September
21, 2001
Michael
Matheson
Senior Fellow, U.S. Institute of Peace
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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