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CIAO DATE: 09/03
2003 (Volume 14 Issue 2)
On the Necessity of Pre-emption by Abraham D. Sofaer
The attacks of September 11, 2001 led President Bush to declare a 'war' on terrorism. Terrorists are capable of inflicting grave damage, and are not susceptible to the deterrent pressures felt by states. Pre-emption and prevention of attacks have become part of the US national security strategy to deal with this danger. International lawyers claim that pre-emption must be limited to actions in response to an attack that is imminent and unavoidable by any other means. This paper examines the background of the requirement that pre-emption is restricted to imminent attacks, and argues that the narrow standard properly applies only when a potential victim state can rely on the police powers of the state from which a prospective attack is anticipated. A more flexible standard for determining necessity is appropriate for situations in which the state from which attacks are anticipated is either unwilling or unable to prevent the attacks, or may even be responsible for them. The situation posed by Al Qaeda, operating from Afghanistan, was one in which the Taliban explicitly refused to prevent attacks on the US by that terrorist organization. The question of the applicability of the rule regarding necessity to Saddam Hussein's Iraq is more complicated, but a strong case can be made for the necessity of pre-emptive action.
Terrorism and the Legality of Pre-emptive Force by Michael Bothe
The use of military force is only lawful if and to the extent that it comes under an accepted exception to the general rule prohibiting the use of force, i.e authorization by the Security Council and self-defence. Lawful self-defence requires the actual existence of an armed attack, or of a situation to be considered as equivalent to an armed attack. A threat may be so direct and overwhelming that one cannot require the victim to wait to act in self-defence until the attack has actually started. This principle of necessity and immediacy is still part of customary international law. The doctrine of pre-emptive strikes formulated in the recent US National Security Strategy proposes to adapt this concept to new perceived threats in a way that would constitute an unacceptable expansion of the right of anticipatory self-defence. Vagueness and the possibility of abuse of any broader definition requires maintaining the traditional strict approach. A change might result in the abolition of the prohibition of the use of force altogether. Opening up broader possibilities for anticipatory self-defence is not desirable. To face so-called new threats, recourse to the Security Council is preferable to unilateral use of force based on a doctrine of pre-emptive strikes.
Speaking Law to Power: The War Against Terrorism and Human Rights by Joan Fitzpatrick
The human rights regime adopts a legalist approach to limit the harm the powerful may inflict on the vulnerable The attacks of September 11, 2001 and the ensuing 'war against terrorism' test the limits of the legalist approach. Human rights constrain state responses to terrorism more directly than they govern the conduct of terrorists. As a result, the international human rights regime is disadvantaged rhetorically and politically. While substantive human rights standards have not changed since September 11, six possible norm developments may occur: (1) alterations in norms governing the use of force may increase the perceived legitimacy of pre-emptive defensive action, for example with regard to targeted assassinations; (2) reconceptualization of counter-terrorism as a new species of international armed conflict may displace human rights law and international criminal law, and substitute new rules that are less detailed than those that apply to conventional armed conflicts; (3) derogation principles may be refined, especially in relation to the temporal element and the non-derogability of the prohibition on arbitrary detention and of fair trial rights; (4) an increase in the commission of extraterritorial human rights violations may spur the clarification of the scope of human rights treaties ratione loci; (5) the targeting of non-citizens, Muslims and Arabs may clarify non-discrimination norms; and (6) exclusion from refugee protection may expand. In institutional terms, the 'war against terrorism' has not yet had significant effects, but the following issues are notable: (1) integrating human rights into UN counter-terrorism initiatives; (2) the aggressive campaign by the United States Government against the International Criminal Court; (3) the tendency toward American exceptionalism; (4) leadership by Europe to preserve human rights principles in counter-terrorism; (5) increased polarization of UN human rights bodies around the Israeli-Palestinian crisis; (6) silencing of criticism of gross violators in exchange for counter-terrorist cooperation; and (7) marginalization of human rights treaty bodies as effective monitors of counter-terrorist policies.
Human Rights: Substantive and Institutional Implications of the War Against Terrorism by Sabine Von Schorlemer
The September 11 attacks 'changed the world', but did they also change the human rights agenda? What role do human rights play in the context of terrorism? This article argues that violations of human rights are a major causal factor of terrorism. Consequently, the fight against terrorism should not only focus on military means, but should also address the worldwide lack of respect for human rights. A clear civil reaction (i.e. a prevention strategy) is needed. The article argues further that there is a direct link between terrorist attacks and human rights. Acts of terrorism aim at violating human rights. However, it is debatable whether human rights law could and should apply to acts of terrorists, as such acts are perpetrated mostly by non-state actors. It is therefore argued that one way to hold terrorists responsible is to qualify their acts as 'crimes against humanity'. Furthermore, the article shows that there is a dangerous tendency to legitimize human rights violations under the pretext of combating terrorism. Effective action against terrorism, it is said, must respect international human rights standards and make use of existing legal mechanisms if derogations are seen as indispensable. The existing body of international human rights law and the system of the United Nations establish clear boundaries for any legal action against terrorism.
