- The legality of the use of armed force or jus ad bellum

- The law applicable to the conduct of hostilities, military operations and the protection of the persons or jus in bello

The issue of the legality of the resort to the use of armed force is not part of the laws of armed conflicts but part of UN law which recognizes only two legitimate cases for using armed force: self-defense, either individually or collectively (Article 51 UN Charter) and military force approved by a resolution acting under Chapter VII of the UN Charter. Clearly, the current military operations against Afghanistan and the Al-Qaida network are based on self-defense, as recognized by the decision to activate Article 5 of the NATO treaty and Resolutions 1368 and 1373 of the Security Council.

The question of the resort to armed force is not addressed here. However, once an armed conflict arises there still remain the questions of the military objectives as well as the means and methods of combat and these fall under the ambit of the laws of armed conflicts.

1. “Law enforcement” versus “military operations’’

In the fight against international terrorism, the usual method is “law enforcement” including international cooperation between judicial authorities and police forces. Extradition or prosecution is at the heart of this approach. It was applied after the bombing of the Pan Am flight 103 in 1988. Initially Libya refused to extradite; the Security Council then approved sanctions against Libya; and the case was finally decided by a tribunal acting under Scottish law after the extradition of the suspects took place.

However, the “law enforcement” strategy becomes impossible and obsolete if terrorist organizations are granted a safe haven by one or more countries. In this scenario an alternative military action can be launched against the state and the terrorist organization on its territory for three legal purposes:

1. To restore law and order by coercing that state to withdraw its support from terrorist organizations;
   
   
2. To punish those responsible for the terrorist attacks;
   
   
3. To prevent further terrorist attacks.

Only for these three purposes can military operations against international terrorism be allowed by international law. Any transgression of these purposes or the creation of effects going beyond these purposes would constitute a “retaliation” or “revenge” operation which is clearly forbidden by current international law. However, “reprisals” are lawful when used to force the adversary to respect the laws of armed conflicts. While these three purposes fall under the right to self-defense, the Security Council maintains its authority to assess the military operations and to instruct the Member States to take other measures [UN Charter Article 51].

At present no international tribunal exists that could deal with the punishment of the terrorist attacks. After the International Criminal Court comes into being, this tribunal will be competent to deal with major terrorist attacks which can be defined as “crimes against humanity” taking into account the degree of cruelty and horror inflicted upon the civilian population. This implies that a “crime against humanity” is not necessarily connected with an armed conflict. Moreover the Rome Statute of the ICC does not specify a condition of an armed conflict.

An important element for the classification of a terrorist attack as a “crime against humanity” is the Security Council's position to consider a particular attack as a threat against peace and security. This is definitely the case for the September 11 attacks and is reflected in the wording of Security Council resolutions 1368 and 1373. Unfortunately, international case law in this respect is still not explicit. But clarification will come when the ICC begins operation.

However, doing justice is an important aspect of restoring peace and security and is, for this reason, an element of self-defense. In the absence of an international tribunal, the tribunals of the country where the terrorist attack took place should be granted priority competence. Since “crimes against humanity” involve universal jurisdiction, the “local remedies rule” implies that the tribunals of the place of the attack have priority competence.

2. An armed conflict with a “terrorist organization”?

Historically, armed conflict is considered to be a matter between states, or a civil war where belligerents, including liberation movements, have combatant status. (See Protocol I). No “terrorist organization” thus far has been deemed a combatant under the laws of armed conflict. According to the Geneva Conventions and additional protocols:

- Collective penalties and likewise all measures of intimidation or of terrorism are prohibited Geneva Convention IV Article 33;

- Acts of terrorism are prohibited [Protocol II Article 4/2(d)];

- Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited [Protocol I - Article 51/2 and Protocol II, Article 13/2]

I see no good legal reason to recognize “terrorist organizations” as combatants under the laws of armed conflicts. When Bush called the September 11 attacks “an act of war”, he referred to the act itself and not to the legal status of the terrorists under the laws of armed conflicts. His remark only made clear that the U.S. was preparing for a military response to an obvious security threat.

