1. The quest for the Holy Grail: An examination of the international community’s effort to
establish international peace and security in light of the elusive nature of terrorism and
9/11
By
James Daza
California State University, Los Angeles
Criminal Justice 598
Dr. Ira Sommers
9-2-2003
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2. The quest for the Holy Grail: An examination of the international community’s effort to
establish international peace and security in light of the elusive nature of terrorism and
9/11
In the wake of September 11, 2001, both the United States of America and the
whole international body realized that the new threat facing the 21st
century is terrorism
and its affects on both security and international law. On a domestic level, the U.S. had to
weigh the importance of preserving its constitutional ideals and internal security.
Questions concerning methods of reducing terrorism and prosecuting terrorists have
arisen inspiring multi-lateral cooperation among the member states of the United Nations
while considering new innovative legal and law enforcement strategies. However,
tackling this problem effectively and legally has spurred debate among scholars and law
enforcement professionals. Nevertheless, all do agree on one important point, in an effort
to truly fight terrorism, a multi-lateral approach is necessary employing both domestic
and international resources upon which domestic and international laws are adhered.
Although, inter-governmental agency cooperation are presented with both legal and
logistical problems that may stiffen any effort to combat terrorism effectively. Therefore,
an examination of both these efforts and obstacles are required in order to propose
possible solutions.
Before any such analysis can begin, terrorism must first be described and assessed
as to the degree it can affect a society. Unfortunately, defining terrorism is as easy as
decoding the human genome. Currently, consensus as to what is terrorism still eludes
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3. legislators and scholars alike (Taylor 2002, Weiss 2002, Sucharitkul 2002, Glennon
2002, Smith 2001, Mueller & Mueller 2000, Sheptycki 1995, and Austin 1991). Austin
(1991) used Jack Gibbs’s 1989 definition to create his theoretical propositions concerning
terrorism’s impact on a Philippine community. He defined it as pertaining “to illegal
interpersonal violence, including threatened violence, associated with political (or
political-religious) extremism and subversion (p.34).” Weiss (2002) provided two
characteristic principles defining terrorism even further. “It is intended to inflict death or
seriously bodily harm upon civilians or other persons (presumably military personnel) not
taking part in hostilities and its purpose is to intimidate a population or persuade a
government or international organization to adopt a certain policy (p.2).” The 1937
Convention on the Suppression of International Terrorism defined it as a set of “criminal
acts directed against a state and intended or calculated to create a state of terror in the
minds of particular persons or a group of persons or the general public (Sucharitkul
2002:3).” Mueller and Mueller (2000) simply perceived it as a set of pathetic actions
perpetrated by weak and desperate persons.
So, one can see a certain range of descriptions that span from political motivations
to desperate acts that slowly widens the net of potential terrorist activity. However, why
have there been such discrepancies in describing terrorism? Conflicting political interests
are partly to blame. Several states (particularly Arab nations) want to insure that persons
who are considered freedom fighters by their own people are not targeted, persecuted, nor
have their movements confused with criminal campaigns by the rest of the world. Such a
label might inadvertently hurt their cause (Taylor 2002 & Smith 2001). The other reason
is more of a legal concern. Since terrorism is considered an international problem, some
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4. states who have fallen victim to terrorist acts of violence would like to try them in their
own countries, yet the accused may have foreign origins complicating the situation by
intruding on a nation’s legal jurisdiction.
