British Institute of International and Comparative Law

Terrorism, the Use of Force and International Law after 11 September Author(s): Michael Byers Source: The International and Comparative Law Quarterly, Vol. 51, No. 2 (Apr., 2002), pp. 401414 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/3663235 Accessed: 12/11/2009 08:31
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SHORTER ARTICLES, COMMENTS AND NOTES

TERRORISM, THE USE OF FORCE AND INTERNATIONAL LAW AFTER 11 SEPTEMBER 2001 was encouraging attacksof 11 September The UnitedStatesresponseto the terrorist on for thosewho worryabouta tendencytowardsunilateralism thepartof the single superand organisations built an engageda numberof international power.The US deliberately Statesbeforeengagingin militaryaction. extensivecoalitionof supporting such as enablingthe freezing Coalitionbuildingofferedcertainpracticaladvantages, of terroristassets in other States, but it also imposed certainconstraints.Some of the actionwithinthe to membersof the coalitionwouldhavebeenconcerned keepthe military for law. boundsof international For this reason,it was impractical the US to assertthatit which areprecluded the UN Charter.1 was engagedin reprisals, by There were, however, at least four possible legal justificationsfor the use of force VII intervention invitation,humaniby Chapter of the UN Charter, againstAfghanistan: and tarianintervention self-defence.It is significantthatthe US relied solely on the last justification. law This was not becauseof the kinds of international involved. Argumentsof interand humanitarian ventionby invitation, intervention, self-defenceare all basedlargelyon law-that informal,unwrittenbody of rules derived from the customaryinternational Instead,the decisionto opt for self-defencewas drivenby practiceandopinionsof States.2 of considerations law, politicsand international arisingout of the interaction international as assessmentsof the four possiblelegal justificationsshow.
VII I. CHAPTER

On 12 September 2001, in Resolution1368,the UN SecurityCouncilstronglycondemned the terroristattacksagainst the US but stopped short of authorisingthe use of force. Instead,the Council expressed 'its readinessto take all necessarysteps', thus implicitly once its militaryplanswere complete.3 the encouraging US to seek authorisation to that It was reported the US, at this point,decidednot to return the Councilto secure it was concernedthatothermembersmight seek to impose a thatauthorisation.4 Perhaps Osama suchforce as was necessaryto capture or time limiton the mandate, only authorise Bin Laden.But it seems thatthe US may then have changedits mind. On 28 September 2001, in Resolution1373, the Counciladoptedlanguagethatcouldbe arguedto constitute
I See Security Council Res 188 of 9 Apr 1964, UN Doc. S/5650, < http:www.un.org/documents/scres.htm>('The Security Council . . . Condemns reprisals as incompatible with the purposesand principlesof the United Nations.'). 2 See generally Michael Akehurst, 'Custom as a Source of International Law,' (1974-5), 47 British Yearbookof InternationalLaw 1; GennadyDanilenko, Law-Makingin the International MartinusNijhoff, 1993), 75-129. Community (Dordrecht: 3 SecurityCouncil Res 1368, UN Doc. SC/7143, <http:www.un.org/documents/scres.htm>. 4 Anne Penketh, 'Annan:UN Must Have Role In Fight Against Terrorism',Independent,25 Sept 2001,5. [ICLQvol 51, April 2002 pp 401-414]

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an almostunlimitedmandate use force.5 to The languagewas buriedamong a numberof provisionsconcerningthe freezingof terrorist assets.When those are separated the key passagereads: out, 'TheSecurity Council,.... under VII of ... Nations, 'Acting Chapter of theCharter theUnited '2. Decides that States also all shall: ... of the the acts, '(b) Take necessary to prevent commission terrorist including.... steps Althoughthe languagediffers slightly from that previouslyused to authoriseforce, for VII examplethe phase 'use all necessarymeans',it providesbetterevidenceof a Chapter than authorisation eitherthe 'material breach'argument used to justify the no-fly-zonesin usedto justifythe 1999 Kosovo intervention.6 Iraqor the 'impliedauthorisation' argument the Moreover, legalityof any actionunderResolution1373 is unlikelyever to be testedin court, and Washingtoncould veto any furtherresolutionthat might seek to clarify or rescindResolution1373, or condemnactionstakenin relianceon it. The point,therefore, is not that the resolutionshould be read as authorising use of force-indeed, in my the view it does not7-but that it could provide the US with an at-least-tenable argument wheneverandwhereverit decides,for politicalreasons,thatforce is necessaryto 'prevent the commissionof terrorist acts'.8 But the US is not the only Statethatcouldbenefitfromthis.In future,ChinaandRussia could invoke Resolution 1373 and block any attemptsto clarify or rescindit. This may 5 Security Council 1373,UN Doc SC/7158, Res <http:www.un.org/documents/scres.htm>. 6 Onmaterial see for Use Matheson, breach, Michael 'LegalAuthority thePossible of Force

Against Iraq' (1998) 92 American Society of International Law Proceedings 136 at 141;

of Force against Iraq's Weapons of Mass Destruction' (1998) 92 American Journal of InternationalLaw 724; D Leurdijkand R Siekmann,'The Legal Basis for MilitaryAction Against Iraq' (1998) 4 InternationalPeacekeeping 71. On implied authorisation,see BarbaraCrossette, 'Conflict in the Balkans:At the UN; Council Seeks Punishmentfor the Kosovo Massacre',New York Times, 2 Oct 1998, A6; Neil Lewis, 'The Rationale: A Word Bolsters Case for Allied Intervention', New York Times, 4 Apr 1999; Ruth Wedgwood, 'NATO's Campaign in Yugoslavia' (1999) 93 AmericanJournal of InternationalLaw 828 at 829-30. 7A passage in the NamibiaAdvisoryOpinion((1971) ICJReports 15, 53) providesone of the of very few authoritative guides to the interpretation SecurityCouncil resolutions:'The language of a resolutionof the SecurityCouncil should be carefullyanalysed ... having regardto the terms of the resolution to be interpreted, discussions leading to it, the Charterprovisions invoked the and, in general,all circumstancesthatmight assist in determiningthe legal consequences...'. The context of Resolution 1373 and the kinds of 'steps' identified all suggest an interpretation that does not include a ChapterVII authorisation the use of force. for 8 For views see: 'Tony Blair: Interview', Daily supportiveof this possible interpretation, Telegraph,24 Oct 2001, 4 ('We are entitledto take actionagainsthim [bin Laden].A UN Security Council resolutionauthorisedthat.'); Serge Schmemann,'UN RequiresMembersto Act Against New YorkTimes,29 Sept 2001, Al ('The resolution... could clearlybe interpreted open Terror,' to the way for the use of force againstthe radicalIslamicTalibangovernment Afghanistan it failed of if to "denysafe haven"to terrorist Paust,'Comment: groups.');Jordan SecurityCouncilAuthorization to Combat Terrorism in Afghanistan,' ASIL Insight, 23 Oct 2001, <http:// The www.asil.org/insights/insigh77.htm>. argumentmight be strengthened referenceto paraby graph3(b) of the same resolution('The SecurityCouncil . . . Calls upon all Statesto: ... Cooperate ... to preventand suppressterroristacts and take action against perpetrators such acts') and of Resolution1377, adoptedon 12 Nov 2001 andthus afterthe US beganits militaryoffensive, where the Council 'Calls on all States to intensify their efforts to eliminatethe scourge of international UN terrorism', Doc S/Res/1377 (2001), <http:www.un.org/documents/ scres.htm>.

