(Studies in International Law) Andrea Bianchi-Enforcing International Law Norms Against Terrorism -Hart Publishing (2004)

Enforcing International Law NormsAgainst Terrorism

The scale and horror of recent terror attacks and the panic which ensuedthroughout the world has forced policy-makers and international lawyersto re-examine international legal tools available to enforce norms against terrorism. The magnitude of the attacks, the modalities of theoperations, the profiles of the terrorists and the transnational structure ofsome terrorist organisations all cast doubt on the adequacy of the existingpolitical and legal framework to fight terrorism. Due to this perception,governments have increased the intensity of measures to combat terroristactivities such as using military force against States sponsoring terrorism,freezing assets of terrorist organisations, and promulgating national secu-rity measures designed to protect the State against would-be terrorists.

This book comprehensively analyses the suitability of existing interna-tional legal tools to enforce rules prohibiting terrorism. Contributionsfrom leading experts in international law examine, among others, questionsrelating to the proper role of international law in combating terrorism, thelegality of covert operations against terrorism, whether the law of armedconflict can be applied to the war against terror, domestic anti-terrorlaws and their compatibility with human rights standards, and how toregulate the Internet to prevent terrorist usage. In addition, the ways inwhich States can co-operate together to more effectively investigate terrorist infrastructures and apprehend suspects is focused upon. Theinterplay between different layers of legal authority at international,regional and domestic levels is also subject to review. This thoroughexamination of the array of legal means at the international communitysdisposal to enforce norms against terrorism will allow readers to appreci-ate the real challenges that terrorism and the responses to it pose to theinternational legal system.

Volume 4 in the series, Studies in International Law

Studies in International Law

Volume 1: Between Light and Shadow: The World Bank, the InternationalMonetary Fund and International Human Rights Law Mac DarrowVolume 2: Toxics and Transnational Law: International and EuropeanRegulation of Toxic Substances as Legal Symbolism Marc PallemaertsVolume 3: The Chapter VII Powers of the United Nations Security CouncilErika de WetVolume 4: Enforcing International Law Norms Against Terrorism editedby Andrea BianchiVolume 5: The Permanent International Criminal Court edited by DominicMcGoldrick, Peter Rowe and Eric Donnelly

Enforcing International LawNorms Against Terrorism

Edited byANDREA BIANCHI

Graduate Institute of International Studies

with the editorial assistance ofYasmin Naqvi

OXFORD AND PORTLAND OREGON2004

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Foreword

It may be ill advised to start a research project in the wake of a catastrophe,causing an emotional shock. Yet the foundations of this project were laidin the aftermath of the 11 September 2001 attacks in New York andWashington. The sense of bewilderment and dismay at the brutality ofterrorist violence, with which most of us were taken, soon yielded to acompelling sense of moral commitment to action. Oportet ut scandala eveniant, as the Latin adage goes, although at times one would wish toquestion its wisdom. It would be preferable indeed if the adjustment ofthe law to the new challenges and realities of the societal body fromwhich it emanates would materialize regardless of catastrophes.However, it surely is a lesson to be learnt from history that catastrophesfrequently act as a catalyst for change.

The prevailing preoccupation, at the time, that international law mightnot possess adequate means to counter the threat of terrorism seemedunsubstantiated, yet represented a challenge for governments, otherinternational actors and the scholarly community alike. The urge to pro-vide a professional insight was a reflection of a desire to compensate, ifnot substitute, for the sense of impuissance to which many of us felt rele-gated. When every single colleague I had made contact with, with noexception, gladly accepted to join the project, I realised that my concernswere shared and that they were matched by a general and genuine senseof intellectual commitment within the profession.

To assess the viability and efficacy of the wide array of legal tools avail-able at international law to enforce norms against terrorism is apparentlyan easy task. The implementation of norms in such different areas as theuse of force and the system of collective security, the law of State respon-sibility, international humanitarian and human rights law and the law ofjurisdiction poses different problems and requires specific analysis withregard to each particular regime. This is all the more so, if one wants topreserve the unity of the international legal system and the overarchingstructure of its general principles and processes as generally understoodand applied. Furthermore, the interaction between the different levels oflegal authority involved in the process of implementation requires careful consideration.

As I write these few lines, the bloodshed caused by the terrorist attackin Madrid is still a vivid memory. It has not been the only attack since 11 September 2001. Presumably, it will not be the last. We are bound tolive under the Damocles sword of terrorist violence in the years to come.

The feeling that no place can provide a safe shelter has crept its way intothe world civil society. Regrettably, this is precisely the effect intended byterrorist groups. Besides the many scenarios it evokes, the war on terrorto many human beings is also a personal itinerary of introspection and acause to pose fundamental questions, bearing on the very essence of lifeand human nature. The less ambitious task of this book is to assess towhat extent international law is well equipped to deal with the resur-gence of international terrorism on such a grand scale. Short of providingan answer to the more essential quandaries that international terrorismentails, it is hoped that this collection of essays may help to better under-stand how the law can complement politics by responding effectively tothese types of threats.

Within the framework of the research project, a conference was held atthe Catholic University in Milan on 1011 May 2002, in which the contrib-utors submitted their drafts to the scrutiny of the other participants andthe public. There is no doubt that the event was an important contributionto the project, as it provided a forum to discuss our ideas and preliminaryfindings.

The organisation of an international conference is no easy job and Iwould like to express my gratitude to all of those who participated in theeffort. Silvia Borelli, Anna Gardella and Francesca Tremolada helped mewith the endless tasks and practicalities that make the organisation of aconference a multifaceted activity. The administrative staff of the CatholicUniversity was very helpful. Mr L Dioli, Head of logistical services andhis deputy, Ms A Patriarchi, put at the organisers disposal their profes-sional skills and their knowledge of the institutions somewhat complexorganisational practices. During the two days of the conference three stu-dents, Greta Barbone, Federica Bisol and Nazira Seliman attended to theparticipants and made sure that what had been planned in advance actu-ally took place. Ms Domenica Cuzzocrea, the Secretary of the Institute ofInternational Studies, provided them with an unrivalled model of kind-ness and efficiency and supervised their work in a motherly fashion.

I would like to thank also the Dean of the Law Faculty, my colleagueand friend Giorgio Pastori for his encouragement and unconditional support. Were it not for him, I doubt I would have ever set out to organisethe event. Institutions from the public and private sector showed theirsensitivity to our intellectual efforts and manifested particular interest inthe research topic. In particular, the substantial financial support of theFondazione Cariplo, the Regione Lombardia, and the Comune di Milano isgratefully acknowledged.

My heartfelt thanks go also to Professor Alan Boyle of the University ofEdinburgh; Professor Giorgio Gaja of the University of Florence and toJudge Theodor Meron, President of the International Criminal Tribunalfor the former Yugoslavia for having masterfully chaired the three sessions

vi Foreword

Foreword vii

in which the Conference was divided. Overall, my recollection of theConference is that of an intellectually stimulating atmosphere coupledwith the pleasant sensation that everyone felt well at ease in the fairlydiverse group, which the participants made. Junior colleagues wereencouraged and cheerfully admitted into the club, less junior ones submit-ted their views and constructively engaged into the debate that followedtheir presentations. In the highly confrontational and hierarchically struc-tured academic world where egos more than intellectual constructs oftencome to clash, the Conference stood out as a comforting exception.

Finally, I would like to express my gratitude to my editorial assistant,Yasmin Naqvi, assistant to the International Law Section and doctoralcandidate at the Graduate Institute of International Studies in Geneva.Yasmin joined the project at a much later stage, but her contribution hasbeen invaluable. She relentlessly worked on the manuscripts and evenfound the time and energy to co-author one of the pieces that appear inthe volume. Her cheerful disposition and full commitment to the projectdeserve my appreciation and gratitude.

It is customary to stress the difficulties inherent in the editors job.Indeed, to undertake the editing of a collection of essays on a highlypoliticised topic, with events unfolding so rapidly that no one could reasonably aspire to including them all in their contributions, may wellhave appeared to many as a particularly unprofitable business. At the endof the exercise, while not at all denying the many hurdles that have stoodin the way, one feeling definitely prevails over the others. If the time andenergy this project has taken was the price to ensure that a group of dis-tinguished colleagues could work together in a spirit of utter intellectualfreedom, mutual respect and sympathy, it surely was a fair one for me topay. As usual, only the reader will tell if it was worth the effort.

ABGeneva, March 2004

List of Contributors

Georges Abi-SaabChairman, Appellate Body of the World Trade Organization; EmeritusProfessor of International Law, Graduate Institute of InternationalStudies, Geneva.

Eyal BenvenistiProfessor of International Law, Tel Aviv University, Faculty of Law.

Andrea BianchiProfessor of Public International Law and Director of Graduate Studies,Graduate Institute of International Studies, Geneva; Professor ofInternational Law, Catholic University of Milan.

