ASIL Insights

Addendum to ASIL Insight on Terrorist Attacks
By Gregory H. Fox
September 2001

I would like to add a short addendum to Professor Frederic Kirgis's very useful ASIL Insight on the terrorist attacks against the World Trade Center and Pentagon. President Bush has stated that in considering its response to these acts, the United States will make no distinction between perpetrators of the acts and the states that harbor them. As Professor Kirgis rightly points out, absent authorization by the Security Council, any armed reprisal by the United States against "harboring" states could only be justified as an act of self-defense. However, the UN Security Council appears to be on record as having rejected such a justification.

On October 1, 1985 Israeli planes bombed the headquarters of the Palestine Liberation Organization at Hammam-Plage, near Tunis, Tunisia. In explaining its action to the Security Council, Israel argued that the bombing was justified by Tunisia having knowingly harbored terrorists who had targeted Israel:

A country cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations, and that is precisely what happened here. Tunisia knew very well what was going on in this extraterritorial base, the planning that took place there, the missions that were launched from it, and the purposes of those missions: repeated armed attacks against my country and against innocent civilians around the world. Tunisia, then, actually provided a base for murderous activity against another State and, in fact, the nationals of many States who are the objects and victims of this terrorist organization.

The protection of sovereignty cannot be claimed by any Government when it makes available such facilities, especially against the State that must protect itself.

UN Doc. S/PV.2615, at 86-7 (Oct. 4, 1985) (statement of Mr. Netanyahu).

The Security Council evidently rejected this claim and voted in Resolution 573 to condemn the Israeli action by a margin of 14-0, with the United States abstaining. The resolution condemned "vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct." It described the air raid as a "threat to peace and security in the Mediterranean region." The resolution further requested UN member states "to take measures to dissuade Israel from resorting to such acts against the sovereignty and territorial integrity of all States." Finally, it stated "Tunisia has the right to appropriate reparations as a result of the loss of human life and material damage."

Gregory H. Fox
Assistant Professor of Law
Chapman University School of Law

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Addendum: War and Responses to Terrorism
By Jordan Paust
September 2001

Under international law, we could not be at "war" with an entity that has a status less than that of an insurgent (which status pertains during an insurgency or armed conflict not of an international character within the meaning of common article 3 of the 1949 Geneva Conventions), unless that entity is directly involved with others engaged in a "war". If we are fighting insurgents, we would be at "war" in at least one sense-regarding application of certain laws of war. We would clearly be at "war" if we are fighting a "belligerent" (which must have outside recognition as an entity with such a status, as in the case of the U.S. Civil War upon recognition of the Confederate States of America as a "belligerent" by Great Britain), and all of the laws of war would apply to such an armed conflict. We could also be at war with a state (e.g., Iraq) or nation (e.g., a group of people recognizably having such a status even though they have no territorial base and there is no recognition of relevant statehood status, as in the case of certain U.S.-Indian wars in the 18th or 19th centuries). We could not be at "war" with Osama bin Laden, since he and his entourage are in no way representatives or leaders, et al., of an "insurgency" within the meaning of international law. He is also not a recognized leader of a "nation," "belligerent," or "state". We are in fact engaged in an armed conflict of an international character with Iraq, a continual use of force during which all laws of war apply even though there is no formal US declaration or recognition of "war".

Assassination during an armed conflict is a war crime, subject to universal jurisdiction and nonimmunity from criminal or civil sanctions. However, the US Army Field Manual 27-10, para. 31, recognizes that selective targeting of individual soldiers or officers (proper military targets) is not assassination, although "putting a price upon an enemy's head, as well as offering a reward for an enemy 'dead or alive'" is a war crime. In times of armed conflict or relative peace, assassination is also impermissible extra-judicial killing that constitutes a serious violation of customary and treaty-based human rights law, also implicating universal jurisdiction and nonimmunity.

In case of an armed attack or process of armed attacks on the United States, whether or not a war or armed conflict exists, the targeting of nonstate or state leaders and entities in charge of or directly engaged in the attack is a permissible measure of self-defense under Article 51 of the United Nations Charter, a treaty of the United Sates. A self-defense military mission to capture and arrest those ordering and directly engaged in ongoing processes of attack would also be permissible under the Charter.

Jordan Paust is Law Foundation Professor and the Law Center of the University of Houston.

