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Helen Duffy
Legal Director, INTERIGHTS
October 2001
Interights is very grateful for the insights and comments of its
board members and others, although the views expressed here are those of
Interights only.
A version of this paper with full footnotes is available on request from
Interights.
This paper forms part of a fuller study forthcoming from Interights.
PART I: INTRODUCTION
PART II: PEACEFUL RESOLUTION OF DISPUTES AND USE
OF FORCE
THE OBLIGATION TO RESOLVE BY PEACEFUL MEANS
USE OF FORCE
Self Defence
Unilateral or collective
Conditions for self defence
Armed attack
Anticipatory Self Defence;
Defence of Nationals
State v. individual responsibility for the Attack
Necessity and Proportionality
Security Council takes over
Reprisals distinguished from self
defence
Security
Council: International Peace and Security
PART III STATE RESPONSIBILITY
State
Responsibility in International Law
Effective or Overall Control
A Grey Area? Toleration or Encouragement
PART IV INTERNATIONAL CRIMINAL LAW AND THE
JUSTICE PARADIGM
A. INDIVIDUAL RESPONSIBILITY
CRIMES UNDER
INTERNATIONAL AND NATIONAL LAW
Crimes against humanity
Murder And Inhumane Acts
Widespread or systematic attack
Disjunctive test
Definition
�Widespread�
�Systematic�
Attack against the civilian population
Link to Armed Conflict
War Crimes
Terrorism
Other Crimes: Hijacking; �Common Crime�
DIRECT AND
INDIRECT INDIVIDUAL CRIMINAL RESPONSIBILITY
B. JURISDICTION TO
PROSECUTE
National Courts
International alternatives
C. IMPLEMENTING JUSTICE
PART I: INTRODUCTION (top)
It is in times of greatest strain that legal boundaries are most
important. The shocking attacks of 11 September 2001 (�September
11�) took place, not in a normative void, but against a backdrop of
established international law and developing international practice in
addressing atrocities. So far as the international response to 11
September disregards that law, the implications for human rights are
potentially grave, not only in the present situation but for the future.
Excepting the current situation from the framework of international law
will discredit and undermine the universality of the rule of law, laying
the foundation for future violations.
This paper seeks to set out in brief the law
governing possible responses to September 11, highlighting areas where
the law is unsettled. It does not address the facts, nor advocate any
position beyond the application of international law, as set out above.
The aim is to provide a resource for others grappling with the many
legal questions raised by the current situation. These include: Whether
and in what circumstances is the use of force a permissible response to
these atrocious events? Can individuals be held to account for these
acts, and if so where and under which law? Were the acts of September 11
crimes against humanity? What is �terrorism� and when is a state
responsible for it? Can a state be held to account for the acts of an
individual? If force is used, what protections exist for persons caught
in armed conflict?
The scope of this paper is limited to the legal
framework that ought to govern any response to the September 11 attacks vis-�-vis
those responsible for them. Part II begins with the basic principle of
peaceful settlement of disputes and the prohibition on use of force,
then explores the exceptions to this rule: the circumstances in which
force may be deployed and the conditions imposed on its use. Part III
considers the circumstances in which acts of individuals become
attributable to a state, under the rules governing state responsibility,
and the consequences for such states. Turning to focus in more detail on
the peaceful means of dispute resolution, Part IV considers the model of
international criminal law enforcement. It assesses the crimes that may
have been committed, where jurisdiction might be exercised and how the
criminal law paradigm might be enforced against individuals who are
responsible, directly and indirectly, for the attacks of September 11.
Finally, in forthcoming parts, this paper will sketch out the human
rights and humanitarian law applicable in armed conflict, and the
obligations on states that stem from displacement due to armed conflict.
The human rights repercussions of September 11, which
continue to unfold, undoubtedly go far beyond the issues covered here to
include the violence and discrimination witnessed in the aftermath of
September 11, as well as the civil liberties implications of potential
security measures. These important issues, some of which have been
addressed by others, are not within the scope of this paper.
PART II: PEACEFUL RESOLUTION OF DISPUTES and
USE OF FORCE (top)
THE OBLIGATION TO RESOLVE BY PEACEFUL MEANS
In deciding how to respond to the events of the
September 11, states must bear in mind the obligation, so far as
possible, to resolve disputes by peaceful means. This obligation is
enshrined in Art 2(3) of the UN Charter, which states:
All Members shall settle their international
disputes by peaceful means in such a manner that international peace
and security, and justice, shall not be compromised.
Within the category of peaceful means of dispute
resolution fall traditional methods directed towards addressing state
rather than individual responsibility, which are not addressed in detail
in this paper. Suffice to note that these include arbitration, judicial
settlement, non-adjudicatory methods such as negotiation, good offices,
mediation, conciliation or inquiry, and settlement under the auspices of
the UN or regional groups. The International Court of Justice (ICJ), as
the principal judicial organ of the UN, is empowered to determine
infringements by one state of the rights of another, order provisional
measures to prevent or discontinue such violations, and advise states on
the correct interpretation of the law in the event of uncertainty.
However, its reputation for slow proceedings and lack of independent
enforcement authority are seen to undermine its utility in situations of
urgency.
In addition to these traditional methods, where the
wrong amounts to criminal conduct, individuals may be brought to
justice. As discussed in Part IV, persons who are directly responsible
for a crime or, in certain circumstances, indirectly responsible for
failing to prevent it, can be brought to justice before national courts
or international tribunals for their part in the commission of national
and/or international crimes.
The question of the lawfulness of the use of force,
discussed below, should only arise in circumstances where there are no
peaceful means at the aggrieved states� disposal, or where such means
have been exhausted or found to be ineffective.
THE USE OF FORCE
This section sets out relevant law on the question
whether, and if so in what circumstances, states are entitled to resort
to the use of force under international law. The legality of the use of
force under international law is referred to as the �jus ad
bellum�.
The current rules governing the lawfulness of the use
of force are contained in the UN Charter and customary international
law. The advent of the UN Charter represented a moment of legal
metamorphosis, when traditional legal concepts such as the �just
war� and lawful reprisals were radically altered by the new law of the
United Nations, which greatly restricted the circumstances in which the
use of force can be lawfully deployed.