AllowAttack theLikesof Iraq,' on NewYork 5 Wren,'UN Resolutions Christopher Times, Feb 'The of Council Resolution TheThreat 687: 1998,A6; RuthWedgwood, Enforcement Security

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thoughtime pressuresmight also explain why the resolutionwas adoptedunanimously, have played a role. As the Financial Timesreported:'Diplomatswho draftedthe text, all which was passedsurprisingly quickly,now admitthey did not takeinto consideration the possible consequencesof the resolution.'9 the The fact that Chinaand Russia could also arguethat Resolution1373 authorizes use of forceprobably may, afterfurther explainswhy the US has not done so. Washington to to reflection,have decidedthatit was contrary its interests establisha precedent relyby the in on a resolutionthatcould strengthen arguments favourof subsequent actionsby ing otherStates.

BY II. INTERVENTION INVITATION

A second possible legaljustificationwas 'intervention invitation'.Underinternational by law, the governmentof a State is entitledto requestassistancefrom other States in the of The as suppression rebelgroups.10 Talibancouldhave beenregarded a rebelgroup:they rose to power quite recently, were only ever recognised by three States and never controlledall of Afghanistan. They were the targetsof SecurityCouncilcondemnations and ChapterVII sanctions.l1But the invitationto intervenewould have come from the Northern of Alliance,and it was unclearthatthe Alliance was the legitimategovernment as Afghanistaninstead.For the last four years, delegatesfrom both sought accreditation of theircountryto the UN GeneralAssembly. The Assembly repeatedly representatives deferredits decision.12 This raises the question whetherAfghanistancould have been considereda 'failed withoutan effective government? And if so, did its failureto State'.13 Was it a territory on fulfil all the criteriaof statehoodmeanthatit no longerbenefitedfrom the prohibition at the use of force set out in Article2(4) of the UN Charter, least with regardto military

10See generally Georg Nolte, Eingreifen auf Einladung-Zur volkerrechtlichenZuldssigkeit des Einsatzes fremder Truppen im internen Konflict auf Einladung der Regierung (Berlin:

2001,2.

9 CarolaHoyos, 'UK to chairUN sanctionscommittee,' Financial Times(US edition), 4 Oct

in of Art Articles State on 1999); 20, ILCDraft Responsibility, 'Report theInternational Springer, Law Commission the work of its Fifty-third on session,' OfficialRecordsof the General
Assembly, Fifty-sixth session, SupplementNo. 10 (A/56/10, chap.IV.E.2), available at <http:// ('Valid consent by a State to the commission of a given act by www.un.org/law/ilc/index.htm> anotherState precludesthe wrongfulnessof that act in relationto the former State to the extent to thatthe act remainswithin the limits of thatconsent.'). See also: Commentary Art 20, ibid, 176, para 8 ('Examples of consent given by a State which has the effect of renderingcertainconduct lawful include commissions of inquiry sitting on the territoryof another State, the exercise of relief and rescue operationsand the arrestor detenjurisdictionover visiting forces, humanitarian tion of persons on foreign territory');Commentaryto Art 26, ibid, 209, para 6 ('[I]n applying some peremptorynorms the consent of a particularState may be relevant.For example, a State may validly consent to a foreign militarypresence on its territoryfor a lawful purpose.'). 11 See, eg Security Council Res 1333, UN Doc S/RES/1333 (2000); Security Council Res 1267, UN Doc S/RES/1267 (1999); both available at <http:www.un.org/documents/scres.htm>. 12 See, eg Report of the Credentials Committee, 11 Dec 1997, UN Doc A/52/719, especially paras9 and 10. Russia and some <http://www.un.org/ga/52/credcomm/reporscr.htm>, of the formerSoviet Central-Asian Republicsdid recognise the Alliance as the legitimategovernment priorto Sept 2001. 13 See generally Daniel Thtirer, 'The "Failed State" and InternationalLaw' (Dec 1999) 81 Review of the Red Cross 731. (836) International

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The actiondirectedat terrorists?'4 Taliban, however,hada stronggripon mostpartsof the in country,as evidencedby theirabilityto close down almostall of the opiumproduction In that those areasundertheircontrol.15 addition, argument 'failedStates'do not beneany fit fromArticle2(4) encounters seriesof problems.Who decidesthata Statehas failed? a once established,retaintheirlegal authority What of the presumption governments, that lose And even if they subsequently muchof theireffectivecontrol?16 whatof the previous reluctanceof the international community to conclude that a failure of government in amountsto a failureof statehood, Somalia,SierraLeone, andelsewhere? were politicalconcerns Added to the legal issue of the capacityto invite intervention and an on leadership conseregarding over-dependence the Alliance,with its fragmented Moreover,the Alliance, which was made up of minoritytribes quent unpredictability. from the northof the country,was stronglyopposed by Pakistanand had behavedin a of dreadfulmannerwhen previouslyin controlof Kabul.The argument intervention by to the invitationwould have strengthened claim of the Allianceto return power and thus riskedfurther chaos and suffering. the Reliance on intervention invitationwould also have undermined self-defence by as argument, examinedin some depthbelow. In short,it was easier for the US to claim as of self-defenceagainstthe Stateof Afghanistan, controlledby thedefacto government the Taliban,thanagainstthe terrorists themselves.Recognisingthe Alliance as the legiticlaim untenable. mategovernment would have madethis particular
III. HUMANITARIAN INTERVENTION

law A thirdpossible legal justificationwas a developingcustomaryinternational rightof for humanitarian intervention-that is an intervention, humanitarian unilateral purposes, which has not been authorised the SecurityCouncil.17 by The UK explicitlyclaimedthe existenceof such a rightwhenjustifyingits actionsin The northern in 1991 andKosovo in 1999.18 US, however,was morecautious,referIraq
14

to For a suggestion this effect, see MichaelReisman, 'International to LegalResponses

Terrorism'(1999) 22 HoustonJournal of InternationalLaw 3 at 51-4.

