XXI. Terrorism: The Proper Law and the Proper Forum?

• Author: Christopher Greenwood
• Pages: 353

Introduction The horrific events of 11 September 2001 changed the whole concept of terrorism in the minds not only of Americans but of many other people throughout the world. The atrocities perpetrated by al Qaeda that day were on a scale that was hitherto (and, we must all hope, for ever after) unparalleled. It is obvious, however, that terrorism did not begin that day. It is also a mistake to conceive of terrorism as something exclusively, or even primarily, directed against the United States. It is almost certainly the case that more lives were lost to terrorism in Algeria during 2001 than were cut short by the murders committed at the World Trade Center and the Pentagon but the names of Algeria's terrorist victims are unlikely ever to be recorded. To see the events of 11 September 2001 as the worst case of a phenomenon which has afflicted most of the world for many years, rather than as something unique, is in no way to diminish their horror, still less to excuse the conduct or minimize the evil of those responsible. It is, however, an important step which needs to be taken in understanding terrorism and seeking to combat it. A successful strategy against terrorism has to be based on a recognition 1. Christopher Greenwood is Professor of International Law at the London School of Economics and Political Science.

that it is an international phenomenon, the fight against which requires international cooperation on a scale which is all too rare.

That is particularly the case with attempts to bring terrorists to justice. In some respects the record of international cooperation since September 2001 is encouraging-the unprecedented action taken by the United Nations Security Council, and the number of ratifications which the main anti-terrorism treaties are now attracting, the broad coalition which cooperated in destroying al Qaeda's presence in Afghanistan all demonstrate what can be achieved by the international community when it works cohesively. But that is only part of the picture. Serious differences remain about the law to be applied to acts of terrorism, attempts to characterize terrorists as combatants in a war, the forum before which terrorist acts can be tried and a host of other issues.

The purpose of this paper will be to examine two of these issues. First, what is the law applicable to international terrorism and the reaction to it? In particular, what is the relationship between the laws of war and international criminal law in this context? Secondly, what is the appropriate forum for the prosecution of the surviving perpetrators of the 11 September outrage? In this context, it is also necessary to ask how the machinery for bringing terrorists before the appropriate forum can be made more effective.

The Proper Law The Laws of War A threshold question which has been raised by the events of 11 September and the reaction they have provoked is whether terrorism falls to be appraised by reference to the criminal law or the laws of war. The day after the attacks on the World Trade Center and the Pentagon, the President told the National Security Team that 'the deliberate and deadly attacks which were carried out against our country were more than acts of terror; they were acts of war.'2 Others have argued that what happened was a crime but it had nothing to do with war.

In approaching this issue, it is important to keep in mind that the categories of crime and act of war are not necessarily exclusive. International law is not composed of a series of watertight compartments, each insulated from the others. The fact that a particular act is a crime under international law (and under national law) does not mean that it cannot also be an act of sufficient gravity that it constitutes a casus belli. Thus the fact that the attacks on the 2. Remarks by the President in Photo Opportunity with the National Security Team, at the White House Cabinet Room (Sep. 12, 2001), available at http://www.whitehouse.gov/news/ releases/2001/09/20010912-4.html# (Apr. 29, 2003).

World Trade Center and the Pentagon were crimes does not preclude them from also constituting an armed attack for the purposes of the right of selfdefense in international law. That has not prevented a measure of academic controversy on this point. A number of scholars have argued that the concept of 'armed attack' in Article 51 of the United Nations Charter is confined to acts imputable to a state. Others have suggested that there is a borderline between crime and armed attack which cannot be crossed.

Neither view has much to commend it and both are at odds with the practice of states and international institutions. Nothing in the text or the drafting history of the Charter suggests that 'armed attack' is confined to the acts of states. Moreover, the fons et origo of the right of self-defense in international law, the famous Caroline incident in 1837, concerned an attack on the United Kingdom's territory in Canada by a group of what we would now call terrorists, operating from US territory but in no way supported by the United States.

Neither the United States nor the United Kingdom seems to have considered that this fact made any difference to the application of the law on self-defense and the formulation of the right of self-defense in the correspondence between t'hem concerning the Caroline has been quoted ever since.3

Nor has state practice or the jurisprudence of international tribunals since the adoption of the Charter espoused a formalistic distinction between acts of states and acts of terrorist and other groups in determining what constitutes an armed attack. The fact that the International Court of Justice, when it recognized in the Nicaragua case4 that the covert use of force could amount to an armed attack, referred only to covert actions by a state should not be taken as a finding (or even an obiter dictum) that covert uses of force by anything other than a state could not constitute an armed attack. The simple fact is that it was only state conduct which was in issue in the Nicaragua proceedings and the Court neither needed nor attempted to address the status of violence perpetrated without the involvement of a state. Moreover, the Security Council has repeatedly recognized that international terrorism, whether or not state supported, can amount to a threat to international peace and security and in resolutions 1368 and 1373 (2001), adopted in the aftermath of the events of 11 September, it expressly recognized that the United States had the right of self-defense in terms that could only mean it considered that terrorist acts on a sufficient scale constituted armed attacks for the purposes of Article 51 irrespective of who perpetrated them, for it was already likely by then that the 3. R.Y. Jennings, The Caroline and MacLeod Cases, 32 AM. J. INT'L L. 82 (1938).

4. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 3 [hereinafter Nicaragua Case].

   attacks on the World Trade Center and the Pentagon were the work of al Qaeda.5 The same approach was taken by the North Atlantic Council on behalf of the North Atlantic Treaty Alliance (NATO)6 and the Foreign Ministers of the Organization of American States (OAS).7

   The suggestion by some commentators that international terrorism must be dealt with exclusively through the mode of criminal prosecution of the individual and not through an application of the use of force in self-defense is, if anything, even more remote from reality and logic. Arrest, prosecution and the ordinary process of the criminal law can occur only once a degree of law and order have been reimposed within a society after a shocking resort to violence. That reimposition of law and order may well entail the use of the military even within a state and is still more likely to do so in the context of international society. The prosecution of the Nazi leadership for the crimes they committed in waging World War II was not an alternative to the use of force in self-defense but something which was made possible precisely because the victims of Nazi aggression were able successfully to employ force and overcome those aggressors. This is also the approach that must be used in dealing with the problem of international terrorism. Terrorism on the scale of what happened on 11 September cannot be addressed through the medium of international criminal law or the law on the use of force alone. It requires a conscious and judicious application of both.

   To that extent, therefore, it is meaningful to talk of terrorism in the context of the law relating to war, for terrorism may supply a justification for resort to force under the jus ad bellum. The extent to which the military response to the events of 11 September 2001 was justified under the United Nations Charter is discussed elsewhere in this volume.8 The present writer is firmly of the view that the military action in Afghanistan was lawful under the jus ad bellum.9

5. See generally, S. C. Res. 1368, U.N. SCOR, 56th Sess., U.N. Doc. S/1368/(2001) and S. C.

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

6. See Press Release, NATO Reaffirms Treaty Commitments in Dealing with Terrorist Attacks Against the U.S. (Sep. 12, 2001), available at http://www.nato.int/docu/update/2001/0910/ e0912a.htm (Apr. 29, 2003).

7. Terrorist Threat to the Americas, OAS Res. RC.24/RES.1/01 (Sep. 21, 2001), reprinted in 40

   I.L.M. 1273 (2001).

8. See generally, Chapters II & III supra.

9. Christopher Greenwood, International Law and the 'War against Terrorism', 78 INT'L AFF. 301 (2002)...