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Tuesday, 9 October, 2001, 11:11 GMT 12:11 UK
War View: Keep the response legal
Malcolm Shaw, professor of international law at the University of Leicester, considers how far the US and UK military action is within the law.

The operations commenced on 7 October 2001 by US and British forces against targets in Afghanistan raise inevitably serious questions as to compliance with international law.

Under international law as exemplified in the United Nations Charter, states may resort to force against other states in only two situations, in self-defence and pursuant to a binding decision of the Security Council.

The right of individual or collective self-defence, as formulated under customary international law and preserved under Article 51 of the charter, operates only once an armed attack has occurred or in the case of an imminent attack.

The evidence does constitute a formidable case to answer

The first question, therefore, is whether an armed attack has taken place against the US. This is clearly answered. The assault upon the World Trade Center and upon the Pentagon in both nature and extent cannot constitute anything other than an "armed attack".

Responsibility

More difficult to answer is the question of responsibility. Afghanistan did not itself launch the attack using its official forces. This was undertaken by a terrorist organisation.

The UK Government in its statement of evidence produced last week concluded that: "The attacks of the 11 September 2001 were planned and carried out by al-Qaeda, an organisation whose head is Usama Bin Laden ...


Governments around the globe appear convinced

"The attack could not have occurred without the alliance between the Taleban and Usama Bin Laden, which allowed Bin Laden to operate freely in Afghanistan, promoting, planning and executing terrorist activity."

The evidence presented expressly states that it does "not purport to provide a prosecutable case against Usama Bin Laden in a court of law", but it does constitute a formidable case to answer, or at least a prima facie case.

Convinced

Two elements need to be demonstrated. First, that the al-Qaeda organisation committed the atrocity and secondly that Afghanistan bears responsibility for the support given to that group.

What is clear publicly is that governments from the US to the UK and Pakistan, including scores of others around the globe appear convinced that these have been adequately demonstrated.

It should also be noted that the Security Council in binding resolution 1267 demanded that Bin Laden, suspected of the earlier bombings of the World Trade Center in 1993 and of the US embassies in East Africa in 1998, be turned over to an appropriate country for trial, and insisted that the Taleban regime of Afghanistan cease the provision of sanctuary and training for international terrorists and their organisations.


The right of individual and collective self-defence is available

Faced with the occurrence of a number of attacks culminating in the atrocity of 11 September, the US and its allies have powerful reasons to believe that a continuing campaign involving the terrorist use of force is in progress, and one that has apparently been conducted by the Bin Laden organisation with the support and succour of the Taleban authorities of Afghanistan.

Self-defence

Accordingly, the right of individual and collective self-defence is available under international law. This right was expressly reaffirmed by the UN Security Council in the resolutions adopted after the attacks in the US and was referred to by the secretary general in his statement of October 8th as the context within which the Allied operations were being conducted.

Provided that measures taken in self-defence are proportionate to the attack (and threat of further attacks), they would be legitimate.


The UN has long condemned all acts, methods and practices of terrorism as criminal and unjustifiable

Of course, in taking measures in self-defence, the US and its allies would be obliged to conform to the law concerning armed conflict, so that, for example, the bombing of civilian targets would be illegitimate.

Such measures would need to be reported to the Security Council and may continue until such time as the council itself took action, provided that the requirements of necessity and proportionality were respected.

Terrorism condemned

The UN has long condemned all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed.

Terrorism has been affirmed as contrary to the Purposes and Principles of the UN Charter, the informal constitution of the international community.

All states are obliged to combat international terrorism in a variety of ways, including the requirement to refrain from organising, instigating, facilitating, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that their respective territories are not used for terrorist installations or training camps, or for the preparation or organisation of terrorist acts intended to be committed against other states or their citizens. See, for example, the Declaration on Measures to Eliminate International Terrorism 1995.

A number of treaties have been adopted, dating back to 1963, which condemn particular terrorist activities, ranging from aircraft hijacking (1963 and 1970) or attacks on aircraft (1971) to attacks on internationally protected persons such as diplomats (1973), the taking of hostages (1979), terrorist bombings (1997) and the financing of terrorist operations (1999).

Threat to peace

More generally, the Security Council has on occasion referred to particular acts of terrorism as constituting a threat to international peace and security.

This happened with regard to the Lockerbie bombing in 1992 and with regard to the atrocities in the US on 11 September.


Lockerbie: Terrorism was a threat to peace
The importance of this particular formulation is that it then permits the council to adopt decisions under chapter VII of the charter which are binding upon all member-states.

Such decisions may include the imposition of sanctions up to and including the use of armed force. The Security Council has already called in a binding resolution for a variety of measures against international terrorism, including the freezing of assets and the suppression of recruitment of members of terrorist organisations (resolution 1373, adopted on 28 September).

Crimes against humanity

Insofar as the individual terrorists are concerned, where their activities fall within the purview of the conventions referred to above, all states parties to the treaty in question are under an obligation either to prosecute the alleged offenders or to extradite them to a state that will so act.

However, acts of terrorism that constitute wilful killing committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds will amount to crimes against humanity (as detailed in the statutes of the ad hoc war crimes tribunals or the International Criminal Court, for instance).

As such they are subject to universal jurisdiction. This means that under international law any state may prosecute them, irrespective of where or by whom or against whom committed.

After capture?

There are two essential options once Bin Laden and his associates have been apprehended: domestic and international. In the former situation, there are several possibilities. First, the US may try such persons before the US courts under US law. This is the most logical since the crimes were committed on US territory.

Second, the national states of other victims may have the jurisdiction to prosecute (although this is not free from controversy).

Thirdly, any state in whose territory the alleged offenders may be found may have jurisdiction to prosecute. Insofar as international options are concerned, should that path be considered, there are two ways forward, either a special tribunal could be established by binding security council resolution on an analogy with the Yugoslav and Rwanda war crimes tribunals or the International Criminal Court could be utilised.


The responsibility to act against international terrorism is clear and necessary

There are particular problems with the latter course, however, since the Statute of the Court has not yet received the necessary 60 ratifications in order to come into force and secondly, the court cannot act retroactively, so that the statute would need to be amended by the states parties.

Accordingly, there are a variety of options open under international law to deal with the alleged offenders. Provisions concerning fair trial would, of course, operate once the process had commenced, whether before a domestic or an international court.

Whatever the way forward taken is, the responsibility to act against international terrorism is clear and necessary, always remembering that such action must be consistent with international law.


This is one of a series of differing opinions on the War on Terror which we shall be publishing in the coming days. You can send your view about this or other articles by using the form below.

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