SEPTEMBER 11TH CHANGED THE WORLD HAS IT CHANGED INTERNATIONAL LAW?

 

Christine Chinkin, LSE, December 2001.

 

Very honoured to be asked to give this lecture and welcome you all to the LSE, but have found that it presents a number of very particular challenges: I have never before had to give a paper where every day there is the fear of being over run by events – whether to write this lecture well in advance, or whether to leave until the night before to take account of latest events and I think there is perhaps now a growing fatigue around talking about the horrific events of September 11th – that we are all in some sense becoming talked out.

 

But in the climate of foreboding, uncertainty and fear in which many of these discussions have taken place, international law seems to have taken a back seat.  The discourse of politics, moral rightness and national interest have pushed talk of legal principles far from the minds of governments and the public. Rhetoric has engaged the language of law ‘we are at war’ or that this is a ‘just war’ but the analysis that should accompany the use of legal concepts has in many cases been missing. As lawyers committed to the international rule of law such omission is dangerous. We need to be able to appraise the events of September 11 and the ever more complex responses to further unfolding events in legal terms both for future guidance as to our own behaviour and for the objective assessment of that of others. However this is not so easy – there has long been remarkably little agreement between international lawyers on the applicability of IL to international terrorism in general and unsurprisingly therefore to the recent events.

 

I start with three quotes that graphically illustrate the problem and the opposite ends of the spectrum with respect to the place of law in assessing acts that defy the very concept of law:

 

Mr Vladimir in Conrad’s The Secret Agent

 

A bomb in the National Gallery would make some noise. But it would not be serious enough … But what is one to say to an act of destructive ferocity so absurd as to be incomprehensible, inexplicable, almost unthinkable, in fact mad? Madness alone is truly terrifying, inasmuch as you cannot placate it either by threats, persuasion or bribes … The attack must have all the shocking senselessness of gratuitous blasphemy.

 

George Bush on the 17 September 2001:

 

‘There are no rules.’

 

But then we have Judge Weeramantry in the ICJ considering an earlier instance of aircraft terror – the Lockerbie case:

 

‘A great Judge once observed that laws are not silent amidst the clash of arms … the entire law of the UN has been built up around the notion of peace and prevention of conflict.’

 

Perhaps can more usefully break down into four possible approaches to the role of international law:

 

1.     Deny it exists;

2.     Accept that it exists but deny its relevance to such acts and ignore it when it doesn’t support the answers that political motivation requires;

3.     Apply a subjective interpretation of IL moulded to fit the new circumstances while asserting this interpretation as well understood;

4.     Explicitly create new IL

 

Suggest that the range of actions post September 11 from diverse actors has in fact engaged in a combination of all these – but without clarifying which approach is favoured at any given time – and indeed slipping easily between them. Thus we have both the application of old international law and changed IL.

 

What I want to do is to step back and attempt to look at some of the issues of international law that arise but first a word about the very nature of international law. One problem is not that there is no international law but rather too much - an enormous number of relevant principles out there that can be drawn upon – comprising treaties, customary international law and resolutions from international organisations. IL tends to compartmentalise and provide different rules according to the relevant legal regime. There is international law relating to the military campaign, the role of international institutions, options for international justice, the role of human rights and the applicability of international standards in national courts. These principles derive from:

 

·      jus ad bellum;

·      jus in bellum – the laws of war comprising the Geneva Conventions and Hague Regulations; laws and customs of war. While their applicability to a vague notion of a ‘war on terrorism’ is controversial there can be no doubt with respect to the inter-state conflict against Afghanistan and potentially other states.

·      international criminal law and procedure – treaty based, rapidly evolving through the jurisprudence of the ICTY and ICTR

·      human rights law

·      international economic law – especially applicable to sanctions

·      refugee law and humanitarian assistance

 

But of course real life events do not fit easily into neat compartments but overlap and invite application of some rules from one area, others from elsewhere with possible conflict between rules and in the priority they should be accorded. Obviously cannot discuss all these – in particular I will not discuss the Anti-Terrorist legislation which is national law nor will I go into issues of the jus in bellum – use of cluster bombs and the like as I lack the military knowledge. Further the facts upon which legal argument must be based remain in many instances unclear. What I will therefore attempt to do is provide the legal framework in particular to the use of force, the SC Resolutions and international criminal law.