The general rule, enshrined in Article 2(4) of the UN
Charter, is that the use of force is prohibited. Article 2(4) obliges
all Members of the UN to:
refrain in their international relations from the
threat or use of force against the territorial integrity or
political independence of any State or in any other manner
inconsistent with the Purposes of the United Nations.
According to an ICJ judgment of 1986, this obligation
reflects customary international law, despite the fact that state
practice is �not perfect�, in the sense that States have not
�refrained with complete consistency from the use of force�.�
Certain exceptions to the general prohibition on the
use of force are contemplated in the Charter itself. Leaving aside the
question of humanitarian intervention, which has
not been invoked in the present situation, the
exceptions involve:
-
the use of force in necessary self defence, and
-
Security Council authorisation of force, on the
basis that the Council determines it necessary for the maintenance
or restoration of international peace and security.
Any resort to armed force should fall within one of
these exceptions, as set out below.
Self Defence
Article 51 of the UN Charter provides that:
Nothing in the present Charter shall impair the
inherent right of individual or collective self defence if an armed
attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security�.
As the Charter�s reference to the �inherent�
right of self defence reflects, Article 51 was intended to encompass
customary international law. Where Article 51 lacks specificity, an
understanding of its content can therefore be informed by customary law.
However, customary law continues to exist alongside the Charter and, as
noted below, in limited respects its content may not be identical.
Self defence is an exception to the �general duty
of all states to respect the territorial integrity of other states,�
and the only exception to the prohibition on the use of non-UN
authorized force. As Oppenheim�s International Law notes,
�[l]ike all exceptions, it is to be strictly applied.�
The characteristics of self defence are addressed
below. The essence of self defence, as the term suggests, lies in its
defensive as opposed to responsive or retaliatory objective. This
distinguishes permissible defence from prohibited reprisal. Central to
an assessment of justifiable self defence is therefore an assessment of
the threat to the state, which must be imminent, and an identification
of the source of the threat, to which defensive action must be directed.
As discussed at Part III, where the threat derives from individuals,
legitimate defensive action against states is linked to the question of
attribution and the ability of the state or states to control the
threat. Critically, all measures of self defence must be necessary to
remove or counter the threat, and proportionate to it.
Individual or Collective Self Defence
The UN Charter enshrines the notion that self defence
can be individual or collective. However, the meaning of �collective
self defence� has generated considerable debate. Specifically, it is
disputed whether Article 51 permits only the collective exercise of
individual self defence (by states all of whom are subject to threat of
attack), or empowers other states, whose interests are not affected, to
support a victim state in the exercise of that state�s right of self
defence. The scope of �collective� self defence may be relevant to
the legitimacy of the use of force by states which were not the victims
of the �armed attack� discussed below.
The majority of the ICJ in the Nicaragua case
took the latter view: that a state�s interests need not be directly
affected in order to exercise collective self defence, provided the
injured state requests assistance. One commentator notes that this
corresponds to state practice since 1945. However, that the matter
remains unsettled can be seen from the strong dissenting judgment of
Judge Jennings in Nicaragua, where he distinguishes self defence
from �vicarious defence� and notes that �there should, even in
"collective self defence", be some real element of self�.�
This approach is followed by a number of other commentators.
The recognition of the collective nature of the right
is reflected in various treaties, including the NATO treaty. This treaty
reflects the latter view of collective self defence. Article 5 provides:
The Parties agree that an armed attack against
one or more of them in Europe or North America shall be considered
an attack against them all and consequently they agree that, if such
an armed attack occurs, each of them, in exercise of the right of
individual or collective self defence recognised by Article 51 of
the Charter of the United Nations, will assist the Party or Parties
so attacked by taking forthwith, individually and in concert with
the other Parties, such action as it deems necessary, including the
use of armed force, to restore and maintain the security of the
North Atlantic area.
No autonomous right to use force is, or could be,
contained in the NATO treaty or any other agreement. As this clause
indicates, the lawful use of collective force, including by NATO, is
limited by the UN Charter and, like the individual use of force by any
state, it must satisfy the conditions for the exercise of self defence,
set out below.
Conditions for the Exercise of Self Defence
The following conditions are generally considered to
require satisfaction before resort to force can be justified as self
defence.
Armed attack
The express language of Article 51 contemplates self
defence only �if an armed attack occurs against a Member of the United
Nations�. As such, according to the International Court of Justice,
�[s]tates do not have a right of ... armed response to acts which do
not constitute an �armed attack�. However, as noted below, the
�armed attack� requirement is the most controversial of the self
defence conditions, and highlights a number of areas where international
law is unsettled.
While there is no accepted definition of armed attack
for these purposes, it is generally (though, as noted below, not
universally) considered to be an attack against the territorial
integrity or political independence of a state. It has been said to
signify considerable seriousness and to exclude �isolated or sporadic
attacks�.
In this respect it is noted that recent Security
Council resolutions 1368 and 1373 � which, as discussed below, condemn
the attacks of September 11 and call for specific action short of the
use of force to be taken in response - reiterate the right of �self
defence.� This may presuppose that the events of September 11
constitute an �armed attack� for the purposes of Article 51
(although it should be noted that the resolutions do not in their
operative clauses authorise the use of force on this basis).
Unsettled issues of law regarding the �armed
attack�
Anticipatory self defence
Numerous commentators assert that in certain
circumstances it is illogical or unreasonable to require states to wait
until an �armed attack� has occurred to defend themselves. Despite
the wording of Article 51 to the contrary, some argue that customary law
contains no such armed attack requirement and that anticipatory self
defence against an imminent threat is permissible. Others note the
dangers of pre-emptive strikes and adhere to the view that they are
unlawful, while a third view, found in Oppenheim�s International
Law, is that �while anticipatory action in self defence is
normally unlawful, it is not necessarily unlawful in all
circumstances��
The language of the Caroline case has been
widely quoted as establishing, and at the same time strictly limiting,
those circumstances in which the use of self defence in anticipation
of an attack might be permissible. The test established was one of
necessity that was �instant, overwhelming, and leaving no choice of
means, and no moment for deliberation.� As noted below, the Caroline
�necessity and proportionality� test applies to any action of self
defence, but it is ��even more pressing in relation to anticipatory
self defence than [it is] in other circumstances.�
Defence of Nationals
Also in dispute is whether an attack must be directed
against the territory or political independence of a state, or whether
an attack against a state�s interests or nationals would suffice.
