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LAWFUL RESPONSES TO TERRORISM
Professor Mary Ellen O'Connell (1)
Ohio State University College of Law
JURIST Guest Columnist

The international law on responding to terrorism is in some respects quite clear. In other respects, we have important questions. The clearest principle is that a state must have clear and convincing evidence of responsibility before it may respond. In the case of the attacks on the United States of September 11, 2001, any lawful response is founded in the first instance on sufficient evidence of who the legally responsible party is.(2) This is the first rule of all law enforcement, including enforcement of international law.

The next clear, fundamental rule is that unilateral armed force may be used only in self-defense to an armed attack.(3) Armed reprisals--armed attacks for punishment or revenge rather than self-defense--are unlawful.(4) If, however, a series of attacks has occurred and the victim possesses convincing evidence that more attacks are planned for the future, the victim can claim self-defense.(5) Thus, self-defense may arise even if time elapses between attacks. If the evidence shows another state is responsible for the series of on-going attacks, necessary, proportional, and discriminatory armed response in self-defense is permissible.(6) Other states may join in collective self-defense with the victim of an armed attack, as the coalition of states did that came to the aid of Kuwait after Iraq's invasion. These principles apply as well to entities with de facto state characteristics, such as the Tamils of Sri Lanka.(7)

Solid evidence of actual armed attack has been the central focus of the debate among states over the right to use force in response to terrorism. Because the state must respond quickly to an armed attack and may even anticipate the attack in some circumstances, states have a problem responding lawfully to terror attacks. These attacks are usually brief and do not result in an on-going wrong such as the unlawful occupation of territory.(8) It usually takes some time to find out who the perpetrators are and where they are. But force may not be used long after the terror act. Absent a continuing wrong, force long after an attack is an unlawful reprisal.(9)

Reprisals are not considered measures of self-defense - they do not repel on-going armed attack or seek to dislodge an unlawful occupation. Some have argued, however, that if terrorists plan an on-going series of attacks or, in other words, a terror campaign, the state responding to prevent future attacks cannot be distinguished from a state acting in self-defense.(10) Responding at any time after the first terror act to stop future acts, is arguably, also, lawful self-defense.(11) While the analogy may be apt, the problem with this argument is an evidentiary one. The victim of terrorists may have some evidence of a plan of future attacks but that is not the same as the reality of an on-going attack. Evidence of plans from secret intelligence sources may be in error. In several cases where states have used force in response to terror acts, claiming the right of self-defense, they have been criticized. The evidence of who even carried out the initial attack was weak, let alone evidence of future attacks. In addition, the response must be proportional presumably to the attack being prevented,(12) and the state where the perpetrators are located must refuse to cooperate in ending the attacks or be unable to do so. In other words, the response must also be "necessary."

On June 26, 1993, the United States carried out an armed attack against Iraq for an alleged assassination attempt against former president George Bush.(13) The raid targeted the Iraqi intelligence headquarters and was planned for night to minimize casualties. Nevertheless, eight civilian deaths occurred according to Iraqi sources.(14) Though the US did not share the most critical evidence which it said supported the raid,(15) a number of governments accepted it as a legitimate act of self-defense.(16) The publicly-known facts do not support the legality of the action, even under the argument detailed above that states may respond to some terror attacks in legitimate self-defense. The alleged plot against Bush was abandoned before it was ever put into operation, in other words, no casualties resulted. Moreover, the United States made no mention of any on-going campaign.(17) The bombing was out-of-proportion to the injury and not necessary for self-defense.

The United States had a better claim for using force in the case of the bombing of Tripoli, Libya in 1986 in response to the terror bombing of a discotheque in Berlin.(18) The Reagan Administration revealed evidence of the source of the bombing and plans for future attacks. A US serviceman and a woman were killed in the incident.(19) The US targeted military sites in Libya, though, tragically, the Libyan head-of-state, Colonel Ghaddfi, lived at one of these sites and his young daughter was killed. Presumably the United States knew of Ghaddfi's living arrangement, and thus, one can question whether the US attack was sufficiently discriminatory. The United States was the target of another terror act by Libya, the bombing of the Pan Am flight over Lockerbie, Scotland. The US case of an on-going campaign by Libya appears strong in hindsight.