 

First must consider the legality of the decision US decision, backed by the UK to use force in Afghanistan – and possibly elsewhere. What is clear is reprisals/retaliatory and punitive measures are prohibited under UN Charter article 2 (4). Under the Charter force in IR is only justified in two contexts (this omits discussion of doctrines of humanitarian intervention and variants thereof which have not been claimed in this instance). :

 

1.     Inherent right to self defence under CIL as retained in article 51 of the UN Charter

2.     Use of force authorised by the SC under Chapter VII – as part of its primary responsibility for the maintenance of international peace and security.

 

So is there a right to self-defence in response to terrorist activities? This requires identifying the attack on September 11 as an armed attack in the wording of article 51, or an act of aggression, of which an armed attack is a sub-category. It was clearly an attack but one that is assumed to have been committed by non-state actors – does this matter? NATO did not think so in invoking article 5 on September 12th – although not called upon to give this effect to this determination. Similarly in its letter to the SC on 7 October before the commencement of the bombing campaign the US asserted that it was initiating its action in exercise of its inherent right to self-defence – although it provided little legal analysis of this position. Article 51 does not define an armed attack nor specify that it must emanate from the state and state practice is unhelpful in elucidating whether there is a right to self-defence in such circumstances. The only states with consistent practice on this are the US and Israel – two states that have suffered repeatedly from terrorist attacks from outside their territory, and which have the military and intelligence capability (perhaps) to respond. The response of other states is unhelpful in gauging lawfulness because it has been fashioned by political alliances rather than legal determination. For example, in 1986  when President Reagan ordered bombing against Libya as a response to terrorist acts against Americans in West Germany, cold war affiliations in the GA ensured a condemnatory vote (79 to 28 with 33 abstentions) and only the veto prevented a condemnatory SC resolution even though this was a stronger case in that Reagan asserted that evidence showed Libya to be directly involved.

 

The legal arguments rest on the fact that the Charter establishes a treaty regime for ordering relations between sovereign and equal nation states and is predicated upon that basis. This starting point is even clearer in the GA definition of aggression which states that ‘aggression is the use of armed force by a State ..’ Contemporary international law on the use of force is simply not written for contemporary forms of violence operating outside the inter-state paradigm.

 

Some tests have been proposed for resolving this lacuna in the law- mention three that seem useful.  One is from a US (Professor Rowles) is that a military response to terrorist attacks is lawful when the acts are on a scale equivalent to what would be an armed attack if conducted by government forces – a test recognising that states no longer have the monopoly on force and the ability to commit horrendous acts but which nevertheless equates the scale of destruction to that associated with the exercise of state powers. The second is that writers have been more prepared to countenance self defence in response to terrorist acts that occur on a state’s own territory than when they are committed against nationals abroad – perhaps one of the bases for scepticism about the legality of the bombing in Libya mentioned a moment ago. The third is that of Professor Cassese who urged a two fold test: ‘a very serious attack on the territory of the injured state or on its agents or citizens while at home or abroad’ and that these acts must form part of a consistent pattern of violent terrorist actions rather than just being isolated or sporadic attacks.’ A refinement on this proposal might be to adopt the criteria for a crime against humanity – that is that the attack should be widespread or systematic and directed against a civilian population - with the added understanding from the Statute of the ICC that talking only about the most serious offences. The scale and severity of the September 11th attacks would fit each of these tests.

 

But the issue of whether an armed attack emanating from non-state actors can give rise to the right to self-defence becomes closely connected to the questions of legitimate targets for action in self-defence and the objectives of that action. Given that terrorist cells operate through many states and are by their very nature nebulous and ill defined targets, crucially we must ask whether the state that shelters or provides a safe haven for alleged terrorists is an appropriate target. In particular is the state of Afghanistan (albeit under an unrecognised, undemocratic regime with a horrendous record for human rights) responsible under international law for harbouring those who allegedly planned and instigated the terrorist attack and does such harbouring constitute an armed attack giving rise to the right of self-defence. The military attacks have in a sense equated the Taliban and the Al Qaida network by seeking to destroy the latter through overthrowing the former. Such actions that amount to assisting one party to a civil war  go well beyond the accepted use of force in self-defence which must be exclusively directed to repel the armed attack of the aggressor.

