XXIX. Commentary-The Road Ahead: Michael Saalfeld

• Author: Michael Saalfeld
• Pages: 467

Our discussions have revealed again the extent to which this situation has confronted us with complex new questions and challenges from an international legal perspective. We must respond to them with joint efforts, with determination and solidarity but in doing so we must keep our heads.

The answers we are looking for in the legal field will be decisive for the future guidelines on countering international terrorism. And we should be well aware of the fact that the shape of these guidelines will be decisive for the effectiveness and stability of the long-term cooperation between the states forming the international coalition against terrorism.

The NATO Alliance as a consequence of the attacks of September 11th considered the attacks to be an act covered by Article 5 of the North Atlantic 1. Michael Saalfeld is the Director of International Legal Affairs for the Federal Ministry of Defense in Germany.

Treaty, which states that an armed attack on one or more of the Allies in Europe or North America shall be considered an attack against them all.2 On that basis the European NATO Allies are providing substantial military contributions to combating terrorism.

Germany, for instance, has a third of its naval assets operating in the Gulf of Aden area in support of Operation ENDURING FREEDOM. In Afghanistan,

German special operations forces are employed alongside US forces, fulfilling Germany's obligations under Security Council Resolution 1373 which requires that all states 'take the necessary steps to prevent the commission of terrorist acts... (and to) ensure that any person who participates in the financing, planning, preparation and perpetration of terrorist acts or in supporting terrorist acts is brought to justice....'3

The requirement for close cooperation among nations in fulfilling this political mandate, often with military means, calls for some creativity and innovative thinking in the legal arena as well. There seems to be consensus on at least one point, the longer the war on terrorism lasts, the more importance the aspect of acceptance of the use of these means will gain. In Europe recently, the discussion has been characterized by the aim to harmonize as far as possible the military need to prevent further terrorist acts with the legal need to preserve the standards of human rights and humanitarian law which have been well established over the last 50 years.

Regarding Operation ENDURING FREEDOM, there seems to be a clear understanding between all coalition partners that the inherent right of collective and individual self-defense as embodied in Article 51 of the UN Charter provides the authorization to take all necessary measures to accomplish the...