Support in state practice and academic writing for �self defence� to
cover defence of nationals abroad is limited.
While these issues have been critical in other
contexts, they appear to be of less relevance to an assessment of the
lawfulness of a US response to events of September 11, which have
already occurred, and which took place on US territory. They may have
continuing relevance for an assessment of the lawfulness of responses by
other States.
State v. individual responsibility for the attack
A further unsettled issue of greater potential
relevance is whether a state must be responsible for the existing,
ongoing or imminent attack, for the right to self defence to be
triggered. Perhaps because the international law of jus ad bellum,
including self defence, was premised on the assumption that disputes and
resolutions occur between states and those that act on their behalf,
this question remains unsettled.
On the one hand, neither the language of the Charter
nor the logic of self defence (as defending against a future threat)
necessarily require proof of state involvement in an existing armed
attack. Indeed the seminal Caroline case of 1837 involved
non-state actors. Consistent with this, at least one writer has asserted
the view that non-state actors can be responsible for an armed attack
and justify coercive response.
On the other hand, numerous writers specifically
assert that state involvement is necessary, and that, for self defence
to be justified, acts of individuals or groups must be imputed to the
state, in accordance with state responsibility. Following from this, it
has been suggested that coercive action directed against a state without
any responsibility for an existing or imminent attack could constitute
an international wrong against that state. Other writers, and the ICJ
judgment in Nicaragua, appear to assume that a state must be
involved in the armed attack. As one writer notes, �the controversy
centres on the degree of state involvement that is necessary to make the
actions attributable to the state and to justify action in self
defence.� The question of whether (and which) States are responsible
for the armed attack may therefore be relevant to the lawfulness of a
coercive response towards those states.
Moreover, as noted below, any attack in self defence
must be necessary and proportionate, premised on a clear link between
the target of �defensive action� and the threat being defended
against. In addition to questions concerning the armed attack
requirement discussed above, targeting state institutions absent
evidence of their ability to control that threat may conflict with the
necessity and proportionality principles.
Necessity and Proportionality
Necessity and proportionality are universally recognised as
requirements of the law of self defence, and as having been required
even before the UN Charter. The ICJ has found that these are
requirements of self defence under customary law and, implicitly, the UN
Charter.
For self defence to be justified, there must be an
imminent threat of force or a continuing attack. Any response
must be necessary to avert that threat and proportionate
to it. These factors, which (unlike the armed attack requirement) are
prospective as opposed to retrospective, are critical in distinguishing
self defence from reprisals.
Necessity
In the Caroline case of 1837, which is broadly
cited as representing customary law on this point, it was agreed by the
parties that self defence may be exercised only when the �necessity of
that self defence is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation.�
The necessity of force presupposes that all
alternative, peaceful means have been exhausted, are lacking or would be
ineffective as against the anticipated threat. The necessity principle
is therefore linked to the �general principle � whereby States can
only have recourse to military force as a last resort.�
Logically, for measures to be necessary to avert a
threat, they must be capable of doing so. A relevant question in
determining the right to self defence is therefore the effectiveness of
any proposed measure. If measures against those responsible for an
attack will increase the threat then they can hardly be said to be
necessary to avert it.
As the Caroline case shows, necessity may
imply a degree of immediacy. While an immediate response may not be an
effective response, the longer the time lapse, the more tenuous the
argument becomes as to the urgent necessity of unilateral action (as
opposed to collective action under the UN umbrella).
It follows from the necessity (and proportionality)
test, that self defence can only be justified where the targets of
defensive action are clearly identified, such that their contribution to
the threat in question can be properly assessed. For defensive action to
be justified against persons or entities other than those directly
responsible for an attack or imminent attack, the link between the
threat and those targets must be established, as discussed at Part III.
Proportionality
Proportionality and necessity are intertwined, with
proportionality requiring that the force used be no more than necessary
to meet the threat presented. Consistent with the underlying purpose of
self defence, to defend the state from future harm, the proportionality
test should be applied vis a vis the existing or continuing
threat as opposed to in respect of any prior armed attack.
Any purported justification of the use of force for
self defence must therefore be based on evidence of an imminent second
attack or on a continuing attack that needs to be pre-empted. An
appraisal must then be made, in the light of the facts, of the necessity
and effectiveness of the measures proposed to counter that threat, and
whether the measures are proportionate to it.
Security Council takes over
A final requirement for self defence is that any
individual or collective self defence measure must be immediately
reported to the Security Council. While the ICJ found there to be no
requirement under customary law to report to the Security Council, this
requirement is explicit in the Charter itself and hence binding on all
UN members.
Article 51 of the UN Charter provides that:
�Measures taken by Members in the exercise of
this right of self defence 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.
Reflecting this, Article 5 of the NATO treaty, which
provides for the organisation to act �in exercise of the right of
individual or collective self defence recognised by Article 51 of the
Charter of the United Nations,� specifically provides:
�Any such armed attack and all measures taken
as a result thereof shall immediately be reported to the Security
Council. Such measures shall be terminated when the Security Council
has taken the measures necessary to restore and maintain
international peace and security.
Self defence under the Charter, as reflected in the
NATO treaty, is clearly permissible only as a temporary measure pending
Security Council engagement. If measures of force are initially
justified, as necessary and proportionate self defence, they may still
fall foul of the law if they are coupled with a subsequent failure to
engage the Security Council.
Recent Security Council Resolutions 1368 and 1373
reiterate the right of self defence. The obligation of member states to
report any self defence measures to the Council remains, however, on the
basis of which the Council must then decide how to act for peace and
security.
Reprisals distinguished from Self Defence
The legal distinction between self defence - which
consists of necessary and proportionate measures to protect oneself
against a future threat - and reprisals - which are responsive and
largely punitive - is worthy of note. While legitimate self defence is
permitted if it meets the tests highlighted above, reprisal action which
does not amount to self defence is generally considered not to justify
the use of force under the current jus ad bellum in international
law.
In this respect the law changed considerably with the
advent of the UN Charter. While earlier law allowed reprisals in limited
circumstances, the general prohibition on the use of force in the
Charter is on its face clearly inconsistent with retaliatory or punitive
measures of force.