International Law 568; Stefan Talmon, Recognition of Governmentsin InternationalLaw: With ParticularReferenceto Governmentsin Exile (Oxford:ClarendonPress, 1998). 17 See generally Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in InternationalSociety (Oxford: Oxford University Press, 2000); FernandoTes6n, Humanitarian Intervention:An Inquiry into Law and Morality (2nd edn) (Dobbs Ferry, NY: Transnational, Keohane, Humanitarian Intervention: Principles, Institutions and Change (Cambridge: CambridgeUniversityPress, forthcoming2002). 18 See beforethe Office, statement AnthonyAust, Legal Counsellor,Foreign& Commonwealth House of CommonsForeignAffairs Committee,2 Dec 1992, Parliamentary Papers, 1992-3, HC, in Law 827; Sir Jeremy of Paper235-iii, 85, reproduced (1992) 63 British Yearbook International to UK to Greenstock, Permanent Representative the UN, statement the SecurityCouncilon 24 Mar in 1999, UN Doc S/PV.3988 (1999) 11-12, reproduced (1999) 70 BritishYearbook International of Law 580-1. See also 4th Reportof the House of CommonsForeign Affairs Committee, 2000, HC interventiononly 'as an 28-I, which points out that the UK Government justified humanitarian exceptionalmeasurein supportof purposeslaid down by the UN SecurityCouncil... wherethatis the only meansto avertan immediateand overwhelminghumanitarian catastrophe'.

15Richard 'End Will Rise 19 Independent, Oct2001,10. Lloyd Parry, of Taliban Bring inHeroin' 16 Governments exile arebutthe mostextreme of in manifestation thispresumption. FE See: and 'Governments Authoritiesin Exile' (1942) 36 AmericanJournalof Oppenheimer,

the Rules?Unilateral 1997).Cf. Michael 'Changing Rulesabout ByersandSimonChesterman, and of Law' in JL Holzgrefe Robert Humanitarian Intervention the Future International and

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405

to concerns'butneverexplicitlyclaimingthe existenceof a ringrepeatedly 'humanitarian rule.19 for on customary Germany, its part,gave its consentto the Kosovo intervention the Some conditionthat it was made clear thatthis was not a precedentfor furtheraction.20 academiccommentators, mustbe said, were not nearlyso hesitant.21 it evident in statementsmade The desire to avoid setting a precedentwas particularly of afterthe air campaign.The then US Secretary State,MadeleineAlbright,stressedthat Kosovo was 'a uniquesituationsui generis in the region of the Balkans'and thatit was 'not the important to overdraw variouslessons thatcome out of it'.22 the It may be that a similar anxiety about creatinga precedentrestrained US from this such an argument time. The anxietywouldhave been augmented the fact by invoking that the precedentcreated would have been more sweeping than that arising out of Kosovo. The SecurityCouncilhad not deemedthe food crisis in Afghanistana threatto the peace andthe intervention was, at least initially,conductedby two Statesonly. could actually It is morelikely thatthe US was concernedthatusing such an argument of in Kosovo provided limit its abilityto use force.If the threat a humanitarian catastrophe the a basis for overriding sovereignrightsof Yugoslavia,the threatof one in Afghanistan was the basis for sayingthatthe bombing,even if lawful,shouldbe stoppedso as to allow food in.23 In any event, the apparentincongruityof invoking a humanitarian argumentin this to terrorist probablyprecluded justificationfrom the outset. acts response
IV. SELF-DEFENCE

law The US insteaddecidedto rely on self-defence,an areaof international thatis particcontentiousand difficult to analyse. AlthoughArticle 51 of the UN Charterstipularly ulates the conditions giving rise to a right of self-defence and that acts of self-defence must be reportedto the SecurityCouncil, it does not define the content of that right.24 law.25 Self-defence is partof customaryinternational 19 See, eg, Bill Clinton's Words: "WeAct to speechon 24 Mar 1999:'In the President's thousands of New York 25 Prevent WiderWar",' a Times, Mar1999,A15 ('We act to protect
innocent people in Kosovo from a mountingmilitaryoffensive.'). 20 Deutscher Bundestag, Plenarprotokoll13/248, 16 Oct 1998, 23129, available at <http:// dip.bundestag.de/parfors/parfors.htm>. 21 See, eg Neil A Lewis, 'The Rationale:A Word Bolsters Case for Allied Intervention,'NY Times, 4 Apr 1999 (quoting Abram Chayes, Diane Orentlicher, Michael Reisman, Ruth Wedgwood and Thomas Franck); Christopher Greenwood, 'Yes, But Is the War Legal?', Observer, 28 Mar 1999; Ruth Wedgwood, 'NATO's Campaign in Yugoslavia,' (1999) 93 AmericanJournal of InternationalLaw 828. 22 US Secretaryof State MadeleineAlbright,Press Conferencewith RussianForeignMinister Igor Ivanov, Singapore, 26 July 1999 <http://secretary.state.gov/www/statements/1999/ 990726b.html>. 23 Kim SenguptaandCahalMilmo, 'UN DemandsPauseIn BombingTo Let Aid ReachStarving Afghans', Independent,13 Oct 2001, 1; Andrew Buncombe and Colin Brown, 'Short Demands EarlyEnd To Offensive As StrayBomb Hits KabulHomes,' Independent,14 Oct 2001, 1. 24 Art 51 reads: 'Nothing in the presentCharter shall impairthe inherentright of individualor collective self-defence if an armedattack occurs against a Member of the United Nations, until the Security Council has taken measuresnecessary to maintaininternational peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reportedto the SecurityCouncil and shall not in any way affect the authorityand responsibilityof the SecurityCouncil underthe presentCharterto take at any time such action as it deems necespeace and security.' sary in orderto maintainor restoreinternational 25 See generally Ian Brownlie, InternationalLaw and the Use of Force by States (Oxford:

