The Attack on the World Trade Center: Legal Responses The Law after the Destruction of the Towers Pierre-Marie Dupuy * Discussion Forum Since the destruction of the Twin Towers in Manhattan, very little reference has been made in the Western media, either in Europe or America, to the law, other than to criticise its lacunae and deficiencies. There is a risk of giving yet more credence to the already widespread idea that, at the international level, the law serves little or no purpose once things get serious. International law, however, like the structures underpinning its application, and especially the UN, is at once, in its content as much as its results, the expression of the political will of States and the means of regulating the implementation of that will. This law does, indeed, suffer considerable lacunae; one need only point to the incompleteness of the conventional international arsenal to organise the struggle against terrorism. The shock of 11 September should cause a re-examination of a body of norms conceived solely on the basis of relations between States, relations which increasingly overlap in the face of the transnational dimension of international relations, including its terrorist manifestations. Be that as it may, given the prospect of vengeful reprisals announced in the speeches of President George W. Bush, it seems useful to recall that positive international law already consists of a set of immediately applicable rules, and it undoubtedly has a decisive role to play in the management of the crisis sparked off by the events of 11 September last. This role appears on at least three levels: that of the qualification of the crisis, that of the possible responses that the crisis is likely to provoke, and that of the prevention of its replication or repetition. As far as the qualification of the crisis is concerned, all internationalists agree on one point: that this is not a war! At least, not in the technical sense of the term. In classical international law, war presupposes an armed confrontation between two or more States; it is subject to the rules regarding belligerence that fix the conditions for the opening of hostilities, the modalities of their suspension or their eventual cessation, and so on. So this is not a war. But, in truth, this fact is of little importance, and for at least two reasons: the first is that, according to common Article 2(1), the four Geneva Conventions of 12 August 1949 on humanitarian law are intended to be applicable `to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them'. War is no longer declared; it is simply made. The second reason is that the armed conflict that is currently being prepared seems increasingly to have identified a target: Afghanistan. American strategy has understood very well that it was initially, on purely military grounds as well as part of the psychological war, going to be more effective to territorialise the conflict and bring it nearer to a standard confrontation between States-the US and, eventually, its allies against Afghanistan-rather than to concentrate on looking for the needle, Bin Laden, in the terrorist haystack (even if the preparations also allow for that possibility). This is not a war, but it could quickly resemble one by becoming, in part, an inter-state armed conflict. Moreover, and this is of real importance in terms of the qualification of the crisis, Security Council Resolution 1368, adopted the day after the attack on the twin towers, makes a decisive contribution by declaring that the terrorist attacks constitute, like any act of international terrorism, a `threat to international peace and security'. This means that the international response moves into the realm of the application of Chapter VII of the United Nations Charter, by virtue of which the Security Council, as it often did during the early 1990s at the time of and immediately after the Gulf War, can adopt resolutions binding on all UN Member-States (that is to say, nine-tenths of all the states in the world). Far from marginalising the UN, the above-mentioned resolution thus demonstrates quite the reverse, that the UN aims to play a decisive role in the management of a crisis that it would be wrong to consider as falling, legally-speaking, under the exclusive control of the United States. This situation has even been confirmed and consolidated on 28 September by Resolution 1373, which was explicitly adopted by the Security Council "acting under Chapter VII of the Charter of the United Nations". This Resolution, unanimously adopted, reaffirms not only the unequivocal condemnation of the terrorist acts that took place on 11 September, but also their qualification as a threat to international peace and security. It illustrates further the unanimous desire of the members of the Security Council not only to associate the U.N. to the international strategies to combat international terrorism but to place these strategies under the authority of the World Organisation. * One touches here on the second area in which international law plays an important role: that of the regulation of any responses to the terrorist acts perpetrated on American soil. Two points are particularly noteworthy. The first is that, if one moves towards an armed conflict, this has an important legal consequence, namely that the international law of armed conflict itself becomes applicable to the situation. The Geneva Conventions were already mentioned, which constitute today the epicentre of the body of rules which aims to place limits on the ability of the States-Parties involved in a conflict to use the methods and means of war of their choice, without regard to the people and property affected by the conflict. The States-Parties to these conventions constitute an overwhelming majority of all the states in the world. So much so that, even taking into account the fact that the United States is not a party to the Additional Protocol I to these four conventions relative to the protection of the victims of international armed conflicts, it is generally bound by the rules set out in the Geneva Conventions. Amongst them, the jurisprudence of the International Court of justice has identified the `cardinal' principles of humanitarian law, of which certain, if not even all, possess an `intransgressible' character. Thus, in particular, one may cite the distinction between civilian and military targets and the protection due to civilian populations. Even if in certain cases undermined by certain Allied practices, especially by the Americans, during the Kosovo conflict in the spring of 1999, these rules benefit in principle from universal recognition. Given the prospect of air strikes or intervention by ground troops in a country where the Taliban are more often than not intermixed with a civilian population, itself worn down by more than twenty years of continuous war, it is vital to remember this fact. The test of proportionality should also be satisfied, as it must be determined in relation with the legal purpose of any military action in Afghanistan which should be not to "punish" the Talibans' government but to destroy military objectives used by terrorists and try to get rid of their leaders. The second point regarding the regulation of the responses to the terrorist attacks relates to the exercise of legitimate individual and collective self-defence. Whether qualified as `naturelle' in the French text, or as `inherent', in the English version, the right to self-defence derives from a text of positive law: Article 51 of the UN Charter. Now, to understand the American