INTERNATIONAL LAW AND THE WAR ON TERRORISM: THE ROAD AHEAD

Israel Yearbook on Human Rights

Volumn 32, Issue , 2002, Pages 117-163

  Murphy, John F ^a,b  

^a VILLANOVA UNIVERSITY   (United States)

^b US NAVAL WAR COLLEGE   (United States)

Author keywords

[No Author keywords available]

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EID: 84922849272     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789004423169_004     Document Type: Chapter

References (98)

1. R.A. Posner, Public Intellectuals (2001).
2. 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 P.L. Bergen, "Excerpts from Holy War, Inc.", 82 Phi Kappa Phi Forum 26, 28 (2002).
3. J.D. Simon, "The Global Terrorist Threat", 82 Phi Kappa Phi Forum 10, 11 (2002).
4. For further discussion see J.F. Murphy, "The Impact of Terrorism on Globalization and Vice-Versa", 36 The Int'l Lawyer 11 (2002).
5. J.S. Nye, Jr., The Paradox of American Power: Why the World's Only Superpower Can't Go it Alone 78 (2002).
6. Ibid., at 86-87.
7. See "Seeing the World Anew", Economist, Oct. 27, 2001, at 19.
8. P.R. Pillar, "Terrorism Goes Global: Extremist Groups Extend Their Reach Worldwide", 19 Brookings Rev. 34 (2001).
9. See U.S. Dept. of State, Patterns of Global Terrorism 2001 63 (May, 2002).
10. Ibid., at 172.
11. Ibid., at 44.
12. For a sense of the bread and depth of subjects now relevant to efforts to combat terrorism, see the series of articles contained in the lengthy symposium in "Law and the War on Terrorism", 25 Harv. J.L. & Pub. Pol'y ix-834 (2002).
13. The texts of these Conventions may most conveniently be found in International Instruments Related to the Prevention and Suppression of International Terrorism 2-131 (United Nations, 2001); hereinafter: Instruments Related to Terrorism.
14. The problems become particularly acute in the event of a computer network attack by terrorists. See J.F. Murphy, "Computer Network Attacks by Terrorists: Some Legal Dimensions", in Computer Network Attack and International Law 323, 340-43 (M.N. Schmitt & B.T. O'Donnell, eds., 2002) (U.S. Naval War College, 76 Int'l L. Studies).
15. J.F. Murphy, "The Need for International Cooperation in Combating Terrorism", 13 Terrorism: An International Journal 381 (1990).
16. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on Dec. 15, 1997, UN Doc. A/RES.52/164, Annex.
17. These included, among others, the truck bombing attack on U.S. military personnel in Dhahran, Saudi Arabia, the poison gas attacks in Tokyo subways, a bombing in Colombo, Sri Lanka, bombings in Tel Aviv and Jerusalem, and a bombing in Manchester, England. See S.M. Witten, "Current Developments: The International Convention for the Suppression of Terrorist Bombings", 92 Am. J. Int'l L. 774, n. 3 (1998).
18. Art. 9, International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on Dec. 17, 1979, entered into force on 3 June 1983, 1316 U.N.T.S. 205.
19. For discussion of this debate, see C.H. Pyle, Extradition, Politics, and Human Rights 11829 (2001).
20. United States v. Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y., 2000).
21. The Terrorist Bombing Convention entered into force on May 23, 2001. As of May 28, 2002, it had 62 parties. The United States became a party to the Convention on Apr. 19, 2002.
22. Art. 8(2) provides: "Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1 of the present article".
23. H. Corell, "Possibilities and Limitations of International Sanctions Against Terrorism", in Countering Terrorism Through International Cooperation 243, 253 (A.P. Schmid ed., 2001).
24. See C.M. Johnson, "Introductory Note to the International Convention for the Suppression of the Financing of Terrorism", 39 LLM 268 (2000).
25. G.A. Res. 53/108 (1998).
26. R. Ferera, "International Legal Framework for Co-operation in Combating Terrorism - the Role of the UN Ad Hoc Committee on Measures to Eliminate International Terrorism", in Countering Terrorism Through International Cooperation, supra note 28, at 277, 284.
27. Elsewhere I have advocated a more extensive use of civil liability against those who commit or sponsor the commission of international crimes. See J.F. Murphy, "Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution", 12 Harv. Hum. Rts. J. 1 (1999).
28. S.C. Res. 1373 (Sept. 28, 2001).
29. At least this was the case around 1985 when I last examined the data. See J.F. Murphy, Punishing International Terrorists: The Legal Framework for Policy Initiatives 110-15 (1985).
30. See e.g., Art. 19 of the Terrorism Financing Convention, supra note 31.
31. See e.g., Measures to Eliminate International Terrorism: Report of the Secretary-General, UN GAOR, 51st Sess., Agenda item 153, UN Doc. A.51/336 (Sept. 6, 1996); Measures to Eliminate International Terrorism: Report of the Secretary-General, UN GAOR, 55th Sess., Agenda Item 166, UN Doc. A/55/179 (July 26, 2000).
32. Presentation by Ambassador Greenstock, Chairman of the Counter-Terrorism Committee (CTC) at the Symposium: "Combating International Terrorism: The Contribution of the United Nations", held in Vienna on 3-4 June 2002, at: http://www.un.org/Docs/sc/committees/1373/viennaNotes.htm (visited on June 12, 2002).
33. The U.S. report is attached as an annex to Letter dated Dec. 19, 2001 from the Chairman of the Security Council Committee established pursuant to Res. 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, S/2001/1220 (Dec. 21, 2001). The information regarding U.S. prosecutions appears at 22.
34. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 26 Oct. 1979, entered into force on 8 Feb. 1987, reprinted in 18U.M. 1419 (1979).
35. See Measures to Eliminate International Terrorism: Report of the Working Group, Sixth Committee, 53rd Sess., A/C. 6/53/L.4, at 4 (Oct. 22, 1998).
36. As pointed out by B. Kellman, "Catastrophic Terrorism-Thinking Fearfully, Acting Legally", 20 Mich. J. Int'l L. 537, n. 1 (1999): "Catastrophic terrorism is an intentionally undefined term, reflecting the fact that terrorists who aspire to inflict catastrophic injuries have a long menu of options to employ, and reflecting the conclusion that debates over whether a particular technology is or is not within this category are, essentially, inconclusive. The definition of 'catastrophic terrorism,' as opposed to conventional terrorism, turns less on what type of device is used than on the magnitude of the effects".
37. See Common Ground on Terrorism 176-77 (J. Marks & I. Beliaev, eds., 1991).
38. See e.g., J. Miller, "Threat of Unconventional Terrorism is Overstated, Study Says", N.Y. Times, Oct. 26, 2000, at A24, col.l. For a contrary view, see e.g., P.L. Moore, "Is Catastrophic Terrorism Just Strategic 'Peanuts'", A.B.A. Standing Committee on Law and National Security, National Security Law Report, July-Aug. 2000, at 1.
39. Kellman, supra note 56, at 538. See also B. Kellman, "An International Criminal Law Approach to Bioterrorism", 25 Harv. J.L. & Pub. Pol'y 721 (2002).
40. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, 1972, 1015 U.N.T.S. 1419.
41. See E. Olson, "U.S. Rejects New Accord Covering Germ Warfare", N.Y. Times, July 26, 2001, at A47, col. 1.
42. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, 1993, 1974 U.N.T.S. 3, A/RES/47/391.
43. Treaty on the Non-Proliferation of Nuclear Weapons, 1968, 729 U.N. T.S. 161.
44. For a brief discussion of the NPT, see J.F. Murphy, "Force and Arms", in The United Nations and International Law 97, 122-29 (C.C. Joyner ed., 1997).
45. See Report of the Ad Hoc Committee established by G.A. Res. 51/210 of Dec. 17, 1996, 6th Sess. (28 Jan.-l Feb. 2002), GAOR, 57 Sess., Supp. No. 37 (A.57/37), at 4-16.
46. Geneva Convention for the Prevention and Punishment of Terrorism, 1937, 7 Int'l Legislation 862, 868 (M.O. Hudson ed., 1941).
47. Draft Convention for the Prevention and Punishment of Certain Acts of International Terrorism, UN Doc. A/C. 6/L. 850 (1972).
48. W.M. Reisman, "International Legal Responses to Terrorism", 22 Hous. J. Int'l L. 3, 58 (1999).
49. Convention against Transnational Organized Crime, adopted by the General Assembly on Nov. 15, 2000. The text of and information regarding the Convention may be found at www. Odccp. org/Palermo/convmain. html.