Silvia BorelliPhD candidate in International Law, University of Milan; ResearchFellow, British Institute of International and Comparative Law, London.

Antonio CasseseProfessor of International Law, University of Florence.

Andrew ClaphamProfessor of Public International Law, Graduate Institute of InternationalStudies, Geneva.

Paul ClarkeSolicitor of the Supreme Court of New South Wales, Australia.

Luigi CondorelliProfessor of Public International Law, Faculty of Law, University ofFlorence; Honorary Professor, Faculty of Law, University of Geneva.

Ugo DraettaProfessor of International Law, Faculty of Political Science, CatholicUniversity of Milan.

Pierre-Marie DupuyProfessor of International Law, the University of Paris II and the EuropeanUniversity Institute, Florence.

Bardo FassbenderAssistant Professor of Law, Institute of International and European Law,Humbolt University; Lecturer in Public International Law, University ofSt Gallen, Switzerland.

x List of Contributors

Anna GardellaResearch Fellow in International Law, Faculty of Law, Catholic Universityof Milan.

Richard GarnettAssociate Professor of Law, University of Melbourne, Australia.

Robert KolbProfessor of International Law, Universities of Neuchatel, Berne andGeneva (University Centre of International Humanitarian Law).

Mauro MeglianiResearch Assistant in International Law, Catholic University of Milan.

Madeline MorrisProfessor of Law, Duke Law School; Director, Duke/Geneva Institute inTransnational Law.

Yasmin NaqviPhD candidate in International Law and Assistant to the InternationalLaw Section, Graduate Institute of International Studies, Geneva.

Luca G Radicati di BrozoloProfessor of Private International Law, Catholic University of Milan;Partner, Bonelli, Erede, Pappalardo.

August ReinischProfessor of International and European Law, University of Vienna;Professorial Lecturer, Bologna Center of SAIS/John Hopkins University,Bologna.

Natalino RonzittiProfessor of International Law, LUISS University G Carli, Rome.

Michelangela ScalabrinoProfessor of International Law, Catholic University of Milan andUniversity of Urbino.

Ruth WedgwoodProfessor of Law at Yale Law School and at SAIS, John HopkinsUniversity, Washington.

Contents

Foreword vList of Contributors ixIntroduction xiiiThe Proper Role of International Law in Combating TerrorismGeorges Abi-Saab

Part I Terrorism and the International Legal System: The Alleged Inadequacy of International Law

and the Quest for an Effective Response

1. State Sponsors of Terrorism: Issues of International Responsibility 3Pierre-Marie Dupuy

2. The Legality of Covert Operations Against Terrorism in Foreign States 17Natalino Ronzitti

3. The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date? 25Luigi Condorelli and Yasmin Naqvi

4. The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law 39Silvia Borelli

5. Arresting Terrorism: Criminal Jurisdiction and International Relations 63Madeline Morris

Part II Global, Regional and National Responses to Terrorism: The Interplay between Different

Layers of Legal Authority

6. The UN Security Council and International Terrorism 83Bardo Fassbender

7. Countering Catastrophic Terrorism: An American View 103Ruth Wedgwood

8. The Action of the European Union to Combat International Terrorism 119August Reinisch

xii Contents

9. Fighting Against International Terrorism: The Latin American Response 163Michelangela Scalabrino

Part III International Terrorism as an Individual Crime:Jurisdictional Issues, Human Rights Standards

and Beyond

10. Terrorism as an International Crime 213Antonio Cassese

11. The Exercise of Criminal Jurisdiction over International Terrorists 227Robert Kolb

12. Terrorism, National Measures and International Supervision 283Andrew Clapham

13. National Courts and the War on Terrorism 307Eyal Benvenisti

14. The Rendition of Terrorist Suspects to the United States: Human Rights and the Limits of International Cooperation 331Silvia Borelli

Part IV International Terrorism and Economic Activities: Old and New Challenges for International

Law Enforcement Mechanisms

15. Freezing the Assets of International Terrorist Organisations 377Luca G Radicati di Brozolo and Mauro Megliani

16. The Fight Against the Financing of Terrorism between Judicial and Regulatory Cooperation 415Anna Gardella

17. The Internet and Terrorist Activities 453Ugo Draetta

18. Cyberterrorism: A New Challenge for International Law 465Richard Garnett and Paul Clarke

Part V Conclusions

19. Enforcing International Law Norms Against Terrorism:Achievements and Prospects 491Andrea Bianchi

Index 535

Introduction

The Proper Role of International Law in Combating Terrorism*

GEORGES ABI-SAAB

WHAT IS THE proper role of international law in combatingterrorism? Has it been affected by the 11 September 2001events, and if so how and how far? And has this effect gone, assome contend, to the very foundations of the international legal system?

In this, as in any other respect, whoever tries to deal with theSeptember 11 events is daunted by the avalanche of writings and opin-ions on the subject that has swamped the world since, to the point of making whatever one may say or write seem rather trite and dj vu.Yet, reiterating the obvious, however banal it may sound, can still be usefulas a reminder of basic premises, particularly when they are ignored bysome, not to say by many.

In what follows, an attempt is made, by successive approximations, toanswer some of these queries, with a view to delineating the area whereinternational law can really play a useful role in combating terrorism,without prejudicing its structures and other functions. But before turningto these queries, it is necessary to address briefly their general context.

I. THE SPECIFICITY OF THE SEPTEMBER 11 EVENTS

Obviously, by their scale and design, the September 11 events were hor-rendous and they precipitated spectacular reactions; all of which willundoubtedly leave an indelible mark on the international legal system.Still, one has to keep a sense of proportion.

In the United States, one keeps hearing by reference to these events such qualifications as a defining moment, a turning point or

* A shorter version of this paper is published in the first issue of I (2002) Chinese Journal ofInternational Law, No 1.

a system change. But were these events so unique and conceptuallyunimaginable as to deserve such qualifications?

In fact, they were not.A foretaste of these tragic events was provided by the earlier attack

against the World Trade Center, by the uncovered conspiracy to blow upthe New York tunnels and the UN building, as well as by the OklahomaCity (McWeigh) terrorist attack. Each of these events or planned eventcould have led, under different circumstances, to a catastrophe of a mag-nitude similar to that of September 11.

Moreover, we have been reading for decades about the possibility ofnuclear terrorism, of groups of terrorists or mercenaries hijacking States(as happened recently for a short while in the Comoros islands) and othersuch scenarios. But these scenarios were perceived as moot intellectualhypotheses, because of their very low statistical probabilities. We know,however, that an event with a statistical probability, as infinitesimal as itcan be, will occur at one point or another, however distant it may be. Stillonce it happens, it gives a shock of recognition. One recognises in hisguts what one may have intellectually perceived, but has not palpablyvisualized and realized what it actually signifies. A shock of recognition isvery important in that it literally brings home to the collective psyche,as an immediate reality, what may have been barely perceived until thenas an esoteric hypothesis verging on science fiction.

Another such shock of recognition where the parallels are striking,and can help us put the long term effects of the September events in perspective is Chernobyl. Everyone knew that a nuclear catastrophecould happen, but only when it happened did the shock of recognitiontake place, and everybody thought that it would beget a serious systemchange. More than fifteen years later, has it done so?

Coming back to September 11, these events, however tragic and trau-matic, have, like Chernobyl, to be put in perspective; and for us thismeans that they have to be put in legal perspective, in other words theyhave to be situated within or in relation to the international legal system.

Can they be processed through the system, i.e. apprehended, compre-hended and dealt with by the system? This would still be the case even ifthese events, by their specificities and scale constituted an important prece-dent in the course of evolution of the system. Or, and this the other alterna-tive, are these events so unique as to be indigestible by the system as itstands and hence call for a system change; not in the details of implemen-tation and specification, but in the parameters of the system as a whole?

One gets the impression in the US that it is the latter case that obtains;that everything, including all the rules and institutions of internationallaw, have to be reconsidered and reconfigured through the prism ofSeptember 11, even if this radical revisionism is represented sometimes inthe guise of interpretation.

xiv Georges Abi-Saab

I personally take strong exception to this latter attitude, first and foremost because the solutions it comes up with ride roughshod over theinternational legal system so as to render it this system, which isalready imperfect and frail enough completely unworkable, almostinstalling the very anarchy that one of the declared purposes of combatingterrorism is to repel. The more so as there is no need for such a reconfigu-ration. The September 11 events, if characterized and handled correctlywithin the system, not only can receive a better response or remedy, butwould also contribute to strengthening and perfecting the system as itstands and would favour its development for the future.