President, or certain of his advisors, one begins to feel that this text, to which the already-mentioned Security Council Resolution refers, could begin to be seen as amounting to a blank cheque, giving the United States carte blanche to do, alone, what it likes as and when it likes. The practice of the right to self-defence certainly demonstrates that the terms of Article 51 are often interpreted in a rather flexible way, to say the least, by those who seek to rely on it, in all latitude. Nevertheless, it remains the case that if a country's commitment to the rule of law also means something at the international level, the exercise of the right to legitimate self-defence does not preclude intervention by the UN Security Council. On the contrary, it actually requires it. Immediately advised of any defensive measures taken by the aggressed State, measures of legitimate self-defence in no way affect the competence of the Council to intervene `at any moment' in the management of the crisis. Here again, the reference made by the Security Council to self-defence both in its resolution of 12 and 28 September can be seen as being perfectly coherent with the idea that the United Nations has not relinquished its ultimate authority or, at the very least, its cognisance if not even its right of control over the American reaction to the terrorist acts; indeed, on the contrary, the U.N. is quite capable of playing its role as far as the maintenance of peace and security, within the framework of Chapter VII of the Charter, is concerned. All the same, Resolution 1368 could be reckoned to have allowed a particularly flexible interpretation, if not even one in total derogation of legitimate self-defence. This concept, in principle, only permits armed reaction to foreign aggression coming from a State, not a nebulous transnational movement. Now, under the assumption that such allegations may actually be evidenced, what could probably be argued, according to the content of Resolution 1373 of 28 September, is the following : Afghanistan, taken as a State which directly provides active support to entities and persons involved in terrorist acts, has done two things at the same time : a) it has breached its international obligation "to refrain from organising, instigating, assisting or participating in terrorist acts in another State", a rule which is suggested in the same Resolution to have been well established in general international law throughout a series of paramount UN General Assembly Resolutions, starting with the famous 24 October 1970 Resolution 2625 (XXV) on friendly relations between States; b) it has directly participated in actions falling under the newly enlarged definition of " a threat to international peace and security". As a consequence, it may constitute the target country in a self-defensive action, whether unilateral or collective. But, if this interpretation is correct, it then even reinforces the role of the Security Council, as it is pointed to in the same Resolution 1373. As for the collective dimension of self-defence, it has already been the subject of many commentaries. It is in effect the first time that Article 5 of the North Atlantic Treaty has been invoked by its Member States to demonstrate their active solidarity with one another. But, here yet again, the underlying trend goes in the direction of co-operation and, thus, close international concerted action. It does not imply the unrestrained development of an operation of justice. The fact that, the operation `Operation Infinite Justice' was initially qualified by its promoters as being `without limits' makes one to feel that they also need to be reminded that an order exists, in this case, the international legal order! It has, moreover, been sufficiently emphasised that Article 5 of the NATO Treaty leaves it to each of the allies to determine the nature as well as the measure of its demonstration of solidarity insofar as this will still be necessary. Let us simply note, in this regard, that the freedom left to each of the members of the Atlantic Alliance to decide on its response is illustrated by their practice, since, since the invocation of Article 5, the nature and the extent of the support brought by each member state has varied considerably, the United Kingdom being the first one to have decided to commit itself alongside the United States militarily. The practice relating to this article confirms thus the flexible interpretation that was immediately given to it by the countries concerned. This, whatever it may imply, does not mean that the Alliance itself is deprived of any competence to control the military action undertaken by the United States; quite the reverse. The invocation of Article 5 has had the immediate effect of establishing a legal link between the American response and the Alliance itself. * The prevention of international terrorism calls for a range of responses on many different levels, administrative, police, economic and financial. The law, here as elsewhere, is only an instrument of, not a substitute for, political action. For all that, the truly legal dimension of the law means that to an extent it works according to its own distinct time-scale. It is, first of all, true that the existing conventional arsenal, whilst not negligible, remains piecemeal, incomplete, and full of gaps. There is undoubtedly need for some sort of overriding treaty framework for the co-ordination of anti-terrorist action. There is, or there was, until September 28! On that date, Security Council Resolution 1373 was unanimously adopted. It would be somewhat premature to anticipate on the very impact of this resolution. Nevertheless, it might well be that this instrument remain, in the future, as one of the most striking examples of both the efficiency and the far reaching bearing of "secondary legislation"1 as it can be established by Security Council Resolutions adopted under Chpater VII of the UN Charter. This text is all the more striking by its wide-ranging and comprehensive dimensions as well as by the rapidity with which it was conceived and adopted. In may respects, it sets up what could have been expected from a universal program of compulsory action against terrorism established in a framework convention. But such an agreement would have taken years for being adopted, and then ratified, without ever becoming binding for each and every member of the UN; contrary to what is already now the case. The amazingly quick adoption of this quasi universally binding instrument covers a large spectrum of steps and measures which will require a reinforcement of co-operation of states at differentiated levels, including the administrative, financial, police, judiciary, criminal dimensions. The establishment of a Committee to monitor the implementation of the steps and strategies set out by the same Resolution is encouraging. Last but not least, the crisis so dramatically brought out on 11 September suggests to include within the new dimensions of this global program of co-operation the reconsideration of the relationship between human rights, peace and economic development. Yet, they had already been so clearly set out in one text : article 2 of the UN Charter! * Member of the EJIL Board of Editors. 1 i.e. unilateral binding legislation of every member State, as adopted by one organ if an international organisation endowed with normative capacity. See, for instance, G. Arangio-Ruiz, On the Security Council's Law-Making, Rivista di diritto internazionale 83 (2000), S. 609 ff.
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