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Comment: Acts of War and State Responsibility in 'Muddy Waters': The Non-state Actor Dilemma
By John Cerone
September 2001

In his remarks above, Professor Kirgis has identified issues of state responsibility and individual criminal responsibility under international law that arise in the wake of the horrific events of September 11.  Indeed, it is the link (or lack thereof) between these two types of responsibility that makes this case particularly complex. If the perpetrators were state agents sent by their government to carry out these attacks, then calling this an "act of war" and holding that government responsible for the attacks would not be particularly remarkable.  However, as it appears that the acts were committed by non-state actors, novel legal issues arise.

Framework

Traditionally, public international law governs relations between states. However, with the development of international criminal law in the 20^th century, international law has been applied directly to individuals (i.e. human beings) in very limited criminal contexts.  It is clear that the individuals who perpetrated the attacks committed a crime under international law.  This fact, however, is separate from the questions of whether those attacks were acts of war or whether any state bears responsibility for the acts of the perpetrators. 

The bulk of the laws of war, embodied in the 1949 Geneva Conventions and Protocols thereto, are predominantly concerned with interstate armed conflict.  Among the four Conventions, only 'Common Article 3' expressly applies to non-interstate armed conflict. [1]   In cases falling within Common Article 3, the government and the non-state armed groups who are parties to the conflict are bound by the standards contained therein.  However, that article essentially contemplates internal armed conflict, i.e. conflict occurring within the territory of one state.  In this case, we appear to have neither interstate armed conflict nor internal armed conflict but a group or groups of non-state actors who are likely based abroad, possibly in several countries, launching an attack against a state.  It doesn't fit the model that international law provides.  While there is some historical precedent, the law is far from clear in such a situation.  At the same time, it is necessary to bear in mind that international law is highly adaptive and subject to dynamic interpretation. 

Is it 'war'?

The Geneva Conventions do not speak in terms of war.  The phrase used is armed conflict.  One of the strengths of the Geneva Conventions is that they apply on the facts.  Thus, a formal declaration of war is not necessary to trigger their application so long as an armed conflict in fact exists.  However, the Conventions themselves do not set forth a definition for armed conflict. 

Certain factors provide a basis for arguing that a state of armed conflict has arisen.  First, the US considers itself to have been the victim of an act of war.  This is supported by the fact that NATO has activated Article 5 of its Charter, which commits the member states to assist if any member state has been subjected to an armed attack.  Article 5 requires each NATO member state, "in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations," to assist the attacked state by taking "such action as it deems necessary, including the use of armed force," to restore and maintain security.  Clearly, NATO has determined that the US has been subjected to an armed attack sufficient to give rise to the right of self-defense under international law as recognized in the UN Charter. [2]   In this regard, it is also noteworthy that the UN Security Council, in its resolution condemning the attacks, "recognize[d] the inherent right of individual or collective self-defense in accordance with the Charter."

Ultimately, to determine whether a state of armed conflict has arisen, it may well be necessary to wait and see if the US responds with armed force.  For example, if the US were to respond to these events with a purely criminal justice approach (i.e. a criminal investigation seeking extradition and not involving the use of military force), albeit transnational, then it would not amount (or have amounted) to an armed conflict.  If the US employs military force against the perpetrators, then it may amount to armed conflict.  If the US uses military force against a state in its efforts to obtain the perpetrators, then an interstate armed conflict will have arisen between the US and that state.

Implications of classifying the events as 'acts of war'

If a state of armed conflict has arisen, then the parties to that conflict would be bound by the laws of war.  The laws of war would place additional legal restraints on the US in the conduct of its operations and in its treatment of the perpetrators.  However, if they were acts of war and if the responsibility of a state can be established with respect to those acts, as will be discussed below, then military force could lawfully be used against that state. [3]

Is the US entitled to "make no distinction between the terrorists who committed these acts and those who harbor them"?

While the phrase "those who harbor them" is amenable to a variety of interpretations, it likely was intended to refer to states that harbor terrorists.  If the phrase merely referred to the harboring of terrorists by other non-state actors and the treatment of the latter before US courts, then it would simply be a restatement of accomplice liability under American criminal law.  If the phrase does indeed refer to the harboring of terrorists by states, then it may illustrate a conflation of the international responsibility of the state with the criminal responsibility of individual perpetrators.

In order for the US to take countermeasures, it must first establish that the state against which it is taking countermeasures has committed an internationally wrongful act (e.g. the breach of an international legal obligation).  Even if the commission of an internationally wrongful act is established, such countermeasures must be proportionate and may not involve the use of armed force. [4]   In light of the UN Charter's prohibition on the use of force, recourse to armed force may only be made in self-defense under Article 51.

