficient

We must ensure adequate and appropriate efforts among all our agencies in eve

stale of the intelligence process. 

Quoted by Lynch, 2-3. 

60. See United Kingdom, Foreign and Commonwealth Office, ìInternational Reac

Terrorism,î background brief, January 1986, 5. 

61. See ëTerrorism Can Be Stopped,î Skeptic, no. 11 (January-February 1976): 49

62. Vice President, Report on Terrorism, 25. 

63. Attorney General William French Smithís guidelines focused on the criminal c

approach and provided that a 

domestic security terrorism investigation may be initiated when the facts or 

circumstances reasonably indicate that two or more persons are engaged in an 

enterprise for the purpose of furthering political and social goals wholly or in p

CHAPTER 3 96 
Quoted by Crabtree, 13. See also Ernest Evans, ìToward a More Effective U.S. Policy 

Terrorism,î in Political Terrorism and Energy: The Threat and Response, ed. Yonah A

and Charles K. Ebinger (New York: Praeger, 1982), 229-32; and Brian Michael Jenkin

ìCombatting Terrorism: Some Policy Implications,î Rand, 6666, Rand Corp., Santa M

Calif., August 1981, 8. 

64. Privacy Act, US Code, Title 5, secs. 552a et seq. 

65 Freedom of Information Act (FOIA) US Code, Title 5, 552 et seq. 

66. Crabtree. 7. 

67. See Vice President, Report on Terrorism, 16; and Quainton, 62. 

68. See Edgar OíBallance, ìNew FOIA Laws Protect FBI,î ABA Journal 73 (1 Feb

1987): 111. 

69. See Bowett, 51; Jack Donnelly, ìHuman Rights, Humanitarian Intervention an

American Foreign Policy: Law, Morality and Politics,î Journal of International Affairs 

(Winter 1984): 311, n. 2; and Gal-Or, 121. 

70. Bowett, 54. 

71. Eugene V. Rostow, in American Society of International Law, Proceedings of 

Annual Meeting, 14-16 April 1983 (Washington, D.C.: l985), 35. 

72. See Department of State, Digest of International Law, vol. 3, ed. G. H. Hackwo

(Washington, D.C.: 1941), 282-91. 

73. See James L. Brierly, The Law of Nations, 6th ed., ed. Sir Humphrey Waldock 

York: Oxford University Press, 1963), 402-403; Rosalyn Higgins, ìIntervention and 

International Law,î chap. 3 in Intervention in World Politics, ed. Hedley Bull (Oxford

Clarendon Press, 1984), 3040; Richard B. Lillich, ìHumanitarian Intervention: A Repl

Brownie and a Plea for Constructive Alternatives,î chap. 11 in Law and Civil War in t

Modern World, ed. John Norton Moore (Baltimore: Johns Hopkins University Press, 1

Lohr, 34; Thomas, Thomas, and Salas, 19; and von Glahn, 162-63. 

74. Lt Comdr Bruce Harlow. USN, ìThe Legal Use of ForceÖ Short of War,î US 

Institute, Proceedings, 92, no. 11 (November 1966): 91-92. 

75. See Bowett, 51-52. 

76. ìCharter of the United Nations,î art. 2(4). 

77. Schachter, ìRight of States,î 1624. See also International Law Association, Am

Branch, ìReport of the Committee on Use of Force in Relations among States,î 1985-

Proceedings and Committee Reports (New York: International Law Association, Ame

Branch, 1986), 75-86. 

78. Schachter, ìRight of States,î 1633. 

79. See John Norton Moore, ìLegal Standards for Intervention in Internal Conflict

Georgia Journal of International and Comparative Law 13, supp. (1983): 193. 

80. Sorensen, 748. 

81. Higgins, 278. 

82. See Moore, 195; and John F. Murphy in American Society of International Law

Proceedings of the 77th Annual Meeting, 14-16 April 1983 (Washington, D.C.: 1985), 

also UN General Assembly, ìDefinition of Aggression,î Resolution 3314, (IN GAOR

sess., supp. 31, A/9631 (1974), 142. 

CHAPTER 3 97 
Review 20 (1967): 28-29. 

85. See DíAngelo, 495-97; remarks of Thomas M. Franck, in American Society of 

International Law, Proceedings of the 78th Annual Meeting, 12-14 April 1984 (Washi

D.C.: 1986), 41-42; Franck, ìWho Killed Article 2(4)? or: Changing Norms Governing 

of Force by Stares,î American Journal of International Law 64, no. 4 (October 1970): 

W. Michael Reismann, editorial comment, ìCoercion and Self-Determination: Constru

Charter Article 2(4),î American Journal of International Law 78, no. 3 (July 1984): 64

Reismann. ìArticle 2(4): The Use of Force in Contemporary International Law,î in Pr

of the 78th Annual Meeting, 74-87. 

86. Oscar Schachter, ìIn Defense of International Rules on the Use of Force,î Univ

Chicago Lastí Review 53, no. 1 (Winter 1986): 126. See also Eugene V. Rostowís rem

Proceedings of the 77th Annual Meeting, 50; and Herbert K. Tillema and John R. van 

ìLaw and Power in Military Intervention,î International Studies Quarterly 26, no. 2 (J

226-27. 

87. See remarks of Richard B. Bilder in Proceedings of the 77th Annual Meeting, 6

Tillema and van Wingen, 220 and 236. 

88. Schachter, ìInternational Rules,î 131. 

89. Von Glahn, 512. 

90. Sir Humphrey Waldock, ìThe Regulation of the Use of Force by Individual Sta

International Law,î Recueil des Cours 81, pt. 2 (1952): 493. See also Richard B. Lillic

ìForcible Self-Help under International Law,î US Naval War College International La

62 (1980): 129-30; and Department of State, Office of the Legal Adviser, Digest of Int

Law, vol. 12, ed. Marjorie M. Whiteman (Washington, D.C: August 1971), 6-7, State 

Department, 8586. 

91. Schachter, ìRights of States,î 1625. See also Paust, 89-90. 

92. Higgins, 293. See also Bowett, 31. 

93. Anthony DíAmato, editorial comment, ìIsraelís Air Strike upon the Iraqi Nucl

Reactor,î American Journal of International Law 77, no. 3 (July 1983): 585. 

94. See Bowett, 235; Higgins, 284; and Digest of International Law, vol. 12:18. 

95. DíAmato, 585. 

96. See Digest of International Law, vol. 12:15. 

97. Department of the US Air Force, Office of The Judge Advocate General (HQ 

USAF/JACI), letter, subject: Use of Force against Terrorist Organizations and Personn

January 1985, para. 5. 

CHAPTER 3 98 
INDIVIDUAL SELF-DEFENSE AS A JUSTIFICATION FOR THE U

FORCE 

Vim vi repellere licet, modo flat moderamine inculpatae tutelae, non ad 

sumendam vindictam, sed ad propulsandum injuriam. [It is lawful to repel forc

by force, provided it be done with the moderation of blameless defense, not for 

the purpose of taking revenge, but to ward off injury.] 

Legal ma

In international law, the doctrine of self-defense provides the state with a legal 

basic for actions taken in response to the illegal use of force by another state, in 

the absence of effective action by the international community. When properly 

invoked, the doctrine will serve to excuse stale action involving both the 

unilateral use of force and a breach of the territorial integrity of another state th

would otherwise be illegal under both rules of customary international law and 

Charter of the United Nations. 

John C. Ben

Self-defense is not only our right, it is our duty. It is the purpose behind the 

mission undertaken tonightóa mission fully consistent with Article 51 of the U

Charter. 

President Ronald Rea

A dominant trend of the twentieth century, culminating in the United Nations C

has been to restrict the use of force as a means for the settlement of international dispu

chapter and the two subsequent chapters review the legal arguments justifying a forcib

response in contemporary international relations. Three aspects of each legal argument 

considered: What is the substance of the argument or justification? What conditions m

for a state to rely on the argument as a justification? How well accepted is the legal arg

the international community? The concept of self-defense underlies many of the justifi

the use of force. This chapter addresses the issue of states acting alone in exercise of in

self-defense. Chapter 5 focuses on states acting in concert in exercise of collective self

or in regional enforcement or peacekeeping actions. Chapter 6 examines other justifica

Appendix A summarizes these legal arguments or justifications. 

When confronted with a situation demanding the use of force, a state may rely 

legal arguments or justifications for its military action. Multiple justifications have ma

advantages. First, multiple arguments appear to strengthen the stateís position. A state 

to demonstrate the legitimacy of its forceful response to obtain the support of its citize

world community at large. Second, multiple arguments enhance the scope of authorize

CHAPTER 4 99 
authorized scope of action. 

Doctrine of Individual Self-Defense 

Individual self-defense contrasts with collective or multistate self-defense. Indi

self-defense is an ancient and fundamental right of states recognized from time immem

Hugo Grotius, the father of international law, observed in 1625 that self-defense rests o

ìfact that nature commits to each his own protection.î1

 Self-defense is no less importa

the face of weak international organizational enforcement machinery. D. W. Bowettó

of Queenís College, Cambridge University, lecturer in law at Cambridge University an

University of Manchester, and an acknowledged expert on self-defense writes: 

In some measureÖ the right must remain; for no matter how effective the mea

of protection afforded by the centralized machinery of society are, there will 

inevitably exist circumstances in which certain essential rights or interests of th

individual can only be protected by conceding to the individual the right to rak

initial measures of protection until the centralized machinery comes into 

operation.2

Recognizing the severe inadequacies of the present-day centralized enforcement mach

the United Nations, Abraham D. Sofaer, US Department of State legal adviser, notes th

policeman is apt protection against individual criminals; but national self-defense is th

protection against the criminal state. î3

Individual self-defense is universally accepted by the world community as lega

use of force. Although article 2(4) of the UN Charter contains a basic prohibition again

of force,4

 article 51 of the Charter is a recognized exception. Article 51 provides: 

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

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

Nations until the Security Council has taken measures to maintain internationa

peace and security. Measures taken by Members in the exercise of the right of 

self-defense shall be immediately reported to the Security Council and shall no

any way affect the authority and responsibility of the Security Council under th

Charter to take at any time such action it deems necessary in order to maintain 

restore international peace and security.5

In addition to legalizing the use of force, article 51 also legalizes the projection 

into the territory of another state. The general rule is that a nation may not intervene or 

the territory of another sovereign. Nor may a state stop, divert, board, detain, or otherw

interfere with anotherís aircraft or ships. The right of individual self-defense, as contai

article 51, which is a part of chapter VII of the UN Charter, is recognized in article 2 (

taking precedence over the rights of sovereignty and nonintervention.6 

CHAPTER 4 100 
Sorensen, professor of international law at Aarhus University in Denmark, internation

recognizes that certain acts, which would ordinarily be unlawful, are, when committed 

defense, legitimate and do not give rise to responsibility.î8

 Thus, in principle, articles 2

2(7) establish the prima facie illegality of use or threatened use of force and interventio

states while article 51 affirms the inherent right of self-defense and grants to states an 

limited privilege justifying what would otherwise be illegal coercion. If a self-defense 

proper, then a state is relieved from responsibility. 

Self-defense is distinguishable from self-help and from the concept of aggressi

Although self-defense is a form of self-help, self-help is broader than self-defense. Sel

any and every means by which states pursue their rights and interests; some are legally 

permissible and some are not. Self-defense is a specific form of self-help, that is, an ìa

of rights illegally and forcibly denied.î9 Self-help is only legitimate to the extent that th

form of self-help, such as self-defense, is legal. 

Aggression is different from, and irrelevant to, the concept of self-defense. Agg

occurs whenever a stateís actions threaten another state in specific ways. Aggression i

limited to force. Aggression can occur in other forms such as economic aggression. Ag

is one of the preconditions for action under article 39 of the Charter for implementatio

enforcement actions under chapter VIII. Aggression is not a precondition for action un

chapter VII of the Charter, including self-defense in article 51. Article 51 focuses on a

attack and not aggression. As summarized by D. W. Bowett, ìin considering whether a 

affords a state the right of self-defence the only relevant concept is that of self-defence

concept of aggression as it has been elaborated during the course of the last forty years 

entirely different purpose.î10

It is certainly possible, however, that state misconduct can amount to both an a

attack and aggression. They are not mutually exclusive. The United States has viewed 

sponsored international terrorist acts as armed attacks justifying self-defenseóas was 

the 1986 Libyan raidóor as aggression, as noted by Secretary of State George Shultz: 

A state which supports terrorists or subversive attacks against another state, or 

which supports or encourages terrorist planning and other activities within its o

territory, is responsible for such attacks. Such conduct can amount to an ongoin

armed aggression against the other state under international law.11

If the attacks conducted by terrorists and their state sponsors are armed attacks, then se

in article 51 is the option to consider. If, on the other hand, an act of aggression under 

is evident, then the focus is on the enforcement measures under chapter VIII of the Ch

CHAPTER 4 101 
Conditions Permitting Individual Self-Defense 

Several conditions, established in international law, must be satisfied for self-d

be legally proper. These conditions are interrelated and it is sometimes difficult to draw 

line between them. Some may be only another way of looking at an essential element o

defense, but all the conditions taken together depict the essence of the inherent right of 

self-defense.

Preventive, Not Retributive Response 

The purpose of self-defense is to preserve the status quo. It is not to punish. Th

condition distinguishes self-defense from reprisal, a concept to be discussed in chapter 

defense does not seek the biblical eye for an eye; rather it seeks to preserve world publ

which is threatened by permitting the use of force as an emergency measure ìstrictly c

the removal of the danger.î12 Thus, a nation acting in self-defense will apply force in a 

fashion that is regulated in scope and objective. Methods and means, as well as targets

carefully selected to achieve the narrow preventive purpose of self-defense and will no

directed in such a manner as to be punitive in character. 

Breach of Legal Duty 

ìThe essence of self-defense,î writes D. W. Bowett, ìis a wrong done, a breach 

duty owed to the state acting in self-defense.î13 This condition is consistent with the co

state responsibility. The breach of a duty alters the legal relationship between states an

justify action in self-defense that would otherwise be illegal. 

Protect Essential Rights 

Clearly, not all wrongs done a state will justify the use or threatened use of forc

defense. ìInternational law now forbids the use of force except as a counter-measure to 

illegality,î writes Sir Gerald Fitzmaurice, former judge of the International Court of Ju

further notes that international law ìby no means permits [self-defense] in every case o

illegality, but on the contrary, confines it to a very limited class of illegalities only.î14 

writers are in general agreement that protection of essential rights includes measures o

defense in response to dangers to territorial integrity or political independence, that is, 

national security.15 The assessment that international terrorism is a threat to national se

becomes relevant on this count. 

What other essential rights are there? Disagreement exists as to the answer to th

question. Some scholars and jurists take the position that protection of human life or fu

of human rights qualifies. Although ìthere is latitudeÖ for national decision-makers to 

independent determinations concerning what are a stateís essential national interests,î 

must be aware that ìonce a decision is made and action based thereon, the community 

will ultimately decide the correctness of the decision.î16

CHAPTER 4 102 
or aspirations or to avenge past injustices or to vindicate legal rights.

The response 

United Nations to the 1956 Suez intervention is illustrative. ìThe Members of the Unit

Nations,î writes British scholar Rosalyn Higgins, 

were overwhelmingly of the opinion that the proper procedure to guarantee suc

vital rights was through the various means of peaceful settlement provided by t

Charter, and that ëthe use of force or armed intervention to secure rights, even 

lawful rights, has been strictly prohibited unless expressly ordered by the Secur

CouncilÖ No country may take the law into its own hands.î18 

Similarly, the nineteenth-century view that self-defense should be equated to se

protection or self-preservation is rejected today.19 Neither the concept of self-protectio

preservation required a prior illegal act or a reaction to actual or threatened violence di

essential rights; both were destructive of the world legal order inasmuch as they offere

justification for any use of force. Writing of self-preservation, British professor of inte

law James L. Brierly noted ìthere is hardly any act of international lawlessness which, 

literally, [it] would not excuse.î20 Sorensen reaffirmed Brierlyís view by reviewing the 

which self-preservation was put during this centuryís world wars. 

Full scale invasions have been justified by invoking the right of the state to tak

measures of self-protection; thus, for instance, the German attack on Luxembou

and Belgium in 1914, and the violation of their permanent neutrality were 

explained by the invading government as steps that became necessary because 

fear of similar moves on the part of France. Anticipation of a breach of neutrali

was equally invoked as the justification of German aggression against Norway

Belgium, Holland and Luxembourg in 1940.21 

In contemporary international law, the concepts self-protection and self-preservation h

legal meaning, while self-defense has a legal basis. 

Actual or Imminent Armed Attack

The international community agrees that a right of self-defense against actual a

attack obviously exists. Agreement as to what constitutes an armed attack, however, is 

matter. Imminent armed attack centers on whether anticipatory or preemptive self-defe

Self-Defense against Actual Armed Attack. The term armed attack is not def

article 51 of the UN Charter nor was it discussed at the San Francisco Conference.22 Th

used, however, in article 5 of the North Atlantic treaty. During hearings on that treaty, 

contemporaneous with the UN Charter, the Senate Foreign Relations Committee comm

It should be pointed out that the words ìarmed attackî clearly do not mean an 

incident created by irresponsible groups or individuals, but rather an attack by 

State upon another. Obviously purely internal disorders or revolutions would n

CHAPTER 4 103 
possibly be considered an armed attack [emphasis supplied].

The first element of armed attack is one state applying force against another sta

Consequently, raids by armed bands without state support do not constitute armed atta

justifying self-defense.24 The traditional view is that state toleration or encouragement 

insufficient state connection. ìToleration of armed bands,î according to Fordham Univ

professor Manuel R. Garcia-Mora, ìdoes not warrant the exercise of the right of self-d

ìInsofar as one state merely encourages guerrilla movements within another,î writes N

University law professor Thomas M. Franck, ìan ëarmed attack,í at least in the conven

sense, cannot be said to have taken place.î26 Even though not constituting armed attack 

self-defense, intervention may be lawful, nonetheless, under some other concept of int

law. 

In contrast, some scholars see state sponsorship and support as sufficient to sus

finding of armed attack, Rosalyn Higgins answers affirmatively the question: Can a sta

subjected over a period of time to border raids by nationals of another state which are 

supported by the government of that state use force in self-defense?27 A few writers, lik

Brownlie, fellow of Wadham College and lecturer in international law at Oxford Univ

require control of the individuals or groups by the sponsoring or supporting state, ìbut 

there is a control by the principal, the aggressor state, and an actual use of force by its 

there is an ëarmed attack.íî28 The majority, however, look only to sponsorship and sup

do not require day-to-day control of the individual or group by the principal. American 

international law professor and theorist Hans Kelsen writes, 

There are a number of ways in which force may be used indirectly by a stale th

may be interpreted as constituting armed attack, for example, the arming by a 

state of organized bands for offensive purposes against another state, the sendin

by a state of so-called ìvolunteersíí to engage in hostilities with another state, t

undertaking or encouragement by a state of terrorist activities in another state o

the toleration by a state of organized activities calculated to result in terrorist ac

in another state and so on.29

Some scholars are uncertain about the issue of control.30 Others suggest that recognizin

of armed conflict and presupposing an armed attack would identify and link the respon

to the terrorist action thereby clarifying the issue of control.31 

UN practice consistently has been to narrow the application of the right of self-

refusing in most situations to accept terrorist acts as armed attack.32 More recently, a d

view was expressed by the International Court of Justice in Concerning United States D

and Consular Staff in Tehran (United States v. Iran), where, in more than one place in 

judgment, the Court referred to the takeover of the US Embassy as an armed attack on 

States.33 This opinion should not be considered a new direction in the United Nations b

response by the Court to grossly unlawful conduct. 

CHAPTER 4 104 
practice), it is indisputable that both direct and indirect armed attack can serve as a bas

defense. Article 51 of the Charter speaks of armed attack and does not restrict it to dire

There is no reason to limit self-defense to direct armed attack when, in fact, indirect ar

can constitute a serious threat. ì[A] stateís political independence may be jeopardized 

indirect uses of armed force.î34 Recognizing the current state of international relations

Norton Moore, University of Virginia Law School, concludes that ìa state is entitled to 

against aggressive attack, whether that is a direct attack using armies on the march, or 

is a low intensity conflict or irregular or guerrilla or terrorist attack.íí

35

A second element of armed attack is offensive intention. Sorensen describes th

by giving an example. ìRegarding intentionÖ use of force with no offensive intention

constitute armed attack. For instance, the quarantine established by the United States i

connection with the Cuban crisis of 1962 involved the use of force resulting in the dep

the navy and air force, but it did not amount to an armed attack.î36 Offensive intent ap

highly subjective and may be more of a legal mechanism to allow states to assess any p

situation politically than it is a strict guideline. Ian Brownlie proposes that the test for 

intention might be trespass.37 This approach appears too narrow. Trespass is a property 

concept that relates to territorial integrity. However, territory is not the only national se

interest of a state that may be protected through exercise of self-defense. 

Self-Defense against Imminent Armed Attack. Two schools of thought exist 

anticipatory or preemptive self-defense in response to imminent armed attack. They ar

restrictive and the expansive schools. The restrictive school argues for a narrow interp

the UN Charter excluding anticipatory self-defense. Brownlie, Boyle, Jessup, Kelsen, 

Sorensen, and Q. Wright, among others, assert that ìthere is no right of anticipatory or 

emptive self-defence.î38 They argue that the exercise of self-defense can take place on

words of article 51, ìif an armed attack occurs.î Absent an armed attack, a state has no 

self-defense. A state can meet preparations for attack only by preparations to resist. ìU

Charter,î writes Philip C. Jessup, former judge of the International Court of Justice (IC

ìalarming military preparations by a neighboring state would justify a resort to the Sec

Council, but would not justify resort to anticipatory force by the state which believed i

threatened.î39 Self-defense provides protection against illegal use of force and nothing 

Some members of the restrictive school see the advent of modem weapons of m

destruction as permitting an exception to this standard. Writing in 1961 Ian Brownlie s

that ìsuch relaxation should only be allowed in the case of rockets in flight: if it is exte

fast aircraft and other instruments, the possibilities of abuse of the law increase.î40 To 

such an exception, however, is to open a Pandoraís box. Most restrictionists would not 

such an exception. And Brownlie is merely making a suggestion as to what the law sho

not what it is. 