Israel's response to terror attacks perpetrated by Palestinians and other anti-Israeli groups operating out of Lebanon have been particularly criticized for their lack of proportionality. Israel invaded Lebanon in 1982 in response to attacks by the Palestine Liberation Organization. The invasion went as far as the capital, Beirut, far from the area where attacks on Israel originated. The Israelis remained in Lebanon at that time for three-and-a-half months. Although the United States felt Israel had a right of self-defense with regard to the attacks it was suffering, even it felt Israel's response was out-of-proportion to those attacks.(20)

In 1998, trucks rigged with bombs blew up outside the United States embassies in Nairobi and Dar-es-Salaam killing more than 200 people.(21) The United States determined that a terrorist group under the leadership of a wealthy Saudi named Osama bin Laden was responsible. The US believed bin Laden had ties to a manufacturer in Khartoum who was producing weapons. The US also believed bin Laden was training terrorists at a remote site in Afghanistan. The US bombed a factory in Khartoum owned by the manufacturer and bombed a camp in Afghanistan. The US's evidence regarding the factory and the claim that it produced chemical weapons was widely questioned and never proven.(22) The raid on the camp in Afghanistan has received more support, though the criticism of the Khartoum bombing clouded the US's claims in general.

The legality of using force to respond to terror attacks must remain under question for now. Until the states claiming the right are able to convince the international community that their evidence of on-going attack is consistently believable and that they can act proportionately, support will remain weak. The incidents described have not persuaded states that armed force should be permitted in these complicated circumstances.

The one type of action which appears to be accepted as something of an exception to the rules just described is the rescue of nationals. The kidnapping of nationals is not an armed attack, but the Israelis used armed force against another state to rescue them. The force was minimal, but was still more than would arguably appropriate in a countermeasures apprehension. Israel's action was supported, especially by states whose nationals are most likely to be victims.(23) Israeli commandos flew to Uganda solely for the purpose of plucking hostages out of a life-threatening situation. The hostage-takers and some Uganda soldiers aiding them were killed in the action. Some Ugandan planes were destroyed to prevent pursuit. The circumstances of the rescue have not been duplicated.(24)

In some cases, the right of self-defense against another state may be triggered even if the attacks are not being carried out by regular agents of the state. Acts of persons or groups will be attributable to the state if certain connections to the state are established. Three examples are well known: A state is responsible for attacks if they are carried out by persons sent by the state;(25) the state is responsible if it provides legally significant support to the attackers, (26) and the state is responsible if it adopts the actions of the attackers.(27)

If, however, the right of self-defense against a state is not triggered because no series of attacks is evident or the acts cannot be attributed to a state, the victim of terror must find an alternative response to armed force. The first alternative is the domestic criminal justice system of states. Individuals and groups carrying out attacks without the sponsorship of a state are common criminals. They clearly fall under the jurisdiction of the state on whose territory they are found. IRA terrorists in the United States are examples. Territorial states have an obligation to try or extradite individuals accused of terrorism.(28) Failure to hold a trial, which means a fair and credible trial, or failure to extradite can give rise to the right to take countermeasures. Countermeasures are also the option for a state responding to another state's use of violence or even armed force, if the act is a single incident, rather than an on-going series. In such a case, countermeasures may be used until the wrongdoer provides a remedy for the wrong. Appropriate remedies can include compensation and assurances of non-repetition.

Countermeasures are actions which violate the law but are taken in response to prior violations.(29) Countermeasures must be proportional to the injury suffered and are available only if the parties involved have no prior commitment to resort to means of binding dispute settlement. Certain measures are prohibited, in particular, armed force, violations of human rights, and diplomatic immunity. Countermeasures may be taken by the injured states but in the case of universal jurisdiction crimes, any state may take measures. The attacks of September 11 involved the intentional killing of so many innocent people that they qualify as crimes against humanity, which are universal jurisdiction crimes.(30) Any state's courts may exercise judicial jurisdiction over persons accused of universal jurisdiction crimes.(31) Any state may aid in the enforcement of the law prohibiting such crimes by taking countermeasures.

