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APV
Rogers, OBE Author, Law on the Battlefield, Fellow,
Lauterpacht Research Centre for International Law, University
of Cambridge |
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Eyal
Benvenisti
Professor of International Law, The Hebrew University, Jerusalem
Visiting Professor, Columbia Law School |
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Michael
Matheson
Senior Fellow
U.S. Institute of Peace |
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H.
Wayne Elliott, S.J.D.
Lt. Col. (Ret.) U.S. Army Former Chief, International Law Division;
Judge Advocates General School, U.S. Army |
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Robert
Kogod Goldman
Professor, Washington College of Law
American University |
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Steven
R. Ratner
Albert Sidney Burleson Professor in Law University of Texas
Law School |
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David
Turns, LL.M (London), Barrister
Lecturer in Law
The Liverpool Law School |
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Marc
Cogen
Professor of International Law, Ghent University |
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Surya
Narayan Sinha, Former UN
Legal Adviser in Kosovo, Zagreb, and for UN Relief and Works
Agency for Palestine Refugees, International Lawyer based in
Chennai, India. |
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September
21, 2001
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What is the best terminology for the international legal aspects of
the recent attacks and the possible U.S. response? The Administration
has used the term act of war, which is a term dating back
to the period before the UN Charter and referring to armed acts of
one state against another. I think the term is being used now more
in a political than a legal sense that is, that the recent
attacks are comparable in magnitude and kind to traditional warfare
between states and require a comparable response. The UN Charter does
not use this language, but instead prohibits the use or threat of
force by one state against another, preserving the right of each state
to act in self-defense in the event of armed attack. This, I think,
is the terminology to use in discussing the international legal questions.
The attacks in New York and Washington appear to have been conducted
by terrorists who do not constitute the government of a state. Of
course, this has happened before: the most conspicuous recent examples
involving the United States were the bombing of the U.S. embassies
in East Africa in 1998 and the October 2000 attack on the USS Cole
off the coast of Yemen. In principle, these attacks are much the same,
except of course that the loss of life in the September 11 assaults
was much greater.
These recent attacks appear to fall within the category of international
crimes. The hijacking and destruction of civil aircraft violate the
Montreal
Convention. They may also constitute crimes
against humanity, in that they were serious acts of violence
that appear to have been directed against Americans as a national
group. Of course, they also violate a variety of U.S. laws, and under
international law the United States has the right to prosecute any
individuals who were involved in planning and carrying out these crimes,
provided it can obtain jurisdiction over them, just as it had the
right to try persons who were involved in the East Africa bombings.
The main question under international law is the extent to which the
United States may now use force in foreign territory against the suspected
terrorist network or states which may have supported it. The Administration
appears to be planning for the possibility of such action, particularly
with respect to the Bid Laden network in Afghanistan.
The Security Council has the power, under Chapter
7 of the UN Charter, to authorize such action if it determines
that the situation constitutes a threat to international peace and
security. In its decision on September 12, the Council did determine
that the attacks in New York and Washington constituted such a threat,
but did not expressly authorize the use of force in response. It is
not at all clear that the Council would expressly authorize the United
States to use force in another state, given the attitudes of China
and some other members of the Council.
Nevertheless, the United States retains the right of self-defense,
which needs no authorization by the Council. In fact, NATO has already
invoked the provisions of the NATO
Charter in characterizing the attack on the United States as an
attack on all NATO members. Strictly speaking, this does not obligate
NATO members to use force to assist the United States, but they would
presumably feel obliged to at least give other forms of assistance,
such as overflight rights and material support.
Does the United States have the right to use force against the bin
Laden network, if it turns out that he was in fact behind the recent
attacks? The United States has always maintained that it has the right
to take armed action against private terrorist groups that attack
or threaten U.S. citizens, if the state in whose territory they are
operating is unable or unwilling to prevent such terrorist attacks.
I think this is correct, provided that U.S. actions are necessary,
proportionate, and in compliance with the law of armed conflict.
Would the United States have the right to use force against the state
itself under such circumstances? This is more complicated, and in
my view depends on the degree to which the state is involved in or
tolerates the terrorist operations mounted from its soil. For example,
during the 1980s the Lebanese Government was wholly unable to control
the terrorist actions of militias on its territory against U.S. forces
and citizens, even though it strongly opposed them. In that case,
it would be hard to argue that the United States had the right to
use force against the Lebanese Government, though it had the right
to respond directly against the militias.
On the other hand, if the state in question refuses to take actions
in its territory that it has the ability to take in order to prevent
terrorist acts, then it bears international responsibility for further
acts committed by that group. For example, the International Court
of Justice found that Iran was liable for the actions of the militants
who in 1979 seized the U.S. Embassy and took hostages, since Iran
clearly had the ability to terminate their occupation of the embassy,
but in fact supported and encouraged it.
I dont know exactly where the situation in Afghanistan falls
in the spectrum between the Lebanese and Iranian cases. But in my
view, a state which supports, tolerates, or assists a terrorist group
can be targeted in self-defense to the extent that this use of force
might be necessary to prevent further attacks. This will, however,
be a controversial proposition in international circles, and some
states will probably take the position that one state cannot use force
against another in such circumstances without the authorization of
the Security Council. This along with important political considerations
would make it very desirable to get as much authorization and
sanction from the Council as is possible before acting.
Finally, the attacks in New York and Washington will not be within
the jurisdiction of the International Criminal Court, when it comes
into being; among other things, the Courts jurisdiction is prospective
only. However, the Security Council could, if it chose, give jurisdiction
over these actions to the ICC or to an ad hoc tribunal, as it has
done with respect to Yugoslavia and Rwanda. I dont know whether
this would be at all likely or whether the United States would favor
such action.
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