International Legal Responses to Terrorism

I. INTRODUCTION On average, from 1993 to 1998, eleven Americans died as victims of international terrorists each year,(1) but the effect of terrorism--the quintessential "propaganda of the deed"--goes far beyond those numbers. Indeed, it may paralyze even powerful governments, as occurred to the United States when its diplomats were taken hostage in 1979.(2) Now, the technology of transportation about the planet has advanced to the point where it has become increasingly easy to plan and implement highly destructive terrorist actions in the territory of another state, whether the technique of destruction is by electronic or kinetic intervention, or by conventional explosive, nuclear, chemical, or biological weapons. The diffusion of modern technology, the astonishing proliferation of information about the ways and means of conducting terrorist actions, and the amplification of the damage that terrorists now seem capable of wreaking, seem likely to make terrorism more attractive to would-be users and, as a result, of vastly heightened concern to an increasingly large class of potential targets. When the source of terrorism is foreign, or parts of the planning and implementation occur outside the target state, the responses of the targeted government are necessarily international political events.(3) International law becomes engaged and, as such, it may have significant effects on the range of options available to the target state and its nationals.(4) Yet, as we will see, the international prescriptive or law-making responses to international terrorism have manifested a remarkable resistance to comprehensive analysis and development of an appropriately diverse set of authorized responses. My remarks today are concerned, first, with inventorying the ways that international law affects the shaping of government responses to international terrorism by prescribing generally or particularly the contingencies, procedures, and scope of response--be it unilateral or multilateral--lawfully available to a target; and second, with exploring the reasons for the rather spotty record of achievement. To make this big task more manageable, I propose to identify the key categories of potential authors of international terrorism and then to examine trends of legal decision with respect to the parameters of lawful responses that have been created for each of them. Plausible responses by targets will be appraised, not simply in terms of certain rules that are supposed to form part of a black-letter code of international law, but in terms of the acceptability of those responses, in different contexts, to the contemporary international decision process. By that decision process, I do not mean only the responses of officials of states, but the aggregate actual international decision process, comprised, as it is, of governments, intergovernmental organizations, non-governmental organizations, and, in no small measure, the media; in short, all the actors who participate in assessing, retrospectively or prospectively, the lawfulness of international actions and whose consequent reactions constitute, in sum, the international decision. The legal scholar, too, plays a distinctive role in this decision process, for the object of inquiry in all legal research is a complex variable that is influenced by its mere observation and may be adjusted, sometimes significantly, to accord more closely to the preferences of the scholar. The New Haven School(5) explicitly acknowledges this ineluctable feature of scholarship, insisting that it is not sufficient for the scholar simply to identify and assemble trends in decision. Trends must then be tested against the requirements of world public order as a means of assessing their adequacy. Insofar as they are found wanting, scholars should take the responsibility of proposing alternative arrangements so that a better approximation of political and legal goals can be achieved in the future. …