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are Necessity and proportionality the key requirements. During the 1837 rebellion in Upper Canada,British forces capturedan American ship that was being used to supply the rebels on the Canadianside of the NiagaraRiver, set it on fire and sent it over NiagaraFalls. The US assertedthat the United Kingdomhad to show this was a necessary and proportionateact of self-defence. The UK agreed with the American assessmentof the legal requirements, the modernlaw of self-defence was born.26 and The UK was also involved in a more recent precedent:its response to the 1982 Falklands/Malvinas invasion was a necessary and proportionate of self-defence.27 act But most claims of self-defence arise in circumstancesthat are less clear cut. Their contributionto the ongoing development of customary internationallaw turns on whetherthey are widely acceptedby other States. For example, in 1976 Israeli commandos stormed a hijacked plane in Entebbe, Uganda, killing the pro-Palestinian hijackersand rescuing most of the passengersand crew. Althoughmanyof the passengerswere Israeli,Israelitself had not been attacked. Nor had it sought Uganda's permissionfor the raid. But most States tacitly approved of what Israel had done. The requirements necessity and proportionality of were, as a result, loosened somewhatwith regardto the rescue of nationalsabroad.28 In contrast,when Israeldestroyedan Iraqinuclearreactorin 1981, its claim of selfdefence was firmly rejectedby other States.29Since a nuclearstrikehad not occurred, and was not imminent, the requirementsof necessity and proportionalitywere not fulfilled. Any right to engage in anticipatoryacts of self-defence remained tightly constrained.

V. RESPONSETO TERROR

Today, the question arises as to whether the right of self-defence extends to military since most such responses will violate the terriresponses to terroristacts, particularly torial integrity of a State that is not itself directly responsible.For decades, the US, Israeland apartheid SouthAfricapromotedsuch a claim. For example, in 1986 the then US Secretaryof State George Shultz said: restrictions theuse or threat forcein international on of relations include [T]heCharter's a specific for of It to that law exception theright self-defense. is absurd argue international us terrorists international in or fromattacking waters airspace; prohibits fromcapturing themon thesoil of other evenforthepurpose rescuing of or nations, hostages; fromusing forceagainst states support, that and terrorists guerrillas.30 or train, harbor
Clarendon Press, 1963) 231-80; Bruno Simma (ed), The Charter of the United Nations: A Commentary(Oxford: Oxford University Press, 1994) 661-78; Nicaragua case (1986) ICJ Reports 14 at 102-6, 110, 122-23, paras 193-201, 210-11, 236-7. 26 See 29 British and Foreign State Papers 1137-38 and 30 British and Foreign State Papers 195-6; Robert Jennings, 'The Caroline and McLeod Cases,' (1938) 32 American Journal of InternationalLaw 82. 27 See generally:Alberto Coll and Anthony Arend, The Falklands War:Lessonsfor Strategy, Diplomacy, and InternationalLaw (Boston: G Allen & Urwin, 1985). 28 See: UN Doc S/PV 1939, 27, 51-9, 92 and UN Doc S/PV 1941, 31-2, in reproduced (1976)

Abroad,' (1977) 5 InternationalRelations 3. 29 See Security Council Res. 487 (1981) (unanimous), <http:www.un.org/documents/ scres.htm>. 30 Shultz, 'Low-Intensity Warfare:The Challenge of Ambiguity,' Address to the National

15International Materials 'The to Nationals 1224;Michael Akehurst, Useof Force Protect Legal

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Although invocations of this position to justify specific uses of force have been accepted in some instances,31the patternof response has not been clear enough to law. For example, Israelclaimed to be acting in establish new customaryinternational of self-defence when it attackedthe headquarters the PalestineLiberationOrganisation in Tunisia in 1985. The Security Council strongly condemned the action.32In 1998, afterthe bombingsof its embassies in Kenya andTanzania,the US firedcruise missiles at targets in Sudan and Afghanistanand claimed self-defence. A numberof governments expressed concern aboutthe fact that the territorial integrityof sovereign States was violated in an attemptto target, not the States themselves, but terroristsbelieved to be presentthere.33 Even when the State concerned is directly implicated in terrorism,acts of selfdefence directed against it have-in most instances-received at best a mixed In bomb in a Berlin nightclubkilled a numberof American response.34 1986, a terrorist soldiers. The US respondedby bombing Tripoli, and claimed self-defence. The claim was widely rejected, with many States expressing doubt as to whether the attack on In Libya was necessary and proportionate.35 1993, in Kuwait,an assassinationattempt of was made on George Bush Sr. The US respondedby bombing the headquarters the Iraqi Secret Service. It claimed self-defence on the basis that the attack on the exto Presidentwas tantamount an attackon the US itself. Again, the claim received little from other States.36 support Courtof Justice acceptedthat self-defence In the Nicaragua Case, the International could include responses to the 'sending by or on behalf of a State of armed bands, or groups, irregulars mercenaries,which carryout acts of armedforces againstanother State of such gravity as to amountto (inter alia) an actual armedattackconductedby regular armed forces, or its substantialinvolvement therein'.37In other words, the
Defense University, Washington,DC, 15 Jan 1986, reproducedin (1986) 25 InternationalLegal

on was Doctrine' firstarticulated 25 Oct 1984.See 204 Materials at 206. Theso-called'Shultz

Terrorism,'New YorkTimes, 26 Oct 1984, 'Excerpt's From Shultz's Address on International A12. For a wide-ranging analysis, see Jordan Paust, 'Responding Lawfully to International The Use of Force Abroad' (1986) 8 WhittierLaw Review711. Terrorism: 31 See the extensive analysis of State practice in: Claus Kress, Gewaltverbot und in nach der Satzungder VereintenNationen bei staatlicher Verwicklung Selbtsverteidigungsrecht

Duncker Humblot, Privater & Gewaltakten 1995). (Berlin:

32 SecurityCouncil Res 573 (1985), < http:www.un.org/documents/scres.htm>. resolution The was adoptedwith fourteenvotes in favour and one abstention:the US. 33 See Final Document of the XIIth Summit of the Non-aligned Movement, 2-3 Sept 1998, Durban, South Africa, <http://www.nam.gov.za/xiisummit/>, para 159; (1998) Africa Research Bulletin 13268; Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2000) 117-8. Cf Ruth Wedgwood, 'Responding to Terrorism:The Strikes Law 559. against Bin Laden' (1999) 24 Yale Journalof International 34 Some academic commentatorshave been less equivocal. See, eg Antonio Cassese, 'The International Community's"Legal"Response to Terrorism'(1989) 38 ICLQ 589 at 598 ('where the terroristsare officials of the State or are de facto effectively controlledby it ... international to law is clear: the terroristattackis attributable the State and a use of force against it by way of individualor collective self-defence is allowed.'). 35 See Legal Responses to Terrorism' Gray, op cit 116-17; Michael Reisman, 'International Law 3 at 33-4. (1999) 22 Houston Journalof International 36 See Dino Kritsiotis, 'The Legality of the 1993 US Missile Strike on Iraq and the Right of Law' (1996) 45 ICLQ 162; Gray, 'After the Cease-fire: Iraq, the Self-Defence in International Security Council and the Use of Force' (1994) 65 British Yearbookof InternationalLaw 135 at 37 Nicaragua Case (1986) ICJ Reports 14 at 103, para 195. 169-72.

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Court held that an 'armed attack' exists only when the link between the State and the non-State actor is very close, and the attack is of a seriousness akin to an attack by a State. This position is consistent with the law of State responsibility insofar as it concerns the attribution of the acts of non-State actors to a State.38 In late September 2001, the US found itself in something of a legal dilemma, though not an entirely unhelpful one. In order to maintain the coalition against terrorism, its military response had to be necessary and proportionate. This meant that the strikes had to be carefully targeted against those believed responsible for the atrocities in New York and Washington. But if the US singled out Bin Laden and Al-Qaeda as its targets, it would have run up against the widely held view that terrorist attacks, in and of themselves, do not constitute 'armed attacks' justifying military responses against sovereign States. Even today, most States would not support a rule that opened them up to attack whenever terrorists were thought to operate within their territory. In response to this dilemma, the US adopted a two-pronged legal strategy. First, it expanded its focus to include the Taliban.39 By giving refuge to Bin Laden and AlQaeda and refusing to hand him over, the Taliban were alleged to have directly facilitated and endorsed his acts. Moreover, their continued presence as the de facto government of Afghanistan was viewed as a threat, in and of itself, of even more terrorism. As John Negroponte, the US Permanent Representative to the UN, explained in a letter to the President of the Security Council on 7 October 2001: The attacks on 11 September2001 and the ongoing threat to the United States and its nationalsposed by the Al-Qaedaorganizationhave been made possible by the decision of the Talibanregime to allow the partsof Afghanistanthatit controlsto be used by this organization as a base of operation.Despite every effort by the United States and the international community,the Talibanregime has refused to change its policy. From the territory of Afghanistan,the Al-Qaeda organizationcontinues to trainand supportagents of terror who attack innocent people throughoutthe world and target United States nationals and interestsin the United States and abroad.40 The US in this way broadened the claim of self-defence to include the State of Afghanistan. Although it would normally still be contentious, this is much less of a stretch from pre-existing international law than a claimed right to attack terrorists who

38 Underthe law customaryinternational of Stateresponsibility,Statesare only responsiblefor those acts of privateindividualsor groupsover which they exercise 'effective control'. See Art 8, ILC Draft Articles on State Responsibility,in 'Reportof the International Law Commission on the work of its Fifty-thirdsession,' Official Records of the GeneralAssembly,Fifty-sixthsession, SupplementNo. 10 (A/56/10, chap.IV.E.2), available at < http://www.un.org/law/ilc/index.htm> ('The conduct of a person or groupof persons shall be consideredan act of a State underinternational law if the person or group of persons is in fact acting on the instructionsof, or underthe directionor control of, that State in carryingout that conduct.');Commentary Art 8, ibid, 104, to to para3 ('Such conduct will be attributable the State only if it directedor controlledthe specific operationand the conductcomplainedof was an integralpartof thatoperation.').On Stateresponsibility and terrorismspecifically, see Luigi Condorelli, 'The Imputabilityto States of Acts of International Terrorism'(1989) 19 Israel Yearbookon HumanRights 233. 39 It is possible that the expansion was driven, not only by legal strategy, but also by the discovery of evidence implicatingthe Talibanin the attacksof 11 September.See 'Blair Presents His Case Against Al-Qa'ida Network,' Independent,5 Oct 2001, 4; 'The allies' case againstBin Laden:Extractsfrom yesterday'sgovernmentdocument,' Guardian,5 Oct 2001, 4. 40 UN Doc S/2001/946, available at See also: <http://www.un.int/usa/s-2001-946.htm>. Wren, 'US Advises UN. Council More StrikesCould Come,' New YorkTimes,9 Oct Christopher 2001, B5.