In fact, the issue of extradition has caused some countries to choose between
previous treaties and current ones obligating them to cooperate in the “war on terrorism”
(Greenwood 2002, Taylor 2002, Turk 2002, Keramidas 2002, and Zubel 1999). For
example, European states would not be able to extradite accused terrorists to the U.S. if
their fates involve capital punishment because they are parties to the European
Convention on Human Rights (1950), and some are bound to Protocol VI. These
agreements forbid any signatories from extraditing anyone in their custody to another
state where the death penalty would be applied since they have held that capital
punishment is inhumane and in violation of human rights (Greenwood 2002). Taylor
(2002) described another example of extradition complications in Australia. Australian
legislators had to decipher the difference between an act of terrorism and an ordinary
crime in order to classify the offense under both refugee and extradition law. Under
refugee law, the Australian government cannot return a refugee to his country of origin
for persecution. Under extradition law, “a fugitive criminal is extradited to face
prosecution (Taylor 2002:130).” As a result, legislators must weigh the consequences of
both persecution and prosecution when dealing with a refugee suspected of terrorist
affiliations and perpetration. So, they created the term, “serious non-political crime” in
order to resolve the discrepancy between both laws (p.130). Now, if the offense is
considered solely politically motivated, extradition is implemented regardless of refugee
standing.
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5. Such conflicting international obligations explain why many international treaties
and anti-terrorism conventions have rarely been successful at arriving on an international
consensus on terrorism. The definition itself will determine where a state’s political
allegiance will reside. Only two recent conventions have been able to ascribe working
descriptions (the 1997 International Convention for the Suppression of Terrorist
Bombings and the 1999 International Convention for the Suppression of the Financing of
Terrorism). However, they are limited to the acts themselves since consensus is still
lacking on the term. Actually, describing acts of terrorism in lieu of defining it has
become a temporary solution for most international legislation (Weiss 2002 & Turk
2002). Smith (2001) has even ascribed 15 U.N. conventions and 2 draft conventions
naming offenses like hijacking, piracy, or assassinations as acts of terrorism; while,
Weiss (2002) referred to a U.N. website listing two protocols in addition to 8 U.N.
conventions spanning 23 years. The list of offenses are as varied as “hijacking, attacks on
diplomatic agents and other internationally protected persons, hostage taking, theft of
nuclear material and unlawful acts against maritime navigation and fixed platforms
located on the continental shelf (p.2).” So, the debate continues despite international
efforts to properly define terrorism.
Still, regardless of the difficulty in defining terrorism, its effects on a society are
not as hard to conceptualize. Two case studies of the very impact of terrorism were
observed in which theoretical propositions were presented and an examination of the
degree it can take on a society were observed. Although both studies spanned a decade
apart, their relevance continues to resonate on current events. Austin’s (1991) study of a
Philippine province, Lanao del Norte, used an interesting conceptual scheme similar to
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6. that used to study the social and psychological effects that followed a natural disaster. His
conceptual choice may imply that he may have viewed terrorism as a natural
phenomenon that may have a catastrophic effect on a society. When looking at Bibes’s
(2001) study of Colombia’s struggle against terrorism, Austin (1991) may have been
correct in his choice. In Colombia, the state has lost so much internal stability that
legislators are too afraid to pass any level of anti-terrorist or criminal laws because
guerilla forces (who also have some drug trafficking connections) may wind up
assassinating them. Subsequently, such violence only adds to the increasing crime rate
experienced in most of the metropolitan areas (Bibes 2001).
When observing Austin’s (1991) theoretical propositions, they can still be
compared to the reality of Colombia’s current situation. For example, Austin’s (1991)
sixth proposition states that “[n]ormative changes resulting from on-going terrorism
generate feelings of anger and resentment among the citizenry (p.40).” In Colombia,
paramilitary groups were formed by rural peasants to protect themselves from and (in
most cases) to hunt down leftist guerrillas whereby adding to the violence and increased
human rights violations plaguing the country (Bibes 2001). In another example, Bibes
(2001) described the amount of territorial control some guerrilla forces have in the
country partly due to their connections to the drug cartels and due to some government
concessions that afforded almost 40% of the country’s land to them. This obviously
affects travel and tourism for both citizens and tourists since they could be killed or
kidnapped while exploring some of these controlled areas. According to Proposition 9
from Austin’s (1991) theoretical conceptualization, terrorism may affect tourism and
business investment ventures as well as travel and education.