The most common form of countermeasure is economic sanctions. Yet, forceful action short of armed force also fits the definition of lawful countermeasure. For example, a state may be able to send agents to apprehend terrorists from another state which refuses to try or extradite them. A police action or incursion is short of armed force and is arguably proportional to the wrong of harboring terrorists. The evidence for this interpretation of the law is limited, however. Evidence exists that police actions and the like on state territory or areas beyond national jurisdiction do not amount to prohibited armed force.(32) On the other hand, the "volunteer" action to kidnap Eichmann from Argentina on behalf of Israel was condemned.(33) Yet that incident occurred before the development of the "try or extradite" principle.(34) Israel could not justify its action as a countermeasure because it was not responding to a prior wrong by Argentina. The kidnapping was not, however, a use armed force or an otherwise-prohibited measure. Still, this is an open question of international law. The best approach for a state interested in taking forceful measures on the territory of another state is to seek Security Council authorization for such an action.(35)

The Security Council may authorize the use of armed force and lesser measures by a state when it finds a threat to the peace, breach of the peace, or act of aggression. The Council may respond with force to a broader range of violence than may states acting in self-defense. Again, the force authorized must be necessary, proportional and discriminatory in the circumstances. In two cases where the Security Council sought the extradition of wanted terrorists, it imposed economic sanctions rather than authorizing the use of force or forceful apprehension of persons.(36) In the case of the September 11 attacks, too, the Security Council has found the attacks to be a threat to international peace and security. It has called on "all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."(37) It calls on the international community to cooperate to suppress terrorism. The Council does not authorize the United States or any other state to use armed force or all necessary means in response to the September 11 attacks, though it could.

Thus, the United States and other states may respond to the attacks of September 11 in self-defense if they find requisite evidence to prove the United States is under armed attack. Short of that proof, the United States and others may use countermeasures. The countermeasures may arguably include apprehending persons on the territory of another state. The best course to remain strictly within the rule of law would be to seek Security Council authorization for such a measure, once a convincing case can be made that the measure is warranted.

Notes

1. With thanks to colleagues John Quigley and Barbara Stark. Permission to use with attribution.

2. International law typically requires clear and convincing evidence. See e.g., Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H.R. (Ser. C), No. 4, at para. 127 (1988); Trail Smelter (U.S. v. Can.), 3 R.I.A.A.1905, 1963-65 (1941). See, also, Dinah Shelton, Judicial Review of State Action by International Courts, 12 Fordham Int'l L. J. 361 (1989).

3. United Nations Charter, June 26, 1945, 59 Stat. 1031. T.S. No. 993, 3 Bevans 1153, amended 24 U.S.T. 2225, T.I.A.S. 7739, arts. 2(4), 51; Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 103 [hereinafter The Nicaragua Case.]

4. According to General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations 1970, "States have a duty to refrain from acts of reprisal involving the use of force." GA Res. 2625 (xxv), UN GAOR, Supp. No. 28. See also the Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 108-09 (Dec. 5).

5. See Yoram Dinstein, War, Aggression, and Self-Defense 194-203 (3rd ed. 2001); Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil des Cours (1989-IV), revised and republished as, Louis Henkin, International law: Politics, Values and Functions 159-62 (1990).

6. Fundamentally, the principles of necessity, proportionality and discrimination are the central customary law principles of international humanitarian law. The three concepts are closely related and not always listed individually. The International Court of Justice (ICJ) confirmed the status of necessity and proportionality as customary international law in the Nuclear Weapons Case and the Nicaragua Case. See Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 240-46; The Nicaragua Case, supra note 3, at 176. See,also,Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 A.J.I.L. 238, 240 (1996). Necessity refers to military necessity, and the obligation that force is used only if necessary to accomplish a reasonable military objective. Proportionality prohibits force '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 concrete and direct military advantage anticipated.' Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of International Armed Conflicts (Protocol I), Dec. 12, 1977, 152 U.N.T.S. 3, art. 51, para. 5. "In the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy.' Judith Gardam, Proportionality and Force in International Law, 87 Am .J. Int'l L. 391 (1993). Finally, discrimination means that non-combatants enjoy immunity from the fighting. Those not participating in the conflict may not be deliberately targeted. Meron, supra, at 240.

7. The use of force is one of the major topics of international law with a concomitantly extensive literature. A few of the more important general works on the use of force include: Christine Gray, International Law and the Use of Force (2000); Dinstein, supra 5; Hilaire McCoubrey & Nigel D. White, International Law and Armed Conflict (1992); Ian Brownlie, International Law and the Use of Force by States (1963).

8. Gregory M. Travalio, Terrorism, International Law and the Use of Military Force, 18 Wis. Int'l L.J. 145 (2000); Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 Yale J. Int'l L. 537 (1999); Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 Yale J. Int'l L. 559 (1999).

