THE LEGALITY OF THE USE OF FORCE BY THE UNITED STATES AND THE UNITED KINGDOM AGAINST AFGHANISTAN

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THE LEGALITY OF THE USE OF FORCE BY THE UNITED STATES AND THE UNITED KINGDOM AGAINST AFGHANISTAN

in Austrian Review of International and European Law Online

References

I P-M. Dupuy, The Law After the Destruction of the Towers, Discussion Forum, EJIL, http://www.ejil.org/forum_WTC/ny-dupuy.html, 27 October 2001. 2 Opinion expressed by E. Benvenisti, in the Expert Analysis on Terrorism and the Laws of War: September 11 th and its Aftermath, http://www.crimesofwar.org/expert/attack- intro.html, 26 October 2001.

3 Opinion expressed by R. G. Goldman, in the Expert Analysis on Terrorism and the Laws of War: September 11 th and its Aftermath, http://www.crimesofwar.org/expert/ attack-intro.html, 26 October 2001.

4 Quoted in Interights, Responding to September 11: the Framework of International Law, October 2001, http://www.interights.org/about/sept%2011.asp, 10 November 2001 1 5 Reproduced in "Measures to prevent international terrorism etc., Study prepared by the Secretariat", UN Doc. 4/C.6/418, Ann. I, ( 1972). 6 Obote-Odara, A., Defining International Terrorism, 6.1 Murdoch University Electronic Journal of Law (1999), http://www.murdoch.edu.au/elaw/issues/v6n1/obote- odora6lnf.html#defint, 25 October 2001. 7 UN Doc. A/8730 (1972). 8 "Questions Relating to International Terrorism", 1972 U.N.Y.B., at 641.

9 Third Report on the Draft Code of Offences Against the Peace and Security of Man- kind, ILC, UN Doc.A/CN.4/387, (1985), at 40, point D. '° UN Doc. A/40/53 (1985). " 1971 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance, reproduced in "Measures to Prevent International Terrorism etc., Study Prepared by the Secre- tariat", UN Doc. 4/C.6/418, Ann. I, (1972). 12 1976 European Convention on the Suppression of Terrorism, 15 ILM 1273 (1976). '3 J. J. Lambert, Terrorism and Hostages in International Law: a Commentary on the Hostages Convention 1979, 347 ( 1990). 14 R. B. Bilder, "Book Review and Note: Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979. By Joseph J. Lambert", 90 A.J.LL. 346, at 348 ( 1996). 15 M. C. Bassiouni, "International Terrorism in Crimes", in M. C. Bassiouni, (ed.) Inter- national Criminal Law, Vol 1: Crimes, at 765 et seq. (1999). '6 progress Report to the Fifty-third Session Sub-Commission on the Promotion and Pro- tection of Human Rights, E/CN.4/Sub.2/2001/31 (2001).

" Ibid. 18 See Obote-Odara, supra note 6. 19 K. Skubiszewski, "Definition of Terrorism", 19 Isr. Y.B. on Hurre. Rts. 39, at 46-47 ( 1989). xo G. Gilbert, "The Criminal Responsibility of States", 39 ICLQ 345 (1990).

military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgement of 27 June 1986, 1986 ICJ Rep. 14. 22 Questions of Interpretation And Application Of The 1971 Montreal Convention Arising From The Aerial Incident At Lockerbie (Libyan Arab Jamahiriya v. United Kingdom and Libyan Arab Jamahiriya v. United States), Preliminary Objections, Judgment of 27 February 1998, reprinted in 37 ILM 587 (1998) 23 R. Baxter, "A Sceptical Look at the Concept of Terrorism", 7 Akron L. Rev. 380, at 380 ( 1974). za C. Greenwood, "Terrorism and Humanitarian Law- the Debate over Additional Proto- col I", 19 Isr. Y.B. on Hum. Rts. 187, at 189 (1989). z5 Ganor believes that, in order to create a correct and objective definition of terrorism, it is essential to look at "accepted international laws and principles regarding what behav- iours are permitted in conventional wars between nations" which are mainly set out in the Geneva and Hague Conventions. Extending the principle of distinction to a conflict between an organization and a state, he argues that "terrorism, [...], would be defined as 'the deliberate use of violence against civilians in order to attain political, ideologi-

cal and religious aims."' while guerrilla warfare would be "the deliberate use of vio- lence against military and security personnel in order to attain political, ideological and religious goals." B. Ganor, No Prohibition Without Definition, 7 October 2001, http:// www.ict.org.il/, 4 November 2001. zb See Greenwood, supra note 24, at 189. 27 See Skubiszewski, supra note 19, at 41. 28 Terrorism Act 2000, Art. l(c), entry into force on 19 February 2001, http://www. legislation.hmso.gov.uk/acts/acts2oo0/000ll-b.htm#1, 25 October 2001. z9 D.J. Hanle, Terrorism: the Newest Face of Warfare, 108 (1989).

