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Terrorism, The use of Force and International Law After 11 September

Published online by Cambridge University Press:  17 January 2008

Michael Byers
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Extract

The United States response to the terrorist attacks of 11 September 2001 was encouraging for those who worry about a tendency towards unilateralism on the part of the single super-power. The US deliberately engaged a number of international organisations and built an extensive coalition of supporting States before engaging in military action.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 2 , April 2002 , pp. 401 - 414
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 See Security Council Res 188 of 9 Apr 1964, UN Doc. S/5650, <http:www.un.org/documents/scres.htm> (‘The Security Council … Condemns reprisals as incompatible with the purposes and principles of the United Nations.’).

2 See generally Akehurst, Michael, ‘Custom as a Source of International Law,’ (1974–1975), 47 British Yearbook of International Law 1CrossRefGoogle Scholar; Danilenko, Gennady, Law-Making in the International Community (Dordrecht: Martinus Nijhoff, 1993), 75–129.Google Scholar

3 Security Council Res 1368, UN Doc. SC/7143, <http:www.un.org/documents/scres.htm>.

4 Anne Penketh, ‘Annan: UN Must Have Role In Fight Against Terrorism’, Independent, 25 Sept 2001, 5.

5 Security Council Res 1373, UN Doc SC/7158, <http:www.un.org/documents/scres.htm>.

6 On material breach, see Matheson, Michael, ‘Legal Authority for the Possible Use of Force Against Iraq’ (1998) 92 American Society of International Law Proceedings 136 at 141Google Scholar; Wren, Christopher, ‘UN Resolutions Allow Attack on the Likes of Iraq,’ New York Times, 5 02 1998, A6Google Scholar; Wedgwood, Ruth, ‘The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction’ (1998) 92 American Journal of International Law 724CrossRefGoogle Scholar; Leurdijk, D and Siekmann, R, ‘The Legal Basis for Military Action Against Iraq’ (1998) 4 International Peacekeeping 71CrossRefGoogle Scholar. On implied authorisation, see Crossette, Barbara, ‘Conflict in the Balkans: At the UN; Council Seeks Punishment for the Kosovo Massacre’, New York Times, 2 10 1998, A6Google Scholar; Lewis, Neil, ‘The Rationale: A Word Bolsters Case for Allied Intervention’, New York Times, 4 04 1999Google Scholar; Wedgwood, Ruth, ‘NATO's Campaign in Yugoslavia’ (1999) 93 American Journal of International Law 828 at 829–30.CrossRefGoogle Scholar

7 A passage in the Namibia Advisory Opinion ((1971) ICJ Reports 15, 53) provides one of the very few authoritative guides to the interpretation of Security Council resolutions: ‘The language of a resolution of the Security Council should be carefully analysed … having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences …’. The context of Resolution 1373 and the kinds of ‘steps’ identified all suggest an interpretation that does not include a Chapter VII authorisation for the use of force.

8 For views supportive of this possible interpretation, see: ‘Tony Blair: Interview’, Daily Telegraph, 24 Oct 2001, 4 (‘We are entitled to take action against him [bin Laden]. A UN Security Council resolution authorised that.’); Serge Schmemann, ‘UN Requires Members to Act Against Terror,’ New York Times, 29 Sept 2001, A1 (‘The resolution … could clearly be interpreted to open the way for the use of force against the radical Islamic Taliban government of Afghanistan if it failed to “deny safe haven” to terrorist groups.’); Jordan Paust, ‘Comment: Security Council Authorization to Combat Terrorism in Afghanistan,’ ASIL Insight, 23 Oct 2001, <http://www.asil.org/insights/insigh77.htm>. The argument might be strengthened by reference to paragraph 3(b) of the same resolution (‘The Security Council … Calls upon all States to: … Cooperate … to prevent and suppress terrorist acts and take action against perpetrators of such acts’) and Resolution 1377, adopted on 12 Nov 2001 and thus after the US began its military offensive, where the Council ‘Calls on all States to intensify their efforts to eliminate the scourge of international terrorism’, UN Doc S/Res/1377 (2001), <http:www.un.org/documents/seres.htm>.