There are different modes in which the responsibility of a state can arise with respect to the acts of non-state actors.  For example, if a state is harboring one or more of the terrorists, then it will be in breach of its international legal obligation to prosecute or extradite the offender(s).  Such a breach would entitle the US to take proportionate countermeasures, not involving the use of force, against the offending state. 

In some instances, the acts of non-state actors may be attributed to a state.  In such cases, the state may be treated as having committed the acts perpetrated by the non-state actors.  While it is well established that an international obligation may be breached through an act or an omission, mere inaction would likely be insufficient to give rise to state responsibility for the acts in this case.  According to the Draft Articles on State Responsibility, "The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct." [5]   However, international law, and human rights law in particular, is moving toward lowering the threshold for holding states accountable for the failure to prevent violations by non-state actors.  It is possible that the US will argue that state acquiescence in a pattern of conduct of non-state actors will be sufficient to attribute such conduct to the state. 

If the terrorist attacks can be attributed to a state, then that state would be in breach of international law and the US would be entitled to take countermeasures.  Further, as an armed attack, the US would be entitled to use military force pursuant to Article 51 of the UN Charter. [6]

Conclusion

In general, the system established by the UN Charter, as with the bulk of public international law, does not take cognizance of individuals and, as such, is not well designed for responding to monstrous acts committed by non-state actors. 

It is highly unlikely that the use of these phrases by high government officials was the result of carelessness.  If the acts committed were acts of war, and if states harboring perpetrators may be deemed to be themselves perpetrators, then the legal groundwork has been established for the use of armed force against those states.  The use of these phrases is part of the process of developing international law, and specifically, of adapting it to the changing nature of warfare. 

John Cerone is Executive Director of the War Crimes Research Office at American University Washington College of Law.  He can be reached at jcerone@wcl.american.edu. 

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[1] While Protocol II also applies to non-international armed conflict, it provides significantly less protection to individuals than does Protocol I, which is applicable only in international armed conflict or occupation.  Note, however, that the International Criminal Tribunal for the former Yugoslavia, such as in the Tadic case, has greatly expanded the scope of norms applicable in non-international armed conflict.
[2]  It should be noted, however, that several European NATO members have evinced a reluctance to refer to the attacks as acts of war.
[3] In addition, action taken by military forces during armed conflict is expressly excluded from the International Convention for the Suppression of Terrorist Bombings, which might otherwise impose restrictions on states responding to terrorist attacks. While the United States is not a party to this convention, it has signed the convention, thus undertaking the obligation not to defeat the object and purpose of the convention.
[4] The International Court of Justice has elaborated other conditions for the employment of counter-measures.  The state seeking to employ countermeasures must have first called upon the state committing the wrongful act to discontinue its wrongful conduct or to make reparation for it.  In addition, the purpose of the counter-measure must be to induce the wrongdoing state to comply with its obligations under international law.  Gabcikovo Nagymaros Project (1997).
[5] While the Draft Articles are not binding law, they are largely in accord with decisions of the International Court of Justice and are highly persuasive evidence of the state of customary law.
[6]  If a state of armed conflict arises, we would no longer be in the realm of countermeasures and the laws of war would apply.  Hence, the US would not be limited to a single response and, while the US would have to abide by the proportionality requirements of humanitarian law, the proportionality requirement of countermeasures would not apply.

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Comment
By Arnold N. Pronto
September 2001

Referring to Prof. Kirgis' thought provoking views on the recent terrorist attacks in New York and Washington D.C., I wish to make the following friendly observations concerning his reference to the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970. While it is certainly correct to make reference to that convention, it might also be worthwhile to consider its jurisdictional limitations, and for that matter also those of some of the other related treaties he did not cite, such as the 1963 Tokyo Convention on Offences and Certain Other Acts committed on Board Aircraft, and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. All of these may be relevant to the question of the hijacking and subsequent destruction of the four aircraft. However, these treaties relate primarily to acts committed either on board or to the aircraft itself and not necessarily to the possibility of the aircraft being used as a weapon of broader destruction. Therefore, extending the scope of these treaties to cover the destruction of the World Trade Center and part of the Pentagon, as well as the massive loss of life in those buildings and the causing of a state of terror in the general public, could only be done with difficulty.