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7. Of most importance, though, is the point Austin (1991) made about social controls
determining the extent terrorist operations can flourish. According to his observations,
terrorism seemed to flourish more in urban centers (cities) where the government is
mandated to care and protect the citizenry. It is least prevalent in areas where “informal”
social controls dominate. This would make sense since a major characteristic of terrorism
involves building on a community’s distrust or disdain for their government (Austin
1991). Interestingly, he also noted that local anti-terrorist groups are more likely to arise
in rural areas where social ties are strongest. Bibes’s (2001) study reinforced Austin’s
(1991) propositions by noting that most guerrilla activity occurred in urban areas where
rebel factions not only attack targets but interact with the populace; whereas, in very rural
areas, more paramilitary group activity flourished. This is sensible since both
paramilitaries and guerilla forces are trying to kill each other. Given the complexity of
this problem and the very real potential results that may occur if it is left unchecked,
efforts to stop terrorism carry an even greater responsibility.
As a result, both domestic and international efforts have been made to combat and
reduce terrorist activities. In a way, this growing need to coordinate various international
law enforcement agencies exemplifies Sheptycki’s (1995) thesis on post-modernization
of the police force. According to him, transnational policing is a natural progression from
a time when policing a state was only restricted within its borders. Never before was
there a need to work beyond them. To him, the “police agency” represented an
administrative tool that kept the state in check by controlling the social operation that
kept the market going and maintained relative “industrial” order. However, as
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8. communication technologies improved and global markets became more constricted, the
more opportunities existed for cross-border crimes igniting a global response.
The U.S., for example, has taken steps to bridge the gap between its federal
agencies and other foreign police forces. The Federal Bureau of Investigations (FBI),
following a strategic 5-year plan between 1998 and 2003, had developed five support
agencies that would assist it in dealing with terrorist and criminal acts abroad that
threatened national security. One in particular, the FBI’s International Training and
Assistance Unit (ITAU) allows the agency to exchange law enforcement “training,
assistance, and liaison cooperation with foreign law enforcement (King & Ray 2000:
387).” In addition, the U.S. Congress established the Law Enforcement Interagency
Working Group in order to make recommendations regarding training and assistance
given to Eastern Europe, Russia, and the Newly Independent States of the Former Soviet
Union (NIS). The FBI also offers international need assessments for inviting host
countries relating to law enforcement needs whereby recommendations are then provided
as to how the agency can assist them. Also, numerous training seminars are offered for
foreign agencies by the FBI in which investigative techniques and administrative tools
are refined (King & Ray 2000). The Practical Case Training Initiative is a good example.
Through it, the FBI invites
foreign law enforcement officers to participate in actual investigation of mutual concern. On-the-job
training, under the purview of the Criminal Investigative Division, stresses the importance of sharing case
information and investigative techniques to combat criminal elements. Under the auspices of the PCT,
agents also travel to foreign countries to work joint investigations there (King & Ray 2000: 341).
Though the United States’ commitment to enhance international cooperation to
battle terrorism has advanced, domestic efforts have also shown improvement in the past
that has led to the aforementioned evolution of the federal agencies. Before the 1980s, the
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9. federal government had made it virtually impossible to investigate American citizens
suspected of domestic or international terrorism due to the political nature of such crimes
and legal complications they might provide if suspects went to court. After 1983,
investigative rules changed allowing thorough investigations of domestic cases. In fact,
separate guidelines for investigating international terrorists were created (Turk 2002).
Local law enforcement had also evolved to deal with domestic, although less
extreme, terrorism. The formation of the Special Weapons and Tactics (SWAT) teams
occurred because police department resources were insufficient to deal with a crisis and
maintain regular police supervision concurrently in the communities. Over time, SWAT
teams had refined their tactics (particularly pertaining to hostage crisis) to a point where
the situation would be dealt with slowly through negotiations and non-lethal means.
