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THE IMPORTANCE of INTERNATIONAL LAW in COUNTER- TERRORISM: THE NEED for NEW GUIDELINES in INTERNATIONAL LAW to ASSIST STATES RESPONDING to TERRORIST ATTACKS Heidi Michelle Schlagheck Thesis submitted to the faculty of the Virginia Polytechnic Institute and State University in partial fulfillment of the requirements for the degree of Master of Arts In Political Science Dr. Deborah J. Milly, Chair Dr. Georgeta V. Pourchot Dr. Scott G. Nelson 14 December 2006 Cape Canaveral, Florida Keywords: international humanitarian law, international human rights law, terrorism, nonstate actor © 2006, Heidi M. Schlagheck The Importance of International Law in Counter-Terrorism: The Need for New Guidelines in International Law to Assist States Responding to Terrorist Attacks Heidi M. Schlagheck ABSTRACT Terrorism, in one way or another, touches everyone’s lives. Its affect could be as small as watching media stories on the nightly news and waiting longer in a security line at the airport or as significant as losing a loved one in an attack. As individuals come to grips with living with increased terrorist violence, individual nation-states and the international community have to prepare themselves to prevent, react to, and counter terrorism. This thesis examines whether international law provides an adequate framework for states victimized by terrorism to respond within the law. It highlights how international law currently addresses terrorism and the benefits and disadvantages of applying national and transnational criminal law and international human rights law compared with international humanitarian law to terrorism. Three case studies, the 11 September 2001 attacks on the United States, the 5 September 1972 attack against Israeli athletes in Munich, Germany, and the 11 March 2004 bombings of the train system in Madrid, Spain, investigate how international law has been used in actual terrorist incidents, lending insight into how international law has been interpreted and used in the face of terrorism. They also allow analysis of other factors besides international law that impact a victim-state’s response. Finally, this thesis proposes criteria that can be weighed by victim-states and the international community in order to develop an appropriate response to terrorist incidents and recommendations for modifications to international law that will maintain international law’s relevance as the international community fights terrorism. ACKNOWLEDGMENTS First and foremost, thank you to Dr. Deborah Milly. As my committee chair, she was intricately involved in helping me grow as a writer and provided feedback on every aspect of my thesis. I could not have accomplished this thesis without her encouragement and constructive advice. I also benefited greatly from the assistance of Dr. Georgeta Pourchot and Dr. Scott Nelson. Their conceptual questions and comments helped me formulate and understand terrorism and international politics in a much deeper and more meaningful way. My committee has been an integral part of shaping this thesis as well as pushing me to expand my knowledge and appreciation of issues that face our world. All errors that remain in the following pages are mine alone. I would also like to thank my Mom and Dad, Mindy, and Tom and Grace for their continuous love, support, and reality checks, and for placing an importance on education. From my parents raising me to love to learn, to my entire family’s encouragement of higher education and pursuing one’s dreams and goals, I have achieved an important milestone. Most of all, my husband, Christopher, deserves all of my appreciation and gratitude for not only finding this program to allow me to continue my pursuit of education but also for being with me day-in and day-out from my first class through my defense. His support, encouragement, and love will forever be precious to me. Last but not least, I am grateful to the dedicated servicemen and women who have allowed me the academic freedom to pursue such ideas and who face these issues each day. Without their sacrifices this thesis would not have been possible. iii TABLE of CONTENTS ABSTRACT....................................................................................................................................ii ACKNOWLEDGEMENTS............................................................................................................iii TABLE OF CONTENTS................................................................................................................iv LIST OF TABLES.........................................................................................................................vii CHAPTER I: INTRODUCTION................................................................................................1 Research Question and Analytical Framework................................................................................1 Significance of the Study.................................................................................................................5 Key Concepts...................................................................................................................................8 Literature Review...........................................................................................................................11 Research Design.............................................................................................................................16 Synopsis of Chapters......................................................................................................................21 CHAPTER II: THE CURRENT FOUNDATION IN INTERNATIONAL LAW FOR ADDRESSING TERRORISM....................................................................................................24 Introduction....................................................................................................................................24 Defining Terrorism as an International Community......................................................................25 Current Terrorism Conventions.........................................................................................26 Elements of Terrorism According to the International Community..................................27 Other Factors Considered when Defining Terrorism........................................................29 United Nation’s Work toward a Comprehensive Definition.............................................31 Fundamentals of International Law...............................................................................................32 Customary Law versus Conventional Law........................................................................33 International Humanitarian Law........................................................................................34 Who is Protected?..................................................................................................38 Using Force and Initiating LOAC………………………………………………..44 International Human Rights Law.......................................................................................48 Who is Protected?..................................................................................................50 The Use of Force in IHRL……………………………………………………….50 Levels of Violence within IHRL…………………………………………………52 Conjoining International Humanitarian Law and Human Rights Law..........................................53 Historical Background.......................................................................................................54 Adaptation by the International Community.....................................................................56 CHAPTER III: IS TERRORISM A CRIME OR AN ACT OF WAR: BENEFITS AND DISADVANTAGES WITHIN EACH LEGAL FRAMEWORK............................................58 Introduction....................................................................................................................................58 Applications of Domestic versus International Law to Terrorism……………………………….59 Correlating Terrorism with Criminal Acts or Acts of War: Benefits and Disadvantages................................................................................................................................63 Terrorism as a Crime.........................................................................................................64 The Role of Terrorist Organizations..................................................................................65 Terrorist Ideology and Motivations...................................................................................67 Terrorism as an Act of War...............................................................................................70 iv Classifying Terrorism within Criminal or Warfare Legal Frameworks: Benefits and Disadvantages................................................................................................................................72 Benefits and Disadvantages of a Criminal Classification..................................................75 Positive and Negative Aspects of an Act of War Classification........................................81 Conclusions....................................................................................................................................92 CHAPTER IV: TERROR IN THE 21st CENTURY...............................................................96 New Weapon, New War................................................................................................................97
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