 

There is a striking mix here of criminal law and law relating to the use of force– since all the actual perpetrators were killed in the attacks individual criminal responsibility inevitably must rest upon concepts of complicity and conspiracy and state responsibility upon harbouring those responsible for complicity and conspiracy. But the concept of state responsibility rests upon different criteria from that of individual criminal liability. A state is responsible in international law for the commission of internationally wrongful acts attributable to it. A sovereign state may determine who it admits to its territory so we need to determine when the vague concept of harbouring becomes an international wrongful act, and further sufficiently close to the notion of an armed attack to warrant self-defence. Internationally wrongful acts give rise to countermeasures – only an armed attack gives rise to the use of force justified as self-defence.  The spectrum of possible relationships between a state and terrorist groups makes this formula difficult to apply. Professor Cassese has identified six possible relationships between the state and terrorists. As the facts of the precise relationship between the Taleban and Al Quaida remain unclear (and the issue may also become relevant with respect to future targets of US force) the different possibilities are worth outlining.

 

1.     terrorist acts by state officials – clear case for state responsibility for the armed attack (Rainbow Warrior as an example);

 

2.     state employment of unofficial agents for terrorist acts – the sending by or on behalf of a state of groups that commit an armed attack or the subsequent adoption of such acts by the state,  - clear case for state responsibility for the armed attack;  but then the nexus becomes less clear cut and application more murky; for example

 

3.     state supply of weapons or financial aid;

 

4.     state supply of logistical support;

 

In the case brought by Nicaragua against the US the ICJ did not accept that the concept of an armed attack includes assistance to rebels in the provision of weapons or logistical or other support. In the Court’s words the mere supply of funds does not amount to a use of force (and consequently nor to an armed attack for the purposes of article 51) although undoubtedly an act of wrongful intervention. However the Court left open the question what direct actions are lawfully open to a state which considers itself a direct victim of another State’s wrongful intervention.

 

5.     the next level – and the most relevant – is state acquiescence to terrorist bases on its territory.

 

This should probably rank higher than 5th given the continuing need – even in the days of electronic communication – for territorial bases. There are two separate questions here: what amounts to acquiescence for imputing the acts of the non-state actors to the state for the purpose of exercising force in self-defence against it and acquiescence giving rise to a direct wrong by the state through its failure to exercise due diligence to prevent the use of its territory for the commission of a wrongful act causing harm to others – a wrongful act by omission. With respect to the second the GA has asserted the duty upon States ‘to refrain from organising … acts of civil strife or terrorist acts in another State or acquiescing in organised activities within its territory directed towards the commission of such acts’. In 1992 in a Resolution against Libya the SC used similar language to this for the purpose of imposing economic sanctions not amounting to the use of force against Libya following from the Lockerbie tragedy where the supposition was that Libya had been the base for the launching of the attack and for sheltering those responsible. This is not directly applicable here as the attacks were launched from within the US itself in many instances by people who had long left the territory of Afghanistan (if they were ever there) and who are not being sheltered there. Thus we are left with somewhat ill defined concepts of long term notions of planning, training and shelter, recalling the criminal law concepts of conspiracy and complicity. Does the state have to have known of the precise attack or is it sufficient that it knows in general of the terrorist goals? From the policy perspective of prevention of terrorism a minimal level of state involvement may be acceptable to justify a coercive response but from the perspectives of state sovereignty, restricting the concept of self-defence and thus minimising the use of force in international relations this is less clear.

 

With respect to imputing the acts of Al Qaida to the Taleban, in the Nicaragua case the ICJ imposed a strict test. It had to determine whether the illegal acts of the Contras could be imputed to the US and held that this would only be the case if the US had actually exercised such a degree of control in all fields as to justify treating the Contras as acting on its behalf and decided that it had not – a high standard. Factually , it may be difficult to determine that the state did or could exercise such control over those responsible for the commission of terrorist acts both for the purpose of imputing those acts to the state and for determining what constitutes due diligence for the prevention of such acts - indeed it might more readily be the other way around with a well-financed terrorist group propping up the state regime to benefit from the territorial protections of statehood. Still another possibility is joint liability between the state and terrorist groups if both were sufficiently involved. Since it would seem odd that the test of acquiescence for purpose of taking coercive action against a state should be lower than that of imputability of a wrongful act to a state for the purposes of state responsibility the control test must be considered applicable. We might also note that with discussion as to whether the US could be considered in violation of the laws of war with respect to the denial by members of the Northern Alliance of the protections for prisoners of war for Taliban prisoners, that is imputing those actions to the US -  there is an incentive for the test to remain the narrow one of giving instructions, directions and exercising control rather than a wider one of acquiescence in their activities.