Unfortunately, the nature of certain crimes such as mass high school shootings taught
SWAT professionals that time is not always a luxury for negotiations to be conducted
especially if the suspect cannot be dissuaded from murder. Therefore, “active shooter”
training for police officers had been developed in order to resolve the situation quickly
(Klinger & Grossman 2002).
International law enforcement efforts also have adapted to meet the threat of
terrorism. A prime example is the creation of Interpol. Created as the International
Criminal Police organization in 1956, after its predecessor (the International Commission
of Criminal Police) was reactivated following World War II and its constitution modified,
Interpol functions as a communications network for international law enforcement
agencies. This organization (founded by a group of police officers working independently
of their respective governments) originally handled ordinary crimes and excluded
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10. investigating offenses of a political, military, or racial nature. It was not until 1983 did
the U.S. entitled it as a Public International Organization, and many key Interpol
positions occupied by U.S. personnel spawned new efforts to investigate terrorist-related
offenses that were considered political and militaristic (Sheptycki 1995 & Bossard 1988).
Other international agencies surfaced afterward to deal more specifically with
international terrorism—TREVI, the Police Working Group (PWGOT), the Mutual
Assistance Group (MAG), and the Comite Europeen pour la Lutte Anti-Drogue
(CELAD) (Sheptycki 1995). A major player is the Schengen Agreement. “[It] provides
one of the key intergovernmental fora for police co-operation in Europe…The primary
objective…has been to ‘harden’ the external borders of the European Community (now
Union) and thus make it possible to dissolve the internal ones (Sheptycki 1995: 622).”
Another player is Europol. It is designed to act as a law enforcement entity similar to the
FBI in the U.S. Unlike Interpol, it does have law enforcement powers (Sheptycki 1995).
Given the amount of international coordination, conflicts and organizational
problems are inevitable. One issue relates to the coordination of international training. If
not careful, coordinating countries, like the U.S., may design a training program that
addresses a single, specific country’s needs while minimizing others. This could develop
animosity between participating states and most likely weaken ties the agencies have
worked so hard to establish (King & Ray 2000). Another issue is the overlapping of law
enforcement agencies domestically and internationally that must cooperate with each
other in order to solve transnational crimes. The overlap may lead to a divisive,
competitive working relationship that may make networking difficult (if not) impossible
(Sheptycki 1995). Also, the sharing of criminal intelligence between nations have caused
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11. some problems. According to Sheptycki (1995), advancing telecommunications and
management information systems are key indicators of growth in transnational policing.
When there is a continued resistance to computer information networking between states,
more barriers are being built toward police co-operation. Part of the problem, he thought,
originated from current political and legal institutions keeping the formation of a unified
information system from occurring. Apparently there are certain legal barriers that
involve data protection that have led to their resistance demonstrating the legal obstacles
with which domestic and international law enforcement agencies must deal (Sheptycki
1995).
Nevertheless, in order for domestic and international agencies to effectively
reduce terrorist activity, they must deal with both domestic and international laws. As a
result, an examination of the legal responses that terrorism has inspired should be
observed and assess the issues that have arisen in light of recent events specifically
pertaining to the terrorist attacks on September 11, 2001. Domestically, the United
States’ legal policies toward terrorism has been conflicting and in some cases
contradictory particularly after 9/11. Traditionally, the manner in which the courts
prosecuted accused terrorists are divided under two categories—domestic and
international terrorism. Domestic cases were treated as terrorism cases if specified targets
had been attacked and the political motives were present, yet the courts had minimized
those motives (Turk 2002). The reasoning behind it lies on the fact that previous
prosecutions were not successful; instead, they became more politicized by the
defendants who were always charged with seditious conspiracy, and the “juries were
reluctant to convict persons already in prison for crimes related to the conspiracy (Turk
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12. 2002: 346).” As a result, the U.S. Congress added a chapter on “terrorism” in the Federal
Criminal Code whereby the offense was defined by its specified targets allowing
prosecutors to dismiss political motivations from the offense. Thus, juries would be able
to convict the accused more easily (Turk 2002).