There are, however, two additional, more recently adopted, treaties that may be of some relevance. The first is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations in 1997. The treaty recently entered into force (on 23 May 2001), and currently has 58 signatories and 25 parties. The United States signed the treaty on 12 January 1998, but has not yet ratified it. The treaty shares many of the attributes of the Hague Convention, including an extradite or try regime. Indeed, many of its provisions were modeled on prior conventions like the Tokyo, Hague and Montreal conventions, to name a few. Under article 2, a person commits an offence within the meaning of the convention if "that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility.with the intent to cause death or serious bodily injury..or..with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss." While it is granted that the drafters had in mind the more (I daresay) common bomb or other explosive device, it is arguably not too much of a stretch to consider a plane filled with tons of jet fuel and used as an explosive missile as an "explosive device" within the scope of article 2. What is also of particular interest is its focus on international mutual cooperation, including the sharing of information (see article 15) and mutual legal assistance (see article 10). Furthermore, the treaty itself forms a basis for extradition in such cases, and, significantly, it expressly excludes the application of the political offence exemption in the context of extradition and mutual legal assistance. Its scope also covers attempts, and those participating in the acts as accomplices or by organizing or directing others to commit such acts, and even includes groups of individuals linked to the act by a common purpose.

Furthermore, much has been made of the vast international networks that provide material and other assistance to terrorists. In 1999, the General Assembly adopted the International Convention for the Suppression of the Financing of Terrorism, which, for the first time, does not focus on any one particular manifestation of terrorism (hijacking, bombing etc.), but rather is aimed at those individuals that "by any means, directly or indirectly, unlawfully and willfully, [provide] or [collect] funds with the intention that they should be used" to commit terrorist acts (article 2). While notionally covered by the accomplice liability provisions of the various existing "sectoral" anti-terrorism treaties, the issue of the material support provided by these networks was considered to be of such importance in the fight against terrorism that it warranted its own treaty. The treaty, which was in part modeled on the Terrorist bombings convention, includes the now "standard" anti-terrorism provisions, but also contains new provisions specific to the financing of terrorism with a view to providing States with the capability to counter these vast networks which commonly traverse two or more international boundaries. For example, provision is made for the possibility of the criminal liability of legal persons (article 5), as well as for the freezing and seizure of funds (article 8), and the prohibition on reliance on bank secrecy laws as a ground for declining mutual legal assistance (article 12). The treaty also includes detailed provisions on the conduct of financial institutions, based on the OECD's FATF regulations on money laundering. While the Financing of Terrorism treaty is not yet in force (it currently only has 4 parties, and needs 22 for entry into force), it is hoped that it will enter into force in the near future, and that it will provide States with further muscle in the fight against terrorism.

Arnold N. Pronto is an Associate Legal Officer in the Codification Division of the Office of Legal Affairs of the United Nations. The views expressed herein are entirely those of the author and do not reflect the position of the United Nations.

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Addendum Relating to Self-Defense
By B. Welling Hall
September 2001

At a press conference on September 18, 2001, US Secretary of Defense Donald Rumsfeld made the statement that nothing prevents the United States from defending itself against terrorism. This language alludes to Article 51 of the UN Charter, recognizing that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense . . ."

There are, however, authoritative views in international law about what constitutes legitimate self-defense. One of these arises from the Caroline case (1837). In response to a border raid attack that killed two persons when the US ship Caroline plunged over Niagara Falls, Secretary of State Daniel Webster made the now classic formulation that there must be "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation" and that responsive measures must be neither "unreasonable" nor "excessive." The Caroline test, that of "instant and overwhelming necessity," was employed in the deliberations of the Nuremberg Tribunal. In affirming that Tribunal, the UN General Assembly voted in favor of codifying the principles recognized in its Charter and judgment.

Various sources of international law provide insight into what constitutes "excessive force." In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the International Court of Justice held in paragraph 78:

The principles and rules of humanitarian law include specific prohibitions on causing "unnecessary suffering" through activities such as starving noncombatants and torturing prisoners to gain confessions. Article 48 of the First 1977 Protocol to the Geneva Convention, Relating to the Protection of the Victims of International Armed Conflicts states a basic rule:

The United States signed this Geneva Protocol on December 12, 1977, but has not yet ratified it. According to Article 18 of the Vienna Convention on the Law of Treaties (1969) States are required not to defeat the purpose of a treaty that has been signed, but not yet ratified, unless said treaty is explicitly renounced. It may additionally be argued that the Geneva Protocols are a codification of widely accepted customary law emanating from several hundred years of just war theory, military practice, and diplomatic exchange.