We should not go off on the wrong tangent. It is submitted that evenwhat took place in terms of response to these events, in spite or per-haps because of the ambiguity which surrounded its legal justification,can withstand different legal interpretations; and that internationallawyers, as a corporation, should adopt those interpretations whichcohere with the international legal system and tend to strengthen it or,minimally, which would do least damage to its structure, rather thanplay with so-called inventive or imaginative new solutions, whichwould undermine the system and ultimately bring down its wholestructure.

II. THE LEGAL CHARACTERIZATION OF THE SEPTEMBER 11 EVENTS

Turning to the specific queries, the first concerns the legal characterizationof the September 11 events. There are here two contending approaches,with two consequent regimes of response: The first characterization isthat these events constitute a criminal enterprise calling for a lawenforcement approach in the sense of criminal prosecution and repres-sion of the individual perpetrators. The other characterization is that theyare acts of war, bringing into play the law of war, with both its branchesthe jus ad bellum and the jus in bello.

Of course, the legal consequences of these two characterizations arevery different, and particularly as concerns the role of international law inboth. The first situates the events in a micro analytical setting, dealingwith individuals or groups of individuals, calling on the appropriate insti-tutions of national law in the first place, with the back up of those ofinternational law which go with them: crime prevention and prosecution,social defense, respect of human rights, judicial cooperation, etc.; whilethe second situates them in a macro analytical setting of belligerent rela-tions between collectivities, calling directly on the institutions of the inter-national law of war. Obviously, when one deals with micro settings, onehas to use a microscope and be very precise in directing repressive action

The Proper Role of International Law in Combating Terrorism xv

to particular individuals, while dealing with macro settings, calls for a telescope and opens the way to large scale military action.

Can we really call these events or the reaction to them war as they arerhetorically called in the US? One can perceive war against terrorism,the same as war on poverty, as an exceptional rhetorical call for nationalmobilisation to counter an impeding scourge. But is it war in the legaltechnical sense? Michael Howard, who is not a lawyer but a military historian, has shown very eloquently in a short article in Foreign Affairsentitled Whats in a name?, all the fallacy and great dangers with whichsuch a misnomer is fraught.1

War or armed conflict, in the sense of international law, necessar-ily involves internationally recognizable entities which are capable of being territorially defined (whether States or peoples struggling for self-determination over a particular territory), even if their territorial confinesare not completely determined. Non-international armed conflicts arealso territorially defined, albeit negatively, as taking place on the territoryof one State and between belligerents belonging to that State. If the armedconflict spills over to other States, either territorially or by their direct military engagement in the armed conflict, the conflict is automaticallyinternationalized.

In this respect, the scale of an illegal act is not determinative of its legalcharacterization. It cannot by itself transform a criminal act under munic-ipal law into an act of war, initiating a state of war, under interna-tional law.

Can there be a war, in the formal legal sense, between a State and atransnational criminal group or organization? Doesnt this confer on sucha group the dignity of subject of international law? And with what impli-cations? If criminals are considered subjects of international law, the lawof war becomes applicable to them in its entirety, including the funda-mental principle of the jus in bello which is that of the equality of the par-ties, as well as the status of prisoners of war for captured combatants andtheir impunity for the mere participation in hostilities and their acts ofwar which are not prohibited by the law of armed conflict. Moreover,wouldnt that privatize war, and take us back to the days before Grotius?Would the international legal system survive such a reconfiguration orare we to invent a completely new one?

It is submitted that it is both legally not possible to consider theSeptember 11 events in themselves as war or acts of war; and, as a matter ofpolicy, very damaging for the international legal system to stretch the inter-pretation of its rules beyond recognition in this manner, with incalculable

xvi Georges Abi-Saab

1 (2002) 81 Foreign Affairs, no 1, 8. See also the excellent and more legally elaborate article of FMgret, War? Legal Semantics and the Move to Violence, (2002) 13 European Journal ofInternational Law (2002), no 2, 361.

consequences for its future development. But the legal characterization ofthe US reaction is another matter, to which we now turn.

III. THE LEGAL BASIS OF INTERNATIONAL ACTION AND THE US REACTION

The second query is, if the September 11 events are not considered war inthe technical legal sense, what is the legal basis of international action andthe US reaction to these events?

The sense of outrage that was felt throughout the world was reflectedin the Security Council resolution of 12 September 2001, the day follow-ing these events, and later on Resolution 1373 of 28 September, both ofwhich characterize these events as constituting a threat to internationalpeace and security, opening the way to the application of collectivemeasures under Chapter VII of the UN Charter (art 41 and 42). And a realthreat it was indeed. In this respect, I totally agree with the depiction ofthese resolutions by Michael Reisman2 as the shared perception of acommon danger, not simply to individual States, but to a system of worldpublic order. But Michael Reisman falls into contradiction when he con-cludes from this shared perception of common danger that the properreaction to it is a war of self defense, meaning an individual reactionrather than a collective, i.e. social, measure; self-defense, including collec-tive self-defense, being an individual rather than a social use of force,which defends an individual victim rather than society as a whole.

Of course, a State is at liberty and is even bound if it is to dischargeproperly its functions to take all measures, within its territory, todefend and ensure its security and the security of its citizens against crim-inal pursuits. Call this self-defense if you will, but it is not self-defense inthe meaning of international law. It is part and parcel of the State functionof maintaining law and order within the realm.

But how and where else, beyond State boundaries can this self-defensewar or borderless war be waged against transnational terrorism? Apartfrom the high seas (and attendant airspace), this can only be on the terri-tory of other States. If the other State or States concerned are willing, thiswould be merely a species of administrative and judicial cooperation inpreventing and prosecuting transnational crime. If, however, the otherState or States do not cooperate, there is no way of extending the fightagainst transnational terrorism to their territories in the name of self-defense, unless they ie the territorial State or States can be held legally responsible for the acts of terrorists according to the rules of

The Proper Role of International Law in Combating Terrorism xvii

2 In Defense of World Public Order, (2001) 95 American Journal of International Law, no 4,833 at 834.

attribution of responsibility in international law. In this latter case, theacts of terrorism would constitute an aggression in the sense of interna-tional law, committed (whether as principal or complicit) by that territo-rial State. Only then would it be permissible to use force in the exercise ofself-defense against that State, and only within the limits of that conceptin international law. Otherwise, such forcible action would itself consti-tute an aggression against the territorial State on whose territory it takesplace.

This is because self-defense in international law is an exception fromthe comprehensive prohibition of individual resort to force, controlledand limited to the specific circumstances which justify it; while socialdefense, in the sense of criminal law, is a standing option and indeed apermanent function of organized society. This is why the threshold ofcoercive intervention in the name of social defense by the collectivity ismuch lower than that in case of self-defense by the victim of aggressionand its allies, which is an exception from a general peremptory rule,enshrined both in the UN Charter and general international law.

The reference to the right of individual or collective self-defence in thepreamble of the Security Council resolutions does not imply an espousalor ratification by the Council of the US characterization of these events asan armed attack in the meaning of Article 51; and how could it havebeen on 12 September, the date of the first resolution, before it was knownwho had perpetrated those acts and with what help or on whose instiga-tion? This reference was merely a without prejudice clause, in case theconditions of exercising self-defense were subsequently revealed to befulfilled. On 12 September this was not yet the case; nor was it on the 28th,in spite of growing suspicions. So the right of self-defense was preservedfor such an eventuality. Thats all.

The increasingly revealed evidence of Al-Qaedas role and of theTaliban regimes involvement, in fact its instrumentalization by Al-Qaeda(thus permitting the attribution of the attack to a State, assuming that theproof of attribution of the acts to Al-Qaeda and of the complicity of theTaliban is sufficient), renders this debate rather moot (ie whether we aredealing with an armed attack in the meaning of Article 51 of the Charteror with a common threat to international peace and security). But it is nottotally moot when it comes to examining the limits of permissible action:against whom (ratione personae)? Where and how far (ratione loci)? And forhow long (ratione temporis)?

Self-defence is contextual, exercised against a specific armed attackemanating from a State or a subject of international law, and it ends withthe repelling of that attack and the prevention of its continuation, if it hasa continuous character. Self-defence cannot go beyond that.

There is a great difference between repelling an attack against the US from Afghanistan and preventing its continuation or its threatened

xviii Georges Abi-Saab

imminent repetition, on the one hand, and fighting terrorism or terroristgroups in general, on the other. The use of force in pursuing the latter task cannot be justified as self-defence under any interpretation of thatconcept, however stretched it may be. And after all, is force, whether individual or social, the first best way of combating terrorism? I do notthink so.