Although, juries were more likely to convict if the evidence linking defendants
was strong and the severity of the offense was high (Smith & Damphousse 1998).
According to the “liberation hypothesis” (first proposed by Kalvin and Zeisel in 1996 in
response to their study on jury behavior) and a study testing it on two comparison groups
—terrorist and non-terrorist—results demonstrated that jurors would exercise broader
discretion in finding defendants guilty when the evidence was weak and the crimes were
less severe (Smith & Damphousse 1998). So, it would not had mattered if the political
motivation would have been excluded if the crime produced a sufficient amount of
intensity, a conviction would have been highly likely. Interestingly, domestic cases of
terrorism were prosecuted more often under racketeering and RICO statutes in order to
secure convictions; whereas, international cases classified by the courts as "terrorism"
were convicted less frequently than their domestic counterparts. This is due to the fact
that the U.S. government is understandably more reluctant to reveal intelligence for them
and because defendants consistently pleaded not guilty forcing to take the cases to trial
where proving guilt is more politically difficult than plea-bargaining (Turk 2002). In fact,
Smith and Damphousse (1998) noted that terrorist defendants rarely, if ever, plea guilty
explaining why cases that do get convictions show a positive relationship with sentence
length. Therefore, the U.S. government was faced with a problem. If it follows the
criminal law and procedures to the letter, accused terrorists are less likely to receive
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13. convictions. If military tribunals are used, the fact that some due process rights (which
are usually afforded in criminal courts) will be lacking will receive public condemnation.
It is a violation of human and civil rights. If defendants are handed over to foreign courts,
there is no guarantee that their punishments will fit their crimes nor reach trial for that
matter (Turk 2002). So, a solution was needed.
In a way, the events of September 11, 2001 resolved some but few issues. Instead,
more questions arose, and the international response was both supportive and critical. On
September 12, 2001, the U.N. Security Council adopted U.N. Resolution 1368 that
condemned the terrorist attacks of 9/11 and expressed an international determination to
fight terrorism. Resolution 1368 also identified terrorism as a threat to international peace
and security. On September 28, 2001, U.N. Resolution 1373 was adopted reiterating
1368’s characterization, but it also called for all states to fight terrorism and those that
support and assist in its activities (Greenwood 2002). Keramidas (2002) explained further
that Resolution 1373 not only called for a multi-lateral effort but it also “imposes very
strict responsibilities on all member states (p.149).” It required that they coordinate both
information and investigative efforts in order to become signatories to both bilateral and
multi-lateral legal agreements (Keramidas 2002). The fact that the U.N. responded to
9/11 is not surprising; it is that it not only denounced the attacks, but it demanded
member states to act against similar attacks that threaten international peace. The U.N.
had made previous resolutions describing terrorism as a threat to international peace, but
it never demanded any action to be taken. For example, the U.N. passed Resolution 748
(1992) describing Libya’s failure to show that it had broken terrorist ties, but it did not
state the consequences of its non-compliance; instead, it passed Resolution 883
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14. reaffirming 748. The U.S. embassy attacks in Dar-es-Salaam and Nairobi are other
examples (Greenwood 2002).
Consequently, member states had to modify their own policies in order to adhere
to Resolution 1373. The United Kingdom, for instance, had implemented the Proceeds of
Crime Bill 2001 giving police extra powers to seize property at the beginning of an
investigation before any change is made relating to terrorist financing and/or activities.
