International Law and a nation’s self defense

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How international law seeks to define, and limit, the right to self-defence has been analysed through the ages.5 It is not the intention of this article either to 4 Anticipatory self-defence allows for reaction when an attack is imminent. The UN Security Council supports this interpretation of self-defence, see Report of the High Level Panel on Threats, Challenges, and Changes, UN doc. A/59/565 (2004). For further discussion see Y. Dinstein, War, Aggression, and Self-Defense (2nd ed., 1992) 182; O. Schachter, ‘The Right of States to Use Armed Force’, (1984) 82 Mich. L. Rev. 1620; R. Wedgwood, ‘Responding to Terrorism: The Strikes Against bin Laden’, (1999) 24 Yale J. Intl. L. 559; R. Erickson, ‘Legitimate Use of Military Force Against StateSponsored Terrorism’, (1989) 100–103; A. Cassese, International Law in a Divided World (1986) 230–236; J. Brunnee and S. Toope, ‘The Use of Force: International Law After Iraq’, (2004) 52 Intl. & Comp. L.Q. 785; D. W. Bowett, Self-Defence in International Law (1959) 188–89. 5 For further discussion on this general topic, see R. Schildkraut, ‘Where There Are Good Arms, There Must Be Good Laws: An Empirical Assessment of Customary International Law Regarding Pre-emptive Force’, (2007) 16 Minn. J. Intl. L. 193; J. Green, ‘Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law Concerning Self-Defence’, (2006) 14 Cardozo J. Intl. & Comp. L. 429; M. Skopets, ‘Battered Nation Syndrome: Relaxing the Imminence Requirement of Self-Defence in International Law’, (2006) 55 Am. U. L. Rev. 753; J. Rabkin, ‘American Self-Defence Shouldn’t Be too Distracted by International Law’, (2006) 30 Harv. J. L. & Pub. Poly. 31; C. Bordelo, ‘The Illegality of the U.S. Policy of Pre-emptive Self-Defence Under International Law’, (2005) 9 Chap. L. Rev. 111; 4 Amos N. Guiora ‘rehash’ previous discussion or to emphasize the ambiguity of the debate.

Rather, in seeking to articulate new standards, reflective of contemporary conflict, this article seeks to build on what has been previously suggested. However, the limitation of what has been previously offered is that it is relevant to ‘yesterday’s’ paradigm, rather than today, much less tomorrow. The discussion below emphasizes the requirement to re-articulate how international law defines self-defence. It is not to argue the irrelevance of the UN Charter 6 but rather to propose the articulation and implementation of new standards reflecting a new reality. Before addressing customary international law and international conventions and treaties, it is critical to set the stage with respect to what I refer to as ‘the new threat’. While innumerable threats to the nation state exist,7 I will focus on terrorist bombings. Thomas Ricks argues that terrorist bombings are the greatest danger facing American forces in Iraq. The daily toll of insurgent bombings against innocent Iraqi civilians makes clear the damage caused to life and property alike; the N. Ochoa-Ruiz and E. Salamanca-Aguado.

Exploring the Limits of International Law Relating to the Use of Force in Self-Defence’, 16 EJIL 499 (2005); A. E. Eckert and M. Mofidi, ‘Doctrine of Doctrinarie—The First Strike Doctrine and Pre-emptive SelfDefence Under International Law’, (2004) 12 Tul. J. Intl. & Comp. L. 117; D. B. Rivkin Jr., A. L. Casey and M. DeLaquil, ‘Pre-emption and Law in the Twenty-First Century’, (2004) 5 Chi. J. Intl. L 467; J. Yoo, ‘Using Force’, (2004) 71 U. Chi. L.R. 729; M. N. Schmit, ‘Pre-emptive Strategies in International Law’, (2003) 24 Mich. J. Intl. L. 513; M. E. O’Connell, ‘American Exceptionalism and the International Law of Self-Defence’, (2002) 31 Denv. J. Intl. L. & Poly. 43; A. C. Arend, ‘International Law and the Recourse to Force: A Shift in Paradigms’, (1990) 27 Stan. J. Int’l. L. 1. Specifically focusing on self-defence to fight terrorism, see J. E. Kastenberg, ‘The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defence & Pre-emption’, (2004) 55 A.F. L. Rev. 87; N. A. Shah, ‘Self-Defence, Anticipatory Self-Defence and Pre-emption: International Law’s Response to Terrorism’, (2007) 12 JCSL 95; J. Beard, ‘America’s New War on Terror: The Case for Self-Defence Under International Law’, (2002) 25 Harv. J. L. & Pub. Poly. 559; E. Gross, ‘Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence’, (2001) 15 Temp. Intl & Comp. L. J. 195. 6 See T. Franck, ‘Who Killed Article 2(4)?’ (1970) 64 AJIL 809; A. Arend, ‘International Law and the Pre-emptive Use of Military Force’, (2003) 26 Wash. Q. 89; M. Glennon, The Fog of Law: Self-Defence, Inherence and Incoherence in Article 51 of the United Nations Charter, (2002) 25 Harv. J. L. & Pub. Poly. 539. 7 See J. J. Paust, ‘Use of Force Against Terrorists in Afghanistan, Iraq and Beyond’, (2002) 35 Cornell Int’l. L.J. 533; M. P. Popiel, ‘Redrafting the Right of Self-Defence in Response to International Terrorism’, (2002–03)6 Gonz. J. Int’l. L. 5; N. G. Printer, Jr., ‘The Use of Force Against Non-State Actors Under International Law: An Analysis of the U.S. Predator Strike in Yemen’, (2003) 8 UCLA J. Int’l. L. & Foreign Aff. 331; D. Richemond, ‘Transnational Terrorist Organizations and the Use of Force’, (2007) 56 Cah. U. L. Rev. 1001; K. N. Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors’, (2007) 56 Int’l. & Comp. L. Q. 141. 8 T. Ricks, Fiasco: The American Military Adventure in Iraq (2006). B