9. In the General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations 1970, "States have a duty to refrain from acts of reprisal involving the use of force." GA Res. 2625 (xxv), UN GAOR, Supp. No. 28. See also the Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 108-09 (Dec. 5).

10. Dinstein, supra note 5.

11. According to Dinstein, Defensive armed reprisals are post-attack measures of self-defense short of war. They are a necessary option for a victim state as an alternative to on-the-spot reaction or war. Dinstein, supra note 5; see also Oscar Schachter, International Law in Theory and Practice 162-175 (1991).

12. This point is based on the view that all and force is limited by proportionality and necessity. No authority exists regarding whether the proportionality is measured against the initial attack or evidence of the magnitude of future attacks.

13. Note, Terror and the Law: The Unilateral Use of Force and the June 1993 Bombing of Baghdad, 5 Duke J. Comp. & Int'l L. 457 (1995).

14. Id. at 459.

15. Id. at 460-62.

16. Id. at 460-62, 475.

17. Eric Schmitt, U.S. Raid Smashes Iraq 'Terror' Center, Int'l Herald Trib. July 28, 1993, at 1; John Quigley, Missiles with a Message: The Legality of the United States Raid on Iraq's Intelligence Headquarters, 17 Hastings Int'l & Comp. L. Rev. 241 (1994). See also views of Israeli counter-terror operations in southern Lebanon. Travalio, supra note 8, at 164.

18. Christopher Greenwood, International Law and the United States' Air Operation Against Libya, 89 W.Va. L. Rev. 933 (1986-7).

19. Lobel, supra note 8, at 548.

20. D. Brian Hufford & Robert Malley, The War in Lebanon: The Waxing and Waning of International Norms, in International Incidents, The Law That Count in International Politics 144, 176-80 (W. Michael Reisman & Andrew Willard eds. 1988); see also Travalio, supra note 8, at 169.

21. Pamela Constable, Russia, U.S. Converge on Warnings to Taliban, Wash. Post, June 4, 2000 at A23, available in 2000 WL 19612609; William Claiborne, Bombs at 2 U.S. Embassies in Africa Kill 81, Wash. Post, Aug. 8, 1998 at A01, available in WL 16548641.

22. Tim Weiner & Steven Lee Myers, After the Attacks: The Overview, Flaws in the U.S. Account Raise Questions on Strike in Sudan, N.Y. Times, at A2 (Aug. 19, 1998); Paul Richter, Sudan Attacks Claim Faulty, U.S. Admits, L.A. Times, at A1 (Sept. 1, 1998).

23. Apparently, a number of African and other Third World states argued the raid was unlawful. William V. O'Brien, Reprisals, Deterrence and Self-Defense in Counterterror Operations, 30 Va. J. Int'l L. 421 (1990).

24. The United States claimed to be rescuing nationals from Grenada as part of the justification for its invasion of the island in 1983. The facts do not support that US nationals were in any danger. John Quigley, The United States Invasion of Grenada: Stranger than Fiction, 18 Inter-Am L. Rev. 271 (1986/87).

25. See United Nations Definition of Aggression Resolution, Annex, GA Res. 3314(xxix) UNGAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974), art. 3 "Any of the following acts, regardless of a declaration of war, shall,, qualify as an act of aggression(g): "The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein." See also, International Law Commission, Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/CN.4/L.602/Rev.1, 53rd sess., Geneva (July 26, 2001), arts. 4-11 [hereinafter Articles on State Responsibility].

26. The ICJ found in the Nicaragua Case that acts of the Contra rebels were not attributable to the United States because the United States did not exercise "effective control" over the Contras. Nicaragua Case, supra note 3, at 64-65.

27. In the Hostages Case, the ICJ found Iran was responsible for the hostage-taking at the United States Embassy because of the "failure on the part of the Iranian authorities to oppose the armed attack by militants" and "the almost immediate endorsement by those authorities of the situation thus created." Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. Rep. 3, 42.

28. See Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 U.S.T. 565; Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), Dec. 16, 1970, 22 U.S.T. 1641. See also, U.S. Department of State Office of Counterterrorism, International Terrorism Conventions (Aug. 17, 1998).