International cooperation and assistance is also a condition of the bill adding to two
previous measures the U.K. had initiated—the Anti-terrorism, Crime, and Security Act
2001 and the Terrorism Act of 2000. In the U.S., Congress passed the Patriot Act so that
terrorist activities can be tracked within its borders investigating offenses related to
money laundering, financing, and planning (Keramidas 2002). In Australia, the Migration
Act and the Refugees Protocol had been modified altering immigration, visa applications,
and asylum laws and practices (Taylor 2002). Section 46A(1) under the Migration Act,
for example, stated that a visa application can be invalidated to an “offshore entry
person” if he is considered by the Australian government as an “unlawful non-citizen”
(Taylor 2002: 127).
Although with all the international support the U.S. had received since the events
of 9/11, it was the subsequent attack on Afghanistan that divided the world and raised
questions regarding a state’s right to defend itself under Article 51 of Chapter VII of the
U.N. Charter. In addition, it also addressed how the exercise of that right applied to both
state-sponsored terrorism and non-state terrorist groups like Al Qaeda. On October 6,
2001, the U.S. attacked Afghanistan bombing areas the de facto ruling regime, the
Taliban, had controlled. According to Smith (2001), the U.S. did a good job building its
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15. case against the Taliban connecting them with Osma Bin Laden’s AlQaeda network.
Beard (2002), Greenwood (2002), and Byers (2003) agreed that the connection was
undeniable. The Taliban had harbored Bin Laden and allowed his terrorist network to
operate from their territory. Despite U.N. demands to surrender Bin Laden to the U.S.
after being indicted for the East Africa U.S. embassy bombings in 1998, the regime
refused to adhere the international organization’s demands. Even after two official U.N.
resolutions (1267 and 1333) condemning and calling to sever ties to the terrorist network
(not to mention various economic and diplomatic sanctions), the Taliban again refused to
surrender Bin Laden (Beard 2002). After 9/11, the Taliban continually refused to hand
him to the U.S. Thus, the U.S. attacked the desert region. On October 7, 2001, the U.S.
sent a letter to the U.N. Security Council announcing its right to exercise Article 51’s
provision regarding a member state’s right to defend itself against an armed attack.
This stirred debate among scholars over the appropriate use of Article 51 with
respect to the attack on Afghanistan (Byers 2003, Greenwood 2002, Smith 2002,
Sucharitkul 2002, and Smith 2001). Byers (2003), for example, did not think the U.S.
needed it since there was enough evidence to support a military campaign. Sucharitkul
(2002) would have disagreed citing that the attacks were conducted in order to prevent
possible future ones motivating preemptive measures to secure the nation. Glennon
(2002) would disagree about the effectiveness of the article noting inconsistencies in the
language and the reality of state behavior, which restrains the U.S. from properly
defending itself. Smith (2002), on the other hand, believed Article 51 had given the U.S.
enough freedom to act on the Taliban regime and Al Qaeda. While, Weiss (2002)
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16. believed that the Bush administration misinterpreted the article’s provisions so that they
could justify their already U.N. sanctionless military strikes.
Although, the United States’ use of the article justifying military retaliation
against another state under the blanket of self-defense is not a new practice. According to
Beard (2002), the U.S. used it when it bombed Libya in 1986 in response to a bombing of
a German nightclub where an American was killed. Apparently, the U.S. claimed that the
bombing was one of many planned attacks on Americans by Libyan-based terrorists.
Zubel (1999) corroborated by citing the Pan Am flight 103 bombing over Lockerbie,
Scotland as among the many terrorist attacks planned by Libyan terrorists. In both
instances, the U.S. demanded the extradition of the suspected culprits and was denied by
the Libyan government. So, the U.S. launched attacks against Libya. Another example
involved the 1993 cruise missile attack on Iraq in response to a failed assassination
attempt on U.S. President George Bush, Sr. The day following the strikes, the U.S.
claimed that it acted in self-defense under Article 51. In another incident, the U.S.
attacked Afghanistan in 1998 in response to the U.S. embassy bombings in Tanzania and
Kenya. Again, the U.S. claimed self-defense under the article (Beard 2002).