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of simply happenedto be within the territory anotherState.41 Subsequentstatementsby the Taliban, apparentlyendorsing the terroristacts, may furtherhave engaged their law, this might legal responsibilityeven if, underpre-existingcustomaryinternational not have made them responsible for an 'armed attack'.42And for these reasons, the claim to be acting in self-defence againstthe State of Afghanistan-and the modification of customary internationallaw inherent within that claim-had a much better chance of securingthe expressed or tacit supportof a large numberof other States. Second, the US workedhardto secure widespreadsupportin advanceof its military action. The formationof the coalition, includingthe invocationof Article 5 of the 1949 NorthAtlanticTreatyandArticle 3(1) of the 1947 Inter-American Treatyof Reciprocal Assistance, even though neither NATO nor the parties to the Inter-American Treaty were called upon to engage in military action, helped smooth the path for the selfdefence claim.43 Both groups identified the events of 11 September as an 'armed attack'. Similarly, the Security Council resolutions adopted on 12 and 28 September were carefully wordedto affirm, within the context of a broaderresponse to terrorism, law.44 the right of self-defence in customaryinternational This second strategybuilt upon an approachpreviously used in 1998. A few short hoursbefore he orderedthe cruise missile strikesagainstterroristtargetsin Sudanand Afghanistan,Bill ClintontelephonedTony Blair, HelmutKohl, andJacquesChiracand requestedtheir support.Without having time to consult their legal advisers, all three leaders agreed-and followed this with public statements immediately after the strikes.45Criticism of the military action by other States was, consequently, more restrainedthan it might have been. And this relatively restrainedresponse facilitated the eventual modification of customary internationallaw that has now quite clearly occurred. As a result of the legal strategies adopted by the US, coupled with the already contested characterof the rule and a heightenedconcern about terrorismworld-wide, the right of self-defence now includes militaryresponses against States which actively terrorist groupswho have alreadyattackedthe responding supportor willingly harbour
41 For prior academic commentaryto this effect, see Oscar Schachter, 'The Lawful Use of Force by a State against Terroristsin Another Country' (1989) 19 Israel Yearbookon Human Rights 209 at 215-18. of 42 See 'MullahOmar-in his own words', Guardian,26 Sept 2001, Features,3 (translation interviewwith Voice of America); UnitedStates Diplomaticand ConsularStaffin Tehran(1980) ICJ Reports 3 at 36, para 74 (Once the Governmentof Iran endorsed the illegal acts of Iranian militants,it became legally responsiblefor those acts itself). 43 See Suzanne Daley, 'For First Time, NATO Invokes Joint Defense Pact With US,' New YorkTimes, 13 Sept 2001, A17; Suzanne Daley, 'NATO Says US Has Proof Against bin Laden Group,' New YorkTimes, 3 Oct 2001, Al; 'Rio Treaty CountriesLend Full Supportto United States,' OAS Press Release E-213/01, 16 Oct 2001, <http://www.oas.org>.The North Atlantic Treaty ('Washington Treaty') may be found at <http://www.nato.int/docu/basictxt/treaty.htm>; the Inter-American Treaty('Rio Treaty') at <http://www.oas.org>. 44 Security Council Res 1368, UN Doc SC/7143; Security Council Res 1373, UN Doc The SC/7158; both available at <http:www.un.org/documents/scres.htm>. language used in the two resolutionsdiffers slightly. Resolution 1368 reads, inter alia: 'Recognizing the inherentright of individualor collective self-defence in accordancewith the Charter'.Resolution 1373 reads, interalia: 'Reaffirmingthe inherentrightof individualor collective self-defence as recognizedby the Charterof the United Nations as reiteratedin resolution 1368 (2001)'. It could be arguedthat the language used in the second resolutionis more expansive-and thus less restraining. 45 William Drozdiak, 'European Allies Back US Strikes; Japan Says It "Understands",' WashingtonPost, 21 Aug 1998, A20.

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State.46And in accordancewith a longstandingconsensus-and Article 51 of the UN Charter-self-defence can be either individualor collective, enabling States that have been attackedby terroriststo call on other States to participate. The long-termconsequencesof this strategicapproachmay be significant.Had the US relied on argumentsof Security Council authorisation, invitationor humanitarian intervention,it is unlikely thatmany States would have objected,butnext time it would have been more difficult to act alone or in the absence of such additionalconditions. Althoughpreviousattemptsto establisha rightto engage in self-defence againstterrorists proved largely unsuccessful due to a lack of international support,the situationin the aftermathof 11 Septemberwas considerablymore conducive. Having seized the opportunityto establish self-defence as an accepted basis for military action against some terroristattacks, the US will now be able to invoke it again-even when the circumstancesare less grave. It is thus plausibleto regardthe choice of justificationas, in part, a strategic decision directed at loosening the legal constraintson the use of force to the ongoing advantageof the US.
VI. PRE-EMPTIVE ACTION The US may now be employing similar legal strategies in an effort to develop or extend a right of anticipatory self-defence against terrorist acts. Until 1I September, any right to pre-emptive action was widely contested-and thus tightly constrained. When Israel destroyed the Iraqi nuclear reactor, its claim of self-defence was firmly rejected.47 In fact, Article 51 of the UN Charter states that the right of self-defence arises when 'an armed attack occurs' and most States have, since 1945, been very reluctant to claim a right of anticipatory self-defence. Israel justified the strikes that initiated the 1967 Six Day War on the basis that Egypt's blocking of the Straits of Tiran was a prior act of aggression.48 The US justified its 1962 blockade of Cuba on the basis of Chapter VIII of the UN Charter, as regional peacekeeping,49 and the 1988 downing of an Iranian civilian Airbus as a response to an ongoing armed attack.50 An ongoing series of attacks might justify a

46 For a similar view, see: Frederic Kirgis, 'Israel's Intensified Military CampaignAgainst Terrorism,' ASIL Insight, Dec 2001, <http://www.asil.org/insights.htm> ('Because customary international is often developedthrougha process of official assertionsand acquiescences,the law absence of challenge to the US assertedright of self-defense could be taken to indicate acquiescence in an expansion of the right to include defense against governmentsthat harboror support organizedterrorist groupsthatcommit armedattacksin othercountries.').For evidence of support from other States, see, eg, 'Assembly Winds Up Week-Long Debate on Elimination of Terrorism,'UN Press Release GA/9929, 5 Oct 2001, <http://www.un.org/News/Press/docs/2001/ ga9929.doc.htm>; 'Universal Condemnation of Terrorism Continues in Assembly's General Five PresidentsHeard,'UN Press Release GA/9959, 11 Nov Debate, Counter-ActionSupported; 2001, <http://www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Serge Schmemann, 'Near Unity at the UN On OpposingTerrorism,'New YorkTimes, 17 Nov 2001, B5. 47 See Security Council Resolution 487 (1981) (unanimous),<http:www.un.org/documents/ scres.htm>;discussion, above 406. 48 (1967) United Nations Yearbook 166, 174 and 196. 49 Abraham of Chayes, 'Law and the Quarantine Cuba,' (1963) 41 Foreign Affairs 550. 50 (1988) United Nations Yearbook 199; Aerial Incident 3 of July 1988 (Islamic Republic of Iran v United States of America), PreliminaryObjections,writtenpleadings of US, PartI, Ch II (available at: <http://www.icj-cij.org/icjwww/Icases/iirus/iirusframe.htm>).