Although the phrase ìif an armed conflict occursî seems to lend support to the 

restrictionist interpretation, the words in article 51 that ìnothing in the present Charter 

impair the inherent right of individual or collective self-defenseî do not appear to do s

CHAPTER 4 105 
remains admitted and unimpaired.

Nonetheless, jurists of the restrictive bent have crafted a legal argument based 

Charterís modification of customary international law on self-defense. The most articu

in this regard is Hans Kelsen, who argues: 

All sides in this controversy over the scope of the right of self-defense under th

Charter have of course appealed to the travaux preparatoires [official conferenc

working papers] in support of their respective arguments. But the travaux

preparatoires are not without a good deal of ambiguity, and for this reason alon

the appeal to them can hardly prove decisive. It is true that the Committee whic

dealt with Article 2, paragraph 4, declared that ëëthe use of arms in legitimate s

defense remains admitted and unimpaired.î But this statement merely raises th

question as to what was intended by ìlegitimate self-defenseî which was 

presumably to remain unimpaired. If this statement is read to imply the 

preservation of the customary right of self-defense, it is not easy to square with 

the terms of Article 2, paragraph 4. Nor is it easyóconsidering the notorious 

vagueness of the customary right of serf-defenseóto reconcile with the intent t

impose strict limits on the measures of self-help permitted to member states. It 

should also be noted that the same Committee went on to declare that the use o

force ëremains legitimate only to back up decisions of the Organization at the s

of a controversy or during its solution in the way that the Organization itself

ordains.î42

Ian Brownlie argues ìthat Article 51 is not subject to the customary law and th

it were, this customary right must be regarded in the light of State practice up to 

l945.î43According to Brownlie, by 1945, state practice had evolved to the point where 

nineteenth-century, customary-law view of self-defense as an unlimited right equated t

protection had been replaced by a limited right of self-defense much the same as that 

memorialized in the Charter.44 Therefore, the issue of whether customary law or the Ch

provides the standard for self-defense is moot because both are essentially the same. 

In addition to legal arguments, the restrictionists have suggested several policy 

why anticipatory self-defense should not be admitted. First, determining with certainty 

armed attack is imminent is extremely difficult. An error in judgment could lead to an 

unnecessary conflict. Second, anticipatory self-defense is akin to the rejected nineteent

concept of self-preservation. This form of self-defense would permit states to use force 

situations other than actual armed attack. Third, anticipatory self-defense is grounded i

customary law, which provides no clear guidelines for application. The oft-cited Carol

more words than substance.45 Rosalyn Higgins believes the United Nations has opted f

restrictive approach for policy reasons, that ìthere has merely been a reluctance on the 

United Nations to encourage [anticipatory self-defense] for fear that it may be too frau

danger for the basic policy of peace and stability.î46

CHAPTER 4 106 
Harlow, Higgins, McDougal, Schachter, Lohr, and Waldock are members of this schoo

According to US Navy judge advocate Capt James L. J. McHugh, ìstates have consist

on this basis.î48 The United States has adopted this view.49 Secretary Shultz has affirm

ìis permitted to use force to preempt future attacks, to seize terrorists, or to rescue its c

when no other means are available.î50 In his letter of 16 April 1986 to Congress on the 

raid, President Ronald Reagan advised that ìthese strikes were conducted in the exerci

right of self-defense under Article 51 of the United Nations Charter. This necessary an

appropriate action was a preemptive strike, directed against the Libyan terrorist infrast

and designed to deter acts of terrorism by Libya.î51

Four basic arguments in favor of anticipatory self-defense have been advanced

an attack is being mounted, then it can be said to have begun. Second, article 51 does n

the inherent right of self-defense as contained in customary international law. Third, nu

and other weapons of modern technology make it impossible to wait for the first strike

and finally, a narrow reading of article 51 will only benefit aggressors.52 A brief consid

each of these arguments will assist in understanding what anticipatory self-defense is r

about. 

The first argument is based upon an interpretation of the Charter language. It fi

anticipatory self-defense consistent with that instrument. Article 2(4) requires member 

refrain not only from the use of force but also from the threat of force. The Charter sys

designed to manage both actual use and imminent threat of force. If states had to wait 

armed attack to occur, then maintenance of international peace and security as contem

article 51 could not take place. Rather, states would be left with efforts to restore, not m

international peace and security. Article 51 preserves unimpaired the inherent right of 

defense, which means the customary international law concept of self-defense to inclu

anticipatory or preemptive self-defense. The phrase ìif an armed attack occursî has be

misunderstood by the restrictionists. The French text of the UN Charter, equally authe

English text, does not use the phrase ìif an armed attack occurs.î Instead the French te

ìdans un cas ou un Membre des Nations Unies est lëobjet dëune agression armee,î whi

translates, ìin a case where a Member of the United Nations is the object of armed agg

Moreover, Yale University law professor Myres McDougal has focused on an importa

linguistic problem in interpreting the phrase ìif an armed attack occurs.î He writes, 

A proposition that if A, then Bî is not equivalent to, and does not necessarily 

imply, the proposition that ìif, and only if A, then B.î To read one proposition 

the other, or to imply the latter from the former, maybe the result of a policy 

choice, conscious or otherwise, or of innocent reliance upon the question-begg

Latinism inclusio unius est exclusio alterius [the inclusion of one is the exclusi

of the other]; such identification or implication is assuredly not a compulsion o

logic. If a policy choice is in fact made, it should be so articulated as to permit 

assessment.54

McDougal does not believe that the phrase should be read to mean ìif and only if an ar

CHAPTER 4 107 
Those who support anticipatory self-defense do not believe that it justifies the u

force in response to mere preparation by an enemy. More of a nexus than that is requir

between the threat and potential use of force. The generally accepted test is that ìantic

self-defense is applicable only when there is a clear and present danger of an imminen

In defense of this approach, Oscar Schachter, Columbia University law professor and f

president of the American Society of International Law, writes, ìIt is important that th

self-defense should not freely allow the use of force in anticipation of an attack or in re

a threat. At the same time, we must recognize that there may well be situations in whic

imminence of an attack is so clear and the danger so great that defensive action is esse

The second argument focuses on customary international law finding that ìthe 

self-defense belongs to member states not by grant under the Charter, but by virtue of 

existing customary and natural right long recognized by international law.î

57 The argu

based on the premise that ìthe Members of the United Nations when exercising their in

powers do so not by grant but by already existing right. The Charter limits the sovereig

the states; it is not a source of those rights.î58 In short, what the Charter does not forbid

possess. 

Not only does article 51 make reference to the unimpaired and inherent right of 

defense, but the negotiating history of the Charter, contained in the records of the San 

Conference, supports the position that the customary international law concept of self-

preserved. At the Inter-American Conference on 3 March 1945 the Act of Chapultepec 

signed establishing a collective defense system. There was concern among the delegat

San Francisco Conference that the UN Charter might adversely affect this relationship

51 was drafted to clarify this issue. Originally it was proposed that the article be placed 

chapter VIII of the Charter, which would have limited the right of collective self-defen

regional organizations and would have required prior approval by the Security Counci

debate that ensued, the delegates intended clearly that the customary right of self-defen

altered. As a result article 51 was moved from chapter VIII of the Charter to chapter V

Bowett writes, 

The connection between [the Act of Chapultepec] and the introduction of Artic

51 was stated quite clearly by the Colombian delegate, Camargo, at the 4th 

Meeting on May 23rd, 1945 [at the San Francisco Conference]Ö ìit may be 

deduced that the approval of this action [moving Article 51 from Chapter VIII 

Chapter VII] implies that Chapultepec is not in contravention of the Charter.î 6

Preserving the customary right of self-defense has been a consistent position of 

United States. When negotiating the Kellogg-Briand Pact,61 which served as a precurso

UN Charter, the United States sent a note to France on 23 July 1928 regarding the draf

read in part, ìThere is nothing in the American draft of an anti-war treaty which restric

impairs in any way the right of self-defence.î62 France never objected to this interpreta

James L. Brierly summed up the view of scholars thusly, ìself-defence is a natural righ

touched by the Pact.î63

CHAPTER 4 108 
the answer can be found in the Caroline case.

During the 1837 Canadian insurrection

of Americans was assisting the rebels with supplies and communications provided by 

Caroline. While the vessel was anchored on the US side of the border, an armed band u

command of a British officer crossed the river, set fire to the vessel, and cut it loose to 

Niagara Falls. The US government protested this action to the British government, wh

responded, in part, that it had exercised its right of self-defense. Replying to Lord Ash

Secretary of State Daniel Webster set down in a note of 6 August 1842 his test for self

requiring a necessity that ìis instant, overwhelming, and leaving no choice of means, a

moment for deliberation.î This test as a measure of what constitutes imminent attack m

been valid for the nineteenth century, but some scholars now believe that the test has b

modified in light of modern weapons technology.65

This modification allows these scholars to make a third argument in favor of an

self-defense. Only anticipatory self-defense is responsive to the nature of modern weap

including nuclear weapons. To wait for an actual armed attack to occur would be insan

Underlying this argument is a plea for common sense in interpreting the Charter. To na

read the Charter as not permitting anticipatory self-defense, writes Myres McDougal, w

to engage in ìa serious underestimation of the potentialitiesÖ of newer military weapo

systems.î66 Or as Prof Thomas M. Franck more pointedly notes, ìIfÖ what the Charte

[is that a nation await an actual nuclear strike against its territory], then, to paraphrase 

Bumble, the Charter is ëa ass.ííí

67 Clearly, the problem is, not limited to nuclear weapo

involves a whole generation of new weapon systems. The Israelis learned in the 1967 w

you wait for the first hit, then it is too late. The Israeli destroyer Eilat waited and was d

by Styx missiles from an Egyptian patrol boat. The use of Exocet missiles in the Falkla

conflict reaffirmed that lesson. 

Some commentators do not see the Charter as the issue. Instead they see the tes

expounded in the Caroline case as too strict.68 There are two responses to this concern

acknowledge that the test is too strict but to add that it has never been accepted in state 

in a strict form. Lord Ashburton did not accept the Webster formula. In his note of rep

simply offered a perfunctory British apology for the incident. A second response is to 

the formulaís interpretative latitude. The test contains verbal guidance that must be app

particular factual circumstance through the exercise of judgment. The nature of the we

threat is a proper factor to consider as part of necessity, immediacy, choice, and oppor

deliberation. Judging a potential nuclear threat is equally appropriate. But the world co

is likely to hold the acting state to a high standard if the international reaction to the Is

on the Iraqi Osirak nuclear reactor is any indication.69

The fourth and final argument for anticipatory self-defense is that a restrictioni

interpretation of the Charter will benefit aggressors. A purpose of the Charter is to prev

of aggression, not foster them. As Sir Humphrey Waldock, former president of the Inte

Court of Justice, writes, ìIt would be a travesty of the purposes of the Charter to comp

defending state to allow its assailant to deliver the first and perhaps fatal blowÖ To re

51 otherwise is to protect the aggressorís right to the first stroke.íí70

CHAPTER 4 109 
that sporadic or isolated incidents by armed groups (even with state support) do not co

armed attack. Consequently, it has proven difficult to characterize international terrori

armed attack. Theories have been proposed from time to time to view terrorist acts as a

interrelated set of occurrences. In 1956 Israel sought to justify its military action acros

armistice line based upon a continuing attack by fedayeen. The United Nations and the 

States rejected this analysis in large part because Israeli action was contrary to a UN su

armistice.71 More recently, however, Israeli scholars have articulated a persuasive anal

problem in the form of the accumulation-of-events theory. 

Yehuda Blum, Israeli ambassador to the United Nations from 1978-84 and curr

professor of international law at the Hebrew University in Jerusalem, is among its chie

spokesmen. He writes, 

Obviously, one would have to treat an isolated terrorist act emanating from the 

territory of one state and carried out on the territory of another differently from 

act of terrorism which constitutes but one link in a long chain of such acts.72

Although individually a terrorist act may not be an armed attack, the totality of such ac

suggest otherwise. This is the accumulation of events. 

This theory has been accepted in United States practice. The pattern-of-events 

was used, for example, as part of the legal argument for US participation in Vietnamó

of Tonkin Resolutionóand for the US incursion into Cambodia in May 1970. The ìon

pattern of attacks by the Government of Libyaî served as a basis for the 15 April 1986 

against that country.73 Israel used the theory to support its action in March 1962 in the 

Tiberias incident and again in November 1966 in the Samu incident. The United Kingd

on the theory for its actions against Yemen in 1964 as did Portugal in its action agains

Senegalese village of Samine in NovemberóDecember 1969.74 The International Law 

Associationís American branch concluded in its 1985ó86 report that ìëdefensive reta

may be justified when a state has good reason to expect a series of attacks from the sam

and such retaliation serves as a deterrent or protective action.î75

Timely Response 

Self-defense contains a temporal element. It is limited by time. A response in s

must be made close in time to the actual attack or threat. Otherwise, self-defense could 

countless reprisals to prior unlawful acts of force or remote future contingencies. This 

timeliness was emphasized in the Caroline test, which requires that the response be ins

is, immediate, now, not later. Since proximity in time is a critical factor, a state can los

to self-defense if it waits too long. How long is too long is a matter of judgment based 

factual circumstances. For example, if an armed aircraft is fired upon, then it might be 

that it would exercise the right of self-defense immediately by making a response. If, h

an unarmed aircraft were fired upon, then it may be appropriate for the self-defense re

CHAPTER 4 110 
Last Resort 

Article 2(3) mandates that states ìsettle their international disputes by peaceful 

such a manner that international peace and security, and justice, are not endangered.î A

of the Charter requires that ìthe parties to a dispute, the continuance of which is likely 

endanger the maintenance of international peace and security, shall first of all, seek a s

[by] peaceful means.î77 These obligations require states to exhaust peaceful means bef

resorting to self-defense. In the words of Rutgers University professor of law Tom J. F

ìthere must not be alternative means of protection.î78

The state facing harm does not need to exhaust peaceful means of settlement if 

undertaking such efforts will prove fruitless. Also, if a state is under attack, it then has 

to respond with force to meet force in self-defense. If an armed attack is in progress or 

then the situation may preclude seeking peaceful settlement. But an entirely different s

prevails if the armed attack has occurred and no future attack is imminent.79 Use of for

required to defend against further armed attack as no such threat exists any longer. 

Necessity of Response 

Many writers see necessity as a requirement for exercising self-defense.80 In re

necessity is nothing more than a combination of elements previously discussed. Neces

when factors of time and absence of other effective remedies merge. Necessity has bee

described as ìgreat and immediate,î ìdirect and immediate,î ìcompelling and instant,î 

ìirreparable and imminent.î81 Schachter sees necessity in this way: 

The requirement of ìnecessityî for self-defense is not controversial as a genera

proposition. However, its application in concrete cases requires assessments of 

facts and intentions which in turn involve diverse perceptions. The subjectivity 

such judgments may be seen as reducing the legal value of the requirement. Th

may well be so but it should not lead to the conclusion that a judgment of 

necessity is entirely subjective. A case of self-defense is not persuasive either o

the political or legal level unless a reasonable basis of necessity is perceived.î8

As preconditions of necessity, Schachter finds that there must be both an imminent dan

no other available peaceful solution.83 If either does not exist, then neither does necess

might also conclude that the primary thrust of the Caroline test is necessity. 

Proportionality of Response 

Two kinds of proportionality are required. First, the response must be proportio

delict or wrong suffered. It would undoubtedly be disproportionate to invade and occu

portions of another stateís territory or indiscriminately and directly make its cities the 

CHAPTER 4 111 
Second, the response must be proportional in terms of the nature and the amoun

employed to achieve the objective or goal. This stricture does not mean that the state e

its right of self-defense must limit its use of force strictly to the minimum required to a

objective or goal. States have discretion in this regard. They have leeway to plan succe

military operations that can, and usually do, include the commitment of sufficient (not 

force necessary to accomplish the task. Also, if the delictual state resists the self-defen

of the injured state with additional force, then the injured state may be justified in incr

force accordingly and an escalation may result.85

Although self-defense is usually taken against the source of armed attack or thr

not unreasonable, writes Oscar Schachter, for ìa state to retaliate beyond the immediat

attack, when that state has sufficient reason to expect continuation of attacks.î86 Schac

out that such retaliation would not amount to anticipatory self-defense because the resp

would be to an armed attack that already has occurred. 

The basic requirement of proportionality is that the self-defense action be strict

confined to removal of the danger. Action taken beyond the provocation will not be in 

defense but rather will constitute illegal peacetime reprisal. Factors to be considered in 

determining proportionality are the essential rights threatened; the military force and a

resistance of the delictual state; and the scope, nature, amount and intensity of the forc

by the injured state in self-defense to include, for example, the scale of weaponry, the 

composition of the force, the targets selected, and the extent of collateral civilian dama

injury.87

The proportionality requirement has received attention only in the last 25 years

Previously, self-defense actions had involved small forces that faced little or no resista

whose mission was of limited duration causing few if any civilian casualties. Also, me

coverage was not live, instantaneous, and far-reaching. Today, nations worry about 

proportionality. Secretary of State George Shultz described the April 1986 Libyan raid 

ìproportionate,î88 and Secretary of Defense Caspar Weinberger described targets hit an

weapons used in order to affirm this position. Weinberger noted that precision-guided 

had been used to improve accuracy and that 

all the targets were terrorist-related and the criteria for selecting the targets was 

that they had a full terrorist connection; that we would minimize any collateral 

damage from civilian or other facilities nearby; that we would have full 

consideration for the safety of the pilots as a major consideration; and that they 

would be good night targets in the sense that they had good outlines that could 

reflected on the radar and not mistaken for other targets.89

Weinberger denied that Colonel Qadhafi was, himself, a target. 

CHAPTER 4 112 
This element requires an overall assessment that demands a bringing together o

elements of self-defense to determine if the contemplated response is appropriate. The 

formula holds that self-defense actions must be neither unreasonable nor excessive. Th

may be stated as follows: the injured state is authorized to act unilaterally with armed 

self-defense when it reasonably judges, considering all relevant elements, that it may d

injured state initially makes this judgment based upon the best information available to 

time.90

States Must Report Response 

Article 51 requires that measures taken in self-defense be reported immediately 

Security Council. States are also obligated to report any preparatory actions to the Secu

Council; they do not have to report their actions to any other body or organ of the Unit

other than the Security Council. Reports to the General Assembly or any of its commit

the secretary general are not required.91 

This obligation to report self-defense actions gives the Security Council the op

to act and to judge the actions of the delictual and injured states. More frequently than 

Security Council focuses attention on the actions taken in self-defense by the injured s

because they usually appear to precipitate the crisis and because a determination of the 

of the self-defense claim generally will dispose of the entire affair. 

Following World War II, the victorious allied nations set down the rule at the N

International Military Tribunal that ìwhether action taken under the claim of self-defen

fact aggressive or defensive must ultimately be subject to investigation and adjudicatio

international law is ever to be enforced.î92 That rule has been carried over into the UN 

A state may make the initial decision invoking the right, but the final decision must be 

an international body.93 In accordance with article 51, this determination would be mad

Security Council. But because of its voting rules, the Council, in practice, has been pre

from doing so. The General Assembly, which possesses recommendatory powers only

assumed this responsibility. Although the General Assembly cannot direct or mandate 

of action to the parties involved in the crisis, if the vote significantly represents the uni

interests of the world community it can have a substantial effect.94 Secretary Shultz sum

when he said, ìGovernments that overreact, even in self-defense, may only undermine 

legitimacy, and they unwittingly serve the terroristsí goals.íí

95

Response Must Cease If Security Council Acts Effectively 

Article 51 authorizes self-defense only ìuntil the Security Council has taken m

necessary to maintain international peace and security.î Self-defense, therefore, is an i

mechanism that must be terminated when, but only when, the Security Council takes e

positive, and affirmative action. A Security Council veto of proposed measures would 

Security Council in action. Ineffective action or inaction on the part of the Council is n

sufficient to end a stateís right of self-defense. As D. W. Bowett writes, 

CHAPTER 4 113 
as a question of fact, arid that both the [Security Council] and the defending sta

are able to reach their own decisions on this. Should these decisions conflict th

the individual member admittedly runs the risk of its continued action being 

characterized as a ìthreat to the peace, breach of the peace, or act of aggression

under [Article 39], but this is only a somewhat greater hazard than it runs in an

event by resorting to self-defence and would probably be undertaken in 

preference to annihilation by the attacking state.96

The right of self-defense is unique. Prior Security Council approval is not requ

a state can resort to its use (in contrast to regional enforcement actions under chapter V

Charter) and, if Security Council action on proposed measures is blocked by veto, then 

of continued self-defense remains unimpaired.97 In short, states retain the right of self-

long as the United Nations Organization through the Security Council is unable or unw

deal with the situation giving rise to the self-defense action in the first place. 

CHAPTER 4 114 
Individual self-defense, including anticipatory self-defense, can be a legal justi

the use of armed force. Self-defense must satisfy eleven conditions or requirements if t

is to be legitimate. All eleven conditions are interrelated and all must be satisfied. 

In determining the propriety of asserting self-defense certain ambiguities, prob

interpretation, and difficulties of factual application arise. Also, as Yale University law 

Eugene V. Rostow has observed, ìArticle 51 is one of the worst drafted sentences in h

Yet, one must agree with Columbia University law professor Oscar Schachter that the 

self-defense has a core meaning that permeates all of its essential conditions.99 The cor

of the doctrine of self-defense makes it generally possible, in any particular circumstan

judge whether an action is truly in self-defense. 

Some jurists and scholars may require more certainty. However, as British inte

lawyer Ian Brownlie has observed, ìThose who demand the perfect definition present 

of mind more suited perhaps to the design of precision instruments than the making or 

formulation of legal rules.î100 Human activity cannot be regulated in the same manner 

same degree as the laws of science regulate time. 

Chapter 5 continues the discussion of self-defense by looking at collective self

a legal justification for states acting together. Chapter 5 also reviews the legal basis for 

combined state action at the regional level-regional enforcement and peacekeeping act

CHAPTER 4 115 
1. Hugo Grotius, prolegomera [prologue]. De Jure Belli ac Pacis, Libri Tres [th

war and peace], trans. F. Kelsey, Classic of International Law, no. 3 (Oxford, England

Endowment for International Peace, 1925), 172. 