Of course, once the harm is done and the crime perpetrated, repression in the criminal law sense of pursuit, prosecution and punishment, as wellas prevention has to follow suit, by resort to legal force if need be. Theimmediate reaction to the September 11 events can be seen within this con-text. Indeed, Security Council resolution 1373 of 28 September 2001 comesnearest to a declaration of an international state of emergency to face upto these events, establishing a temporary regime under Chapter VII to takemeasures against terrorism in this particular emergency. But it should notbe seen as doing more than that, notwithstanding contrary contentions.Particularly, this temporary regime is not sustainable for the duration, forat least two reasons, one of a general nature relating to the limits ofSecurity Council powers, the other particular to terrorism:

1) The Security Council cannot act under Chapter VII in theabstract. In other words, it cannot impose obligations on Statesand create subsidiary organs to monitor and assist in their fulfill-ment except as measures for the maintenance or the reestablish-ment of international peace and security in a specific situationwhich it would have characterized beforehand as a threat topeace, a breach of peace or an act of aggression. This character-ization is indispensable for opening the way to the applicationof mandatory collective measures. Such measures have thusalways to be pegged to a particular crisis or situation.

Notwithstanding the seemingly general language of the resolutions, we have to recall that the crisis situation initiated bythe events of September 11, and characterized by the SecurityCouncil as constituting a threat to international peace andsecurity, was not limited merely to their aspect of being attacksagainst the United States, but stemmed more from the reach andcapacity for harm of international terrorism that was revealedby these events, and which poses an acute generalised threat toworld public order at large. The measures taken by the SecurityCouncil were intended to respond to this larger aspect of the crisis, with a view to containing and eventually eliminating thisoverall threat, which probably accounts for the generalised lan-guage of the resolutions.

2) More particularly, all international efforts for decades, startingwith the League of Nations and continuing in the United Nations,

The Proper Role of International Law in Combating Terrorism xix

to draw a comprehensive convention criminalizing terrorism ingeneral (and not merely specific acts of terrorism) have hithertofailed, absent a generally accepted and shared legal definition ofwhat is terrorism, a terrorist act or a terrorist group. This is notbecause of any logical or technical impossibility to formulatesuch a definition, but because of the lack of universal opinio juris,particularly about the ambit of the proposed crime ratione personae. Roughly speaking, the major powers insist on limitingthe crime to private actors, excluding from it State actors; smallpowers on the contrary insist on including State actors, whilesome of them would like to exclude freedom fighters.

Without a universally shared definition of the crime, how canthere be a coherent and permanent regime for its prevention andsuppression? Resolution 1373 itself reveals the same flaw. Forwhile it provides for numerous measures against terrorists andterrorist organizations and for the prevention of terrorist acts andplots, nowhere does it indicate who or what those individuals,groups or acts are, or how they can be identified.

IV. THE PROPER ROLE OF INTERNATIONAL LAW IN COMBATING TERRORISM

What is then the proper role of international law in combating terrorism?I submit that first of all, we should discard the approach of the law of war,which is totally wrong in this context, relying as it does on large scale uni-lateral use of force, which goes against the fundamental principles andethos of contemporary international law.3

The first task for international law is to bring to a successful conclusionthe long term efforts of producing a comprehensive convention againstterrorism. It is true that up to now these decades of efforts have remainedfruitless. But the shock of recognition produced by the September 11 events

xx Georges Abi-Saab

3 My criticism of a law of war approach to combating terrorism should not be taken asimplying that the jus in bello (or international humanitarian law) should not apply if anarmed conflict breaks out as a result of acts of terrorism. For what counts in this case is thematerialisation of the objective conditions of the existence of an armed conflict, whether ofan international or an non-international character, and not the reasons or the circumstancesthat led to it. In such a case, international humanitarian law applies fully, particularly theprinciple of the equality of the parties, and full protection has to be afforded to all the vic-tims of the armed conflict whether civilians or combatants (including their entitlement toprisoners of war status in case of capture). From either side, as prescribed by the norms ofthat law. But as the applicability of international humanitarian law and the international lawof human rights in these conflicts is amply treated by other contributors to this book, I neednot pursue the issue any further.

has created a new situation and provided the psychological mobilisationfor overcoming the obstacles to reaching a generally acceptable definition.Preferably, such a definition should be exclusively pegged to the acts andtheir consequences, together with the accompanying intent, regardless ofthe status or the quality of the actor, as is the case of crimes againsthumanity and genocide.

The convention would then establish tighter networks of internationalcooperation for preventing, suppressing and prosecuting the newlydefined crime of terrorism, not only in terms of obligations of best efforts(obligations de moyen), but also of obligations to achieve certain results(obligations de rsultat), once we know what we are speaking about. Thisentails as well the creation of the institutional arrangements indispensa-ble for the effective management and implementation of what would necessarily be a very dense and involved network of collaborative legalrelations, and vesting them with the necessary powers to do so. TheInternational Criminal Court is the prime example of such an institution.Its jurisdiction could be extended to cover the crime of terrorism once it isclearly defined. Countries that want to strengthen the role of internationallaw in fighting terrorism should support the Court, rather than workingto undermine it, as the United States is now doing.

Such measures would contribute to perfecting the budding system ofindividual international criminal responsibility and would tighten theobligations of States in the field of judicial cooperation and assistance.And that would in turn help push international law further from the concepts and methods of the international law of coexistence (as the traditional international law was called by Wolfgang Friedmann) whichpurports to maintain the coexistence between antagonistic units, assumedto have contradictory interests, playing a zero sum game through unilat-eral actions and reactions by the individual States (self-help) towardsthe more collaborative vision and model of the international law of coop-eration, based on the ideas of common interests and values and of a common enterprise or action in defending and promoting them.

Finally, it is necessary to recall that even if all these measures are taken,they will not suffice, by themselves, to form an effective strategy for com-bating terrorism. It is banal to say that we live in a globalized world, andthat globalization creates new threats that cannot be contained and con-trolled within one State. They call for responses at their own level, meaning that of the international community at large. These threats and entropies are, however, the pathological aspects of globalization.International cooperation in devising repressive strategies within theframework of criminal law deals mainly with the symptoms. But we haveto go to the root causes of these symptoms, in other words we have also toincrease cooperation in addressing the root causes of terror. What arethese? Deep feelings of injustice and oppression, of loss of hope and

The Proper Role of International Law in Combating Terrorism xxi

prospects, resulting from misery, exploitation, denials of human rights,and great inequalities between and within peoples.

To illustrate by a similar example, there has been no international agree-ment at all for the last thirty years on a minimum price of cocoa, which ledto the ruin of many cocoa growing latin-american farmers. Some of themended up cultivating coke. Fighting drugs is all very well, but at the sametime, something has to be done to make it possible for farmers to earn aliving on what they would otherwise produce, like cocoa.

In other words, a coherent legal strategy for combating terrorismrequires a complementary and mutually re-enforcing set of measures from tightening international cooperation in the prevention, criminalprosecution and repression of terrorist activities, to long term cooperativeschemes to remedy or at least attenuate their root causes if it is to leadto a better containment and eventual eradication of terrorism.

This is why it is vital, in my submission, that the September 11 eventsand the reactions to them past and particularly future, by the US as wellas by the international community, be perceived along the lines, and keptwithin the confines of the interpretation suggested above, which is con-sistent with the structure of international law and the role it can usefullyplay in combating terrorism. By so doing, we would strengthen that roleas well as the role of law in the international community in general.

The alternative course of resort to unilateral force (whether by oneState or a coalition of States), pressuring and threatening other States andeven acting on their territory without their consent, in the name of com-bating terrorism apart from its blatant violation of some of the mostfundamental principles of international law can only lead to disastrousresults. It would nurture a widening and increasingly destructive cycle ofviolence on a global level, of which nobody can foresee the end or the fullconsequences, apart from the total erosion of the international legal order,and a gradual descent into anarchy at the hands of those who are suppos-edly trying to defend world order.

xxii Georges Abi-Saab

Part I

Terrorism and the International LegalSystem: The Alleged Inadequacy ofInternational Law and the Quest for

an Effective Response

1State Sponsors of Terrorism: Issues ofInternational Responsibility

PIERRE-MARIE DUPUY

THE ATTACKS OF 11 September 2001 led President Bush to dramatically declare war on terrorism. But what exactly doesthat mean?1 War on individual criminals and non-State terroristentities only? Or does it also mean war on the States sponsoring terroristactions? Does this issue deserve a different answer in 2003 than in 2002? Inother words, does the American-British decision of March 2003 to attackSaddam Husseins regime in Iraq shed any more light on this question?This seems quite doubtful if one accepts the official justifications given bythe two Allies for using force against Iraq, which primarily were based onthe reputed threat of arms of mass destruction Iraq was supposed topresent to the international community, there having been no evidence atthe time of any substantial link between Saddam Husseins regime andAl-Qaeda.

