International Law

John Grant, visiting professor of law

The unfolding tragedy of 11 September has had particularly resonance for me. I was in my home in Edinburgh on the evening of 21 December 1988 when Pan Am flight 103 exploded in the skies above the small Scottish town of Lockerbie. The explosion, the result of a terrorist bomb placed in unaccompanied luggage, destroyed the aircraft, killing all 259 passengers and crew and 11 people on the ground.

I cannot share Professor Bob Mandel's apparent endorsement of the defense establishment's gloomy prognosis that the "war" against terrorism cannot be won either offensively or defensively. Perhaps because I come from a country and continent more exposed to terrorist violence over the years, I cannot accept that, in essence, there is nothing that can be done. In reality, terrorism is a phenomenon that, while it might never be totally obliterated, can be reduced and contained. Just as we cannot end all murder and rape within the country, so we cannot end all international terrorism. There can be no outright victory in this war; with commitment and effort, there will be incremental successes.

I have divided my remarks into two sections. The first addresses the legality under international law of the various responses being debated at the moment. Secondly, I will, I hope, offer a glimmer of hope in suggesting how the United States, in conjunction with other right-thinking states, might eliminate, or at the very least reduce, the scourge of international terrorism.

1. Up to the beginning of the 20th century, it was generally accepted that war was nothing more than diplomacy by another name. War was not unlawful under international law--and the laws of war related only to how the war was to be waged.

Attempts to outlaw or at least limit the legality of war in the last century proved fruitless until, in the aftermath of the Second World War, the international community agreed to make war itself unlawful. This was done in the Charter of the United Nations, Article 2(4) which required all the member states to refrain from the use or threat of force against the territorial integrity or political independence of another state.

This prohibition on war, indeed on all forms of physical force, has over the last 56 years grown to be a rule of fundamental and overriding importance, a peremptory norm of international law from which no derogation is possible (jus cogens). The breadth, depth, and strength of the prohibition against the use of force was confirmed by the International Court of Justice in the Nicaragua v. U.S.A. case in 1986. All that may sound overstated in the light of the conflicts that have occurred in that time, but that remains the rule. But no state, I suggest, would dissent from the fundamental principle. No state would claim the unlimited right to wage war on another state. Put another way, when there have been armed conflicts over the last half century, the burden has fallen on the aggressor to justify its action in legal terms. So, in 1982 the U.K. claimed self-defense as justification to oust Argentina from the Falklands/Malvinas Islands; and in 1990 the allied powers justified Operation Desert Storm partly on the basis of collective self-defense on behalf of Kuwait.

At the same time as it proscribes the use of force, the U.N. Charter does recognize two situations in which the use of force is permissible. International law has long accepted that every state has the right to defend itself, if necessary by force. This right of self-defense is confirmed in the U.N. charter: Article 51 provides that the charter does not in any way impair the "inherent" right of self-defense in the event of an armed attack. The right of self-defense may be exercised only in certain conditions. There must be an armed attack. It is not unreasonable to describe the use of hijacked aircraft as lethal weapons as an armed attack, albeit the drafters of the charter might not have envisioned this as coming within their concept of an armed attack. But the U.N. charter, like all constitutional documents, is a living instrument, and it does no violence to its object and purpose, its spirit, to regard what happened on 9/11 as an armed attack on the United States.

This armed attack was not made by another state, but rather by a terrorist group located within another state. Self-defense is premised on an attack by one state on another. Yet, there is evidence that the international community, for two years at least, has been prepared to hold the Taliban responsible for terrorist outrages perpetrated by Osama bin Laden. In October 1999, the Security Council (in Resolution 1267(1999)) condemned the Taliban for allowing their territory to be used for the sheltering and training of terrorists and the planning of terrorist acts; and demanded that an end be put to this promptly. In addition, the Security Council demanded that the Taliban surrender Osama bin Laden for trial, and threatened, and in the event imposed, sanctions for nonsurrender.

Only 10 months ago, in December 2000, the Security Council (in Resolution 1333(2000)) reiterated the condemnation of the Taliban, citing the 1988 bombings of the Nairobi and Dar-es-Salaam embassies, renewed the demands that Taliban succor for terrorists must end and that bin Laden must be surrendered. At this time, the sanctions screws were tightened.

From these Security Council findings, it is a short step to attributing the 9/11 terrorist attacks to the Taliban, at least for the purpose of invoking the right of self-defense--and always assuming, of course, that bin Laden and Al Qaeda are responsible for these attacks.