Specific reference to reprisals is found in the
Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States in Accordance with the United
Nations Charter (1970), which provides that �states have a duty to
refrain from acts of reprisal involving the use of force.� While not a
binding instrument, this declaration does provide insight into the
understanding of states as to the law in 1970, and in this respect has
been referred to by the ICJ as relevant to assessing customary law.
Security Council: Maintenance of International Peace and Security
In situations where self defence cannot be justified,
the only legitimate use of force is that authorised by the Security
Council. As noted above, under the Charter, even where self defence can
initially be justified, the lawfulness of the use of force ultimately
turns on subsequent UN Security Council authorisation. The Security
Council has broad powers under Chapter VII of the UN Charter to
determine the existence of any threat to the peace, breach of the peace,
or act of aggression and to take those measures it deems necessary for
the maintenance of international peace and security.
Supplementing the Council�s powers to �call on�
states to comply with its decisions, and its power to take non-coercive
measures to give effect to its decisions, Article 42 confers on the
Security Council unique powers to mandate enforcement action. Article 42
enshrines the broad power to �make recommendations, or decide what
measures shall be taken�to maintain or restore international peace and
security.�
In this way the Charter allows for the Security
Council to invoke the use of force. However, the Security Council�s
power to do so is not limitless; it is constitutionally confined to
taking or authorising force in circumstances where doing so is �necessary
to maintain or restore peace or security.� As with self defence, the
necessity test must be assessed in light of the facts. Consistent with
the principles of the UN as enshrined in Articles 1 and 2 of the
Charter, one might assume that it will not be satisfied unless other
measures not involving the use of force have been exhausted or deemed
ineffective.
In this respect it should be noted that the Council
can mandate a wide array of measures under the Chapter VII rubric of
maintaining peace and security, some involving armed force and others
not, as history attests. In the post cold war period, non-forceful
measures have included establishment of ad hoc criminal
tribunals, the imposition of a war reparations procedure, the
demarcation of a territorial boundary, and attempts to force the
extradition of alleged terrorists.
It should also be noted that one of the contexts in
which the use of force has been mandated was to secure the arrest of
suspected criminals. The unilateral use of force, even for the purpose
of criminal law enforcement, is impermissible, and history indicates
several examples of unilateral enforcement action by states that
involved violation of the territory of other states that have been
condemned. Similar enforcement action, including the power to use force,
if and so far as necessary for the purpose of achieving the objective,
can however be authorized by the Security Council. The possibility of
invoking Security Council powers for the enforcement of criminal law is
addressed at Part IV below.
If the Council reaches a decision, including under
Chapter VII, all members of the UN are required by Article 25 �to
accept and carry out� those decisions. Article 43 also commits all
members �to make available to the Security Council, on its call and in
accordance with a special agreement or agreements, armed forces,
assistance, and facilities, including rights of passage, necessary for
the purpose of maintaining international peace and security.�
In accordance with practice, the Security Council may
decide not to take the forceful action itself, but may nominate others
to do so. Numerous situations have arisen where states, regional
organizations or �coalitions of the willing� have been authorised to
take �all necessary measures� to give effect to the Council�s
decisions. For example, Resolution 678 of 19 November 1990, one of many
Security Council Resolutions handed down during Gulf Conflict, stated
that: �the Security Council authorises member states cooperating with
the government of Kuwait to use all necessary means to uphold and
implement Resolution 660.�
The language of Resolution 678, above, which was
broadly considered to authorise the use of force, contrasts with the
language of the resolutions that have emerged in relation to the events
and aftermath of September 11. Both Resolutions 1368 (2001) of 12
September 2001 and Resolution 1373 (2001) of 28 September 2001
classified the situation as a threat to international peace and
security. Moreover, while the first resolution called on states to take
measures to cooperate to bring to justice those responsible, the latter
�decided� concrete, wide ranging measures that member states are
therefore obliged to take. In more vague terms, Resolution 1373 also
�called on� states to take other steps to prevent and suppress
terrorist attacks. However, in its operative clauses it stopped short of
authorising the use of force or �all necessary measures� to be taken
as it has on previous occasions. The Council did however establish
committees to report back to the Council, and expressed willingness to
take further action if this proves necessary. The legitimacy of force
therefore must ultimately depend on the Security Council subsequently
agreeing to take, or to authorise, such force.
The role afforded to the Security Council by the UN
Charter has been subject to criticism since its inception on the
grounds, inter alia, of abuse of the veto power and consequent
Security Council inertia, and has led some to call for a more expansive
view to be taken of self defence. However, while these concerns have not
disappeared, they are diminished in a post cold war era of relative
Security Council activism.
In the particular situation at hand, if international
consensus is in fact sufficiently cohesive, the inertia that has so
often been caused by lack of political will and division in
international opinion (at least of the permanent members) may not arise.
The consensus on recent Security Council Resolutions may support the
view that the Security Council is able now, if ever, to take the
decisive measures it deems necessary for peace and security.
PART III: STATE RESPONSIBILITY
(top)
The question of state responsibility for the events of
September 11 has caused much speculation and debate. It permeates the
discussion of lawful responses to September 11, and as to against whom any
response should be directed.
The question is more relevant to some of the responses
discussed than to others. The peaceful resolution of disputes between
states by negotiation for example obviously depend on the de facto
authority of the government to negotiate and ultimately deliver on
agreements reached. Critically, state responsibility may also be relevant
to the use of force and to determining against whom force might lawfully
be deployed (Part II above). For example, on one view, a state must be
involved in an on-going or imminent attack in order to justify the use of
self defence against that state. By contrast, individual
criminal responsibility (Part IV below) is largely unaffected by whether a
state is responsible, as international criminal law does not recognise
official immunities for egregious international crimes, although
state involvement may be relevant to the question whether war crimes were
committed.
State Responsibility in International Law
States can be responsible for international wrongs,
either directly or vicariously.They are directly responsible
where the wrong occurs at the hand of state officials, in which case the
act amounts to an �act of state.�As explained below, where
private individuals or groups with no �transparent relationship� with
the state are responsible, the question is whether the state exercises
�effective control� over their actions. Some question whether
encouragement or even passive acquiescence in wrongs is sufficient to
render a state responsible, but the law appears to indicate that this
depends upon the ability of the state to prevent or control the wrong in
question. It is well established that states are not strictly responsible
for wrongs orchestrated on or emanating from their territory.