9 Carola Hoyos, ‘UK to chair UN sanctions committee,’ Financial Times (US edition), 4 Oct 2001, 2.

10 See generally Nolte, Georg, Eingreifen auf Einladung—Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im intemen Konflict auf Einladung der Regierung (Berlin: Springer, 1999)Google Scholar; Art 20, ILC Draft Articles on State Responsibility, in ‘Report of the International Law Commission on the work of its Fifty-third session,’ Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10, chap.IV.E.2), available at <http://www.un.org/law/ilc/index.htm> (‘Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.’). See also: Commentary to Art 20, Ibid, 176, para 8 (‘Examples of consent given by a State which has the effect of rendering certain conduct lawful include commissions of inquiry sitting on the territory of another State, the exercise of jurisdiction over visiting forces, humanitarian relief and rescue operations and the arrest or detention of persons on foreign territory’); Commentary to Art 26, Ibid, 209, para 6 (‘[I]n applying some peremptory norms the consent of a particular State may be relevant. For example, a State may validly consent to a foreign military presence on its territory for a lawful purpose.’).

11 See, eg Security Council Res 1333, UN Doc S/RES/1333 (2000); Security Council Res 1267, UN Doc S/RES/1267 (1999); both available at <http:www.un.org/documents/scres.htm>.

12 See, eg Report of the Credentials Committee, 11 Dec 1997, UN Doc A/52/719, <http://www.un.org/ga/52/credcomm/reporscr.htm>, especially paras 9 and 10. Russia and some of the former Soviet Central-Asian Republics did recognise the Alliance as the legitimate government prior to Sept 2001.

13 See generally Daniel Thürer, ‘The “Failed State” and International Law’ (Dec 1999) 81 (836) International Review of the Red Cross 731.

14 For a suggestion to this effect, see Michael Reisman, ‘International Legal Responses to Terrorism’ (1999) 22 Houston Journal of International Law 3 at 51–4.

15 Richard Lloyd Parry, ‘End of Taliban Will Bring Rise in Heroin’ Independent, 19 Oct 2001, 10.

16 Governments in exile are but the most extreme manifestation of this presumption. See: Oppenheimer, FE, ‘Governments and Authorities in Exile’ (1942) 36 American Journal of International Law 568CrossRefGoogle Scholar; Talmon, Stefan, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Clarendon Press, 1998).Google Scholar

17 See generally Wheeler, Nicholas, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000)Google Scholar; Teson, Fernando, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn) (Dobbs Ferry, NY: Transnational, 1997)Google Scholar. Cf. Byers, Michael and Chesterman, Simon, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’ in Holzgrefe, JL and Robert, Keohane, Humanitarian Intervention: Principles, Institutions and Change (Cambridge: Cambridge University Press, forthcoming 2002).Google Scholar

18 See Anthony Aust, Legal Counsellor, Foreign & Commonwealth Office, statement before the House of Commons Foreign Affairs Committee, 2 Dec 1992, Parliamentary Papers, 1992–3, HC, Paper 235-iii, 85, reproduced in (1992) 63 British Yearbook of International Law 827; Sir Jeremy Greenstock, UK Permanent Representative to the UN, statement to the Security Council on 24 Mar 1999, UN Doc S/PV.3988 (1999) 11–12, reproduced in (1999) 70 British Yearbook of International Law 580–1. See also 4th Report of the House of Commons Foreign Affairs Committee, 2000, HC 28-I, which points out that the UK Government justified humanitarian intervention only ‘as an exceptional measure in support of purposes laid down by the UN Security Council … where that is the only means to avert an immediate and overwhelming humanitarian catastrophe’.

19 See, eg, Bill Clinton's speech on 24 Mar 1999: ‘In the President's Words: “We Act to Prevent a Wider War”,’ New York Times, 25 Mar 1999, A15 (‘We act to protect thousands of innocent people in Kosovo from a mounting military offensive.’).

20 Deutscher Bundestag, Plenarprotokoll 13/248, 16 Oct 1998, 23129, available at <http://dip.bundestag.de/parfors/parfors.htm>.

21 See, eg Lewis, Neil A, ‘The Rationale: A Word Bolsters Case for Allied Intervention,’ NY Times, 4 04 1999Google Scholar (quoting Abram Chayes, Diane Orentlicher, Michael Reisman, Ruth Wedgwood and Thomas Franck); Christopher Greenwood, ‘Yes, But Is the War Legal?’, Observer, 28 Mar 1999; Wedgwood, Ruth, ‘NATO's Campaign in Yugoslavia,’ (1999) 93 American Journal of International Law 828.CrossRefGoogle Scholar

22 US Secretary of State Madeleine Albright, Press Conference with Russian Foreign Minister Igor Ivanov, Singapore, 26 July 1999 <http://secretary.state.gov/www/statements/1999/990726b.html>.

