XXV. International Law and the War on Terrorism: The Road Ahead

• Author: John Murphy
• Pages: 389

Panel V - The Road Ahead

Moderator:

Dr. Richard Nuccio

Director, Pell Center for International Relations and Public Policy

Salve Regina

University Presenters:

Professor John Murphy

Villanova University

School of Law

Dr. Nicholas Rostow

General Counsel

US Mission to the United Nations

Commentators:

Mr. James Terry

Deputy Assistant Secretary for Global Affairs

US Department of State

Dr. Michael Saalfeld

Director, International Legal Affairs

German Ministry of Defence

Mr. Ronald Winfrey Attorney

Advisor

US Pacific Command

Captain Jane Dalton

Judge Advocate, US Navy

Legal Counsel Chairman of the Joint Chiefs of Staff

XXV. International Law and the War on Terrorism: The Road Ahead - John Murphy.

'The Road Ahead' or, more specifically, the 'application of any legal lessons learned, review of the role of international conventions on terrorism, and future military operations against terrorism.' This is not an easy task. As Yogi Berra reportedly once observed, 'it's difficult to make predictions, especially about the future.' This is particularly true given that, as Richard Posner has recently pointed out, so-called 'public intellectuals' or the 'experts' have a notoriously bad record when it comes to predictions.3 Accordingly, in this, as in so many enterprises, caveat emptor.

Be that as it may, this chapter proceeds along the following lines. First, since any effort at 'futurism' necessarily involves an analysis of present trends, it attempts to identify the most salient trends in international terrorism and 1. I would like to express my appreciation for the excellent research assistance of Andrew Kenis, a third year student at the Villanova University School of Law, Rita Young-Jones, former reference law librarian at the Villanova University School of Law, and Charles J. Kocher, a second year student at the Villanova University School of Law. I am also grateful for a summer 2002 research grant from the Villanova University School of Law that greatly facilitated my work on this chapter.

2. John Murphy is a Professor of Law at Villanova University School of Law.

3. RICHARD A. POSNER, PUBLIC INTELLECTUALS (2001).

   their impact on efforts to combat terrorism. Next it turns to two kinds of responses employed in combating terrorism which have been the focus of considerable scrutiny already at this conference: the so-called antiterrorism conventions, at both the global and the regional levels, and the use of coercive measures, i.e., economic sanctions and the use of armed force. As to these measures, the effort will be to evaluate their strengths and weaknesses, especially in light of current trends, and to set forth some tentative proposals for improvement.

   Trends September 11th itself is a spectacular demonstration of a disquieting trend in international terrorism: the increased willingness of terrorists to kill large numbers of people and to make no distinction between military and civilian targets.4

   Until recently many commentators were of the view that terrorists had little interest in killing large numbers of people because it would undermine their efforts to gain sympathy for their cause. A major cause of this radical change in attitude has been aptly pinpointed by Jeffrey Simon:

   Al Qaeda... is representative of the emergence of the religious-inspired terrorist groups that have become the predominant form of terrorism in recent years. One of the key differences between religious-inspired terrorists and politically motivated ones is that the religious-inspired terrorists have fewer constraints in their minds about killing large numbers of people. All nonbelievers are viewed as the enemy, and the religious terrorists are less concerned than political terrorists about a possible backlash from their supporters if they kill large numbers of innocent people. The goal of the religious terrorist is transformation of all society to their religious beliefs, and they believe that killing infidels or nonbelievers will result in their being rewarded in the afterlife. Bin Laden and al Qaeda's goal was to drive US and Western influences out of the Middle East and help bring to power radical Islamic regimes around the world. In February 1998, bin Laden and allied groups under the name 'World Islamic Front for Jihad Against the Jews and Crusaders' issued a fatwa, which is a Muslim religious order, stating that it was the religious duty of all Muslims to wage war on US citizens, military and civilian, anywhere in the world.5

4. It is worth noting that in 1998 bin Laden told ABC News that 'he made no distinction between American military and civilian targets, despite the fact that the Koran itself is explicit about the protections offered to civilians.' See Peter L. Bergen, Excerpts from Holy War, Inc., 82

   PHI KAPPA PHI FORUM 26, 28 (2002).