The terrorist attacks on the World Trade Center (if not the Pentagon) on September 11, 2001 pose the legal dilemma of how to respond proportionally when the initial attack was itself unreasonable, excessive, and against civilians. Nonetheless, the suggested policy of holding entire nations accountable for the acts of a few would not appear to be lawful since collective punishment would, by definition, entail the unnecessary suffering of innocent populations.

B. Welling Hall
Professor of Politics and International Studies
Earlham College

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Clarification of Insight on Terrorist Attacks on the World Trade Center and the Pentagon
By Frederic L. Kirgis
September 20, 2001

The Hague Convention for the Suppression of Unlawful Seizure of Aircraft does not require a contracting state to establish its jurisdiction over the offenses mentioned in the Insight of September 12 unless the place of take-off or the place of landing of the aircraft is outside the territory of the state of its registration. The aircraft in the September 11 attacks took off and ended their flights in the state of their registration, the United States. But the Convention does require a contracting state either to extradite an offender (including an accomplice) or to submit the case to its authorities for the purpose of prosecution, whatever the place of takeoff or landing, if the offender is found in a state other than the state of the aircraft's registration. This latter provision would thus apply to accomplices in the September 11 attacks, if they are found outside the United States.

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Addendum: Prosecution of Mr. bin Laden et al. for Violations of International Law and Civil Lawsuits by Various Victims
By Jordan J. Paust
September 21, 2001

Prosecution of Mr. bin Laden and others acting outside the United States in connection with the September 11th terroristic attack on the United States and US nationals is possible under the Antiterrorism Act of 1990 (18 U.S.C. §§ 2331 et seq.). Section 2332 (a) is not applicable to homicide as such because the section applies to "Whoever kills a national of the United States" but adds the limiting phrase "while such national is outside the United States." Yet, such language would cover prosecution of homicide against US nationals abroad in the case of the bombings of US Embassies in Kenya and Tanzania and the attack on the U.S.S. Cole. Section 2332 (b) does not contain the limiting phrase noted above regarding the location of US victims and can cover attempts and conspiracy in connection with the killing of a national of the United States (apparently anywhere) although the accused must be "outside the United States at the time of the attempt or engagement in a conspiracy to kill. Section 2332 (c) should also be applicable, since it reaches an accused "outside the United States" who "engages in physical violence-(1) with intent to cause serious bodily injury to a national of the United States; or (2) with the result that serious bodily injury is caused to a national of the United States." Section 2332 (d) requires written certification by the US Attorney General "or the highest ranking subordinate" that such offenses were "intended to coerce, intimidate, or retaliate against a government or a civilian population"-a certification that would be relatively easy to make.

Prosecution is also possible under US legislation implementing the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 U.N.T.S. 177 (1971) (which in Article 7 thereof also requires all signatories to bring into custody those reasonably accused of international crimes covered by the treaty and either to initiate prosecution of or to extradite such persons, without any exception or limitation of such duty whatsoever). 18 U.S.C. § 32 (a) should be applicable to "[w]hoever willfully-(1) ...destroys, disables, or wrecks, any aircraft in the special aircraft jurisdiction of the United States" and to whoever "(5) performs an act of violence against or incapacitates any individual on any such aircraft....", and such persons should include coconspirators who were involved in the wilful destruction of US commercial aircraft flying within US airspace.

Since international terrorism and crimes against humanity are international crimes over which there is universal jurisdiction and a universal responsibility either to initiate prosecution of or to extradite those reasonably accused, the United States should also be able to enact new legislation that operates retroactively for prosecution of what were already recognizable international crimes under customary international law and such legislation should not be challengeable under prohibitions of ex post facto laws. The permissibility of such retroactive legislation was affirmed, for example, in the Eichmann case in Israel (1962) (also addressing similar rulings in the Netherlands and Germany), the US extradition decision in Demjanjuk v. Petrovsky (1985), and by the Executive officials applying the 1863 Lieber Code to acts that were already war crimes under customary international law (see DIGEST OF OPS. OF JAG, ARMY 244 (1866); Paust, Bassiouni, et al., INTERNATIONAL CRIMINAL LAW 244-48 (2 ed. 2000)). Certain persons accused of international crimes before the International Military Tribunals at Nuremberg and for the Far East made claims that Charters of the Tribunals incorporating such crimes were violative of ex post facto or nullum crimen sine lege precepts, but the Tribunals correctly ruled that the crimes existed under international law at the time of their commission and no such precepts were violated.

