Addressing State (IR-)Responsibility: The Use of Militry Force as Self-Defense in International Counter-Terrorism Operations

• Author: Major Michael D. Banks
• Pages: 04

ADDRESSING STATE (IR-)RESPONSIBILITY: THE USE OF MILITARY FORCE AS SELF-DEFENSE IN INTERNATIONAL COUNTER-TERRORISM OPERATIONS

MAJOR MICHAEL D. BANKS1

1. Introduction

   1. Hypothetical

      You are the Chief Executive of a State. During a cabinet meeting, you receive a briefing concerning an imminent terrorist attack against your State. The terrorist organization concerned is presently based inside a State with whom you enjoy normal diplomatic relations. You discuss with your advisors the possibility of asking that State to deal with the problem for you. Based on the political climate in that State and the location of the terrorist organization, however, such a solution would be ineffective at best; at worst, the terrorists could learn of your intelligence and change their plans and location. Your military leadership strongly recommends an immediate military strike in the area, in order to capture or kill as many of the terrorists as possible. They recommend that the attack take place without any warning to the host State, to lessen the chances that the terrorist organization will learn of the plan and flee. Any delay in ordering the attack increases the likelihood the terrorists will either successfully attack your State, or learn of your intelligence and change their plans or location. What do you do?

      Readers might assume that this scenario describes a potential terrorist attack by al Qaeda against the United States. It could equally well describe the situation faced by the fledgling Afghan government in its struggle against Taliban forces operating out of the Federally

      Administered Tribal Areas (FATA) in Pakistan;2 the situation faced by Turkey, confronted with attacks by the Kongra-Gel (also known as the Kurdistan Workers' Party, or PKK) based in northern Iraq;3 or any of a number of other States faced with terrorist threats.

   2. The Issue

      Despite global cooperation in the War on Terror,4 many States still face the threat of attack, and any could find themselves in the opening scenario. The scenario raises difficult issues under international law, including questions concerning the use of military force against non-State actors, issues of anticipatory self-defense, the responsibility of States for non-State actors operating within their borders, and how much warning to the host State is required, particularly if such warning is reasonably likely to be ineffective or even counter-productive. Each of these issues ultimately hinges on one primary question: whether an injured State may use military force against a non-State terrorist organization if the host State within which the organization is located or operating is unwilling or unable to stop that organization from committing terrorist attacks against the injured State. 5

      Since the attacks of 11 September 2001, international legal scholars have struggled with this question. Some scholars attempt to rely on the traditional models of attribution and state responsibility, seeking to attribute the actions of the international terrorist organization to the State within which they are located or operating.6 These models of direct responsibility, endorsement, and vicarious responsibility all require some level of knowledge and action (or lack thereof) on the part of the host State, and often argue that the injured State cannot use force against or inside the host State absent such attribution.7 Relying on these models to justify the use of military force in self-defense leaves dangerous gaps that terrorist organizations may exploit. Weak or ineffective States, failing or failed States, or States faced with significant cultural, religious, or political schisms may be unwilling or unable to prevent terrorist organizations from operating within their borders. Those very challenges may also prevent the host State from requesting, welcoming, or even accepting external assistance from an injured State. Furthermore, it is not necessary to link the use of force against the terrorist organization to attribution of the terrorist attacks to the host State.

      Other scholars argue that terrorist acts are simply criminal acts most properly dealt with through law enforcement means, rendering the use of military force in counter-terrorism operations a potential violation of international law.8 This argument is both illogical and untrue.9 Counter

      terrorism law enforcement methodologies have their place, but they are not a panacea. States faced with a use of force that amounts to an armed attack under international law may use military force in self-defense under Article 51 of the Charter of the United Nations (U.N. Charter).10

      Various scholars also argue for preventative, rather than curative, measures.11 While the answer ultimately requires both, curative measures cannot take a back seat to preventative measures. Installing sprinklers in a business is a wonderful idea before a fire breaks out, but if your store is already on fire, your first priority needs to be extinguishing the fire, not preventing the next one.