Self-defense also requires, in words emanating from the famous Caroline Incident in 1837--involving a claim by Britain that setting fire to an American-owned ship and letting it drift over the Niagara Falls constituted self-defense--that the necessity of self-defense must be "instant, overwhelming, leaving no choice of means or moment for deliberation." It is to be doubted that this high standard of threat, reminiscent as it is of the self-defense in the criminal law operating within most states, applies as rigorously today. It took the Falklands task force five weeks to get to the South Atlantic to engage the Argentine forces, yet it was not suggested that the United Kingdom had lost its right of self-defense. Likewise, in the Gulf in 1990, the five months that separated the illegal Iraqi invasion of Kuwait from the allied armed response is not generally regarded as having deprived that response of the character of self-defense.

What is important in this context is that the threat or risk permitting self-defense must be live. So, in the examples just mentioned, the U.K. and the coalition delays of between five weeks and five months are excused because the threat or risk, the occupation of the Falklands and Kuwait respectively, continued. If, for example, Iraq had withdrawn from Kuwait before Operation Desert Storm began, the coalition could not have claimed to be acting in self-defense. What the coalition would have been engaged in are reprisals, something unlawful in contemporary international law. The administration is certainly legally shrewd, and probably factually correct, to insist that the threat of further terrorist attacks from the same source is real.

So, applying the letter and spirit of international law as objectively as possible, a strong case can be made for asserting that the malign terrorist attacks of 11 September entitle the United States to the right of self-defense. The question then arises: what action is the United States entitled under international law to take in exercise of this right? Reverting again to the language of the Caroline Incident, the response must involve nothing "unreasonable or excessive." This is, in essence, a requirement of proportionality of response. And that being the case, the U.S. response must be broadly proportionate to the threat. So, while it might be permissible to launch air strikes at known or suspected terrorist bases in Afghanistan, and even to insert a military force to capture Osama bin Laden and any others who might be implicated in the 9/11 attacks, there must be doubt about the legality of indiscriminately bombing Kabul or of invading and attempting to subjugate Afghanistan.

All that said, there is another legal scenario that paints a bleaker picture for American freedom of maneuver in response to the attacks. Put simply, it is this:

International law mandates two core principles in situations of this kind--an obligation to seek peaceful solutions to disputes and a prohibition on the use of force.

Self-defense is predicated upon a state attack upon another state. There has been no state-upon-state attack, as the Taliban did not attack the WTC and the Pentagon. Nor did the Al Qaeda, assuming they are the culprits, act as an organ of or an agent for the Taliban.

Beyond that, this is not an armed attack within the meaning of the U.N. Charter. It is, rather, a terrorist atrocity committed for political or religious or whatever reasons by nonstate actors; and differs only quantitatively, and certainly not qualitatively, from many other terrorist acts perpetrated over the last half century. As such, these crimes are subject to at least one of the widely accepted terrorism conventions, which provide for penal sanctions for the perpetrators, but impose no liability on the states in which these perpetrators reside. For these reasons, the United States must settle this dispute without recourse to force and, further, has no right of self-defense.

As you might guess, I incline towards the first scenario I postulated. I do so because I think that it is more in accord with the spirit of the U.N. Charter and contemporary international law and, in particular, with what I regard as an important part of Security Council Resolution 1368 of 12 September, which refers to "terrorist attacks" and describes these attacks as "a threat to international peace and security." The express recognition in the preamble to this resolution of "the inherent right of individual or collective self-defense" can have no meaning if it is not also a recognition of the right of the United States to self-defense against these very terrorist attacks. I am convinced that the administration is in the process, by its words and actions, of constructing a solid self-defense case.

While we are with the United Nations, the Security Council has the power to impose sanctions on any state where there has been a threat to or breach of the peace. In October 1999 (Resolution 1268 (1999)) and again in December 2000 (Resolution 1333 (2000)), the Security Council characterized the Taliban's attitude toward terrorists within its territory, and the refusal to surrender bin Laden, as a threat to the peace. That characterization allowed the Security Council (under Article 41 of the charter) to impose sanctions on the Taliban, which have been in place since November 1999 and were extended in December of last year, with enforcement tightened in July of this year (Resolution 1363 (2001)).

The charter also gave the Security Council itself the power (under Article 42) to use force to maintain or restore international peace and security. For a variety of reasons, this power has never been exercised in the way envisioned by the drafters. Instead, the practice has developed of the Security Council authorizing states to act in its behalf. Thus, the 29-member coalition to liberate Kuwait in 1990 received its authorization to use force from the Security Council.

The question that arises is: Has the Security Council authorized the United States to use force to secure the surrender of Osama bin Laden and to root out terrorist nests in Afghanistan? Nowhere in the three principal resolutions of the Security Council on Afghanistan is there any express authorization to the U.S., or anyone else, to use force.