 

6.     state provision of neither active nor passive help – failure to remove them. This constitutes a form of strict liability for harm emanating from a state as for example with some forms of environmental damage and is accordingly the hardest to justify as the basis for coercive action.

 

My conclusion from this is that the concept of self-defence has been conspicuously extended by its assertion in this case –in terms of the understanding of an armed attack, the target and objectives. However lack of protest by other states, and indeed their support through the political coalition for the action suggests a new precedent – a change in the law which we should be clear about.

 

Accepting a broader notion of self-defence, restrictions upon the use of force must remain. The duty of a state to protect its own nationals cannot be a carte blanche for any action. The well-established limitations that the force used in self-defence be instant, overwhelming, necessary, leaving no choice of means and no moment for deliberation must still apply. Here the law has presented the US with a dilemma – if it had acted immediately it would have been accused of lashing out, but if it waited and took time to deliberate the need might no longer be instant and overwhelming. The time was taken for coalition building and allowed for suggestions that through Pakistan the surrender of Bin Laden might have been negotiated, if evidence was provided. These were summarily rejected, but they weaken the case for the necessity for the use of force and the lack of any alternative. So too does the reality that there were no further attacks after the first hours on September 11th and no reliable evidence has been offered that further attacks were imminent on October 7th, or where they might be launched from. This also undermines an argument that the military campaigns are in anticipatory self-defence pre-empting future attacks. This is another controversial doctrine of international law, falling as it does outside the wording of article 51, but even if accepted the force must be targeted at the state from which the threat reliably emanates and be designed for that purpose.

 

The use of force must not involve unreasonable or excessive action. Proportionality is relevant both as justification to use force, and to the means used to conduct the war. Proportionate to what is yet another area of dispute. I prefer the interpretation that focuses on the end to be achieved rather than on the harm incurred – that is a form of deterrence and protective proportionality rather than retributive proportionality. This engages a complex calculus which we might discuss later. It is also important that the use of force – even the lawful use of force – is subject to the restrictions of the laws of war and does not relieve states of their obligations under human rights treaties. In addition to the prohibitions on civilian targets the Committee on Economic and Social Rights has reminded states that the provisions of the Covenant on Economic, Social and Cultural Rights cannot be considered inoperative or in any way inapplicable solely because a decision has been taken that considerations of international peace and security warrant the imposition of sanctions – this must apply even more forcefully where the decision is to use force, not merely to apply economic and political pressure, and is taken unilaterally without SC authorisation.

 

This leads naturally to the Security Council - So far looked at the use of force outside the institutional framework of the UN – but article 51 requires states acting in self-defence to report such steps to the Council and allows unilateral or collective self-defence only until such time as Security Council takes action for the maintenance of international peace and security. Brownlie notes that ‘the whole object of the Charter was to render unilateral use of force even in self-defence subject to the control of the Organisation.’ This also applies to any regional organisation such as NATO. Article 53 (1) prescribes that regional bodies can only undertake coercive action with the authorisation of the SC.

 

This brings us to the various SC Resolutions. Previously terrorist acts have been accepted by the SC as constituting threats to international peace and security connoting the Council’s willingness to exercise its chapter VII powers in attempts to prevent and punish terrorism in the interests of the entire international community, not just the immediate victim state. Thus after the embassy bombings in 1999 the SC imposed sanctions upon the Taliban under chapter VII for its failure to turn over Usama bin Laden to a country where he has been indicted (ie the US) , or to appropriate authorities in a country where he will be arrested and effectively brought to justice. While the Taliban clearly flouted Resolutions 1267 and 1333 those resolutions did not authorise the use of force for their enforcement and despite the US’s own action on several occasions to enforce an indictment issued by its own courts through forceful abduction, for example with respect to Alvarez Machain – a Mexican national indicted for murdering a member of the US Drug enforcement agent -  this has been rejected by other states including the UK. Many states do not hand over people for extradition on demand and the US has not justified its current use of force in terms of enforcement of these earlier Resolutions. Indeed – as stated - early suggestions for Bin Laden’s surrender to a third country were rejected out of hand. The US has only involved SC peripherally since September 11th although the great political support for taking effective action against international terrorism as shown by the GA and SC Resolutions condemning the attacks on New York and Washington suggest that it could have gained express authorisation – this was not a repeat of Kosovo where Russia and China had indicated they would use the veto against any SC authorisation of force leaving NATO action as the only perceived alternative. 