30 see Skubiszewski, supra note 19, at 53. 3' J. Paust, Prosecution of Mr. Bin Laden et al. for Violations of International law and Civil Lawsuits by Various Victims, 21 September 2001, http://www.asil.org/insights/ insigh77.htm#addendum2, 10 November 2001 speaks of international terrorism as "rec- ognizable international crimes under customary international law". 3Z Paust notes: "Since international terrorism and crimes against humanity are interna- tional crimes over which there is universal jurisdiction. The Restatement (Third), For- eign Relations Law of the United States (1987) notes that customary law `may' confer such jurisdiction over terrorism''. Ibid. 33 Responsibility for the Terrorist Atrocities in the United States, 11 September 2001, 4 October 2001, http://www.number- 1 0.gov.uk/news.asp?NewsId=2686, 1 October 2001. para. 4: "Osama Bin Laden and Al Qaida have been engaged in a jihad against the United States, and its allies. One of their stated aims is the murder of US citizens, and attacks on America's allies" 34 E. Karmon, Osama bin Laden: Speculations on Possible State Sponsorship, 17 Sep- tember 2001, http://www.ict.org.il/, 04 November 2001. 35 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), 860 UNTS 105

36 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft, 704 UNTS 219. 37 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 10 ill 1151. 3$ A.N. Pronto, Comment orc Terrorist Attacks orc the World Trade Center and the Penta- gon, September 2001, http://www.asil.org/insights/insigh77.htm, 24 October 2001. 39 1998 International Convention for the Suppression of Terrorist Bombings, UN Doc. A/ 52/49 (1998)

4° Pronto, supra note 38. 41 It shall be remarked that this provision is binding on all States, whether or not they are members of the UN (see Art. 2(6) and international customary law as expressed in the Nicaragua case). Y Dinstein, War, Aggression and Self-defence, 92-93 (1994). 42 See Greenwood, supra note 24, at 287-288.

43 see Greenwood, supra note 24, at 283. Green however asserts that "the terms war and armed conflict are being used as if they were synonyms", himself, still speaking in terms of war. L. Green, The Contemporary Law ofArmed Conflict, 69 (1993). 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field, 75 UNTS 31; 1949 Geneva Convention for the Amel- ioration of the condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 75 UNTS 85; 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287. 45 A. Pellet, "No, This is not War!", Discussion Forum, EJIL, http://www.ejil.org/forum_ WTC/ny-pellet.html, 27 October 2001. 46 J. Paust, Comment on Terrorist Attacks on the World Trade Center and the Pentagon, September 2001, http://www.asil.org/insights/insigh77.htm, 24 October 2001.

4� See Government of Pakistan v. R. S. N. and Others, 40 LL.R. 472. 48 See Greenwood, supra note 24, at 294. 49 During the armed conflict in Vietnam, some courts held that it was war (Broussard v. Patton, 466 F. 2d 816 (1972) 54 LL.R. 527) while others did not (Robb v. US, 456 F .2d 768 ( 1972) 60 LL.R. 652). 50 See Hanle, supra, note 29, at 200. 5' Address to a Joint Session of Congress and the American People, United States Capitol, Washington, D.C., Office of the Press Secretary, 20 September 2001, http:// www.whitehouse.gov/news/releases/2001/09/20010920-8.html, 15 November 2001. 52 In fact "to dismiss all the references to war in state practice as statements made, for political rather than legal, effect, or as being based on a misunderstanding of the law is a mistake." See Greenwood, supra note 24, at 305. s3 See Goldman, supra note 3.

sa See Pellet, supra note 45. ss See Dupuy, supra note 1 emergency Declared for New Jersey, statement by the Press Secretary, Office of the Press Secretary, 20 September 2001, http://www.whitehouse.gov/news/releases/2001/ 09/20010920.html, 15 November 2001. 57 See Green, supra note 43, at 72. s8 See Goldman, supra note 3. 59 "Expressing the Sense of the Senate and House of Representatives Regarding the Ter- roristAttacks Launched Against the Unites States on September 11, 2001", S.J.RES.22, 12 September 2001, para. 5.

so See Dinstein, supra note 41, at 177. 61 A. Cassese, "Terrorism is also Disrupting Some Crucial Legal Categories of Interna- tional law", Discussion Forum, EJIL, http://www.ejil.org/forum_WTC/ny-cassese.html, 04 November 2001. sz See Nicaragua case, supra note 21, paras 195, 232. The Court repeated that principle in addressing collective self-defence under Art. 51: "[... for one State to use force against another, on the ground that that State has committed a wrongful act of force against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack", paras 193-195.