23 Kim Sengupta and Milmo, Cahal, ‘UN Demands Pause In Bombing To Let Aid Reach Starving Afghans’, Independent, 13 10 2001, 1Google Scholar; Andrew Buncombe and Colin Brown, ‘Short Demands Early End To Offensive As Stray Bomb Hits Kabul Homes,’ Independent, 14 Oct 2001, 1.

24 Art 51 reads: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’

25 See generally Brownlie, Ian, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) 231–80CrossRefGoogle Scholar; Bruno, Simma (ed), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994) 661–78Google Scholar; Nicaragua case (1986) ICJ Reports 14 at 102–6, 110, 122–23, paras 193–201, 210–11, 236–7.

26 See 29 British and Foreign State Papers 1137–38 and 30 British and Foreign State Papers 195–6; Jennings, Robert, ‘The Caroline and McLeod Cases,’ (1938) 32 American Journal of International Law 82.CrossRefGoogle Scholar

27 See generally: Coll, Alberto and Arend, Anthony, The Falklands War: Lessons for Strategy, Diplomacy, and International Law (Boston: G Allen & Urwin, 1985).Google Scholar

28 See: UN Doc S/PV 1939, 27, 51–9, 92 and UN Doc S/PV 1941, 31–2, reproduced in (1976) 15 International Legal Materials 1224; Michael Akehurst, ‘The Use of Force to Protect Nationals Abroad,’ (1977) 5 International Relations 3.

29 See Security Council Res. 487 (1981) (unanimous), <http:www.un.org/documents/seres.htm>.

30 Shultz, , ‘Low-Intensity Warfare: The Challenge of Ambiguity,’ Address to the National Defense University, Washington, DC, 15 Jan 1986, reproduced in (1986) 25 International Legal Materials 204 at 206Google Scholar. The so-called ‘Shultz Doctrine’ was first articulated on 25 Oct 1984. See ‘Excerpt's From Shultz's Address on International Terrorism,’ New York Times, 26 Oct 1984, A12. For a wide-ranging analysis, see Paust, Jordan, ‘Responding Lawfully to International Terrorism: The Use of Force Abroad’ (1986) 8 Whittier Law Review 711.Google Scholar

31 See the extensive analysis of State practice in: Kress, Claus, Gewaltverbot und Selbtsverteuligungsrecht nach der Satzung der Vereinten Nationen bei staatlicher Verwicklung in Gewaltakten Privater (Berlin: Duncker & Humblot, 1995).Google Scholar

32 Security Council Res 573 (1985), <http:www.un.org/documents/scres.htm>. The resolution was adopted with fourteen votes in favour and one abstention: the US.

33 See Final Document of the XIIth Summit of the Non-aligned Movement, 2–3 Sept 1998, Durban, South Africa, <http://www.nam.gov.za/xiisummit/>, para 159; (1998) Africa Research Bulletin 13268; Gray, Christine, International Law and the Use of Force (Oxford: Oxford University Press, 2000) 117–8Google Scholar. Cf Wedgwood, Ruth, ‘Responding to Terrorism: The Strikes against Bin Laden’ (1999) 24 Yale Journal of International Law 559.Google Scholar

34 Some academic commentators have been less equivocal. See, eg Cassese, Antonio, ‘The International Community's “Legal” Response to Terrorism’ (1989) 38 ICLQ 589CrossRefGoogle Scholar at 598 (‘where the terrorists are officials of the State or are de facto effectively controlled by it … international law is clear: the terrorist attack is attributable to the State and a use of force against it by way of individual or collective self-defence is allowed.’).

35 See Gray, op cit 116–17; Reisman, Michael, ‘International Legal Responses to Terrorism’ (1999) 22 Houston Journal of International Law 3 at 33–4.Google Scholar

36 See Kritsiotis, Dino, ‘The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence in International Law’ (1996) 45 ICLQ 162CrossRefGoogle Scholar; Gray, , ‘After the Cease-fire: Iraq, the Security Council and the Use of Force’ (1994) 65 British Yearbook of International Law 135 at 169–72.CrossRefGoogle Scholar

