Crimes of War

September 21, 2001

Steven R. Ratner
Albert Sidney Burleson Professor in Law University of Texas Law School

The events of September 11 were an act of terrorism as that term is generally used by the public. However, the appellation is so vague that it does not prove a useful legal construct for examining the lawfulness of various responses.

The attacks can be looked at through two lenses. First they might be viewed as an armed attack on the United States. International law does not use the term war, since in the past that suggested the need for a declaration of war by one or both parties. The problem with calling it an armed attack is that traditionally that term has been defined as an act committed by a state or by state agents. Nonetheless, the Security Council's recent resolution condemning the incidents refers to a state's right of inherent self-defense against armed attack. Looked at through the second lens, these were criminal acts against persons on U.S. soil. They are clearly violations of U.S. law and also international crimes -- aircraft hijacking, aircraft sabotage, and probably crimes against humanity.

The United States has acted in accordance with both views in previous cases of terrorist attacks on U.S. targets. After suspecting that Libya had organized the 1985 bombing of a Berlin night club in which one U.S. armed service member was killed, the U.S. engaged in air strikes against Libya in 1986, justifying its actions as self-defense in response to an attack. In addition, the United States used air strikes against Iraq in 1993 after suspecting it was behind a conspiracy to kill former President Bush during a visit to Kuwait. On the other hand, after the bombing of Pan Am Flight 103 in 1988, the United States did not respond militarily, but instead demanded the extradition of those whom it suspected were responsible. Other terrorist attacks on American targets, including the 1993 World Trade Center bombing, were also handled through law enforcement, rather than military, channels.

Armed conflict has traditionally been viewed as hostilities among states or groups seeking territorial control of land. However, states (in particular the United States and Israel) have on occasion asserted a right of self-defense against foreign-based terrorists. In most cases, the state that is the victim of terrorism has identified a certain state as the target of the attacks and then responded against it.

When President Bush declared the attacks to have been “an act of war,” he was not using the term in its strict legal sense, but for domestic political purposes, and as a warning that the U.S. was preparing a military response. Of course there are restrictions on the kind of action that can be taken.

Although the laws of war -- international humanitarian law -- were
developed and codified to apply to state-to-state wars, and then civil wars, they clearly should be applied in situations of armed conflict against groups that engage in hostilities even if there is no intention to take physical control of territory. The purpose of international humanitarian law is to regulate conflict so as to avoid unnecessary suffering of combatants and insulate from injury those who are not combatants. Those rationales apply equally to a “war on terrorism” even if the Geneva Conventions and Protocols are on their face limited to interstate and civil wars.

If we accept that an armed attack has occurred against the United States, then those engaging in the attacks are legitimate targets for self-defense. These would include members of terrorist cells involved in the attacks wherever located. Persons not members of the cells are not legitimate targets. The harder question is whether states in which terrorists are located are legitimate targets. Under principles of state responsibility, the burden is quite high to show that private persons are actually agents of the state. The evidence so far does not suggest that those committing these acts meet the standard for being true agents of the state. Whether a state is responsible for aiding and abetting terrorist acts is also a difficult question. The international conventions on hijacking and sabotage do obligate states to take measures against these acts, so states failing to do so incur responsibility for those violations. Failure to prevent hijacking and sabotage that originates on their territory could translate into making states accomplices to the armed attack since, in this case, the hijacking and sabotage were undertaken in the form of an attack against the United States, rather than simply as hijacking or destruction of aircraft. The issue, however, is not free from doubt.

On the other hand, if we do not look at this as an armed attack, then the U.S. would have to treat this as a law enforcement matter. Two important consequences follow: the United States could not use force against states that refuse to extradite unless somehow the Security Council authorized it; and the state with custody of an offender would have the option to prosecute. Indeed, the multilateral hijacking and sabotage conventions give the state with custody of an offender the choice of prosecuting or extraditing. This will create a difficult situation if the U.S. does not trust the judicial system of the state holding an offender. In 1992, when the U.S. and U.K. demanded that Libya turn over suspects in the Pan Am 103 bombing, Libya refused; the U.S., U.K., and France convinced the Security Council to pass sanctions on Libya in response. Libya insisted that it had the right to prosecute if it chose, and sued the U.S. and U.K. in the World Court. The case has still not been decided.

Finally, at some point, the U.S. will have to make difficult decisions about what “harboring” means. Are Switzerland, Liechtenstein, or the Bahamas harboring terrorists if their bank secrecy laws make tracking account holders difficult? It would be very difficult to argue that those states are legitimate military targets based on that connection alone, but the Bush doctrine does not seem to recognize this complexity. Beyond military action, is the U.S. contemplating economic sanctions on those states? The United States will eventually have to weigh the need to fight terrorism with other concerns, such as economic relationships and the need for other countries' cooperation on other issues, such as nuclear non-proliferation.

I think the U.S. probably has a good case that it can act alone in self-defense, as the Security Council suggested in its recent resolution. However, the U.S. will need to make a very clear case that the targets that it attacks are legitimate in terms of their linkage to the terrorists, even at the risk of compromising certain intelligence methods. The United States will also have to act with scrupulous regard for international humanitarian norms. The more important question is really whether the United States should act alone and at what point it should act militarily.

Concerning “retaliation,” “reprisal,” and “revenge,” I would say this: These terms have various definitions, but the common thread is that they are all illegal. The violation of international humanitarian law by one side in an armed conflict does not justify its violation by the other. The United States government is aware of this and is using the locution self-defense instead.

There are as yet no international courts that could prosecute the September 11 attacks. The Security Council could create a new ad hoc international tribunal to prosecute the case. This would be slower than American justice, but might have the advantage of providing a politically face-saving way for countries harboring terrorists to hand them over.