      The difficulty lies with the complexity of the analysis, not the legal framework. In fact, the legal framework currently in place allows States sufficient flexibility to respond to international terrorism in a fashion appropriate to the circumstances, including diplomacy, law enforcement, and the use of military force. The bottom line is simple: States have a legal responsibility to prevent the commission of terrorist acts from within their borders.12 If a terrorist organization operates within a host State, and that host State cannot or will not act to prevent the terrorist organization from attacking another State, the injured State may act in self-defense against the terrorist organization, with or without the consent of the host State. 13

2. Factual Predicates

   In order to avoid, at least somewhat, allegations of American bias and provincialism, this article does not focus on the U.S. fight with al

   Qaeda. Granted, a discussion of current counter-terrorism operations must account for the attacks of 11 September 2001 and their aftermath. This is not solely a U.S. problem, however; it is an international problem. India, Indonesia, and Pakistan are just a few examples of other States facing significant terrorist threats.14 Terrorism and counter-terrorism operations must be addressed and analyzed in a fashion that applies to the global community, not just one country or region. For this reason, this article focuses on the threats faced by two States outside the Western hemisphere: Afghanistan and Turkey.

   1. Afghanistan, Pakistan, and the Taliban

      Afghanistan continues to face a threat from Taliban forces, arguably supported by al Qaeda fighters.15 Following the U.S.-led invasion, many al Qaeda and Taliban fighters fled into the FATA in northwestern Pakistan in an effort to escape coalition and Afghan troops.16 The FATA, a rugged, mountainous stretch of some 450 kilometers along the

      Pakistan-Afghanistan border, is largely autonomous.17 The central government in Pakistan plays little role in governing the tribes in the area, ensuring that "[i]nterference in local matters is kept to a minimum."18 The Pakistani government allows the tribes to "regulate their own affairs in accordance with customary rules and unwritten codes, characterised by collective responsibility for the area under their control."19 The politics of this area make it very difficult for the central government of Pakistan to take direct action.20 Democracy and the rule of law have little place in the FATA, which follows the same basic tribal-rule model it has used for centuries.21 From the FATA, al Qaeda members may have moved elsewhere in Pakistan or even traveled to other States, such as Yemen or Saudi Arabia.22 Amrullah Saleh, the head of Afghanistan's National Security Directorate, believes that the Taliban threat remains firmly based in the FATA.23

   2. Turkey, Iraq, and the Kongra-Gel

      Turkey has been engaged in a running battle with the Kongra-Gel stretching back more than twenty years.24 The Kongra-Gel, also known as the Kurdistan Workers' Party or PKK, is a Marxist-Leninist separatist organization based primarily out of Turkey and Iraq.25 Its goals are not completely clear. The Kongra-Gel originally sought to "establish an independent Kurdish state in southeast Turkey, northern Iraq, and parts

      of Iran and Syria."26 More recently, though, the Kongra-Gel has shifted its focus to cultural or linguistic freedom instead.27 Its primary targets remain "Turkish Government security forces, local Turkish officials, and villagers who oppose the organization in Turkey."28 As Dr. Sadi Cayci29 points out, "[t]he PKK's terrorist campaign has claimed approximately 40,000 lives since 1986."30 Turkey believes that "the U.S.-led invasion of Iraq and the country's subsequent instability . . . has enabled the PKK to regroup."31 As of 2002, there were "an estimated 4,000-5,000 armed militants stationed in Northern Iraq."32 While some of those may operate in southern Turkey instead, current estimates still place more than 3000 Kongra-Gel fighters in northern Iraq.33

3. Defining Terrorism

   At this point, some readers may question whether the Kongra-Gel or the Taliban represent international terrorist organizations. To address this question, it is first necessary to define terrorism. The definition used affects the discussion of whether terrorist acts are criminal acts or armed attacks, as well as the discussion of preventative or curative measures used in response.

   The phrase "[o]ne man's terrorist is another man's freedom fighter" has become cliché, and tends to blur discussions on terrorism.34 One

   expert in international terrorism, Dr. Boaz Ganor, expresses a great deal of frustration with this cliché, taking the position that it actually hinders the fight against terrorism worldwide.35 While truth is necessarily perspective-based, widely divergent positions make it difficult for the international community to reach a...