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Legal Implications of the September 11 Attacks: Defining Terrorism and Justifying Retaliation
From: Columbia University
| By:
Oscar Schachter |
EDITOR'S INTRODUCTION |
The US responded quickly and decisively in the wake of the September 11, 2001 attacks, declaring war on terrorism and garnering NATO support under Article 5 of the North Atlantic Treaty, which states that an attack against one NATO member is an attack against all members. On October 7, the US and Britain began military strikes against the Taliban in Afghanistan.
To address the legal implications of these events, Columbia Law School hosted a forum on October 9, 2001, in which Columbia law professor Oscar Schachter introduced the inherent difficulties in identifying a general definition for terrorism and explored whether the US military response is justified under Article 51 of the United Nations Charter. |
errorism is not a new subject, certainly. It's been a concern of international bodies in the 19th century and in the 20th century. And it hasn't ever been solved in a legal sense. The various efforts to arrive at a definition of terrorism have run into difficulties. The League of Nations did finish a convention on it, but there were no parties to it. The United Nations and the International War Commission tried to reach an agreement on a general definition of terrorism. |
The essential problem, as you surely know, has been the concern with motivation. Motivation for terrorist acts has been seen as a mitigating factor, or as a vitiating factor that would make it difficult to get agreement on a general definition. There are a couple of general definitions in treaties, but the essential point of trying to deal with the question of motive has continued to concern governments and to lead to these problems. |
On the other hand, it's never been really difficult to recognize a particular act as terroristic. And there is long list of acts, obviously. The bombings of September 11 are the clearest case. But other actions, like kidnapping diplomats, have been treated as an act of terrorism--a whole category of acts which have been labeled "terrorism," without too much argument about that. Although it continues to be the running argument in every case of justification, the higher morality, and a number of other excuses. |
I've been asked to talk particularly about the UN charter side of it. And the current position is pretty clear. There is a general view that the United States has been subject to an armed attack, in the technical sense of Article 51 of the charter, which provides for the right of self-defense. That is a critical, legal point in the present situation. The related question concerns the right of self-defense, the extent of the right of self-defense, in the present situation. There's no doubt that most countries, probably all countries, consider this to be an armed attack. Although, in the origins of Article 51, unarmed attack was thought of as an attack by another government, by another state. Now it's been pretty well agreed, and the resolutions of the UN affirm, that an armed attack by a non-governmental body is an armed attack within the meaning of the article affording the right of self-defense. And the Security Council response has made that clear enough. |
The question that may be the most important one here is, what are the limits of self-defense? Under the established international law, self-defense must be necessary, subject to qualification of necessity, and it must be proportional. Now, these are two interesting concepts. What is meant by "necessity" in a case of this kind? Is it necessary in the sense it's necessary to punish the perpetrator? Does necessity look toward the future? You will remember, the various statements of the United States and British governments, and I guess other governments as well, have tended, in these terms, to point to the future. This was done very explicitly by the United States when it took action a couple of years ago in response to the bombings in east Africa, in Kenya and Tanzania, and where the point was made that these operations by bin Laden or whoever, were threatening in the future. It was necessary to act, to prevent future actions. So that necessity was given this kind of operational meaning. |
Proportionality raises other questions. When is it proportional? Can one bomb a city because the ruling group or that community has launched the terrorist acts? This is a more debatable point, in the sense that in every particular case, there could be an issue of whether the damage done is disproportional to the self-defense requirement. It's a very difficult question to decide in highly general terms. In the present situation and in previous situations, the argument was made that the bombing or other military action was necessary and proportional to the crime. But is it proportional to the threat in the future? At least, that seems to me to be the more appropriate way of taking account of necessity and proportionality in the present case, where there's ample evidence that the people who are responsible for this, bin Laden and his group, do look to this as a continuing war, as a jihad, which will continue. So that the idea of taking action does fall into these categories of necessity and the degree of the damage, and the apparent weaponry at the command, on a world scale, of the alleged terrorist group, makes it reasonable to react with sufficient strength. |
Anybody can take a position that they're going too far in bombing civilian areas. This is a tough question since the separation between the civilian areas and the terrorist enclaves of one kind or another are not very clear, and they're mixed. How does one come out? We might say that the necessity of taking action and the fact that the terrorists do, so to speak, hide within the civil population, create this awful dilemma. There's no easy way of drawing blueprints as to how far and what areas can be bombed, where one faces that kind of situation. The issue, in a way, is before the Security Council continually. The Security Council has the authority to act under the charter and, in these cases and situations, it has, in fact, acted in the long-standing difficulties with Russia and China. |
So we end up, as it were, with a delegation of authority in the Security Council. And the Security Council has this extraordinary grant of authority, which can, on the whole, be maintained and respected, because it has the unanimity requirement, unanimity of the permanent members and, as these recent events have shown, the unanimity of all the members of the Security Council and, pretty generally, nearly all the members of the UN. So that is, in a way, the safeguard that one can look to for some assurance that these requirements of self-defense, necessity, and proportionality do have a significance in evaluating the actions of the United States and its allies. |
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