As one commentator has noted, �a transparent
relationship between terrorist actors and the state is predictably
uncommon.�Thus, states may be legally responsible although
not formally linked to perpetrators, provided the legal test is satisfied,
as described below. As responsibility turns on a complex evaluation of the
facts, the sort of fact scenarios in which the test has been deemed
satisfied, and when not, are also noted.
Effective or Overall Control
According to the International Court of Justice in the Nicaragua
case, the test is whether the state or states in question exercised
�effective control� over the wrongdoers.
In Nicaragua, the United States benefited from
the relatively high threshold established by the Court, which found that
it could not be held responsible for the acts of the Nicaraguan Contras.
Although the Court found the US to have helped finance, organize, equip,
and train the Contras, this level of involvement did not �warrant(s) the
conclusion that these forces [were] subject to the United States to such
an extent that any acts they have committed are imputable to that
State.� The United States was liable for other activities
where there was proof that they were the result of direct action on the
part of the United States military or foreign nationals in its pay, but
not in respect of the support given to the Contras. This aspect
of the judgment is controversial, as seen from dissenting judgments
(Jennings and Schwebel) and subsequent commentators, some of whom feel
that such a high degree of state assistance should suffice to impute
responsibility. Nonetheless the Nicaragua �effective control�
test remains the authoritative source on the point.
A similar test has been approved and applied more
recently by the ICTY. The tribunal found that different tests
applied in respects of private individuals who are not militarily
organised and paramilitary or similar groups, where the test was whether
the state exercised �overall control� over their activities.
However, the tribunal noted that where the �controlling State� is
not the State where the armed clashes occur, �more extensive
and compelling evidence is required to show that the State is genuinely in
control of the units or groups not merely by financing and equipping them,
but also by generally directing or helping plan their actions....�
In another case before the ICJ, the Court noted that
subsequent approval or endorsement of wrongful acts may provide evidence
of state responsibility. The ICJ in the Tehran Hostages case found
that while the responsibility of Iran for the original takeover of the US
Embassy in Tehran in 1979 was not proved, subsequent encouraging
statements in the face of incidents including hostage taking by students,
created liability on the part of the state. This case is not,
however, inconsistent with the effective control test, as the Iranian
state was considered capable of putting a stop to the situation and
instead chose to endorse it. A significant question arising from these
facts and the effective control test is therefore the extent of a
state�s capability to prevent.
The rejection of strict liability for a state on whose
territory crimes are orchestrated has been long established, since before Nicaragua.
As the ICJ noted in the Corfu Channel case, it is impossible to
conclude �from the mere fact of the control exercised by a State over
its territory and waters that that State necessarily knew, or ought to
have known of any unlawful act perpetrated therein nor that it should have
known the authors.� It would, moreover, be anomalous to suggest a strict
liability test in the current situation, potentially implicating the
responsibility of the US or Germany for those who trained and organised on
their territories. Likewise, simple knowledge of suspected terrorist
activities, which could potentially implicate many states for failure to
prevent, would not itself be enough.
A Grey Area? State Toleration or Encouragement
States are not then strictly responsible for
international wrongs emanating from their territory but they are
responsible for acts of individuals or groups over whom they exercise
�effective control�. It has been suggested however that a difficult
�grey area� remains, and that �the issue becomes more
difficult when a state, which has the ability to control terrorist
activity, nonetheless tolerates, and even encourages it.� This
reflects international resolutions that urge states to refrain from
�acquiescing in or encouraging� terrorist activity. Nevertheless,
it would appear that �the traditional view is that state toleration or
encouragement is an insufficient state connection�� and
that the Nicaragua �effective control� test remains a valid
statement of the law.
It is ultimately an issue of fact �whether the
individuals concerned were sufficiently closely associated with the state
for their acts to be regarded as acts of the state rather than as acts of
private individuals.� >In the light of current law, including Nicaragua,
considerable proof of state involvement would be necessary to demonstrate
state responsibility under international law.
PART IV: THE JUSTICE PARADIGM:
INTERNATIONAL CRIMINAL LAW (top)
A. INDIVIDUAL RESPONSIBILITY
To the extent that the events of September 11
constitute crimes under international - or relevant domestic - law, those
responsible, directly or indirectly, are susceptible to international
and/or domestic investigation and prosecution.
While individual criminal responsibility under
international law is not a new phenomenon, in recent years a system of
international justice, with national and international components, has
crystallised from the experience of addressing atrocities on the domestic
and international levels. The work of the ad hoc international
criminal tribunals for the former Yugoslavia and Rwanda (�ICTY� and
�ICTR� or �the ad hoc tribunals�), the elaboration by
consensus of the International Criminal Court (�ICC�) Statute and
annexes and innovations in domestic law and practice have been the
principal contributors. As a result, the international community is now
armed with a detailed body of substantive and procedural international
criminal law and a range of jurisdictional options to implement it.
The experience of, among others, the ad hoc
tribunals demonstrates the viability of prosecutions involving complex
criminal networks, including against those in the highest echelons of
power and in respect of massive crimes. While investigations of crimes
such as those witnessed on September 11 are a considerable task, crimes of
greater scale and most likely complexity have been investigated and
successfully prosecuted before, and there can be little doubt that with
international political will the same is achievable in the present
context.
This part highlights certain crimes that may have been
committed on September 11, the courts or tribunals that have or might be
afforded jurisdiction for those crimes and mechanisms that exist to ensure
the enforcement of international criminal law.
Crimes under International and National Law
Crimes under international law are particularly serious
violations of norms that are not only prohibited by international law but
also entail individual criminal responsibility. They can be based on
customary law or a binding treaty.
Customary law is binding on all states and, so far as
criminal responsibility is concerned, on all individuals. Among the
sources that can be looked to for the purposes of identifying the content
of customary law in this field are the jurisprudence of international ad
hoc tribunals, the ICC Statute and draft annexes and national court
practice.
Treaties by contrast are only binding on those states
party to them. Although treaties bind states, they may also, as in the
case of treaties governing international criminal law, affect individuals.
Consistent with basic principles of legality in criminal law, care must be
taken to ascertain whether the treaty in question was �binding� on the
individuals alleged to have been involved in criminal conduct. The
principles of legality and non retroactivity require that the conduct was
criminal, under treaty or customary law, at the time of its commission.
This part of the paper will highlight crimes that may
have been committed on September 11. It will focus particularly on crimes
against humanity which are prohibited and which all states may prosecute
under customary law. It will also discuss the question of �terrorism�
and its status under international law. While it mentions war crimes,
hijacking and other domestic crimes, it does not purport to address the
full range of national and international crimes that may have been
committed.
Crimes against Humanity
�Crimes against humanity� consist of certain acts -
such as murder, torture or inhumane acts - which form part of a widespread
or systematic attack directed against the civilian population.
Although �crimes against humanity� first appear as
a concept in the Nuremburg Charter of 1945, their prohibition in
international law long predates the Second World War. It is now well
established that crimes against humanity are crimes under customary
international law, hence prohibited by all persons irrespective of
nationality or national laws.
Unlike many other international crimes, such as war
crimes or terrorism, this group of crimes has never been the subject of a
binding convention to which reference can be made to determine specific
content. However, regard can be had to the ICC Statute, the first treaty
to set out comprehensive definitions of these crimes, other earlier
international instruments, as well as ample jurisprudence emanating from
prosecutions for crimes against humanity.
Key elements of the definition of crimes against
humanity are referred to below.
Murder and inhumane acts
It is uncontroversial that murder and inhumane acts are
among the acts that may amount to crimes against humanity under customary
law. Murder is a familiar term in domestic laws, and has been held in an
international context to consist of killing with �an intention on the
part of the accused to kill or inflict serious injury in reckless
disregard of human life.� �Inhumane acts,� a broad term found in
various international and domestic laws, covers the infliction of severe
bodily harm and serious �cruel treatment.�
Widespread or systematic attack
The distinguishing feature of crimes against humanity
is that they must be �widespread or systematic�. While this threshold
has not always been considered necessary for crimes again humanity, recent
developments have confirmed that it is now a requirement, and the majority
of writers appear to accept that under current international law crimes
against humanity must be widespread or systematic.
It should be noted that the conduct of the particular
perpetrator need not be �widespread or systematic.� Even a single act
by a perpetrator may constitute a crime against humanity, provided it
forms part of a broader (widespread or systematic) attack or campaign.
Conversely, the acts in question may themselves constitute the attack;
there is no requirement of a separate or pre-existing attack.
A disjunctive test
The requirement that the occurrence of crimes be
widespread or systematic is a disjunctive one. The attack need not be both
widespread and systematic. Either of the two alternatives suffices,
although �in practice, these two criteria will often be difficult to
separate, since a widespread attack targeting a large number of victims
generally relies on some form of planning or organisation.�
Definition of widespread or systematic
There is no one source that identifies a precise
definition of these terms under customary law. The ICC instruments do not
define the terms. However, they have been considered and applied in
numerous cases by the ICTY and ICTR. As formulations vary somewhat within
the jurisprudence, perhaps reflecting in part the particular factual
circumstances to which they were applied, the key aspects of that
jurisprudence are set out below.
It is clear that both the concepts �widespread� and
�systematic� are intended to import a considerable element of
seriousness, and to �exclude isolated or random acts.�
�Widespread�
The �widespread� requirement may be satisfied in a
range of ways. Most commonly, the term is understood to refer to the scale
of the crime. An earlier formulation of this criterion referred to
�large scale� instead of �widespread�, defining it as �meaning
that the acts are directed against a multiplicity of victims.� Following
this approach, the ICTY has stated that �widespread�refers to the
number of victims,� and has defined the term as meaning acts committed
on a �large scale� and �directed at a multiplicity of victims.�
Consistent with this, the term as used in the ICC Statute has been
described as follows: �[t]he term widespread requires large-scale action
involving a substantial number of victims��
While scale will often involve a series of acts, it
need not, as �widespread� refers also to the magnitude of the
crime. One single egregious act of sufficient scale or magnitude may
suffice. As the ICTY noted, a crime may be �widespread� by the
�cumulative effect of a series of inhumane acts or the singular effect
of an inhumane act of extraordinary magnitude.�
The ad hoc tribunals� jurisprudence therefore
indicates that �widespread� does not necessarily imply geographic
spread. This is supported by a finding in one case that crimes against
humanity had been committed against part of the civilian population of
just one town.
�Systematic�
With regard to the requirement of �systematicity,�
several cases have held that this can be satisfied by the repeated,
continuous nature of an attack, a �pattern� in its execution or the
existence of a plan or policy behind an attack. Consistent with this, it
has been noted that the term �systematic� in the ICC Statute
��requires a high degree of orchestration and methodical planning.�
In one recent decision, the ICTY drew these factors
together, noting that any of the following may provide evidence of a
systematic attack: (1) the existence of a plan or political objective; (2)
very large scale or repeated and continuous inhumane acts; (3) the degree
of resources employed, military or other; (4) the implication of
high-level authorities in the establishment of the methodical plan.
Attack against the Civilian Population
The ICC Statute imposes an additional threshold not found
elsewhere in international law. As such, it is unlikely that this
definition would be considered customary international law and it may not
be essential for an assessment of whether the events of September 11
amount to crimes against humanity.
If, however, the ICC formulation is taken as the
appropriate one, then the incidents would also have to be deemed to
involve a �course of conduct�, �multiple acts� and be pursuant to
a �policy� behind the attacks, in addition to being either widespread
or systematic. Even according to this definition, crimes of
humanity do not depend on the acts being attributable to a State. If the
ICC standard is accepted, however, there must be a �state or an
organisation� with a policy to commit an attack. Note however that the
�policy� need not be formalised and may be inferred from all the
circumstances.
Finally, it is well established that the attack must be
directed against the civilian, as opposed to a military,
population. Different considerations may therefore arise as between
clearly civilian targets, such as the World Trade Center in New York, and
those that may have a military role, such as the Pentagon.
Link to armed conflict
Crimes against humanity can be committed in times of
armed conflict or in times of �peace�. While crimes against humanity
originated as an extension of war crimes, the idea that such crimes can
only be committed in times of war has been unequivocally rejected through
developments since Nuremberg.
War Crimes
This section is relevant to the question the events of
September 11 might amount to war crimes, otherwise known as serious
violations of the laws and customs of war.
As the name suggests, war crimes must take place in war
or armed conflict. Prosecution of those responsible for September 11 for
war crimes, unlike for crimes against humanity, would have to be premised
on these events amounting to the initiation of armed conflict. The ICTY
definition of �armed conflict� holds that:
�an armed conflict exists whenever there is a
resort to armed force between States or protracted armed violence
between governmental authorities and organized armed groups or between
such groups within a State. International humanitarian law applies
from the initiation of such armed conflicts�
While this definition was thought to be broad-reaching,
the events of September 11 do not fit readily into either category of
conflict. If a state is responsible for the resort to armed force - which
would have to be established according to the �effective control�
test- then September 11 may amount to the initiation of international
armed conflict between states. If so, the acts of violence may amount to
grave breaches of the Geneva Conventions, which consist of certain very
serious crimes, including �wilful killing�, committed in international
armed conflict against protected persons such as civilians, which any
state may prosecute.
If state control is not established, the question
arises whether this is an �internal� conflict between governmental
authorities and groups within a state. If, in the circumstances, the
conflict is not considered to emanate from groups �within a state�
(and not therefore to amount to an �internal� conflict), it may be
that the events of September 11 highlight a new hybrid type of armed
conflict - between organised groups and foreign States. The law governing
such a scenario is unsettled. It is unclear, for example, whether such
armed violence would have to be �protracted� - as set down by the ICTY
to distinguish internal conflicts from civil unrest - in order to
distinguish conflict from isolated attack. As it has before, humanitarian
law may evolve to encompass this hybrid type of conflict.
If there is an armed conflict, as opposed to a lesser
level of sporadic violence, the basic principles of international
humanitarian law, including accountability, must apply. War
crimes are those serious violations of international humanitarian law
which entail under customary or conventional law the individual criminal
responsibility of individuals. They include crimes relating to the conduct
of hostilities, such as deliberate attacks on civilians or the use of
weapons that cause unnecessary suffering, and crimes against protected
persons, such as torture or cruel treatment carried out against person
taking no part in hostilities.
Navigating these unchartered waters may, in any event,
be unnecessary if other crimes were committed, such as crimes against
humanity (defined above) or crimes under domestic law, and an appropriate
forum has jurisdiction. One obvious issue that deserves consideration in
the light of September 11 is terrorism, addressed below.
Terrorism
There is no accepted definition of �terrorism.� The
issue has long been the focus of international attention, resulting in a
proliferation of agreements relating to the issue. However, international
consensus has never been achieved on a precise definition of what
constitutes �terrorism� and who can be responsible for it. As the
Special Rapporteur on �Terrorism and Human Rights� has noted in her
report of 27 June 2001, the dispute over what constitutes terrorism
reflects in part the hackneyed saying that one person�s terrorist is
another�s freedom fighter, as well as the intractable question of which
actors can be responsible for terrorism � and specifically whether it
can include state actors.
Consistent with the cardinal principles of legality and
certainty in criminal matters, it is difficult to see how terrorism, as
yet undefined, could be said to constitute a crime of customary
international law, justifying criminal prosecution on that basis. However,
certain commentators do assert that customary law prohibits terrorism,
despite differences as to definition, and confers universal jurisdiction
to penalise and prosecute the crime.
Terrorism is defined as a crime in certain treaties
that are binding on the states party to them and which, in certain
circumstances, oblige particular states parties to exercise jurisdiction
over the crimes covered. There are in fact no less than nineteen
international conventions dedicated to terrorism in various forms. Were a
prosecution to proceed solely on the basis of a treaty, complex issues may
arise, including questions of how that treaty became applicable to the
individual. However, where the treaty has been incorporated into domestic
law of a state with jurisdiction, such as the state on whose territory a
crime is committed, this issue is avoided. The United States has enacted
such legislation, for example in the Antiterrorism Act of 1990, which, it
has been suggested, could provide a basis for prosecution for
�terrorism� offences in the US.
Finally, it is noted that terrorism was eventually
omitted from the ICC�s jurisdiction on the basis of the lack of an
accepted definition. However, �terrorist� conduct may still amount to
a crime against humanity or any other crime in the Statute, provided it
meets the criteria set down for those crimes, as discussed above.
Other Crimes:
Hijacking
Other treaty crimes may also be relevant and, as with
terrorism, provide a basis for prosecution. Specifically, there are a
number of conventions relating to hijacking, some of which oblige state
parties to exercise jurisdiction over suspects in specified circumstances.
Like the terrorism conventions, certain of those relating to hijacking
have been incorporated into United States domestic law and the U.S. has in
the past exercised jurisdiction in a number of cases on the basis of those
treaty provisions as incorporated into domestic law.
Common Crimes
Finally, it should be noted that murder, whether as a
crime against humanity or not, is a crime in most domestic jurisdictions,
including the United States. While perhaps not reflecting the egregious
nature of the events of September 11, it remains an option to prosecute in
a domestic court as a common crime. As noted in the discussion on
universal jurisdiction, below, as a crime that attracts such jurisdiction,
all states should be able to exercise their jurisdiction over the events
of September 11 simply on the basis of the prosecution of mass murder.
Direct and Indirect Individual Criminal Responsibility
If the events of September 11 amount to crimes under
international law, then the perpetrators, direct and indirect, can be held
responsible. Under international criminal law, direct responsibility
attaches to those who order, plan, instigate, aid and abet, or contribute
by acting in �common purpose� or in a common criminal enterprise with
others for the commission of a crime. Those directly responsible are not
only those who hijacked the planes, who killed themselves in the process,
but also the full networks of persons who assisted in various ways. While
national laws vary considerably as to principles of criminal law and
terminology used, they tend to encompass a similar range of forms of
participation incurring criminal responsibility.
Much attention has been focused on the need for a
response to the September 11 events that reaches those �behind the
attacks� including those at the highest levels. In this respect, it is
important to note that in law certain people may be responsible not only
for what they do � such as ordering or instigating crimes - but also in
certain circumstances for what they fail to do under the doctrine of
superior responsibility. A military commander or a civilian in a position
of authority may be liable if he or she knew or should have known that the
crime would be committed and failed to take necessary and reasonable
measures to prevent it. This form of liability applies not only to those
with formal legal authority, but also superiors according to informal
structures, such as paramilitary leaders.
As the experience of the ICTY and ICTR testifies, this
can be an extremely important basis of liability, where access to evidence
of high level orders that would link those in the highest echelons with
the crime in question proves elusive.
