XIV. The Limits of Coalition Cooperation in the War on Terrorism

• Author: Ivan Shearer
• Pages: 275

The Wide Range of Issues T he events of September 11, 2001 revealed deep and widespread feelings of revulsion, even in unlikely quarters, against the indiscriminate use of violence to achieve political ends. National leaders throughout the world condemned the terrorist attacks in the United States and expressed their solidarity with the American government and people. The world's press and other media were equally condemnatory. The reaction of the United Nations was swift: resolutions of broad reach and specific content were passed directing measures to be taken by all states to suppress terrorism and to cooperate in bringing terrorists to justice.2

The military operations carried out by the United States and a number of its allies in Afghanistan were not specifically authorized by the United Nations Security Council. Although justifiable as an exercise of the right of selfdefense, recognized by Article 51 of the Charter of the United Nations, the failure of the United States to seek such authorization retrospectively, as 1. Ivan Shearer is the Challis Professor of International Law, University of Sydney, Australia 2. See, e.g., S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001); S. C. Res. 1373,

U.N. SCOR, 56th Sess., U.N. Doc. S/1373/(2001); S. C. Res. 1377, U.N. SCOR, 56th Sess.,

U.N. Doc. S/1377/(2001).

envisaged by Article 51, raises both political and legal questions. This paper will not, however, be concerned with these issues-the jus ad bellum-since they are dealt with elsewhere in this publication.3 Moreover, it is perhaps less probable that the future war against terrorism will be conducted in circumstances where a state has admitted its responsibility for harboring terrorists and has refused to take effective measures against them. As a consequence, traditional jus in bello issues will not frequently arise in the familiar context of battlefield conditions, such as in Afghanistan, where operations were conducted against regular forces as well as terrorists, but may call for application, if at all, rather by way of analogy.

The issues most likely to arise are those relating to the cooperation between states in the early warning, hunting down, and bringing to justice of terrorists.

There is unlikely to be a clearly delineated battlefield where terrorists conduct open armed operations or hide in caves. Their shadowy operations will be directed under the cover of apparently innocuous business or other entities located in unsuspecting host countries. They will move easily between countries on valid or false documents. Financial transactions will take place under seemingly innocent cover, or through informal means. Intelligence and communications networks will operate using freely available public facilities.

Since there is nearly universal recognition of the threat to international peace and security posed by terrorists and of the need for cooperation in their suppression, it follows that an effective response must lie in the hands of the many nations comprising the international community. That response must be multilateral and multilayered. It must not be left entirely to the states directly affected by terrorism, still less to the most powerful among them, above all the United States. There must be a coalition of states. This coalition will no doubt consist of an inner circle of closely allied states, and a perimeter of others, more loosely-or not at all-allied, which acknowledge the dangers to themselves of failing to cooperate to meet the global challenge of terrorism.

Differences in their policies, laws, human and material respurces, and in the efficiency of the exercise of their governmental powers, will call for consideration. Whether these differences constitute impediments to the effectiveness of the war against terrorism, and thus call for elimination, or whether they constitute legitimate constraints or sensitivities, and thus call for respect, is the topic of this paper.

It is taken as a given that international law is an integral part of the planning process in any actions against terrorists and that it constitutes the only 3. See Chapters VIII-XIII supra.

yardstick the world has against which to measure the legitimacy of the actions taken. There is a tendency in some quarters to see international law as an undue restraining factor to be set aside in times of crisis. 4 Not only does this attitude strike at the heart of civilized values; it ignores the very real opportunities afforded by the concessive rules of international law to allow effective action to be taken against terrorists in a principled fashion which upholds world public order.

Particular reference will be made in this paper to the laws and policies of Australia, as an example of a close ally of the United States and a coalition partner in the war against terrorism.

National Laws With Respect To Terrorism In the absence of a universally accepted definition of terrorism, states are presently free to adopt their own definitions for the purposes of their domestic law.

Many have no defined crime of terrorism, as such, in their laws, but all have laws respecting most of the constituent elements of terrorism, such as murder, manslaughter, violence against the person, criminal damage to property, and threats and conspiracies to commit crimes of violence.

In enacting anti-terrorism laws, states will generally note the definitions of terrorism contained in international conventions to which they are parties or to agreed definitions adopted by authoritative international bodies. Unfortunately, a universal definition of terrorism has proved to be difficult to achieve as witnessed by the lack of consensus found in the attempted definition in the Draft International Convention on Terrorism, presently before the United Nations.5 The core definition of the crime in that draft is, however, not in doubt as Article 2 of the Draft Convention provides:

1. Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes:

(a) death or serious bodily injury to any person; or 4. Former Australian Permanent Representative to the UN and head of the UN Special Commission on Disarmament in Iraq Ambassador Richard Butler, quoted US Undersecretary of State John Bolton, as having said in 2000 when discussing the International Criminal Court that '[t]here is no such thing as international law, only national sovereignty.' Richard Butler, The supine leading the blind,' THE AUSTRALIAN, June 14, 2002 at 13.

5. See Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996, U.N. GAOR, 57th Sess., Supp. No. 37, U.N. Doc A/57/33.(2002), available at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/248/17/PDF/N0224817.pdf?OpenElement (Jan. 11, 2003) [hereinafter Draft International Convention on Terrorism].

(b) serious damage to public or private property, including a place of public use, a state or government facility; a public transportation system, an infrastructure facility, or the environment; or (c) damage to property, places, facilities or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act. 6

The difficulty that has arisen, and that so far remains to be resolved through continuing negotiations, concerns the qualifying provisions of draft article 18 of this convention. In one version, that article would exempt from categorization as terrorism the activities of armed forces during armed conflict governed by international humanitarian law, and in the other version, proposed by the Member Stafes of the Organization of the Islamic Conference, would exempt the activities of the parties to an armed conflict, 'including in situations of foreign occupation.'7 The basis of the disagreement in the continuing conflict between Israel and the Palestinians is obvious.

Both the United Kingdom8 and Australia9 have already adopted a domestic law definition of terrorism with the Australian definition largely following the UK model. It requires as an element of the offense that the act be committed 'for the purpose of advancing a political, religious or ideological cause.' It also excludes from the definition acts that consist of advocacy, protest, dissent or labor disputes.

For the purposes of domestic law, an internationally accepted definition of terrorism, if and when it eventuates, will be of crucial importance. In the constitutional systems of some states, the definition in the Convention will operate directly as domestic law upon its ratification and promulgation by the state parties. In other constitutional systems, especially those of the English common law inheritance such as Australia, Canada, and the United Kingdom, the 6. Id. at art. 2. Note that the precise definitions of the property and institutions mentioned in Article 2, paragraphs l(b) and 1(c) are contained in Article 1 of the Draft Convention.

7. Id. at art. 18.

8. See Anti-terrorism, Crime and Security Act, 2001, c. 11 ~ 1 (UK). The version of this Act printed in CURRENT LAW STATUTES, 2000 (Sweet & Maxwell eds., 2000) contains annotations which trace the history of the definition from the troubles in Northern Ireland, from the Diplock and Lloyd Commissions, to the present.

9. See Criminal Code Act, c. 1, pt. 5.3 d. 100 (Austl.).

Convention definition will require adoption and incorporation by statute, and possibly also adaptation to meet local circumstances.

In the meantime, in many countries, new laws are being introduced or drafted in order to give the police, or intelligence agencies, increased powers to detain and question not only those suspected of terrorism but also those who may be thought to have relevant information. Bills...