2. D. W. Bowett, Self-Defense in international Law (New York: Frederick A. 

1958), 3. See also John C. Bender, ìSelf-Defense and Cambodia; A Critical Appraisal

University Law Review 50 (Spring 1970): 139. 

3. Abraham D. Sofaer, ëëTerrorism and the Law,î Foreign Affairs 64, no. 5 (Su

1986): 922. 

4. See chapter 3 for a discussion of UN Charter, article 2(4). See also Thomas 

Franck, ëëWho Killed Article 2(4)? or: Changing Norms Governing the Use of Force b

American Journal of International Law 64, no 4 (October 1970); 809-37: Rosalyn Higg

Legal Limits to the Use of Force by Sovereign States: United Nations Practice,î in Bri

Book of International Law, 1961, vol. 37 (Oxford, England: Oxford University Press f

Institute for International Affairs, 1962), 299; W. Michael Reismann, editorial comme

ìCoercion and Self-Determination; Construing Charter Article 2(4),î American Journa

International Lawí 78. no. 3 (July 1984); 642-45; and Oscar Schachter. ìThe Right of 

Use Armed Force,íí Michigan Law Review 82 (April-May 1984): 1620-26. 

5. ìCharter of the United Nations,î art. 51, 26 June 1945, Statutes at Large, vo

United States Treaty Series (TS) 993; Department of State, Treaties and Other Internat

Agreements, 1776-1949, compiled under the direction of Charles I. Bevans (hereinafte

vol. 3, Multilateral, 1931-1945, 1153; ìCharter of the United Nations: Amendments to 

23, 27, and 67,î 31 August 1965, Treaties and Other International Acts Series (TIAS) 

United States Treaties and Other International Agreements (UST), vol. 16, pt. 2, 1134; 

Nations Treaty Series (UNTS), Treaties and Other International Agreements Reported 

or Recorded with the Secretariat of the United Nations, vol. 557 (1966), no. 8132, 143

of the United Nations: Amendments to Article 109.î 12 June 1969, TIAS 6529, UST, 

5, 5450; ìCharter of the United Nations: Amendments to Article 61,íí 24 September 1

7739, UST, vol. 24, pt. 2, 2225. 

6. ëëUN Charter,íí art. 2(7) reads: 

Nothing contained in the present charter shall authorize the United Nations to 

intervene in matters which are essentially within the domestic jurisdiction of an

state or shall require the Members to submit such matters to settlement under th

present Charter; but this principle shall not prejudice the application of 

enforcement measures under Chapter VII. 

See also Benjamin Netanyahu, ëëTerrorism: How the West Can Win,î Time, 14 April 

and Sofaer, ìTerrorism and the Law,î 919-20. 

7. See Bowett, 269; and Tom J. Farer, ìLaw and War, íí chap. 2 in The Future 

International Legal Order, vol. 3, Conflict Management, ed. Cyril E. Black and Richar

(Princeton, N.J.: Princeton University Press, Center for International Studies, 1971), 2

8. Max Sorensen, Manual of Public International Law (New York: St. Martiní

1968), 54). See also Matt S. Nydell, ëëTensions between International Law and Strateg

CHAPTER 4 116 
9. Higgins, 298. See also Bowett, 269; John R. DAngelo, Resort to Force by 

Protect Nationals; The U.S. Rescue Mission to Iran and Its Legality under Internationa

Virginia Journal of International Law 21, no. 3 (1981); 517; and Oscar Schachter, ëëIn 

of the International Rules on the Use of Force,íí University of Chicago Law Review 5

(Winter 1986): 126, n. 62. 

10. Bowett, 261-62. See also Manuel R. Garcia-Mora, International Responsib

Hostile Acts of Private Persons against Foreign States (The Hague, Netherlands: Marti

Nijhoff, 1962), 118. 

11. Sofaer, ìTerrorism and the Law,î 920. 

12. See Bender, 131; Bowett, 20; Farer, 28; Hans Kelsen, Principles of Interna

Law, 2d ed., rev, and ed. Robert W. Tucker (New York: Holt. Rinehart and Winston, 1

and Capt Samuel R. Maizel, USA, ìIntervention in Grenada,íí Naval Low Review 35 

1986): 71. 

13. Bowett, 9. See also Farer, 28; and Lt Comdr Bruce Harlow, USN, ìThe Le

ForceÖ Short of War,î US Naval Institute, Proceedings 92, no. 11 (November 1966): 

14. Sir Gerald Fitzmaurice. ìThe Foundations of the Authority of Internationa

the Problem of Enforcement,î Modern Law Review 19 (1956): 1. 

15. See Bowett, 20 and 259; Farer, 28; Higgins, 315; and Kelsen, 75. 

16. Lt Comdr Michael Franklin Lohr, USN, ìLegal Analysis of U.S. Military R

to State-Sponsored International Terrorism,î Naval Law Review 34 (1985): 23. 

17. Schachter, ìInternational Rules,î 120. See also Lohr, 19. 

18. Higgins, 315. 

19. See Ian Brownlie, ìThe Use of Force in Self-Defence,î in British Year Bo

37:223; Kelsen, 59-61; Harlow, 92; and James J. McHugh, ìForcible Self-Help in Inte

Law,î US Naval War College International Studies 62 (1980): 143. 

20. James L. Brierly quoted by Bowett, 10. 

21. Sorensen, 761. 

22. See Brownlie, 244-45; and Department of State, Office of the Legal Advis

of International Law, vol. 12, ed. Marjorie M. Whiteman (August 1971), 51 and 229-3

Department. 8586. 

23. Brownlie quoting the Senate Foreign Relations Committee, 245. 

24. See J. E. S. Fawcett, ìIntervention in International Law: A Study of Some 

Cases,î Recueil des Cours 103, pt. 2(1961), 361-63; Victoria Toensing. ìInternational 

Activities of Armed Bands,î International and Comparative Law Quarterly 7 (1958): 7

Digest of International Law, vol. 12:46-51. 

25. Garcia-Mora, 118-19. 

26. Franck, 812. 

27. See Higgins, 301. 

28. Ian Brownlie, International Law and the Use of Force by States (Oxford, E

Oxford University Press, 1963), 373. See also Bowett, 56; Brownlie, ìUse of Force,î 2

Sorensen, 777. 

29. Kelsen, 62-63. See also Schachter, ìIn Defense of International Rules,î 13

Abraham D. Sofaer, ìFighting Terrorism through Law,î address before American Bar 

Association, 15 July 1985, in Terrorism, ed. Steven Anzovin, The Reference Shelf, vo

CHAPTER 4 117 
30. See Brownlie, International Law and Force, 278-79; and Farer, 30. 

31. See George Kennanís comments as quoted by Edward A. Lynch, in ìIntern

Terrorism: The Search for a Policy,î Terrorism: An international Journal 9, no. 1 (198

32. See, for example, Sorensen, 777. 

33. See Concerning United States Diplomatic and Consular Staff in Tehran (U

States v. Iran), merits, 1980 International Court of Justice (ICJ), paras. 17, 24, 25, 57, 

34. Kelsen, 70. 

35. John Norton Moore, ìInternational Law and Terrorism,î ROA National Se

Report 4, no. 10 (October 1986): 11. See also Farer, 42; and Digest of International La

12:28-29, 63, and 228-29. 

36. Sorensen, 778. 

37. Brownlie writes: ìSince the phrase ëarmed attackí strongly suggests a tresp

very doubtful if it applies to the case of aid to revolutionary groups and forms of annoy

which do not involve offensive operations by the forces of a State.î Brownlie, ìUse of 

245. See also Garcia-Mora, 113. 

38. As Brownlie has stated, ìIt can only be concluded that the view that Articl

not permit anticipatory action is correct and that the arguments to the contrary are eith

unconvincing or based on inconclusive pieces of evidence.î Brownlie, ìUse of Force,î 

Francis A. Boyle comments that ìdespite assertions of the Israeli Government to the co

regressive doctrine of anticipatory or pre-emptive self-defense has not survived under 

of the United Nations Charter.î Boyle, ìUpholding International Law in the Middle Ea

Terrorism, Political Violence and World Order, ed. Henry Hyunwook Han (Lanham, M

University of America, 1984), 512; Philip C. Jessup observes that ìthe effect of Article 

however, is to limit the right of employing force in self-defense to the one case of a pr

attack. [The Charter] forbids the taking of anticipatory measures.î See Jessup, A Mode

Nations, vol. 1 (New York: Macmillan Co., 1948), 166; Kelsen, 66-67; Josef Kunz ass

ìthe threat of aggression does not justify self-defense under Article 51Ö The imminen

attack does not suffice under Article 51.î Kunz, ìIndividual and Collective Self-Defen

Article 51 of the Charter of the United Nations,î American Journal of International La

(1947): 878. Sorensen (p. 778) argues that ìthere is no right to the first or anticipatory 

Quincy Wright notes, ìIt appears that the Charter intended to limit the traditional right 

by states to actual armed attack.î Q. Wright, ìThe Cuban Quarantine,î American Journ

International Law 57, no. 3 (1963); 560. See also the report of the American Bar Asso

Section on International Law and Practice, Committee on Grenada, ìInternational Law 

United States Action in Grenada,î International Lawyer 18 (1984): 266-67. The comm

report concludes, ìThe reference in Article 51 to an ëarmed attackí appears to represen

unqualified condition, and [has been] interpreted as a limitation upon whatever ëinhere

state otherwise possesses. 

39. Jessup, 166. 

40. Brownlie, ìUse of Force,î 259. However, a contrary argument is made in ì

the Committee on the Use of Force in Relations among States,î in American Branch, 

International Law Association, 1985-86 Proceedings and Committee Reports (New Yo

International Law Association, American Branch, 1986), 203. This report reads: 

CHAPTER 4 118 
preemptive strikes and anticipatory defense. It is conceded by them that states 

facing an imminent threat of attack will take defensive measures irrespective o

the law, but it is preferable to have states make that choice governed by necess

than to adopt a principle that would make it easier for a state to launch an attac

on the pretext of anticipatory defense. 

41. See Bowett, 182. 

42. Kelsen (pp. 69-70, n. 64) also notes that 

with, respect to Article 51, attention is frequently called to the fact that this 

provision was inserted in the Charter to accommodate regional security 

arrangementsóparticularly the inter-American system then foreshadowed by t

Act of Chapultepecówith the highly centralized system of the Charter. Article 

guaranteed the members such an arrangement that, in the absence of Security 

Council intervention, because of the veto, the members of a regional security 

arrangementóor, for that matter, a mutual assistance pact-would nevertheless 

have the right to come to the collective defense of an attacked state. From this 

history the conclusion is often drawn that Article 51 was not intended to narrow 

further the customary right of self-defense but only to make quite clear that 

nothing in the Charter precluded a right to use force in self- or collective defen

in the absence of effective Security Council intervention and therefore that the 

words ìif an armed attack occursí merely emphasize one contingency with whi

the drafters were particularly concerned. If this is true, the wording of Article 5

betrays a curious way of realizing this alleged intent, despite the ingenious 

suggestion that the word ëëifî should be read as an hypothesis rather than a 

condition. 

43. Brownlie, ìUse of Force,î 241. 

44. Ibid., 195-96. 

45. Ibid., 227-28. 

46. Higgins quoted in Digest of International Law, vol. 12:62. 

47. See Bowett, 188; Farer, 32; Harlow, 93-94; and Higgins, 299-302. Lohr (p

writes, 

The negotiating history at the San Francisco Conference reveals that Article 51 

was intended to incorporate the entire customary law or ìinherent rightí of self

defenseÖ. Accordingly, the ìinherent rightî of self-defense, representing the 

incorporation of customary right, includes reasonable and necessary anticipator

self-defense.

Myres S. McDougal also supports this position, noting that 

there is not the slightest evidence that the framers of the United Nations Charte

by inserting one provision which expressly reserves a right of self-defense, had 

CHAPTER 4 119 
McDougal, ìThe Soviet-Cuban Quarantine and Self-Defense,î American Journal of In

Law 57, no. 3 (July 1963): 599; Oscar Schachter writes, ìIn short, under existing law a

attack is a basic condition of legitimate self-defense. That requirement may be reasona

construed to include both imminent attack (as defined earlier) and indirect attacks.î Sc

ëInternational Rules,î 141. See also Sir Humphrey Waldock, ìThe Regulation of the U

Force by Individual States in International Law,î Recueil des Cours 81, pt. 2 (1952): 4

48. McHugh, 150. 

49. See, for example, US Navy Regulations, 1973, article 0915, which recogni

inherent right to ëcounter either the use of force or an immediate threat of the use of fo

Department of the Air Force, Office of The Judge Advocate General (HQ USAF/JACI

subject: Use of Force against Terrorist Organizations and Personnel, 24 January 1985, 

This letter reads: 

The U.S. position has always been that Article 51 of the UN Charter does not 

create a new principle, but rather reiterates the inherent right of self-defense 

customarily recognized by international law. As such, the right of self-defense 

not limited to responding to an actual armed attack but also includes preemptiv

or anticipatory self-defense. 

50. George P. Shultz quoted in New York Times, 16 January 1986, 8. Lt Col J

Terry, USMC, writes: ìHowever, elimination of the threat of future attacks by terrorist

those camps in the deliquent states could be more effectively justified under the ration

anticipatory self-defense.î Terry, ìAn Appraisal of Lawful Military Response to State

terrorism,íí Naval War College Review 39, no. 3 (May-June 1986): 65. 

51. President Ronald Reaganís letter to Congress, 16 April 1986, quoted in ëëU

Exercises Right of Self-Defense against Libyan Terrorism,î Department of State Bulle

2111 (June 1986): 8. According to Abraham D. Sofaer, ìIn the April 14 operation agai

U.S. forces undertook military action in self-defense against five terrorist-related targe

to preempt and deter Libyaís unlawful aggression through terrorist force against the U

States and its nationals.î Sofaer, ìThe War Powers Resolution and Antiterrorist Opera

Department of State Bulletin 86, no. 2113 (August 1986): 70. 

Great Britain has supported this legal interpretation. As reported by James M. P

ìThe only question her government asked, she said, was whether the attack was legal u

Article 51 of the United Nations Charter and under international law. She said her law

advised her the attack was self-defense and therefore legal. Once that determination w

the U.S. was cleared to send the jets on their way.î Perry, ìThatcher Draws Harsh Crit

Labour, European Allies for Sanctioning Libya Strike,î Wall Street Journal, European 

16 April 1986, 4. By a vote of 79-28 the United Nations General Assembly voted to co

United States action as violative of international law. See ìWhatís News,î Wall Street 

21 November 1986, 1. 

52. See Digest of International Law, vol. 12:49-50. 

53. See James L. Brierly, The Law of Nations, 6th ed., ed. Sir Humphrey Wald

York: Oxford University Press, 1963), 419-20; and remarks of Prof W. Thomas Mallis

CHAPTER 4 120 
54. McDougal, 600. 

55. See Headquarters USAF/JACI ltr, para. 4. 

56. Schachter, ìThe Right of States,î 1634. 

57. Harlow, 93. 

58. See Bowett, 185. 

59. See Brierly, 416-19; and Digest of International Law, vol. 12:1-2. 

60. Bowett, 183. 

61. ìPact of Parisî (Kellogg-Briand Pact), 27 August 1928, Statutes at Large. 

46:2343; League of Nations Treaty Series (LNTS), vol. 94:57. 

62. 23 July 1928 note quoted in Brownlie, ìUse of Force,î 206. For text, see a

William W. Bishop, Jr., International Law: Cases and Materials, 2d ed. (Boston: Little

and Co., 1962). 776-77. 

63. Brierly, 410. 

64. For a discussion of the Caroline case, see Bishop, 777. 

65. Bowett, 187-92; Higgins, 299; Nydell. 485-86. 

66. Myres McDougal quoted by Lt Col Uri Shoham, Israeli Air Force, ìThe Is

Aerial Raid upon the Iraqi Nuclear Reactor and the Right of Self-Defense,î Military L

Review, no. 109 (1985), 199, n. 143. 

67. Franck, 820. See also George Bunn, ìInternational Law and the Use of For

Peacetime: Do U.S. Ships Have to Take the First Hit?î Naval War College Review 39

(May-June 1986): 69-80; and Nydell, 488-90. 

68. See Maizel, 72-73; W. Thomas Mallison, ìLimited Naval Blockade or Qua

Interdiction: National and Collective Defense Claims Valid under International Law,î 

Washington Law Review 31(1962): 348; and Schachter, ìInternational Rules,î 135-36

69. See Maizel, 47-86; and Shoham, 199-223. 

70. See Waldock, 497-98. See also Bender, 134-35. 

71. See Farer, 65. 

72. Yehuda Z. Blum, ìState Response to Acts of Terrorism,î in State Terrorism 

international System, Proceedings of the International Security Council, Tel Aviv, Isra

January 1986 (New York: CAUSA International, 1986), 46. See also Terrorism: How 

Can Win, ed. Benjamin Netanyahu (New York: Farrar, Straus, and Giroux for the Jona

Institute, 1986), 136. 

73. See statement of Ambassador Herbert S. Okun, acting US permanent repre

to the United Nations, in ìSelf-Defense against Terrorismî (US Digest, chap. 14, sec. 

Contemporary Practice of the United States Relating to International Law, American J

International Law 80, no. 3 (July 1986): 632-33. See remark of Julia Willis, deputy ass

legal adviser for European Affairs, Department of State, on 16 February 1979: 

It is clear that the United States recognizes that patterns of attack or infiltration 

can rise to the level of an ìarmed attackí thus justifying a responding use of for

in the exercise of the right of self-defense. The United States made this 

determination both in its legal defense of the United States participation in the 

Viet Nam war, and ití the Cambodian incursion of May, 1970. 

CHAPTER 4 121 
Department, 9374. 

74. See Bowett, 9-10. 

75. ìCommittee on the Use of Force,î 207. 

76. See Bender. 134; Bowett, 53; Higgins. 298; Kelsen, 80; Schachter, ìIntern

Rules,î 132; and George Schwartzenberger, ìThe Fundamental Principles of Internatio

Recueil des Cours 87, pt. 1 (1955), 333. 

77. ìCharter of the United Nations,î art. 33. 

78. Farer, 28. See also Bowett, 269; Kelsen, 80; Nydell, 478; and Schachter, ì

of States,íí 1635-36. 

79. As Schachter writes, 

These considerations indicate the legal dilemma faced in cases where an attack 

has already occurred and the victim state has a choice between using force and 

seeking redress through peaceful means. In my view, a categorical answer to th

problem is not warranted. It would be unreasonable to lay down a principle tha

armed action in self-defense is never permissible as long as peaceful means are 

available. It would also be unreasonable to maintain that self-defense is always 

right when an attack has occurred, irrespective of the availability of peaceful 

means or the time of attack. The difficulty in proposing a general rule does not 

mean that a reasonable answer cannot be given in particular cases. In a case 

involving imminent danger to the lives of captured persons, as in Entebbe or 

arguably in Tehran, it would be unreasonable to maintain that the continued 

pursuit of peaceful measures must preclude armed rescue action. 

Schachter, ìThe Right of States,î 1637. 

80. See Bowett, 269; Brownlie, ìUse of Force,î 265; Farer, 28; Maizel, 71; an

ìTerrorism and the Law,î 920. 

81. See Farer, 28; Schwartzenberger, 334; and Shoham, 193. 

82. Oscar Schachter, ìSelf-Help in International Law: U.S. Action in the Irani

Crisis,î Journal of international Affairs 37, no. 2 (Winter 1984): 242. 

83. Ibid., 243. 

84. See Bowett, 53; Carl Q. Christol and Comdr Charles R. Davis, USN, ìMar

Quarantine: The Naval Interdiction of Offensive Weapons and Associated Materiel to 

1962,î American Journal of international Law 57, no. 3 (July 1963): 540; Farer, 28ó3

Higgins, 303; and Kelsen, 83. 

85. See Bowett, 269. Regarding how much force can be used, Brownlie notes, 

It remains to comment on the element of danger in the doctrine of proportional

If a State is faced with a small-scale attack across its frontier at a time of tensio

in circumstances which do not clearly indicate whether the attack is the result o

mistake or unauthorized act of a subordinate officer, or is the herald of an 

offensive, its reaction might be proportionate to the threat even if it were slight

more forceful that the actual attack, the extra force being a guarantee of 

decisiveness. 

CHAPTER 4 122 
Hence even if force must be proportional to the interest threatened, an escalatio

of force can be justified because an extremely important interest is jeopardized 

when the armed forces of the state are attacked. If the attacks intensify, the righ

of the intervening state to intensify his coercive behavior will increase 

proportionately, and so on ad infinitum. 

Oscar Schachter argues that ìthe criterion of proportionality leaves a broad 

margin of discretion to a defending state but it also imposes well-understood 

limits.î Schachter, ìInternational Rules,î 120. 

86. Schachter, ìThe Right of States,î 1638. 

87. See Bender, 137; Maizel, 73; and Schachter, ìInternational Rules,î 132. K

80) writes, 

It may prove reasonable only if it is proportionate to the end of protecting those 

interests (rights) that arc endangered. The use of force in excess of this purpose 

forbidden, since action taken in self-defense is held to have a strictly preventati

character. 

88. See Secretary of State Shultzís remarks in ìUS Exercises Right of Self-De

89. Secretary of Defense Caspar Weinberger quoted in ìUS Exercises Right of 

Defense,î 4. 

90. See Brownlie, ìUse of Force,íí229; Bender, 134; Mallison, 360; and Nyde

91. See Bowett, 198. 

92. See ìThe [International Military] Tribunal (Nuremberg), Judgment and Se

American Journal of International Law 41 (1947): 207. See also Bender, 132-33; and B

ìUse of Force,î 208. 