However, the exact meaning in the words of the article is still debated. Article
51of the U.N. Charter states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken the
measures necessary to maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international peace and security
(Beard 2002: 569).
According to Greenwood (2002) and Glennon (2002), the concept of “armed attack”
generally referred to the use of military force by states limiting the scope of who can be
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17. targeted. Since Afghanistan did not send any of its troops on the 9/11 suicide attacks or
used arms against U.S. citizens on them, Glennon (2002) would agree that the U.S. acted
outside the article’s provisions. Greenwood (2002) believed that such a restraint should
not be imposed on this matter since the recent U.N. resolutions (1368 and 1373)
recognized the U.S. right to self-defense and therefore implied that the 9/11 attacks
constituted an “armed attack” under the article. Beard (2002) agreed citing Article 2(4) of
the same U.N. charter that specifically states that “every State has a duty to refrain from
organizing, instigating, assisting or participating in terrorist acts in another State or
acquiescing in organized activities within its territory directed toward the commission of
such acts, when such acts involve a threat or use of force (p.566).” For Beard (2002),
Article 2(4) is basically holding states accountable for any state-sponsored act of
terrorism. Interestingly, both Article 2(4) and 51contradict each other making U.N.
response to any “armed Attack” difficult to ascertain when faced with terrorism (Glennon
2002).
Another issue related to the U.S. right to use the self-defense provision under
Article 51 to justify U.S. military strikes on Afghanistan is the level of need and
proportionality of such strikes. Although a state may be acting in accordance with its
legal right to self-defense, the use of force must be limited to a degree necessary to
defend against the attack, and it must be proportional to it (Beard 2002).
In addition, the right to use force in self-defense can be preempted when the Security Council takes
measures necessary to maintain peace and security. A final condition is that a state which has not itself
been the victim of an armed attack may use force by way of collective self-defense only if a state which is
the victim of such an attack invites it to do so (Greenwood 2002: 311).
Two problems are noted that challenges the U.S. position on self-defense. First,
according to a classic definition of a state’s right to self-defense under international law
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18. —the Caroline Formula—the requirement for the necessity condition must be
immediacy. Meaning, the threat in question is immediate such that there is no room or
time for any form of deliberation to prevent an attack. The time gap between the 9/11
attacks and the military response by the U.S. on October 6 was such that the need to repel
the attack was absent. Instead, the U.S. attack on Afghanistan would be seen more as a
reprisal or retaliatory act in the eyes of the international community. In fact, the U.N.
Charter and customary international law forbids any armed retaliation against another
state (Beard 2002 & Greenwood 2002). Although. Greenwood (2002) did argue that since
the “Caroline Formula” is a classic argument for self-defense, it did not rely on the fact
that the attack was not by a state or that it matters. In addition, it made no distinction as if
the formula applied to armed attacks by non-state actors. Therefore, it may not be
applicable to the current situation in question.
The second problem facing the U.S. position on the Afghanistan operation is
culpability. The 9/11 attacks were committed by Al Qaeda, yet the military response
occurred in Afghanistan without the consent of the Taliban. Although, the Taliban were
also targeted, and it was not recognized as an official government by most states.
However, the U.S. did not accuse Afghanistan of participating or planning the 9/11
attacks. Therefore, as some would argue (Byers 2003, Weiss 2002, and Smith 2001), the
U.S. should not have targeted Afghanistan (Greenwood 2002). Greenwood (2002),
nevertheless, disagreed with this criticism. The Taliban had violated international law by
allowing Al Qaeda to operate in the region. The Taliban is a de facto government that
controlled the country, and, thus, their actions can be classified as state actions. The
Taliban were in U.N. violation by refusing to extradite Bin Laden under two U.N.
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19. resolutions. Finally, they had harbored Al Qaeda after 9/11 thus permitting the U.S. to
respond in accordance with the “Caroline Formula” describing a state’s right to defend
itself (Greenwood 2002).