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responseon the basis thateach incidentis partof a largercampaign,which, as a whole, constitutes the armed attack. But there is relatively little supportfor a right of anticilaw-either generpatoryself-defence, as such, in presentday customaryinternational ally or in respect of terroristacts.51 This does not mean that this aspect of the law will remainunchanged.In his letter of 7 October 2001, AmbassadorNegroponte did more than invoke the right of selfdefence with regardto Afghanistan.He also wrote: 'We may find that our self-defense The US, requiresfurtheractions with respectto otherorganisationsand other states.'52 in extending its claim beyond Al-Qaeda, is clearly contemplatingwidespreadmilitary action of a pre-emptive characterthat it would justify as anticipatoryself-defence. Negroponte's letter could be seen as a step towards securing advancedsupportfor an extension of the right of self-defence to encompassthis previously contested sphere.53 Indeed, the letter attractedlittle in the way of protestsfrom other States-an omission that might, if continuedin the face of actionjustified as anticipatoryself-defence-be regardedas evidence of acquiescencein yet anotherchange to customaryinternational law.

AND THE UN CHARTER VII. SELF-DEFENCE

does not define self-defence, the Charter AlthoughArticle 51 of the UN Charter system does impose some limits on the exercise of the right.54 Thereis likely to be considerable debateover these limits in the monthsandyears to come. For example,the rightof selfdefence is conditionedon the occurrenceof 'an armedattackagainst a Memberof the United Nations'.55It will probablybe arguedthatthe atrocitiesof 11 Septemberdid not constitutean armedattacksince they did not involve the use of force by a State,and that the relevantframeworkof analysis is instead international criminallaw. In response,it fails to distinguishbetween 'aggression'in the sense of might be said thatthis argument Articles 1(1) and 39 of the Charter, and an 'armedattack'in the sense of Article 51 (at least in its English version).56 the debateover 'armedattack'will be irrelevant: But by expanding its claim of self-defence to include the Taliban and securing the advance
51 See Gray,InternationalLaw and the Use of Force (Oxford:OxfordUniversityPress, 2000)

Law Cf and Watts International (9th 111-15. SirRobert (eds),Oppenheim's Jennings SirArthur that Court in 1992),421-2. It is noteworthy theInternational of Justice, edn)(London: Longman, the itself unableto conclude whether use of nuclear weaponswouldbe legal in 'an extreme of of in circumstance self-defence, whichtheverysurvival a Statewouldbe at stake'(1996)ICJ atpara 226, Reports <http://www.icj-cij.org>, 97. 52 UN Doc S/2001/946,availableat <http://www.un.int/usa/s-2001-946.htm>. See also MoreStrikes Could 9 Come,'NewYork Wren,'USAdvisesUN Council Times, Oct Christopher 2001,B5. 53 TheUKwouldseemto havealready in its delivered Defence expressed support, a speech by to worldwide, GeorgeHoon.See Richard Norton-Taylor, 'Prepare fight terror says Secretary and 6 or Hoon,'Guardian, Dec 2001, 6 ('Wemayneedto coerceregimes stateswhichharbour with the international forcein the terrorism, the threat and,ultimately use of, military support and eventthatdiplomatic othermeans fail.'). and Council: WhatDoes Article51 Require?' 2001);DW Greig,'Self-Defence the Security 366. (1991)40 ICLQ 55 Forthefulltextof Art51, see above,n 24. 56 TheFrench version armee. speaks simplyof agression
54 See generally Nico Krisch, Selbstverteidigungund kollektiveSicherheit (Berlin: Springer,

its Nuclear WeaponsAdvisoryOpinion,made no referenceto anticipatory action when it declared

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supportof a large numberof other States, the US has effectively overcome any such The attacks on New York and Washingtonengaged individual criminal limitation.57 responsibility, but State-sponsoredterrorismon this scale now also constitutes an 'armedattack'. Article 51 also stipulates that the right of self-defence exists 'until the Security Council has taken measuresnecessary to maintaininternational peace and security'.58 It could be argued that the adoptionof Resolutions 1368 and 1373, ratherthan reinforcingthe rightof the US to engage in self-defence againstAfghanistan,insteadsuperseded that right. Both resolutions were adoptedin direct response to the terroristacts ratherthan pursuantto a US reportof self-defence action, both were adopted under Chapter VII, and both call upon or require States to take a range of non-forceful measures to combat terrorism.They could thus be seen as constituting 'measures necessaryto maintaininternational peace and security'. There are at least three legal or practicalproblemswith this argument.First, it fails to explain why the Security Council, in both instances, was careful to recognise 'the inherentright of individualor collective self-defence'. This explicit recognitionwould make little sense if the Council intendedto supersedethe US right to engage in defensive action. Although the US is not identified specifically as the State having the right to engage in self-defence,59the thrust of both resolutions is clearly to express and provide wide-reaching support for the US. Subsequent support for the US military action reinforces this interpretation.60 Secondly, even if the argumentcarried some weight, the argumentthat the right of self-defence survives, because it has explicitly been recognised in the same two resolutions, is no less tenable. And in the realm of international politics, at least, a tenable argumentmay well be good enough particufor the single superpower.61 Thirdly, the argumentignores the possibility that larly Resolution 1373 could be arguedto contain an almost unlimitedChapterVII authorisation of the use of force.62Arguingthat the right of self-defence has been superseded consequence of provokingthe invocationof this aspect of might have the unfortunate the resolution,therebyopening the door for furthersuch invocations,by Russia, China and others, once the currentconsensus on the use of force disappears.