29. Case Concerning the Gabikovo-Nagymaros Project (Hungary v. Slovakia) 1998 I.C.J. 1, 47 (paras. 82-87); Air Services Agreement Case (U.S. v. Fr.), 18 R.I.A.A. 416, para. 83 (1978). See also, Articles on State Responsibility, supra note 8, arts. 49-54; Karl Doehring, The Unilateral Enforcement of International Law by Exercising Reprisals, in Essays in Honor of Wang Tieya 235-36 (Ronald St. John Macdonald ed., 1994); E. Zoller, Peacetime Unilateral Remedies (1984).

30. See Frederic L. Kirgis, Terrorist Attacks on the World Trade Center and the Pentagon, ASIL Insight, available at www.asil.org (visited September 13, 2001)(citing the Rome Statute of the International Criminal Court definition of a crime against humanity: "widespread or systematic attack directed against any civilian population, with knowledge of the attack."). Rome Statute of the International Criminal Court, U.N. Doc. No. A/Conf. 183/9, art. 1, (1998), 37 I.L.M. 999 (1998).

31. See, e.g., Kenneth Randall, Universal Jurisdiction Under International Law, 66 Tex. L.R. 785 (1988).

32. States may use minimal armed force to enforce the law without violating Article 2(4). Minimal use of force on the high seas or in air space over the high seas is permissible. For example, states may use armed force in affecting arrests by shooting across the bow of a pirate ship on the high seas or dropping a bomb on an oil tanker in international waters to prevent pollution damage. See, the Definition of Aggression Resolution, supra note 3, art. 2: "The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity." See also, Dinstein, supra note 5, at 117, who calls refers to the "de minimus clause of Article 2" in the Definition of Aggression.

In the Nicaragua Case, the ICJ distinguished "frontier incidents" from uses of force in violation of Article 2(4). Presumably, the Court was referring to minimal uses of cross-boundary force: "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another States, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces." The Nicaragua Case, supra note 3, at paras. 194-95.

In 1967, the UK bombed the Torrey Canyon, an oil tanker which had run aground in international waters and threatened serious oil pollution damage to the UK coast. See In Re Barracuda Tanker Corp., 409 F.2d 1013 (1968). The action was universally approved and codified at Article 216 of the United Nations Convention on the Law of the Sea, opened for signature, Dec. 10, 1982, Art. 107, UN Doc. A/Conf.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.v.5 (1983), 21 ILM 1261 (1982). It is said to have led to an international "right of intervention when a threat of pollution of a state's coastal zone presents a grave and imminent danger." Linda A. Malone, Discussion in the Security Council on Environmental Intervention in Ukraine, 27 Loy. L.A. L. Rev. 893, 905 (1994).

In the Red Crusader incident, a Danish fishing control vessel fired on a British fishing trawler on the high seas. A Commission of Inquiry found Denmark had used excessive force, but it did not suggest that Denmark had violated Article 2(4). Report of the Commission of Inquiry into the Red Crusader Incident, 35 I.L.R. 485 (1962); J. G. Merrills, International Dispute Settlement 52-55 (3d ed. 1998). Spain did suggest this with regard to Canadian enforcement action against Spanish fishing vessels on the high seas. It alleged that shooting across the bow was a violation of Article 2(4) in an application to the International Court of Justice. The case was withdrawn from the Court. Spain did not complain to the Security Council nor have commentators supported Spain's interpretation of Article 2(4) in the case. See Marvin Soroos, The Turbot War: Resolution of an International Fishery Dispute, in Conflict and the Environment 235 (N.P. Gleditsch ed., 1997). Peter G.G. Davies, The EC/Canadian Fisheries Dispute in the Northwest Atlantic, 44 Int'l Comp. L. Q. 927 (1995).

33. Louis Henkin, et al., International Law 1083-86 (3d ed. 1993).

34. See Schachter, supra note 9 at 163.

35. Plainly secrecy would be required in such a case. The Security Council can operate in secrete when necessary.

36. The Security Council demanded that the Taliban hand Osama bin Laden over to a country where he was under indictment in Resolution 1267, para. 2 (1999). In Resolution 1333 (2000) it further refined and strengthened the sanctions imposed in 1267. The Security Council imposed sanctions on Libya until it extradited two persons wanted for the bombing of the Pan Am flight over Lockerbie, Scotland. See S.C. Res. 731 (1992), S.C. Res. 748 (1992); see also, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), (Libya v. U.K.) 1992 I.C.J. 114 (Apr. 14) (Request for Provisional Measures).