Whatever the case may be, it is clear that the President of the United States George Bushs declaration of war on terrorism amountedto a shift in perspective, since the President thereby refocused thenations strategic posture from one that targeted terrorists as criminals toone that treats terrorists and supporting States capable of threatening theUS and its allies, as threats to national security.2

1 See in particular A Cassese, Terrorism is also Disrupting Some Crucial Legal Categories ofInternational Law, (2001) 12 European Journal of International Law, 993 ff; C Greenwood,International Law and the War against Terrorism, (2002) 78 International Affairs, 78 ff; C Tomuschat, Der 11 September 2001 und seine rechtlichen Folgen, (2001) 2123 EuGRZ,535 ff; L Condorelli, (2001/4) 105 Les attentats du 11 septembre et leurs suites: o va le droitinternational?, RGDIP, 829 ff; N Schrijver, Responding to International Terrorism: Movingthe Frontier of International Law for Enduring Freedom , (2001) 48 NetherlandsInternational Law Review, 371 ff; AM Slaughter and W Burke-White, An InternationalConstitutional Moment, (2002) 43 Harvard International Law Journal, 1 ff.2 A Sofaer, On the Necessity of Pre-emption, (2003) 14 European Journal of International Law,at 209.

The dramatic and highly charged context in which the political debateconcerning terrorism is situated and the actual reactions by States to theperceived universal threat that international terrorism presents make itnevertheless necessary to attempt to define the terms in which the issueof the responsibility of States accused of sponsoring terrorism are legallyraised.

Two sets of questions seem, in this regard, to be of primary importance:(1) the issue of acts of terrorism as wrongful acts, primarily consideredfrom two perspectives, being those of qualification and attribution; and (2) the question of the victim States: how should these States be classi-fied if not identified and what responses to terrorism may they legallyresort to?

I. WRONGFUL ACTS

As clearly affirmed by the International Law Commissions Articles onResponsibility of States for Internationally Wrongful Acts3 in Article 2,wrongful acts consist of two elements, one being objective and the othersubjective. This Article follows the terminology already introduced in1970 by Roberto Ago, the first Special Rapporteur to the Commission onthis topic.4 In order to define an act of terror as a wrongful act within the terms of State Responsibility, one must first assess a substantial defini-tion of terrorism as an act contrary to international law and second,decide whether the act may be attributed to a subject of public interna-tional law.

A. Definition of Terrorism as a Wrongful Act

How should terrorism be defined? A significant amount of academic liter-ature has already been devoted to this issue.5 Most authors raise the diffi-culty of defining terrorism in a simple way, although specialists ofhumanitarian law, like Antonio Cassese or Luigi Condorelli rightly make

4 Pierre-Marie Dupuy

3 See J Crawford, The International Law Commissions Articles on State Responsibility,Introduction, Text and Commentaries (Cambridge University Press, Cambridge, 2002), at 81 ff.4 Second Report, Yearbook of the International Law Commission 1970, Vol II at 176 ff.5 See in particular JM Sorel, Existe-til une definition universelle du terrorisme? in CEDINUniversity of Paris I, Le droit international face au terrorisme (Paris, Pedone, 2002) at 3568.; C Stahn, International Law at a Crossroads? The Impact of September 11, ZaRV (HeidelbergerJournal of International Law, 2002, 62/12, 182 ff, at 186. See also UN GA Res Measures toEliminate International Terrorism of 30 January 2001, UN Doc 1/Res/55/158; J Murphy,Defining International Terrorism: A Way Out of the Quagmire, (1989) 19 Israel Yearbook ofHuman Rights 13 ff.

the point that the prohibition of clearly identified acts of terrorism may befound in the law of Geneva.6 Judge Rosalyn Higgins nevertheless asks:

Does the theme of terrorism really constitute a distinct topic of internationallaw? Is there an international law of terrorism; or merely international law about terrorism? Is our study about terrorism the study of a substantialtopic or rather the study of the application of international law to a contem-porary problem?7

What seems at least evident is the absence of any universally accepteddefinition of terrorism; but this does not necessarily raise a major issue foridentifying the rules of international law applicable for combating terror-ism, this including the pertinent secondary rules of State Responsibility.

United Nations Security Council Resolutions 1368 and 1373 both con-tain references to terrorism without providing any definition of theterm. This absence of a legal definition, however, does not prevent theidentification of the attacks of 11 September 2001 as terrorism, as theyclearly were aimed at causing terror among a civilian population for polit-ical or ideological reasons. Terror exercised on a civilian population as apolitical weapon is evidently at the core of any definition of terrorism, theinternational element being provided by the physical origin of the actionand/or the nationality of wrongdoers.

These features are shared by any type of specific acts of terror as cov-ered by a series of international conventions, such as the 1963 TokyoConvention on Offences and Certain Other Acts Committed on BoardAircraft, the 1970 Hague Convention for the Suppression of UnlawfulSeizure of Aircraft, the 1971 Montreal Convention for the Suppression ofUnlawful Acts Against the Safety of Civil Aviation, the 1979 New YorkConvention Against the Taking of Hostage or the 1988 Convention for theSuppression of Unlawful Acts Against the Safety of Maritime Navigation.

National legislation in regard to acts of terror also helps one to identify the fundamental elements of terrorism. For example, the 1984United Kingdom legislation on terrorism states that it consists of the useof violence for political ends and includes any use of violence for the pur-pose of putting the public or any section of the public in fear.8 In theUnited States of America, a 1987 law sets out the following definition: theterm terrorist activity means the organizing, abetting or participating in a

State Sponsors of Terrorism: International Responsibility 5

6 See in this book A Cassese, Terrorism as an International Crime and L Condorelli and Y Naqvi, Wars against Terrorism and Jus in Bello: Are the Geneva Conventions out of date?.7 R Higgins, The General International Law of Terrorism in R Higgins and M Flory (eds)Terrorism and International Law (Sweet and Maxwell/Routledge, London and New York,1997) at 13.8 Cited by G Guillaume, Terrorisme et droit international, Recueil des cours (Academy ofInternational Law, The Hague, 1989) 215, 291416 at 3045.

wanton or indiscriminate act of violence with extreme indifference to therisk of causing death or serious bodily harm to individuals not taking partin armed hostilities.9

In his lecture at The Hague Academy of International Law, thePresident of the International Court of Justice Guillaume proposed thefollowing definition:

le terrorisme implique lusage de la violence dans des conditions de nature porteratteinte la vie des personnes ou leur intgrit physique dans le cadre duneentreprise ayant pour but de provoquer la terreur en vue de parvenir certainesfins.10

This definition provides a concise understanding of what constitutes ter-rorism, in particular if one adds the precision that the civilian populationis the primary target of such acts. The Common Position of the EuropeanUnions Council adopted on 27 December 2001 does take account of thislatter element, and then lists possible acts of terror ranging from murder,hostage-taking, massive destruction of various types of infrastructure,hijacking of planes or ships, production, possession, transport or supplyor explosives, and various other weapons, setting fires, and so on.11

The fact of being able to identify such a generic definition of terrorism,together with the existence of treaties prohibiting specific terrorist acts,makes it evident that the objective element of terrorism as a legallywrongful act, contrary to the writings of many commentators, does notreally raise a difficulty.

This leaves the question of the subjective element of a wrongful act,ie can one attribute an act meeting the criteria indicated above to a subjectof international law?

B. Attribution

Acts of terror are for the most part committed by non-State actors, eitherpersons acting individually or, more frequently, non-State armed groupsacting through a transnational network of agents. The difficulty, at leastfor keeping within the classical framework of public international law,lies with the fact that these groups do not at first glance appear to be sub-jects of international law, thereby not fulfilling the subjective element. Ifa wrongful act cannot be attributed to a subject of international law, there


9 Ibid.10 Ibid at 306.11 Common Position of the Council, 2001/931/PESC, OJEC 28.12.2001, L 344/93. See also ECRglement n2580/2001 of 27.12.2001, OJEC 28.12.2002, L 344/70.

is no wrongful act of public international law and no responsibility forblatant acts of terrorism.12

Were the reasoning to be confined within the narrow boundaries of traditional notions of State responsibility, the result would be hardlysatisfactory. This is why one needs to analyze the actual evolution of inter-national practice in order to come to a more reasonable solution. As notedelsewhere,13 there are basically two ways to ensure respect of certain rulesof international law by non-State actors, particularly in those areas suchas international human rights, humanitarian law and terrorism, wherecompliance with international law standards by these actors is mostneeded. The first technique consists of expanding the range of subjects ofinternational law, thus including non-State entities, the second one ofbroadening the criteria of attribution for the purpose of triggering Stateresponsibility.