5. Jeffrey D. Simon, The Global Terrorist Threat, 82 PHI KAPPA PHI FORUM 10, 11 (2002).

   It is important to note that there are other religious terrorist groups besides al Qaeda. Examples include Hizballah, a radical Shia Islamic group in Lebanon, Hamas (Islamic Resistance Movement), and the Palestine Islamic Jihad, all of whom use terrorism in the West Bank, Gaza Strip, and Israel to undermine Middle East peace negotiations and to establish a fundamentalist Islamic Palestinian state. There are also the Abu Sayyaf Group, a radical Islamic separatist group operating in the southern Philippines; Al Gama'a al-Islamiyya (Islamic Group), which is based in Egypt and seeks the overthrow of the Egyptian government; and the Armed Islamic Group, which is located in Algeria and plots the overthrow of the secular Algerian government and its replacement with an Islamic state.

   September 11th may also demonstrate another trend: the emergence of smarter and more creative terrorists. The planning and carrying out of the terrorist operation on September 11th was diabolically clever, and the 19 hijackers were well educated and from middle to upper middle class backgrounds.

   Smarter and more creative terrorists, moreover, are better equipped to take advantage of the information on weapons-including weapons of mass destruction-targets, and resources necessary for a terrorist operation readily available on the Internet. Similarly, they are better able to take advantage of the various vulnerabilities of a technologically advanced society, including major networks of communications, electrical power, pipelines, and data.

   Another major trend is the 'globalization' of terrorism.6 According to Joseph Nye, globalization is 'the growth of worldwide networks of interdependence.'7 In particular, Nye suggests, over the last several decades, there has been a substantial increase in 'social globalization,' i.e., the spread of peoples, cultures, images, and ideas, and this has resulted in 'new dimensions of military globalism: humanitarian intervention and terrorism.'8 Perhaps the most salient example of social globalization resulting in terrorist military globalization is the worldwide expansion of the al Qaeda network, said to operate in more than sixty countries.9 It is not the only example, however. Hizballah reportedly has operations in six continents, and Hamas and the Sri Lankan 6. For further discussion see John F. Murphy, The Impact of Terrorism on Globalization and ViceVersa, 36 THE INTERNATIONAL LAWYER 77(2002).

7. JOSEPH S. NYE, JR., THE PARADOX OF AMERICAN POWER: WHY THE WORLD'S ONLY SUPERPOWER CAN'T GO IT ALONE 78 (2002).

8. Id. at 86-87.

9. See Seeing the World Anew, ECONOMIST, October 27, 2001, at 19.

   Tigers of Tamil Eelam are said to 'maintain cells far from the lands where their goals and grievances are focused.'10

   An encouraging trend is the apparent decline in state sponsored terrorism.

   The breakup of the Soviet Union, and the emergence of the countries in central and eastern Europe from under the Soviet yoke, greatly reduced the sources of state support that terrorists could rely on. Even for those countries that remain on the US State Department's list of sponsors of terrorism-Cuba,

   Iran, Iraq, Libya, North Korea, Sudan, and Syria-there has been some movement away from state support of terrorism toward cooperation with the international community's campaign against terrorism.' The main problem area is the Middle East. Although Iran and Syria, for example, have taken action against al Qaeda, they continue their active support for terrorist groups, such as Hamas and Hizballah, that primarily target Israel and its citizens, on the ground that these groups are not terrorists but national liberation movements.

   Let us reflect for a moment-on possible reasons for the distinctions made by Iran and Syria. It should come as no surprise that Iran and Syria should be willing to cooperate, at least to a limited extent, in efforts to suppress al Qaeda. The kind of radical Islamic fundamentalism espoused by bin Laden and al Qaeda is a serious threat not only to the United States but also to Islamic governments in the Middle East. Even though they may themselves be regarded as having radical Islamic governments, Iran and Syria are nonetheless among those threatened by al Qaeda. In contrast, Hamas and Hizballah direct their attention toward Israel, long the target of Iranian and Syrian enmity. Here, one may speculate, the greater danger for Iran and Syria may lie in not supporting these movements in light of the general support they enjoy among the people of the Islamic countries in the Middle East.

   Interestingly, according to the latest US Department of State report, Latin America had by far the largest number of international terrorist attacks in 2000 and 2001.12 Latin America, too, was a major venue for the activities of Hizbollah, as well as other terrorist groups, 'in the tri-border area of Argentina, Brazil, and Paraguay, where terrorists raise millions of dollars annually via criminal enterprises.'13 There was also evidence of Hizbollah members or sympathizers in Chile, Colombia, Venezuela, and...