TERROR AND INTERNATIONAL LAW 1
The fight against international terrorism has been built upon the principles that all states have a responsibility to deter terrorist actions and that such actions are crimes that shall be pursued through the legal system. The UN declaration of 1994 on measures to eliminate international terrorism refers to several conventions already adopted in order to combat the phenomenon. Among these are the conventions of 1963, 1970 and 1971, which define the obligations of states with respect to airline hijacking. The parties agree to introduce severe punishments for hijacking and to prosecute such actions in the judicial system or extradite suspected persons so that their cases can be tried in the courts of other states.
UN General Assembly Resolution 1269 of 1999 underscores the need for increased international cooperation through the United Nations (based on the UN Charter’s principles and international law) together with the obligations to hinder terrorist actions and to prosecute those responsible for them. That resolution is also referred to in UN Security Council Resolution 1368, adopted the day after the terror attacks in the USA.
Both the General Assembly and the Security Council have declared terrorism a threat to international peace and security. If the Security Council finds international peace and security threatened, coercive action against states can be justified according to Chapter VII of the UN Charter. That chapter was invoked, for example, when Libya refused to extradite individuals suspected of being behind the bombing of Pan Am Flight 103 over Lockerbie in 1988.
Resolution 1368, adopted immediately after 11 September 2001, states that the attacks carried out in the USA – like any other international acts of terror – are a threat to international peace and security. Within it, the Security Council expresses its will to take all necessary steps in order to respond to the terror attacks and to fight all forms of terrorism in compliance with its responsibility under the UN Charter. Among other things, this enables the Security Council to require states to extradite people, to adopt sanctions against those states that do not heed extradition requests and to resort to military force against such states.
International law forbids the use of force between states, except when such force is authorized by the Security Council or exercised under the right to self-defence. The claim of self-defence, however, is conditional upon a country’s being subject to armed attack. It could of course be claimed that the hijacking of four airliners and the destruction of the World Trade Center and the Pentagon should, given their extent, be regarded as an armed attack, but the matter is not quite so simple.
It is Israel and the USA, in particular, that have
claimed that acts of terror grant them the right to self-defence. Israel attacked
Beirut airport in 1968 in response to an attack upon an Israeli airplane at
Athens airport; it was claimed that Lebanon had sheltered terrorist organizations
within its territory. Israel also defended its attack on Tunisia in 1985 by
claiming that the target was the headquarters of the Palestine
Liberation Organization. The USA attacked targets in Libya in 1986 in response to terrorist attacks on US citizens in Germany. The USA also attacked Baghdad in 1993 after an alleged assassination attempt upon former president George H. W. Bush. Finally, in 1998, the USA responded to the bombing of US embassies in Kenya and Tanzania by launching rocket attacks on a chemical factory in Sudan and a training camp in Afghanistan.
These military actions have been extensively discussed and criticized. From the outset, it can be argued that such use of force has been characterized more by revenge or punishment than by self-defence. International law does not permit the use of force as a reprisal. However, in the case of the New York and Washington attacks, there are good arguments supporting US involvement in a fight against those responsible for the attacks since the danger of new attacks is far from over.
At the same time, it must be proven that another state was involved in the terrorist attacks. If that cannot be done, they remain crimes and not armed attacks as far as international law is concerned. The question is therefore: In what way must a state be involved for it to be considered responsible for an armed attack?
In the case of the USA and Nicaragua (1986), it was
the USA that was accused of being responsible for attacks on another state
through its support of the contras rebel movement. The International
Justice in The Hague referred to the UN General Assembly’s definition of aggression from 1974, which, among other things, includes sending armed groups into
another state’s territory or substantial involvement in such incursions. Still, it is difficult to know where one draws the line between legitimate support and involvement that is in violation of international law.
The NATO Council’s resolution of 12 September this year states that if it can be established that the attack against the USA was directed from abroad, that attack must be considered as covered by Article 5 of the North Atlantic Treaty and thereby engage the rules of collective defence. But this is widely formulated. The decisive element is whether another state was behind or involved in the attack, not whether foreign persons or organizations directed it.
It could certainly be claimed that the Security Council, through Resolution 1368, has accepted that the right to self-defence is appropriate in the case of the terrorist attacks of 11 September. But even if the resolution refers to the right of states to defend themselves, it does not explicitly say that these particular actions against the USA give them that right. Accordingly, the NATO resolution gives too broad a legitimacy to US use of force. And even if Article 5 only obliges NATO members to give assistance such as they ‘deem necessary’, it establishes a political obligation to participate in the use of force.
There are grounds for caution when recognizing the right to use force in the name of self-defence. First of all, there must be a reliable basis for establishing that one or several states is behind or involved in the attacks. One should avoid the type of doubt that arose in 1998 about whether the chemical factory in Sudan really was being used for terrorist purposes. The implication is that the need to clearly establish responsibility increases with the potential damage caused by the response.
Moreover, not all forms of association with persons or groups responsible for the attacks in the USA can be considered as involvement in terrorism. It cannot be enough in itself, for example, that the individuals concerned live in the country in question, be it Germany or Afghanistan. The country must have actively participated in, or at least turned a blind eye to, the attacks being planned. Nor can it be claimed that neighbouring countries have participated if they have failed to disassociate themselves from the policies carried out in countries supporting or harbouring terrorist activities.
A possible use of force must also meet the requirements of international law for immediacy, necessity and proportionality. Immediacy implies that a response follows within a reasonable span of time. Necessity means that one may only undertake actions that are meant to counter an attack. And what proportionality entails is that the actions carried out against the USA, though terrible, can only justify military action up to a certain point, in terms of numbers of civilians wounded or killed, or damage caused to civilian structures. Finally, the right to self-defence is only valid until the Security Council has adopted the necessary actions for maintaining peace and security.
The dangers involved in relaxing the prohibition on
the use of force were emphasized in connection with the NATO
operations in Kosovo. In that case, the objective was humanitarian intervention, but these dangers are not fewer if states are allowed to respond to terrorist attacks with armed force. One must, for as long as possible, stand by the notions that terrorist acts are crimes and that it is the UN Security Council that should decide whether force should be used against states.
After the terror attacks of 11 September, the allies have a responsibility for limiting the use of force and for bringing it under international control as quickly as possible. This can contribute to preventing matters from going from bad to worse. But it can also limit the freedom of states to do as they please in the world.
Professor, Dept of Public and International Law
University of Oslo, Norway
1 This article first appeared, in Norwegian, in Aftenposten, 21 September 2001. Reprinted by permission. Translated by J. Peter Burgess.