As regards the possibility of broadening the notion of subjects, onemay notice that terrorism has for a number of years been described asamounting to a threat to international peace and security in the sense ofArticle 39 of the Charter of the United Nations. This was expressly statedin September 2001 in UN Security Council Resolutions 1968 and 1973; butit had been previously asserted in earlier UN Security Council resolu-tions, such as in Resolution 1267 (1999) and 1333 of 2000, both dealingwith the situation in Afghanistan.14

One may view this series of resolutions in conjunction with those deal-ing with other situations, such as those existing at one stage in Angola orin Sierra Leone, in which the Security Council referred to the internationalduties not only of States but also of non-State armed factions, therebydelineating them as subjects of international law. From this perspective, itcould be argued that, for the sake of maintaining international peace andsecurity, Security Council practice may provisionally establish an entityas a subject of international law, indicating that this entity is endowedwith specific obligations deriving from the substantial body of classicalinternational (inter-State) law. As this author explains elsewhere, the the-ory concerning the subjects of international law should be reviewed in thelight of the ICJs Advisory Opinion on Certain Reparations (1949) essentiallyfrom functional and teleological perspectives.15 This viewpoint supports theargument that, even when not committed by States, acts of terrorism, such


12 See J Wolf, Die Staatenhaftung fr Privatpersonen nach Vlkerrecht (1997), at 387ff. 13 PM Dupuy, Quarante ans de codification du droit de la responsabilit internationale desEtats. Un bilan, (2003) Rvue Gnrale de Droit International Publique, 2003, 318.14 International terrorism as practiced on 11 September has also been assimilated to anarmed attack by common reference of NATO Member States to Art 5 of the North AtlanticTreaty. 15 See P Dupuy, Cours general de droit international public, Receuil des cours (HagueAcademy of International Law, The Hague, 2003) vol 297, 10618.

as those perpetrated on 11 September 2001, fall under the scope ofChapter VII of the Charter of the UN.

In terms of the attribution of acts or terror, they are at least two conclu-sions to be drawn from the above-mentioned remarks. Firstly, the veryfact that terrorism is usually committed by transnational non-State actorsshould not raise any major technical difficulty in legal terms. The SecurityCouncil acting as the main international UN body responsible for collec-tive security might attribute this wrongful act to any specifically identifiedterrorist group. This group might then be held internationally responsiblefor the act of terror it committed, with all the legal consequences attachedto this attribution.

With respect to State responsibility, it can be triggered at the occasionof the commission of acts spreading terror throughout a civilian popula-tion for political purposes, either on the basis of commonly accepted prin-ciples of attribution (because the act was committed by State agents) orbecause the State may be harbouring terrorist groups. Here, it becomesnecessary to define more precisely what may be meant by States sponsor-ing international terrorism in legal terms. The expression may cover adiverse range of State involvement in terrorism, from ex-post factoapproval or endorsement of terrorist acts to direct participation of Stateorgans in the perpetration thereof.

In 1980, in the case of United States Diplomatic and Consular Staff inTehran (Hostage Case), the ICJ made the distinction between acts commit-ted by entities having been charged by some competent organ of theIranian State to carry out a specific operation from the private initiativetaken by Islamic students.16 After the official support was given to thestudents by the Iranian Government, the Court states that they thenbecame agents of the Iranian State.17

In 1986, in the Military and Paramilitary Activities in and againstNicaragua case, the Court had to define the way in which a State could beheld responsible for sponsoring the terrorist activities of a non-Statearmed group, namely the contras. As it is well known, the Court espouseda strict conception of control, that is, it had to be shown that the United States had effective control over the actions of the contras. Theattribution of some of the activities carried out by the contras on the terri-tory of Nicaragua to the United States depended on whether or not therelationship between the individuals participating in the contra groupsand the State was one of dependence on the one side and control on theother. In this case, the Court found that it had not been proved that theUS had actually exercised such a degree of control in all fields as to justifytreating the contras as acting on its behalf.18


16 ICJ Reports 1980, at para 58.17 Ibid at para 74. 18 ICJ Reports 1986, at para 115.

On the contrary, in the 1999 Tadic case, the Appellate Chamber of theInternational Criminal Tribunal of the former Yugoslavia (ICTY) havingas its aim the need to qualify the conflict in this territory as either interna-tional or internal, adopted a less stringent test of attribution, that ofoverall control which made it possible for the Court to attribute someof the crimes perpetrated by the Bosnian-Serbs to the Federal Republic ofYugoslavia (and thus qualify the conflict as international).

If one turns now to more recent State practice, in particular, the eventswhich took place immediately after 11 September 2001, two elements arestriking: first, the initial universal and quasi-spontaneous assertion thatterrorism amounts to a threat to international peace and security; and sec-ond, the prompt assimilation of Afghanistan with Al-Qaeda, the formerhaving been judged by the international community as being responsiblefor harbouring the relevant terrorist group and helping in the preparationof some of the terrorist acts committed by Al-Qaeda.19 The SecurityCouncil apparently endorsed the view of John Negroponte, the USPermanent Representative to the UN, when stating that:

The attacks on 11 September 2001 and the ongoing threat to the United Satesand its nationals posed by the Al-Qaeda organization have been made pos-sible by the decision of the Taliban regime to allow the parts of Afghanistanthat it controls to be used by this organization as a base of operation.20

To identify the rules attributing responsibility to a State in this context,acts of terrorism directly perpetrated by a States organs should be distin-guished from those acts which were carried out by private persons, butwith the support and/or control of a State.21 A further possibility forattributing responsibility to a State could, under certain rather restrictiveconditions, be argued on the fact that the territorial State did not display asufficient degree of diligence for preventing terrorist acts from beingactively prepared or performed on or from its territory.

In the first case, if there is strong evidence of a State organ directly per-petrating the terrorist act, this conduct is attributable to the State wher-ever such act had taken place; this is so even if the act was committed bythe organ ultra vires. Such acts may, for example, be carried out by membersof the armed forces, provided that the organ was acting in this capacity.


19 As raised by Michael Byers in his article Terrorism, The Use of Force and InternationalLaw after 11 September (2002) 51 International and Comparative Law Quarterly, 40114 at 403: this raises the question whether Afghanistan could have been considered a failedState. See D Threr, The Failed State and International Law (1999) 81 InternationalReview of the Red Cross, at 731.20 UN Doc S/2001/946. See also C Wren, US Advises UN Council More Strikes CouldCome, New York Times, 9 October 2001, 5. 21 See P-M Dupuy, Quarante ans de codification du droit de la responsabilit internationaledes Etats, un bilan, (2003) 2 Revue Gnrale de Droit International Public, 30548.

In times of war, as pointed out by Luigi Condorelli, Article 91 of the FirstAdditional Protocol to the Geneva Conventions codifies the rule accord-ing to which a State Party shall be responsible for all acts committed bypersons forming part of its armed forces.22 This attribution of responsi-bility for acts of the members of armed forces to the State goes beyond theacts performed in the exercise of their functions and includes acts ultravires; it also covers non official acts such as acts committed by individ-ual soldiers in a private capacity.23

International law undoubtedly prohibits States to send armed bands,groups, irregulars or mercenaries which carry out acts of armed forceagainst another State. According to UN General Assembly Resolution3314 of 1974, such conduct would amount to an act of aggression if of sub-stantial gravity; a rule which was already embodied in UN GeneralAssembly Resolution 2625, the oft-cited Friendly Relations Declarationadopted by the General Assembly in 1970.

As for the possibility to attribute acts committed by private persons toa State, in its Articles on Responsibility of States for InternationallyWrongful Acts of 2001, the International Law Commission seems to have adopted a definition of attribution which is in between the two approaches referred to above. Article 8 sets out the following rule ofattribution:

The conduct of a person or group of persons shall be considered an act of aState under international law if the person or group of persons is in fact acting on the instructions or under the direction or control of that State incarrying out the conduct.

This formulation leaves much room for interpretation. In particular, it isnot quite clear whether acting on the instructions of a State is consid-ered by the ILC as being exactly on the same level as being under the direction or control of the State. This ambiguity was most probablyleft purposely in order to maintain some flexibility for different possibleinterpretations.

One should also consider Article 11 of the ILCs Articles. This provi-sion states that:

Conduct which is not attributable to a State under the preceding articlesshall nevertheless be considered an act of that State under international lawif and to the extent that the State acknowledges and adopts the conduct inquestion as its own.


22 See L Condorelli, Imputation lEtat dun fait internationalement illicite Recueil des cours(Hague Academy of International Law, The Hague, 1984/VI) at 146.23 L Condorelli, The Imputation to States of Acts of International Terrorism, (1989) 19 IsraelYearbook on Human Rights at 233 ff.

In its commentary to that provision, the ILC refers to the 1980 HostagesCase. It distinguishes between the approval given by a State to the con-duct of a non-State actor from the case when a State provides support toterrorist attacks. It may be argued that the position taken by the Talibangovernment in Afghanistan in relation to the acts of Al-Qaeda was similarto that foreseen in Article 11 of the ILC Articles.