Humanitarian Law and Counterterrorist Force by Gerald L. Neuman
The current context of a 'war against terrorism' raises the question whether international humanitarian law should govern a state's actions in an armed conflict against a foreign terrorist organization. Depending on the configuration of the conflict, including the response of the foreign state from whose territory the terrorists operate, existing treaties may already apply to the military operations. The limited protections they impose, though not originally designed with such a conflict in mind, do not unduly hinder defence against international terrorism. Restricting counterterrorist operations is justified, in part by bedrock human rights of the terrorists themselves, but more strongly by the rights of innocent civilians exposed to counterterrorist violence.
Rebel with a Cause? Terrorists and Humanitarian Law by Jan Klabbers
This article suggests that international law has great difficulty in deciding whether terrorists should be treated as ordinary criminals or as political actors. This ambivalence is visible in treaties on the law of war, as well as in instruments dealing more straightforwardly with terrorism, and is traceable (at least in part) to an ambivalence about politics in general. Still, even if the law does not give clear-cut answers, there are sound reasons for treating terrorists in a humane manner.
Which Courts Should Try Persons Accused of Terrorism? by Detlev F. Vagts
The article considers the advantages and disadvantages of trying terrorists before regular US civilian courts, before military tribunals, before courts outside the United States or before an international tribunal While civilian courts have problems with maintaining security and handling classified information, they possess a high degree of legitimacy. Military tribunals can be efficient in some ways, but their constitutional basis is questionable, depending largely on whether there is a 'war' going on. Foreign courts will occasionally have jurisdiction over persons captured in their territory, but some of them follow procedures that discredit them in the eyes of advanced states. The chances of an international criminal tribunal suitable for terrorist cases coming into existence in the near future do not seem good. The article concludes that, in most cases, the regular US courts will be preferable.
Justice in Times of Violence by Frédéric Mégret
The question of who should judge the terrorists is an intriguing one This article seeks to understand why this is so by putting it into historical perspective. International law has a long history of dealing with terrorism, but was seemingly caught unprepared by the kind of nihilistic destructiveness implied by September 11. The challenge of 'hyperterrorism' can be seen as provoking a reorganization of the field. On the one hand, a brief cosmopolitan revival may be witnessed as several authors have urged the trial of major terrorists before an international criminal court. The argument, however, is unlikely to convince many and probably has more to do with liberalism's need to revitalize its programmatic promise in times that seem to profoundly challenge its globalizing logic. On the other hand is the notion, implemented in the United States, that terrorists should be judged by military commissions. This idea betrays a regression of international law and can only be properly understood if viewed in the larger context of a crisis of judicial liberalism. One intriguing element, however, is the way in which, beyond all the fuss generated by the international criminal court/military commissions debate, a great deal of what is wrong with the way that suspected terrorists have been dealt with has assumed decidedly more insidious forms.
International Law, the United States, and the Non-military 'War' against Terrorism by Sean D. Murphy
Considerable attention is focused on the use of military force as a means of combating terrorism, whether it be in Afghanistan, Iraq or elsewhere However, the more dominant means for combating terrorism worldwide lies in non-forcible measures undertaken by states. In this realm, states that might otherwise be inclined to pursue unilateral action, such as the United States, are forced to pursue cooperative strategies that rely considerably on international law and international institutions. This essay briefly assesses various non-military initiatives undertaken by the United States - including criminal litigation and the imposition of economic sanctions on states and terrorist groups - so as to consider the broader question of whether, and if so how, international law and institutions are conditioning the behaviour of the United States. It demonstrates that, for various issues, US policy-makers and courts use international law and institutions as a means of advancing US interests, and suggests that in doing so US behaviour is affected by the expectations of the global community as embodied in international legal norms.
Some Questions About the Definition of Terrorism and the Fight Against Its Financing by Jean-Marc Sorel
When the subject of terrorism is discussed in the context of international law, the issue inevitably arises of how to define 'terrorism'. A substantial number of international conventions have been agreed which deal with various aspects of terrorism, but in all these conventions terrorism is defined in a way that is specific to the subject-matter of the particular convention. No universal definition of terrorism can thus be discerned from them. This approach has proved adequate in the past, but recent events, and the reactions to those events in the context of international law, have made it necessary for a comprehensive definition to be agreed. The first part of the article discusses this issue generally, and suggests a tentative but comprehensive definition of terrorism. The second part of the article discusses the fight against the financing of terrorism. The article discusses the 1999 Convention for the Suppression of the Financing of Terrorism, and the work of the Financial Action Task Force of the OECD. The article concludes that, though much good work has been done, there is still a long way to go in the fight against the financing of terrorism.
Decisions of the Appellate Body of the World Trade Organization by Joel Trachtman
On 'Indivisibility' of Human Rights by Ernst-Ulrich Petersmann
Book Review - Robert McCorquodale, ed. Self-Determination in International Law Reviewed by Karima Bennoune
Book Review - Philip Alston, ed. Peoples' Rights: The State of the Art Reviewed by Karima Bennoune
Book Review - Anna Meijknecht: Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law Reviewed by Gaetano Pentassuglia
Book Review - Craig Scott, ed. Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation Reviewed by Christoph J.M. Safferling