The use of conventional international law in combating terrorism: a maginot line for modern civilization employing the principles of anticipatory self-defense & preemption.

• Author: Kastenberg, Joshua E.

We do not differentiate between those dressed in military uniforms and civilians; they are all targets in this fatwa.

Osama bill Laden (2)

On 11 September 2001, 2,938 persons were killed in New York City and Washington, D.C., after members of an Islamic-based terrorist organization flew hijacked commercial airplanes into the New York World Trade Center towers and the Pentagon building) Another forty-four persons were killed the same day in the Pennsylvania countryside after airplane passengers of United Airlines Flight 93 sought to abort a related terrorist hijacking whose apparent destination was Washington, D.C. (4) On 13 October 2002, over 200 people were killed in a Bali nightclub as a result of the terrorist actions. (5) In the Philippines, violent terrorist attacks against civilians have become so frequent as to seem routine. (6) And, in Kenya and Tanzania, civilians with no apparent relationship to U. S. foreign policy were killed by persons who specifically conducted attacks with the intentions of altering U. S. foreign policy and killing "non-believers." (7)

These instances of terrorism directed primarily against civilians have renewed popular, legal and other scholarly debate regarding the parameters of use of force in both the international and domestic contexts. For instance, in response to the 11 September 2001 attack on the World Trade Center, the United Nations (U.N.) Security Council adopted Resolution 1368, which recognizes the inherent right of individual or collective self-defense in accordance with the U.N. Charter. (8) Additionally, President George W. Bush has advanced a doctrine of enemy status and state responsibility. (9) This doctrine, apparently loosely based on a traditional law concept of "aiding and abetting", is summarized in President Bush's statement that the United States would consider as enemies "terrorists and those who harbor them." (10)

In addition to renewed debate on the limits of use of force generally, there has emerged one regarding use of force in the international context, focusing on both the notions preemption and anticipatory self-defense. In the face of mounting international religious-based terrorism and evolving plans to counter this threat, to a pressing question that has emerged on the world stage is whether anticipatory self-defense and preemption are legitimate international law concepts.

This article analyzes the existing concepts of the right of self-defense and preemption under international law. Part I quickly reviews both the evolution of warfare and the state of religious-based terrorism. The former presents a useful starting point for understanding customary international law and its subset, generally referred to as "the laws and customs of war." Customary international law provides context to the application and shortcomings of contemporary codified international law, and, therefore, serves an important heuristic function in understanding the international legal limits on combating this increasingly frequent form of terrorism.

It is important to note that this article does not advocate a model of warfare that is either anti-Islamic or that would employ counter-terrorist measures that do not comply with international law. Indeed, it condemns any model that would do either. (11) There is no dispute, however, that members of religious-oriented terrorist groups, typically Islamic fundamentalist organizations, appear, in their rising prominence, to be ever more willing to rely on terrorist tactics, and to view their movement as a new religious war. Because no international law doctrine exists in a vacuum, this section is important in understanding the limits to which the international nations may respond to the new terrorist threats.

In Part II, contemporary instruments of international law are examined. In particular, both Article 51 of the U.N. Charter (13) and the International Court of Justice (ICJ) decision, Nicaragua v. United States, (14) are reviewed for their respective definitions of the right to self-defense. The limitations expressed therein are of particular importance because over time, technical innovations and other societal shifts have changed how war is fought, in a manner beyond what was envisioned when the U.N. Charter was adopted. This is particularly tree with respect to unconventional phenomena such as the type of terrorism analyzed in this article. Article 51 of the United Nations (UN) Charter provides state signatories an "inherent" right of self-defense in response to an "armed attack." (15) It allows member states a military-based self-defense in either their respective individual or collective capacities. (16) Also, although not covered in detail, Article 2(4) of the U.N. Charter places limits on a state's ability to threaten the use of force against another state. (17)

While some prominent scholars of international law contend that Article 51, like all articles in the U.N. Charter, is to be read narrowly, (18) it appears that the current U.S. administration has departed from that view and has opted to adopt the doctrines of both anticipatory self-defense and preemption. For instance, it may be argued that the post-11 September invasion into Afghanistan constituted an act of anticipatory self-defense, while the decision to wage war in Iraq was more a matter of preemption. Examining the status or viability of these two doctrines under international law is the key focus of this article, as well as understanding the distinctions and uses of each within the context of grappling with international religious-based terrorism, the newest threat to international peace and security.

Part III will tie the two prior sections together by analyzing the potential use of preemption in the current context of dealing with terrorism. Part III also provides analyzes of terrorism as an "international crime," and state assistance to terrorist organizations. This section then assesses the legitimacy of the separate doctrines of anticipatory self-defense and preemption. In the end, this article concludes that both anticipatory self-defense and preemption are credible theories in limited circumstances, including those in which an organization employs a visible strategy of terror. (19) Where such strategy is employed, the group and its supporters may be permissibly subject to a response employing military force.

INTRODUCTION

1. The Evolution of Interstate Warfare, the Doctrine of First Attack, and the Emergence of Modern Terrorism

   The evolution of warfare and the development of customary international law (and its subset, the law of war) are tightly interwoven. It is not possible to understand international principles applicable to warfare without their being placed into some historical context. Consistent with this general observation, it is difficult to review and address the vitality of the concepts of self-defense, anticipatory self-defense, and preemption without having an understanding of the evolution of, and interrelationship between, warfare and customary international law. Because these concepts were first developed during a period that pre-dates the rise of modern technology, and during a period in which it was reasonably expected that large scale international violence would be restricted to conventional clashes between large nation states, it is challenging to understand the application of these concepts to modern forms of terrorism. Our discussion, therefore, next examines in some detail conventional customary international law and interstate warfare norms within the context of modern religious-based terrorism.

2. Conventional War Between States and the Interwoven Development of Customary International Law

   Warfare has a long history that pre-dates recorded civilization. The fact that civilian populations are victims during warfare is nothing new to history. Indeed, ancient history is replete with instances of cities being sacked and peoples decimated as a norm. (20) For example, the Old Testament states conditions under which enemy cities may be destroyed and people enslaved. (21) And some of the earliest recorded instances of fighting show whole populations were considered as combatants. (22) This ancient view of warfare, which was at one time widely accepted by sovereigns and scholars alike, in part contributed to the destruction of whole societies. (23) For instance, in the Iliad, Homer wrote that the sack of Troy included the slaughter of males of all ages. (24) It may also be noted that in the First Crusade (1099-1103), the Christian Crusaders sacked Jerusalem, along with several other cities, and slaughtered the inhabitants regardless of age, gender, or religion. (25)

   While this article focuses on modern, international legal concepts of use of force, it is important to note that much of contemporary international laws, particularly "the law and customs of war," was designed to prevent the type of slaughter witnessed through much of history. Likewise, it is evident, as discussed below, that many modern religious-based terrorists continue to disregard any recognition of these legal concepts.

   During the last 400 years, the concept of legitimate self-defense and other accepted practices of warfare have continued to slowly evolve. These norms have developed against the backdrop of the limitations of the technology of the day. Customarily, warfare occurred with ample warning, not only to the participants, but also to states located near the fighting. (26)

   For instance, the Thirty Years War (1618-1648) began when ambassadors from the Holy Roman Emperor, Maximilian, notified the leaders of Bohemia that restrictions were being placed on their practice of the Protestant faith. (27) With this notification came a warning that should the restrictions be ignored, armed intervention would result. (28) The Bohemian leaders responded, in what has become known as the "Defenestration of Prague," by throwing the ambassadors out of a...