37 Nicaragua Case (1986) ICJ Reports 14 at 103, para 195.

38 Under the customary international law of State responsibility, States are only responsible for those acts of private individuals or groups over which they exercise ‘effective control’. See Art 8, ILC Draft Articles on State Responsibility, in ‘Report of the International Law Commission on the work of its Fifty-third session,’ Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10, chap.IV.E.2), available at <http://www.un.org/law/ilc/index.htm> (‘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 that conduct.’); Commentary to Art 8, Ibid, 104, para 3 (‘Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation.’). On State responsibility and terrorism specifically, see Condorelli, Luigi, ‘The Imputability to States of Acts of International Terrorism’ (1989) 19 Israel Yearbook on Human Rights 233.Google Scholar

39 It is possible that the expansion was driven, not only by legal strategy, but also by the discovery of evidence implicating the Taliban in the attacks of 11 September. See ‘Blair Presents His Case Against Al-Qa'ida Network,’ Independent, 5 Oct 2001, 4; ‘The allies’ case against Bin Laden: Extracts from yesterday's government document,’ Guardian, 5 Oct 2001, 4.

40 UN Doc S/2001/946, available at <http://www.un.int/usa/s-2001-946.htm>. See also: Wren, Christopher, ‘US Advises UN. Council More Strikes Could Come,’ New York Times, 9 10 2001, B5.Google Scholar

41 For prior academic commentary to this effect, see Schachter, Oscar, ‘The Lawful Use of Force by a State against Terrorists in Another Country’ (1989) 19 Israel Yearbook on Human Rights 209 at 215–18.Google Scholar

42 See ‘Mullah Omar—in his own words’, Guardian, 26 Sept 2001, Features, 3 (translation of interview with Voice of America); United States Diplomatic and Consular Staff in Tehran (1980) ICJ Reports 3 at 36, para 74 (Once the Government of Iran endorsed the illegal acts of Iranian militants, it became legally responsible for those acts itself).

43 See Daley, Suzanne, ‘For First Time, NATO Invokes Joint Defense Pact With US,’ New York Times, 13 09 2001, A17Google Scholar; Daley, Suzanne, ‘NATO Says US Has Proof Against bin Laden Group,’ New York Times, 3 10 2001, A1Google Scholar; ‘Rio Treaty Countries Lend Full Support to United States,’ OAS Press Release E-213/01, 16 Oct 2001, <http://www.oas.org>. The North Atlantic Treaty (‘Washington Treaty’) may be found at <http://www.nato.int/docu/basictxt/treaty.htm>; the Inter-American Treaty (‘Rio Treaty’) at <http://www.oas.org>.

44 Security Council Res 1368, UN Doc SC/7143; Security Council Res 1373, UN Doc SC/7158; both available at <http:www.un.org/documents/scres.htm>. The language used in the two resolutions differs slightly. Resolution 1368 reads, inter alia: ‘Recognizing the inherent right of individual or collective self-defence in accordance with the Charter’. Resolution 1373 reads, inter alia: ‘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)’. It could be argued that the language used in the second resolution is more expansive—and thus less restraining.

45 Drozdiak, William, ‘European Allies Back US Strikes; Japan Says It “Understands”,’ Washington Post, 21 08 1998, A20Google Scholar.

46 For a similar view, see: Frederic Kirgis, ‘Israel's Intensified Military Campaign Against Terrorism,’ ASIL Insight, Dec 2001, <http://www.asil.org/insights.htm> (‘Because customary international law is often developed through a process of official assertions and acquiescences, the absence of challenge to the US asserted right of self-defense could be taken to indicate acquiescence in an expansion of the right to include defense against governments that harbor or support organized terrorist groups that commit armed attacks in other countries.’). For evidence of support from other States, see, eg, ‘Assembly Winds Up Week-Long Debate on Elimination of Terrorism,’ UN Press Release GA/9929, 5 Oct 2001, <http://www.un.org/News/Press/docs/2001/ga9929.doc.htm>; ‘Universal Condemnation of Terrorism Continues in Assembly's General Debate, Counter-Action Supported; Five Presidents Heard,’ UN Press Release GA/9959, 11 Nov 2001, <http://www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Schmemann, Serge, ‘Near Unity at the UN On Opposing Terrorism,’ New York Times, 17 11 2001, B5Google Scholar.

47 See Security Council Resolution 487 (1981) (unanimous), <http:www.un.org/documents/seres.htm>; discussion, above 406.

48 (1967) United Nations Yearbook 166, 174 and 196.

