Terrorism and the UN: Before and After September 11

3 September 11 and Challenges to International Law

55 3 September 11 and Challenges to International Law Nico Schrijver The horrifying events of September , , challenged some basic notions of international law. Washington1 and its partners in the North Atlantic Treaty Organization (NATO) and the Organization of American States (OAS) immediately identified the terrorist attacks on the United States as “acts of war,”2 thereby bringing into play the law of war with its two branches of jus ad bellum (law regulating recourse to war) and jus in bello (law regulating the conduct of war).3 The discourse of war,moreover,seemed to have a significant psychological impact on public opinion, thus serving to garner support for the broadening and deepening of executive power not only in the United States but also in allied countries.4 But can one identify a terrorist attack by a transnational criminal group against a state as a “war” in terms of the conventional definitions of war in international law, however serious the attack may have been?5 Upon reflection, the use of the term “war,” which is traditionally understood as “a state of force between two or more States with suspension of peaceful relations,” was a misnomer . It was most likely employed deliberately to emphasize that the September  attacks were so serious that they could be equated with state aggression and that the response might necessitate the use of all available resources—as if we were in a state of war. This is just one of the challenges to international law to which the September  attacks gave rise.6 This chapter identifies and discusses central challenges and dilemmas emerging from them. First, it briefly reviews what possible responses to the September  attacks were available from an international law point of view. Next, it reviews the actual responses from the United States and the international community of states.The chapter then addresses the challenges and dilemmas arising from September  and concludes with some final observations about the adequacy of international law as a vehicle for combating international terrorism. 56 Nico Schrijver The Options In case of an armed attack upon a state, a first option of response that comes immediately to the fore is the exercise of the right of self-defense. It is referred to in Article  of the UN Charter as an “inherent right.” The text is worth citing in its entirety: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations,until the Security Council has taken measures necessary to maintain international peace and security.Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. This article stipulates that the victim state must report details of the armed attack and the response to it to the Security Council. Furthermore, it emphasizes the primary responsibility of the Security Council for the restoration and maintenance of international peace and security by providing that the right of self-defense of the attacked state can only be invoked until the council itself has taken appropriate measures“necessary to maintain international peace and security.” Hence under the Charter, self-defense is construed as a provisional remedy. Ideally, the Charter foresees that upon an armed attack the Security Council will exercise its primary responsibility in accordance withArticle .7 Chapter VII vests the council with the power to take enforcement measures in such a case.This requires,first of all, a determination under Article  that a“threat to the peace,”“breach of the peace,” or “act of aggression” has occurred. Subsequently , the Security Council can take provisional measures under Article  (e.g., imposing a cease-fire or call for negotiations), institute sanctions not involving the use of armed force (under Article ), or take or authorize military enforcement action (under Article ). In addition, the council can establish international criminal responsibility of those who perpetrated the terrorist acts. However, there is no guarantee, let alone requirement, that it will take such measures, and it often is blocked due to a lack of agreement among its permanent members. Furthermore, not every Security Council “measure” will have the legal effect of suspending or terminating the right of self-defense. In this connection, it...