Posted by Howard S. Schiffman on November 20, 2001 at 23:39:49:
In Reply to: armed intervention in a state harboring a terrorist group posted by Lucrezio on November 20, 2001 at 11:18:16:
Dear Lucrezio,
You raise some excellent questions. Regarding whether there are any historical precedents for the action by the US and UK, we can examine several examples, but each might be distinguishable in some way. Recently, the current president of the American Society of International Law, Mr. Arthur Rovine, discussed the rejection by the Security Council in 1985 of Israel's argument that Tunisia should be held accountable for harboring individuals who committed terrorist acts against Israel (Israeli warplanes destroyed the PLO headquarters in Tunis in reliance on this legal argument). Rovine suggests that with Resolution 1368 of September 12, 2001 the Security Council takes a different view from its position in 1985 and basically draws no real distinction between the terrorist perpetrators and the states that harbor them (for a full text of Resolution 1368 see the link on the main page).
Israel's Entebbe rescue in 1976 is another example of armed intervention on the soil of a state giving safe harbor to terrorists. In that event, Israeli citizens who were passengers on a hijacked Air France jet were held hostage by Arab terrorists in Entebbe, Uganda, with the full consent and support of Ugandan President Idi Amin. Although, one can argue that a rescue operation to protect a state's citizens in immediate danger is somewhat different from military operations directed against a state based solely upon a theory of complicity.
In another example of armed intervention, not directed against a state, but rather on the soil of a state as part of a campaign against terrorism, one can examine Israel's war in Lebanon. At the same time, this too might be distinguishable. In that case, Lebanon was in the throws of a violent civil war. Its lack of effective governmental structures may have made outside intervention more likely and justifiable; its ability as an independent state to control the actions of armed terror cells operating within its borders was suspect under the best of circumstances. Israel's decision, however, to go on to Beirut after the missiles threatening its northern border had been silenced was seen by many as a disproportionate response to the threat it faced.
Another interesting historical example along these lines is the famous case, The Caroline. In 1837, British troops from Canada came onto US soil to engage insurgents who were camped there. In the subsequent diplomatic correspondence between the US and Britain, it was agreed that in actions justified by self-defense the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation." Although well before the UN Charter, The Caroline is still considered an authoritative interpretation on the law of self-defense.
Finally, the 1986 US bombing of Libya for alleged Libyan involvement with terrorist bombings in Europe that took the lives of American servicemen is yet another example. This military action by the Reagan government, however, was criticized in that the selection of targets in Libya seemed to bear a rather tenuous relationship to terrorist activity and appeared to be more retributive.
You also seem to question the propriety of the role played by the UK. Even though the UK was not the direct victim of the attack, I suggest its participation is justified on several different grounds. First, as a NATO member it is bound by Article 5 of the NATO treaty which declares that an attack on one NATO member is an attack on all. NATO specifically invoked Article 5 after the September
11th attacks (significantly, it did so for the first time in its history). Second,
UN Security Council Resolution 1368 called upon other UN members to cooperate in the response to the September 11th terrorist attacks. Finally, the UK itself was a victim of the September 11th attacks in that her own nationals were killed in the World Trade Center. Of course, these points are all in addition to its close friendship and alliance with the US.
As I have previously indicated here on the Forum, further development of international law and practice will be necessary to define the legal landscape of asymmetric conflict. Logically, however, global terrorism will almost always depend upon some state support for financing, basing and other safe-harbor. In such cases, it would be counter-productive to consider the sovereignty of the state as a shield to armed attack against terrorists operating on its soil. This is especially so where there is a genuine nexus between the state and the terrorist activity. Where the state participation runs long and deep, the state and its leaders may have rendered themselves legitimate targets of military response. For centuries, the common law legal system has considered those complicit with a criminal act to be fully culpable for that act. We may be witnessing the emergence of that concept in public international law in a most dramatic way.
Thank you for your participation in the InternationalLawHelp.com Forum.
Howard S. Schiffman
Co-Founder and Administrator
www.InternationalLawHelp.com
: About the terrorist attack against the US, and the armed intervention of the US and the UK in Afghanistan, are there any previous cases useful to find out weather itīs lawful or unlawful an attack against a state guilty of harboring the terrorist group?
: How can the intervention of the UK be justified under international law?