See discussion: above, 408-9. For the full text of Art 51, see: above, n 24. 59 In contrast,the Security Council resolutionadoptedimmediatelyafter the Iraqiinvasion of Kuwaitrecognizedthe rightof individualor collective self-defence specifically in responseto the armed attack against Kuwait. See Res 661 (1990) <http:www.un.org/documents/scres.htm>; Colin Warbrick,'The Invasionof Kuwaitby Iraq' (1991) 40 ICLQ482 at 483-8. 60 See, eg, 'Assembly Winds Up Week-Long Debate on Eliminationof Terrorism,'UN Press Release GA/9929, 5 Oct 2001,<http://www.un.org/News/Press/docs/2001/ga9929.doc.htm>; 'UniversalCondemnation Terrorism of Continuesin Assembly's GeneralDebate,Counter-Action Supported; Five Presidents Heard,' UN Press Release GA/9959, 11 Nov 2001, <http:// www.un.org/News/Press/docs/2001/ga9959.doc.htm>; Serge Schmemann, 'Near Unity at the U.N. On OpposingTerrorism,'New YorkTimes, 17 Nov 2001, B5. 61 See Sir ArthurWatts, 'The Importanceof International Law', in Michael Byers (ed), The Role of Law in InternationalPolitics (Oxford:Oxford University Press, 2000), 5 at 8 ('There is room for the view that all that States need for the general purposes of conductingtheir international relationsis to be able to advancea legal justificationfor theirconduct which is not demonstrablyrubbish.Thereafter,political factorscan take over ....'). 62 See discussion: above 401-3.
57
58

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Apart from the extended scope of the right of self-defence, there are at least three relatedconsequences that bear consideration. First, the strengthof the argumentsthatthe US did not use is likely to remainunaffected by the decision to focus on self-defence. Argumentsas to a possible ChapterVII interventionwill be no less availinvitationand unilateralhumanitarian authorisation, able in future,should the facts accommodatethem. Secondly, the extension of the right of self-defence to include action against States raises difficult issues of evidence terrorists actively supportingor willingly harbouring and authority. Simply put: who decides that there is sufficient evidence of State that selfcomplicity to justify the use of militaryforce? Is the Article 51 requirement defence measures be reported to the Security Council sufficient protection against incautious or opportunisticbehaviour-especially given that five of the States most able to engage in such measures have the capacity to veto any resolution directed against them? These issues become only more difficult in the context of an extension of the right of self-defence to include pre-emptiveaction. Thirdly, extending the right of self-defence to include action against States willingly harbouringterroristscreates a potentially awkwardoverlap between the law of self-defence and the law of judicial co-operation,especially with regardto extradition. At what point is a State's rightto choose between prosecutingor extraditingan accused terroristsupersededby a second State's right to use force in self-defence against it? Should the second State be requiredto presentevidence of culpabilityto the first State before launching self-defence action? Or should the Article 51 reportingrequirement so be reinterpreted that a State wishing to engage in self-defence against a terroristState must first present evidence to the Security Council and receive its harbouring approval?This, it may be noted, is essentially what occurredwith Resolution 1373.63 The right to choose between prosecutionor extraditionwas overriddenby the Council on a previous occasion-though not one involving a claim of self-defence-with regardto two Libyannationalsaccused of having committedthe Lockerbiebombing.64 Resolution 748 effectively suspended Libya's right, under the 1971 Montreal Conventionfor the Suppressionof Unlawful Acts againstthe Safety of Civil Aviation, to prosecutethe accused in Libya ratherthan extraditethem abroad.65 Although terrorism is not a crime falling within the Rome Statute of the International CriminalCourt,some terroristacts, such as the attacksof 11 September, This raises the question be of a scale that makes them crimes againsthumanity.66 may 63 See discussion: above408-9. 64 Council Res.748 (1992),<http:www.un.org/documents/scres.htm>. Security

65 (1975) 974 United Nations TreatySeries 177, <http://untreaty.un.org>. 66 See, eg Art 7(1)(a) of the ICC Statute,setting out the elements of the crime against humankilled one or more person. 2. The conduct was committed as ity of murder:'1. The perpetrator partof a widespreador systematicattackdirectedagainsta civilian population.3. The perpetrator knew that the conduct was partof or intendedthe conduct to be partof a widespreador systemic CriminalCourt,UN Doc attackagainsta civilian population.'-Rome Statuteof the International A/Conf.183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>. However, a proposal to include terrorismitself as one of the crimes subjectto the jurisdictionof the ICC was rejectedby the Rome Conference. See UN Doc A/CONF.183/C.1/L27; Neil Boister, 'The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism,Politics,' (1998) 3 Journal of Armed ConflictLaw 27.

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of the relationship between the new right to engage in self-defence against States willingly harbouring terrorists and the soon to be in place mechanisms of the ICC. Although international criminal law and the law governing the use of force necessarily operate in tandem-indeed, one of the primary heads of ICC jurisdiction is to be 'war remain conceptually and practically distinct. The important role crimes'-they accorded national courts is a reflection of this distinction.67 Extending self-defence to include attacks on States willingly harbouring terrorists could create an additional, awkward overlap with these new institutional mechanisms. These and other problems will have to be resolved in order to enable the extended right of self-defence to co-exist easily with other, related fields of international law. But the existence of these problems does not mean that the extension of the right of self-defence is necessarily a bad thing. As Sir Arthur Watts has explained, with considerable prescience: Self-defence probablyhas to be an inherentlyrelative concept-relative to the times and circumstancesin which it is involved. Self-defence on the days of naval warfare,such as that at Trafalgar,is a very differentthing from self-defence in the days of nuclearwarfare, to Exocet missiles, and the possibility of easy transport almost any destinationin the world of small packages of anthraxor nerve agents. All the same, there are limits to the burden which the concept of self-defence can safely, and legally, be called upon to bear.It is essencircumstancesmust be evaluated tially a legal concept, and its applicationto any particular law. To stretchthe concept to such an extent thatit departs in accordancewith international serves not from the ordinarymeaning of the term, as refined by judicial pronouncements, branchof the law, but also to bringthe law in generalinto only to underminethis particular disrepute.68 The events of 11 September have set in motion a significant loosening of the legal constraints on the use of force, and this in turn will lead to changes across the international legal system. Only time will tell whether these changes to international law are themselves a necessary and proportionate response to the shifting threats of an all too dangerous world. MICHAEL BYERS*

67 On CriminalCourt, UN 'complementarity',see Art 17, Rome Statute of the International Doc A/Conf.183/9 (1998), <http://www.un.org/law/icc/statute/romefra.htm>. 68 Sir ArthurWatts, above n 61, at 11. * Associate Professor,Duke University School of Law; Peter North Visiting Fellow, Centre I for Socio-Legal Studies and Keble College, Oxford University. E-mail: byers@law.duke.edu. am grateful for constructive criticism from Marcelo Kohen, Claus Kress, Nico Krisch, Georg Nolte, Scott Silliman, Colin Warbrick,and audiences at the universities of Koln, Lancaster, Oxford, and Wales (Aberystwyth).