If the terrorist organization acts alone -- without state support and/or shelter -- then the “law enforcement” procedure is the only legal way to fight international terrorism, because other countries will render judicial and police assistance and will stick to the rule of “extradition or prosecution”. Under the law enforcement strategy a military response is not necessary and will even be considered to be illegal under international law. The “law enforcement” approach is preferred and obligatory for all states if we read Security Council Resolution 1373. Adopted under Chapter VII, it instructs the Member States to take specific actions against terrorist organizations including the prevention and suppression of the financing of terrorist acts, and pronounces that all States shall bring terrorists to justice and ensure that the punishment duly reflects the seriousness of such terrorist acts. Thus it is an international legal obligation of all Member States to make “law enforcement” effective and to afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings.

On the other hand, if a terrorist organization can rely on the protection of another state then we face a totally different situation and a military response might be undertaken as an act of self-defense. However, the terrorists themselves and their organization do not become privileged combatants under the laws of armed conflicts – they are unlawful combatants and not entitled to prisoner of war status. They can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities. In the present military operations against Afghanistan and the Taliban regime, Taliban armed forces are considered combatants under Article 43 of Protocol I; if captured, they would retain prisoner-of-war status and could be liable for charges of war crimes and other grave breaches of the Geneva Conventions and Protocols. The U.S. and UK military actions against Afghanistan constitute an international armed conflict within the meaning of the common Article 2 of the Geneva Conventions.

3. Specific questions related to military actions against international terrorism.

A first question concerns the nature and purpose of the armed force – usually referred to as means and methods of combat - required in the fight against international terrorism. Emphasis is put on the abolition of the terrorist infrastructure and capabilities, the arrest of suspected terrorists and the support of law enforcement agencies, even when the military operations are conducted in a foreign country. In this sense the military operations against international terrorism are not a conventional armed conflict against a state or a government. If the removal of a political regime is an intended political goal (for example, the removal of the Taliban regime), this goal should be kept separate from the purpose of the fight against terrorism itself. This implies that the military operations end when the terrorist infrastructure is destroyed and the suspected terrorists arrested. If not, the military operation would change into a retaliation operation.

The methods and means of warfare have also to be interpreted in the light of the fight against terrorism. Thus, if the destruction of all terrorist infrastructure is accomplished it is doubtful that sustained air strikes would be legitimate under the laws of armed conflicts. The lack of military necessity and also the rule of proportionality would be violated. Special forces on the ground cannot be replaced by air strikes when it comes to the arrest of suspected terrorists. In an era where air power has become the supreme method of warfare because of its military advantage (consider the Kosovo military campaign), this doctrine is problematic and not entirely appropriate in military operations against terrorists. This conclusion necessitates a rethinking of the appropriate means and methods of combat.

A second question is the legal definition of international terrorism. No international definition of this issue has been universally agreed upon so far. Although the lack of legal definition is largely due to political constraints, an academic definition is possible on the basis of the existing conventions against terrorism as well as the numerous resolutions of the UN General Assembly and the UN Security Council. The central element of any definition is a attack on a civilian population in order to spread fear for whatever purpose.

However, once there exists an internationally agreed–upon legal definition, the problem will still not be resolved properly unless the terrorist organizations are named and listed by a universally recognized authority or designated by an international tribunal. If not, any country would have the capacity to make its own listing. This would carry tremendous consequences on the right to resort to military force if another country disagrees with the listing and offers accommodation to the organization concerned.