63 See Nicaragua case, supra note 21, para. 195. 64 M. H. Mendelson, "The Nicaragua Case and Customary International Law", in W. E. Butler (ed.), The Non-use of Force in International Law, 85, at 88 ( 1989). see Interights, supra note 4. 66 See Nicaragua case, supra note 21. 67 Ibid. 68 Cassese states that international law "requires a pattern of violent terrorist action rather than just being isolated or sporadic acts". A. Cassese, "The International Community's 'Legal' Response to Terrorism", 38 ICLQ 589, at 596 ( 1999). 69 See Nicaragua case, supra note 21, para. 195. '° T. M. Franck, "Who Killed Article 2(4)? or Changing Norms Governing the Use of Force by States", 64 AJIL 809, at 812 ( 1970).

" Case Concerning United States Diplomatic and Consular Staff in Tehran, (1980) ICJ REP 3. 'Z Opinion expressed by A. P V. Rogers, in the Expert Analysis on Terrorism and the Laws of War: September Ilth and its Aftermath, http://www.crimesofwar.org/expertl attack-intro.html, 26 October 2001. 73 See Dinstein, supra note 41, at 187. " See Interights, supra note 4. 'S W. G. Sharp, "American Hegemony and International Law: The Use of Armed Force Against Terrorism: American Hegemony or Impotence?", 1 Chi. J. lnt'l L. 37, at 38 (2000).

'6 G. Gaja, "In What Sense Was There an 'Armed Attack'?", Discussion Forum, EJIL, http://www.ejil.org/forum_WTC/ny-gaja.html, 28 October 2001. " Press Release, NAC-S(99)65, 24 April 1999, http://www.nato.int/docu/pr/1999/p99- 065e.htm, 10 November 2001. 78 UN Doc. S/RES/1368 (2001). 79 UN Doc. S/RES/660 (1990). For an interesting discussion on the Security Council's reaction following the Iraqi aggression on Kuwait, see M. Weller, "The UN and the jus ad bellum", in P. Rowe (ed.), The Gulf War 1990-1991 in International and English Law, 29 (1993).

80 Reprinted in L. Henkin, R. Pugh, O. Schachter & H. Smith (eds.), International Law: Cases and Materials, 890 (1980). g' M. Reisman, "International legal Responses to Terrorism", 22 Hous. J. Int'l L 3, at 46 ( 1999). 82 R.Wedgwood, "Responding to Terrorism: The Strikes Against Bin Laden", 24 Yale J. Int'l Law 559, at 563-564 (1999). 8' 1949 North Atlantic Treaty, 34 UNTS 243. g° See Gaja, supra note 76. g5 See Rogers, supra note 72. 86 Cassese asserts that self-defence can only be invoked in cases where an act is imputable to a State. See Cassese, supra note 68.

87 O. Schachter, "The Lawful Use of Force by a State Against Terrorist in Another Coun- try", in Henry H. Han (ed.), Terrorism And Political Violence-Limits and Possibilities of Legal Control, 1993, 243, at 246. 88 C. Stahn, "Security Council Resolutions 1368 (2001 ) and 1373 (2001): What They Say and What They Do Not Say", Discussion Forum, EJIL, 29 October 2001, http://www. ejil.org/fomm_WTC/messages/15.html, 10 November 2001. 89 See Sharp, supra note 75, at 38. See Nicaragua case, supra note 21, para. 101. 9' See Gaja, supra note 76.

92 UN Doc. S/RES/748 (1992). 93 See Cassese, supra note 61. 94 See Benvenisti, supra note 2. 9s C. Gray, Use of Force in International Law, 197 (2001). 96 Case Concerning United States Diplomatic and Consular Staff in Tehran, (1980) ICJ Rep. 3. 97 See Gaja, supra note 76.

98 Art. 4(2) of the ILC draft states that "[a]n organ includes any person or entity which has that status in accordance with the internal law of the State" UN Doc. A/56/10, at 90. '°° See Gaja, supra note 76. 101 A. D'Amato, Response to Ratner and Lobel: "An Alternative to the Use of US Military Force ", http://jurist.law.pitt.edu/forumnew32.htm, 6 November 2001.

