Crimes of War

Were the attacks of September 11 an “act of war”?

International law no longer speaks in terms of “wars,” but of “armed conflicts.” These are usually understood to be between States, although internal conflicts of exceptional intensity may also be included. The present scenario is complicated because the attacks were not directly carried out by a State, giving rise to some provocative gray areas and points of disagreement. APV Rogers notes that “the law has been moving slowly towards recognizing dissident armed factions and authorities representing liberation movements as quasi-states.” According to David Turns, “There seems little doubt that [these events] will pose a challenge to the future development of the legal definition of ‘armed conflict’ and the specific rules applicable in such conflicts.” H. Wayne Elliott disagrees: “I’m not so sure. There is evidence that bin Laden, even if not a head of State, acted with the sanction of a State. If so, what we have here is a conflict between two States.”

What are the legal limitations and restrictions on any US or international response?

On this point there is resounding agreement among our experts: Any response must adhere to the Geneva Conventions, the Hague Regulations, and all the other laws and customs of war. The most fundamental rule is that civilians and civilian buildings are immune from military attack and must not be targeted. Belligerents must at all times distinguish between military and civilian sites and direct their attacks only against the former. Military necessity must be balanced against the principle of “proportionality,” which dictates that all precautions be taken to minimize “collateral damage” (i.e., civilian casualties). “You cannot fight terror with terror,” one of our experts emphasized.

The difficulty in this case is that terrorists by definition do not wear uniforms, and deliberately protect themselves by blending in with the civilian population. All our experts are concerned that, in this scenario, the risk of collateral damage is high.

What are the roles of the UN and NATO in formulating a response?

Our experts agree that, having sustained an unlawful armed attack, the U.S. has the legitimate right to self-defense under Article 51 of the UN Charter. The U.S. would have no obligation to obtain prior authorization from the UN Security Council, but must report to the Council any actions so taken. David Turns notes that, “the need for response [must] be instant and overwhelming, with an element of urgency… The longer the U.S. waits before responding militarily to the September 11 attacks, the less it may look like pure self-defense.”

For the first time ever, the NATO Charter—which declares an attack on one member State to be an attack on all members—was invoked, and this could yield an unprecedented cooperative effort. No prior authorization is needed from NATO for a unilateral U.S. response.

At the same time, all our experts stressed the importance of building and maintaining a multi-national coalition to end the deadly menace of terror. “If threats work, so much the better,” says Eyal Benevenisti, “if they encourage cooperation from factions who have harbored bin Laden (assuming he is responsible).”

What are the legal distinctions between retaliation, reprisal,and revenge?

“Retaliation” and “revenge” have no legitimacy in international law. There is, however, the concept of “lawful reprisal,” which consists of acts which normally would be illegal, but are taken in response to prior illegal attacks. A reprisal can only be taken as a last resort in self-defense, and must be executed with the objective of ensuring future compliance with legal norms. Steven Ratner does not approve of the term reprisal, and instead stresses the importance of self-defense: “The violation of international humanitarian law by one side in an armed conflict does not justify its violation by the other.”

Is there a role for an international court?

As yet there is no international tribunal that could prosecute the crimes committed on September 11. The International Criminal Court (ICC) will not have retrospective jurisdiction. Several of our interviewees point out that the UN could establish an ad hoc tribunal on the model of the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda).