X. Commentary-Jus in Bello: Leslie Green

• Author: Leslie Green
• Pages: 235

The first issue to be considered when examining the impact of the law of armed conflict on the war against terrorism is the nature of that war.

Immediately after the September 11th attacks, President George W. Bush declared that we were now involved in a 'war against terrorism-the first war of the twenty-first century.'2 Moreover, President Bush subsequently declared that those 'who are not with us are against us,' thus negating any possibility that those failing to see eye to eye with him could claim to be neutrals as would be the case if this were a traditional war.3 Prima facie, the President's statement 1. Leslie Green is Professor Emeritus of International Law at the University of Alberta, Canada.

2. President George W. Bush, Remarks by The President Upon Returning to the White House (Sep. 16, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010916-2.html, (Sep. 23, 2002).

3. President George W. Bush, Remarks by the President to the Employees of the Department of Labor (Oct. 4, 2001), available at http://www.whitehouse.gov/news/releases/2001/10/20011004 -8.html (Sep. 23, 2002). Note that the concept of neutrality is markedly changed when dealing with a UN Security Council Resolution calling upon all member nations to use force to achieve a certain objective. In this instance, the traditional concept of neutrality does not apply.

   implied that any state not supporting the United States would be considered an 'enemy' of the United States.

   A major difficulty with the President's approach is that the attacks of September 11th, organized by non-state actors, were not the acts of a state triggering the traditional notion of self-defense against an act of aggression or a breach of the peace as outlined in Article 51 of the UN Charter.4 Traditionally, and in accordance with the normally understood rules of international law, war is an armed conflict conducted by the organized armed forces of two or more contesting states. After the events of September 11th, there was no opposing 'state' upon which to declare 'war.' In other words, the President's statement that 'we are at war' seemed more to be political rhetoric, possessing certain similarities to the language used in the past in relation to the 'war against poverty' or the 'war against drugs.' The fundamental difference in this case from these other 'wars' though is the determination of the United States to resort to armed force and to pursue and destroy or bring to justice the offenders identified as members of the al Qaeda terrorist group led by Osama bin Laden. This group had its headquarters in Afghanistan, a state governed by a de facto administration known as the Taliban. The Taliban was not the actual government of Afghanistan but instead was a group in possession of much of the territory of Afghanistan. The only government of Afghanistan legitimately recognized by the UN was the Northern Alliance. In fact, the Taliban administration had achieved only minimal recognition as the government of the country, only gaining official recognition of such status by Pakistan and two other Muslim states.5 Shortly after the United States began its operations, even those states recognizing the Taliban as the legitimate government of Afghanistan withdrew their recognition.6

   When the Taliban authorities rejected a demand that they capture Osama bin Laden and his leading henchmen and hand them over to the United States for trial and punishment, the American authorities decided to engage 4. U.N. CHARTER art. 51.

5. The two other states recognizing the Taliban as the legitimate government of Afghanistan on September 11th were Saudi Arabia and the United Arab Emirates. Both Saudi Arabia and the United Arab Emirates severed ties with the Taliban very quickly after September llth.

   Pakistan did...