XXIV. Discussion-Bringing Terrorists to Justice

• Pages: 381

The Distinction Between Armed Conflict and Armed Attack

Yoram Dinstein Care must be taken to distinguish between the two, markedly different phrases of 'armed conflict' and 'armed attack.' The expression 'armed attack' is derived from Article 51 of the UN Charter and it constitutes the trigger for the exercise of the individual or collective right of self-defense. 'Armed conflict,' on the other hand, is the term of art characteristic especially of the 1977 Protocol I Additional to the Geneva Convention, where it is used in the sense of war as well as hostilities short of war between states.1 September 11th-Armed Attack, Armed Conflict, Ordinary Criminal Acts?

Michael Newton The United States was in an armed conflict with al Qaeda at the very least by September 11th. There were, in fact, a long series of armed attacks against US personnel and facilities beginning arguably with the downing of the Blackhawk helicopters in Mogadishu, including the bombings of the Khobar towers, the attacks on the US embassies in Nairobi and Kenya, and the bombing of the USS Cole in the Yemeni port. These armed attacks were reinforced and called for by 1. See generally Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, arts. 51.5(a) & 57.2(a) (iii) & (b), Dec. 12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 (1977).

various al Qaeda members as well as by bin Laden himself. Each time one of these armed attacks occurred, the United States had the authority under Article 51 of the UN Charter to engage in self-defense against al Qaeda. The 1998 missile attacks in Afghanistan are one manifestation of the United States pursuing its lawful right to self-defense.

Christopher Greenwood I disagree that an armed conflict existed before, or even after, the events of September 11th between the United States and al Qaeda. Al Qaeda does not have the capacity to make a declaration of war any more than an individual in a nonofficial governmental capacity has the ability to do so. Politicians and academics alike, within the United States and outside, did not take the position before September 11th that the United States was party to an armed conflict with al Qaeda. It is only subsequent to these horrible events that some have argued this to be the case. One reason some have taken this position is that it then makes the unlawful targeting of civilians a war crime which may be properly brought before a military commission. I believe this to be a perversion of the law and quite incorrect. In this respect, I agree with Yoram Dinstein. The events preceding and including those on September 11th were armed attacks within the meaning of Article 51 of the UN Charter. These acts were threats to international peace and security and the Security Council, nations, and alliances clearly identified them as such.2

Is there an armed conflict against Afghanistan? To be sure there is. The fighting between the United States and al Qaeda personnel alongside the Taliban is regulated and governed by the law of armed conflict but not because they are al Qaeda members but instead because they are fighting with a party to an armed conflict-Afghanistan. The fact that an al Qaeda member turns up in another country does not mean that they are automatic targets for they are not. By claiming to be in an armed conflict with al Qaeda, the United States is giving a degree of legitimacy to people who are really nothing more than horrible criminals. This is a terrible error. I believe this error will make it exceedingly difficult to proceed against al...