Counter-Terrorism and the Use of Force in International Law
In this paper, Michael Schmitt explores the legality of the attacks against Al Qaeda and the Taliban under the "jus ad bellum," that component of international law that governs when a State may resort to force as an instrument of national policy. Although States have conducted military counterterrorist operations in the past, the scale and scope of Operation Enduring Freedom may signal a sea change in strategies to defend against terrorism. This paper explores the normative limit on counterterrorist operations. Specifically, under what circumstances can a victim State react forcibly to an act of terrorism? Against whom? When? With what degree of severity? And for how long? The author contends that the attacks against Al Qaeda were legitimate exercises of the rights of individual and collective defense. They were necessary and proportional, and once the Taliban refused to comply with U.S. and United Nations demands to turn over the terrorists located in Afghanistan, it was legally appropriate for coalition forces to enter the country for the purpose of ending the ongoing Al Qaeda terrorist campaign. However, the attacks on the Taliban were less well grounded in traditional understandings of international law. Although the Taliban were clearly in violation of their legal obligation not to allow their territory to be used as a terrorist sanctuary, the author suggests that the degree and nature of the relationship between the Taliban and Al Qaeda may not have been such that the September 11 attacks could be attributed to the Taliban, thereby disallowing strikes against them in self-defense under traditional understandings of international law. Were the attacks, therefore, illegal? Not necessarily. Over the past half-century the international community's understanding of the international law governing the use of force by States has been continuously evolving. The author presents criteria likely to drive future assessments of the legality of counterterrorist operatio7.
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acts of international acts of self–defense Afghanistan aggression Al Qaeda American armed attack armed force Article 2(4 Article 51 authorities bombings Charter civilian coalition collective self–defense committed community’s conflict context cooperate counter–terrorist operations countermeasures customary international law defense Embassy evidence fact further attacks G.A. Res human rights imminent inherent right International Court international peace international terrorism involved Iraqi issue JOURNAL OF INTERNATIONAL jus ad bellum justify law enforcement Libya Marshall Center Papers Michael Reisman necessary Nicaragua non–State actors Nuclear Weapons ongoing Operation Enduring Freedom peace and security proportionality regarding relevant requirement responses to terrorism right to self–defense S.C. Res self–defence self–defense operations Sept September 11 September 11 attacks standard State’s strikes Sudan Taliban targets territorial integrity terrorist acts terrorist attacks terrorist group terrorist organization threat to international Treaty UN Charter United Kingdom United Nations Usama bin Laden victim violation vis–à–vis visited June 18
Page 80 - The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council...
Page 12 - Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.
Page 91 - Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.
Page 89 - to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.
Page 75 - There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.
Page 5 - Authorization for Use of Military Force'. "Sec. 2 Authorization for use of United States Armed Forces. "(a) In general. That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 1 1.
Page 93 - August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait; 17.
Page 21 - ... an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Page 75 - The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur.
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