37. S.C. Res. 1368 (2001).


Mary Ellen O'Connor is Professor of Law at the Moritz College of Law and the Mershon Center for International Security and Public Policy, Ohio State University. She welcomes comments on this essay at JURIST@law.pitt.edu.

September 18, 2001

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Discussion

  • This was a very objective analysis of the approaches to dealing with terrorism. I only hope that the US and their allies do not take advantage of this situation to justify extremely oppressive actions against innocent people (specifically in the Middle Eastern States). They must be able to review their foreign policy which has brought great suffering to many countries over the years (which people seem to forget e.g. Hiroshima,Cuba etc.)

    The problem is that the US media only highlight morning noon and night the occasional wrongs perpetrated against the US and/or their allies without giving balanced coverage of the pain and suffering caused by their inhumane actions against other countries - e.g.plots to overthrow governments, assassination attempts,economic trade embargos etc.

    Nevertheless, I must say that I am extremely saddened by the vicious act of terror perpetrated against, not only the American people, but also against citezens of the world on September 11th in New York and Washington. This is indeed an international issue and we must unite to combat not only the terrorists in our society but also American Imperialism.

    Ashaki Scott
    Trinidad and Tobago

  • As an attorney I am committed to the principal of the rule of law, and even see great benefits for human civilization from an international body of law to which all states submit. However, and this is a big however, I assure you that while we spend our intellectual resources writing nicely footnoted essays about the legality of the United States' anticipated response, our enemies are spending their precious capital and effort plotting their next strike.

    The limits of what scholars call international law is that there is no international "law" only agreements among nations. I am sad to say that as of September 11, 2001 it is clear that "international law" cannot provide the one thing that all individual citizens expect of their nation's laws -- security. For that we will have to rely on arms and diplomacy, not legal argument.

    Phill R. Stanton
    Missouri, USA

  • I am not an attorney, but I'm sure even in warfare a deep dedication to law must not weaken. International law may be flawed but to appear to abandon it weakens America.

    Shall we ask mothers to sacrifice children in bloody war for an unlawful cause? For what then does the child die -- for mere vengeance? Or perhaps because, fearful for own safety above all, we panic in the name of national security?

    I don't say there is no legal ground for violence, for it may be necessary, but I believe America's existance depends on having the moral strength to be lawful in all things, even war. I am glad that experts such as this article's author can explain something of the applicable law. Footnotes and all!

    Ricardo Alcocer
    Oregon, USA

  • Professor O'Connell: Your article is well thought out and very well reasoned. I applaud your research and complete citations of authority. None the less , the basic (and may I add) and the fundimental right of self defense,is also a well recognized principal of both American and international Jurisprudence.

    Rollind W. Romanoff
    Toledo, Ohio
    OSU Law '61

  • There are several things wrong with Prof. O'Connell's application of international law to war situations, which call into question not only her analysis but the analysis that underlies the international law she expounds.

    First, as Brian Hallett in his study "The Lost Art of Declaring War" (Johns Hopkins UP, 1998) shows, a fundamental mistake made by com- mentators on war is to confuse "war" and "combat." There can be "combat" w/o war (barroom brawl, eg.) and there can be "war" w/o combat. The latter condition is classically defined by Thomas Hobbes in "Leviathan" as a tract of time during which all parties involved in hostilities know that each bears animus to the others and is willing to express that animus by inflicting material damage. This definition of "war" may be implied by O'Connell's notion of "necessity," but that notion is tied up with another confusion in her account, namely, a funda- mentally flawed understanding of the relations between forces acting on the offensive and defensive respectively. I will say more about that below.

    My point about the treatment of war as if it were limited to combat is that it ignores that wars waged just as much by threats of violence as by violence itself, yet O'Connell's examples and definitions imply a war that is waged entirely by specific acts of violence. Thomas C. Schelling's classic "The Strategy of Conflict" which was one of the foundational theoretical works underwriting the evolution of the concept of deter- rence during the cold war, indicates the logic of the threat of attack and how it operates. As he so epigrammatically puts it, "the successful threat is the threat that need not be carried out." Wars are carried out for political purposes, as everyone should know from Clausewitz, whereas war as parsed into different categories in the international law she analyzes seems to be limited to aggressive war and wars of retaliations. The point here is that political, i.e., strategic goals may be achieved as much by threats of war as by acts of violence.