Under treaty law, State Parties have particular obligations to preventthe financing and perpetration of some specific acts of terrorism, for exam-ple, hijacking under the Hague Convention of 1971.24 They also have theduty of prosecuting or extraditing individual perpetrators of such acts.25

Notwithstanding the several differences of the legal regimes of the variousconventions, in general international law, States are under an obligation toprevent and combat acts of terrorism. As pointed out by Luigi Condorelli,in the case of terrorist activities taking place on one States territory, thissituation plays the role of a catalyst, an expression used by Ago in hisreports.26 To paraphrase the ICJ in the 1980 Hostages Case, the acts of indi-viduals are a catalyst for the States international responsibility when theState authorities: (a) were aware of the need for action on their part; (b) had the means of their disposal to perform their obligations; and (c) failed to use the means which were at their disposal.27

II. WHAT RIGHTS DO VICTIM STATES HAVE?

The legal regime of the responsibility of States sponsoring terrorism,whatever the specificity of the primary obligations it sanctions, is not aself-contained one. This means in other terms that the general customarylaw of the international responsibility of States for committing anywrongful act may be applied to a terrorist State. As far as the secondaryobligations of State Responsibility are concerned, a State guilty of com-mitting a wrongful act is obliged, according to Article 30(a) of the ILCArticles, to cease the said act if it is continuing. An appropriate examplewould be the harbouring and supporting of terrorist groups on its terri-tory. The obligation may also comprise giving appropriate assurances andguarantees of non-repetition (Article 30(b)) and providing reparation pro-portionate with the damage caused, including, if need be, restitution orcompensation.28


24 See JM Sorel, Some Questions About the Definition of Terrorism and the Fight Against ItsFinancing, (2003) 14 European Journal of International Law, no 2, 365378.25 See D Vagts, Which Courts Should Try Persons Accused of Terrorism? 2003 14 EuropeanJournal of International Law, no 2, 313326.26 L Condorelli, The Imputability to States of Acts of International Terrorism, (1989) 19 Israeli Yearbook on Human Rights, 233246.27 1980 Hostages Case, above n 13, para 68.28 See ILC Articles 35 and 36.

A more complex problem is that concerning the rights of the victimState(s). This question directly puts in issue the legal effects of acts of ter-rorism and the scope of their impact. Do terrorist acts only affect the indi-vidual State where the act took place, the State whose nationals have beenkilled or injured or whose national interests have otherwise been directlythreatened? Or, if the terrorist act is of such a scale or gravity as to amountto a crime against humanity under international law, does such an act ofterror exercised against a specific target create at the same time an objec-tive legal interest in any State, as part of the international community, toinvoke the responsibility of the wrong-doing State? If one accepts the lat-ter contention, as it seems a large majority of nations does, expressed,among others, in UN Security Council Resolutions 1368 and 1373, thenthe concept of victim State can arguably be enlarged to all States. Grandscale terrorist attacks attributable to a State may constitute a seriousbreach of obligations under peremptory norms of general internationallaw29 and therefore allow all States to resort to legal responses.

Notwithstanding this argument, a clear distinction should be main-tained between two categories of victim States: on the one hand, theinjured States (Article 42 ILC Articles) and on the other, any State otherthan an injured State (Article 48 ILC Articles).

A. Rights of the Injured State

1. Self Defence

The precedents set by State practice following the attacks of 11 September2001 are of special interest in this context. In particular, UN SecurityCouncil Resolutions 1368 and 1373 have been almost unanimously inter-preted, at least during the months following the destruction of the TwinTowers, as amounting to an indirect authorisation for the exercise of self-defence by the United States. Such an interpretation raises a series of legalquestions dealing, in particular, with the definition of armed attack forthe purpose of invoking the right to self defence and the proper role of the Security Council. This issue is related to the question of the contentof the right to self-defence under customary international law as com-pared to the rule laid down in Article 51 of the UN Charter. According tothe latter rule, the Security Council is supposed to retain full control overthe response to the armed attack.30


29 The specific definition of this phrase still needs to be agreed upon by States.30 See in particular O Corten and F Dubuisson, Opration Libert Immuable: une exten-sion abusive du concept de lgitime dfense ?, (2002) 1 Revue General de Droit InternationalPublic, 51 ff; N Krisch, Selbstverteidigung und kollektive Sicherheit (Berlin, Springer, 2001);

The classical conditions for invoking self-defence are well known anddo not need here more than a very brief review31: the necessity for resort-ing to armed force must be instant, overwhelming, leaving no choice ofmeans and no moment for deliberation according to the famous WebsterDoctrine in the Caroline Case.32 The use of force is to be exclusivelydirected to repel the armed attack and be proportionate to this purpose;moreover, it must be terminated as soon as possible and stay within thelimits imposed by fundamental principles of humanitarian law; andarmed reprisals are forbidden.

The dangers of any loose interpretation of these rules, even if perceivedas justified in the name of the war on terrorism, are extremely serious.The idea that self defence might be invoked against any activity unilater-ally qualified as terrorist would undoubtedly lead to the weakening ofthe whole collective security system established by the UN Charter. Thiswould particularly be the case if States began to automatically accept thatan act of terrorism could legitimise unilateral self-defensive action by theinjured State, outside the UN framework. But this does not at presentseem to be the case.

The same conclusion may also be drawn from international practicewith regard to preventive self-defence. American President Georges W.Bush, appearing to acknowledge the classically restrictive rules of inter-national law in regards to the use of force, stated in his presentation of theUS National Security Strategy that:

Legal scholars and international jurists often conditioned the legitimacy ofpre-emption on the existence of an imminent threat most often a visiblemobilization of armies, navies and air forces preparing an attack.33

But then went on to say:

We must adapt the concept of imminent thereat to the capabilities and objec-tives of todays adversaries The greater the threat, the greater the risk


D Greig, Self-Defence and the Security Council: What Does Article 51 Require? (2002) 40 International and Comparative Law Quarterly at 366; T Franck, Terrorism and the Right ofSelf-Defense, (2001) 95 American Journal of International Law, 839ff; C Stahn, InternationalLaw at a Crossroad? The Impact of September 11, (2002) 62 ZaRV, 12, at 214 ff. CompareM Travalio, Terrorism, International Law and the Use of Force, (2000) 18 WisconsinInternational Law Journal, 145ff; MF Brennan, Avoiding Anarchy: Bin Laden Terrorism, theUS Response and the Role of Customary International Law, (1999) 59 Louisiana Law Review,1195.

31 See for instance C Gray, International Law and the Use of Force, (Oxford University Press,Oxford, 2000), at 11115.32 See the letter addressed by Mr Webster to Mr Fox on 24 April 1841 (29 Brit & For St Papers113738).33 National Security Council, National Security Strategy of the United States of America, at 15available at http://www.whitehouse.gov/nsc/nss.html.

of inaction and the more compelling the case for taking anticipatoryaction to defend ourselves, even if uncertainty remains as to the time andplace of the enemys attack.

The negative reaction by the majority of States in response to the United Kingdoms and the United States recourse to force againstSaddam Husseins regime may be interpreted as a continuance of earlierrefusals by the international community to approve the use of preventivearmed attacks in breach of the law of collective peace and security, forexample those perpetrated by Israel against the Palestinian authority orresistance groups.34 As rightly observed by Professor Bothe, De legelata,the expansion of the right of anticipatory self-defence proposed inthe National Security Strategy is not acceptable.35 Evidently, it does notmeet with the restrictive conditions set forth in the Caroline case outlinedabove. Neither is it consistent with the UN regime of collective security.The present international legal order obliges States to restrict the use offorce within the limits defined in the UN Charter, which may be regardedas the constitution of the international legal system. 36

2. Countermeasures

Injured States cannot respond to terrorism by resorting themselves to ter-rorism. For example, States cannot engage in the systematic destructionof civilian houses in order to exercise massive pressure on the populationto which the perpetrators of terrorist attacks belong. Illegal measures ofresponse of this type are clearly prohibited by Article 50 of the ILCArticles which may be said to codify a rule of customary law preventingStates from adopting certain types of countermeasures, in particular asregards obligations for the protection of fundamental human rightsand obligations of a humanitarian character prohibiting reprisals(Article 50(c)).37


34 See for instance UN Security Council Resolution 487 (1981) adopted unanimously. See alsoByers, above n 16, at 410; M Bothe, Terrorism and the Legality of Pre-emptive Force, (2003)14 European Journal of International Law, no 2, at 232.35 Bothe, ibid.36 See in particular B Fassbender, The United Nations Charter as Constitution of theInternational Community, (1998) 36 Columbia Journal of Transnational Law, no 3, 531619; AL Paulus, Die internationale Gemeinschaft im Vlkerrecht (Beck, Munich, 2001), in particularat 285329.37 Countermeasures are dealt with in Chapter 11 of Part III of the ILC Articles. The injuredState may resort to countermeasures only in order to induce the responsible State to com-ply with its obligations (Art 49). The customary condition of proportionality is articu-lated in Art 51 (Countermeasures must be commensurate with the injury suffered, takinginto account the gravity of the internationally wrongful act and the right in question).Although there is no doubt that suicide attacks against a civilian population are illegal andmay even amount to crimes against humanity, under international law, this provides no

B. Rights of Any State Other than an Injured State

Under Article 48(1)(b) and (2) of the ILCs Articles on State Responsibility,the responsibility of a State for breach of obligations erga omnes may beinvoked by any State, which may claim from the responsible State: (a) cessation of the internationally wrongful act and assurances or guaran-tees of non-repetition and (b) performance of the obligation of reparationin the interest of the injured State or of the beneficiaries of the obligationbreached.