As for the issue of proportionality, if in the process of a state defending itself
responds in a degree that is disproportionate to the threat it is designed to meet and not by
what occurred in the past, than it can no longer claim that it is acting in self-defense
(Greenwood 2002). Greenwood (2002) believed that the amount of force applied on
Afghanistan by the U.S. was proportionate enough to oust the Taliban regime. Smith
(2001) disagreed citing that a worldwide consensus may see the U.S. acting out on the
people of Afghanistan for the events of 9/11. If that were so, then they would be at a
diplomatic disadvantage because the people were not culpable. Any military operation
would then be considered as bullying and might generate sympathy and support for the
terrorists by the populace thus creating more enemies (Turk 2002).
Considering the complexity of terrorism and its regulation, some
recommendations are offered in order to help alleviate the problem if only slightly
reducing its potency. Weiss (2002) suggested that the U.S. (for its own part) should try to
pursue a more sensible foreign policy that addresses issues such as the environment,
poverty, racism, gender inequality, or nuclear weapons that all have some impact on
terrorism. Mueller and Mueller (2000) suggested that the U.N. should reconsider
imposing economic sanctions on difficult states as a punitive measure because its results
are as destructive as any weapon of mass destruction that could unforeseeably promote
further terrorism. According to Turk (2002), terrorism rises out of a people’s
hopelessness and injustice that makes it more (if not) inevitably appealing. An alternative
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20. might be an “export control process” that could control a difficult state’s ability to import
certain types of goods (Mueller & Mueller 2000: 178).
Aside from that, the establishment of an International Criminal Court may be
needed to resolve extradition issues concerning apprehended terrorists (Greenwood 2002,
Turk 2002, and Smith 2001). Currently no such court exists. The only ones that may
resemble one that are active are restricted to Yugoslavia and Rwanda, and even then, they
are limited to trying certain crimes. The International Court of Justice could have been a
nice substitute, but it does not have any criminal jurisdiction (Greenwood 2002).
Interestingly, an International Criminal Court would have been active if it had gathered
the necessary 60-state ratification, but it did not (Greenwood 2002). Some scholars
blamed the U.S. for refusing to ratify it and influencing other states to do the same (Turk
2002 & Smith 2001). Although, an International Criminal Court would not have been
able to try the accused co-conspirators of the 9/11 attacks despite receiving ratification; it
would have been established after that horrific date thus prohibiting it from trying it
retroactively (Greenwood 2002). In the case of 9/11, the only way the international
community could try the co-conspirators would be if the Security Council had created an
International Criminal Tribunal for that specific purpose.
Another avenue scholars recommend is the initiation of a form of judicial review
for U.N. resolutions. Currently, the U.N. Charter does not give the International Court of
Justice the authority to review the legal actions of the Security Council. Although, Article
96 of the U.N. Charter does give the Security Council and the General Assembly the
authority to seek legal advice from the International Court of Justice (Zubel 1999).
However, it is not the same especially when U.N. resolutions become contradictory to
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21. other past resolutions affecting the state of the issue in question. According to Glennon
(2002), the International Court of Justice has not taken an active role in settling disputes
between states. Why? Zubel (1999) might say that a standardized system of determining
precedent does not currently exist.
Thus, upon examination of the issues facing the “war on terrorism,” a legal and
humanitarian approach may be seen as the most sensible and effective way to reduce
terrorism, yet that does not mean that law enforcement should be marginalized in
retrospect since it is needed to find the culprits responsible for perpetrating terrorist
activities. Most importantly, an international consensus must exist on defining the word,
“terrorism,” and describing its many subcategories. Otherwise, any effort to reduce it will
be wasted. If there is a lesson to be learned from September 11, 2001, it is that terrorism
affects everyone in the international community. Therefore, an international, multi-
lateral, joint effort is demanded. No. It is imperative and thus crucial for establishing and
maintaining international peace and security.
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