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Responding to International Terrorism: Moving the Frontiers of International Law for ‘Enduring Freedom’?

Published online by Cambridge University Press:  21 May 2009

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It may be commonplace to state that the world will never be the same as it was before 11 September 2001. Yet, it is obvious that the magnitude and audacity of the horrifying events of that day have presented international terrorism in an unprecedented way, namely as a real and potentially catastrophic threat to human security and international peace. This raises the question with regards to the role of international law, and to what extent current public international law provides an adequate framework for combating international terrorism. Are further development and adaptation of principles and rules of international law necessary to deal more effectively with the threat of terrorist attacks and with those who do not play by these rules? These issues will be addressed in section 2 of this article.

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Copyright © T.M.C. Asser Press 2001

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References

2. See the thought-provoking discussions on the websites of the American Society of International Law (www.asil.org/insights), the European Journal of International Law (www.ejil.org/forum) and Interights (www.interights.org).

3. Lawful self-defence for the purpose of protecting the security of a state and its essential interests, particular territorial integrity and political independence, should be distinguished from armed reprisals. The landmark Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970, which is widely viewed as an authoritative interpretation of the Charter, proclaims in its Principle 1: ‘States have a duty to refrain from acts of reprisals involving the use of force.’

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18. Arab Convention on the Suppression of Terrorism, Cairo, 22 April 1998.

19. Treaty on Co-operation among States Members of the Commonwealth of Independent States in Combating Terrorism, Minsk, 4 June 1999.

20. Convention of the Organization of the Islamic Conference on Combating International Terrorism, Ouagadougou, 1 July 1999.

21. OAU Convention on the Prevention and Combating of Terrorism, Algiers, 14 July 1999.

22. For example, the bombing of the PLO Headquarters near Tunis, Tunisia, 1985, by Israeli forces. This was vigorously rejected by the UN Security Council by 14–0 in S/RES/573 (1985).

23. For example, the bombing raid on Libya in April 1986 in response to death and injury among American service men after a bomb explosion in a Berlin discotheque and against ‘the terrorist infrastructure of the Iraqi regime’ in 1993 following an allegedly planned but not executed assassination attempt of former President Bush on a visit in Kuwait in April 1993.

24. Incursions by the South African army from Namibia into Angola and Zambia allegedly to stop terrorism.

25. For example, in the Nicaragua case the Court stated that the exercise of the right of self-defence by a state under Art. 51 ‘is subject to the State concerned having been the victim of an armed attack’. Military and Paramilitary Activities (Nicaragua v. United States), ICJ Reports (1986) p. 103, para. 195.

26. See Arts. 100–107 of the 1982 UN Convention on the Law of the Sea, entry in force 16 November 1994. Text in 21 ILM (1982) p. 1261.Google Scholar

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28. See Art. l(f) of the UN Convention relating to the Status of Refugees, 25 July 1951; van Krieken, P.J., ed., Refugee Law in Context: The Exclusion Clause (The Hague, T.M.C. Asser Press 1999).CrossRefGoogle Scholar

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30. GA Res. 3314 (XXIX), Annex, 14 December 1974, para. 3(g). Emphasis added.

31. A/RES/49/60, Annex, 9 December 1994, para. 3.

32. Most recently, A/RES/55/158, 12 December 2000.

33. A/RES/51/210, Annex, 17 December 1996.

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37. See S/RES/579 (1985) and S/RES/638 (1989) concerning hostage-taking and abduction in Lebanon.

38. S/RES/731 and 748 (1992), 883 (1993) and 1192 (1998).

39. S/RES/1044 (1996).

40. S/RES/1189 (1998). For different views on the subsequent missile strikes against Afghanistan and Sudan, see Lobel, J., ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’, 24 Yale JIL (1999) pp. 537557Google Scholar; R. Wedgwood, ‘Responding to Terrorism: The Strikes against bin Laden’, ibid., pp. 559–576.