�oz 0. Schachter, "Self-defence and the Rule of Law", 83 AJIL 259, at 260 (1989). '03 See Interights, supra note 4. 104 Ibid. 105 See Cassese, supra note 61. 106 For an interesting description of the US nation-building interventions, see R.N. Haas, "Using Force: Lessons and Choices for US Foreign Policy", in C.A. Crocker, F.O. Hampson and P Aal, Managing Global Chaos: Sources of and Responses to Interna- tional Conflicts, 197, at 201-202 (1996). 107 See Cassese, supra note 61. 108 In this case reprisals are understood as actions undertaken within the framework of the ius ad bellum.

109 A pristine illustration of reprisals is the destruction by the US of two Iranian offshore oil platforms in October 1987 following the assault upon the Sea Isle City. 110 L.M. Campbell, "Defending Against Terrorism: A Legal Analysis of the Decision to Strike Sudan and Afghanistan", 74 Tul. L. Rev. 1067, at 1080 (2000). "' D.W. Bowett, "Reprisals Involving Recourse to Armed Force", 66Am. J. Int'l L. 1, at 6- 8 ( 1972). 112 Naulilaa Case, 2 R.I.A.A. 1011, 1028 (Portugal v. Germany) (1928). "' UN Doc. A/8028. 114 D.W. Bowett, Self-defence in International Law, 192 ( 1958). 115 A.D. Sofaer, "The Legality of the United States Action in Panama", 29 Colum. J. Transnat'l L. 281, at 286 (1991). 116 See Nicaragua case, supra note 21, Judge Schwebel, dissenting.

117 see Dinstein, supra note 41, at 185. "8 A.C. Arend, "International Law and the Recourse to Force: a Shift in Paradigms", 27 Stan. J. Int'l L. 1, at 15 (1990). 119 "In light of this reprehensible act of violence and clear evidence that Libya is planning future attacks, the United States has chosen to exercise its right to self-defence. It is our hope that [US] action will pre-empt and discourage Libyan attacks against innocent civilians in the future." White House statement, 14 April 1986 reprinted in Dep't St. Bull., June 1986, at 1. 120 see Arend, supra note 118, at 16. 12' The Joint Resolution declares that the Congress and the Senate "support for the deter- mination of the President to bring to justice and punish the perpetrators of these attacks and their sponsors", (italics added) having previously stated that the US shall respond under international law. "Expressing the sense of the Senate and House of Representa- tives regarding the terrorist attacks launched against the United States on September 11, 2001." S.J.RES.22, 12 September 2001, para. 8.

122 "The ICJ has concluded, with respect to customary international law, that the practice of States does not have to be perfect and that even when a State acts in a way incompat- ible with a recognized rule, its conduct may confirm rather than weaken that rule if the State defends its conduct by appealing to exceptions or justifications contained within the rule itself." A. A. Alexandrov, Self-defence Against the Use of Force in International Law, 120 (1996), summarizing the Nicaragua case, para. 186. 123 For the pro and cons of US unilateralism in situations where use of force can be used, see supra No. 104, at 203-205 and more particularly concerning the given case, C.-P David, "Feu Orange a Une Operation Militaire Sans Precedent", (2001) Le Devoir, http://www.unites.uqam.caJdandurand/publications/speciaCattentat.htrn, 11 November 2001. 124 see North Atlantic Treaty, supra note 83. izs See Dupuy, supra note 1. 126 Invocation of Article 5 Confirmed, NATO update, Week of 1-7 October 2001, http:// www.nato.int/docu/update/2001/1001/eIO02a.htm, 15 November 2001.

127 Turkey to Join War on Terror, 1 November 2001, BBC News, http://news.bbc.co.uk/hi/ english/world/europe/newsid_1632000/1632032.stm, 6 November 2001. 128 NATO Airborne Early Warning Aircraft Begin Deploying to The United States, Press Release, Week of 8-14 October 2001, http://www.nato.int/docu/update/2001/1008/ el009b.htm, 14 November 2001. 129 See Dupuy, supra note 1. i3o Ibid. '3' See Green, supra note 43, 71.

i32 D.W. Bowett, Self defence in International Law, 186, (1958). i33 T.M. Franck, "The institute for global legal studies inaugural colloquium: the UN and the protection of human rights: When, If Ever, May States Deploy Military Force With- out Prior Security Council Authorisation?", 5 Wash. U. J.L. & Pol'y 51, at 63 (2001). '34 See Benvenisti, supra note 2. 135 One may sadly recall that the US were too quick in blaming Libya for terrorist acts. See P Jenkins, "Whose Terrorists? Libya and State Criminality", 12 Contemporary Crises 1, at 5 (1988). i36 UN Doc. S/RES/1267 (1999), para. 2.