 

It has been suggested that the September Resolutions, notably Resolution 1373 of September 28th authorises the use of force. We need to look more carefully at it to see if this is so. I think the Resolution is equivocal and ambiguous. It acknowledges the right to self defence within the Preamble, not the body of the text and without explicitly saying that it arises in this instance, as it did for instance with respect to Kuwait’s right to self-defence in the Resolutions after Iraq’s invasion. Throughout it refers to terrorist acts, not ‘armed attack’ which is the trigger for article 51. The body of the Resolution provides numerous steps that states should take with respect to undermining the financing of terrorism and denying access to funds, prohibition of safe havens and taking steps to ensure criminal justice measures. It does not use the now-well established formula of authorising ‘all necessary means’ to achieve the Resolution’s objectives but rather in a paragraph devoted to cooperation through bilateral and multilateral agreements  calls upon states to take actions against perpetrators of such acts. Finally the SC expresses its determination to take all necessary steps to ensure the full implementation of the Resolution without authorising states to do the same.

 

This is undoubtedly a law-making resolution binding upon all states and setting out a wide range of administrative, policing and judicial obligations previously only binding if accepted through treaties. But there is no explicit authorisation of force. In light of the prohibition in article 2 (4) any  such authorisation must be strictly construed. The Resolution is flawed by indeterminate and open-ended wording, for example the lack of any definition of terrorist acts or terrorist actors which creates legal uncertainty and to my mind undermines its legitimacy. Indeed there has been long term disagreement about what constitutes terrorism, terrorist acts and terrorist actors – one author has found 109 different definitions. It is imperative that states reach a consensus on this, especially given the justifications of extreme measures being made under the mantle of response to terrorist acts. There is a definition of terrorist acts in the 1999 Suppression of Financing Convention but not of terrorists and in any case that Convention is not yet in force. The UK is a party but US is not although President Bush has urged its ratification by Senate. There is no reference back to this definition in the Resolution.

 

Do subsequent Resolutions retroactively endorse the action – an argument made by some commentators in the wake of the bombing of Serbia with respect to Kosovo. Two SC Resolutions were adopted on consecutive days in November. The first (Res 1377) is on global efforts to combat terrorism. It calls upon states to intensify their efforts to eliminate terrorism, lists a range of measures they should take but does not include the use of force. The second, Resolution 1378 is strangely silent about any other agency in Afghanistan other than the Afghan people. It supports the Afghan people in seeking to replace the Taliban government  (with no reference to any assistance they have received throughout the military campaign) and their attempts to establish a new regime. The Resolution also calls upon all Afghan forces to restrain from acts of reprisal and calls upon member states to support these efforts. The only hint of any foreign presence is the encouragement to member states to support efforts to ensure safety and security in areas no longer under Taliban control. Thus the resolution does not endorse the continued action for finding Bin Laden or for finishing the Taliban. Nor does it condemn the bombing and implicitly accepts its consequences – does this amount to ex post facto authorisation?

 

There are significant legal and policy reasons why collective action within the framework of chapter seven is preferable to the essentially unilateralist approach favoured by the US. Jonathan Charney – editor of the AJIL - has pointed out that acting through the UN would have provided ways for the US to provide proof as to the perpetrators and that by acting under the UN states that might have political difficulties in being seen as following the US could have responded to domestic opposition by pointing to the UN as the lead agency. Certainly a chapter seven decision would have bound states to legally binding commitments and a collective strategy in the alliance against terrorism. Instead the coalition is based upon political promises without the legitimacy or transparency of one based upon the authority of the SC, and accordingly is one that can also be left. It has also meant that international responses to terrorism are essentially dictated by a single state. The question must be asked why SC authorisation was not sought. Presumably the US feared having its hands tied and losing control of the operation, but a genuine attempt to have gained such authorisation might also have swayed doubters. What we see here is a repetition of past situations where the SC has assumed responsibility for post-conflict society building - Bosnia, Kosovo, East Timor are all examples. In practice the SC is losing its primary responsibility for the maintenance of international peace and security and the management of conflict and being reduced to the body that picks up the pieces. This might be more acceptable to targeted states than reconstruction by western states but this shift to subservience in its role must also be recognised.

