The Attack on the World Trade Center: Legal Responses In What Sense was There an "Armed Attack"? Giorgio Gaja * Discussion Forum When stating the conditions for individual and collective self-defence, neither Article 51 of the UN Charter nor Article 5 of the NATO Treaty specifies that an "armed attack" has to originate from a state. However, this condition may be taken as implicit. The two provisions deal with international relations and envisage an exception to the general prohibition of the use of force against states. Moreover, armed attack is a subcategory of aggression, as explicitly said in the French text of Article 51 of the Charter, and also aggression clearly has to come from a state (see Article I of the definition of aggression annexed to GA resolution 3314(XXIX)). When terrorist acts are not attributable to a state, the state would anyway incur into international responsibility if it failed to take adequate preventive measures. However, one could not say that an armed attack occurred. This explains why terrorist acts have been traditionally distinguished from armed attacks, as was for instance done in paragraph 24 of the "Alliance's Strategic Concept" which the North Atlantic Council adopted on 24 April 1999. Terrorist acts were then considered among "other risks" to the Alliance security interests. The distinction between armed attacks and terrorist acts has become blurred in the aftermath of the acts that took place on September 11th, possibly because of the enormous consequences. By "recognizing the inherent right of individual or collective self-defence in accordance with the Charter" a preambular paragraph of SC resolution 1368 appeared to imply that the terrorist acts in New York, Washington and Pennsylvania represented an "armed attack" within the meaning of Article 51 of the UN Charter. A similar preambular paragraph was also included in resolution 1373. The point that an armed attack occurred was more explicit in the statement made by the North Atlantic Council on September 12th. This said that, "if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all" (Press Release (2001)124). Neither the SC resolutions nor the NATO statement attempted to establish a link between the terrorist acts and a particular state. However, these texts do not provide a clear indication whether they intend to refer to a wide concept of armed attack which would comprise also acts which are not attributable to a state. The issue whether the acts in question could be regarded as state acts depends on factual elements which are still controversial and which the present writer is not qualified to assess. What may be done here is to briefly discuss the legal framework under which attribution to a state could be envisaged. This may be done by reviewing the different instances in which conduct is attributable to a state according to the draft articles on state responsibility that the ILC finally adopted on August 3rd. The case of attribution that is generally discussed with regard to terrorist groups is that of a state giving instructions or directing or controlling persons or groups of persons (Article 8). As is well known, the ICJ gave a restrictive view of this case when it found that there was "no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf" (ICJ Reports 1986 at 62, para. 101). Even if one used a wider criterion for attribution, there would be difficulties in determining that the group responsible for the terrorist acts acted under the instructions, direction or control of a state. Rather than a state giving support, financial or other, to the group, the situation is more likely to be the reverse: that of a group giving support and to some extent controlling a state. Article 10 of the ILC draft articles indirectly considers the case of an insurrectional movement or another entity which antagonizes the government of a state and controls part of its territory. In this case, it would be unreasonable to attribute to the state the acts of the movement or entity. However, there is no indication in the factual situation that there is a terrorist group which may be assimilated to an insurrectional movement. The circumstances of fact do not point either to the case of the exercise by the group of "elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority" (Article 9). The ILC commentary explains that this case presupposes "the existence of a government in office and of state machinery whose place is taken by irregulars or whose action is supplemented in certain cases" (doc. A/56/10 at 110); moreover, "the circumstances surrounding the exercise of elements of the governmental authority by private persons must have justified the attempt to exercise police or other functions in the absence of any constituted authority" (ibid., at 111). The conditions set out in this draft article are unlikely to be fulfilled by a terrorist group. The same could be said of the case of persons or entities that are "empowered by the law of that state to exercise elements of the governmental authority" (Article 5). It would be highly unlikely for a law to confer powers on a terrorist group. This leaves the possibility of considering the terrorists as part of the organization of a state as de facto organs. Article 4(2) says that: "An organ includes any person or entity which has that status in accordance with the internal law of the state". Thus the status of an organ under the law of the state is the normal condition, but is not a necessary element. The commentary explains: "In some systems the status and functions of various entities are determined not only by law but also by practice, and reference exclusively to internal law would be misleading" (doc. A/56/10 at 90). Although the commentary does not provide any specific example of de facto organs, many instances could be envisaged. They may comprise the cases of persons and entities as varied as dictators, political movements or even transnational corporations. Clearly also a formally independent terrorist group could be part of the organization of a state. This would partly depend on the group's objectives. If it fought the government it could not be part of the state. On the contrary, it could be a de facto organ when it fights insurrectional movements or foreign governments. Thus, depending on the factual circumstances, the definition of the terrorist acts of September 11th as "armed attack" may not necessarily imply that the concept actually refers to acts that are not attributable to a state. * Professor of International Law, University of Florence, Member of the International Law Commission.
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