93. Bowett (p. 105) writes, ìAny state invoking the right of self-defence must 

prepared to justify the measures it takes in pursuance of that right before an impartial 

international tribunal.î Brierly (p. 407) argues, ìBut if it must necessarily be left to eve

decide in the first instance whether or in what measure an occasion calls for defensive 

does not follow that the decision may not afterwards be reviewed by the law in the ligh

circumstances.î Higgins (p. 304) observes that ìtemporarily, then a State must be judg

own cause. However, in order that the right shall not be abused, it is essential that it be 

to international review.î

94. See Brierly, 416; Franck, 816-18; Kelsen, 63; and Nydell. 467-68. 

95. George P. Shultz, ìTerrorism in the Modem World,î Terrorism: An Intern

Journal 7, no. 4 (1985): 432. 

96. Bowett, 196. 

97. Ibid., 195. See also Farer, 35-36; Higgins, 207-98; and Nydell, 466-67. 

98. Eugene V. Rostowís remarks in Proceedings of the 77th Annual Meeting, 

also Bishop, 777; and Bowett, v. 

99. See Schachter, ìInternational Rules,î 119-20. 

100. Brownlie, ìUse of Force,î 254. 

CHAPTER 4 123 
COLLECTIVE USE OF FORCE: ACTIONS STATES CAN TAKE TOG

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

North America shall be considered an attack against all of them; and consequen

they agree that, if such an armed attack occurs, each of them, in exercise of the 

right of individual or collective self-defense recognized by Article 51 of the 

United Nations Charter, will assist the Party or Parties so attacked by taking 

forthwith, individually and in concert with the other Parties, such action as it 

deems necessary, including the use of armed force, to restore and maintain the 

security of the North Atlantic area. 

North Atlantic Treaty, artic

In the event of an armed attack in Europe on one or more of the States Panics t

the Treaty by any State or group of States, each State Party to the Treaty shall, 

the exercise of the right of individual or collective self-defence, in accordance 

with Article 51 of the United Nations Charter, afford the State or States so 

attacked immediate assistance, individually in agreement with other States Part

to the Treaty, by all means it considers necessary, including the use of armed 

force. 

Warsaw Pact Treaty, artic

If two or more states were to act in concert to use armed force in response to in

terrorism or against state sponsors or supporters of terrorism, three potential but very d

legal concepts exist to justify their course of action. They are collective self-defense un

51 (chapter VII) of the United Nations Charter, regional enforcement action under arti

(chapter VIII) of the Charter, and regional peacekeeping action under article 52 (chapt

These three legal concepts embody two broad approaches. The first approach f

self-defense while the second, containing two different legal concepts under chapter V

Charter, focuses on regional organizations. The distinction between these two approac

confusing. For example, although they have a regional character, the North Atlantic Tr

Organization (NATO) and the Warsaw Pact are organized as collective self-defense 

arrangements under article 51. The Organization of American States (OAS), the Organ

African Unity (OAU), and the League of Arab States are regional organizations that ar

the umbrella of chapter VIII of the UN Charter. However, during the 1962 Cuban miss

the OAS, a regional organization, acted in a collective self-defense capacity. 

D. W. Bowett, president of Queenís College, Cambridge University, and lectur

faculty of law at Cambridge and Manchester universities, believes that the confusion c

CHAPTER 5 124 
IfÖ we start from the premiss that members of an organization, whether a 

regional arrangement or not, can always exercise this right of self-defence, then 

the relevant question becomes not ìWhat sort of organization is this?î but rathe

ìWhat function is it exercising?î2

Bowett adds that the reverse is also true, ìthat it is perfectly possible for an organizatio

primarily designed for collective self-defence to be used for enforcement action if the 

agree.î3 

In undertaking joint action, the states involved must understand the difference b

collective self-defense on the one hand and the regional enforcement or peacekeeping 

under chapter VIII on the other. The underlying legal conditions of each option are not 

Thus, selecting an option will be affected by the factual circumstances prevailing at th

This chapter reviews the options for joint action. 

What Is Collective Self-Defense? 

On 3 March 1945, the inter-American states signed the Act of Chapultepec. In 

the purpose of this agreement to the Senate Foreign Relations Committee, John Foster 

observed, ìThe Monroe Doctrine has to an extent been enlarged or is in the process of 

enlargement as a result of the Mexico Conference and the declaration of Chapultepec, 

doctrine of self-defense was enlarged to include the doctrine of collective self-defense 

the view was taken that an attack upon any of the republics of this hemisphere was an 

upon them all.î4

Two months after Chapultepec, at the San Francisco Conference, the issue aros

how this concept of collective self-defense would be preserved under the United Natio

Since article 103 of the Charter established the basic rule that obligations under the Ch

would prevail over any inconsistent treaty,5

 the Charter had to include language regard

collective self-defense. That language is embodied in article 51, which provides for ìin

or collective self-defense.î6 When first proposed, however, article 51 was drafted as pa

chapter VIII of the Charter. If it had remained part of chapter VIII, collective self-defe

have been indistinguishable from regional enforcement action and would have been su

the Charterís limitations on the latter type of action. But, as a result of a debate on this 

article 51 was moved from the first article in chapter VIII to the last article in chapter V

Collective self-defense and the Act of Chapultepec were given recognition by the Char

to the concept of self-defense itself and not to be viewed as a kind of regional enforcem

action. In the words of John Foster Dulles, who attended the San Francisco Conferenc

delegate, ìAt San Francisco, one of the things which we stood for most stoutly, and wh

achieved with the greatest difficulty, was a recognition of the fact that the doctrine of s

defense, enlarged at Chapultepec to be a doctrine of collective self-defense, could stan

unimpaired and could function without the approval of the Security Council.î7 

CHAPTER 5 125 
international law and the practice of states spell out the conditions necessary to exercis

collective self-defense. All the conditions for the exercise of legitimate individual self-

as described in chapter 4, are requirements for collective self-defense. 

Some scholars argue that States must satisfy an additional condition if collectiv

defense is to be legitimate. They imply that an individual and collective action differ in 

essential way by asking: What is the unique condition that authorizes a third party to in

a dispute in support of another state that is the object of an actual or imminent armed a

Three schools of thought have emerged on this point. The first holds that a stat

legal right of collective self-defense separate from individual self-defense. The late Ha

former professor of law at the University of California at Berkeley, is the chief propon

view. He asserts that self-defense ìis a right of the attacked or threatenedÖ state, and 

If several states are acting in collective self-defense, then for them to do so each must 

in its own individual self-defense. States unable to claim in their own right to be acting 

individual self-defenseóalthough they may have an alliance relationship with the vict

a strong national interest in the matterócannot act in support of another state; collectiv

defense can never be more than the sum of states acting in their individual self-defense

Stone, Australian jurisprudent on the law of force, summed up this position in these w

ìUnder general international law, a State has no right of self-defense in respect of an a

attack upon a third State. ì9 

A second school of thought, whose chief spokesman is D. W. Bowett, holds th

right of self-defence is available only to a state which defends its own substantive righ

school is less restrictive than the Kelsen school but it is not without strict limitations. A

Bowett does not believe that a state must be able to assert individual self-defense to pa

a collective self-defense action, he does believe that a close nexus must exist between 

assisting and victimized state. He refers to this relationship as an interdependence of th

securities of the states. 

Bowett believes that a preexisting collective self-defense treaty arrangement is 

prerequisite, butóand this is a critically important butóhe finds that simply concludin

collective self-defense treaty will not suffice.11 Rather, the interests of the attacked sta

ìso intrinsically bound up with the territorial integrity and political independence of an

State that the defence by the latter State of the former is truly ëself-defence.î12 

Bowett has identified three relevant factors in making this determination: geog

political, and strategic-economic proximity.13 These factors are weighed to answer the 

important question: ìWhether an attack upon one state in fact threatens the security of 

other.íí14 If this test cannot be satisfied, then collective self-defense is illegitimate.í15

The Bowett school believes that collective self-defense must be interpreted nar

otherwise the Charter system would be jeopardized. He writes, 

CHAPTER 5 126 
United Nations, lies in the possibility that antagonistic groups may reach a 

decision that action is necessary ëëto maintain or restore international peace and 

securityî and under a claim of right plunge the world into war.16

Additionally, this school views freedom to structure alliances, using collective self-def

legal foundation, as undermining the Charterís centralized collective security system v

the Security Council.17 

The Kelsen and Bowett schools of thought are advanced from time to time toda

third school of thought has emerged. This school holds that the key ìlegal issue is not 

the assisting state has a right of individual defense but only whether the state receiving 

victim of an external attack.î18 Columbia University law professor Oscar Schachter re

rule in these words, ìThe law clearly allows collective self-defense, so that a state may 

victim of actual aggression.î19 This third school of thought reflects the practice of state

NATO and the Warsaw Pact are based upon this third schoolís liberal approach to inte

the UN Charter. Moreover, this third school has received the support of numerous reco

international legal scholars to include Moore, McDougal, Schachter, and Waldock.20 

Additionally, this third school does not require a preexisting collective self-def

arrangement as a condition of assistance. Prof John Norton Moore, University of Virgi

School, writes, ìCollective defense, whether pursuant to Article 51 or not, does not req

existing regional defense agreement.î21 Sir Humphrey Waldock. former president of th

International Court of Justice, agrees: ìThe word ëcollectiveí does not appear to have b

intended to cover only contractual systems of self-defense and any assistance to a mem

engaged in legitimate self-defense appears to be authorized by Article 51.î22 In sum, th

additional legal condition that must be satisfied to exercise legitimate collective self-d

contrast to individual self-defense, is that the assisting state must be aiding a victim sta

engaging in legitimate self-defense. 

Regional Enforcement Action 

Regional enforcement action refers to actions undertaken in accordance with ar

chapter VIII of the United Nations Charter. A regional organization is ìany grouping o

some defined geographical context with historic, ethnic or sociopolitical ties, which ha

acts in concert through permanent institutions to foster unity in a wide range of commo

concerns. î23 Should a regional organization seek to undertake an enforcement action w

region, it must comply with the conditions set forth in article 53. 

Since only the Security Council has authority under the Charter to enforce inter

law, one requirement of article 53 is prior approval by the Security Council of any enf

action before it is taken. Individual and collective self-defense actions taken under arti

requires no prior Security Council approval. Therefore, a regional enforcement action, 

self-defense action, is subject to the exercise of the right of veto. Failure to obtain a fav

CHAPTER 5 127 
approval is to act in violation of international law. 

An additional requirement in article 54 of the Charter is that the Security Coun

all times be kept fully informed of regional enforcement actions taken under article 53

is in marked contrast to the provision in article 51 concerning individual and collective 

defense, which requires only after-the-fact reporting of measures taken. 25

Regional Peacekeeping 

Because of the requirement that prior Security Council approval be obtained, re

enforcement actions are highly unlikely. An alternative course of action is to pursue re

peacekeeping action under article 52 of the Charter. Regional peacekeeping differs fro

enforcement action in significant ways. First, regional peacekeeping is not directed at 

anything. It is directed at restoring law and order in situations where governmental aut

broken down or collapsed. After a review of the Security Council official record on th

Dominican Republic crisis of May and June 1965, Moore concluded that ìdespite the 

argument to the contrary, there is substantial evidence that regional peacekeeping actio

undertaken in a setting of breakdown of authority are lawful under the UN Charter. Th

been the consistent position of the United States and the OAS.î26 

Second, since it is not an enforcement action under article 53 but a peacekeepin

under article 52, the states involved do not need to obtain prior approval of the action f

Security Council. The reporting requirement of article 54, however, applies to both art

and 53; therefore, the Security Council must be kept fully informed at all times of the 

peacekeeping action undertaken. 

Third, article 52, paragraph 2, provides that regional peacekeeping actions be t

last resort. Every effort to achieve peaceful settlement of the local situation must be att

Of course, fruitless efforts need not be pursued. 

Fourth, regional peacekeeping must result from an invitation from the lawfully 

constituted government. The International Court of Justice held in Certain Expenses of 

United Nations that Peacekeeping actions not directed against a state but undertaken w

permission of constitutional authorities were not an ëenforcement actioní.î27 However, 

government no longer exists because of the breakdown of law and Order or through its 

then such a request is not a precondition. Moore notes, regarding the 1983 Grenada op

that 

the core of the OECS [Organization of Eastern Caribbean States] peacekeeping 

and humanitarian protective action was the breakdown of governmental author

and threats to the safety of civilians in Grenada. In such a setting, it is not requ

for lawful regional peacekeeping under the UN Charter, the OAS Charter or th

OECS Treaty that there be a request from a nonexistent government.28

CHAPTER 5 128 
be consistent with the Purposes and Principles of the United Nations.

In the Grenad

David R. Robinson, then Department of State legal adviser, stressed the point that ìreg

organizations have competence to take measures to maintain international peace and se

consistent with the purposes and principles of the UN and OAS Charters. î30 Moore al

on this requirement when he wrote concerning Grenada, ìA major qualification is that 

consistent with the purposes and principles of the United Nations, such actions must b

to further internationally observe elections and self-determination of the people of the 

rather than the hegemony of a foreign state or imposition of a particular government. î

Summary and Transition 

Nations seeking to resort to the use of armed force in concert could seek to sup

actions by relying on any one of three basic legal concepts: collective self-defense und

51 (chapter VII) of the UN Charter, regional enforcement action under article 53 (chap

and regional peacekeeping under article 52 (chapter VIII). Each has different condition

use. Whether any of these options will prove useful in countering terrorism will depen

upon resolving an initial nonlegal question: Do states have the will to act in concert?

The next chapter examines several of legal arguments not considered thus far th

be advanced to justify the lawful use of force abroad. Chapter 6 completes the array of 

arguments that could be advanced for the use of force in contemporary international re

CHAPTER 5 129 
1. See John Norton Moore, ìGrenada and the International Double Standa

American Journal of International Law 78, no. 1 (January 1984): 153. 

2. D. W. Bowett, Self-Defence in International Law (New York: Frederick 

Praeger, 1958), 222. 

3. Ibid., 223. See testimony of Warren Austin, ambassador to the United N

before the US Congress on the North Atlantic Treaty, in Department of State, Office o

Adviser, Digest of international Law, vol. 12, ed. Marjorie M. Whiteman (Washington

August 1971), 95, State Department, 8586. Austin stated, ìIt is not necessary to define 

organization of the North Atlantic community as exclusively a regional arrangement, o

exclusively a group for collective self-defense, since activities under both Article 51 an

VIII are comprehended in the treaty.î 

4. Testimony of John Foster Dulles, delegate to the San Francisco Confere

before Senate Foreign Relations Committee during hearings on the Charter of the Unit

Nations, 79th Cong., 1st sess., July 1945, quoted in Digest of International Law, vol. 1

5. ìCharter of the United Nations,î article 103, 26 June 1945. Statutes at L

59:1031; United States Treaty Series (TS) 993; Department of State, Treaties and Othe

International Agreements, 1776-1949, compiled under the direction of Charles I. Beva

(hereinafter Bevans), vol. 3, Multilateral, 1931-1945, 1153; ìCharter of the United Na

Amendments to Articles 23, 27, and 67,î 31 August 1965, Department of State, Treati

Other International Acts Series (TIAS) 5857, United States Treaties and Other Interna

Agreements (UST), vol. 16, pt. 2, 1134, United Nations Treaty Series (UNTS), Treatie

Other International Agreements Reported and Filed or Recorded with the Secretariat o

United Nations, vol. 557 (1966), no. 8132, 143; ìCharter of the United Nations: Amen

Article 109,íí 12 June 1969, TIAS 6529, UST, vol. 19, Pt. 5, 5450; ìCharter of the Un

Nations: Amendments to Article 61,î 24 September 1973, TIAS 7739, UST, vol. 24, p

See also Moore, 158. 

6. ëCharter of the United Nations,íí art. 51. 

7. Dulles testimony, Digest of International Law, vol. 12:85. See also Bow

Defence, 182-83; and International Law Association, American Branch, Report of the 

Committee on the Use of Force in Relations among States,î in 1985-86 Proceedings an

Committee Reports (New York: International Law Association, American Branch, 198

8. Hans Kelsen, ìCollective Security under International Law,î US Naval 

College International Law Studies (1956), 61. 

9. Julius Stone, Legal Controls of International Conflicts (New York: Rhi

Co., 1954), 245. 

10. D. W. Bowett, ìCollective Self-Defence under the Charter of the United Na

British Year Book of International Law, 1955-1956, vol. 32 (Oxford, England: Oxford 

University Press for International Affairs, 1957), 150. See also Bowett, Self-Defence, 

Max Sorensen, Manual of Public International Law (New York: St. Martinís Press, 19

69. 

11. See Bowett, Self-Defence, 217 and 235. 

CHAPTER 5 130 
England: Oxford University Press for Royal Institute for International Affairs, 1962), 3

13. See Bowett, ìCollective Self-Defence,î 130. 

14. Bowett, Self-Defence, 238. 

15. For a discussion, see Higgins, 307. 

16. Bowett, Self-Defence, 244. 

17. Ibid., 218. 

18. ìReport on Use of Force,î 208. 

19. Oscar Schachter, ìIn Defense of International Rules on the Use of Forc

University of Chicago Law Review 53, no. 1 (Winter 1986): 120. 

20. See John Norton Moore, ìThe Lawfulness of Military Assistance to the 

of Vietnam,î in The Vietnam War and International Law, ed. Richard A. Falk, vol. 1 (

N.J.: Princeton University Press, 1968), 237-70; Myres S. McDougal and Florentino P

Feliciano, Law and Minimum World Public Order (New Haven, Conn.: Yale Universi

1961), 248; Oscar Schachter, ìThe Right of States to Use Armed Force,î Michigan La

82 (April-May 1984): 1638-39; and Sir Humphrey Waldock. ìThe Regulation of the U

Force by Individual States in International Law,î Recueil des Cours 81, pt. 2 (1952), 5

21. Moore, ìLawfulness of Military Assistance,íí 237. 

22. Waldock, 504. 

23. Thomas M. Franck, ìWho Killed Article 2(4)? or: Changing Norms Go

the Use of Force by States,î American Journal of International Law 64, no. 4 (October 

832. 

24. See ìCharter of the United Nations,î art. 53. See also for discussion, Bo

Defence, 241-42; Lloyd N. Cutler, ìThe Right to Intervene,íí Foreign Affairs 64, no. 1 

1985): 96; Higgins, 270-71 and 297-98; Schachter, ìThe Right of States,î 1641; and G

von Glahn, Law Among Nations, 3d ed. (New York: Macmillan Publishing Co., 1976)

25. See ìCharter of the United Nations,î art. 54. See also Bowett, Self-Def

20. 

26. Moore, ìGrenada,íí 156. Moore also quotes Leland M. Goodrich, E. Ha

A. P. Simons from their book Charter of the United Nations written in 1969 as follows

In the [Security] Council discussion [concerning the Dominican crisis of 1965]

one representative pointed out that the expression ìenforcement actionî 

presupposed the existence of something to be enforced, and that consequently 

enforcement of a recommendation, as contained in the OAS resolution, was a 

contradiction in terms. He also stressed that the OAS was carrying out a 

conciliatory mission, its forces were not there in support of any claim against th

state, and its function was that of pacific settlement under Article 52 and not th

of enforcement under Article 53. This appears to have been the view of the 

majority of Council members. 

Moore, ìGrenada,î 155. 

27. Certain Expenses of the United Nations, advisory opinion, 1962 ICJ 15

28. Moore, ìGrenada,íí 159. The problems created for a nation that has no 

organization through which it can work are evident in the comparison between the US 

CHAPTER 5 131 
US officials repeatedly and consciously rejected the article 51 self-defense 

argument as a legal basis for the action. The administration was concerned that 

reliance on the doctrine of self-defense would set a bad precedent and weaken 

requirement that self-defense not be invoked except in case of ëëarmed attack.î 

Instead, the U.S. action was explained in terms of the collective security

provisions of the OAS [Organization of American States] Charter. Israel, 

however, had no collective security device to invoke, and had only self-defense 

under article 51 as a justification. 

Nydell, ìTensions between International Law and Strategic Security: Implicati

Israelís Preemptive Raid on Iraqís Nuclear Reactor,î Virginia Journal of International 

no. 2 (1984): 485. 

29. ëëCharter of the United Nations,î art. 52, para. 1. See Moore, ìGrenada

30. See letter of David R. Robinson, 10 February 1984, in ìResort to War a

Force: Organization of Eastern Caribbean States: Grenada 1983î (US Digest, chap. 14

Contemporary Practice of the United States Relating to International Law, American J

International Law 78, no.3 (July 1984): 662. 

31. Moore, ëëGrenada,î 155. 

CHAPTER 5 132 
OTHER LEGAL ARGUMENTS TO JUSTIFY USE OF FORCE 

States have a duty to refrain from acts of [peacetime] reprisal involving the use 

force. 

United Nations General Assem

Resolution 2625, 25th Sess

Another privilege of a citizen of the United States is to demand the care and 

protection of the Federal Government over his life, liberty, and property when 

the high seas or within the jurisdiction of a foreign government. 

Slaughterhouse ca

Citizenship is membership of a political society and implies a duty of allegianc

on the part of the members and a duty of protection on the part of society. 

Luria v. United St

Lauterpacht, the great protagonist for the recognition of human rights, felt boun

to concede that the doctrine of humanitarian intervention ënever became a fully 

recognized pan of positive international law.î 

James L. Bri

The preceding two chapters analyzed various legal arguments to support the leg

use of armed force in the contemporary international environment. Chapter 4 looked a

concept of individual self-defense while chapter 5 reviewed the ways in which states m

concert. This chapter considers the remaining legal arguments that could be made to ju

resort to armed force: invitation, peacetime reprisal, protection of oneís own nationals

humanitarian intervention, hot pursuit, piracy, and self-help. Some of these have a high 

acceptance level by the world community as measured by the customary practice of sta

the writings of respected international law scholars; others do not. Understanding these 

arguments in conjunction with those previously discussed will provide a panorama of 

international law regarding the use of force today. 

CHAPTER 6 133 
When consent is given by a host state to another stateís foreign military presen

activity within its territory, then as a matter of law no intervention or interposition occ

foreign armed forces are said to be invited. Invitation is a right of every sovereign and 

given in advance exonerates the foreign state from international responsibility as an in

Use of armed force abroad may be legitimated by invitation. 