 

To shift briefly from the use of force to international criminal law - different forms of  terrorist acts are subject to a range of treaty regimes – first attempt was made under the League of Nations but the Convention for the Prevention and Punishment of Terrorism 1937 received just one ratification (India) and lapsed. Subsequent treaties dating from the 1970s have been ad hoc and largely responding to specific acts – hijacking, hostage taking etc. This approach of creating separate criminal offences has to some extent redressed the lack of any international crime of terrorism. The treaties create a coherent pattern of mutual criminal cooperation. They establish jurisdiction over those committing such acts and impose the obligation upon a state where such a person is found, regardless of where the acts were committed, to submit that person to competent national authorities for prosecution or to extradite. Ratification of such a treaty serves as an extradition treaty if there is no other such treaty in force between the states in question and the network effect is greatly strengthened by wide ratification. In addition the GA Ad Hoc Committee on Terrorism’s work on a comprehensive convention on terrorism has gained a new impetus. Such a comprehensive convention will provide a legal structure for combating terrorism and fill in the gaps left by the previous sectoral conventions. Even if a text is agreed it will be subject to the usual treaty making process and subsequent ratification.

 

Further can argue, I think convincingly that the events of September 11 constituted crimes against humanity as murder committed in a widespread or systematic attack directed against a civilian population with knowledge of the attack. It might be more useful to designate the events as such rather than as an act of war, although it must be remembered that at Rome the inclusion of an international crime of terrorism to come within the jurisdiction of the ICC was deliberately rejected (including by the US) and to include it through the back door route of interpretation might deter further adherents to the court. The advantage of designation as a crime against humanity is that there is individual criminal responsibility under international law and universal jurisdiction but the disadvantage remains that of finding an institution where suspected terrorists who are detained can receive a fair trial. Summary execution in the wanted ‘dead or alive’ scenario is clearly contrary to the human rights prohibition on arbitrary or summary execution. A criminal trial which stands up to scrutiny against the fair trial provisions of the ICCPR would appear essential for international legitimacy, acceptance and the integrity of our own commitments to human rights. There are perhaps three alternatives: first domestic courts of the US but the provision for military commissions does not satisfy this criteria. Second, domestic courts of other states. However although many countries had nationals among the victims and might have an interest in holding trials it might be difficult to find a state willing to undertake such a security risk and which would be widely acceptable, including to the US. Third is the possibility of an international tribunal. The International Criminal Court is not yet in existence and in any case has no retroactive jurisdiction and is rejected by the US, although the events show the potential of the Court in that in such politically and emotionally charged situations extradition to an international tribunal might be more acceptable than to a state with a particular interest in the affair. In the absence of an ICC the options are an ad hoc tribunal – along the lines of the ICTY and ICTR or an innovative, tailor-made solution such as that accepted in the Lockerbie case. One proposal has been for the SC to establish an ad hoc Tribunal with judges from a wide range of legal, cultural and religious backgrounds, and co-chaired by a US Judge and a distinguished Islamic jurist. This it has been argued would emphasise the global attack on terrorism by involving the world’s most respected jurists in bringing the perpetrators to justice.

 

Conclusions

 

Does acceptance of the legality of the use of force in the wake of September 11 change IL? I would say yes and argue that we should acknowledge this explicitly and not allow sympathy and understanding for the victims of the attacks to obscure that by so doing we are collapsing the distinctions between reprisal and self-defence. Such a stretching of self-defence creates a precedent that will be hard to bring back within limits in future cases. What would seem preferable would be to acknowledge the existing gaps in international law and seek to rectify them in a principled and rational matter. It is important that international law is both relevant to real events – which will include terrorism for the foreseeable future - and yet acts as a constraint upon unilateral force and violence. Thus need to determine an analytical framework setting out the parameters for the use of force. First, there must be a preference for Charter authorised action. The SC can (and has) recognised the threat to international peace and security caused through the actions of non-state actors. Reference to the SC allows a full and negotiated approach to the range of measures that might be taken and helps build effective and widely agreed approaches to the attack on terrorism.