50. Statement by Mr. H. Corell to the Security Council Briefing on International Terrorism, Dec. 9, 2000, at 9.
51. The texts of and dates of entry into force and other information concerning seven of these Treaties and Conventions may be found in Instruments Related to Terrorism, supra note 14, at 134-225. These include the OAS Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance; the European Convention on the Suppression of Terrorism; the South Asian Association for Regional Cooperation (SAARC) Regional Convention on Suppression of Terrorism; the Arab Convention on the Suppression of Terrorism; the Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating International Terrorism; the Convention of the Organization of the Islamic Conference on Combating International Terrorism; and the OAU Convention on the Prevention and Combating of Terrorism. The text of the Inter-American Convention Against Terrorism, adopted on June 3, 2002, and other information regarding the convention may be found at: www.oas.org/xxxiiga/english/docsen/docsitems/AGdoc410002.htm.
52. The five recently adopted antiterrorist Conventions include the 1998 Arab Convention on Suppression of Terrorism; the 1999 Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism; the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism; the 1999 OAU Convention on the Prevention and Combating of Terrorism; and the 2002 Inter-American Convention Against Terrorism.
53. These include the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft; the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft; the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; and the 1979 International Convention Against the Taking of Hostages.
54. Art. 12(1) of the Commonwealth Treaty, for example, provides: "The parties may, at the request or with the consent of the Party concerned, send representatives of their competent authorities, including special anti-terrorist units, to provide procedural, advisory or practical aid in accordance with this Treaty".
55. See Corinne A.A. Packer & D. Rukare, "The New African Union and Its Constitutive Act", 96 Am. J. Int'l L. 365 (2002).
56. See Convention of the Organization of the Islamic Conference on Combating International Terrorism, Art. 2.
57. The text may be found at: http://www.oas/xxxiga/english/docs-en/docs-items/AGdoc41oo-o2.htm. (visited on June 4, 2002).
58. See C.L. Powell, Opening Remarks and Q&A With the Press Following OAS General Assembly, June 3, 2002, http://www.state.gov/secretary/rm/2002/10670.htm. (visited on June 4, 2002).
59. Done Feb. 2, 1971, T.I.A.S. No. 8413.
60. For further discussion of the OAS Convention, see J.F. Murphy, "Protected Persons and Diplomatic Facilities", in Legal Aspects of International Terrorism 277, 299-303 (A.E. Evans & J.F. Murphy, eds., 1977).
61. See G. Gilbert, "The 'Law' and Transnational Terrorism", 26 Netherlands Y.B. Int'l L 3, 21 (1995).
62. See Report of the Secretary-General, Measures to Eliminate International Terrorism, UN Doc A/51/336, Sept. 6, 1996, at 42.
63. See e.g., Sengupta, "U.N. Report Says AI Qaeda May be Diversifying its Finances", N. Y. Times, May 23, 2002, at A15, col. 1.
64. See Johnson, Cooper & Shishkin, "Bush Faces Widening Gap With Europe", Wall St. J., May 21, 2002, at Al5, col. 6.
65. S.C. Res. 687 (Apr. 3, 1991), reprinted in 30 I.L.M. 847 (1991).
66. Ibid., para. 32.
67. See e.g., Pattems of Global Terrorism 2001, supra note 9, at 65.
68. See e.g., J.E. Alvarez, "The Once and Future Security Council", 18 The Wash. Q. 3 (1995).
69. See S.C. Res. 1409 (May 14, 2002) and S.C. Res. 1382 (Nov. 29, 2001).
70. S.C.Res. 731 (Jan. 21, 1992).
71. S.C.Res. 748 (Mar. 31, 1992).
72. S.C. Res. 883 (Nov. 11, 1993).
73. S.C. Res. 1192 (Aug. 27, 1998).
74. Statement of the President of the Council, Apr. 8, 1999, S/PRST/1999/22.
75. See P. Finn, "Libyan Convicted of Lockerbie Bombing: Second Man acquitted in Attack", Wash. Post, Feb. 1, 2001, at Al.