Civil lawsuits are also possible under the Antiterrorism Act, assuming that Mr. bin Laden or others outside the US are captured and brought to the United States and process has been served. Section 2333 allows civil remedies in a lawsuit brought by "[a]ny national of the United States injured in his or her person, property, or business, by reason of an act of international terrorism, or his or her estate, survivors, or heirs, ... and [such plaintiff] shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees." The latter provision is one always of interest to plaintiffs' lawyers who might handle such lawsuits on a contingent fee basis. The main problem after winning such a lawsuit will involve execution of a judgment on any properties of the defendant(s) located within the United States (no real problem) or execution abroad (at the discretion of some foreign court). Perhaps bank accounts of Mr. bin Laden and his entourage could be frozen not merely for purposes of preventing the financing of terrorism, but also for recompense and other damages for victims.

Foreign plaintiffs can also sue under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, for any wrong in violation of customary international law and/or treaties of the United States (such as the International Covenant on Civil and Political Rights or the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation). Punitive damages are recoverable in such lawsuits. Under the ATCA, they could also sue any companies or corporations complicit in relevant violations of international law, e.g., companies or corporations used to finance terroristic attacks in violation of human rights. Whether lawsuits by US or foreign plaintiffs are possible under the Torture Victim Protection Act (TVPA), 106 Stat. 73 (1992), depends on interpretation of phrases such as "extrajudicial killing" and whether Mr. bin Laden and his entourage were acting "under actual or apparent authority, or color of law, of any foreign nation" (such as Iraq). Of course, Mr. bin Laden is not a leader of any foreign nation, state, belligerency, or insurgency within the meaning of international law.

For reasons noted in another statement, if relevant acts were committed by Mr. bin Laden and his entourage without direct participation in any armed conflict, the acts would not be war crimes. Also, they may not trigger "war" exclusion clauses in various contracts or insurance policies, depending on the language used. If they were committed in direct connection with an armed conflict (e.g., as an extension of the armed conflict between Iraq and the US and other countries), prosecution is possible under 10 U.S.C. §§ 818 and 821, as supplemented for purposes of jurisdiction in the federal courts by 18 U.S.C. § 3231, whether or not other war crimes legislation is available alternatively. When "grave breaches" of the 1949 Geneva Conventions (including "wilful killing, ...wilfully causing great suffering or serious injury to body or health...." to persons protected by the Conventions) have been committed by any person "inside or outside the United States" against a US national, the War Crimes Act of 1996 (18 U.S.C. §2401) is operative.

Mr. bin Laden and others are also under indictment for various other crimes in connection with the first bombing of the World Trade Center, including conspiracy to murder US nationals, to use weapons of mass destruction against US nationals, to destroy US buildings and property, and to destroy US defense utilities. See United States v. Usama bin Laden, et al., 92 F. Supp.2d 189 (S.D.N.Y. 2000).

Jordan J. Paust
Law Foundation Professor
Law Center, University of Houston

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Comment on Fox Addendum
By Said Mahmoudi
September 24, 2001

Professor Fox's addendum to Professor Kirgis's comments on the terrorist attacks in New York and Washington DC, gives rise to further observations. Professor Fox refers to the Security Council's Resolution 573 (1985) where Israeli invocation of self-defense argument to justify its attack on Tunisia for harboring Palestinians was vigorously rejected by the Council. The Security Council, as a political organ and unlike courts of law (in common law countries), is not bound by its previous decisions. Each resolution reflects the political conditions surrounding that specific case. The ultimate goal of resolutions is expected, at least formally, to keep or restore international peace at the time of the adoption of the resolution.

The Security Council is now obviously faced with a situation that profoundly differs from the situation in 1985 when Palestinian groups carried out individual attacks on Israeli targets, normally with limited casualties. That is why the members of the Security Council, in their resolution 1368 (2001), in contradistinction to Resolution 573 (1985), unanimously recognize the right of each State to individual and collective self-defense in situations like the present one in the US. The Security Council seems to equate terrorist acts, or at least those that claim a great number of civilian victims, with armed attacks in the sense of Article 51 of the UN Charter. Reference to the recent catastrophe as "a threat to international peace" and talking of "all necessary steps to respond to the terrorist attacks of 11 September 2001" reinforce this impression.