49 Chayes, Abraham, ‘Law and the Quarantine of Cuba,’ (1963) 41 Foreign Affairs 550CrossRefGoogle Scholar.

50 (1988) United Nations Yearbook 199; Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America), Preliminary Objections, written pleadings of US, Part I, Ch II (available at: <http://www.icj-cij.org/icjwww/Icases/iirus/iirusframe.htm>).

51 See Gray, , International Law and the Use of Force (Oxford: Oxford University Press, 2000) 111–15.Google Scholar Cf SirRobert, Jennings and SirArthur, Watts (eds), Oppenheim's International Law (9th edn) (London: Longman, 1992), 421–2.Google Scholar It is noteworthy that the International Court of Justice, in its Nuclear Weapons Advisory Opinion, made no reference to anticipatory action when it declared itself unable to conclude whether the use of nuclear weapons would be legal in ‘an extreme circumstance of self-defence, in which the very survival of a State would be at stake’ (1996) ICJ Reports 226, <http://www.icj-cij.org>, at para 97.

52 UN Doc S/2001/946, available at <http://www.un.int/usa/s-2001-946.htm>. See also Wren, Christopher, ‘US Advises UN Council More Strikes Could Come,’ New York Times, 9 10 2001, B5.Google Scholar

53 The UK would seem to have already expressed its support, in a speech delivered by Defence Secretary George Hoon. See Norton-Taylor, Richard, ‘Prepare to fight terror worldwide, says Hoon,’ Guardian, 6 12 2001, 6Google Scholar (‘We may need to coerce regimes and states which harbour or support international terrorism, with the threat and, ultimately the use of, military force in the event that diplomatic and other means fail.’).

54 See generally Krisch, Nico, Selbstverteidigung und kollektive Sicherheit (Berlin: Springer, 2001)Google Scholar; Greig, DW, ‘Self-Defence and the Security Council: What Does Article 51 Require?’ (1991) 40 ICLQ 366.CrossRefGoogle Scholar

55 For the full text of Art 51, see above, n 24.

56 The French version speaks simply of agression armée.

57 See discussion: above, 408–9.

58 For the full text of Art 51, see: above, n 24.

59 In contrast, the Security Council resolution adopted immediately after the Iraqi invasion of Kuwait recognized the right of individual or collective self-defence specifically in response to the armed attack against Kuwait. See Res 661 (1990) <http:www.un.org/documents/scres.htm>; Warbrick, Colin, ‘The Invasion of Kuwait by Iraq’ (1991) 40 ICLQ 482 at 483–8.CrossRefGoogle Scholar

60 See, eg, ‘Assembly Winds Up Week-Long Debate on Elimination of Terrorism,’ UN Press Release GA/9929, 5 Oct 2001,<http://www.un.org/News/Press/docs/2001/ga9929.doc.htm>; ‘Universal Condemnation of Terrorism Continues in Assembly's General Debate, Counter-Action Supported; Five Presidents Heard,’ UN Press Release GA/9959, 11 Nov 2001, <http://www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Schmemann, Serge, ‘Near Unity at the U.N. On Opposing Terrorism,’ New York Times, 17 11 2001, B5.Google Scholar

61 See SirWatts, Arthur, ‘The Importance of International Law’, in Michael, Byers (ed), The Role of Law in International Politics (Oxford: Oxford University Press, 2000), 5 at 8Google Scholar (‘There is room for the view that all that States need for the general purposes of conducting their international relations is to be able to advance a legal justification for their conduct which is not demonstrably rubbish. Thereafter, political factors can take over …’).

62 See discussion: above 401–3.

63 See discussion: above 408–9.

64 Security Council Res. 748 (1992), <http:www.un.org/documents/scres.htm>.

65 (1975) 974 United Nations Treaty Series 177, <http://untreaty.un.org>.

66 See, eg Art 7(l)(a) of the ICC Statute, setting out the elements of the crime against humanity of murder: ‘ 1. The perpetrator killed one or more person. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systemic attack against a civilian population.’—Rome Statute of the International Criminal Court, UN Doc A/Conf. 183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>. However, a proposal to include terrorism itself as one of the crimes subject to the jurisdiction of the ICC was rejected by the Rome Conference. See UN Doc A/CONF. 183/C.1/L27; Boister, Neil, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics,’ (1998) 3 Journal of Armed Conflict Law 27.CrossRefGoogle Scholar

67 On ‘complementarity’, see Art 17, Rome Statute of the International Criminal Court, UN Doc A/Conf.183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>.

68 Sir Arthur Watts, above n 61, at 11.