From the terms of the resolutions, it is also difficult to find any implied authorization. The whole text and tenor of the December 2000 resolution (Resolution 1333 (2000)) point to an intensification of the sanctions regime and not to the authorization of force. The resolution adopted on 12 September (Resolution 1268 (2001)), while recognizing the right of self-defense, merely calls on all states to work together to bring the perpetrators to justice. In expressing its readiness to take all steps within its power to respond to these terrorist attacks and to combat international terrorism generally, the Security Council is flagging up its intention to deal with the present crisis and the broader problem. All this is not the language of authorization for the United States to proceed unilaterally. That does not mean that the Security Council could not be persuaded to adopt a resolution expressly giving the United States, and perhaps other states, the authority to take forcible measures to bring those responsible for the 9/11 atrocities to justice.

The U.S. could, but I am sure will not, invoke the Hague Hijacking Convention of 1970, which is relevant in that the terrorist acts involved, at least initially, the hijacking of aircraft, a crime under that convention. The Hague Convention provides that the state in which hijackers and their accomplices are found should detain them, investigate the circumstance, and then either report them to its own prosecution authorities or extradite them to a country that will prosecute them. This approach is fraught with difficulties in the present case. While Afghanistan is a party to the convention, does the Taliban accept that it is bound by it? Would they, even if they could, detain bin Laden in order to investigate? Would they extradite him? Would they prosecute him? I note that the U.S. is, quite rightly, making no mention of the possible applicability of the Hague Convention, instead insisting that Osama bin Laden be handed over to "responsible authorities."

2. And so to my glimmer of hope. I confess that the international community's history of acting together over terrorism does not augur well for a cooperative and sustained thrust but, at least for now, states throughout the world seem genuinely galvanized.

There are at least 12 international conventions on terrorism. Each was the direct result of some traumatic and tragic event. This regime, if it can even justify that description, is fragmented and piecemeal and it is certainly not comprehensive. So, looking at the conventions relating to civil aviation, we have:

Tokyo Convention on Offences on Board Aircraft 1963 emanating from a long-standing concern about disputed jurisdiction over hijackings made urgent by some hijackings;

Hague Hijacking Convention of 1970, the direct result of a spate of terrorist hijackings in the 1960s, including four hijackings by Palestinian guerillas, coupled with the clear inadequacies of the Tokyo Convention;

Montreal Convention on Unlawful Acts Against Aircraft (the Sabotage Convention) of 1971, arising from a new terrorist phenomenon, the blowing up of empty planes on the ground at Dawson's Field in Jordan;

The Protocol to the Montreal Convention of 1988, the result of yet another new terrorist phenomenon, the bombing of Rome and Vienna airports.

The attacks on the WTC and the Pentagon demonstrate a further example of terrorists' depraved ability to innovate. All the conventions within this regime are a direct response to a particular incident or set of incidents. They are not well integrated, nor are they comprehensive. What is needed, as some governments and expert groups have proposed, is the conclusion of one comprehensive convention on terrorist violence in all its manifestations. We can no longer tolerate the excuse that there is no universally acceptable definition of terrorism. We do not need a definition of terrorism. We need an enumeration of the terrorist acts that we wish to proscribe. We already have a list, albeit probably a partial list, in the existing piecemeal conventions. The concept of crimes against humanity was not known until 1945, was used at Nuremberg and became part of the language of international law and relations long before it was defined. And we now have, if not a definition, then at least an enumeration of the acts which are to be regarded as crimes against humanity.

The task of listing terror crimes is not insuperable. But in doing so, we also need to ensure that center stage are the two latest terrorism conventions, on Terrorist Bombings (1998) and on Financing of Terrorism (2000), neither of which has been ratified by the United States. These mark the first attempt of the international community to address terrorist violence in the round.

We also need to put in place effective enforcement mechanisms, recognizing that today much terrorist activity has the support, encouragement, or knowledge of some governments. Enforcement should be effected at two levels. The individual perpetrators of terrorist crimes should be dealt with in normal courts of law, either in the countries in which they are found or another country with an interest to which they can be extradited (the Hague Convention model). The duty to prosecute or extradite, so central to the existing regime and so easily evaded, must be made mandatory. The state that does not prosecute or extradite should be regarded as equivalent to a harboring state and subject to sanctions through the Security Council. And as for the supporting and encouraging states, the financing states, the safe harbor states, then they too should be subject to Security Council sanctions, but these sanctions have to be severe. They have to be dealt with as international pariahs.

To demonstrate how feasible this is, and perhaps to shame those who would talk big and act small, I have begun a project to produce a draft omnibus convention. This project is in three parts. Part 1 involves bringing together all the existing international terrorist crimes, which I regret to say is more than a scissors-and-paste exercise. Part 2 involves identifying gaps in the present range of crimes and finding suitable articulations of these "new" crimes. Part 3 will involve consolidating the existing enforcement mechanisms and finding methods of dealing with recalcitrant states. It is my hope that parts 1 and 2 will be completed by the beginning of 2002, part 3 by the summer, and that the final draft omnibus convention, with an accompanying commentary, will be produced in September 2002.

This project is but one way in which one member of an academic institution can mark the events of 11 September and perhaps make a small contribution to combating terrorism.