We are probably witnessing a development of international law, which, given the objectives of the UN Charter in strict restriction of the use of force, does not necessarily have to be a positive one.

Said Mahmoudi, LL.D.
Professor of International Law
Faculty of Law, Stockholm University

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Addendum: Inter-American Regional Security Against Terrorism:
A Shield and a Sword
By Montserrat Gorina-Ysern

Professor Kirgis and John Cerone have identified two international law approaches to the terrorist acts of Sept. 11. One approach adheres to legal process, considering that the instigators of the hijackings, if apprehended, could be charged for offenses committed under international criminal law and "could face prosecution in virtually any country that obtains custody of them." The other approach involves the use of force on the understanding that the US and its NATO allies consider that an armed attack sufficient to trigger the exercise of the inherent right of individual and collective self-defense has occurred within the meaning of Article 51 of the UN Charter. 

The response by OAS member states against terrorism in the hemisphere combines a shield and a sword, using legal process as well as measures of a military nature. Two issues that arise are whether OAS regional measures are compatible with the principles and purposes of the UN Charter and the Inter-American Democratic Charter, and whether the Inter-American Treaty of Reciprocal Assistance (Rio Treaty), [1] preeminently designed to combat communism in the Western Hemisphere, can be effectively used to combat terrorism.

The OAS is a regional arrangement or agency within the meaning of Article 52 of the UN Charter.  At its special session on Sept. 11, 2001, held in Peru, the OAS General Assembly condemned in the strongest terms the terrorist acts, which it regarded also as an attack on all the democratic and free states of the world, and reiterated the need to strengthen hemispheric cooperation to combat this scourge. The General Assembly is the supreme organ of the OAS, with extensive decision-making powers to determine the organization's general action and policy in pursuance of its essentially economic cooperation and human development purposes. 

A Meeting of Consultation of Ministers of Foreign Affairs, convened by the Permanent Council (PC) of the OAS on Sept. 21 yielded a 12-point resolution. [2]   Points 1 to 4 restate earlier OAS statements condemning the tragic events of Sept. 11. Point 5 asserts that "actions to combat terrorism must be undertaken with full respect for the rule of law, human rights, and democratic institutions in order to preserve the rule of law, liberties and democratic values in the Hemisphere."  Point 6 urges members "to promote widespread tolerance and social harmony within their societies in recognition of the racial, cultural, ethnic and religious diversity" of Hemispheric communities, "whose fundamental rights and freedoms were reaffirmed most recently in the Inter-American Democratic Charter."  Ratification of the 1999 International Convention for the Suppression of the Financing of Terrorism is recommended (Point 7). Institutional arrangements involving OAS-based specialized conferences and bodies with plans of action against terrorism are dealt with in Points 8-12. The PC will convene a meeting of the Inter-American Committee Against Terrorism (CICTE), with support from the OAS Secretary-General (Point 11), and produce a draft Inter-American Convention Against Terrorism. The Committee on Hemispheric Security is to expedite preparations for a Special Conference, with input from CICTE, and make specific recommendations to the PC (Point 10). The Inter-American Defense Board is to provide advisory services to the Committee on Hemispheric Security (Point 12).

The resolution's rights-based language, its broad endorsement of institutional cooperation and its emphasis on "the imperative need to expedite the extradition process" of those responsible, appear to be compatible with the purposes and principles of the UN and the Inter-American Democratic Charter in combating international terrorism.

The OAS Charter has two further key purposes: to strengthen peace and security on the continent and to provide for common action in the event of aggression. [3]   ''An act of aggression against one American State is an act of aggression against all the other American States"(Article 3h). Chapter VI provides for measures of collective security based on the principles of continental solidarity or collective self-defense, to the effect that "Every act of aggression by a State [emphasis added] against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States" (Article 28). Though Article 28 refers to "aggression by a State," the terms of Article 29 dealing with armed attacks, acts of aggression falling short of an armed attack, and "any other fact or situation that might endanger the peace of the Americas" may cover acts of aggression by non-State actors.  The OAS Permanent Council's specific reference on Sept. 19, to Article 65 ("in case of an armed attack on the territory of an American State"), indicates that the terrorist acts of Sept. 11, apparently committed by non-State actors, are regarded nonetheless as an "armed attack" on US territory in the context of the OAS Charter. This interpretation is reinforced by UN Security Council resolution 1368 (2001) and by NATO's invoking its Article 5, which also refers to armed attacks.