13' UN Doc. S/RES/1333 (2000), para. 1. '38 See Cassese, supra note 61. '39 See Bowett, supra note 132, at 195. "° UN Doc. S/RES/1368 (2001). "' See Rogers, supra note 72.

142 See Dupuy, supra note 1. '43 G. Ulfstein, "SC Resolution 1368 and Self-defence", Discussion Forum, EJIL, http:// www.ejil.org/forum_WTC/messages/5.html, 8 November 2001. 144 UN Doc. S/RES/688 (1991). 145 In pursuance of Art. 51 of the UN Charter, States are also requested to immediately report to the SC any measure taken but not preparatory ones as mentioned in Art. 54. In

the given case, the US and the UK have constantly kept the SC up to date. See "Press Statement on Terrorist Threats by Security Council President", 8 October 2001, AFG/ 152, SC/7167. 146 See Stahn, supra note 88. '4' T. Stein, "Decentralised International Law Enforcement: the Changing Role of the State as Law Enforcement Agent", in J. Delbrück and U. Heinz, Allocation Of Law Enforce- ment Authority in The International System: Proceedings of an International Sympo- sium of The Kiel Institute of International Law, 23-25 March 1994, 107, at 111-112. '48 Although the SC has not recognized that an aggression has occurred, practice nonethe- less shows that it is not the first time that the SC acts in this manner. The most blatant example of the SC reluctance to declare a given act an aggression is its reaction follow- ing the invasion of Kuwait by Iraq, where it recognized the existence of a breach of the international peace and only allowed Kuwait and States cooperating with it to wield their right to self-defence. If such a stance is taken in the most manifest case of inter- state aggression, one should not be surprised that the SC did not categorize the first acts as amounting to aggression. 149 See Pellet, supra note 45. iso See UN Doc. S/RES/731 (1992) and UN Doc. S/RES/748 (1992) pertaining to Libya.

151 See Dupuy, supra note 1. 112 UN Doc. S/RES/1373 (2001). 113 See Dupuy, supra note 1. isa In Res. 748 (1992), the SC inferred that a severe act of terrorism that targets a country through its citizens implies a risk of an international armed conflict. See the comment of G. Gaja, "Reflexions sur le Role du Conseil de Securite dans le Nouvel Ordre Mondial. A Propos Des Rapports Entre le Maintien de la Paix et Crimes Internationaux des Etats", 2 RGDIP 297, at 305-306 (1993). 155 For an interesting debate on the distinction between these expressions, see D. Sarooshi, The United Nations and The Development of Collective Security: The Delegation by The UN Security Council of Its Chapter VII Powers, 11-15 (1999).

's6 See Dupuy, supra note 1. 157 Indeed, "the United Nations can only do what its Member States, and in particular the permanent members of the Security Council, allow it to do [... ]." See Stein, supra note 147, at 109. isa See Cassese, supra note 61.

's9 More generally, Reisman argues that the US are consistently claimed that it had the right "initiate unilateral coercive action in circumstances in which it alone decides that such action is lawful and appropriate" W.M. Reisman, "The Raid on Baghdad: Some Reflections on Its Lawfulness and Implications", 5 EJIL 120 (1994), http://www.ejil.org/ joumaI/vbl5/NoI/artI I .html, 14 November 2001. 160 Turkey, for instance, occupied bases in Iraq that were used by Turkish Kurds, or Russia threatened to attack Afghani bases that offered support to Chechen rebels. '6' The action mounted by the US against Libya in 1986 was "widely disapproved of, France and Spain refusing over flying rights to the UK-based aircraft." S. D. Bailey, "The UN Security Council and Terrorism", XI International Relations 533, at 549 ( 1993). 162 T. Gazzini, "Self-defence?", Discussion Forum, EJIL, http://www.ejil.org/forum WTC/ messages/l4.html, 14 November 2001. 163 See Franck, supra note 133, at 62.

164 See Haas, supra note 106, at 199-200. 165 Pravda, 17 February 1987 quoted in R. A. Miillerson, "The Principle of Non-Threat and Non-Use of Force in The Modern World", in W. E. Butler (ed.), The Non-Use of Force in International Law, 29, at 33 (1989). '� See Pellet, supra note 45. '6' T. Hunter, The Use of Force in Response to Terrorism, http://www.terrorism.com/ter- rorism/Force.shtml, 5 November 2001. '6a M. Ratner, M. and J. Lobel, An Alternative to the Use of US Military Force, http:// jurist.law.pitt.edu/forumnew32.htm, 6 November 2001.

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