Clearly some international supervisory body is needed to avoid any such confusion. Looking at Security Council Resolution 1373 there is hope that the Security Council itself can be convinced to exercise this power and be guided by the newly established Committee to monitor implementation of Resolution 1373. The Committee consisting of all the members of the Council can also enlist the assistance of appropriate experts. The risk of political considerations is high given the controversies of the past; therefore the Committee as well as the Council need to develop legal guidelines related to international terrorism and the listing of those organizations. An appeal to the ICJ should not be excluded, for example by way of an advisory opinion. This is always possible under the right of the Security Council to request legal advice from the ICJ [see Article 96/1 UN Charter].

A third question relates to the “collateral damage” issue. Taking on terrorist suspects by military force, particularly by way of air strikes, puts the civilian population at a high risk since terrorists wear no uniforms, shield themselves by merging into the civilian population and have no clear visibility. Again the methods and means of combat have to be weighed. What is the acceptable level of “collateral damage” in a military operation against international terrorism? The longer the military campaign is prolonged, the higher the risk for civilian casualties. Therefore, a time limit to a military campaign against international terrorism seems reasonable, requiring the leaders of the military operation to be open and clear on this point. A matter of weeks or months is the time scale that seems appropriate. Declarations like “the military campaign will last as long as it is necessary” avoid addressing this question and can create fears among the civilian population that the attacks are a long-term operation.

Finally, a fourth question concerns whether of the military operation risks turning the civilian population into refugees. According to UN officials (statement of October 24, 2001) the U.S. air strikes were affecting Afghan civilians. Forcing approximately 70 percent of the western city of Herat‘s 1 million residents to flee in fear. Massive flows of refugees are the direct result of the military campaign and here too the question arises on the compatibility of massive air strikes with the proper protection of the civilian population. A massive flow of refugees can hardly be regarded as acceptable “collateral damage.” Special programs and assistance are needed to keep the civilian population at home and safe. This special humanitarian requirement should be part of any military operation against international terrorism. It will put emphasis on the use of ground troops and humanitarian assistance, including protection of humanitarian convoys, as in Bosnia-Herzegovina and Sarajevo. In the Balkans war, the Security Council acted to ensure this.

Conclusion.

A military campaign against international terrorism is only allowed by international law if the normal law enforcement approach has become impossible. As a matter of self-defense, the military operations are at the same time an alternative means of law enforcement. They serve three legal purposes or objectives: 1) The restoration of law and order in the country granting a safe haven to terrorist organizations; 2) The punishment of those responsible for terrorist attacks; 3) The prevention of future terrorist attacks. Eventual political objectives of military operations must be kept separate from the legal objectives and should be assessed differently.

In the fight against international terrorism there is an urgent need to develop legal guidelines, including an international definition of international terrorism, by the United Nations. Since international terrorism is considered a threat to peace and security, the authority to advance legal rules is vested in the UN Security Council, aided by the newly established Committee and the UN General Assembly. When developing legal guidelines the advice of the International Court of Justice might be very helpful and the Security Council might be greatly helped by seeking such advice, especially to prevent or reduce political controversies.

A definition of international terrorism, although necessary from a legal viewpoint, will not be sufficient to identify all terrorist organizations. Sometimes definitions cannot solve the problem concerned. I refer to the definition of “subsidiarity” of the EC Treaty and the problems involved in delineating the powers of the EU and its member States. Therefore the Security Council, in consultation with the appropriate experts, should assume responsibility and publicly name the terrorist organizations after consideration by the Committee aided by experts. If not, every state will start to make its own list, with predictable confusion and potential danger. Again, the Security Council should base its decision on legal considerations since the fight against international terrorism is essentially a law enforcement matter.

Finally, when conducting military operations against terrorist networks in a foreign country, the strategy of massive air strikes is questionable within the requirements of international humanitarian law. Therefore, specific conditions should be considered such as a time limit of the military operations, the early use of special ground forces to arrest the suspected terrorists, and humanitarian assistance programs, if necessary under the protection of armed forces. Avoiding massive refugee flows is a humanitarian concern that deserves further attention and brainstorming by those who direct the military operations against international terrorism.