The Rio Treaty (RT) was activated on September 21, when the RT's Organ of Consultation, [4] adopted a 9-point resolution. Points 1 and 3, treating the terrorist attacks against the US as attacks against all American States, call on all States Parties to provide effective reciprocal assistance, including additional assistance to each other, to address such attacks and the threat of any similar attacks against any American state, and to maintain the peace and security of the continent. Point 2 obligates States to "use all legally available means to pursue, capture, extradite and punish" [emphasis added] any persons found in their territory and believed to have been involved in or in any way to have assisted the Sept. 11 attacks, or to be harboring the instigators or otherwise involved in terrorist activities. RT parties shall keep the Organ of Consultation properly informed (Point 4), "for the purpose of ensuring the prompt and effective implementation of this resolution and, if necessary, of taking appropriate additional measures" (Point 5). The newly created committee will be composed of OAS representatives to the PC of each State Party to the RT, "for the purpose of engaging in additional consultations and of taking measures in furtherance of the foregoing" (Point 6).  The PC is charged with implementing the measures adopted under the OAS Charter (Point 8), and the UN Security Council shall be kept informed of any resolutions adopted under the RT (Point 9).

If the rudder of respect for democracy, the rule of law, and fundamental rights and freedoms that has steered Latin American leaders in the last decade prevails, the shield and sword of the Inter-American regional security system may be transformed into a post-Cold War effective mechanism against terrorism. For the time being, the reference to the use of "all legally available means to pursue, capture extradite and punish" the instigators under the Rio Treaty, is reassuring.

Montserrat Gorina-Ysern, PhD
Adjunct and Research Assistant Professor,
School of International Service,
American University

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Addendum: Security Council Adopts Resolution on Combating International Terrorism
By Frederic L. Kirgis
October 1, 2001

            On September 28, the United Nations Security Council adopted Resolution 1373 on steps to combat international terrorism. [1] Acting under Chapter VII of the UN Charter, the Security Council decided that all states (not just United Nations member states) shall prevent and suppress the financing of terrorist acts, criminalize the willful financing of such acts, freeze the financial assets or economic resources of persons and entities involved in the commission of such acts, and prohibit their nationals or any persons or entities within their territories from making financial assets or economic resources available for the benefit of persons involved in such acts.  It also decided that all states shall refrain from supporting anyone involved in terrorist acts, take necessary steps to prevent such acts (including early warning to other states and exchange of information), deny safe haven to those involved in such acts, prevent those involved in such acts from using their territories for terrorist purposes, ensure that any person who participates in such acts is brought to justice, afford assistance in connection with criminal investigations or other criminal proceedings relating to the financing or support of terrorist acts, and prevent the movement of terrorists by effective border controls and other means.

            Because the Security Council adopted these measures under Chapter VII of the Charter, all UN member states are legally bound to implement them.  Non-member states, such as Switzerland, would not be formally bound as a matter of treaty law, but would have adequate incentive to comply.

            Resolution 1373 also "calls upon" all states to cooperate in several other ways to combat terrorism, including by becoming parties to existing treaties relating to terrorism.  The resolution specifically mentions the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999.  It is likely that this part of the resolution will be considered recommendatory rather than legally binding on member states, but in any event they would be under considerable pressure to cooperate. [2]

            Resolution 1373 also reaffirms that terrorist acts constitute a threat to international peace and security, and reaffirms the inherent right of individual or collective self-defense as recognized by the Charter.  This is not a Security Council approval of the use of armed force in self-defense as a response to the events of September 11, but it may be taken as an indication of the Security Council's recognition that the right of self-defense could arise from those events.

            Resolution 1373 concludes with an expression of the Security Council's determination to "take all necessary steps" to ensure its full implementation.  The quoted words are reminiscent of the Council's authorization to member states in Resolution 678 to "use all necessary means" to restore international peace and security after Iraq invaded Kuwait in 1990.  But Resolution 1373 does not authorize states to take all necessary steps to implement it.  Instead, it stands as a warning that the Council itself stands ready to take further steps, which presumably could involve an authorization of some form of armed force that would not necessarily be limited to self-defense, to ensure that the measures taken in the resolution are adequately implemented.  Any further Security Council resolution to that effect would have to obtain the approval or acquiescence of all five permanent members of the Council.

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