Between 1 May 2003 and 16 March 2007, 10,732 Iraqi civilians died from car, suicide or roadside bombs. 1,795 separate attacks occurred during this time. Between Anticipatory Self-Defence and International Law 5 planned bombings in Trafalgar Square and Glasgow indicate all too clearly the potential danger of terror bombings; and the planned, but foiled, simultaneous attack on commercial airlines, whether departing from London or the Philippines all highlight the enormous risk to society.

While other threats are no less significant, some perhaps more dangerous, I would suggest that terror bombings are the most concrete manifestation of contemporary terrorism. To explain the critical relationship between terrorist bombings and self defence it is necessary to engage in a relatively lengthy discussion regarding the former. Otherwise, the reader may perceive self-defence as only an abstract concept. Therefore, the discussion below addresses self-defence from a most practical perspective—how does society lawfully protect itself from this threat? Terror bombing is defined herein by the broadest possible parameters to include the following: dirty bombs, suicide bombings, remote-controlled bombings (without a terrorist exploding himself as differentiated from the suicide bomber), and nuclear weapons. Particular attention will be given to the indiscriminate killing of innocent civilians accomplished by the bombing methods mentioned above. Terror bombings, in the widest possible meaning of the term, represent the greatest threat presently posed by terrorists.

Therefore, it is critical that effective counter terrorism measures are developed. ‘[B]y its sheer nature, [terrorist bombing] depends on … “isolated” incidents to 16 March and 17 July 2007, an additional 1,587 Iraqi civilians have died from car, suicide or roadside bombs. Information from (last accessed 20 July 2007). 10 29 June 2007—Two cars were found near Trafalgar Square loaded with nails packed around canisters of propane and gasoline, set to detonate and potentially kill hundreds in the theater & nightclub district. This plot was uncovered two days after Gordon Brown, the new prime minister, had taken office, see P. Dodds, ‘London Police Foil Major Terror Plot,’ The Washington Post, 29 June 2007, available at (last accessed 20 July 2007). 11 29 June 2007—Thirty-six hours following the attempted London car bombs, ibid., the suspected terrorists traveled to Glasgow where they attempted a failed car bombing at Glasgow Airport.

Witnesses saw a car drive through the doors of the main terminal building, then the driver and passengers jump out and attempt to detonate the vehicle. Additional information is available at (last accessed 20 July 2007). The two incidents were found to be connected, and were linked to a larger group with plans for attack within the United States, see (last accessed 20 July 2007). 12 10 August 2006—British police arrested 21 people in connection with a terrorist plot to blow up an aircraft flying from the United Kingdom to the United States. The plot involved hiding liquid explosives in carry-on luggage, with at least six flights targeted, see (last accessed 20 July 2007). 13 4 March 2003—A bomb hidden in a backpack exploded at an airport terminal in Davao, Mindanao in the Philippines. Twenty-one people were killed, see (last accessed 20 July 2007). 6 Amos N. Guiora achieve its goals. The fragmented nature of most terrorist organisations makes it virtually impossible for the organisations to conduct anything other than small scale acts.

 

Terror bombing is a concern precisely because of its indiscriminate nature, warranting attention due to its increasingly widespread use, relative ease of production, and difficulty of perpetrator identification and prevention. The terror bombing threat differs from other forms of terrorist attacks. To highlight this uniqueness, one may compare terror bombings to airplane hijackings. Airports already benefit from a security infrastructure. Although the efficacy of these systems is debatable, in theory, airports could modify or intensify existing resources and procedures to prevent attacks. In the airline industry, the intelligence community can use the records of flight plans to assess and prioritise risks.

There are a finite number of flights to an identifiable number of potential targets (cities). Furthermore, passengers knowingly accept the risk when they choose to fly. Should a passenger prefer, could he or she use another form of transportation? Terror bombings, on the other hand, by their very nature do not target one geographical area or industry. Any building, bridge, landmark or gathering place is vulnerable. Intelligence gathering capabilities in countering terrorist bombings is exponentially more difficult than in response to other terrorist tactics. Not only is there no current security system to protect all sites, it is impossible to create one. There are an unlimited number of potential targets and terrorist actors. The intelligence assessment becomes much more difficult to prioritise.15

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