PREFACE

• Pages: xiii

The September 11, 2001 attacks on the World Trade Center and the Pentagon catapulted the United States-indeed the world-into a new war on terrorism. On September 14th, the US Congress passed a joint resolution authorizing President George W. Bush 'to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks... or harbored such organizations or persons.' On September 28th, the UN Security Council adopted Resolution 1373. It not only condemned terrorism as a threat to international peace and security, but implicitly recognized that al Qaeda's use of commercial aircraft as weapons constituted an 'armed attack' within the meaning of Article 51 of the UN Charter. In any event, on October 7, 2001, less than a month after the terrorist attacks on America, US forces began operations against al Qaeda and Taliban forces in Afghanistan.

For lawyers and academics practicing and studying international law and the Law of Armed Conflict, '9/11' and subsequent legal actions taken by the US Congress, the United Nations, and the North Atlantic Treaty Organization, meant a greatly renewed interest in a subject that had not received enough attention over the last 10 years. The same was true of military actions taken by the United States and its allies, as the nature of the fighting against the Taliban and al Qaeda in Afghanistan raised new jus in bello issues. Recognizing that a forum in which scholars and practitioners could meet and examine legal issues in the war on terrorism would be exciting, instructive, and rewarding, the International Law Department began planning a conference in November 2001. The result was a June 26-28, 2002 symposium called 'International Law and the War on Terrorism,' and this book records the events occurring during those three days, bringing together the perspectives and ruminations of the roughly 100 conference participants.

Almost from the beginning of the symposium, a major theme emerged: that while al Qaeda's attacks-on the World Trade Center and Pentagon represented a type of armed conflict not anticipated by those participating in the conference, the Law of Armed Conflict was capable of addressing the myriad legal issues raised by terrorism after 9/11. This is not to say that the scholars and practitioners agreed on all jus ad bellum or jus in bello issues discussed;

they did agree, however, that the Law of Armed Conflict and other existing laws as they now exist provide an adequate framework for regulating armed conflict with terrorism.

The first session, titled 'Jus ad Bellum,' had two presenters. Prof. Michael N. Schmitt, George C. Marshall European Center, Garmisch, Germany, began with a paper titled 'Counter-Terrorism and the Use of Force in International Law.' Schmitt explored the circumstances under which a victim state may react forcibly to an act of terrorism, and concluded that 'in most respects the law on the use of force has proven adequate' in countering terrorist attacks. That is, while the current 'normative system developed for state-onstate conflict,' it nonetheless has shown itself to be sufficiently flexible to respond to terrorist attacks by non-state actors.

In the absence of a post-9/11 resolution from the UN Security Council, Prof.

Schmitt asserted that the sole basis for the United States and its coalition partners to take action was self-defense. No advance Council authorization is required for force used in self-defense; all the U.N. Charter requires is 'notice.' It follows that while a state's use of force in self-defense does not deprive the Council of its 'right' to respond to any terrorist attack, the Council's failure to take action does not deprive a state of its inherent right to exercise individual or collective self-defense. In Prof. Schmidt's view, it is 'tragically self-evident' that the al Qaeda attacks on September 11, 2001 were of sufficient 'scale and effects' to qualify as an 'armed attack' within the meaning of Article 51 of the UN Charter. Consequently, US and coalition operations against al Qaeda in Afghanistan were a legitimate exercise of individual and collective self-defense.

Self-defense requires 'necessity' ('a sound basis for believing that further attacks will be mounted') and 'imminency' ('self-defense may be conducted against an ongoing terrorist campaign'); the use of force also must be proportional. Schmitt concluded his paper with an examination of the legality of using force against the Taliban. While he determined that the legal authority for acting in self-defense against al Qaeda was much clearer than the legal basis for using force against the Taliban, Schmitt nonetheless was satisfied that the principle of state responsibility established in the Corfu Channel case justified US and coalition military operations against Taliban forces in Afghanistan.

Prof. Rein Miillerson, Kings College, Univ. of London, followed Schmitt with an oral presentation of his paper, 'Jus ad Bellum and International Terrorism.' In examining terrorism and the law of war, Miillerson concluded that not all terrorist attacks are contrary to jus ad bellum; if they lack a link to a state or are 'relatively insignificant' in size and scope, the attacks fall outside the scope of jus ad bellum. However, any terrorist attack that does 'come under' jus ad bellum (like 9/11, which Miillerson believes is an armed attack) by xiv definition also violates jus in bello. The fact, says Mijllerson, that those drafting Article 51 in 1945 contemplated that only states would be conducting armed attacks does not mean that a non-state entity cannot launch an armed attack. To conclude otherwise is...