The difficulty with the concept of invitation, a legal concept that has an extrem

acceptance level, is in its application to factual circumstances. Three basic conditions m

for there to be a valid invitation: it must be made by the lawful government, the officia

extending the invitation must have the constitutional authority to do so, and it must be 

made without coercion or intimidation.1

Invitation may be a very useful approach to dealing with international terrorism

especially since some countries may lack the technological and military means of resp

modern terrorists and their state sponsors and supporters. A good example of this situa

Somaliaís inviting the Federal Republic of Germany to rescue the hostages of the Luft

flight hijacked to Mogadishu in 1977.2

Unlike the Mogadishu incident, many situations in which invitation is claimed 

unclear because the facts underlying the invitation are questionable or uncertain. The f

examples demonstrate this point. The 1961 intervention by the United Kingdom at the 

Kuwait has been criticized because ìno bona fide invitation could be made or received

Kuwait was a part of Iraq, and not a sovereign State at all.î3 The Hungarian governmen

considered ìincapable of making a free invitationî to the Soviet Union in 1956.4 The a

1968 Czechoslovakian invitation to the Soviets evaporated in denials by the Prague go

and the USSR had to find other grounds to justify its action. Columbia University law 

Oscar Schachter writes, 

When the Soviet Union sent troops into Czechoslovakia in 1968, for example, 

asserted that this action came in response to that governmentís ìurgentî reques

for assistance. After this justification had been repudiated repeatedly byte 

Czechoslovak National Assembly, and was specifically disavowed in a messag

from the Czechoslovak Foreign Ministry to the [UN] Security Council, the Sov

Union relied instead on a more general claim of self-defense under the U.N. 

Charter. Not surprisingly, most outsiders viewed many of these legal contentio

skeptically.5

Free consent is integral to invitation. It does not exist in circumstances such as those d

by Henry Fielding in Jonathan Wild that he ìwould have ravished her, if she had not, b

compliance, prevented him.î 

The United States claimed invitation as one of the grounds justifying its 1983 a

Grenada. Much has been written about this case because so many of the facts bearing o

CHAPTER 6 134 
the governor-general, an appointee of the queen of England. Was the request made bef

after the decision to intervene? Even if it were not, is it sufficient that the request was m

to the actual intervention? What was the nature of Scoonís request? The Economist qu

Scoons as saying, ìWhat I did ask for was not an invasion but help from the outside.î6

The United States relied upon two other arguments in support of the Grenada o

collective self-defense and protection of oneís own nationalsómore than 1,000 threate

Americans were on the island, including 800 US students studying medicine there. Ho

most foreign governments, including many Western allies, questioned the US action. T

General Assembly, by a vote of 108 to 9, adopted a resolution on 2 November 1983 co

the intervention as a violation of international law.7 Although invitation as a legal conc

accepted by the international community, the international community carefully scrutin

claim of invitation and resolves any doubtful facts against the state using force. 

Peacetime Reprisal 

Peacetime reprisal is ìsuch injurious and otherwise internationally illegal acts o

State against another as are exceptionally permitted for the purpose of compelling the 

consent to a satisfactory settlement of a difference created by its own international 

delinquency.î8 This definition embodies three important elements of peacetime reprisa

state A has committed a wrong against state B. and state B is taking the reprisal agains

Second, the use of armed force by state B would itself be illegal under international law 

not for the original wrong of state A. Third, the purpose of the reprisal is to obtain a sa

settlement of the differences between the two states. 

Peacetime reprisals have their roots in medieval times. From the fourteenth to t

eighteenth century the system of reprisal operated as a private right. When individuals 

injury abroad from a foreign state and were unable to obtain redress, they would then s

authority from their sovereign to take reprisal against the foreign sovereign. This conc

recognized in the United States Constitution, which provides in article 1, section 8, tha

Congress shall have the power to ìgrant Letters of Marque and Reprisal.î By the early 

special or private reprisals were increasingly subject to restricted use. By the nineteent

only states were permitted to take reprisals. In the Treaty of Paris of 1856 states agreed 

abolishing the right of private reprisal. In the words of Gerhard von Glahn, professor o

science at the University of Minnesota at Duluth, ìSince [1856], reprisals by private in

have been illegal and only states may have recourse to this methodÖ. Such action mu

taken either on behalf of the state itself, if it believes itself to have been injured illegall

the state on behalf of its injured citizens.î9

Although accepted in classical customary international law, reprisals have been 

criticism on the following grounds. First, forcible reprisal is a remedy available only to 

strong over the weak. Second, it allows the injured state to both judge the wrong done 

and to extract the reparation for that wrong. Third, reprisals connote an eye for an eye, 

CHAPTER 6 135 
Despite this narrowing of its legitimacy, armed peacetime reprisal not only rem

acceptable conduct in international law but also in practice Between 1811 and 1911 th

Department of State records that the United States engaged in peacetime reprisal in no 

48 instances. Such interventions were becoming commonplace and the reasons for them 

important. In 1914 the United States landed forces in Mexico because Gen Victoriano 

refused to apologize to an American sailor. 11

During the nineteenth and early twentieth centuries, frequent peacetime reprisa

associated with colonialism pointed to the need for clarifying the conditions necessary 

to forcible reprisal in peacetime. The landmark case for restatement of the customary r

reprisal arose out of the 1928 Portuguese-German arbitration of the 1914 Naulila incid

Portuguese Angola. In October 1914, at a time when Portugal was a neutral in World W

German official and two German military members were killed and two others interne

Portuguese frontier outpost. The governor-general of South-West Africa ordered a rep

sent German forces into Angola. The German forces destroyed a Portuguese fort at Cu

four minor posts. The Portuguese felt compelled to withdraw. A minor native uprising 

pillaging followed. Both countries, thereafter, agreed to submit the matter to arbitration

The tribunal that arbitrated the Naulila incident issued the ìmost authoritative s

of the customary law of reprisals.î13 The tribunal laid down three conditions for repris

previous illegal act; a demand for redressóîthe necessity of resorting to force cannot 

established if the possibility of obtaining redress by other means is not even exploredî

act of reprisal must have been proportional, that is, ìthe measure adopted must not be e

in the sense of being out of all proportion to the provocation received.î14 The German 

did not meet these conditions and the arbitral award was in favor of Portugal. Although 

Naulila arbitration established the basic conditions for peacetime reprisals, customary 

international law and the writings of recognized scholars delineate other conditions tha

inherent to any legitimate act of reprisal. 

The action must be taken in peacetime. The action must be taken without bellig

intent in a peacetime context. There is no declaration of war and no intent to recognize 

armed conflict. In the words of the late Sir Hersch Lauterpacht, British international la

and judge of the International Court of Justice, the purpose of peacetime reprisal is ìfo

international delinquencies as they thought not important enough for a declaration of w

important to be entirely overlooked.î15 Peacetime reprisal must be distinguished from 

time of war or armed conflictóthe latter are governed by a different set of circumstan

separate body of international law with distinct rules. 

The action must be taken in response to prior illegal conduct of another state or 

recognized international entity. This condition was considered basic in the Naulila inci

arbitration. Without a prior illegal act, the reprisal cannot be justified. It is the prior ille

that makes the reprisal, which is an otherwise unlawful act, legal.16

CHAPTER 6 136 
punishment. Reprisals are not taken in response to actual or imminent armed attack. Th

taken to extract reparations or to compel the delinquent state to comply with internatio

in future conduct. Although this difference seems clear enough, in practice it may not b

Whether a state acts to protect itself or punish the delinquent state is not always so evi

W. Bowett, president of Queenís College, Cambridge University, and lecturer in law a

Cambridge and Manchester universities, describes the problem thusly: 

To take what is now perhaps the classic case, let us suppose that guerrilla activ

from State A, directed against State B. eventually leads to a military action wit

State Aís territory by which State B hopes to destroy the guerrilla bases from

which the previous attacks have come and to discourage further attacks. Clearl

this military action cannot strictly be regarded as self-defense in the context of 

previous guerrilla activities; they are past, whatever damage has occurred as a 

result cannot now be prevented and no new military action by State B can reall

be regarded as a defense against attacks in the past. But if one broadens the 

context and looks at the whole situation between these two states, cannot it be 

said that the destruction of the guerrilla bases represents a proper, proportionat

means of defenseófor the security of the state is involvedóagainst future and 

(given the whole context of past activities) certain attacks?

17

The initial determinative factor is the way in which the acting state seeks to characteriz

action. Does the state view its use of force as self-defense in accordance with the custo

of international law governing self-defense and in compliance with article 51 of the Ch

does the state see its use of force as an act of reprisal? 

The action must be preceded by a demand to redress the wrong. The delinquen

must be advised of the wrong, demand must be made for reparations or changed condu

delinquent state must be given reasonable time to comply. Elements of this requiremen

publication of the demand and a conclusion, through action or inaction, that the deman

refused.18

The action must be taken as a last resort. This condition may be viewed as anot

looking at the previous condition but it stresses the importance of peaceful settlement. 

ìare not to be started unless and until efforts at a peaceful settlement of the dispute hav

failed.î19 Reprisals are admissible only after negotiations have taken place. 

The action must be halted as soon as its objective is attained. The purpose of re

obtain redress through satisfaction of demands. When those demands are satisfied, be 

reparations or altered conduct, the reprisal must cease.20

The action must be proportional to the original injury suffered. On the one han

reprisal is not available for redress of trivial rights. On the other hand, when armed rep

available it must be measured and not excessive in the sense of being out of proportion 

CHAPTER 6 137 
The action must show due regard for third states. A reprisal must be employed 

manner as not to injure third states intentionally. If a reprisal damages property of a th

injures or kills third state nationals, the state taking the reprisal may be liable for the re

damages.22

The action must not be taken against protected persons. Certain acts of reprisal 

justified, as for example, reprisals against diplomatic personnel whose person and prop

universally protected. Some writers see this restriction extending to any act that would 

human rights or certain standards of safety and life, such as those in the air or at sea.23

The action cannot be in response to a prior (lawful reprisal. Needless to say, a s

the object of a lawful reprisal cannot itself take a reprisal since one of the conditions o

is a prior unlawful act. Of course, the conundrum is whether a reprisal is lawful.24

Status of Reprisal in Contemporary 

International Law

What is the legal status of reprisal today? It has a very low level of acceptabilit

general view is that articles 2(3) and 2(4) of the UN Chatter have outlawed peacetime 

UN General Assembly resolutions have called on states to refrain from its use.25 

When states have relied upon it, the UN Security Council has condemned their 

soundly.26 Bowett, Brierly, Brownlie, Falk, Harlow, Higgins, McDougal, Wright, and m

recognized scholars agree that peacetime reprisals are forbidden by contemporary inte

law.27 The United States has supported this view. On 29 May 1974 Kenneth Rush, acti

secretary of state, in responding to a suggestion from Prof Eugene Rostow, Yale Unive

School, that the United States endorse the right of peacetime reprisal, argued as follow

You would add a complementary principle, namely, that where a state cannot o

will riot fulfill its international legal obligations to prevent the use of its territor

for the unlawful exercise of force, the wronged state is entitled to use force, by 

way of reprisal, to redress, by self-help, the violation of international law which 

has suffered. 

As you know, [UN General Assembly] Resolution 2625 also contains the 

following categorical statement, ë States have a duty to refrain from acts of 

reprisal involving the use of force.î That injunction codifies resolutions of the 

Security Council which have so affirmed. 

The United States has supported and supports the foregoing principle. 

CHAPTER 6 138 
distinction between acts of lawful self-defense and unlawful reprisal.

Again on 16 February 1979, Julia W. Willis, deputy assistant legal adviser for Europea

in the Department of State, concluded, after an exhaustive study of the issue of reprisa

United States has taken the categorical position that reprisals involving the use of force 

illegal under international law.î29

A few states, such as Israel, have claimed the right to reprisal.30 Writers like Pr

A. Falk of Princeton University have noted that taking this position has placed Israel in 

adversarial relationship with the international community.31 To mitigate these negative 

Falk suggests that Israel conduct its reprisals within a framework of 12 principles.32 Fa

arguing that Israelís reprisals will, thereby, become lawful; only that they will be less o

Some, like Bowett, are becoming increasingly concerned about recurring acts o

since the UN Charter entered into force. He identified 22 incidents of reprisal from 19

that were discussed and acted upon by the Security Council.33 Bowett fears that ìif this 

continues, we shall achieve a position in which, while reprisals remain illegal de jure, 

become accepted de facto.î34

Finally, although peacetime reprisals are unlawful, reprisals in time of armed c

not. Reprisals in time of armed conflict are severely regulated by the law of armed con

including, in particular, the 1949 Geneva conventions. Such reprisals may not be taken

example, against protected persons including prisoners of war, medical and chaplain p

civilians in occupied territory, or sick, wounded, or shipwrecked persons.35 But, if a sta

armed conflict exists, then reprisals become a legal possibility. 

Protecting Oneís Own Nationals 

Customary international law has long ìrecognized the right of a State to emplo

forces for the protection of its nationals abroad in situations where the State of their re

either unable or unwilling to grant them protection. ì36 Judge Max Huber in the Spanis

Moroccan claims (1925) noted that in such circumstances territorial sovereignty must 

wrote, ìHowever, it cannot be denied that at a certain point the interest of a State in ex

protection over its nationals and their pro-petty takes precedence over territorial sovere

The United States has used its armed forces frequently for this purpose: in 1814 and 18

Spanish West Florida; in 1836, 1874, 1877, 1878, 1880, 1882, 1890, and l9l4 in Mexic

in Korea; in 1899 and 1900 in China; and in 1899 in Nicaragua. 

As an incidence of citizenship, the Supreme Court recognized the duty of the g

to protect United States nationals abroad.38 The theory emerged that injury to a nationa

equivalent to an injury to the state. ìThere is no great difference betweenÖ.ëprotection 

nationalsí,î writes Oxford University lecturer in law Ian Brownlie, and ìëdirect injuryí 

CHAPTER 6 139 
The debate over whether ìprotection of oneís own nationalsî survived under th

of the United Nations is part of the debate between the restrictionist and expansivist sc

discussed in chapter 4. The prevailing view, which corresponds to that of the expansiv

considers ìprotection of oneís own nationalsî as part of the customary right of self-def

article 51 and sees ìselfí in self-defense as including the nationals of a state.40

The premise that self-defense includes the right to protect one nationals is supp

the United States, West Germany, Great Britain, Belgium, Egypt, Israel, and other stat

supported by most Latin American states, which have experienced the abuses of this fo

self-defense, as a pretext for intervention.41 In recent years protection of oneís own nat

served as one of the central arguments justifying hostage rescue efforts: the Israelis in 

Entebbe operation; the West Germans in 1977 in Mogadishu; the Egyptians in 1978 at 

Cyprus; and the United States in the Iranian hostage rescue attempt of 1980 and the Gr

operation of 1983. The opinion of the International Court of Justice in the Iranian host

supports the position that a state acting to protect its own nationals is not acting in viol

international law, including the Charter.42 

The United States also relied upon this rationale as one argument in support of 

raid of April 1986. In the words of Ambassador Vernon Walters, US permanent repres

the United Nations, ìif the inherent right of self-defense, specifically recognized in Ar

the Charter, does not include the right to protect oneís nationals and oneís ships, what 

protect? The idea that a state should be condemned for seeking to protect the lives of i

who are subject to armed attack is too absurd for further comment.î43

International terrorism challenges the duty of states to protect their nationals. In 

words of New Zealander Gayle Rivers, a special forces trained counterterrorist, ìto pu

succinctly, the job of the government is to protect you anywhere in the world. The job 

terrorist is to make you feel unprotected everywhere in the world.î44 Accepting this ch

section 1453 of the 1986 Department of Defense Authorization Act provides that it is t

the government to safeguard the safety and security of US citizens against a rapidly in

terrorist threat.45 Although it may be the duty of the government to protect its citizens 

all times, clearly governments are not authorized to use armed force to achieve that pro

every case. Certain conditions must prevail before resort to a forcible response become

legitimate. 

The action must be taken in behalf of oneís own nationals. The nationality nexu

essential. It is the relationship between a state and its nationals that permits the use or t

use of force as part of the concept of self-defense.46 Corporations may qualify if the na

relationship can be established. If, however, action is contemplated in behalf of anothe

nationals, then it must be justified, if at all, under the principle of humanitarian interve

discussed below. 

CHAPTER 6 140 
protection of ones nationals to the duty of state responsibility as discussed in chapter 

condition has two basic elements. First, the territorial state does not have an absolute o

to protect foreigners in all circumstances. Crimes such as murders, assaults, robberies, 

kidnappings are indigenous to all societies and affect citizens and foreigners alike. Sec

territorial state must fail in an obligation that it does have under international law. A st

when injury or death results to a foreign national ìeither from the acts of the territorial 

its authorities or from the acts of individuals or groups of individuals which the territo

unable, or unwilling, to prevent.î

47 Examples are ìa breakdown of law and order in the 

concerned, or from mob violence which the local authorities are unable to control.î48

The action must be taken as a last resort. Writers describe this condition in diff

words but see the use of armed force as the final choice. Bowett speaks of failed or ina

diplomatic efforts.49 Thomas R. Krift talks of the ìunavailability of any other less extre

solution.î

50 Col Dennis Corrigan, US army judge and international law practitioner, wr

intervention is ìonly justified when resort to all peaceful means of resolving the situati

been tried and failed.î51 As with so many other legal justifications for the use of force, 

peaceful means must be exhausted or found unavailable or fruitless. 

This third condition became a central issue in the Iranian hostage case because 

States attempted a rescue mission while the matter of the hostages was pending before 

International Court of Justice. Had the United States exhausted its peaceful remedies? 

did not find the United States action unlawful on this ground. Instead, the Court made 

distinction between unlawful action and action incompatible with respect for the judici

The Court was of the opinion that so long as the case was pending, US action should b

Prof Ted Stein, University of Washington School of Law and formerly with the 

adviserís office of the US Department of State, wrote, ìA scrupulous regard for the Co

processes would have led the United States either to terminate proceedings once Iranís 

became unmistakably clear or to forego a military solution.î

52 Columbia Universityís O

Schachter provided another view: ìIt is not unreasonable to conclude that the United S

not be assured of the safety of the hostages simply because judicial proceedings were p

As a matter of principle, exhaustion of remedies cannot be required when the remedies

likely to be futile. The state whose nationals are in peril must be given latitude to deter

whether a rescue action is necessary.î53

The action must be taken in response to immediate danger to life or property. D

Bowett states the rule in these words, ìNot all cases of state responsibility will involve 

stateís right of protection by means of armed intervention, for many and indeed most f

breach do not carry any immediate threat of irreparable injury to the life or property of 

Physical injury or death are irreparable by definition. ìNo subsequent action, remedy, 

compensation,î writes Sir Gerald Gray Fitzmaurice, judge of the International Court o

ìcan bring the dead to life or restoreÖ limbs to the maimed. There is no remedy excep

prevention. In this lies the ultimate justification for intervention of this kind.î55 The dif

in judging the immediacy of the threat in terms of whether lives are in imminent dange

CHAPTER 6 141 
use can be justified only in exceptional circumstances. An action to protect property ra

satisfy all the required conditions. In particular, if the property concerned does not hav

special, or intrinsic value, then it would not be possible to establish the relationship be

actual or threatened damage or destruction and the national security interests of the sta

The action must be taken to protect the essential rights (national security intere

state. Although it is the person or property of the national that is directly endangered, t

must be an indirect threat or danger presented to the essential interests of the state of th

national. Clearly not all deaths, injuries, or mistreatments of nationals in a foreign coun

justify intervention, nor will damage or destruction of property belonging to oneís nati

most cases. Those acts must occur in a manner or in a pattern that adversely affects the 

of the state: for example, nationals of state X cannot safely travel or live in state Y. As 

writes, ìThe right of protection extends to those cases where the interests of nationals 

endangered, whether they be interests in personal safety or in property, are essential in 

that their destruction involves an irremedial and serious injury directly to the nationals 

and indirectly to the state affording them protection.î58

The action must be proportionate. The principle of proportionality permits only 

amount of force necessary for the protection of threatened or endangered lives and pro

Lord McNair, former president of the International Court of Justice, said in a speech to 

House of Lords on 12 September 1956, ìIt is true that a Government is entitled to use 

necessary amount of armed force, and no more, for the protection of its nationals in a f

country and their property.î59 The purpose is to secure oneís nationals. Force that is ex

unreasonable, or unnecessary does not serve this purpose but rather is outside of it. Wh

proportionality is not observed, there is a strong indication that force is being misappli

its purpose for other improper goals. 

The principle of proportionality imposes a threshold. It requires a balance betw

minimum force required and the interest threatened. At times such a balance cannot be 

When this occurs, intervention must be rejected as an option. For example, protection 

property interests cannot justify even the very minimum application of force.60 The na

kind of property and its implication for national security are among the factors that can 

scales. 