    The fact that "deterrence" is totally neglected in her account --the strategy of the threat as Schelling describes it is in essence a strategy of deter- rence--means that she cannot account for the ways in which coercion is applied in ways that stand outside of actual "combat." Thus deterrence is part of tactical maneuver as well, as anyone familiar with the use of threats to roads, railroads and bridges constituting communications and supply routes are used to maneuver an enemy out of position with few or no shots being fired.

    "War" as she discusses it is also apparently limited to "aggressive" war, and here the analysis fails utterly to account for the ways in which "offensive" and "defensive" acts are defined wholly contextually and in hierarchical relations to one another. Thus General Longstreet belabored General Lee before and during the battle of Gettysburg with what he thought was their agreement that they were committed to waging a "defensive campaign." In an account such as Prof. O'Connell's, where "offensive" equals the role of the aggressor, and "defensive" is the role of the aggressed-against, such a phrase would be meaningless. What was meant, however, is that though the invasion of Pennsylvania was itself a strategically offensive operation, part of its purpose was to maneuver the Comfederate army between the Federal army and Washington, thereby pressuring the Federal army into attacking the Confederate army on the battlefield: the campaign was strategically offensive, but intended to bring on a "defensive" tactical advantage.

    In broader strategic terms, the whole problem of dealing with world-wide terrorism is the problem not only of ferreting out hidden cells of terrorists, but of creating an ongoing stratetic situation within which terrorists are deterred from going on the offensive because fear of retaliation. Here, according to O'Connell's analysis, "retaliation" would be an "offensive" act, but would be in the context of the total chain of events constituting the whole history of the conflict a "defensive" strategy employing "offensive" tactics--just the reverse of the putative goal of the Confederate army during the Gettysburg campaign. (Just to show how complicated such analysis can be in order to reflect accurately the facts of the case, it should be noted that Lee's invasion of Pennsylvania--patently an "aggressive" act by O'Connell's lights--was, in the largest context of all, namely, the purpose of the Confederacy's whole war effort to interdict Federal control of Confederate territory, a maneuver that had a strategically "defensive" purpose.)

    It has been the lament of military historians and strategists for some time in this country that military history is scanted at the level of higher education. In its place has we have what many detect as a covertly pacifist analysis of war, one that at its crudest sees war as occurring only because there are bloodthirsty militaries who simply want to kill people. While O'Connell's analysis approach does not begin to approach such ideological/ political crudity, the lack of knowledge of how in fact wars have been and are conducted leads her analysis into some seriously questionable conclusions regarding what the U. S. can and cannot do in the face of the terrorism that does not shrink at the acts of 9/11/01. The treatment, e.g., of retaliation against terroristic acts as simply "revenge" is consistent with the kind of analysis of war that came out of the anti-war protests of the Viet-Nam era, and which is surfacing again today anent the present threats to this country's survival, and as such does the country actual harm rather than good.

    What such retaliation consitutes are aggressive acts taken in the interest of establishing a credible deterrent to further acts. What "credible" means here would have to take account of the psychology of antagonists who are characterized by that rare thing, namely, a disgregard for their own survival. Deterrence normally works on the assumption that a threatened enemy will calculate gains against losses in risking further retaliation. The ultimate loss is loss of one's own life. And if an enemy actually courts his own death, the question of what constitutes a properly "proportionate" response will probably come down to no threat at all. In which case the only defense may well be and can be nothing less than the will to inflict death on a sufficient number as to make serious organized counter-efforts impossible.

    But if America's counter terroristic strategy is to be tested by the fundamentally inapplicable categories expounded in O'Connell's analysis, then we can speculate that the terrorists will win, and more acts of terror will be the consequence.

    Michael McCanles
    Prof. Emeritus, Marquette University
    Wisconsin

  • I am not an attorney, but I'm sure even in warfare a deep dedication to law must not weaken. International law may be flawed but to appear to abandon it weakens America.

    Shall we ask mothers to sacrifice children in bloody war for an unlawful cause? For what then does the child die -- for mere vengeance? Or perhaps because, fearful for own safety above all, we panic in the name of national security?

    I don't say there is no legal ground for violence, for it may be necessary, but I believe America's existance depends on having the moral strength to be lawful in all things, even war. I am glad that experts such as this article's author can explain something of the applicable law. Footnotes and all!

    Ricardo Alcocer
    Florida

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