 

I have already mentioned two potential tests for resort to unilateral action in response to terrorist activities committed by non-state actors. Within the framework of such tests many issues need to be addressed and worked out: must the triggering attack have occurred within the territory of the state claiming the right to use force; is an isolated attack sufficient; what is the precise relationship required between the state and those accused of being responsible for the atrocities – the Nicaragua test or some other and I would suggest that mere presence in the territory is not sufficient; what standard of evidence is needed for the use of force – surely it must be at least that of beyond a reasonable doubt needed to convict in a court of law and what scheme might be worked out for independent scrutiny of that evidence (an international magistracy?); how should proportionality be understood; how can we ensure an independent assessment of compliance with human rights standards in such situations; what is the proper timing of such action – when does it cease to be appropriate; how long can coercive action last and what are the proper objectives? Further such law must be applied rigorously and consistently – there cannot continue to be selective enforcement of international obligations – and that includes to those who are carrying out international missions.

 

Finally I would like to refer to two broader and challenging questions about the future of international law that are thrown into stark relief by these events. The first is the future of so-called failed states within the international legal process. Typically such states have become divided by conflict presented in terms of ethnic or tribal  divide (Serbia,  Afghanistan) or have no central and effective government (Somalia) or have been deemed in some sense international outlaws for failure to comply with international obligations (Iraq but not Israel). Preference of so-called  liberal states might be to have an international law operative between like-minded states based upon free market principles and civil and political (not economic and social) human rights, consigning such states to the periphery. But September 11shows us this is not possible. The weaknesses or predilections of failed states intrude upon us and so in response the sovereignty of such states has become contingent and subject to the highest level of punitive treatment with promises of reconstruction if the state then conforms to western rhetoric around human rights and democracy. This raises questions about the revival of trusteeship type principles, the basis for their imposition and important questions for ourselves as to whether we are sacrificing our own commitment to the rule of law in  the name of imposing that rule of law on other states?

 

Second how does international law operate in light of its rejection or at best selective application by the US? American exceptionalism – ‘the belief that the US has a unique mission to lead the world but should be exempt from the rules’  accepted by the world community had been labelled the real dilemma confronting the international legal system even under the Clinton administration. (Hathaway) Despite the assertion that the US has returned to multilateralism after September 11 this simply is not true in terms of IL. The coalition is political not legal; the US did not defer to the SC even to the extent in did in the Gulf War – rather ‘it reserved to itself the right to decide what force to use and when to use it’ (Charney) and against whom. There is no indication that there is any movement on such multilateral issues as the human rights project or the ICC, despite major efforts in negotiation to address many of its concerns. Indeed on November 28, President Bush signed into law legislation that prohibits the use of appropriated funds for cooperation with, or assistance or other support to, the International Criminal Court (ICC) or its Preparatory Commission.[1] President Bush issued a signing statement that this provision reflects Congressional agreements that it is not in the interests of the United States to become a party to the ICC treaty. President Bush also noted his constitutional authority in the area of foreign affairs, which enable him to take actions to protect U.S. nationals from the purported jurisdiction of the treaty. This legislation was at least an improvement on an attempt by Jesse Helms to protect Americans from appearance before the ICC by prohibiting cooperation with what he terms a ‘kangaroo court’ by inter alia authorizing any necessary action to free U.S. soldiers improperly (in his view) handed over to that Court. American legal academics too have been complicit in asserting that ‘rationalised, self-interested American unilateralism is in reality disinterested global leadership’ (Hathaway) – a tendency that can only be accentuated by the undoubted great harm suffered by the US on September 11th and the deeply felt and widely shared rejection of the destructiveness of terrorism. A principled fight against terrorism must include positive steps towards long term social justice and eradication of social inequalities. In the words of Kofi Anan ‘people who are desperate and in despair become easy recruits for terrorist organizations.’ Perhaps the biggest challenge for a changed international law is genuine commitment to such objectives as a matter of law, with full US participation. 

 


[1] On Wednesday, November 28, President Bush signed into law H.R. 2500, the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act, 2002. This legislation contains an amendment, Section 630 proposed by Senator Larry Craig (the "Craig Amendment"), that prohibits the use of appropriated funds for cooperation with, or assistance or other support to, the International Criminal Court (ICC) or its Preparatory Commission.