A responsibility to contain: protecting sovereignty under international law.

• Author: Marino, Thomas

Secretary Michael Chertoff, a former U.S. attorney, Department of Justice official, and federal appeals court judge, begins by identifying challenges posed by stateless transnational terrorist organizations: They violate the traditional conventions regulating warfare; having no territorial definition and often motivated by a death wish, they cannot easily be deterred; they raise complex issues involving international law enforcement because efforts to retaliate or eliminate them must typically cross international borders and impinge on the sovereignty of nations hosting terrorists. Those circumstances, Chertoff believes, call not for American withdrawal from unhelpful international institutions but rather for renewed U.S. efforts to develop, through consent, a much better defined international law.

Achieving such agreement faces great obstacles: Afghanistan, Pakistan, India, and some African nations have little control over extremist groups within their borders. Activist authors, lawyers, judges, and legal scholars with little knowledge of international realities often wage "lawfare" against the United States, seeking to limit its ability to defeat transnational terrorist organizations. Even courts have separated customary international law from the actual practice of nations and ruled that countries have no responsibility for terrorist attacks originating within their borders and directed at other states, and the International Court of Justice has become receptive to legal arguments that chip away at traditional international law.

Rejecting the arguments of those who would limit traditional national sovereignty with abstract norms derived in a non-democratic manner, Chertoff argues for a modern legal order predicated on the consent of individual states to reciprocally "contain international threats emerging from within their borders so as to prevent infringing on the peace and safety of fellow states." He calls attention to three basic notions associated with what he considers reciprocal containment of terrorist violence: the means by which a state chooses to protect its citizens is dictated by the state; international law will secure transnational activities...