B. JURISDICTION TO PROSECUTE
International law and practice point to numerous
possible venues for the investigation and prosecution of a potential
September 11 case.
National Courts
International law recognises the right of certain
states to exercise criminal jurisdiction. These are principally the state
where the crime occurred, the state of nationality of suspects, the state
of nationality of the victims and, for certain serious international
crimes, all states, based on universal jurisdiction.
Consistent with these rules, the courts of the United
States may provide the natural forum for prosecution, based on the
fundamental principle that jurisdiction can be exercised by the state on
whose territory a crime is committed. Many other states also lost
nationals, in particular in the World Trade Centre attack, on the basis of
which international law allows them to exercise passive personality
(victim nationality) jurisdiction.
Moreover, if the events of September 11 amount to
crimes that carry universal jurisdiction, under international law any
state may prosecute those crimes. Customary international law has long
provided for any state to exercise jurisdiction over crimes such as
murder, crimes against humanity, war crimes. In addition, certain
international agreements have provided for jurisdiction over these or
other crimes. Other treaties, such as those relating to hijacking and
terrorism, do not embrace full universal jurisdiction but do anticipate
prosecution by states beyond the territorial state, such as the state of
the victim�s nationality.
A growing number of states have universal jurisdiction
laws in place, to ensure that they can exercise this form of jurisdiction.
National courts have increasingly relied on jurisdiction to prosecute a
range of crimes under international law, including crimes against humanity
and genocide.
Moreover, states that do not yet have such legislation
in place could even now enact legislation to confer universal jurisdiction
and could prosecute in respect of September 11, provided the crimes
existed at the date of commission. The cardinal human rights principle of
legality and non-retroactivity in criminal law requires that the conduct
be criminal at the date when it was carried out, not that jurisdiction
over the conduct be established at that time.
Important developments in the practice of universal
jurisdiction, of which the Pinochet case is only one, indicate that
universal jurisdiction is increasingly a real international jurisdictional
possibility, particularly where the territorial state cannot or will not
exercise jurisdiction.
International Alternatives
If however, national courts do not want or are not able
to assume the role of investigating and prosecuting, recent history
provides several alternative models for investigation or prosecution of
international crimes. It should be noted that the ICC is not one such
model as the ICC Statute is not yet in force and the Court will, in any
event, have no retroactive jurisdiction. As can be seen from the
following, however, there is no shortage of possible venues for justice in
this case.
The Security Council, under Chapter VII of the UN
Charter has broad powers to take measures for international peace and
security, as discussed previously, in Part II. In 1994 it exercised those
powers to establish two international criminal tribunals for Rwanda and
the former Yugoslavia. In the unlikely event of this proving necessary, it
would be possible for the Security Council, which has expressed
willingness to act in the current situation, to establish a tribunal or,
it has been suggested, to extend the jurisdiction of an existing tribunal.
International experience also points to several hybrid
models of quasi-international justice that have emerged from negotiation
and agreement. Recently, an agreement between the UN and Sierra Leone lead
to the Statute of the Special Court for Sierra Leone, which combines
elements of national law, procedure and personnel with international
components. The approach of the Nuremberg tribunal suggest that several
states can together establish an international tribunal by agreement,
conferring on it the power to do �what any one of them might have done
singly,� namely prosecute on the basis of one of the grounds of
jurisdiction mentioned above.
While perhaps an unlikely model, the Lockerbie
case is also potentially relevant. The unusual model that emerged from the
diplomatic impasse over the refusal to extradite suspects in the 1988
bombing was of a national court sitting on foreign soil, applying mostly
national law, with the exception that there was no jury. This arose in
response to the alleged inability of the Scottish courts to dispense fair
and impartial justice in the particular case. This scenario could
ultimately become relevant if, for example, a case were made as to the
inability of the US jury system to handle this matter, given the strength
of national sentiment.
C. IMPLEMENTING JUSTICE
The international criminal law enforcement model
depends, naturally, on international enforcement. International
cooperation with any anticipated judicial forum is essential for the
purposes of, for example, arresting suspects, freezing assets and securing
evidence.
A complex body of bilateral and multilateral agreements
governs cooperation between states in matters of extradition and mutual
assistance with criminal investigations. According to normal extradition
agreements and practice, a request for extradition would be accompanied by
an indictment or accusation and a showing of prima facie evidence.
Absent such a procedure, a request for extradition could not be said to
have been made. Even under the ICC Statute, while states are clearly
obliged to cooperate with the court by transferring suspects, it is
anticipated that an indictment and arrest warrant, containing �a concise
statement of the facts that are alleged to constitute those crimes,�
will be presented to the requested state.
It has to be noted that extradition regimes are
complex, and often frought with obstacles and delays. For example, there
are several grounds for refusing to extradite suspects and constitutional
problems in certain states that may limit the ability to cooperate. These
procedures, some of which protect important human rights, may in certain
cases impede speedy justice but they are the ones provided for inter-state
cooperation in current international law.
In certain circumstances, states may consider that such
�cooperative� procedures are wholly inapplicable, for example where
the crimes are believed to be state sponsored (as addressed by the ICJ in Lockerbie),
or where the urgency of the situation demands swift action. If so, another
method of enforcement can be invoked by the Security Council. The Council,
whether or not it actually establishes the court that would exercise
jurisdiction, can circumvent obstacles to speedy transfer of suspects by
authorising enforcement action, where necessary through the use of force.
Force employed must always be no more than necessary to achieve the
objective, in this case the apprehension of suspects. The enforcement of
arrests by the ICTY provides an example of Security Council authorisation
for NATO enforcement.
The enforcement of international law is never perfect,
and international criminal law is no exception. However, the unprecedented
international consensus generated by the current situation, if directed
towards the apprehension of suspects in relation to September 11, may
provide the basis for the effective collective enforcement of
international criminal law in this case.
Criminal justice enforcement represents more than a
mechanism to address atrocities, it also reflects obligations under
international law. International criminal law grew from the obligations
incumbent on states under human rights law, requiring the investigation
and prosecution of those responsible for serious crimes, with a view to
establishing the truth underlying atrocious events and to provide justice
and reparation.
As noted at Part II, states are obliged not to resort
to force where peaceful mechanisms exist and are at their disposal.
International criminal justice may provide such a mechanism.
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