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Date Posted: 14:29:11 09/21/01 Fri
Author: ��
Subject: �� ...
In reply to: �� 's message, "�� " on 10:50:41 09/14/01 Fri

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 20th 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 counter-measures, it must first establish that the state against which it is taking counter-measures 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 counter-measures 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 counter-measures, 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 counter-measures. 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.

___________________________________________
[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 counter-measures 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 counter-measures 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 counter-measures 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, U.S. 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 U.S. 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:

States must never make civilians the object of attack and consequently never use weapons that are incapable of distinguishing between civilian and military targets. . . States do not have unlimited freedom of choice of means in the weapons they use.
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:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
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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