41. S/RES/1076 (1996).

42. S/RES/1214 (1998).

43. S/RES/1267 (1999).

44. See the Report of the UN Security Council 2000–2001, UN Doc. A/56/2, p. 275. See on the role of sanctions committees Schrijver, N. J., ‘The Use of Economic Sanctions by the UN Security Council: An International Law Perspective’, in Post, H.H.G., ed., International Economic Law and Armed Conflict (Dordrecht, Nijhoff) pp. 123161 at pp. 151–152 and 157–158.Google Scholar

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46. See the Report of the Working Group in UN Doc. A/C.6/56/L.9, 29 October 2001.

47. Art. 2, paras. 3 and 4 of the Charter of the United Nations.

48. See, for example, Brownlie, I., Principles of Public International Law, 5th edn. (Oxford, Oxford University Press 1998) p. 515;Google ScholarCassese, A., International Law (Oxford, Oxford University Press 2001) p. 236;Google ScholarRoling, B.V.A., ‘Aspects of the Ban on Force’, 24 NILR (1977) pp. 242259;CrossRefGoogle ScholarSchachter, O., International Law in Theory and Practice (Dordrecht, Nijhoff 1991) p. 131.Google Scholar

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52. For a succinct review of this issue see Gill, T.D., ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL (1995) pp. 33138 at pp. 90–106;CrossRefGoogle ScholarDinstein, Y., War, Aggression and Self-Defence, 3rd edn. (Cambridge, Cambridge University Press 2001) pp. 187189.CrossRefGoogle Scholar

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54. NATO Press release 2001, no. 124. Full text on website NATO: www.nato.int/terrorism.

55. Art. 5 of the North Atlantic Treaty Organization (‘Treaty of Washington’, 4 April 1949, text in 34 UNTS p. 243) reads: ‘The Parties agree that an armed attack against one or members in Europe or North America shall be considered an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them, in the exercise of the right to individual or collective selfdefence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof, shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to maintain or restore international peace and security.’

56. See also Ignarski, J.S., ‘NATO’, in Bernhardt, R., ed, Encyclopedia of Public International Law, Vol. III (Amsterdam, North-Holland 1997) p. 651.Google Scholar This differs from the obligation of collective selfdefence as set out in Art. V of the Brussels Treaty of 1948 establishing the Western European Union. Text in 19 UNTS p. 51.

57. See UN Docs. S/2001/946 and S/2001/947, 7 October 2001.

58. See also Art. 7 of the NATO Treaty, reading: “This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of peace and security.’ See also Simma, B., ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL (1999) pp. 1–22 andCrossRefGoogle ScholarBlokker, N.M., ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing’”, 11 EJIL (2000) pp. 541568.CrossRefGoogle Scholar

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60. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) p. 257, para. 78.

61. Moreover, it is notable that the Council refers to ‘steps’ rather than to the more usual word ‘measures’. In the author’s view ‘steps’ have a more procedural connotation, while ‘measures’ denote concrete action to be taken. Art. 51 of the UN Charter uses the word ‘measures’.

62. Like in Resolution 1368 (2001), this paragraph is included in the preamble. Its formulation is somewhat curiously: ‘Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001).’

63. See supra nn. 29 and 30, respectively.

64. See supra n. 49.

65. Fassbender, B., ‘The United Nations Charter as a Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) pp. 529619 and hisGoogle ScholarUN Security Council Reform and the Right of Veto: A Constitutional Perspective (The Hague, Kluwer 1998) pp. 130131.Google Scholar

66. See on the issue of attribution Art. 8 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts and Commentary, as adopted by the ILC in August 2001, UN Doc. A/56/10, 2001, pp. 103–109. Draft Art. 8 reads: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’

67. Military and Paramilitary Activities (Nicaragua v. Unites Stales), ICJ Reports (1986) pp. 50–54, paras. 86–93.

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69. Ibidem, p. 62, para. 108 and p. 65, para. 116.