The action must be confined strictly to protection of one ës nationals. If other p

objectives are sought, then the action becomes illegitimate. Experience shows that wha

more frequently than not is a change in purpose. Originally the operation is directed at 

oneís nationals; but once armed force is interposed into a foreign country, other object

These may include establishing law and order within the foreign state, changing the fo

government, punishing those responsible for ill treatment of oneís nationals, or open o

Writers and scholars generally agree that the rescue operations in Stanleyville i

the Dominican Republic in 1965, and Grenada in 1983 were initially all legitimate form

intervention in behalf of oneís nationals. Scholars do not agree, however; as to whethe

CHAPTER 6 142 
question whether the interventions, though originally justified by necessity, became t

illegality through subsequent interference in the affairs of the territorial state. ëë61 

The action must be a protective and not a punitive action. This condition flows

from the preceding condition. The objective is to safeguard oneís nationals and not to 

those in authority or the citizenry of the territorial state. In part this condition is a recog

protecting oneís nationals is a form of self-defense. It is not a punitive form of reprisal

Another significance of this condition is: If the damage or injury has already oc

then this approach is no longer available as an option. It will, of course, be open to jud

to whether other nationals are in jeopardy and, therefore, the threat continues to exist. 

is whether it can be said that there is an act yet to be prevented. As Prof Tom J. Farer, 

University Law School at Camden, has concluded, ìIf the damage has been consumma

is no longer of the essence and there must be recourse to modes of redress other than u

coercion.î62

Humanitarian Intervention 

A pre-Charter definition described humanitarian intervention as ìreliance upon 

the justifiable purpose of protecting the inhabitants of another state from treatment tha

arbitrary and persistently abusive as to exceed the limits of that authority within which 

sovereign is presumed to act with justice and reason.î63 The post-Charter definition rem

much the same except for an emphasis on human rights. Humanitarian intervention is u

ìin order to remedy mass and flagrant violations of the basic human rights of foreign n

by their [own] governments.î64

Jurists such as Grotius, Vattel, Wheaton, Heilberg, Woolsey, Bluntschli, Westl

Stowell, Lawrence, and Borchard claim that customary international law recognizes th

of legal intervention in situations where a state denies its people fundamental human ri

way that shocks the conscience of mankind.65 But pre-1945 state practice does not offe

support for this view. Examples of humanitarian intervention during this period includ

interventions in the affairs of the Ottoman Empire by the Concert of Europe in behalf o

Christians; the 1827 efforts of Great Britain, France, and Russia to end Turkish massac

Greece resulting in Greek independence in 1830; the 1866-68 demands by Austria, Fra

Prussia, and Russia for better treatment of Christians in Crete; the 1877-78 Russian int

in Turkey to end persecutions in Bosnia, Herzegovina, and Bulgaria; and the 1903-08 

interventions by Austria, Russia, Great Britain, Italy, and France in Turkey for misrule 

Macedonia. Other historical examples include the 1830 blockade of Antwerp by Europ

powers in support of the Belgics against the kingdom of the Netherlands; French interv

Syria in 1840 and 1861; and US intervention in Cuba in 1898, where, according to Pre

William McKinley, the action was taken ìin the cause of humanity and to put an end to 

barbarities, bloodshed, starvation, and horrible miseries.î In other instances the United 

sent strong notes alluding to the doctrine of humanitarian intervention without initiatin

CHAPTER 6 143 
addressed to the Russian Foreign Office regarding the massacre of Jews at Kishinev. H

the assertions of Japan in support of its invasion of Manchuria and the 1938 claim of A

Hitler concerning ethnic minorities in Czechoslovakia were clear abuses of this doctrin

After a careful study of these pre-1945 instances of humanitarian intervention, 

professors Thomas M. Franck and Nigel S. Rodley, both of New York University, con

In sum, these cases do not sustain the contention of the authorities who assert a 

long, credible, and creditable history of humanitarian intervention by force of 

arms,Ö On the other hand, the records of that period arc replete with State 

Department and Foreign Office communications designed to prevent unilateral 

humanitarian intervention by other States.67

In contrast, Sir Hartley (later Lord) Shawcross, British solicitor-general at the N

trials, viewing the issue from the perspective of those trials, argues that ìthe right of 

humanitarian Intervention on behalf of the rights of man trampled upon by the state in 

shocking the sense of mankind has long been considered to form part of the recognized 

nations.î68

However, if the issue of whether such a right were recognized in international l

doubt, then the UN Charter should have put it to rest. The overwhelmingly accepted vi

the doctrine did not survive the Charter.69 Those few who assert that it has survived rea

human rights is a fundamental purpose of the United Nations and, therefore, force is p

achieve human rights. This argument presents several problems. First, the Charter cont

fundamental purposes of an economic, social, and cultural nature. Can force he used to 

these ends as well? Second, articles 2(4), 2(7), 51, and chapter VIII recognize only cer

accepted uses of force (self-defense, regional enforcement action, regional peacekeepi

UN Security Council authorized actions) and does not recognize humanitarian interven

Unless undertaken at the invitation of a recognized government or in accordance with 

recognized mode for employing force under the Charter, humanitarian intervention can

justified. Humanitarian intervention is not an in dependent legal doctrine that can legit

use of armed force. 70

The post-Charter history of humanitarian intervention supports this view. Sovie

interventions in Hungary in 1956 and in Czechoslovakia in 1968 relied upon it but suc

were rejected by the international community. In 1965 the United States originally reli

this doctrine to support actions in the Dominican Republic; but two days later Presiden

Johnson recharacterized it as a self-defense action and another two days after that calle

action a stopgap measure until the Organization of American States (OAS) could act.7

doctrine was used to support the 1964 Congo action but was widely criticized by Afric

and Indonesia relied upon it for its actions in East Timor in 1975 where ìhumanitarian 

intervention was a thin smoke screen for aggression and annexation.î72

CHAPTER 6 144 
one of the few supporters of the doctrine of humanitarian intervention, writes, 

The actual course events took during 1971 in Bangladesh (formerly East Pakist

should put an end once and for all to the doctrinal argument that ìaction in part 

concerned with the protection of human rights and the prevention of genocide 

may be lawfulî when, and only when, undertaken by international institutions.7

The only difficulty with this position is that although Indiaís original statement 

United Nations Security Council justified the use of force on this ground, when the fin

record was published (after editing by India), the justification cited was Pakistanís alle

attack by armed force against India.74 India did not rely on humanitarian intervention a

for its action.

Not only has the practice of states not supported the doctrine of humanitarian 

intervention, but some jurists and scholars have argued that, when used, this doctrine h

cover for baser political purposes arid has been directed primarily by the strong Weste

against the weaker third world. Likewise, the ìnegativeî practice of states has failed to 

credence to the validity of the doctrine. Franck and Rodley observed that ìa ërightí so 

exercised in circumstances where morality, if not law, most craves its application is rig

suspect.î75 Some of the circumstances where intervention might have been appropriate 

not occur are the Russian pogroms of the 1800s; Nazi Germanyís treatment of the Jew

others; the massacres in Armenia from 1890 to 1913 by the Turks; Soviet suppression 

Hungary in 1956; and the genocides in Indonesia, Southern Sudan, Rwanda. Burundi, 

Africa. Likewise states might have intervened in Bangladesh for humanitarian reasons 

not. The French argued that they were invited into the Central African Empire at the in

the new government after Emperor Bokassa was overthrown; Spain denied involvemen

coup that ousted President Macias Nguema of Equatorial Guinea; Tanzania argued tha

had entered Uganda to punish Idi Amin for incursions into Tanzania and it was coincid

this action occurred at the time of his overthrow; and Vietnam argued that Pol Pot was 

in 1979 by the Cambodian people and not by its intervention)76

Finally, UN General Assembly resolutions do not support this doctrine and nei

most jurists.77 Among the contemporary international lawyers who, from their writings

are Akehurst, Bishop, Brierly, Briggs, Brownlie, Castren, Clark, Donnelly, Farer, Fran

Friedmann, Goodrich, Green, Hambro, Jessup, Jiminez de Arechaga, Kelsen, Lauterpa

McHugh, Rodley, Schwartzenberger, Sorensen, von Glahn, and Waldock.78 Those who 

support the doctrineóLillich, McDougal, Moore, Nanda, Reismann, and Stoneóusua

as a moral not a legal right, or they do subject to a condition that incorporates another 

justifying the use of force, such as invitation or UN Security Council authorization.79 I

86 report, the International Law Associationís American Branch concluded that ìgove

and large (and most jurists) would not assert a right of forcible intervention to protect t

nationals of another country from atrocities carried out in that country.î80

CHAPTER 6 145 
use of armed force in this regard. What follows is a brief listing of possible conditions 

humanitarian intervention with the name of the jurist or scholar advocating the require

parentheses. 

The action must be taken in response to threats to anotherís nationals (this writ

action were to protect oneís own nationals, then that doctrine and not humanitarian int

would apply. 

The action must be taken in response to an immediate and extensive threat to 

fundamental human rights, particularly a threat of widespread loss of human life that s

conscience of mankind (Brierly, Lillich, Maizel, Moore, and the International Commis

Jurists). 

The action must be proportional (Lillich, Moore, Nanda, and the International 

Commission of Jurists). It is difficult to understand how this condition will he applied 

circumstances. How does one rescue an entire population from its own government? C

achieved without replacing the government in power? 81

The action must have a minimal effect on the established government (Moore)

condition 3 above. 

A prompt disengagement must take place when the purpose of the action has b

accomplished (Lillich. Moore, Nanda, and the International Commission of Jurists). 

The action must be immediately reported to UN Security Council and appropri

regional organizations (Moore and the International Commission of Jurists). 

The action requires an invitation from a recognized government (Brierly, Brow

Lillich, and Nanda). If there is an invitation, then there is no intervention. Invitation al

justify the use of force abroad. None of the other conditions for humanitarian intervent

required in such circumstances. 

The action must be for a limited duration (Lillich and Nanda). 

The action must be taken as a last resort (Lillich, Nanda, and the International 

Commission of Jurists). 

The state invoking the coercive measures must be acting with relative disintere

and impartiality (Brierly, Maizel, and Lillich). This condition focuses on whether the i

state is more interested in human rights than it is in self-interest and power. 

The international community must have had an opportunity to verify the factua

circumstances and be given an opportunity to solve the problem (Brierly, Maizel, and 

International Commission of Jurists).

CHAPTER 6 146 
concerned to remedy the problem; the territorial state must be given every opportunity 

encouragement to act effectively to correct the situation; and the territorial state must b

unwilling or unable to act (Brierly, Maizel, and the International Commission of Jurist

The action must be taken in accordance with rules and procedures set forth in t

Charter, chapters VII or VIII (Brownlie). Like invitation, if this condition is satisfied, t

alone would legitimate the use of force. None of the other conditions for humanitarian 

intervention are required in such circumstances. 

The action must be taken outside of national territorial jurisdiction of any state

example, against pirates on the high seas or in Antarctica or areas with a similar regim

(Brownlie). Obviously, if the action is taken ìoutside of national territorial jurisdiction

intervention occurs. Additionally, concerning pirates (as we shall see below), separate 

exists.82

Hot Pursuit

The doctrine of hot pursuit is part of the law of the sea. It is overwhelmingly ac

part of customary international law and it has been codified in article 23 of the 1958 G

Convention on the Law of the High Seas.83 The doctrine legitimates the use of force in 

narrow circumstances that could have application in dealing with international terroris

conditions underlying the doctrine are well settled. 

The hot pursuit must begin within the pursuing state ës territory and continue o

high seas or in the air above. There is no analogous doctrine of hot pursuit on land. If p

land, the justification must be under some other legal theory, such as, for example, self

defense.84 (1958 Geneva Convention on the Law of the High Seas, an. 23, para. 1.) 

The pursuing state must have good reason to believe that the ship has violated 

and regulations while within its territory. The term ship in this instance refers to seago

and to aircraft. The laws or regulations violated may be any law or regulation not limit

criminal, fisheries, custom, shipping, or neutrality. The territory of the coastal state inc

internal waters, territorial waters, and contiguous zone as well as the airspace above. H

violations within the territorial zone are limited to rights for the protection of that zone

Geneva Convention on the Law of the High Seas, an. 23, para. 1.) 

Hot pursuit can begin only after a signal to stop has been given. The signal may 

audible or visual but it must be given at a distance to enable it to have been received. (

Geneva Convention on the Law of the High Seas, art. 23, para. 3.) 

The pursuit must be continuous. Pursuit that is interrupted cannot be hot pursui

interrupted pursuit cannot be reestablished (1958 Geneva Convention on the Law of th

Seas, art. 23, para. 1.) 

CHAPTER 6 147 
(1958 Geneva Convention on the Law of the High Seas, art. 23, para. 1.) Bowett indic

there may be one possible exception to this rule ìin that the pursuit of pirate vessels ca

continued within the territorial waters of another state if that state is not in a position to 

the pursuit itself; even then it is suggested that the right of trial devolves on the territor

within whose waters capture is effected.î85

Hot pursuit may only be effected by warship or military aircraft. (1958 Geneva 

Convention on the Law of the High Seas, art. 23, para. 4.) 

Piracy: What Is It? 

In the late 1700s and early 1800s piracy, along with slave trading, was made an 

international crime. Consequently, pirates became hostis humani generis (enemies of t

race) subject to a universal criminal jurisdiction. Any nation could prosecute and punis

If a nation did not wish to prosecute, then it had an obligation to extradite pirates to sta

would. There were no safe havens. Contemporary international law (both custom and t

firmly recognizes the continued application of this law today. 

Although military force may properly be directed at pirates, the concept of pira

very narrow one indeed. Originally it comprised the commission of the felony of robbe

high seas. By the twentieth century several additional requirements had arisen.86 Accor

Geneva Convention on the Law of the High Seas, article 15, piracy requires all of the f

1. The act must comprise illegal violence, detention or depredation. 

2. The act must he committed for private end. It cannot be an act committed fo

public purpose or for political reasons. 

3. The act must occur on the high seas. It must not occur within the jurisdiction 

of any state. 

4. The act must take place from one private ship to another private ship. A ship 

this context includes seagoing vessels and aircraft. There must be two ships, on

from which the act is committed and the other which is the object of the illegal 

act. If seizure of a ship occurs from within, then it may be viewed as a hijackin

but it is not piracy. If a public vessel is involved, the offense of piracy does not 

arise either.

As should be evident from the foregoing analysis, the Jaw pertaining to piracy 

very useful in dealing with terrorism. The 1986 Achille Lauro incident was not piracy 

reasons: it was not committed for private ends nor did it take place from one private sh

another. In recognition of this fact, Italian authorities did not charge the Achille Lauro 

with piracy. It charged them with murder, kidnapping, and various weapons offenses.8

Interestingly enough the sinking of the Rainbow Warrior in New Zealand waters in 19

piracy either since the act against the Greenpeace vessel was carried out by French pub

officials. 

CHAPTER 6 148 
having failed to adequately control politically motivated crimes.

Some scholars hav

suggested that the law be rewritten. Because of the very political nature of terrorism, it 

unlikely that politically motivated crimes will ever be considered as piracy. This is not 

of international law, rather it is a lack of community consensus to develop the law furt

concept of piracy does offer hope. It is one instance in which the international commun

agree that an international crime should be established, albeit narrowly. The key quest

the community of nations ever develop the will to treat terrorism as an international cr

thereby branding terrorists as enemies of the human race? 

Self-Help: A Bona Fide Precept? 

Self-help is the exercise of military force by states for the purpose of enforcing 

rights; but forcible self-help is not a response to threatened or actual attack, as is self-d

Self-help is an attempt to secure legal rights that are threatened. As British internationa

scholar Rosalyn Higgins writes, ìSelf-defenceÖ aims at the restoration of the status q

whereas self-help has a ëremedial or repressive character in order to enforce legal right

Great Britain argued self-help with respect to its minesweeping operations in A

waters in the Corfu channel case.90 The International Court of Justice rejected the Briti

argument that its position was justified in order to preserve evidence and to keep an in

sea-lane open. In 1956 Britain argued, in part, that its actions with regard to the Suez C

necessary to protect valuable British property and to protect the general right of passag

the canal. These self-help arguments were rejected by the United Nations and the inter

community generally.91 In 1968 Israel argued that its raid on Beirut ìwas taken to upho

basic right of free navigation in international skies.î92 The United Nations rejected this 

The general view of the international community is that self-help as a justificat

military action is not an established norm of international law. Self-help amounts to ta

law into oneís own hands. There is no imminent or actual armed attack or other justify

circumstance and, therefore, the UN Charter mandates that peaceful settlement of disp

proper course of action. In short, not all failures in state responsibility will legitimate a 

response. 

Although enforcement of a legal right is clearly one condition for self-help, it w

be meaningful to attempt to identify all the conditions for self-help. For even if all the 

for self-help could be satisfied, self-help actions themselves cannot legitimate the use o

force. 

CHAPTER 6 149 
This chapter surveys seven potential legal justifications for the use of force. Fo

highly acceptable to the international community as a legal basis for the legitimate use 

They are invitation, protection of oneís own nationals, hot pursuit, and piracy. The firs

these offer promise for dealing with international terrorism. Piracy is not helpful becau

narrow definition excludes acts of terrorism. 

The remaining justifications of peacetime reprisal, humanitarian intervention, a

help have a low acceptance level as legal norms. Any state relying on these arguments 

military action substantially increases the probability that its actions will be condemne

international community including its own allies and close supporters. 

CHAPTER 6 150 
1. See J. E. S. Fawcett, ëIntervention in International Law: A Study of Som

Cases.î Recueil des Cours 103, pt. 2 (1961): 365-67; Noemi Gal-Or, International Coo

to Suppress Terrorism (New York: St. Martinís Press, 1985), 149; and Department of 

Office of the Legal Adviser, Digest of International Law, vol. 12, ed. Marjorie M. Wh

(August 1971), 208, State Department, 8586. 

2. See Benjamin Netanyahu, ìTerrorism: How the West Can Win,î Time, 

1986, 57; and Detlev F. Vagts. ëëInternational Law under Time Pressure: Grading the G

Take-Home Examination,î American Journal of International Law 78, no. 1 (January 

3. Rosalyn Higgins, ëëThe Legal Limits to the Use of Force by Sovereign 

United Nations Practice,î in British Year Book of international Law, 1961, vol. 37 (Ox

England: Oxford University Press for Royal Institute for International Affairs, 1962), 3

4. Ibid., 309. 

5. Oscar Schachter, ëëIn Defense of International Rules on the Use of Forc

University of Chicago Law Review 53, no. 1 (Winter 1986): 118-19. 

6. Sir Paul Scoons, The Economist, 10 March 1984. 34. See also remarks 

Domingo E. Acevedo, principal legal officer of the General Secretariat of the Organiza

American States (OAS), ìThe United Nations Charter and the Use of Force: Is Article 

Workable?î in American Society of International Law, Proceedings of the 78th Annua

12-14 April 1984 (Washington, D.C.: 1984), 72; Francis A. Boyle et al., ìInternational 

Lawlessness in Grenada,î American Journal of International Law 78, no. 1 (January 19

74: George Bunn, ìInternational Law and the Use of Force in Peacetime: Do U.S. Ship

Take the First Hit?î Naval War College Review 39, no. 3 (May-June 1986): 72; Christ

Joyner, ìThe United States Action in Grenada: Reflections on the Lawfulness of Invas

American Journal of International Law 78, no.1 (January 1984): 131-32; Capt Samuel 

USA, ìIntervention in Grenada,î Naval Law Review 35 (Spring 1986): 47-86; John N

Moore, ìGrenada and the International Double Standard,î American Journal of Interna

Law 78, no. 1 (January 1984): 145-68; and Vagts, 171. 

7. See Oscar Schachter, ìSelf-Help in International Law: U.S. Action in th

Hostage Crisis,î Journal of International Affairs 37, no. 2 (Winter 1984): 244, n. 12. 

8. Sir Hersch Lauterpacht, ed., Oppenheimës International Law, 7th ed., vol. 2 

Longmanís, Green and Co., 1952), 136-37. 

9. Gerhard von Glahn, Law Among Nations, 3d ed. (New York: Macmillan Pu

Co., 1976), 496. See also G. Fitzmaurice, ìThe General Principles of International Law 

Considered from the Standpoint of the Rule of Law, î Recueil des Cours 92, pt. 2 (195

20. 

10. See Fitzmaurice, 119-20; Lt Comdr Michael Franklin Lohr, USN, ìLeg

Analysis of U.S. Military Responses to State-Sponsored International Terrorism,î Nav

Review 34 (1985): 47; and Gayle Rivers, The War against the Terrorists: How to Win 

York: Stein and Day, 1986). 184-85. 

11. See von Glahn, 498-500. 

12. Ibid., 497. See also William W. Bishop, Jr., International Law: Cases an

Materials, 2d ed. (Boston: Little, Brown and Co., 1962), 74748. 

CHAPTER 6 151 
14. Ibid., 401. See United Nations, Naulila International Arbitration Conc

Responsibility of Germany for Damage Caused in the Portuguese Colonies of South A

Portuguese-German Arbitral Tribunal, 1928, Reports on International Arbitral Awards

1949. See also Fitzmaurice, 119-20; James J. McHugh, ìForcible Self-Help in Internat

Law,î US Naval War College International Studies 62(1980): 145; Jeffrey A. Sheehan

Entebbe Raid: The Principle of Self-Help in International Law as Justification for Stat

Armed Force,î Fletcher Forum 1 (Spring 1977): 140: and von Glahn. 500. 

15. Sir Hersch Lauterpacht quoted in The Law of Nations, 6th ed., ed. Herbert 

(New York: Appleton-Century-Crofts. 1966), 958. See also Lauterpacht, Oppenheim s 

2:136-37; Max Sorensen, Manual of Public International Law (New York: St. Martiní

1968), 754; and von Glahn, 496-97. 

16. See D. W. Bowett, Self-Defence in International Law (New York: Fred

Praeger, 1958), 13; Briggs, 958; Richard A. Falk, ìThe Beirut Raid and the Internation

Retaliation,î American Journal of International Law 63, no. 3 (July 1969): 431; Lt Com

Harlow, USN, ëë The legal Use of ForceÖ Short of War,íí US Naval Institute. Proceed

no. 11 (November 1966): 90; Higgins, 314; Richard B. Lillich, ëëForcible Self-Help un

International Law,î US Naval War College International Law Studies 62 (1980): 131; 

31; and Lauterpacht, Oppenheimís Law, vol. 2:136-37. 

17. Derek Bowett. ìReprisals Involving Recourse to Armed Force,íí Ameri

Journal of International Law 66, no. 1 (January 1972), 3-4. See also Edward A. Lynch

ëëInternational Terrorism: The Search for a Policy.î Terrorism: An International Journ

(1986): 65; Schachter, ìSelf-Help:í 233-34; and Department of State, Office of the Leg

Adviser, Digest of United States Practice in International Law, 1979, ed. Marian Lloyd 

(Washington. D.C.: 1983). 1751. State Department, 9374. 

18. See Falk, 431; Harlow, 90; Lillich, 131; Lohr, 30-31; and Sorensen, 753

19. Von Glahn, 496-97. See also Lauterpacht, Oppenheimís Law, vol. 2:32

20. See Briggs, 958. 

21. See Falk, 431; Harlow, 90; Lillich, 131; Lohr, 31; Sorensen, 753; and v

496-97. 