76. Al Megrahi v. Her Majesty's Advocate, Appeal No. CI04/01 (J.C. 2002) (Scot.).
77. S.C. Res. 1267 (Oct. 15, 1999), operative para. 2.
78. S.C. Res. 1044 (Jan. 31, 1996), operative para. 4.
79. S.C. Res. 1070 (Aug. 16, 1996).
80. Besides the presentations at the conference, for an analysis of the jus ad bellum dimensions of the use of armed force in Afghanistan, see e.g., T.M. Franck, "Terrorism and the Right of Self-Defense", 95 Am. J. Int'l L. 839 (2001); J.M. Beard, "America's New War on Terror: The Case for Self-Defense under International Law", 25 Harv. J.L. & Pub.Pol'y 559(2002).
81. See e.g., D.E. Sanger, "Bush to Formalize a Defense Policy of Hitting First", N.Y. Times, June 17, 2002, at Al, col. 1; L. Adetunji, "Bush to Lay out First-Strike Policy Against Terrorism", Financial Times, June 11, 2002, at 3, col. 1; and T. Shanker, "Defense Secretary Tells NATO to Beat Terrorists to Punch", N. Y. Times, June 7, 2002, at A8, col. 3.
82. M. Thatcher, "Don't Go Wobbly", Wall St. J., June 17, 2002, at A18, col. 4. For another strong statement favoring the removal of Saddam Hussein, see L.F. Kaplan, "Why the Bush Administration will go after Iraq", The New Republic, Dec. 10, 2001, at 21.
83. See P.H. Gordon & M.E. O'Hanlon, "Should the War on Terrorism Target Iraq? Implementing a Bush Doctrine on Deterrence", in The Brookings Institution, 93 Policy BriefZ (2002).
84. Because of the recent nature of its formulation, there has been relatively little legal commentary on the Bush Administration's announced intention to remove Saddam Hussein from power, if necessary by force. An exception is A.C. Arend, "Iraq: First Make the Case", Washington Post, Apr. 17, 2002, at A15. Also, there are a number of writings on the use of force against terrorism that are relevant to the Bush Administration's plans. See esp. Reisman, supra note 68. Some other writings of note include C. Gray, "From Unity to Polarization: International Law and the Use of Force against Iraq", 13 Eur. J. Int'l L. 1 (2002); M. Byers, "The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq", 13 Eur. J. Int'l L. 21 (2002); N. White & R. Ciyer, "Unilateral Enforcement of Resolution 687: A Treaty Too Far?", 29 Cal. W. Int'l L.J. 243 (1999); J. Lobel, "The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan", 24 Yale J Int'l L 537 (1999); and R. Wedgwood, "Responding to Terrorism: The Strikes Against bin Laden", 24 Yale J. Int'l L. 559 (1999).
85. S.C. Res. 678 (Nov. 29,1990), reprinted in 291.L.M. 1565 (1990).
86. For a brief discussion of this point, see J.F. Murphy, "Force and Arms", in 1 United Nations Legal Order 247, 287-88 (O. Schachter & C.C. Joyner eds., 1995).
87. S.C. Res. 688 (Apr. 5, 1991), reprinted in 301.L.M. 858 (1991).
88. See S.C. Res. 1409 (May 14, 2002).
89. For discussion and citations, see L.F. Damrosch et al, International Law 955-73 (4th ed., 2001).
90. M.J. Glennon, "The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter", 25 Harv. J. L. & Pol 'y 539, 540, and 541 (2002). See also M. J Glennon, Limits of Law, Prerogatives of Power: Intervention After Kosovo (2001); M.J. Glennon, "The Case for Anticipatory Self-Defence", Weekly Standard, Jan. 28, 2002, at 24.
91. Some, but by no means all, of the problems with Glennon's views are identified in C.H. Tiefer's review of Glennon's book, "Limits of Law, Prerogatives of Power: Interventionism After Kosovo", 96 Am. J. Int'l L. 489 (2002).
92. Glennon, "The Fog of Law", supra note 128, at 557.
93. J.B. Moore, 2 Digest of International Law 412 (1906).
94. S.C. Res. 487 (1981).
95. See C. Marquis, "Bush Officials Differ on Way to Force Out Iraqi Leader", N.Y. Times, June 19, 2002, at A7, col. 1.
96. Ibid., at A6.
97. It is worth noting that even the "Iron Lady" has not called for the use of military force against either Iran or North Korea. Thatcher, supra note 114.
98. This paraphrases, of course, the famous quote from S. Johnson, "Depend upon it, Sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully". Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service 74 (S. Platt ed., 1989).