70. Diplomatic and Consular Staff at Tehran (United States v. Iran), ICJ Reports (1980) p. 36, para. 74.

71. ICTY, Prosecutors v. Tadic, Case IT-94–1, Appeals Chamber, 1999, published in 38 ILM (1999) p. 1518 at p. 1546, para. 145.

72. See the letter dated 7 October 2001 from the US to the Security Council, UN Doc. S/2001/946, stating: ‘There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defence requires further actions with respect to other organizations and other States’ (emphasis added). During a press conference Ambassador Negopronte further remarked on this sentence: ‘… when you’re talking about the inherent right of self-defence, I don’t think that one would want to limit oneself in any particular way. I think one exercises it, when one thinks that is justified and necessary.’ Text in USUN Press Release 136 (01), 8 October 2001. Such pronouncements cannot be found in the UK letter to the Security Council of 7 October 2001 (UN Doc. S/2001/947) invoking the right of self-defence following the initiation of military action on that day.

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75. On the evolution of this concept, see Bassiouni, M.C., Crimes against Humanity in International Criminal Law, 2nd edn. (The Hague, Kluwer 1999);Google ScholarRobertson, G., Crimes against Humanity: The Struggle for Global Justice (London, Allan Lane 1999);Google ScholarFerenz, B.B., ‘Crime Against Humanity’, in Bemhardt, R., ed., Encyclopedia of Public International Law, Vol. I (Amsterdam, North-Holland 1992) p. 870.Google Scholar

76. See Art. 6(c) of the 1945 Charter of the International Military Tribunal, Annexed to the London Agreement of 8 August 1945 for the Prosecution and Punishment of Major War Criminals of the European Axis, 1945, text in 82 UNTS p. 279.

77. The only difference is that religious grounds are not referred to but only ‘persecutions on political or racial grounds’. See Art. 5(c) of the Charter of the International Military Tribunal for the Far East, 1946.

78. Art. 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, approved by the Security Council in S/RES/827 (1993). Text in 32 ILM (1993) p. 1192.

79. Art. 3 of the Statute of the International Criminal Tribunal for Rwanda, approved by the Security Council in S/RES/955 (1994). Text in 33 ILM (1994) p. 1601.

80. See Art. 7 of the Rome Statute of the International Criminal Court, 1998. Text in 37 ILM (1999) pp. 1004–1005.

81. See the rich case note by Dinstein, Y., ‘Crimes against Humanity after Tadic’, 13 LJIL (2000) pp. 373393 at pp. 386–387.CrossRefGoogle Scholar

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84. See Sailer, T.M., ‘The International Criminal Court: An Argument to Extend Its Jurisdiction to Terrorism and a Dismissal of U.S. Objections’, 13 Temple International and Comparative Law Journal (1999) pp. 311346.Google Scholar

85. Resolution E adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.

86. Press releases at www.un.org of 18 October 2001.

87. The main concern of the United States is that its soldiers in peace-keeping operations could be brought before the Court by a third state on the territory of which alleged crimes of international concern concurred. Cf, Art. 12, para. 2(a) of the Rome Statute of the International Criminal Court.

88. Cf., Gilbert, G., ‘Crimes sans frontieres: Jurisdictional Problems in English Law’, 63 BYIL (1992) pp. 415442.Google Scholar

89. ICJ Reports (1986) p. 94, para. 176, as quoted by Cassese, A., International Law (Oxford, Oxford University Press 2001) p. 305.Google Scholar

90. See Arts. 24, 39 and 51 of the UN Charter. The primary responsibility of the Security Council is also recognised in Arts. 1 and 7 of the NATO Treaty.

91. This rule of non-retroactivity ratione personae is included in Art. 24, para.l of the Rome Statute, reading: ‘No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.’

92. See also on this long-term approach Security Council Resolution 1377 of 12 November 2001, as quoted at p. 279 supra and Cassese, loc. cit. n. 67.