22. See von Glahn, 496-97. 

23. See Fitzmaurice, 119-20; and Lauterpacht, Oppenheim ës Law, vol. 2:3

24. See von Glahn, 496-97. 

25. See, for example. UN General Assembly. ìDeclaration on Principles of 

International Law Concerning Friendly Relations and Cooperation among States,î 24 O

1970, Resolution 2526, Official Records (UN GAOR), 25th sess., supp. 28. A/8028 (1

See also Bowett, ìReprisals,î 1; and Sorensen, 754. Lt Col James P. Terry. USMC, wr

not only did the US vote for the General Assembly resolution on friendly relations in 1

the United States ìhas gone on record in stating That it considers reprisals to be unlaw

contrast to acts of lawful self-defense.î Terry, ìAn Appraisal of Lawful Military Resp

State-Sponsored Terrorism,î Naval War College Review 39, no. 3 (May-June 1986): 6

26. See Falk, 417; Harlow, 90; Higgins, 314; Lillich, 132: find ìResort to W

Armed Force: Reprisalsî (US Digest, chap. 14, sec. 1), Contemporary Practice of the U

States Relating to International Law, American Journal of International Law 80, no. 1 

1980): 166. 

CHAPTER 6 152 
beyond argument that armed reprisalsÖ would be flagrant violations of international l

Quoted by Lillich, 132. See also Ian Brownlie, International Law and the Use of Force 

(Oxford, England: Oxford University Press, 1963). 281-82. Brownlie also writes that t

ìprovisions of Article 2, paragraph 4, of the United Nations Charter have finally prohi

reprisals involving the use of force.î Brownlie, ëëThe Use of Force in Self-Defence,íí 

Year Book, vol. 37:197. Falk writes (p. 429), ìIt does seem appropriate to conclude th

Charter prohibits all forms of forcible self-help other than the exercise of self-defense 

meaning of Article 51.î Harlow writes (p. 91), ìIt is submitted that the better view, and 

deserving United States support and adherence, is that reprisals, involving the use of fo

illegal in any situation short of a legal state of warî Rosalyn Higgins (p. 314) writes, ì

generally considered that reprisals involving the use or threat of force are illegal.î Myr

McDougal and Florentine P. Feliciano write, ìIt may suffice to register that we share t

common view that the prescriptions and policies embodied in the U.N. Charter forbid 

unilateral use of force and violence by way of reprisal.î McDougal and Feliciano, Law 

Minimum World Public Order (New Haven, Conn.: Yale University Press, 1961). 208

Wright writes, ìit was the object of Article 2, paragraphs 3 and 4, of the Charter to elim

military reprisals from international relations.î Q. Wright, ëëThe Goa Incident,î Ameri

Journal of International Law 56, no. 3 (1962): 628. 

28. Acting Secretary of State Kenneth Rush, letter, 29 May 1974, to Yale la

professor Eugene Rostow reprinted in Department of State, Office of the Legal Advise

of United States Practice in international Law, 1974, ed. Arthur W. Rovine (Washingto

1975), 700, State Department, 8809. 

29. 16 February 1979 opinion of Julia W. Willis quoted in Digest of US Pra

1979, 1752. See also Schachter, ëëSelf-Help,î 245. 

30. See Yehuda Slum, State Terrorism and the International System. Procee

the International Security Council, Tel Aviv, Israel, 26-28 January 1986 (New York: C

International, 1986), 43-44; and Falk, 429, 

31. See Falk, 438-40. 

32. Falk (pp. 441-42) suggests the following 12 principles: (1) That the bur

persuasion is upon the government that initiates an official use of force across internat

boundaries: (2) That the governmental user of force will demonstrate its defensive cha

convincingly by connecting the use of force to the protection of territorial integrity, na

security, or political independence; (3) That a genuine and substantial link exists betw

prior commission of provocative acts and the resultant claim to be acting in retaliation

diligent effort be made to obtain satisfaction by persuasion and pacific means over a re

period of time, including recourse to international Organizations; (5) That the use of fo

proportional to the provocation and calculated to avoid its repetition in the future, and 

precaution be taken to avoid excessive damage and unnecessary loss of life, especially 

respect to innocent civilians; (6) That the retaliatory force is directed primarily against 

and para-military targets and against military personnel; (7) That the user of force mak

and serious explanation of its conduct before the relevant organ(s) of community revie

seek vindication there from of its course of action; (8) That the use of force amounts to 

message of communication to the target government so that the contours of what const

unacceptable provocation are clearly conveyed; (9) That the user of force cannot achie

CHAPTER 6 153 
pacific settlement to the underlying dispute on terms that appear to be just and sensitiv

interests of the adversary; (11) That the pattern of conduct of which the retaliatory use 

an instance exhibits deference to considerations 1-10, and that a disposition to accord r

the will of the international community be evident: and (12) That the appraisal of the r

use of force take account of the duration and quality of support, if any, that the target 

government has given to terroristic enterprises. These guidelines are criticized by Yehu

Blum. ìThe Beirut Raid and the International Double Standard,î American Journal of 

International Law 64, no. 1 (January 1970): 94 and 104. 

33. See Bowett, ìReprisals,î 33-36. 

34. Ibid., 10-11. 

35. See Air Force Pamphlet (AFP) 110-31, International LawóThe Condu

Armed Conflict and Air Operations, November 1976, para. 10-7; Naval Warfare Instru

Publication (NWIP) 10-2, Law of Naval Warfare, para. 300; and Harlow, 90-91. 

36. Philip C. Jessup, A Modern Law of Nations, vol. 1 (New York: Macmi

1948), 169-70. 

37. Judge Max Huber quoted by Bowett, Self Defence, 87. See also Netany

38. See Slaughterhouse cases, 16 Wall. 36 (1873) and Lana it United States

(1913). 

39. Ian Brownlie quoted by Lohr, 7. See also Bowett, Self Defence, 92. 

40. See Bunn, 72; John R. DíAngelo, ìResort to Force by States to Protect 

The U.S. Rescue Mission to Iran and Its Legality under International Law,î Virginia J

International Law 21, no. 3 (1981): 485-519; L. C. Green, ìInternational Law and the C

Terrorism,î Dalhousie Law Journal 7, no.2 (April 1983): 249; Maizel, 60; Moore, 153

Jordan J. Paust, ìEntebbe and Self-Help: The Israeli Response to Terrorism,î Fletcher 

no. 1 (January 1978): 91. 

41. See DíAngelo, 498; and Digest of international Law, vol. 12:192. 

42. Concerning United States Diplomatic and Consular Staff in Tehran (Un

it Iran), merits, 1980 ICJ 3. See also Maizel, 60; and Ted L. Stein, ëëContempt, Crisis, 

Court: The World Court and the Hostage Rescue Attempt,î American Journal of Intern

Law 76, no. 3 (July 1982): 499-531. 

43. Ambassador Vernon Walters quoted in Department of State, ëëUS Exer

of Self-Defense against Libyan Terrorism,î Department of State Bulletin 86, no. 2111 

1986): 21. See also Department of State, ìCounterterrorism Policy,î statement of John 

Whitehead, deputy secretary of state, before the House Committee on Foreign Affairs, 

Washington, D.C., 22 April 1986, Current Policy 823, 2. 

44. Rivers, 24, 

45. See Abraham B. Sofaer, ìThe War Powers Resolution and Antiterrorist 

Operations,íí Department of State Bulletin 86, no. 2113 (August 1986): 71. 

46. See Bowett, Self Defence, 95. 

47. Ibid., 88. See also Col Dennis M. Corrigan, USA. ëëLegal Use of Milita

to Counter Terrorism,î strategic study, no. 86-1 E-85 (Washington. D.C.: National Wa

February 1986), 12-13; Maizel, 57-58; Moore, 154; and Sir Humphrey Waldock quote

of International Law, vol. 12:198. 

48. Fitzmaurice. 172-74. 

CHAPTER 6 154 
Brooklyn Journal of International Law 4, no. 1 (Fall 1977): 56. 

51. See Corrigan, 12-13. 

52. Stein, 523. 

53. Oscar Schachter, ìThe Right of States to Use Armed Force,î Michigan 

Review 82 (April-May 1984): 1631. 

54. Bowett, Self-Defence, 89. See also Moore, 154; Schachter, ìInternation

139; and Sir Humphrey Waldock, ëëThe Regulation of the Use of Force by Individual 

International Law.î Recueil des Cours 81, pt. 2 (1952): 467. 

55. Fitzmaurice, 172-74. 

56. The Mayaguez mission has been criticized because of a lack of necessit

operation. See DíAngelo, 503; and Paust, 91. The existence of necessity has led to app

the Entebbe rescue mission; see Francis Anthony Boyle. World Politics and Internatio

(Durham, N.C.: Duke University Press, 1985), 18-20; Green, 249; and Office of the Le

Adviser, Digest of United States Practice in International Law. 1976, ed. Eleanor C. M

(Washington. D.C.: 1977). 150-51, State Department, 8908. 

57. See Bowett, Self Defence, 101-3. 

58. Ibid., 102. Bowett (p. 93) also writes, ìIn practice it cannot be said that 

the safety of nationals abroad constitutes a threat to the security of the state. Obviously

imperil the safety of a single national abroad is not to imperil the security of the state; 

there may be occasions when the threat of danger is great enough, or wide enough in it

application to a sizable community abroad, for it to be legitimately construed as an atta

state itself.î See also Harlow, 96. 

59. Lord McNair quoted in Digest of International Law, vol. 12:3. See also 

12-13; Fawcett, 404-8; Harlow, 96; Maizel, 59; Moore, 154. 

60. See Fawcett, 404-8. 

61. Schachter, ìThe Right of States,î 1630. See also Krift, 58; Maizel, 

63; McHugh, 152; Moore, 154; and Sir Humphrey Waldock quoted in Digest o

International Law, vol. 12:198. 

62. Tom J. Farer, ìLaw and War,î chap. 2 in The Future of the internationa

Order, ed. Cyril F. Black and Richard A. Falk, vol. 3, Conflict Management (Princeton

Princeton University Press, Center for International Studies, 1971), 55. 

63. F. Stowell writing in 1913, quoted by DíAngelo, 485. 

64. Jack Donnelly, ìHuman Rights, Humanitarian Intervention and Americ

Policy: Law, Morality and Politics,î Journal of International Affairs 37, no. 2 (Winter 

313. 

65. See Harlow, 96; Lillich, 232; and von Glahn, 167. 

66. See Thomas M. Franck and Nigel S. Rodley, ìAfter Bangladesh: The L

Humanitarian Intervention by Military Force,î American Journal of International Law 

(April 1973): 277-83; Harlow, 97; Lillich, 232; and von Glahn, 168. 

67. Franck and Rodley, 285. 

68. Sir Hartley Shawcross quoted by Green, 177. 

69. Ian Brownlie quoted in Digest of International Law, vol. 12:204-5; Rog

Clark, ìHumanitarian Intervention: Help to Your Friends and State Practice,î Georgia 

International and Comparative Law 13, supp. (1983): 211; and Donnelly, 312. 

CHAPTER 6 155 
317; Farer, 55; and Maizel, 65-66. 

71. See Franck and Rodley, 285-86, 278; and von Glahn, 168. 

72. Clark, 213. 

73. Lillich, 230. 

74. See UN Security Council, Official Records (UN SCOR), 26th year, 160

meeting, 15. 

75. Franck and Rodley, 290. See also Donnelly, 321. 

76. See Akehurst, 97-99; and Franck and Rodley, 290-98. 

77. See UN General Assembly, ìDeclaration on Inadmissibility of Interven

Domestic Affairs of States and Protection of Their Political Independence and Soverei

December 1965. Resolution 2131, UN GAOR, 20th sess., supp. 14, A/6014 (1965), 11

General Assembly, Resolution 2625, 121; and UN General Assembly, ìDefinition of 

Aggression.î Resolution 3314, UN GAOR, 29th sess., supp. 31, A/9631 (1974), 142. 

78. See Briefly, 403; fan Brownlie, ìHumanitarian Intervention,î chap.10 i

Civil War in the Modern World, ed. John Norton Moore (Baltimore, Md.: Johns Hopk

University Press, 1974), 225: Franck and Rodley, 300 and 304; Green, 178; Maizel, 65

McHugh, 145-46; Moore, 154; Schachter, ìThe Right of States,î 1629; Sorensen, 758-

von Glahn 165-66. 

79. See Lillich, 241. 

80. ìReport of the Committee on Use of Force in Relations among States,î 

International Law Association (LA), American Branch, 1985-86 Proceedings and Com

Reports (New York: International Law Association, American Branch, 1986), 199. 

81. See Akehurst, 105; and Donnelly, 318. 

82. See Brierly, 427-28; Brownlie, ìHumanitarian Intervention.íí 225-27: D

314; Secretariat of the International Commission of Jurists, The Events in East Pakista

Legal Study (1972), 95; Richard Lillich. 136-37; Maizel, 64; John Norton Mooreís pro

guidelines in ILA, ìReport of the Committee on Human Rights,î in Report of the Fifty

Conference. Held at The Hague (Great Britain: ILA, 1970), 15; and Ned Nanda, ëëThe 

Statesí Action in the 1985 Dominican Crisis: Impact on World Order- Part I,î Denver 

Journal 43 (1966): 475. 

83.ìGeneva Convention on the Law of the High Seas,î art. 23, 29 April 1958, T

5200, UST, vol. 13, pt. 2, 2312; UNTS, vol. 450 (1963), no. 6465, 82. See also Ian Bro

ìUse of Force,î 248; and Glanville L. Williams, ìThe Judicial Basis of Hot Pursuit,î B

Year Book of International Law, 1939, vol. 20 (Oxford, England: Oxford University P

Royal Institute of International Affairs, 1939), 83, 92-93. 

84. See John C. Bender, ìSelf-Defense and Cambodia: A Critical Appraisa

University Law Review 50 (Spring 1970); 130: Bowett, Self-Defence, 32; and Manuel 

Garcia-Mora, International Responsibility for Hostile Acts of Private Persons against F

States (The Hague, Netherlands: Martinus Nijhoff, 1962), 121. 

85. Bowett, Self-Defence, 83. 

86. See George R. Constantinople, ìToward a New Definition of Piracy: Th

Lauro Incident,íí Virginia Journal of international Law 26, no. 3(1986): 724-37; Nancy 

Joyner, Aerial Hijacking as an International Crime (Dobbs Ferry, N.Y.: Oceana Public

1974), 29; Alfred P. Rabin, ìCurrent Legal Approaches to International Terrorism,î T

CHAPTER 6 156 
Terrorism Current Research and Future Directions, ed. Alan D. Buckley and Daniel D

(Wayne, N.J.: Avery Publishing Co., 1980), 81. 

87. See R. W. Barnett, ìThe U.S. Navyís Role in Countering Maritime Terr

Terrorism: An International Journal 6, no. 3 (1983): 470; and Scott C. Truver, ìMaritim

Terrorism, 1985,î US Naval Institute, Proceedings 112 (May 1986): 167.

88. Abraham D. Sofaer, ìTerrorism and the Law,î Foreign Affairs 64, no. 5 

1986): 910. 

89. Higgins, 313. See also Falk, 429; Krift, 43-62; Lillich. 129-38; McHugh

Schachter. ìSelf-Help,î 231-46; and Sheehan. 135-53. 

90. Corfu channel case (United Kingdom v. Albania), merits. 1949 ICJ 4. S

DíAngelo, 502; Farer, 52: and Waldock, ìRegulation of Force.î 468. 

91. See Farer, 53. 

92. See Blum, 76-77. 

CHAPTER 6 157 
USE OF MILITARY FORCE: TERRIBLE SWIFT SWORD OR LA

WARNING? 

All applications of force start from the philosophical premise that they are 

suspect. 

Capt James J. McHugh, U

No one, it is safe to say, is satisfied with the present state of international law o

the use of forceÖ Yet a stable society of sovereign states cannot exist if each i

free to destroy the independence of the other. 

Prof Oscar Schac

In what legal ways can armed force be used abroad to deal with international te

and its state sponsors and supporters? Force is not an ordinary but an extraordinary rem

thus is not generally available. Armed force has been used in the past and will be used 

future by states. In the contemporary world, use of force is restricted to a limited numb

circumstances. These circumstances, reflecting the practice of states and the United Na

Charter system, provide the basis for the international rules regarding the legitimate us

today. 

A state must consider many intertwined factors before using armed force abroa

include, for example, general foreign policy considerations, military capability, public 

home and overseas, availability of intelligence, target identification, acceptability of ri

escalation, collateral civilian damage and injury, terrorist retaliation, nonsupport from 

taking of hostages), and the international rule of law. International law does not preclu

from responding to an international terrorist threat with armed force, but it does requir

a response be in conformity with accepted international practice. The United States an

Western democracies are bound by and committed to international law. It has a moral 

us and we are legally subject to it. The rule of law is an essential ingredient in our dem

value system. 

Before authorizing the use of armed force, international law requires that decis

consider the following issues: What is the threat? How serious is the threat? Are anoth

actions or inactions fostering or encouraging the threat in derogation of state responsib

Does the failure of state responsibility authorize the injured state to intervene with arm

into the territory of the injuring state? Is the use of force to occur in a peacetime or arm

conflict context? If use of armed force is contemplated, then what legal rationale or arg

justifies or legitimates the action?

CHAPTER 7 158 
international terrorism as a threat to national security.

 They base their assessment n

frequency of incidents but rather on other unique features of terrorism itself, and they a

this position persuasively. However, much needs to be done to convey the message of 

significance of the threat of international terrorism to the American people and to the d

world at large. International terrorism must be shown to be more than a threat to indivi

their property, as serious as that threat may be. International terrorism must be clearly 

for what it isóa basic threat to democratic institutions and values. 

International law offers two approaches to dealing with state-sponsored interna

terrorism: the law enforcement approach and the law of armed conflict approach. Chap

compared and contrasted these approaches. The selection of an approach should be ba

nature and seriousness of the threat to be managed. In choosing an approach to interna

terrorism, two fundamental questions should be answered: Can the threat best be met b

state-sponsored international terrorism as a police or as a military responsibility? Can 

better be met by force used in a peacetime or in an armed conflict context?

The United States and other like-minded democratic states have stated their pre

for tire law enforcement approach. They have opted to deal with international terrorism 

essentially a police function and to characterize use of armed force abroad as taking pl

peacetime context. This choice has been made, however, without a thorough considera

law of armed conflict. 

Applying the law of armed conflict to international terrorism will not decrimin

terrorist acts nor will it give terrorists the status of privileged combatants. More specif

will not entitle them upon capture to prisoner of war (POW) status. The law of armed c

offers great potential in dealing with terrorism. It treats international terrorism as a mo

warfare but condemns terrorism as a method of warfare. It universalizes the crimes of 

It authorizes certain conduct (such as armed reprisal) not permitted in a peacetime con

would justify more easily the use or threatened use of armed force and, by conceptuali

terrorism in an armed conflict mode, would assist in developing military doctrine, strat

tactics, and rules of engagement for combating terrorism.

There are two difficulties with the law of armed conflict approach. First, this ap

would require a recognition of a state of armed conflict, which may be politically unac

Second, it would require rethinking the unthinkable: The law enforcement approach to 

is sacrosanct. Assumptions about terrorism and about the law enforcement approach ar

unquestioned, although they should be challenged, discussed, and reconsidered. The 

unwillingness of top decisionmakers in the United States and Western Europe to quest

enforcement approach makes a serious review of the law of armed conflict approach h

unlikely but perhaps not impossible. In his annual report to Congress for fiscal year 19

Secretary of Defense Caspar Weinberger wrote these encouraging words: ìWhen terro

sponsored by the leaders of sovereign states as a tool of aggression, however, it moves 

the realm of an internal police matter to a higher levelóthat of international conflict in

state-to-state confrontation.î2

CHAPTER 7 159 
with international terrorism in varying degrees. They may be sponsors or supporters. O

may be unwilling or unable to deal with terrorists. Some kinds of involvement will leg

use of force against these states as well as the terrorists, while other involvement will j

forcible action against the terrorists. Other kinds of involvement will authorize only de

that the responsible government pay damage claims. The United States should conside

of monetary claims where appropriate in circumstances where states fail to perform pr

international duties. 

The doctrine of state responsibility discussed in chapter 3 also has been neglect

deserves much greater attention. Where the doctrine of state responsibility authorizes u

military force against both the state and international terrorists, it will be necessary to e

the appropriate link between them by sufficient evidence. What constitutes sufficient e

judgmental. This evidence when presented in the appropriate world forum should pers

the public at home and the international community of the propriety of the action. Acq

evidence and being able to release it while protecting sensitive sources, methods, and m

intelligence collection raise difficult problems. There is need for a serious review of th

body of United States law and regulations on this subject. 

Even if the link of state involvement can be shown, projection of armed force a

depend additionally on whether intervention can be justified and whether a legal ration

use of force can be found. Force is not to be used for trivial purposes but only to maint

essential rights. National security is an essential right. Once again, the nature and serio

the threat of state-sponsored international terrorism becomes extremely relevant. Is the 

state-sponsored international terrorism in the particular situation at hand a threat to nat

security? If the answer is negative, then intervention by armed force should not be seri

considered unless an invitation or request for assistance is received from the governme

whose territory the exercise of armed force is to take place. 

Chapters 4-6 surveyed 13 legal arguments to support the permissible use or thr

use of force itself. This review demonstrates that self-defense offers the strongest legal 

forcible action under the UN Charter and contemporary customary international law. S

defense includes individual self-defense, individual anticipatory self-defense, collectiv

defense, collective anticipatory self-defense, and protection of oneís own nationals. Al

elements of the international community will always question whether the facts prevai

time properly justified a reliance on self-defense, acting from an accepted legal precep

different order of problem than trying to justify oneís actions based upon a legal argum

apart from the factual situation, is itself highly suspect. In the former case, the facts are 

in the latter case, both the facts and the law are at issue. Examples of legal arguments t

highly suspect are peacetime reprisal, humanitarian intervention, and self-help. These 

arguments do not enjoy widespread support in the international community nor have th

accepted by the United States as a proper basis for armed action. 

Other legal arguments, such as piracy and hot pursuit, are accepted by the inter

community but are so narrowly defined as to be of limited usefulness in dealing with t

CHAPTER 7 160 
Invitation is a unique legal argument because it, in effect, changes the legal rel

among the parties. There is no issue of inviolability of territorial sovereignty nor of use 

force against another state. The only real issue is the validity of the invitation itself. Re

peacekeeping actions offer a special opportunity to respond to terrorism in a collective 

the will to act in concert exists and the other requirements for this kind of action can b

Because of the requirement of prior authorization of the UN Security Council, regiona

enforcement action, on the other hand, is not likely to be a viable option. 

