V. Commentary-jus ad Bellum: William Dalton

• Author: William Dalton
• Pages: 137

} note with interest and some curiosity that the two presenters for this panel employ a UN Charter paradigm when discussing the war on terrorism. The inherent right of collective and individual self-defense embodied in customary international law might well be a more appropriate analytical starting point when discussing Operation ENDURING FREEDOM, however. This seems to be a fundamental question worthy of debate and discussion. Many of the questions raised by Rear Admiral Rempt this morning are also of a fundamental nature.

Such questions as what is the nature of terrorism, are terrorists lawful combatants, do terrorists comply with the law of armed conflict; do they wear a distinctive uniform, are they under military command, are all questions of great import as the United States prosecutes this Global War on Terrorism.

In my view, terrorists do not qualify as lawful combatants. Instead, they are unlawful combatants and international thugs. Given this starting point, why are nations constrained in pursuing and eliminating international terrorists? Why are preemptive strikes not routinely taken? One basic reason states operate within the framework of international law is the existence and strength accorded state sovereignty. The UN Charter prohibits states from engaging in 1. William Dalton is a retired Navy captain and now serves as the Assistant General Counsel for Intelligence with the US Department of Defense.

aggressive wars against one another.2 Numerous mutual agreements exist pursuant to this same charter that recognize, with the exception of variations of self-defense, that the Security Council is the only organization that may authorize the aggressive use of force. This inability to use aggressive force, properly or improperly, constrains how states respond to international terrorism. This is quite an interesting dilemma; one almost certainly not considered when the Charter itself was written.

When looking at the Caroline Case, Secretary Webster was really applying a domestic concept of self-defense-the defender having his back to the wall and having to respond immediately.3 Groups engaging in terrorist acts against the United States need time to plan, to organize, to mount such...