It is widely accepted that there is at least a presumption that most actsof terrorism, if not all of them, amount to breaches of peremptory norms,as they violate basic principles of human rights and/or humanitarianlaw.38 Regrettably, however, Article 54 in its final version only allows non-injured States to take lawful measures against the wrongdoing State inthe interest of the injured State or of the beneficiaries of the obligationwhich has been breached. At this point one may wonder whether the ILCsimply confined itself to stating the obvious, ie that States may take meas-ures, which are lawful by their very nature, or, rather, it actually meantthat States may take countermeasures to protect the general interests ofthe international community, which by their being adopted in reaction toa prior wrongful act have to be regarded as lawful. As rightly noted,39

nowhere in the text nor in the commentary is the latter possibility directlyor indirectly envisaged.

The anomaly lies in entrusting the task of protecting the public order ofthe international community to such instruments as countermeasures,which in many ways can be considered as the legacy of the internationallaw of coexistence. Countermeasures are by their very nature decentralised,whereas violations of the international public order and reactions theretoneed, respectively, to be evaluated and managed by a centralised authority,


legal basis for the injured State to exercise similar types of countermeasures. Compare F Kirgis, Israels Intensified Military Campaign Against Terrorism, ASIL Insight, December2001; A Sofaer, On the Necessity of Pre-emption, (2003) 14 European Journal of InternationalLaw, no 2, 20927; G Neuman, Humanitarian Law and Counter-terrorist Force, (2003) 14 European Journal of International Law, no 2, 26583; J Klabbers, Rebel with a Cause?Terrorists and Humanitarian Law, (2003) 14 European Journal of International Law, no 2, 299313.

38 See in particular, Art 33 Geneva Convention IV and Art 4 Statute of the InternationalCriminal Tribunal for Rwanda. See also the Rome Statute of the International Criminal Courtwhich has jurisdiction over the crime against humanity under Art 7(1)(a): when committedas part of a widespread or systematic attack directed against any civilian population withknowledge of the attack. Acts amounting to crimes against humanity include murder andother inhumane acts of a similar character intentionally causing great suffering or seriousinjury to body or to mental or physical health. 39 D Alland, Les contremesures dintrt gnral, in PM Dupuy (ed), Obligations multilateral,droit imperatif et responsabilit internationale (Pedone, Paris, 2003), 167.

legitimately representing the community. This is why international reactions to terrorism remain bound by the framework of the UnitedNations, as the sole structure securing collective interest of States otherthan the injured one. It is evident that the widespread use of terror posesnew challenges to the world community. Clearly, in tackling the interna-tional problem of terrorism, the UN is confronted with a number of chal-lenges of a political nature. However, the institutionalised cooperation ofStates for combating the common threat of terror must rest with (or returnto) the United Nations, in accordance with the substantial and proceduralrules set out in its Charter. This has been recently demonstrated by theevolution of the situation in Iraq after the non-UN authorised use of forceagainst a political regime which, no doubt, had committed massivebreaches of fundamental rules of international law. However, leaving thechoice of how to react unilaterally to States, independently of the generalwill of the members of the organised community risks undermining thefoundations of the international public order which the reaction intendsto protect.


2The Legality of Covert OperationsAgainst Terrorism in Foreign States

NATALINO RONZITTI

I. INTRODUCTION

COVERT OPERATIONS CAN involve many kinds of interventionin a foreign country, ranging from non-violent activities to militarycoercion. The list is long. A non-exhaustive list encompasses prop-aganda, political action, intelligence gathering, paramilitary action andfomenting a coup dEtat aimed at overthrowing the regime in power.1 Inthis contribution, only those activities which imply the use of force aretaken into consideration.

The environment in which covert activities take place can also vary.They may be carried out in peacetime, in time of crisis, as a part of lowintensity operations, during a non-international armed conflict or inwartime, i.e during an inter-State conflict.

The target of covert activities can be a State or its government (forinstance, in the situation of a coup dEtat) or an objective within a State,such as property or individuals. Covert activities are adopted for severalreasons. They could, for example, be part of a counter-terrorism policy.Practice shows that covert activities have been employed both whenStates resort to military force to combat international terrorism and as aninstrument of a law enforcement policy.

The aim of this contribution is to provide a survey of relevant Statepractice with a view to identifying certain basic principles which mightbe of guidance in evaluating the legality of these operations.

1 See generally WM Reisman & JE Baker, Regulating Covert Action: Practices, Contexts, andPolicies of Covert Coercion Abroad in International and American Law (Yale University Press,New Haven, 1992); ME Bowman, Secrets in Plain View: Covert Action the US Way, TheLaw of Military Operations, Liber Amicorum Professor Jack Grunawalt, 72 International LawStudies 1998 (Naval War College, Newport, Rhode Island), 1 ff.

II. COVERT OPERATIONS AND SELF-DEFENCE

The strike against the Twin Towers on 11 September 2001 was qualifiedby the United States as an armed attack, giving the aggrieved State theright to respond in self-defence. This view was supported by severalcountries and international organizations, in particular NATO which considered the strike an armed attack on a member State, realizing thecasus foederis and triggering the mechanism under Article 5 of the NorthAtlantic Treaty.2

Covert operations could also be part of a policy of self-defence. Herethe problem is to reconcile the covert aspect with the openness of defence measures required under Article 51 of the Charter of the UnitedNations 1945. Article 51 establishes a duty to report measures taken in self-defence to the Security Council. Such a duty should be immediately dis-charged. The test was considered by the International Court of Justice (ICJ)in the Nicaragua case, since the operations by the United States in theCentral American republic were carried out covertly, through the CIAand other US agencies, in support of anti-Sandinist forces. The US actionwas a classical intervention in a civil war on the side of the insurgents, anactivity forbidden by international law. Since the US claimed that theyintervened in self-defence, the Court had to tackle the question of whetherthe US had infringed the duty to report measures taken in self-defence tothe Security Council. The Court stated that the duty to report belongs totreaty law; it is not part of customary international law. Since the Courtwas tasked with adjudicating the case according to customary interna-tional law, no violation of the obligation to report was attributed to the US,even though the Court found that the US failure to report was in contra-diction with its claim to have acted in self-defence.3 In his dissenting opinion, Judge Schwebel pointed out the following:4

if an aggression is covert, the reaction in self-defence might alsobe covert;

18 Natalino Ronzitti

2 The Atlantic Council, in its meeting held in Brussels on 12 September 2001, stated as follows: The Council agreed that if it is determined that this attack was directed fromabroad against the United States, it shall be regarded as an action covered by Article 5 ofthe Washington Treaty, which states that an armed attack against one or more of the Alliesin Europe or North America shall be considered an attack against them all. Evidence wasbrought by the US; the Atlantic Council, with a subsequent resolution of 4 October,decided to support the US action against terrorism. The statement by the Atlantic Councilon 6 December 2001 reaffirmed the previous position. In its para. 3 it said: We considerthe events of 11 September to be an armed attack not just on one ally, but on us all, andhave therefore invoked Article 5 of the Washington Treaty. Accordingly, we have decidedto support, individually and collectively, the ongoing US-led military operations againstthe terrorists who perpetrated the 11 September outrages and those who provide themsanctuary.3 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), Merits, Judgment, ICJ Reports 1986 14, at 121122. 4 Ibid, Dissenting Opinion of Judge Schwebel, at 373377.

it is not clear that the intent of the Charter was to oblige memberStates to take action openly;

domestic policy reasons (for instance, Congressional authoriza-tion) can suggest the use of covert actions.

State practice does not support the view that States feel obliged to abideby the duty to report.5 Nor do authors view the duty to report as aningredient of the legitimacy of acts of self-defence. For example,Lamberti Zanardi states that the duty to report is not a real obligation. Itsinfringement does not carry any legal consequences.6 Combacau, inreviewing State practice, finds that States rarely report to the SecurityCouncil.7 Usually the issue of self-defence is raised at a later stage, whenthe intervening State is accused of having unlawfully employed armedforce. Dinstein observes that failure to re

Documents

(Studies in International Law) Andrea Bianchi-Enforcing International Law Norms Against Terrorism -Hart Publishing (2004)