Appendix A identifies each of these legal arguments or options and their condi

matter which option is selected, certain fundamental minimum standards must be met.

1. The use of armed force must be strictly limited to the purpose authorizing its 

use in the first place. If in self-defense, then the action must be protective, not 

punitive. If to protect oneís own nationals, then the action must not seek to pro

nationals of other countries or to reorder the domestic political system. If by 

invitation, then the action must be limited to the terms of the invitation and mu

be terminated when the invitation is withdrawn by proper authorities. An action 

based upon many legal argumentsósuch as the 1983 US action in Grenada, 

which was based on protection of oneís nationals, regional peacekeeping, and 

invitationónot only broadens the purpose for which the armed force may be u

but strengthens the overall case for a military presence. 

2. The use of military force must be proportional to the injury suffered and the 

military objective sought. It must not be excessive. Only military targets may b

subject to direct attack and collateral civilian damage and injury must be 

minimized. 

3. The use of force must be as a last resort. Pacific remedies, if available, must 

exhausted. 

4. Report of the action must be made promptly to the appropriate world 

community organs. 

These minimum standards, combined with the more specific conditions of a pa

legal argument or option, will affect both the planning and execution of the military ac

including targets, tactics, and weapons used. 

What, then, is the current situation? Terrorism is not an international crime. Te

se is not outlawed although specific acts of terrorists are violations of the laws of most 

legal systems. Some acts of terrorists, such as aerial hijacking, posting letter bombs, an

directed at diplomats, are addressed in international law. But international law leaves p

and punishment to the domestic legal systems of nation-states. The extradition process

by the political exception rule, has been less than effective. Terrorists receive much lim

CHAPTER 7 161 
A military response to international terrorists and their sponsors and supporters 

by the legal arguments or options available in international law for the lawful use of ar

abroad. The presumption is against the legitimacy of military intervention and the use 

The state exercising the use of force has a heavy burden of proof if it is to show that it

are justified in law. Fundamentally the acting state must persuade the world communit

public at home that, in the particular situation in which it acted, the harm that the interv

and the use of force inflicted on international order was not as great as the threat posed 

international terrorism went unchecked. The basic underlying purpose of all law is to b

interests. For the present, the scales of international law may seem out of balance, favo

terrorism over intervention and a forcible response. But if this state of affairs exists, it 

only because the world community has not come to see terrorism as a threat so serious 

compelling as to mandate a readjustment of the scales. 

By electing a law enforcement approach to international terrorism, states that a

of terrorism have reaffirmed the current balance of interests. These states have assesse

international terrorism and found it to be essentially a challenge for civilian police auth

and not a type of armed conflict threatening the fiber of the international community. I

circumstances, use of military force as a terrible swift sword rarely will he legally justi

victim states will be reduced to issuing lame warnings about the use of military force t

time will have an adverse impact on the credibility of their response to the terrorist thr

CHAPTER 7 162 
1. Joint Chiefs of Stall, United States Military Posture FY 1988 (Washing

1985), 93. 

2. Department of Defense, Annual Report to the Congress, Fiscal Year 19

of the Secretary of Defense Caspar W. Weinberger to the Congress on the FY 1988/FY 

Budget and FY 1988-92 Defense Programs (Washington, D.C.: 12 January 1987), 61. 

CHAPTER 7 163 
USES OF ARMED FORCE CHECKLIST 

(LEGAL) 

KEY 

Option #: Potential legal basis for action 

Source: Origin of legal justification

Article 38, Statutes of International Court of Justice (ICJ), identifies 

three origins of international law: custom (the practice of states accepte

as legally required), treaty (bilateral and multilateral agreements ratifie

by states), and general principles recognized by civilized nations 

(common principles of law found in the domestic legal systems of state

which can, therefore, be given international law application). 

Acceptability Degree to which international 

community has accepted legal 

justification in principle.

Ratings: high, moderate, or low. 

Cross-reference: Location of explanatory text in this 

study. 

Review text before using checklist! 

Conditions: Requirements of legal justification 

that must be satisfied; all must be me

Option 1: Individual Self-Defense 

Source: Custom and treaty (UN Charter, art. 51) 

Acceptability: High 

Cross-reference: Chapter 4 

Conditions:

1. The purpose of the action is to preserve the status quo, to be preventive and 

punitive. 

2. The action is in response to a prior unlawful act. 

APPENDIX A 164 
4. The action is in response to an actual armed attack by another state or recog

international entity. 

5. The response is timely, that is, in close proximity to the attack. 

6. The action is taken as a last resort. All peaceful remedies have been exhaus

Remedies have been exhausted if unavailable or if fruitless to pursue. 

7. The action is necessary. The situation is compelling requiring an immediate 

to a great, direct, irreparable, and instant challenge. 

8. The action is proportional both in response to the wrong suffered and the fo

employed to achieve the objective of the individual self-defense. 

9. The action is reasonable, viewed in its entirety. 

10. The measures taken are reported after the fact to the UN Security Council i

accordance with article 51 of the Charter. (Intrinsic to this report is an admissio

action in individual self-defense.) 

11. The action is terminated promptly should the UN Security Council take eff

measures to resolve the situation in accordance with article 51 of the Charter. 

Option 2: Individual Anticipatory Self-Defense

Source: Custom and treaty (UN Charter, art. 51) 

Acceptability: Moderate 

Cross-reference: Chapter 4 

Conditions:

1. The action is taken in response to an imminent armed attack by another stat

recognized international entity. 

2. The action conforms with conditions 1-3 and 5-11 of option 1, individual se

defense. 

APPENDIX A 165 
Source: Custom and treaty (UN Charter, art. 51) 

Acceptability: High 

Cross-reference: Chapter 5 

Conditions:

1. The purpose of the collective action is to preserve the status quo, to be prev

not punitive. 

2. The collective action is in response to a prior unlawful act directed at the in

victim state. 

3. The collective action is taken to protect essential rights of the injured or vic

(generally considered to be national security interests). It is not required that th

states take action to protect their essential rights.

4. The collective action is in response to an actual armed attack by another sta

recognized international entity against a victim state. The actual armed attack n

directed against the assisting state or states exercising the right of collective sel

But, assisting states may provide assistance only if the assisted state is, in fact, 

state subject of actual armed attack. 

5. The collective action in response must be timely, that is, in close proximity 

attack. 

6. The collective action is taken as a last resort. All peaceful remedies must ha

exhausted. Those remedies would be considered to have been exhausted if unav

if their pursuit would prove fruitless. 

7. The collective action is necessary. The situation is compelling requiring an 

response to a great, direct, irreparable, and instant challenge. 

8. The collective action is proportional both in response to the wrong suffered 

force to achieve the objective of collective self-defense. 

9. The collective action is reasonable, viewed in its entirety. 

10. The measures taken are reported after the fact to the UN Security Council i

accordance with article 51 of the Charter. (Intrinsic to this report is an admissio

action in collective self-defense.) 

11. The collective action is promptly terminated should the UN Security Counc

effective measures to resolve the situation in accordance with article 51 of the 

APPENDIX A 166 
Source: Custom and treaty (UN Charter, art. 51) 

Acceptability: Moderate 

Cross-reference: Chapter 5 

Conditions:

1. The collective action is taken in response to imminent armed attack by anot

or recognized international entity against a victim state. The imminent armed a

not be directed against the assisting state or states exercising the right of collec

defense. But assisting states may provide assistance only if the assisted state is

the victim state subject to imminent armed attack. 

2. The collective action conforms with conditions 1-3 and 5-11 of option 3, co

self-defense.

Option 5: Regional Enforcement Action 

Source: Custom and treaty (UN Charter, art. 53, chap. 

VIII) 

Acceptability: High 

Cross-reference: Chapter 5 

Conditions:

1. The action is taken by a regional organization. 

2. The action is taken for enforcement purposes. This condition presupposes t

existence of something to enforce, such as, a binding decision of the UN Secur

Council. 

3. No action is taken without prior approval of the UN Security Council in acc

with article 53 of the Charter. 

4. In accordance with article 54 of the Charter, the UN Security Council is kep

informed at all times of all aspects of the action, to include actions contemplate

undertaken. 

APPENDIX A 167 
Source: Custom and treaty (UN Charter, art. 52, chap. 

VIII) 

Acceptability: High 

Cross-reference: Chapter 5 

Conditions:

1. The action is taken by a regional organization. 

2. The action is taken for the purpose of restoring law and order in the face of 

breakdown of public order. This is not an enforcement action. This is not a san

action against a government. 

3. In accordance with article 52, paragraph 1, of the Charter, the action taken 

consistent with the purposes and principles of the UN Charter, for example, fur

democratic elections, self-determination, and the like. 

4. The action should not be conducted without an invitation from the establish

constitutional government. If such a government no longer exists due to civil d

then the requirement can be omitted. 

5. In accordance with article 52, paragraph 2, of the Charter, the action is take

resort. All peaceful remedies must have been exhausted. Remedies have been e

if unavailable or if fruitless to pursue. 

6. In accordance with article 54 of the Charter, the UN Security Council is kep

informed at all times of all aspects. This includes action contemplated or under

Option 7: Invitation 

Source: Custom

Acceptability: High 

Cross-reference: Chapter 6 

Conditions:

1. The invitation is extended by a lawful government. 

2. The official extending the invitation possesses the constitutional authority t

3. The invitation is extended freely without coercion or intimidation. 

APPENDIX A 168 
Source: Custom

Acceptability: Low 

Cross-reference: Chapter 6 

Conditions:

1. The resort to armed force is taken without belligerent intent. The action is a 

peacetime response. There is no declaration of war and no intent to recognize a 

armed conflict. 

2. The action is taken in response to the prior illegal conduct of another state o

recognized international entity. 

3. The purpose of the action is punitive not protective. Since the action occurs 

harmful attack or threat has passed, it cannot be protective. 

4. The action is taken only after a demand has been made and the offending st

been given a reasonable time to make reparations or agree to correct its conduc

demand must be publicized. 

5. The action is taken as a last resort. Peaceful settlement efforts have failed to 

a remedy. 

6. The action is halted as soon as the offending state makes reparations for its 

conduct or agrees to cease further illegal practice.

7. The action must be proportional to the original injury suffered. It must be m

and not excessive to the wrong inflicted. 

8. The action must be taken with due regard for third states. 

9. The action must not be taken against protected persons, such as diplomats. 

10. A reprisal may not be taken against a prior lawful reprisal. 

Option 9: Protection of Oneís Own Nationals 

Source: Custom and treaty (UN Charter, art. 51) 

Acceptability: High 

Cross-reference: Chapter 6 

Conditions:

1. The action taken must be in behalf of oneís own nationals. 

APPENDIX A 169 
to act to protect ones nationals as demanded by international law. 

3. The action must be taken as a last resort. Peaceful remedies, including diplo

initiatives, must have failed or proven inadequate to ensure protection. 

4. There must be an immediate threat or danger to life or property of oneís na

5. The action taken must be to protect an essential right, such as national secu

interest, of the state which is indirectly threatened by the direct threat to oneís n

6. The action must be proportionate. The military measures taken must not be 

to the threat or to the objective to be achieved. 

7. The action must be strictly confined to protecting oneís nationals. 

8. The action must be protective and not punitive. 

Option 10: Humanitarian Intervention 

Source: Custom and treaty (human rights obligations) 

Acceptability: Low 

Cross-reference: Chapter 6 

Conditions: Unsettled as to which may be required; 

following are conditions most frequently 

identified. 

1. The action taken is in response to threats to anotherís nationals. 

2. An immediate and extensive threat to fundamental human rights exists that 

conscience of mankind. 

3. The use of force is proportional. 

4. The action has a minimal effect on the authority structure of the territorial s

5. The action is undertaken for a specific limited purpose and forces are withd

promptly when that purpose has been achieved. 

6. The action is immediately reported to the UN Security Council and to appr

regional international organizations. 

7. The recognized government has extended an invitation to intervene 

APPENDIX A 170 
9. The action is taken as a last resort. 

10. The intervening state must show relative disinterestedness by balancing the 

humanitarian interest against self-interest and power concerns. 

11. The international community has had an opportunity to verify the factual 

circumstances and has been given the opportunity to resolve the problem.

12. The action has been preceded by a demand on the territorial state to remedy 

problem. The territorial state has been given every opportunity to act effectivel

failed to do so. The territorial state is unwilling or unable to act. 

13. The action is in accordance with the rules and procedures of UN Charter, ch

or VIII. 

14. The action is taken outside of the national territorial jurisdiction of any stat

against pirates on the high seas or in Antarctica or areas with a similar regime. 

Option 11: Hot Pursuit 

Source: Custom and treaty (1958 Geneva Convention 

on High Seas, art. 23) 

Acceptability: High 

Cross-reference: Chapter 6 

1. The hot pursuit must begin within the territory of the pursuing state and con

onto the high seas or in the air above. 

2. The pursuing state must have good reason to believe that the ship has viola

or regulations while within its territory. 

3. The pursuit can begin only after a signal to stop has been given. 

4. The pursuit must be continuous. 

5. The pursuit must cease when the ship enters the territorial waters of anothe

6. Hot pursuit can be undertaken only by warships or military aircraft. 

APPENDIX A 171 
Source: Custom and treaty (1958 Geneva Convention 

on the High Seas, art. 15) 

Acceptability: High 

Cross-reference: Chapter 6 

Conditions:

1. An illegal act of vio1ence, detention, or depredation has taken place. 

2. The illegal act must have been committed for private ends: 

3. The illegal act must have occurred on the high seas and not within the territ

jurisdiction of any state.

4. The illegal act must have been committed from one private ship to another 

ship. 

Option 13: Self-Help 

Source: Custom

Acceptability: Low 

Cross-reference: Chapter 6 

Conditions:

1. Action is taken to enforce a legal right. 

[Because the acceptability level of this option is so low it is difficult to identify 

conditions.] 

APPENDIX A 172 
UNITED NATIONS CHARTER

(SELECTED ARTICLES) 

SOURCE: ìCharter of the United Nations,î 26 June 1945, Statutes at Large, 1031; Un

Treaty Series 993; Department of State, Treaties and Other International Agreements, 

1949, compiled under the direction of Charles I. Bevans, vol. 3, 1931-1949, 1153; ìAm

to Articles 23, 27, and 67,î 31 August 1965, Treaties and Other International Agreeme

(TIAS) 5857, Treaties and Other International Agreements (UST), vol. 16, pt. 2, 1134

Nations Treaty Series (UNTS), Treaties and Other International Agreements Reported 

and Recorded with the Secretariat of the United Nations, vol. 557 (1966), no. 8132, 14

ìAmendments to Article 109,î 12 June 1969, TIAS 6529, UST, vol. 19, pt. 5, 5450; 

ìAmendments to Article 61,î 24 September 1973, TIAS 7739, UST, vol. 24, pt. 2, 222

ARTICLE 2(3). All Members shall settle their international disputes by peaceful mean

manner that international peace and security, and justice, are not endangered. 

ARTICLE 2(4). All Members shall refrain in their international relations from the thre

of force against the territorial integrity or political independence of any state, or in any 

manner inconsistent with the purposes of the United Nations. 

ARTICLE 2(7). Nothing contained in the present Charter shall authorize the United N

intervene in matters which are essentially within the domestic jurisdiction of any state 

require the Members to submit such matters to settlement under the present Charter; bu

principle shall not prejudice the application of enforcement measures under Chapter V

ARTICLE 39. The Security Council shall determine the existence of any threat to the p

breach of the peace, or act of aggression and shall make recommendations or decide w

measures shall be taken in accordance with Articles 41 and 42, to maintain or restore 

international peace and security. 

CHAPTER VII, ARTICLE 51. Nothing in the present Charter shall impair the inheren

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

Nations until the Security Council has taken the measures necessary to maintain intern

peace and security. Measures taken by Members in the exercise of this right of self-def

he immediately reported to the Security Council and shall not in any way affect the au

responsibility of the Security Council under the present Charter to take at any time suc

it deems necessary in order to maintain or restore international peace and security. 

CHAPTER VIII, ARTICLE 52(l). Nothing in the present Charter precludes the existen

regional arrangements or agencies for dealing with such matters relating to the mainten

international peace and security as are appropriate for regional action, provided that su

APPENDIX B 173 
CHAPTER VIII, ARTICLE 53(1). The Security Council shall, where appropriate, util

regional arrangements or agencies for enforcement action under its authority. But no 

enforcement action shall be taken under regional arrangements or by regional agencies 

the authorization of the Security Council, with the exception of measures against any e

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

arrangements directed against renewal of aggressive policy on the part of any such stat

such time as the Organization may, on request of the Governments concerned, be char

the responsibility for preventing further aggression by such a state. 

CHAPTER VIII, ARTICLE 54. The Security Council shall at all times be kept fully in

activities undertaken or in contemplation under regional arrangements or by regional a

for the maintenance of international peace and security. 

APPENDIX B 174 
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 

(SELECTED ARTICLE) 

SOURCE: ìStatute of the International Court of Justice,î 26 June 1945, Statutes at Lar

59:1031; TS 993; Bevans, vol. 3:1179. 

ARTICLE 38(1). The Court, whose function is to decide in accordance with internatio

such disputes as are submitted to it, shall apply: a. international conventions, whether g

particular, establishing rules expressly recognized by the contesting states; b. internatio

custom, as evidence of a general practice accepted as law; c. the general principles of l

recognized by civilized nations; d. subject to the provisions of Article 59, judicial deci

the teachings of the most highly qualified publicists of the various nations, as subsidia

for the determination of rules of law.

APPENDIX C 175 
Books 

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Alexander, Yonah, ed. International Terrorism: National, Regional and Global Pe

New York: Praeger Publishers, 1976. 

Alexander, Yonah, David Canton, and Paul Wilkinson, eds. Terrorism: Theory an

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Press, 1979. 

Alexander, Yonah, and Charles K. Ebinger, eds. Political Terrorism and Energy: The 

Response. New York: Praeger in cooperation with Georgetown University 

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Anzovin, Steven, ed. Terrorism. The Reference Shelf, vol. 58, no. 3. New York: H. 

Co., 1986. 

Bassiouni, M. Cherif. ed. International Terrorism and Political Crimes. 3d Con

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Institute for Advanced Criminal Sciences, 1975. 

Becker, Jillian. The Soviet Connection: State Sponsorship of Terrorism. Kent, Englan

Publishers, 1985. 

Bergen, P. L., and T. Luckman. The Social Construction of Reality: A Treatise in the 

of Knowledge. Garden City, N.J.: Doubleday and Co., 1966. 

Bishop, William W., Jr. International Law: Cases and Materials. 2d ed. Boston: Lit

and Co., 1962. 

Black, Cyril E., and Richard A. Falk. The Future of the International Legal Ord

Conflict Management, Princeton, N.J.: Princeton University Press, Center for In

Studies, 1971. 

Bowett, D. W. Self-Defence in International Law. New York: Frederick A. Praeger, 19

Boyle, Francis Anthony. World Politics and International Law. Durham, N.C.: Duke 

Press, 1985. 

Brierly, James L. The Law of Nations, 6th ed. Sir Humphrey Waldock, ed. New Yo

University Press, 1963. 

Briggs, Herbert W., ed. The Law of Nations, 6th ed. New York: Appleton-Century-Cr

Brownlie, Ian. International Law and the Use of Force by States. Oxford, Englan

University Press, 1963. 

Buckelew, Alvin H. Terrorism and the American Response. San Rafael, Calif.: MIRA 

Press, 1984. 

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Bull, Hedley, ed. intervention in World Politics. Oxford, England: Clarendon Press, 19

Castaneda, Jorge. Legal Effects of United Nations Resolutions, New York: Columbia 

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BIBLIOGRAPHY 176
Dobson, Christopher, and Ronald Payne. Counterattack: The Wests Battle against the 

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Evans, Alona E., and John F. Murphy, eds. Legal Aspects of International Terrorism, 

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Farrell, William Regis. The U.S. Government Response to Terrorism: in Search of a

Strategy. Boulder, Colo.: Westview Press, 1982. 

Fenwick, Charles G. International Law. 3d ed. New York: Appleton-Century-Crofts, 1

Fox, Donald T., ed. The Cambodian incursion: Legal issues; Proceedings of th

Hammarskjold Forum. Dobbs 

Ferry, N.Y.: Oceana Publications for Association of the Bar of New York City, 1972. 

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Publications, 1983. 

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1985. 

Garcia-Mora, Manuel R. International Responsibility for Hostile Acts of Private Pers

Foreign States. The Hague, Netherlands: Martinus Nijhoff, 1962. 

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Green, N. A. Maryan. International Law: Law of Peace. Plymouth, England: Mac

Evans, 1982. 

Grotius, Hugo. De Jure Belli ac Pacis, Libri Tres. [the law of war and peace, 3 bks.] 

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Han, Henry Hyunwook, ed. Terrorism, Political Violence and World Order. Lan

University of America, 1984. 

Jessup, Philip C. A Modern Law of Nations. Vol. 1. New York: Macmillan Co., 1948. 

Joyner, Nancy Douglas. Aerial Hijacking as an International Crime. Dobbs Ferry, N.

Publications, 1974. 

Kelsen, Hans. Principles of International Law. 2d ed. Rev, and ed. Robert W. Tucker. 

Halt, Rinehart and Winston, 1966. 

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Michie Co., 1982. 

Livingston, Marius H., Lee Bruce Kress, and Marie G. Wanek, eds. International T

the Contemporary World. Westport, Conn.: Greenwood Press, 1978. 

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Terrorism. Foreword by Robert McFarlane. Lexington, Mass.: D. C. Heath and Co

McDougal, Myres, and Florentino P. Feliciano. Law and Minimum World Public O

Haven, Conn.: Yale University Press, 1961. 

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Seminar, Tel Aviv, 1979. Frederick, Md.: University Publications of America, 198

BIBLIOGRAPHY 177
Murphy, John F. Punishing International Terrorists: The Legal Framework for Policy 

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House, 1969. 

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